p12-1895form13d.htm

0000902664-12-001565.txt : 20121213 0000902664-12-001565.hdr.sgml : 20121213 20121213140638 ACCESSION NUMBER: 0000902664-12-001565 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20121213 DATE AS OF CHANGE: 20121213 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Midway Gold Corp CENTRAL INDEX KEY: 0001319009 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 000000000 STATE OF INCORPORATION: A1 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-83651 FILM NUMBER: 121261738 BUSINESS ADDRESS: STREET 1: POINT AT INVERNESS, SUITE 280 STREET 2: 8310 SOUTH VALLEY HIGHWAY CITY: ENGLEWOOD STATE: CO ZIP: 80112 BUSINESS PHONE: (720) 979-0900 MAIL ADDRESS: STREET 1: POINT AT INVERNESS, SUITE 280 STREET 2: 8310 SOUTH VALLEY HIGHWAY CITY: ENGLEWOOD STATE: CO ZIP: 80112 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Hale Capital Partners, LP CENTRAL INDEX KEY: 0001458726 IRS NUMBER: 261736044 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 570 LEXINGTON AVE. STREET 2: 49TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212.751.8802 MAIL ADDRESS: STREET 1: 570 LEXINGTON AVE. STREET 2: 49TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D 1 p12-1895form13d.htm MIDWAY GOLD CORP. p12-1895form13d.htm

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D*
(Rule 13d-101)

Midway Gold Corp.
(Name of Issuer)

Common Shares, no par value
(Title of Class of Securities)

598153104
(CUSIP Number)

Martin M. Hale, Jr.
570 Lexington Avenue
49th Floor
New York, New York 10022
(212) 751-8800
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

July 3, 2012
(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ]

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

(Continued on following pages)

(Page 1 of 12 Pages)

______________________________

The information required in the remainder of this cover page shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 598153104

SCHEDULE 13D

Page 2 of 12 Pages

1	NAME OF REPORTING PERSON Martin M. Hale, Jr.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 8,080,435 Common Shares 2,031,249 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 8,080,435 Common Shares 2,031,249 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 8,080,435 Common Shares 2,031,249 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x (see Item 5)
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.9%
14	TYPE OF REPORTING PERSON IN

CUSIP No. 598153104

SCHEDULE 13D

Page 3 of 12 Pages

1	NAME OF REPORTING PERSON Hale Fund Management, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 8,080,435 Common Shares 2,031,249 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 8,080,435 Common Shares 2,031,249 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 8,080,435 Common Shares 2,031,249 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x (see Item 5)
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.9%
14	TYPE OF REPORTING PERSON OO

CUSIP No. 598153104

SCHEDULE 13D

Page 4 of 12 Pages

1	NAME OF REPORTING PERSON Hale Capital Management, LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 8,080,435 Common Shares 2,031,294 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 8,080,435 Common Shares 2,031,294 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 8,080,435 Common Shares 2,031,294 Common Shares issuable upon exercise of warrants 17,837,838 Common Shares issuable upon conversion of Series A Preferred Shares
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x (see Item 5)
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.9%
14	TYPE OF REPORTING PERSON PN

CUSIP No. 598153104

SCHEDULE 13D

Page 5 of 12 Pages

1	NAME OF REPORTING PERSON Hale Capital Partners, LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC, AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 6,127,310 Common Shares 1,054,687 Common Shares issuable upon exercise of warrants 5,405,405 Common Shares issuable upon conversion of Series A Preferred Shares
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 6,127,310 Common Shares 1,054,687 Common Shares issuable upon exercise of warrants 5,405,405 Common Shares issuable upon conversion of Series A Preferred Shares
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 6,127,310 Common Shares 1,054,687 Common Shares issuable upon exercise of warrants 5,405,405 Common Shares issuable upon conversion of Series A Preferred Shares
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x (see Item 5)
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.3%
14	TYPE OF REPORTING PERSON PN

CUSIP No. 598153104

SCHEDULE 13D

Page 6 of 12 Pages

1	NAME OF REPORTING PERSON EREF-MID II, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 12,432,433 Common Shares issuable upon conversion of Series A Preferred Shares
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 12,432,433 Common Shares issuable upon conversion of Series A Preferred Shares
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 12,432,433 Common Shares issuable upon conversion of Series A Preferred Shares
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8%
14	TYPE OF REPORTING PERSON OO

CUSIP No. 598153104

SCHEDULE 13D

Page 7 of 12 Pages

Item 1.	SECURITY AND ISSUER

	This statement relates to the common shares, no par value (the "Common Shares"), of Midway Gold Corp., a corporation incorporated pursuant to the laws of the Province of British Columbia, Canada (the "Issuer"). The Issuer's principal executive offices are located at 8310 South Valley Highway, Suite 280, Englewood, Colorado 80112.

Item 2.	IDENTITY AND BACKGROUND

	This statement on Schedule 13D (the “Statement”) is being filed on behalf of the following persons (collectively, the “Reporting Persons”): (i) Martin M. Hale, Jr., an individual (“MH”), (ii) Hale Fund Management, LLC, a Delaware limited liability company (“HFM”), (iii) Hale Capital Management, LP, a Delaware limited partnership (“HCM”), (iv) Hale Capital Partners, LP, a Delaware limited partnership (“HCP”), and (v) EREF-MID II, LLC, a Delaware limited liability company ("EREF-MID II"). The securities reported herein are held directly by HCP, indirectly by HCP through HCP-MID, LLC, a Delaware limited liability company ("HCP-MID"), directly by EREF-MID, LLC, a Delaware limited liability company ("EREF-MID") and directly by EREF-MID II. HCP is the sole member of HCP-MID. MH is the Chief Executive Officer of HCP. MH is also (i) the sole owner and managing member of Hale Fund Partners, LLC, a Delaware limited liability company (“HFP”), the general partner of HCP and (ii) the sole owner and Chief Executive Officer of HFM. HFM is (i) the general partner of HCM, the manager of HCP and (ii) the manager of EREF-MID and EREF-MID II.

	The address and principal office of each of the Reporting Persons and HFP is 570 Lexington Avenue, 49th Floor, New York, New York 10022. Each Reporting Person and HFP is organized in Delaware with the exception of MH, who is a citizen of the United States. The principal business of each of the Reporting Persons and HFP is investment and/or investment management. The foregoing should not be construed in and of itself as an admission by any Reporting Person or HFP as to beneficial ownership of the Common Shares held by, or underlying the Series A Preferred Shares (the "Preferred Shares") held by or warrants to purchase Common Shares (the "Warrants") held by the Reporting Persons, HCP-MID or EREF-MID.

	During the last five years, none of the Reporting Persons or HFP has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining further violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3.	SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

	Funds for the purchase of the Common Shares and Warrants reported herein were derived from the working capital of HCP and EREF-MID. A total of $8,001,036.50 was paid to acquire such Common Shares and Warrants.

CUSIP No. 598153104

SCHEDULE 13D

Page 8 of 12 Pages

Funds for the purchase of the Preferred Shares reported herein were derived from the working capital of each of HCP-MID and EREF-MID II. A total of $33,000,000 was paid to acquire such Preferred Shares (as described in Item 4 below).

Item 4.	PURPOSE OF TRANSACTION

	HCP and EREF-MID acquired the Common Shares and Warrants directly held by each for investment purposes in the ordinary course of business, and not with the purpose nor with the effect of changing or influencing the control or management of the Issuer. An aggregate of 4,062,500 of such Common Shares and the Warrants (which Warrants are currently exercisable to purchase an aggregate of 2,031,249 Common Shares) were acquired directly from the issuer on July 6, 2012 in the offering described in the Current Report on From 8-K filed by the Issuer on July 6, 2012 (the "July Form 8-K"). The Warrants have an exercise price of US$1.85 per share. The full terms of the Warrants are set forth in the Warrant Indenture, dated as of July 6, 2012, by and between the Issuer and Computershare Trust Company of Canada, as Warrant Agent (the "Warrant Indenture"). The Warrant Indenture is referenced as Exhibit 1 hereto.

	On November 21, 2012, the Issuer entered into a securities purchase agreement (the “Purchase Agreements”), the form of which is referenced as Exhibit 2 hereto, with each of HCP-MID, EREF-MID II and INV-MID, LLC, a Delaware limited liability company ("INV-MID"), (collectively, the "Initial Purchasers") pursuant to which the Issuer agreed to issue an aggregate of 37,837,838 Preferred Shares at a price of US$1.85 per Preferred Share in exchange for an aggregate of US$70,000,000. The closing of the transactions contemplated by the Purchase Agreements (the "Closing") occurred on December 13, 2012. The amendment to the Articles of Incorporation of the Issuer authorizing the Preferred Shares in the capital of the Issuer and setting forth the terms and conditions of the Preferred Shares (the "Series A Rights") is referenced as Exhibit 3 hereto.

	The Series A Rights provides that holders of Preferred Shares (the “Holders”) are entitled to receive dividends compounded monthly and payable quarterly at the election of the Issuer either in cash or, subject to certain equity conditions, in Common Shares. Dividends on the Preferred Shares accrue at a rate of 8%.

	Each Preferred Share is convertible, at the option of the Holder and upon certain mandatory conversion events described below, into one Common Share.

CUSIP No. 598153104

SCHEDULE 13D

Page 9 of 12 Pages

	The issuer has the option to force the conversion of the Preferred Shares if on or after the first anniversary of the issuance of the Preferred Shares, the market price of the Common Shares exceeds US$3.70 for 20 consecutive trading days and certain equity conditions are satisfied. The number of Preferred Shares subject to the mandatory conversion will be calculated as of the date of the mandatory conversion based on the product of (i) the aggregate number of Common Shares issuable by the Issuer to all Holders upon such conversion multiplied by (ii) the average of the dollar volume-weighted average price of the Common Shares on the NYSE MKT LLC during the period beginning at 9:30:01 a.m., New York time and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, LLC through its “Volume at Price” function for each of the twenty (20) consecutive trading days immediately prior to the mandatory conversion shall not exceed 30% of the average of the aggregate dollar trading volume of the Common Shares traded on the Toronto Stock Exchange, the TSX Venture Exchange, the New York Stock Exchange, Inc., the NYSE MKT LLC, the NASDAQ Global Select Market, the NASDAQ Capital Market and the OTC Bulletin Board for the five (5) consecutive trading days for each of the twenty (20) consecutive trading days immediately preceding the applicable mandatory conversion date.

	Starting five years after issuance of the Preferred Shares, subject to certain conditions, the Preferred Shares are redeemable by either the Issuer or the Holders for cash at US $1.85 per share together with accrued and unpaid dividends.

