SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is made as of May 10,
2006, by and between [ ] (the "Investor") and RIC Coinvestment Fund LP
(the "RIC"). Capitalized terms used herein without definition have the meanings
set forth in the Limited Partnership Agreement (the "Partnership Agreement") of
the RIC. The Investor and the RIC agree as follows.
1. Subscription; Purchase and Sale of Interests.
1.1 The RIC will be governed by the Partnership Agreement in the form
delivered herewith, as modified to reflect the admission of the Limited Partners
into the Investor, and the Capital Commitment made in connection therewith, and
as the same may be modified in accordance with the terms of any amendment
thereto.
1.2 Subject to the terms and conditions hereof, and in reliance upon
the representations and warranties of the respective parties contained herein,
(a) the RIC agrees to sell to the Investor and the Investor irrevocably
subscribes for and agrees to purchase from the RIC an Interest as a Limited
Partner, (b) the Investor agrees to become a Limited Partner, and (c) the RIC
and the General Partner agree that the Investor shall be admitted as a Limited
Partner, in consideration for the Investor's agreement to be bound by the terms
and provisions of the Partnership Agreement.
1.3 The Investor will make capital contributions to the RIC as and
when required by the RIC in accordance with the terms of the Partnership
Agreement, subject to the terms, provisions and conditions hereof.
Notwithstanding the foregoing, (i) the maximum amount of capital the Investor
shall be obligated to contribute to the RIC is the amount of the Capital
Commitment (as set forth on Schedule A of the Partnership Agreement) and (ii),
if the Investor is a Legal Entity, (a) in the event that the obligation of
investors in the Investor to make capital contributions thereto pursuant to and
in accordance with the operating agreement of the Investor (the "Investor
Agreement") and their respective subscription agreements is for any reason
reduced, terminated or forgiven in accordance with the terms of the Investor
Agreement or (b) any such investor defaults in its obligation to make such
capital contribution to the Investor and the remaining investors do not, in the
aggregate, elect to make contributions sufficient to correct for any resulting
shortfall, then the Investor's obligations herein shall be correspondingly
reduced. The term "Legal Entity" as used herein means a corporation,
partnership, trust, estate, limited liability company, custodian, unincorporated
organization or association or any other entity that is not a natural person.
1.4 The Investor hereby agrees that the Investor will properly execute
and provide to the RIC in a timely manner any and all tax documentation that may
be reasonably required by the General Partner in connection with the RIC. In
addition, the Investor hereby agrees that the Investor will promptly provide
written notice to the RIC upon any change in the Investor's United States tax or
withholding status.
2. Adoption of Partnership Agreement. The Investor hereby accepts, adopts, and
agrees to be bound by each and every provision contained in the Partnership
Agreement, and agrees to become a Limited Partner thereunder.
3. Representations and Warranties of the Purchaser. The Investor hereby
represents, warrants and agrees as follows:
3.1 Authorization of Purchase, etc.
(a) If the Investor is a Legal Entity:
(i) The Investor is duly formed, and validly existing in
good standing under the laws of the jurisdiction in which the Investor
is organized or formed, with all requisite power and authority to carry
on the Investor's business, to execute and deliver this Agreement, and
to acquire an Interest in, and become a Limited Partner of, the RIC,
and the Investor is authorized to make a Capital Commitment and to pay
the Investor's Capital Contributions to, the RIC in the manner
contemplated in the Partnership Agreement.
(ii) The Investor's purchase of an Interest and the
Investor's execution and delivery of this Agreement have been
authorized by all necessary corporate or other actions on the
Investor's behalf, and this Agreement and the power of attorney
contained herein are, and the Partnership Agreement upon execution and
delivery by the Investor, or on the Investor's behalf (including by the
General Partner pursuant to the power of attorney contained herein),
will be, the Investor's legally valid and binding obligations,
enforceable against the Investor in accordance with their respective
terms. The individual signing this Agreement and granting the power of
attorney contained herein on the Investor's behalf has been duly
authorized by the Investor to do so.
(b) If the Investor is a natural person, the execution, delivery
and performance of this Agreement and the performance of the Partnership
Agreement are within the Investor's legal right, power and capacity. This
Agreement constitutes, and the Partnership Agreement, when executed and
delivered on the Investor's behalf (including by the General Partner pursuant to
the power of attorney contained herein), will constitute, the Investor's valid
and binding obligation, enforceable against the Investors in accordance with its
terms. If the Investor lives in a community property state in the United States,
either (i) the source of the Investor's Capital Commitment will be the
Investor's separate property and the Investor will hold his or her Interest as
separate property, or (ii) the Investor has the authority alone to bind the
community with respect to this Agreement and all agreements contemplated hereby
(including the Partnership Agreement).
