WHITEBOX STATISTICAL ARBITRAGE FUND, L.P.
SUBSCRIPTION AGREEMENT
(U.S. Taxable Subscribers Only)
This Subscription Agreement (this "Agreement") is made by and among
Whitebox Statistical Arbitrage Fund, L.P., a Delaware limited partnership
(the "Partnership"), Whitebox Statistical Arbitrage Advisors, LLC, a Delaware
limited liability company and the Partnership's general partner (the "General
Partner"), and the subscriber ( the "Subscriber") named on the signature page
to this Agreement.
WHEREAS, the Subscriber desires to acquire a limited partnership interest
(the "Interest") in, and to become a limited partner of, the Partnership.
WHEREAS, capitalized terms used but not otherwise defined in this
Agreement shall have the meanings specified in the Partnership's limited
partnership agreement (as amended from time to time, the "Partnership
Agreement"), in the form that accompanies the Confidential Private Placement
Memorandum dated January 1, 2001 (as amended, supplemented or updated from
time to time, the "Memorandum").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth in this Agreement, the parties hereto agree
as follows:
ARTICLE I
SUBSCRIPTION FOR THE INTEREST
Subject to and in accordance with the respective terms and conditions of
this Agreement and the Partnership Agreement, the Subscriber hereby
irrevocably subscribes for and agrees to purchase the Interest and to become a
limited partner of the Partnership (a "Limited Partner"), to be bound by all
of the provisions of the Partnership Agreement, and to make a cash Capital
Contribution to the Partnership in the amount set forth on the signature page
to this Agreement.
The General Partner reserves the right to accept or reject the
Subscriber's subscription, in whole or in part, in its sole discretion.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER
2.1 Representations and Warranties. In connection with its subscription for
the Interest, and as a material inducement to the Partnership to issue the
Interest to the Subscriber, the Subscriber hereby makes the following
representations and warranties to the General Partner and the Partnership.
The Subscriber further represents and warrants that it will notify the General
Partner in writing promptly (but in all events within 30 days after the
applicable change) of any actual or anticipated change in any facts or
circumstances, which change would make any of the representations and
warranties set forth below in this Section 2.1 untrue if made as of the date
of such change (after giving effect thereto).
(a) Power and Authority. The Subscriber is fully authorized, empowered
and qualified to execute and deliver this Agreement and the Partnership
Agreement (collectively, the "Subscriber Agreements"), to subscribe for and
purchase the Interest and to perform its obligations under, and to consummate
the transactions that are contemplated by, each Subscriber Agreement. Without
limiting the generality of the foregoing, the subscription for and the
purchase of the Interest, and the execution and delivery of each of the
Subscriber Agreements, by the Subscriber have been authorized by all necessary
corporate or other action of, or on behalf of, the Subscriber, and each of the
Subscriber Agreements is a legal, valid and binding obligation of the
Subscriber, enforceable against the Subscriber in accordance with its terms.
The signature of the person, individual or other party signing any Subscriber
Agreement as, or on behalf of, the Subscriber is binding on and enforceable
against the Subscriber.
(b) Compliance with Laws; No Conflict. The execution and delivery of
the Subscriber Agreements by or on behalf of the Subscriber and the
performance of the Subscriber's obligations under, and the consummation of the
transactions contemplated by, the Subscriber Agreements do not and will not
conflict with or result in any violation of, or default under, any provision
of any charter, bylaws, trust agreement, partnership agreement or other
governing instrument applicable to the Subscriber, or other agreement or
instrument to which the Subscriber is a party or by which the Subscriber is,
or any of its assets are, bound, or any permit, franchise, judgment, decree,
statute, rule, regulation or other law applicable to the Subscriber or the
business or assets of the Subscriber.
(c) Binding Effect. The Subscriber acknowledges that this Agreement may
not be assigned by the Subscriber without the prior written consent of the
General Partner and may not be canceled, terminated or revoked by the
Subscriber.
(d) Residence and Principal Place of Business. The address set forth on
the signature page to this Agreement is the Subscriber's correct residence or
principal place of business (as applicable), and the Subscriber has no present
intention of moving its residence or principal place of business (as
applicable) to any other domestic or foreign jurisdiction.