	Each Holder is entitled to vote, on an as converted basis, at all meetings of the Issuer's shareholders, except as otherwise required by law or in the Series A Rights. In addition, the "Preferred Super Majority" (initially HCP-MID until the Initial Purchasers own less than 3,783,784 Preferred Shares in the aggregate, then the Holders of a majority of the then issued and outstanding Preferred Shares) must approve certain actions, including any amendments to the Issuer’s Notice of Articles or Articles that adversely affects the voting powers, preferences or other rights of the Preferred Shares; any liquidation, dissolution or winding-up of the affairs of the Issuer; issuance of any equity security senior to or on parity with the Preferred Shares; issuances of equity below the conversion price of the Preferred Shares (subject to certain exceptions); and the redemption or repurchase of any of the capital stock of the Issuer.

	In connection with the Purchase Agreements, the Issuer and the Initial Purchasers entered into a Registration Rights Agreement on November 21, 2012. The Issuer has agreed to use its commercially reasonable efforts to file a registration statement with the SEC and a Canadian prospectus within 90 days of the Closing for the resale of all of the Common Shares issued or issuable on the conversion of the Preferred Shares and as dividends with respect to the Preferred Shares. The Registration Rights Agreement is referenced as Exhibit 4 hereto.

	On November 21, 2012, the Issuer entered into a Side Letter Agreement with the Initial Purchasers that provides that the "Preferred Governance Majority" (initially HCP-MID until the Initial Purchasers own less than 7,567,568 Preferred Shares in the aggregate, then the Holders of a majority of the Preferred Shares until the Holders no longer hold at least 7,567,568 Preferred Shares in the aggregate), so long as it exists, has the right to nominate one (1) director nominee for election to the Issuer's board of directors (the "Board") to stand for election at each annual or special meeting of shareholders of the Issuer or action by written consent of shareholders at which directors will be elected (the "Preferred Director"). Nathaniel Klein, a current director of the Issuer and a Vice President of HCP, shall be nominated as the initial Preferred Director to stand for election to the Board at the next annual shareholders meeting. At the Closing, Nathaniel Klein resigned as a director and MH was appointed as a director by the Board in his place. Nathaniel Klein shall maintain observation rights to the Board until his election to the Board at the next annual general meeting of the Issuer. The Issuer has agreed to seek the approval of its shareholders for the Preferred Director nomination and appointment rights at the next annual or special meeting of the shareholders and at each meeting thereafter until such approval is obtained. The Issuer has agreed to appoint MH, or his nominee to the Issuer’s nominating committee and compensation committee of the Board. In addition, the Issuer has agreed to form a budget and work program committee, consisting of three non-executive directors, one of whom will be either MH or upon his election to the Board the Preferred Director, and the Chief Executive Officer (CEO), whose mandate shall be to review and approve the annual business and financing plans and capital and operating budgets (and any modifications of, or deviations from such plans or budgets). Any and all approvals of the committee relating to such plans and budgets must be unanimous; provided that MH or the Preferred Director, as the case may be, and the CEO of the Issuer shall cooperate and work together in good faith to resolve any issues that the committee has identified as an impediment to their unanimous approval. The form of Side Letter Agreement is referenced as Exhibit 5 hereto.

CUSIP No. 598153104

SCHEDULE 13D

Page 10 of 12 Pages

	The summaries of the Warrant Indenture, the Purchase Agreements, the Series A Rights, the Registration Rights Agreement and the Side Letter Agreement are not complete, and are qualified in their entirety by reference to the texts of the agreements, which are referenced as Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4 and Exhibit 5 to this Schedule 13D (and which are incorporated by reference to Exhibit 4.1 to the July Form 8-K and Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on November 26, 2012 (the “November Form 8-K”), Exhibit 3.1 of the Current Report on Form 8-K filed by the Issuer on December 13, 2012 (the "December Form 8-K"), Exhibits 10.2 and 10.3 of the November Form 8-K, respectively).

	Except as set forth herein, the Reporting Persons have no present plan or proposal that would relate to or result in any of the matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule 13D. The Reporting Persons intend to review their investment in the Issuer on a continuing basis. Depending on various factors including, without limitation, the Issuer’s financial position and strategic direction, actions taken by the Board, price levels of the Common Shares, other investment opportunities available to the Reporting Persons, conditions in the securities market and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, without limitation, purchasing additional Common Shares or selling some or all of their Common Shares, and, alone or with others, pursuing discussions with the management, the Board, other shareholders of the Issuer and third parties with regard to its investment in the Issuer, and/or otherwise changing their intention with respect to any and all matters referred to in Item 4 of Schedule 13D.

Item 5.	INTEREST IN SECURITIES OF THE ISSUER

	(a)	See rows (11) and (13) of the cover pages to this Statement for the aggregate number of Common Shares and percentage of Common Shares beneficially owned by each of the Reporting Persons. Percentages of the Common Shares outstanding reported in this Statement are calculated based upon the 128,251,298 Common Shares outstanding as of November 5, 2012 as disclosed in the Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, filed by the Issuer on November 9, 2012.

	(b)	See rows (7) through (10) of the cover pages to this Statement for the number of Common Shares as to which each Reporting Person has the sole or shared power to vote or direct the vote and sole or shared power to dispose or to direct the disposition.

		In addition to the Common Shares reported on the cover pages of this Statement, INV-MID may be deemed to beneficially own 20,000,000 Common Shares issuable upon conversion of Preferred Shares, representing approximately 13.5% of the Common Shares. HFM is the manager of INV-MID, but as manager does not have voting or investment power of the Preferred Shares of INV-MID or the Common Shares underlying the Preferred Shares of INV-MID. The Reporting Persons may be deemed members of a "group" within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, with INV-MID. The Reporting Persons expressly disclaim membership in a group with INV-MID or any other person.

CUSIP No. 598153104

SCHEDULE 13D

Page 11 of 12 Pages

	(c)	Except as set forth herein, none of the Reporting Persons have effected any transaction in the Issuer’s stock during the past 60 days.

	(d)	No person is known by the Reporting Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any Common Shares beneficially owned by the Reporting Person.

	(e)	Not applicable.

Item 6.	CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

	Each of the Limited Liability Company Agreement of HCP-MID dated as of November 21, 2012 (the "HCP-MID LLC Agreement"), the Limited Liability Company Agreement of EREF-MID dated as of July 29, 2012 (the "EREF-MID LLC Agreement") and the Limited Liability Company Agreement of EREF-MID II dated as of November 21, 2012 (the "EREF-MID II LLC Agreement" and collectively with the HCP-MID LLC Agreement and the EREF-MID LLC Agreement, the “LLC Agreements”), grants HFM the power to vote the securities held by HCP-MID, EREF-MID and EREF-MID II, as applicable, at its discretion. The foregoing description of the terms of the LLC Agreements is not complete and is qualified in its entirety by reference to the LLC Agreements. A copy of each of the HCP-MID LLC Agreement, the EREF-MID LLC Agreement and the EREF-MID II LLC Agreement is attached as Exhibits 6, 7 and 8 to this Statement, respectively, which are incorporated herein by reference. The Limited Liability Company Agreement of INV-MID dated as of November 21, 2012, which relates to the Preferred Shares held by INV-MID, is attached as Exhibit 9 to this Statement and is also incorporated herein by reference.

	Other than as described in this Item 6, in Item 4 and the Joint Filing Agreement attached as Exhibit 10 hereto, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 hereof and between such persons and any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any other securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, divisions of profits or loss, or the giving or withholding of proxies.

Item 7.	MATERIAL TO BE FILED AS EXHIBITS

	Exhibit 1: Warrant Indenture (incorporated by reference to Exhibit No. 4.1 to the July Form 8-K)

	Exhibit 2: Form of Purchase Agreements (incorporated by reference to Exhibit No. 10.1 to the November Form 8-K).

	Exhibit 3: Series A Rights (incorporated by reference to Exhibit No. 3.1 to the December Form 8-K).

	Exhibit 4: Registration Rights Agreement (incorporated by reference to Exhibit No. 10.2 to the November Form 8-K).

	Exhibit 5: Side Letter Agreement (incorporated by reference to Exhibit No. 10.3 to the November Form 8-K).

	Exhibit 6: Limited Liability Company of HCP-MID, LLC, dated as of November 21, 2012.

	Exhibit 7: Limited Liability Company of EREF-MID, LLC, dated as of July 29, 2012.

	Exhibit 8: Limited Liability Company of EREF-MID II, LLC, dated as of November 21, 2012.

	Exhibit 9: Limited Liability Company of INV-MID, LLC, dated as of November 21, 2012.

	Exhibit 10: Joint Filing Agreement as required by Rule 13d-1(k)(1) under the Act.

CUSIP No. 598153104

SCHEDULE 13D

Page 12 of 12 Pages

SIGNATURES

After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Dated: December 13, 2012

HALE FUND MANAGEMENT, LLC
(i) for itself, (ii) as general partner of HALE CAPITAL MANAGEMENT, LP and (iii) as manager of EREF-MID II, LLC

By:	/s/ Martin M. Hale, Jr.
	Name: Martin M. Hale, Jr.
	Title: Chief Executive Officer


HALE CAPITAL PARTNERS, LP,
By: Hale Fund Partners, LLC,
its General Partner


By:	/s/ Martin M. Hale, Jr.
	Name: Martin M. Hale, Jr.
	Title: Managing Member


/s/ Martin M. Hale, Jr.
Martin M. Hale, Jr.

EX-99 2 p12-exhibit6.htm EXHIBIT 6 p12-exhibit6.htm

Exhibit 6

LIMITED LIABILITY COMPANY AGREEMENT

HCP-MID, LLC

This LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of HCP-MID, LLC a Delaware limited liability company (the “Company”), dated as of November 21, 2012 is entered into by and among Hale Fund Partners, LLC (the “Managing Member”) and any person hereafter admitted to the Company pursuant hereto (collectively with the Managing Member, the “Members”).

Preliminary Statement

WHEREAS, the Managing Member has formed a limited liability company under the Delaware Limited Liability Company Act, 6 Del. C. §§18-101, et seq., as amended from time to time (the “Delaware Act”), and wishes to set forth herein an agreement as to the affairs of the Company and the conduct of its business.

Accordingly, in consideration of the promises made herein, the party hereby agrees as follows:

1. Name. The name of the Company is “HCP-MID, LLC.”

2. Purpose. The Company has been organized for the purpose of engaging in any lawful act or activity for which limited liability companies may be organized under the Delaware Act.

3. Members. The name and the address of the Managing Member is as follows:

	Name	Address
	Hale Fund Partners, LLC	570 Lexington Ave, 49th Floor New York, NY 10022

4. Management of the Company.

4.1 Power and Authority of Managing Member. The business and affairs of the Company shall be managed by the Managing Member, who shall have the power and authority, on behalf of the Company, to take any action of any kind not inconsistent with the provisions of this Agreement and to do anything and everything deemed necessary or appropriate to carry on the business and purposes of the Company.

4.2 The Managing Member will be the “manager” (within the meaning of the Delaware Act) of the Company.

5. Dissolution. The Company shall be dissolved and its affairs shall be wound up upon the earlier to occur of: (a) determination by the Managing Member; and (b) the bankruptcy, dissolution or death of the Managing Member.