3.2 Compliance with Laws and Other Instruments. The execution and
delivery of this Agreement and the Partnership Agreement, the consummation of
the transactions contemplated hereby and thereby, and the performance of the
Investor's obligations hereunder and under the Partnership Agreement will not
conflict with, or result in any violation of or default under, any provision of
any charter, by-laws, trust agreement, partnership agreement or
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other governing instrument applicable to the Investor, or any material agreement
or other instrument to which the Investor is a party or by which the Investor or
any of the Investor's properties are bound, or any permit, franchise, judgment,
decree, statute, order, rule or regulation applicable to the Investor or the
Investor's business or properties.
3.3 Purchase for Investment. The Investor is acquiring the Interest to
be purchased by the Investor pursuant to this Agreement for the Investor's own
account, for investment purposes only, and not with a view to or for sale in
connection with any distribution of all or any part of such Interest.
3.4 Accredited Investor Status. The Investor is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended (the "Securities Act"). If the Investor
is a Legal Entity, to the extent that any look-through rules apply to the
Investor under the Securities Act, each person or entity who holds an equity
interest in the Investor is, and each person or entity who at any time in the
future holds an equity interest in the Investor will be, an "accredited
investor" as so defined. In addition, the Investor meets any additional or
different suitability standards imposed by the securities and similar laws of
the state or other jurisdiction (whether domestic or foreign) of the Investor's
principal place of business or domicile.
3.5 Anti-Money Laundering Laws and Regulations. The Investor
acknowledges that the RIC, the General Partner and the Investment Advisor seek
to comply with all applicable laws concerning money laundering and related
activities. In addition:
(a) The Investor is not
(i) identified on the U.S. Department of Treasury Office
of Foreign Assets Control ("OFAC") list of Specially Designated
Nationals and Blocked Persons (the "SDN List") codified at 31 CFR Ch. V
Annex A as amended from time to time;
(ii) to the best of the Investor's knowledge, owned or
controlled by or acting on behalf of any person or entity listed on the
SDN List;
(iii) to the best of the Investor's knowledge, the target
of any sanction, regulation, or law promulgated by OFAC or any other
U.S. governmental entity (such sanctions, regulations and laws,
together with any supplement or amendment thereto, the "U.S. Sanctions
Laws") such that the entry into this Agreement or the performance of
any of the transactions contemplated hereby would contravene such U.S.
Sanctions Laws; or
(iv) to the best of the Investor's knowledge, owned or
controlled by or acting on behalf of any person or entity that is the
target of any U.S. Sanctions Laws such that the entry into this
Agreement or the performance of any of the transactions contemplated
hereby would contravene such U.S. Sanctions Laws.
(b) The Investor understands, acknowledges, represents and
agrees
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(i) that, to the best of the Investor's knowledge, the
execution of this Agreement, together with the appropriate remittance,
will not breach any applicable money laundering or related rules or
regulations (including, without limitation, any statutes, rules or
regulations in effect under the laws of the United States pertaining to
prohibitions on money laundering or to transacting business or dealing
in property that may be blocked or may belong to Specially Designated
Nationals as those terms are used by the OFAC);
(ii) to promptly provide to the RIC and the General
Partner documentation verifying the Investor's identity, as well as the
identity of any of the Investor's legal or beneficial owners or related
parties or affiliates, to the extent requested by the RIC or the
General Partner;
(iii) that due to money laundering requirements within
their respective jurisdictions (which requirements are in effect as of
the date of this Agreement), the RIC may require further evidence of
the Investor's identity before it accepts the Investor's purchase of
Interests, and the RIC may be required to take other actions as may be
necessary for the RIC to comply with such money laundering regulations;
and
(iv) that the Investor hereby consents, to the extent
necessary for compliance with such money laundering regulations, to
disclosure to relevant third parties of information provided pursuant
to this Section 3.9 to hold harmless and indemnify each of the RIC, the
General Partner, the Investment Advisor and their respective designees
against any losses arising from the failure to process the Investor's
application if the Investor does not provide such requested
information.