6. Initial Capital Contributions; Percentage Interests. Each Member has made a capital contribution to the Company in the amount set forth in the books and records of the Company. The capital account (the “Capital Account”) of each Member shall be in an amount equal to such Member’s initial capital contribution, adjusted from time to time for additional contributions, withdrawals, allocations of appreciation and depreciation and other appropriate items. The “Percentage Interests” of the Members in the Company are determined for each Member of the Company by dividing the amount of each Member’s Capital Account by the aggregate Capital Accounts of all Members. The sum of the Percentage Interests shall equal 100 percent.

7. Additional Contributions. No Member shall have any obligation to make additional capital contributions to the Company.

8. Tax Matters. The Managing Member intends that the Company not be treated as an association for Federal income tax purposes. If there shall be any Members other than the Managing Member, the Company shall maintain a Capital Account for each Member in accordance with Treasury Regulation Section 1.704-1(b). The Company’s taxable income and tax losses shall be allocated pro rata based on Percentage Interests. The Managing Member shall act as the “tax matters partners” within the meaning of Section 6231(a)(7) of the Internal Revenue Code of 1986, as amended.

9. Distributions. Distributions shall be made to the Members at the times and in the aggregate amounts determined by the Managing Member. Notwithstanding the foregoing, distributions made in connection with a sale of all or substantially all the Company’s assets or a liquidation of the Company shall be made in accordance with the Capital Account balances of the Members within the time period set forth in Treasury Regulation Section 1.704-1(b)(2)(ii)(B)(3).

10. Indemnification of Managing Member, Employees And Agents.

10.1 Exculpation. To the extent not inconsistent with applicable law, neither the Managing Member nor any of its officers, directors, managers, general partners, employees or affiliates, nor any other Member or officer of the Company, shall be liable, responsible or accountable in damages or otherwise to the Company or to any Member for any action taken or for any failure to act on behalf of the Company in connection with the business or operations of the Company, unless the act or omission constituted willful misconduct.

10.2 Indemnification. To the extent not inconsistent with applicable law, the Company shall indemnify and hold harmless the Managing Member and each of its officers, directors, managers, general partners, employees and affiliates, and all of the Company’s officers, from any loss, liability, damage or expense (including, but not limited to, any judgment, award or settlement and reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) arising out of (a) any acts or omissions or alleged acts or omissions in connection with their activities or the activities of any of their respective employees or agents on behalf of the Company after the date hereof or in connection with the business or operations of the Company after the date hereof and (b) any liability imposed upon any of them under any statute, rule or regulation (including, but not limited to, any statute, rule or regulation relating to environmental matters) applicable to the Company, or their respective officers, directors or employees; provided that (i) the acts or omissions or the alleged acts or omissions upon which the action or threatened action, proceeding or claim did not constitute gross negligence or willful misconduct by the indemnified party and (ii) the action or threatened action, proceeding or claim does not involve the indemnified party on the one hand and the Company on the other hand, except where the Managing Member has acted in good faith in what the Managing Member believed to be in the best interests of the Company. Reasonable expenses incurred by any such indemnified party in connection with the matters referred to above may be paid or reimbursed by the Company in advance of the final disposition of the proceeding upon receipt by the Company of (i) a written affirmation by the indemnified party of its good faith belief that he or it met the standard of conduct necessary for indemnification by the Company and (ii) a written undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that he or it has not met that standard of conduct.

10.3 Fiduciary Duties. Neither the Managing Member nor any officer of the Company shall have any fiduciary or other duty to the Company, the Members or any other stakeholder in the Company or otherwise be subject to the corporate opportunity doctrine as applied from time to time under Delaware law; provided that nothing in this Section 10.3 shall preclude liability for any act or omission constituting willful misconduct.

10.4 Beneficiaries. The exculpation, indemnification and advancement of expenses provided by, or granted pursuant to, this Section 6 shall continue as to a person or entity that has ceased to be a Managing Member, officer, employee or agent and shall inure to the benefit of the executors and administrators of such a person or entity.

11. Admission of Additional or Substitute Members. The Company may admit substitute or additional members at the Managing Member’s discretion.

12. Liability of the Members. The Members shall not have any liability for the obligations or liabilities of the Company except to the extent expressly provided in the Delaware Act.

13. Benefits of Agreement. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or of any Member.

14. Headings. The titles of Sections of this Agreement are for convenience of reference only and shall not define or limit any of the provisions of this Agreement.

15. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to conflicts of law principles of the State of Delaware.

16. Amendments. This Agreement may be amended only by written instrument executed by the Members.

IN WITNESS WHEREOF, the undersigned has duly executed this Limited Liability Company Agreement as of the date first written above.

	MANAGING MEMBER


	Hale Fund Partners, LLC



	/s/ Martin Hale Jr.
	Name: Martin Hale Jr.
	Title: CEO

EX-99 3 p12-exhibit7.htm EXHIBIT 7 p12-exhibit7.htm

LIMITED LIABILITY COMPANY AGREEMENT

EREF-MID, LLC

as of June 29, 2012

Table of Contents

Page

1.	Purpose; Formation	1
2.	Management of the Company	1
2.1	Manager	2
2.2	Powers of Manager	2
2.3	Limitations on the Powers of Manager	2
2.4	Powers of ER	3
3.	Membership Interests; Deemed Capital Contributions	3
3.1	Membership Interests	3
3.2	Capital Contributions	3
3.3	No Withdrawals	3
3.4	No Liability for Capital Contributions	3
3.5	No Interest	3
4.	Distributions	3
4.1	General	4
4.2	Distribution Amount	4
4.3	Tax Distributions	4
5.	Transfers of Interests	4
5.1	Restrictions on Transfers	4
5.2	Conditions to Transfer	5
6.	Exculpation; Indemnification	5
6.1	Exculpation	5
6.2	Indemnification	5
6.3	Fiduciary Duties	6
6.4	Beneficiaries	6
7.	Dissolution; Liquidation	6
7.1	Dissolution	6
7.2	Liquidation and Distribution of Assets	6
8.	Accounting and Tax Matters	6
8.1	Fiscal Year	6
8.2	Books of Account	6
8.3	Tax Information	7
8.4	Tax Allocations	7
8.5	Capital Accounts	7
8.6	Allocation of Income and Gains	7
8.7	Allocation of Losses	7
8.8	Tax Matters Partner	8

9.	Representations	8
9.1	Member Representations	8
10.	Sale, Disposition or Transfer of the Securities	9
11.	Miscellaneous	9
11.1	Entire Agreement; Amendment	9
11.2	Notices	9
11.3	Governing Law	9
11.4	Submission to Jurisdiction	10
11.5	Confidentiality	10
11.6	Headings	10
11.7	Ratification	10

LIMITED LIABILITY COMPANY AGREEMENT

EREF-MID, LLC

Dated as of June 29, 2012

The parties to this agreement (the “Agreement”) (referred to as the “Members”), who are all of the members of EREF-MID, LLC, a Delaware limited liability company formed on June 29, 2012 (the “Company”), are EREF Special Situations, LLC, a Delaware limited liability company (“ERSS”), East Rock Focus Fund LP, a Delaware limited partnership (“ERFF”), East Rock Simco Endowment Fund, LP, a Delaware limited partnership (“Simco”), and East Rock SCS Fund, LP, a Delaware limited partnership (“ERSCS”) (and together with ERSS, ERFF and Simco, “ER”) and Hale Fund Management, LLC, a Delaware limited liability company (“HFM”).

The Company, pursuant to the Midway Gold Corp. (“Midway”) Prospectus Supplement, dated June 26th, 2012 (the “Prospectus”), has acquired 1,953,125 Units (as defined in the Prospectus). As further described in the Prospectus, each Unit consists of one Midway common share and one-half of one transferable common share purchase warrant. The Units, together with any other instruments, rights and securities of Midway that may be acquired by the Company from time to time, are referred to herein collectively as the “Securities”.

The following are the terms of the Company’s limited liability company agreement:

1. Purpose; Formation. The Company shall hold the Securities, and shall conduct any activities that the Manager (as defined below) determines to be incidental to the Company’s ownership, voting or disposition of the Securities. The Company was formed as a limited liability company under the Delaware Limited Liability Company Act, as amended from time to time (6 Del.C. §18 101, et seq.) (the “Act”), upon the filing of the Certificate of Formation of the Company with the Office of the Secretary of State of Delaware on June 29, 2012. The Manager shall accomplish all filing, recording, publishing and other acts necessary or appropriate for compliance with all requirements for the continuation and the operation of the Company as a limited liability company under this Agreement and the Act and under all other laws of the State of Delaware and such other jurisdictions in which the Manager determines that the Company may conduct business. Each Person admitted to the Company as a Member shall promptly execute all relevant certificates and other documents as the Manager shall request.

2. Management of the Company.

2.1 Manager. HFM shall be the manager of the Company (referred to in that capacity as the “Manager”). The Company’s business and affairs shall be managed by or under the direction of the Manager, and none of the Members shall take part in the management or control of the Company’s activities or affairs. Except as set forth in Section 2.3 of this Agreement, the Manager shall have sole discretion in respect of voting or making any other decisions in respect of the Securities held by the Company and such other actions as limited liability companies may engage in under the Act. The Manager shall not be compensated by the Company for acting as Manager (except as specifically provided in this Agreement), but shall be reimbursed for all direct and reasonable out-of-pocket expenses incurred by it in performing it services under this Agreement. Except as specifically provided in this Agreement, the Manager shall not have any duty or obligations to any Member or to take or refrain from taking any action.

2.2 Powers of Manager. Except as set forth in Section 2.3 of this Agreement, the Manager shall have full power (in addition to the powers given to the Manager by law or by the other provisions of this Agreement), in its sole discretion, to take any action that it considers necessary or desirable in connection with the management of the Company and the operation of the Company’s business. The powers of the Manager include the power to execute and deliver on behalf of the Company all such documents and agreements as it determines appropriate (including, but not limited to, documents and agreements relating to the voting of, consent, waiver or amendment with respect to, or sale, exchange, or other disposition of any Securities or other assets owned by the Company), and no other signature shall be required on behalf of the Company. The Manager may appoint officers of the Company, and may engage consultants and advisors (including accountants and attorneys), as it determines necessary or desirable in connection with the management of the Company and the operation of its business including all matters relating to any of the Securities. Any officers of the Company need not be Members of the Company, shall have the powers and duties delegated to them by the Manager, and shall serve as officers of the Company at the pleasure of the Manager.

2.3 Limitations on the Powers of Manager. Notwithstanding any other provision of this Agreement to the contrary, the Manager shall not, directly or indirectly, undertake any of the following actions on behalf of the Company with respect to the Securities without the prior written consent of ER (which consent shall not be unreasonably withheld or delayed):

(a) consent to the issuance of additional indebtedness;

(b) agree to forbearance with respect to any Securities;

(c) agree to forgive any notes issued to the Company, to the extent such notes exist, other than as specifically provided in the documentation governing such notes;

(d) convert, exercise, or sell any Securities (other than in respect of regularly scheduled payments of interest or amortization and decisions whether to accept the same in stock or cash); or

(e) exercise any remedies available to the Company with respect to the Securities.

2.4 Powers of ER. Notwithstanding any other provision of this Agreement to the contrary, the Manager shall with respect to the Securities, at the direction of ER, exercise any remedies available to the Company with respect to the Securities.

3. Membership Interests; Deemed Capital Contributions.

3.1 Membership Interests. Simultaneously with the execution of this Agreement, each Member is contributing to the capital of the Company, by wire transfer of immediately available funds, the amount set forth opposite its name on Schedule A, and the Company shall be deemed to have issued to the Members, in exchange for those contributions, the number of Class A Common Units and Class B Common Units (collectively, “Common Units”) set forth opposite their names on Schedule A. The Company shall not issue or deem to issue any membership interests after the date hereof.

3.2 Capital Contributions. The Manager, with the consent of ER, which consent shall not be unreasonably withheld or delayed, may require the Members to make additional capital contributions to the Company on a pro rata basis (based on each Member’s initial capital contribution); provided that no Member shall be required to make additional capital contributions that in the aggregate exceed such Member’s initial capital contribution, as set forth on Schedule A.

3.3 No Withdrawals. No Member shall be entitled to withdraw any part of its capital account (“Capital Account”) or capital contribution or to receive any distribution from the Company except as expressly provided in this Agreement.

3.4 No Liability for Capital Contributions. No Member shall be personally liable for the return of any portion of the capital contribution of any of the Members; the return of those capital contributions shall be made solely from the Company’s assets. No Member shall be required to pay to the Company or any other Member any deficit in its Capital Account (upon dissolution or otherwise). No Member shall have the right to demand or receive cash or other property for its Common Units.

3.5 No Interest. No Member shall receive any interest on its capital contributions or Capital Account.

4. Distributions.

4.1 General. Distributions shall be made to the Members at the time or times determined by the Manager; provided that the Manager shall promptly distribute any cash received from time to time, net of any reimbursements then payable to the Manager pursuant to Section 2.1 and any reasonable reserve for such reimbursements established by the Manager with the consent of ER, which consent shall not be unreasonably withheld.

4.2 Distribution Amount. All distributions shall be allocated as follows:

(a) first, to the holders of the Class A Common Units (in proportion to the capital contributions made by them, respectively) until each of those holders shall have received pursuant to this Section 4.2(a) the aggregate amount of the capital contributions made by it, respectively; and

(b) the balance, to the holders of the Class A Common Units and Class B Common Units (in proportion to the number of Common Units held by each of them, respectively).

4.3 Tax Distributions. To the extent that for any fiscal year the amount of net income and gains of the Company allocated to any Member exceeds the amount of losses of the Company allocated to that Member for that and prior fiscal years reduced by the amount of net income and gains of the Company allocated to the Member for prior fiscal years, the Manager shall use reasonable efforts to cause the Company to distribute to that Member no later than April 1 of the following year, as an advance against amounts thereafter distributable to him, her or it pursuant to Section 4.2, an amount of cash equal to (a) the amount reasonably calculated by the Manager to equal the amount of the federal, state and local tax liability on that excess (based on the highest individual or corporate marginal federal income tax rate for that year and the percentage with respect to state and local income tax rates for that year that the Manager determines appropriate), less (b) the aggregate amount of prior distributions by the Company to the Member (other than distributions pursuant to this provision) not previously applied as an offset.

5. Transfers of Interests.

unreasonably withheld, conditioned or delayed. Any purported transfer in violation of this provision shall be void. As used in this Agreement, the term “transfer” includes any sale, exchange, assignment or gift, the creation of any security interest or other encumbrance, or any other transfer or disposition, whether voluntary or involuntary (including, but not limited to, by levy of execution or seizure under legal process or by operation of law), direct or indirect, affecting the record or beneficial ownership of the Common Units.

5.2 Conditions to Transfer. No transfer of any Common Units in the Company shall be effective unless the transferee (a) agrees in writing to be bound by the terms of this Agreement as if the transferee were the transferring Member and (b) executes such other documents and agreements as the Manager reasonably may request. The assignee shall pay all reasonable expenses in connection with the assignee’s admission as a Member.

6. Exculpation; Indemnification.

6.1 Exculpation. To the extent not inconsistent with applicable law, neither the Manager nor any of its officers, directors, managers, general partners, employees or affiliates, nor any other Member or officer of the Company, shall be liable, responsible or accountable in damages or otherwise to the Company or to any Member for any action taken or for any failure to act on behalf of the Company in connection with the business or operations of the Company, unless the act or omission constituted willful misconduct.

6.2 Indemnification. To the extent not inconsistent with applicable law, the Company shall indemnify and hold harmless the Manager and each of its officers, directors, managers, general partners, employees and affiliates, and all of the Company’s officers, from any loss, liability, damage or expense (including, but not limited to, any judgment, award or settlement and reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) arising out of (a) any acts or omissions or alleged acts or omissions in connection with their activities or the activities of any of their respective employees or agents on behalf of the Company after the date hereof or in connection with the business or operations of the Company after the date hereof and (b) any liability imposed upon any of them under any statute, rule or regulation (including, but not limited to, any statute, rule or regulation relating to environmental matters) applicable to the Company, or their respective officers, directors or employees; provided that (i) the acts or omissions or the alleged acts or omissions upon which the action or threatened action, proceeding or claim did not constitute gross negligence or willful misconduct by the indemnified party and (ii) the action or threatened action, proceeding or claim does not involve the indemnified party on the one hand and the Company on the other hand, except where the Manager has acted in good faith in what the Manager believed to be in the best interests of the Company. Reasonable expenses incurred by any such indemnified party in connection with the matters referred to above may be paid or

reimbursed by the Company in advance of the final disposition of the proceeding upon receipt by the Company of (i) a written affirmation by the indemnified party of its good faith belief that he or it met the standard of conduct necessary for indemnification by the Company and (ii) a written undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that he or it has not met that standard of conduct.

6.3 Fiduciary Duties. Neither the Manager nor any officer of the Company shall have any fiduciary or other duty to the Company, the Members or any other stakeholder in the Company or otherwise be subject to the corporate opportunity doctrine as applied from time to time under Delaware law; provided that nothing in this Section 6.3 shall preclude liability for any act or omission constituting willful misconduct.

6.4 Beneficiaries. The exculpation, indemnification and advancement of expenses provided by, or granted pursuant to, this Section 6 shall continue as to a person or entity that has ceased to be a Manager, officer, employee or agent and shall inure to the benefit of the executors and administrators of such a person or entity.

7. Dissolution; Liquidation.

7.1 Dissolution. The Company shall be dissolved only upon the occurrence of one of the following events:

(a) the unanimous election of the Members to dissolve the Company; or

(b) the termination of the Company’s business as a result of the sale or other disposition by the Company of the Securities.

7.2 Liquidation and Distribution of Assets. Upon dissolution of the Company, the Manager shall proceed to sell or liquidate the assets (to the extent feasible) within a reasonable time and, after paying or making provision for all liabilities to creditors of the Company, shall distribute the Company’s cash and other assets among the Members in accordance with Section 4.2.

8. Accounting and Tax Matters.

8.1 Fiscal Year. The Company’s fiscal year shall be the calendar year unless changed by the Manager.

8.2 Books of Account. Complete and accurate books of account shall be kept by the Company at its principal office (or at such other office as the Manager may designate) and the Members shall have the right to inspect those books during normal business hours on reasonable notice to the Manager. The determinations of the Manager with respect to the treatment of any item or its allocation for federal, state or local income tax purposes shall be binding upon all Members so long as that determination is not inconsistent with any express provision of this Agreement.

8.3 Tax Information. Not later than 90 days after the end of each fiscal year, the Manager shall furnish to each of the Members any information required by the Members to complete any income tax return that it is required to file for that year. The Company shall also furnish tax information to the Members on an interim basis to the extent the Manager determines appropriate.

8.4 Tax Allocations. For federal, state and local income tax purposes, all items of income, deduction, gain and loss shall be allocated among the Members on the same basis as profits are allocated and losses are charged as provided in this Section 8 and all items of credit shall be allocated among the Members in the manner provided for in the Internal Revenue Code and the applicable Treasury Regulations except that to the extent of the difference between the fair market value and the basis for federal income tax purposes of property contributed to the Company, income, gains, deductions (including depreciation and amortization) and losses with respect to that property shall be allocated among the Members in accordance with Internal Revenue Code Section 704(c)(1)(A).

8.5 Capital Accounts. For the purpose of this Agreement, the balance of the Capital Account of each Member shall be determined on the basis of an account maintained for the Member as part of the books of account of the Company. The amount of each Member’s Capital Account shall be equal to the aggregate amount of cash and the fair market value of property contributed to the Company by the Member, and shall be increased by the Member’s share of income and gains of the Company, and shall be decreased by (a) the aggregate amount of cash and the fair market value of any property distributed by the Company (less any liabilities assumed with respect to such distribution) to the Member and (b) the Member’s share of losses of the Company.

8.6 Allocation of Income and Gains. The Company’s net income and gains (as determined for federal income tax purposes) for each fiscal year shall be allocated to the Members as follows:

(a) first, to the Members in proportion to their negative Capital Account balances until those balances have been eliminated; and

(b) then, to the Members in such amounts as will increase the Capital Account balance of each Member to the amount the Member would be entitled to receive under Section 4 if there were an amount available for distribution equal to the sum of (x) the aggregate Capital Account balances of the Members before the allocation pursuant to this Section 8.6(b) and (y) the amount of net income and gains to be allocated.

8.7 Allocation of Losses. The Company’s losses (as determined for federal income tax purposes) for each fiscal year shall be allocated to the Members as follows:

(a) first, to the Members in such amount as will decrease the Capital Account balance of each Member to the amount the Member would be entitled to receive under Section 4 if there were an amount available for distribution equal to (x) the aggregate Capital Account balances of the Members before the allocation pursuant to this Section 8.7 less (y) the amount of losses to be so allocated; and

(b) then, to the Members pro rata in accordance with their holdings of Common Units.

8.8 Tax Matters Partner. The Manager shall be the tax matters partner (within the meaning of Section 6231(a)(7) of the Internal Revenue Code) of the Company.