(c) The Investor understands, acknowledges, represents and
agrees that many jurisdictions are in the process of changing or creating
anti-money laundering, embargo and trade sanctions, or similar laws,
regulations, requirements (whether or not with force of law) or regulatory
policies and many financial intermediaries are in the process of changing or
creating responsive disclosure and compliance policies (collectively
"Requirements") and the RIC could be requested or required to obtain certain
assurances from the Investor, disclose information pertaining to the Investor to
governmental, regulatory or other authorities or to financial intermediaries or
engage in due diligence or take other related actions in the future.
(d) The Investor understands, acknowledges, represents and
agrees that it is the RIC's policy to comply with Requirements to which it is or
may become subject and to interpret them broadly in favor of disclosure.
(e) The Investor hereby agrees, and by reason of owning an
Interest will be deemed to have agreed, to provide additional information or
take such other actions as may be necessary or advisable for the RIC (if the
General Partner determines, in good faith, that such request is in the best
interests of the Partnership) to comply with any Requirements, related legal
process or appropriate requests (whether formal or informal) or otherwise.
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(f) The Investor hereby consents, and by reason of owning an
Interest will be deemed to have consented, to disclosure by the RIC and its
respective agents to relevant third parties of information pertaining to the
Investor in respect of Requirements or information requests related thereto.
3.6 Organization. If the Investor is a Legal Entity, the Investor has
been organized or reorganized for the specific purpose of acquiring an Interest
(except as previously disclosed to the General Partner in writing).
4. Power-of-Attorney. The Investor hereby irrevocably constitutes and appoints
the General Partner, or the successor thereof as general partner of the RIC, the
Directors and the Appropriate Oficers, with full power of substitution, the true
and lawful attorney-in-fact and agent of the Investor, to execute, acknowledge,
verify, swear to, deliver, record and file, in its or its assignee's name, place
and stead, all instruments, documents and certificates that may from time to
time be required by the laws of the United States, the State of New York, any
other jurisdiction in which the RIC conducts or plans to conduct business, or
any political subdivision or agency thereof, to effectuate, implement and
continue the valid existence and investment and other activities of the RIC,
including the power and authority to execute, verify, swear to, acknowledge,
deliver, record and file: (a) all certificates and other instruments that any
such person determines to be required to receive and pay over to the RIC on
behalf of the undersigned all Investors received hereunder, and as applicable,
to execute, acknowledge, swear to and file any counterparts of the Partnership
Agreement (as provided therein); (b) all certificates and other instruments,
including the Partnership Agreement and any amendments thereto, that any such
person determines to be appropriate to (1) form, qualify or continue the RIC as
an exempted limited partnership in the State of New York, including but not
limited to the Certificate of Limited Partnership, and all other jurisdictions
in which the RIC conducts or plans to conduct business and (2) admit the
Investor as a limited partner in the RIC or to admit any other proposed limited
partners to the RIC from time to time; (c) all instruments that any such person
determines to be appropriate to reflect any amendment to the (x) Partnership
Agreement or (y) the Certificate of Limited Partnership in either case (1) to
satisfy any requirements, conditions, guidelines or opinions contained in any
opinion, directive, order, ruling or regulation of the Securities and Exchange
Commission, the Internal Revenue Service, or any other U.S. federal or state or
non-U.S. governmental agency, or in any U.S. federal or state or any non-U.S.
statute, compliance with which any such person deems in good faith to be in the
best interest of the RIC, (2) to change the name of the RIC or (3) to cure any
ambiguity or correct or supplement any provision hereof that may be incomplete
or inconsistent with any other provision contained therein so long as such
amendment under this clause (3) does not materially adversely affect the
interests of the Limited Partners; (d) all instruments that any such person
determines to be appropriate in connection with the formation or operation of
any other company consistent with the terms of the Partnership Agreement; (e)
all conveyances and other instruments that any such person determines to be
appropriate to reflect and effect the dissolution, winding up, merger and/or
liquidation of the RIC in accordance with the terms of the Partnership
Agreement, including the filing of a certificate of cancellation; (f) all
instruments relating to (1) Transfers of Interests or the admission of
Substitute Partners, (2) the treatment of a defaulting Limited Partner or (3)
any change in the Capital Commitment of any Limited Partner, all in accordance
with the terms of the Partnership Agreement; (g) all amendments to the
Partnership Agreement duly approved and adopted; (h) certificates of assumed
name and such other certificates and
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instruments as may be necessary under the fictitious or assumed name statutes
from time to time in effect in all jurisdictions in which the RIC conducts or
plans to conduct business; (i) any certificates or similar documents determined
by any such person to be necessary or appropriate to enable the RIC to obtain an
exemption from or reduced rate of tax in any non-U.S. jurisdiction in respect of
the Investor's Interest; (j) all instruments that any such person determines to
be appropriate or necessary in connection with the merger or consolidation of
the RIC, or the sale by the RIC of all or substantially all of its assets; and
(k) any other filings or instruments determined by any such person to be
necessary or appropriate in connection with the proper conduct of the business
and maintenance in good standing of the RIC and that do not adversely affect the
interests of any Limited Partner.