9. Representations.

9.1 Member Representations. Each Member represents and warrants as to itself only that:

(a) it has full power and authority to enter into and perform this Agreement, and this Agreement constitutes a valid and binding agreement of the Member;

(b) it has acquired the Common Units for its own account, for investment only, and not with a view to the sale or distribution of those Common Units or any portion of those Common Units;

(c) it is an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder, as the same may be amended from time to time (the “Securities Act”), and that an investment in the Company is speculative and involves certain risks and that the Member could lose its entire investment in the Company;

(d) it understands that the offer and sale of the Common Units have not been registered under the Securities Act or under the securities act of any state on the basis that the sale provided hereunder is exempt from the registration provisions thereof and the Common Units may not be transferred, sold, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any other provisions of applicable state securities laws or pursuant to an applicable exemption therefrom; (ii) the Common Units must be held indefinitely and the Member must continue to bear the economic risk of the investment in the Common Units unless the offer and sale of the Common Units are subsequently registered under the Securities Act and all applicable state securities laws or an exemption from such registration is available; and (iii) there is no established market for the Common Units and it is not anticipated that there will be any public market in the foreseeable future; and

(e) it (i) is an informed and sophisticated purchaser, and has engaged advisors, experienced in investments in companies like Midway; (ii) has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement (including, without limitation, reviewing copies of the filings of Midway with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, and all rules and regulations promulgated thereunder, as the same may be amended from time to time).

10. Sale, Disposition or Transfer of the Securities. HFM shall not sell, dispose of or otherwise transfer any Securities owned or managed on a discretionary basis by HFM unless either (i) the Company has been offered the opportunity to participate pro rata in such, or a similar, sale, disposition or transfer on the same economic terms and conditions in all material respects or (ii) HFM has received the prior written consent of ER.

11. Miscellaneous.

11.1 Entire Agreement; Amendment. This Agreement contains a complete statement of the arrangements among the Members and the Manager with respect to the Company, supersedes all prior agreements and understandings among them with respect to the Company, and may not be amended except by written agreement of the Manager and a majority in interest of the Members. Except as otherwise provided in the preceding sentence, no amendment may change the manner in which cash is to be distributed or income is to be allocated, except with the consent of all of the Members, and no amendment that adversely affects a particular Member or Members (as distinguished from an amendment that affects all of the Members similarly), including the Manager in its capacity as such, may be made without that Member’s consent. No amendment may be made to this Section 11.1 that eliminates the right of any Member to consent to any amendment without the consent of that Member. Any amendment made in accordance with this Section 11.1 shall be binding upon all of the Members.

11.2 Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered in person or sent by facsimile, one day after being sent by a major overnight courier, or four days after being mailed by registered mail, return receipt requested, to the address of such Member set forth on such Member’s signature page to this Agreement.

11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made and to be performed entirely in the State of New York, except as otherwise required by the Delaware Limited Liability Company Act.

11.4 Submission to Jurisdiction. The courts of the State of New York in New York County and the United States District Court for the Southern District of New York shall have exclusive jurisdiction over the parties with respect to any dispute or controversy between them arising under or in connection with this Agreement and, by execution and delivery of this Agreement, each of the parties to this Agreement submits to the jurisdiction of those courts, including, but not limited to, the in personam and subject matter jurisdiction of those courts, waives any objection to such jurisdiction on the grounds of venue or forum non conveniens, the absence of in personam or subject matter jurisdiction and any similar grounds, consents to service of process by mail (in accordance with Section 11.4 or any other manner permitted by law) and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. These consents to jurisdiction shall not be deemed to confer rights on any person other than the parties to this Agreement.

11.5 Confidentiality. In connection with the formation of the Company and its ongoing business, the Members will receive or have access to confidential proprietary information concerning the Company including, without limitation, valuations, information regarding the Company's investments, financial information, and the like which is proprietary in nature and non-public ("Confidential Information," which expression shall not include information otherwise known to any Member). No Member, nor any Affiliate of any Member, shall disclose or cause to be disclosed any Confidential Information to any person nor use any Confidential Information for its own purposes or its own account, except in connection with its investment in the Company and except as otherwise required by any regulatory authority, law or regulation, by legal process or in connection with an audit. Notwithstanding the foregoing, each Member (and each employee, representative, or other agent of such Member) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of: (i) the Company; and (ii) any transactions of the Company, and all materials of any kind (including opinions or other tax analyses) that are provided to the Member relating to such tax treatment and tax structure.

11.6 Headings. The headings in this Agreement are solely for convenience of reference and shall not affect its interpretation.

11.7 Ratification. The purchase of Units on behalf of the Company by HFM is hereby authorized, ratified, approved and confirmed.

[Signature Page Follows]

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EREF SPECIAL SITUATIONS, LLC By: /s/ Graham Duncan Name: Graham Duncan Title: Man. Prin., East Rock Cap. GP, LLC
Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EAST ROCK FOCUS FUND, LP By: /s/ Graham Duncan Name: Graham Duncan Title: Man. Prin., East Rock F.F. GP, LLC
Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EAST ROCK SIMCO ENDOWMENT FUND, LP By: /s/ Graham Duncan Name: Graham Duncan Title: Man. Prin., East Rock Cap. GP, LLC
Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EAST ROCK SCS FUND, LP By: /s/ Graham Duncan Name: Graham Duncan Title: Man. Prin., East Rock Cap. GP, LLC
Address: 570 Lexington Ave, 49th Floor New York, NY 10022	HALE FUND MANAGEMENT, LLC By: /s/ Martin Hale Jr. Name: Martin Hale Jr. Title: Managing Member

EX-99 4 p12-exhibit8.htm EXHIBIT 8 p12-exhibit8.htm

Exhibit 8

EXECUTION VERSION

LIMITED LIABILITY COMPANY AGREEMENT

EREF-MID II, LLC

as of November 21, 2012

Table of Contents

Page

1.	Purpose; Formation	1
2.	Management of the Company.	2
2.1	Manager	2
2.2	Powers of Manager	2
2.3	Limitations on the Powers of Manager	2
2.4	Powers of ER	3
3.	Membership Interests; Deemed Capital Contributions.	3
3.1	Membership Interests	3
3.2	Capital Contributions	3
3.3	No Withdrawals	3
3.4	No Liability for Capital Contributions	3
3.5	No Interest	3
4.	Distributions.	4
4.1	General	4
4.2	Distribution Amount	4
4.3	Tax Distributions	4
5.	Transfers of Interests.	4
5.1	Restrictions on Transfers	4
5.2	Conditions to Transfer	5
6.	Exculpation; Indemnification.	5
6.1	Exculpation	5
6.2	Indemnification	5
6.3	Fiduciary Duties	6
6.4	Beneficiaries	6
7.	Dissolution; Liquidation.	6
7.1	Dissolution	6
7.2	Liquidation and Distribution of Assets	6
8.	Accounting and Tax Matters.	6
8.1	Fiscal Year	6
8.2	Books of Account	6
8.3	Tax Information	6
8.4	Tax Allocations	6
8.5	Capital Accounts	7
8.6	Allocation of Income and Gains	7
8.7	Allocation of Losses	7
8.8	Tax Matters Partner	8
9.	Representations.	8
9.1	Member Representations	8
10.	Sale, Disposition or Transfer of the Securities	9
11.	Miscellaneous.	9
11.1	Entire Agreement; Amendment	9
11.2	Notices	9
11.3	Governing Law	9
11.4	Submission to Jurisdiction	9
11.5	Confidentiality	10
11.6	Headings	10
11.7	Ratification	10

LIMITED LIABILITY COMPANY AGREEMENT

EREF-MID, LLC

Dated as of November 21, 2012

The parties to this agreement (the “Agreement”) (referred to as the “Members”), who are all of the members of EREF-MID II, LLC, a Delaware limited liability company formed on November 21, 2012 (the “Company”), are EREF Special Situations, LLC, a Delaware limited liability company (“ERSS”), East Rock Focus Fund, L.P., a Delaware limited partnership (“ERFF”) , East Rock SCS, LP, a Delaware limited partnership (“SCS”), East Rock Simco Endowment Fund, a Delaware limited partnership (together with ERSS, ERFF, and SCS, “ER”), East Rock Capital GP, LLC, a Delaware limited liability company, Stuart Sternberg, PAW Associates, LLC, The Deitrich Weisman Settlement Trust B, Shmuel Brill, Simkins Equity Opportunity LLC, United States Investment Services Series Hale 3, Kenneth Rainin Charitable Lead Annuity Trust No. 2 dtd 03/06/90, Kenneth Rainin Foundation, Jonathan Auerbach, Michael A. Steinberg 2005 Family Trust and Hale Fund Management, LLC, a Delaware limited liability company (“HFM”).

The Company and certain other investors have each entered into a share purchase agreement dated as of November 21, 2012 (together with all exhibits, the “SPA”) with Midway Gold Corp. (“Midway”), as issuer, pursuant to which the Company and the other investors have each agreed to acquire Series A Preferred Shares (as defined in the SPA) in the capital of Midway. Such Series A Preferred Shares to be held by the Company along with all other instruments, rights and securities of Midway (if any) that may be acquired by the Company pursuant to the SPA and any ancillary agreements entered into in connection therewith from time to time, are referred to herein collectively as the “Securities”.

The following are the terms of the Company’s limited liability company agreement:

1 Purpose; Formation. The Company shall hold the Securities, and shall conduct any activities that the Manager (as defined below) determines to be incidental to the Company’s ownership, voting or disposition of the Securities. The Company was formed as a limited liability company under the Delaware Limited Liability Company Act, as amended from time to time (6 Del.C. §18 101, et seq.) (the “Act”), upon the filing of the Certificate of Formation of the Company with the Office of the Secretary of State of Delaware on November 21, 2012. The Manager shall accomplish all filing, recording, publishing and other acts necessary or appropriate for compliance with all requirements for the continuation and the operation of the Company as a limited liability company under this Agreement and the Act and under all other laws of the State of Delaware and such other jurisdictions in which the Manager determines that the Company may conduct business. Each Person admitted to the Company as a Member shall promptly execute all relevant certificates and other documents as the Manager shall request.

2. Management of the Company.

2.3 Powers of ER. Notwithstanding any other provision of this Agreement to the contrary, the Manager shall with respect to the Securities, at the direction of ER, exercise any remedies available to the Company with respect to the Securities whether pursuant to the terms of the Securities, the SPA or otherwise.

3. Membership Interests; Deemed Capital Contributions.

3.1 Membership Interests. Upon the execution of this Agreement, each Member covenants and agrees to contribute to the capital of the Company on the day prior to Closing (as defined in the SPA), by wire transfer of immediately available funds, the amount set forth opposite its name on Schedule A, and the Company shall be deemed to have issued to the Members, in exchange for those contributions, the number of Class A-1 Common Units, Class A-2 Common Units, Class A-3 Common Units, Class B Common Units, Class B-1 Common Units and Class C Common Units (collectively, “Common Units”) set forth opposite their names on Schedule A. The Company shall not issue any membership interests after the date such Common Units are issued.

3.2 Capital Contributions. The Manager, with the prior written consent of Members holding not less than 50.1% of the Common Units, which consent shall not be unreasonably withheld or delayed, may require the Members to make additional capital contributions solely for the purpose of paying expenses of the Company to the Company on a pro rata basis (based on each Member’s initial capital contribution).

3.5 No Interest. No Member shall receive any interest on its capital contributions or Capital Account.

4. Distributions.

4.2 Distribution Amount. All distributions shall be allocated as follows:

(a) first, to the holders of the Class A-1 Common Units, Class A-2 Common Units and Class A-3 Common Units (in proportion to the capital contributions made by them, respectively) until each of those holders shall have received pursuant to this Section 4.2(a) the aggregate amount of the capital contributions made by it, respectively; and

(b) the balance, split proportionately between (1) the sum of Common Units held in Class A-1 and Class A-2 and (2) the Common Units held in Class A-3; where the balance allocated to the sum of Common Units held in Class A-1 and Class A-2 is allocated to the holders of the Class A-1 Common Units, the Class A-2 Common Units and Class B Common Units (in proportion to the number of Common Units held by each of them, respectively); provided that any amount otherwise distributable to the holder of Class A-2 Common Units pursuant to this Section 4.2(b) shall be reallocated between the holder of Class A-2 Common Units and the holder of Class C Common Units (in proportion to the number of Common Units held by each of them, respectively) and the balance allocated to the Common Units held in Class A-3 are allocated to the holders of the Class A-3 Common Units and Class B-1 Common Units (in proportion to the number of Common Units held by each of them, respectively).

5. Transfers of Interests.

5.1 Restrictions on Transfers. Except for transfers by Members to an entity that is an affiliate of that Member but subject to Section 5.2, no Member may directly or indirectly transfer all or any portion of its Common Units without the prior written approval of the Manager, which approval shall not be unreasonably withheld or delayed. Any purported transfer in violation of this provision shall be void. As used in this Agreement, the term “transfer” includes any sale, exchange, assignment or gift, the creation of any security interest or other encumbrance, or any other transfer or disposition, whether voluntary or involuntary (including, but not limited to, by levy of execution or seizure under legal process or by operation of law), direct or indirect, affecting the record or beneficial ownership of the Common Units.

6. Exculpation; Indemnification.

6.3 Beneficiaries. The exculpation, indemnification and advancement of expenses provided by, or granted pursuant to, this Section 6 shall continue as to a person or entity that has ceased to be a Manager, officer, employee or agent and shall inure to the benefit of the executors and administrators of such a person or entity.

7. Dissolution; Liquidation.

7.1 Dissolution. The Company shall be dissolved only upon the occurrence of one of the following events:

(a) the unanimous election of the Members to dissolve the Company; or

(b) the termination of the Company’s business as a result of the sale or other disposition by the Company of the Securities.

8. Accounting and Tax Matters and Reporting.

8.1 Fiscal Year. The Company’s fiscal year shall be the calendar year unless changed by the Manager.

8.3 Tax Information. Within 90 days after the end of each fiscal year or as soon thereafter as is reasonably possible, the Manager shall furnish to each of the Members any information required by the Members to complete any income tax return that it is required to file for that year. The Company shall also furnish tax information to the Members on an interim basis to the extent the Manager determines appropriate and the Company and the Manager will provide any other tax reporting reasonably requested by the Members.

8.6 Allocation of Income and Gains. The Company’s net income and gains (as determined for federal income tax purposes) for each fiscal year shall be allocated to the Members as follows:

(a) first, to the Members in proportion to their negative Capital Account balances until those balances have been eliminated; and

8.7 Allocation of Losses. The Company’s losses (as determined for federal income tax purposes) for each fiscal year shall be allocated to the Members as follows:

(b) then, to the Members pro rata in accordance with their holdings of Common Units.

8.8 Tax Matters Partner. The Manager shall be the tax matters partner (within the meaning of Section 6231(a)(7) of the Internal Revenue Code) of the Company.

8.9 Reports. The Company will provide the Members the net asset value of the Securities as of the end of the prior completed calendar month, approximately four (4) business days after the end of the prior calendar month.

9. Representations.

9.1 Member Representations. Each Member represents and warrants as to itself only that:

(a) it has full power and authority to enter into and perform this Agreement, and this Agreement constitutes a valid and binding agreement of the Member;

(b) it has acquired the Common Units for its own account, for investment only, and not with a view to the sale or distribution of those Common Units or any portion of those Common Units;

(f) it acknowledges that East Rock Capital GP, LLC nor any of the ER members shall be deemed to be an investment advisor to any other member of the Company or to the Company, nor to be providing any investment advice of any kind to any other member of the Company or to the Company, nor owe any rights or duties, whether fiduciary or otherwise, to any other member of the Company or to the Company, including without limitation, pursuant to the terms of the Investment Advisers Act of 1940, as amended or pursuant to the Act.

10. Sales Disposition or Transfer of Securities. HFM shall not sell, dispose of or otherwise transfer any preferred Securities owned or managed on a discretionary basis by HFM unless either (i) the Company is invited to participate pro rata in such, or a similar, sale, disposition or transfer on the same economic terms and conditions in all material respects or (ii) HFM has received the prior written consent of 50.1% of the Members.

11. Miscellaneous.

11.1 Entire Agreement; Amendment. This Agreement contains a complete statement of the arrangements among the Members and the Manager with respect to the Company, supersedes all prior agreements and understandings among them with respect to the Company, and may not be amended except by written agreement of the Manager and a majority in interest of the Members. Except as otherwise provided in the preceding sentence, no amendment may change the manner in which cash is to be distributed or income is to be allocated, except with the consent of all of the Members, and no amendment that adversely affects a particular Member or Members (as distinguished from an amendment that affects all of the Members similarly), including the Manager in its capacity as such, may be made without that Member’s consent. No amendment may be made to this Section 11.1 that eliminates the right of any Member to consent to any amendment without the consent of that Member. Further, no beneficiary of this Agreement, other than a Member, has any consent rights with respect to any amendment. Any amendment made in accordance with this Section 11.1 shall be binding upon all of the Members.

11.6 Headings. The headings in this Agreement are solely for convenience of reference and shall not affect its interpretation.

11.7 Ratification. The execution and delivery of the SPA on behalf of the Company by HFM is hereby authorized, ratified, approved and confirmed.

[Signature Page Follows]

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EREF SPECIAL SITUATIONS, LLC By: /s/ Graham Duncan Name: Title:
Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EAST ROCK FOCUS FUND, LP By: /s/ Graham Duncan Name: Title:
Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EAST ROCK CAPITAL GP, LLC By: /s/ Graham Duncan Name: Title:
Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EAST ROCK Simco Endowment Fund By: /s/ Graham Duncan Name: Title:
Address: 10 East 53rd Street, 31st Floor New York, New York 10022	EAST ROCK SCS Fund, LP By: /s/ Graham Duncan Name: Title:

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 85 Bellevue Avenue Rye, New York 10580	STUART STERNBERG /s/ Stuart Sternberg
Address: 570 Lexington Avenue, 49th Floor New York, New York 10022	HALE FUND MANAGEMENT, LLC By: /s/ Martin Hale Jr. Name: Martin Hale Jr. Title: Managing Member

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 1 Landmark Square, 4th Floor Stamford, CT 06901	PAW ASSOCIATES, LLC By: /s/ Paul Weismann Name: Paul Weismann Title: Manager
Address: 1 Landmark Square, 4th Floor Stamford, CT 06901	THE DIETRICH WEISMANN SETTLEMENT TRUST B By: /s/ Paul Weismann Name: Weismann Capital, LLC By Paul Weismann, Manager Title: Investment Manager
Address: 1 Landmark Square, 4th Floor Stamford, CT 06901	SHMUEL BRILL /s/ Shmuel Brill
Address: 570 Lexington Ave, 49th Floor New York, NY 10022	HALE FUND MANAGEMENT, LLC By: /s/ Martin Hale Jr. Name: Martin Hale Jr. Title: Managing Member

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 301 West 41 Street #406 Miami Beach, FL 33140	SIMKINS EQUITY OPPORTUNITY, LLC By: /s/ David Simkins Name: David Simkins Title: Manager
Address: 570 Lexington Ave, 49th Floor New York, NY 10022	HALE FUND MANAGEMENT, LLC By: /s/ Martin Hale Jr. Name: Martin Hale Jr. Title: Managing Member

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 11 Glendale Road Summit, NJ 07901	UNITED STATES INVESTMENT SERIES HALE 3 /s/ United States Investment Series Hale 3
Address: 570 Lexington Ave, 49th Floor New York, NY 10022	HALE FUND MANAGEMENT, LLC By: /s/ Martin Hale Jr. Name: Martin Hale Jr. Title: Managing Member

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 155 Grand Avenue, Suite 1000 Oakland, CA 94612-3779	KENNETH RAININ CHARITABLE LEAD ANNUITY TRUST NO.2 DTD 03/26/90 By: /s/ Jennifer Rainin Name: Jennifer Rainin Title: Trustee
Address: 155 Grand Avenue, Suite 1000 Oakland, CA 94612-3779	KENNETH RAININ FOUNDATION By: /s/ Jennifer Rainin Name: Jennifer Rainin Title: President

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 1 Landmark Square, 4th Floor Stamford, CT 06901	JONATHAN AUERBACH /s/ Jonathan Auerbach
Address: 570 Lexington Ave, 49th Floor New York, NY 10022	HALE FUND MANAGEMENT, LLC By: /s/ Martin Hale Jr. Name: Martin Hale Jr. Title: Managing Member

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: c/o Steinberg Asset Management 12 East 49th Street, Suite 1202 New York, NY 10017	MICHAEL A. STEINBERG 2005 FAMILY TRUST /s/ Michael A. Steinberg 2005 Family Trust
Address: 570 Lexington Ave, 49th Floor New York, NY 10022	HALE FUND MANAGEMENT, LLC By: /s/ Martin Hale Jr. Name: Martin Hale Jr. Title: CEO

IN WITNESS WHEREOF, the undersigned has duly executed this Limited Liability Company Agreement as of the date first written above.

MANAGING MEMBER

HALE FUND MANAGEMENT, LLC

/s/ Martin Hale Jr.

Name: Martin Hale Jr.