This power of attorney shall be deemed to be coupled with an interest,
shall be irrevocable, shall survive and not be affected by the dissolution,
bankruptcy, incompetence or legal disability of the Investor and shall extend to
the successors and assigns of the Investor. This power of attorney may be
exercised by such attorney-in-fact and agent for all Limited Partners (or any of
them) by a single signature of any such person acting as attorney-in-fact with
or without listing all of the Limited Partners executing an instrument. Any
Person dealing with the RIC may conclusively presume and rely upon the fact that
any instrument referred to above, executed by such attorney-in-fact and agent,
is authorized and binding, without further inquiry. If required, each Limited
Partner shall execute and deliver to any such person, within five business days
after receipt of a request therefor, such further designations, powers of
attorney or other instruments as any such person shall reasonably determine to
be necessary for the purposes hereof consistent with the provisions of the
Partnership Agreement.
5. Amendments and Waivers. This Agreement may be amended or terminated, and the
observance of any provision hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Investor and the General Partner.
6. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by the Investor in connection
with the transactions contemplated by this Agreement shall survive the execution
and delivery of this Agreement, any investigation at any time made by or on
behalf of the General Partner, the RIC or the Investor, and the issue and sale
of Interests, any Transfer, withdrawal or other disposition of the Interests,
and any termination of the RIC.
7. Assignability. To the fullest extent permitted by law, this Agreement is not
transferable or assignable by any party hereto except as may be expressly
provided herein and in the Partnership Agreement.
8. Notices. Any notice, request, consent, demand, or other communication
required or permitted to be given by any provision of this Agreement shall be in
writing and shall be (a) delivered personally to the party or to an officer of
the party to whom the same is directed, or (b) sent by overnight mail, facsimile
or registered or certified mail, return receipt requested, postage prepaid,
addressed as follows, or (c) sent by electronic mail to the proper addressee to
the last known address of such party, or to such other address(es) and/or
facsimile number(s) as the party may from time to time specify by written
notice. Any such notice shall be deemed to be
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delivered, given and received for all purposes as of: (i) the date so delivered,
if delivered personally, (ii) upon receipt, if sent by overnight mail or
facsimile or electronic mail, or (iii) on the date of receipt or refusal
indicated on the return receipt, if sent by registered or certified mail, return
receipt requested, postage and charges prepaid and properly addressed.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, including without limitation,
Sections 5-1401 and 5-1402 of the New York General Obligations Law and the New
York Civil Practice Laws and Rules 327(b). This Agreement (a) shall be binding
upon the Investor and the Investor's heirs, personal representatives, successors
and assigns, (b) shall survive the admission of the Investor to the RIC and (c)
shall, if the Investor consists of more than one person, be the joint and
several obligation of all such persons.
10. Descriptive Headings. The descriptive headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provision of this Agreement.
11. Entire Agreement. This Agreement, together with the final Partnership
Agreement is a part, and together with any side letters that may be entered into
between the parties hereto pursuant to the Partnership Agreement, contains the
entire agreement of the parties with respect to the subject matter of this
Agreement, and there are no representations, covenants or other agreements
except as stated or referred to herein.
12. Binding Effect. Except as otherwise provided herein, this Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors,
administrators, successors, legal representatives and assigns. The Investor's
obligations, and the Investor's agreements, representations, warranties and
acknowledgments herein contained shall be deemed to be made by and be binding
upon the Investor and the Investor's heirs, executors, administrators and
successors.
13. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Subscription
Agreement as of the date first written above.
RIC COINVESTMENT FUND LP
By: RIC COINVESTMENT FUND GP LLC
General Partner
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and Secretary
[ ]
By: FIG ADVISORS LLC
General Partner
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and Secretary