Title: CEO

EX-99 5 p12-exhibit9.htm EXHIBIT 9 p12-exhibit9.htm

Exhibit 9

EXECUTION VERSION

LIMITED LIABILITY COMPANY AGREEMENT

INV-MID, LLC

as of November 21, 2012

Table of Contents

Page

1. Purpose; Formation.	1
2. Management of the Company	2
2.2 Powers of Manager	2
2.3 Limitations on the Powers of Manager	2
2.4 Powers of Investure	3
3. Membership Interests; Deemed Capital Contributions.	3
3.1 Membership Interests	3
3.2 Capital Contributions	3
3.3 No Withdrawals	3
3.4 No Liability for Capital Contributions	3
3.5 No Interest	4
4. Distributions.	4
4.1 General	4
4.2 Distribution Amount	4
4.3 Tax Distributions	4
5. Transfers of Interests.	4
5.1 Restrictions on Transfers	5
5.2 Conditions to Transfer	5
6. Exculpation; Indemnification.	5
6.1 Exculpation	5
6.2 Indemnification	5
6.3 Fiduciary Duties	6
6.4 Beneficiaries.	6
7. Removal of Manager	6
8. Dissolution; Liquidation.	7
8.1 Dissolution	7
8.2 Liquidation and Distribution of Assets	7
9. Accounting and Tax Matters and Reporting.	7
9.1 Fiscal Year.	7
9.2 Books of Account.	7
9.3 Tax Information.	7
9.4 Tax Allocations	8
9.5 Capital Accounts	8
9.6 Allocation of Income and Gains	8
9.7 Allocation of Losses	9
9.8 Tax Matters Partner	9
9.9 Reports	9
10. Representations.	9
10.1 Member Representations	9
10.2 Manager Representations	10
11. Sale, Disposition or Transfer of the Securities and Additional Investments	10
12. Miscellaneous.	11
12.1 Entire Agreement; Amendment	11
12.2 Notices.	11
12.3 Governing Law.	11
12.4 Submission to Jurisdiction.	11
12.5 Confidentiality.	12
12.6 Headings	12
12.7 Ratification	12
12.8 Counterparts	12

LIMITED LIABILITY COMPANY AGREEMENT

INV-MID, LLC

Dated as of November 21, 2012

The parties to this agreement (the “Agreement”) (referred to as the “Members”), who are all of the members of INV-MID, LLC, a Delaware limited liability company formed on November 21, 2012 (the “Company”), are Investure Evergreen Fund, LP – 2012 Term Tranche (“Investure”) and Hale Fund Management, LLC, a Delaware limited liability company (“HFM”).

The following are the terms of the Company’s limited liability company agreement:

1. Purpose; Formation. The Company shall hold the Securities, and shall conduct any activities that the Manager (as defined below) determines to be incidental to the Company’s ownership, voting or disposition of the Securities. The Company was formed as a limited liability company under the Delaware Limited Liability Company Act, as amended from time to time (6 Del.C. §18 101, et seq.) (the “Act”), upon the filing of the Certificate of Formation of the Company with the Office of the Secretary of State of Delaware on November 21, 2012. The Manager shall accomplish all filing, recording, publishing and other acts necessary or appropriate for compliance with all requirements for the continuation and the operation of the Company as a limited liability company under this Agreement and the Act and under all other laws of the State of Delaware and such other jurisdictions in which the Manager determines that the Company may conduct business. Each Person admitted to the Company as a Member shall promptly execute all relevant certificates and other documents as the Manager shall request.

2. Management of the Company.

2.1 Manager. HFM shall be the manager of the Company (referred to in that capacity as the “Manager”). The Company’s business and affairs shall be managed by or under the direction of the Manager, and none of the Members shall take part in the management or control of the Company’s activities or affairs. Except as set forth in Section 2.3 below or as otherwise provided for in this Agreement, the Manager shall have sole discretion in respect of voting or making any other decisions in respect of the Securities held by the Company and such other actions as limited liability companies may engage in under the Act. The Manager shall not be compensated by the Company for acting as Manager (except as specifically provided in this Agreement), but shall be reimbursed for all direct and reasonable out-of-pocket expenses incurred by it in performing it services under this Agreement. Except as specifically provided in this Agreement, the Manager shall not have any duty or obligations to any Member or to take or refrain from taking any action.

2.2 Powers of Manager. Except as set forth in Section 2.3 below or as otherwise provided for in this Agreement, the Manager shall have full power (in addition to the powers given to the Manager by law or by the other provisions of this Agreement), in its sole discretion, to take any action that it considers necessary or desirable in connection with the management of the Company and the operation of the Company’s business. The powers of the Manager include the power to execute and deliver on behalf of the Company all such documents and agreements as it determines appropriate (including, but not limited to, documents and agreements relating to the voting of, consent, waiver or amendment with respect to, or sale, exchange, or other disposition of any Securities or other assets owned by the Company), and no other signature shall be required on behalf of the Company. The Manager may appoint officers of the Company, and may engage consultants and advisors (including accountants and attorneys), as it determines necessary or desirable in connection with the management of the Company and the operation of its business including all matters relating to any of the Securities. Any officers of the Company need not be Members of the Company, shall have the powers and duties delegated to them by the Manager, and shall serve as officers of the Company at the pleasure of the Manager.

2.3 Limitations on the Powers of Manager. Notwithstanding any other provision of this Agreement to the contrary, the Manager shall not, directly or indirectly, undertake any of the following actions on behalf of the Company with respect to the Securities without the prior written consent of Investure (which consent shall not be unreasonably withheld or delayed):

(a) convert, exercise, sell or tender, directly or indirectly, any Securities (other than in respect of regularly scheduled payments of interest or amortization and decisions whether to accept the same in stock or cash);

(b) vote any of the Securities at an extraordinary or annual general meeting of Midway without first receiving a written direction from Investure and the Manager shall request from Investure a written direction as to how to vote the Securities and will vote the Securities in accordance with such direction from Investure; or

(c) approve, directly or indirectly, any corporate action on behalf of Midway without first receiving a written direction from Investure and the Manager shall request from Investure a written direction as to whether to approve or disapprove any corporate action for which Midway is seeking approval and will provide Midway with such approval or disapproval in accordance with such direction from Investure

2.4 Powers of Investure. Notwithstanding any other provision of this Agreement to the contrary, the Manager shall with respect to the Securities, at the written direction of Investure, exercise any remedies available to the Company with respect to the Securities whether pursuant to the terms of the Securities, the SPA or otherwise.

3. Membership Interests; Deemed Capital Contributions.

3.1 Membership Interests. Upon the execution of this Agreement, each Member covenants and agrees to contribute to the capital of the Company on the day prior to Closing (as defined in the SPA), by wire transfer of immediately available funds, the amount set forth opposite its name on Schedule A, and upon receipt of such funds the Company shall be deemed to have issued to the Members, in exchange for those contributions, the number of Class A Common Units and Class B Common Units (collectively, “Common Units”) set forth opposite their names on Schedule A. The Company shall not issue or deem to issue any membership interests after the date such Common Units are issued.

3.2 Capital Contributions. The Manager, with the written consent of Investure, which consent shall not be unreasonably withheld or delayed, may require the Members to make additional capital contributions solely for the purpose of paying expenses of the Company to the Company on a pro rata basis (based on each Member’s initial capital contribution); provided that no Member shall be required to make additional capital contributions that in the aggregate exceed such Member’s initial capital contribution, as set forth on Schedule A.

3.5 No Interest. No Member shall receive any interest on its capital contributions or Capital Account.

4. Distributions.

4.1 General. Distributions shall be made to the Members at the time or times determined by the Manager; provided that the Manager shall promptly distribute any cash received from time to time, net of any reimbursements then payable to the Manager pursuant to Section 2.1 and any reasonable reserve for such reimbursements established by the Manager with the consent of Investure, which consent shall not be unreasonably withheld.

4.2 Distribution Amount. All distributions shall be allocated as follows:

(b) the balance, to the holders of the Class A Common Units and Class B Common Units (in proportion to the number of Common Units held by each of them, respectively).

5. Transfers of Interests.

5.1 Restrictions on Transfers. Except for transfers by Members to an entity that is an affiliate of that Member but subject to Section 5.2, no Member may directly or indirectly transfer all or any portion of its Common Units without the prior written approval of the Members, which approval shall not be unreasonably withheld, conditioned or delayed. Any purported transfer in violation of this provision shall be void. As used in this Agreement, the term “transfer” includes any sale, exchange, assignment or gift, the creation of any security interest or other encumbrance, or any other transfer or disposition, whether voluntary or involuntary (including, but not limited to, by levy of execution or seizure under legal process or by operation of law), direct or indirect, affecting the record or beneficial ownership of the Common Units. For the purpose of this agreement, an entity is deemed to be an “affiliate” of a Member if one of them is the subsidiary of the other, or each of them is controlled by the same entity.

6. Exculpation; Indemnification.

6.2 Indemnification. To the extent not inconsistent with applicable law, the Company shall indemnify and hold harmless the Manager and each of its officers, directors, managers, general partners, employees and affiliates, and all of the Company’s officers, from any loss, liability, damage or expense (including, but not limited to, any judgment, award or settlement and reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) arising out of (a) any acts or omissions or alleged acts or omissions in connection with their activities or the activities of any of their respective employees or agents on behalf of the Company after the date hereof or in connection with the business or operations of the Company after the date hereof and (b) any liability imposed upon any of them under any statute, rule or regulation (including, but not limited to, any statute, rule or regulation relating to environmental matters) applicable to the Company, or their respective officers, directors or employees; provided that (i) the acts or omissions or the alleged acts or omissions upon which the action or threatened action, proceeding or claim did not constitute fraud, bad faith, gross negligence or willful misconduct by the indemnified party or constitute a breach of this Agreement by the indemnified party and (ii) the action or threatened action, proceeding or claim does not involve the indemnified party on the one hand and the Company on the other hand, except where the Manager has acted in good faith in what the Manager believed to be in the best interests of the Company. Reasonable expenses incurred by any such indemnified party in connection with the matters referred to above may be paid or reimbursed by the Company in advance of the final disposition of the proceeding upon receipt by the Company of (i) a written affirmation by the indemnified party of its good faith belief that he or it met the standard of conduct necessary for indemnification by the Company and (ii) a written undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that he or it has not met that standard of conduct.

7. Removal of Manager. A majority in interest of the Members may cause the removal and replacement of the Manager at any time for Cause upon 30 days’ prior written notice to the Manager (a “For Cause Manager Removal”). “Cause” shall mean: (i) the conviction, settlement, guilty or no contest plea by, or with respect to, as applicable, the Cause Event Principal or the Manager to a felony in a court of competent jurisdiction, which would have a material adverse effect on the business and operations of the Company, (ii) the entry of a final, judgment by any court or governmental body of competent jurisdiction that either the Manager or the Cause Event Principal has committed actual fraud (including securities fraud), willful misconduct or gross negligence that in any such case results in a material and adverse change to the investment activities and operations of the Company, (iii) Martin M. Hale, Jr. (“Martin Hale”) ceases to be the managing member of the Manager (for reasons other than in connection with or as a result of Causes (i) or (ii) above), and (iv) Martin Hale ceases to have the capacity to fulfill his role as the managing member of the Manager due to illness, disease, mental or physical disability. In the event that For Cause Manager Removal occurs where the Cause is item (iii) or (iv) above, the Manager shall be entitled to receive upon removal, an amount equal to the capital account balance of the Manager. “Cause Event Principal” means the managing member of the Manager. The Manager shall have no authority over the Company from and after the date of termination and removal. A majority in interest of the Members shall appoint a new Manager upon a For Cause Manager Removal.

8. Dissolution; Liquidation.

8.1 Dissolution. The Company shall be dissolved only upon the occurrence of one of the following events:

(a) the unanimous election of the Members to dissolve the Company; or

(b) the termination of the Company’s business as a result of the sale or other disposition by the Company of the Securities.

8.2 Liquidation and Distribution of Assets. Upon dissolution of the Company, the Manager shall proceed to sell or liquidate the assets (to the extent feasible) within a reasonable time and, after paying or making provision for all liabilities to creditors of the Company, shall distribute the Company’s cash and other assets among the Members in accordance with Section 4.2.

9. Accounting and Tax Matters and Reporting.

9.1 Fiscal Year. The Company’s fiscal year shall be the calendar year unless changed by the Manager.

9.2 Books of Account. Complete and accurate books of account shall be kept by the Company at its principal office (or at such other office as the Manager may designate) and the Members shall have the right to inspect those books during normal business hours on reasonable notice to the Manager. The determinations of the Manager with respect to the treatment of any item or its allocation for federal, state or local income tax purposes shall be binding upon all Members so long as that determination is not inconsistent with any express provision of this Agreement. The Company's books and records shall be audited annually by an independent accounting firm as may be reasonably selected from time to time by the Manager and delivered to the Members no later than May 1st of each year.

9.3 Tax Information. Within 90 days after the end of each fiscal year or as soon thereafter as is reasonably possible, the Manager shall furnish to each of the Members any information required by the Members to complete any income tax return that it is required to file for that year. The Company shall also furnish tax information to the Members on an interim basis to the extent the Manager determines appropriate and the Company and the Manager will provide any other tax reporting reasonably requested by the Members.

9.4 Tax Allocations. For federal, state and local income tax purposes, all items of income, deduction, gain and loss shall be allocated among the Members on the same basis as profits are allocated and losses are charged as provided in this Section 9 and all items of credit shall be allocated among the Members in the manner provided for in the Internal Revenue Code and the applicable Treasury Regulations except that to the extent of the difference between the fair market value and the basis for federal income tax purposes of property contributed to the Company, income, gains, deductions (including depreciation and amortization) and losses with respect to that property shall be allocated among the Members in accordance with Internal Revenue Code Section 704(c)(1)(A).

9.5 Capital Accounts. For the purpose of this Agreement, the balance of the Capital Account of each Member shall be determined on the basis of an account maintained for the Member as part of the books of account of the Company. The amount of each Member’s Capital Account shall be equal to the aggregate amount of cash and the fair market value of property contributed to the Company by the Member, and shall be increased by the Member’s share of income and gains of the Company, and shall be decreased by (a) the aggregate amount of cash and the fair market value of any property distributed by the Company (less any liabilities assumed with respect to such distribution) to the Member and (b) the Member’s share of losses of the Company.

9.6 Allocation of Income and Gains. The Company’s net income and gains (as determined for federal income tax purposes) for each fiscal year shall be allocated to the Members as follows:

(a) first, to the Members in proportion to their negative Capital Account balances until those balances have been eliminated; and

9.7 Allocation of Losses. The Company’s losses (as determined for federal income tax purposes) for each fiscal year shall be allocated to the Members as follows:

(b) then, to the Members pro rata in accordance with their holdings of Common Units.

9.8 Tax Matters Partner. The Manager shall be the tax matters partner (within the meaning of Section 6231(a)(7) of the Internal Revenue Code) of the Company.

9.9 Reports. The Company will provide the Members the net asset value of the Securities as of the end of the prior completed calendar month, approximately four (4) business days after the end of the prior calendar month.

10. Representations.

10.1 Member Representations. Each Member represents and warrants as to itself only that:

(a) it has full power and authority to enter into and perform this Agreement, and this Agreement constitutes a valid and binding agreement of the Member;

(b) it has acquired the Common Units for its own account, for investment only, and not with a view to the sale or distribution of those Common Units or any portion of those Common Units;

10.2 Manager Representations. The Manager represents, warrants and covenants that:

(a) it has full power and authority to enter into and perform this Agreement, and this Agreement constitutes a valid and binding agreement of the Manager;

(b) it shall use its best efforts, and shall cause the Company to use its best efforts, to comply with all material applicable laws and regulations, including federal securities laws and disclosure obligations in connection therewith;

(c) it shall cause the Company to obtain and maintain, on behalf of all directors and officers designated by the Company to serve on boards of directors on behalf of the Company, D&O insurance in an amount reasonably satisfactory to the Manager if in the Manager’s view, acting reasonably, that additional D&O insurance is warranted;

(d) it shall not distribute any of the Securities in-kind without prior written consent of a majority in interest of the Members except where it is necessary to do so in order to maintain the Company’s holdings of the outstanding voting Securities of Midway below 20% and provided that in the event such consent is not received from the Members, the Manager may sell the applicable Securities for cash in order to distribute such cash to the Members; and

(e) it shall use its reasonable best efforts to timely make, or cause the Company to timely make, in consultation with the Members, all applicable Canadian and US securities filings required to be made by the Company.

11. Sale, Disposition or Transfer of the Securities and Additional Investments. Unless HFM has received prior written consent from Investure, HFM shall not sell, dispose of or otherwise transfer or convert (other than in connection with a mandatory conversion notice or mandatory conversion) any preferred Securities owned or managed on a discretionary basis by HFM unless HFM has first (a) provided the Members notice in writing by email of its intention to takes such action, and (b) provided the Company with the opportunity to participate pro rata in such, or a similar, sale, disposition, transfer or conversion (other than in connection with a mandatory conversion notice or mandatory conversion) on the same economic terms and conditions in all material respects as and from the date and time upon which a majority of the Members have indicated their willingness to so participate. HFM and the Members shall cooperate and work together in good faith to establish standing protocols for communication and instructions in connection with the pro rata participation. If HFM or any entity it manages on a discretionary basis are given the right to purchase additional Midway securities after the date of the SPA, (i) the Company shall offer the Members the opportunity to participate pro rata in such, or a similar investment on the same economic terms and conditions in all material respects by making additional Capital Contributions to the Company and (ii) the pro rata amounts of any Members who do not elect to participate in such additional investment shall be offered to the Members electing to participate in such additional investments on a pro rata basis.

12. Miscellaneous.

12.1 Entire Agreement; Amendment. This Agreement contains a complete statement of the arrangements among the Members and the Manager with respect to the Company, supersedes all prior agreements and understandings among them with respect to the Company, and may not be amended except by written agreement of the Manager and a majority in interest of the Members. Except as otherwise provided in the preceding sentence, no amendment may change the manner in which cash is to be distributed or income is to be allocated, except with the consent of all of the Members, and no amendment that adversely affects a particular Member or Members (as distinguished from an amendment that affects all of the Members similarly), including the Manager in its capacity as such, may be made without that Member’s consent. No amendment may be made to this Section 12.1 that eliminates the right of any Member to consent to any amendment without the consent of that Member. Any amendment made in accordance with this Section 12.1 shall be binding upon all of the Members.

12.2 Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered in person or sent by facsimile, one day after being sent by a major overnight courier, or four days after being mailed by registered mail, return receipt requested, to the address of such Member set forth on such Member’s signature page to this Agreement.

12.3 Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made and to be performed entirely in the State of New York, except as otherwise required by the Delaware Limited Liability Company Act.

12.4 Submission to Jurisdiction. The courts of the State of New York in New York County and the United States District Court for the Southern District of New York shall have exclusive jurisdiction over the parties with respect to any dispute or controversy between them arising under or in connection with this Agreement and, by execution and delivery of this Agreement, each of the parties to this Agreement submits to the jurisdiction of those courts, including, but not limited to, the in personam and subject matter jurisdiction of those courts, waives any objection to such jurisdiction on the grounds of venue or forum non conveniens, the absence of in personam or subject matter jurisdiction and any similar grounds, consents to service of process by mail (in accordance with Section 12.4 or any other manner permitted by law) and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. These consents to jurisdiction shall not be deemed to confer rights on any person other than the parties to this Agreement.

12.5 Confidentiality. In connection with the formation of the Company and its ongoing business, the Members will receive or have access to confidential proprietary information concerning the Company including, without limitation, valuations, information regarding the Company's investments, financial information, and the like which is proprietary in nature and non-public ("Confidential Information," which expression shall not include information otherwise known to any Member). No Member, nor any affiliate of any Member, shall disclose or cause to be disclosed any Confidential Information to any person nor use any Confidential Information for its own purposes or its own account, except in connection with its investment in the Company and except as otherwise deemed necessary or advisable by counsel or required by law or regulation, by legal process or in connection with an audit. Notwithstanding the foregoing, each Member (and each employee, representative, or other agent of such Member) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the Company; and any transactions of the Company, and all materials of any kind (including opinions or other tax analyses) that are provided to the Member relating to such tax treatment and tax structure. Notwithstanding anything contained herein, Investure may disclose to its investors and potential investors the Confidential Information; provided that such investors and potential investors are subject to confidentiality obligations with respect to such information. Investure may provide other information to such persons upon the prior written consent of the Manager.

12.6 Headings. The headings in this Agreement are solely for convenience of reference and shall not affect its interpretation.

12.7 Ratification. The execution and delivery of the SPA on behalf of the Company by HFM is hereby authorized, ratified, approved and confirmed.

12.8 Counterparts. This Agreement may be executed by the parties hereto in counterparts, each of which shall be considered an original, and all of which shall together constitute but one and the same instrument.

[Signature Page Follows]

IN WITNESS WHEREOF, each of the undersigned Members set forth below have entered into this Agreement as of the date first set forth above.

Address: 126 Garrett Street, Suite J Charlottesville, VA 22902	INVESTURE EVERGREEN FUND, LP – 2012 TERM TRANCHE By: Investure Evergreen (GP), LLC, its General Partner By: Investure, LLC, its Managing Member By: /s/ William H. West, Jr. William H. West, Jr. Authorized Signatory
Address: 570 Lexington Ave, 49th Floor New York, NY 10022	HALE FUND MANAGEMENT, LLC By: /s/ Martin Hale Jr. Name: Martin Hale Jr. Title: Managing Member

EX-99 6 p12-exhibit10.htm EXHIBIT 10 p12-exhibit10.htm

EXHIBIT 10

JOINT FILING AGREEMENT

PURSUANT TO RULE 13d-1(k)

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D, is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D, shall be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the filing of such amendments, and for the completeness and accuracy of the information concerning him or it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows or has reason to believe that such information is inaccurate.

Dated: December 13, 2012

HALE FUND MANAGEMENT, LLC
(i) for itself, (ii) as general partner of HALE CAPITAL MANAGEMENT, LP and (iii) as manager of EREF-MID II, LLC


By:	/s/ Martin M. Hale, Jr.
	Name: Martin M. Hale, Jr.
	Title: Chief Executive Officer


HALE CAPITAL PARTNERS, LP,
By: Hale Fund Partners, LLC,
its General Partner


By:	/s/ Martin M. Hale, Jr.
	Name: Martin M. Hale, Jr.
	Title: Managing Member


	/s/ Martin M. Hale, Jr.
	Martin M. Hale, Jr.