(e Receipt of Documents Access to Information. The Subscriber has
received copies of the Memorandum and the Subscriber Agreements. The
Subscriber has carefully reviewed and is familiar with the terms of the
Memorandum and the Subscriber Agreements. The Subscriber has been given the
opportunity to ask questions, and has received satisfactory answers,
concerning the terms and conditions of an investment in the Partnership, and
has been given the opportunity to obtain any additional information, and has
obtained all such information requested by the Subscriber, in order to
evaluate the merits and risks of an investment in the Partnership and to
verify the accuracy of the information contained in the Memorandum and the
Subscriber Agreements.
(f) Reliance. The Subscriber has relied on nothing other than the
Memorandum and the Subscriber Agreements (including all exhibits and
appendices thereto) in deciding whether to make an investment in the
Partnership.
(g) Sophistication and Economic Loss. The Subscriber is a sophisticated
investor with such knowledge and experience in business and financial matters
as renders the Subscriber able to evaluate the merits and risks of an
investment in the Partnership and the Subscriber's financial situation is such
that the Subscriber is able to bear the economic risk and lack of liquidity of
an investment in the Partnership.
(h) Investment Risks. The Subscriber understands that the purchase of
the Interest involves certain risks, including those set forth under the
captions "Investment Objectives and Policies and Related Risk Factors" and
"Other Risk Factors" in the Memorandum and, without limiting the generality
of the foregoing, specifically understands that the Partnership has no
operating history.
(i) Investment Intent. The Subscriber is acquiring the Interest for its
own account for investment only, and not with a view to any distribution
thereof in violation of the Securities Act of 1933, as amended (the
"Securities Act"), or any other applicable domestic or foreign securities
law, and the Subscriber has no present plans to enter into any contract,
undertaking, agreement or arrangement for any such distribution.
(j) No Registration of Interest; Limitations on Transfer. The
Subscriber acknowledges that, based in part upon its representations and
warranties contained in this Agreement and in reliance upon applicable federal
and state exemptions, no Interest in the Partnership acquired by the
Subscriber has been or will be registered under the Securities Act or the
securities laws of any domestic or foreign jurisdiction. Accordingly, no
Interest may be transferred, offered or sold unless the Interests are
registered under the Securities Act and any applicable state and foreign
securities laws or exemptions from such registration requirements are
available. In addition, the Subscriber understands that sales or transfers of
the Interests are further restricted by the provisions of the Partnership
Agreement. The Subscriber hereby agrees that it will not, directly or
indirectly, assign, transfer, offer, sell, pledge, hypothecate or otherwise
dispose of all or any part of the Interest (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of all or any part of the
Interest) except in accordance with the registration provisions of the
Securities Act and the securities laws of any other applicable domestic or
foreign jurisdiction, or available exemptions from such registration
provisions, and the terms of the Partnership Agreement.
(k)(Please check each applicable box in this section.) The Subscriber is
an "accredited investor" because the Subscriber is:
[ ] A bank as defined in Section 3(a)(2) of the Securities Act, or a savings
and loan association or other institution as defined in Section 3(a)(5)(A) of
the Securities Act whether acting in its individual or fiduciary capacity; a
broker-dealer registered pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended (the "Securities Exchange Act"); an insurance company as
defined in Section 2(13) of the Securities Act; an investment company
registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or a business development company as defined in
Section 2(a)(48) of the Investment Company Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; a plan established
and maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the benefit of
its employees, if such plan has total assets in excess of $5,000,000; an
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of ERISA, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000, or, if a self-directed plan, with investment decisions made
solely by persons that are accredited investors.
[ ] A private business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940, as amended (the "Investment Advisers
Act").
[X] An organization described in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the securities offered, with
total assets in excess of $5,000,000.
[ ] A director, executive officer, or general partner of the issuer of the
securities being offered or sold, or a director, executive officer, or general
partner of a general partner of that issuer.
[ ] A natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his or her purchase exceeds $1,000,000.
[ ] A natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
[ ] A trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of
Regulation D promulgated by the Securities and Exchange Commission under the
Securities Act.
[ ] An entity in which all of the equity owners are accredited investors (as
defined above).
(l) Investment Company Act - If the Subscriber is a natural person,
please skip this section and continue with Section (m). If the Subscriber is
not a natural person, please complete each portion of this section.
(i) You must check one of the following two boxes:
[X] The Subscriber was not formed, organized, reorganized, capitalized
or recapitalized for the purpose of making an investment in the Fund.
[ ] The Subscriber is unable to so represent. (Please attach a
schedule that includes the name and address of each shareholder, partner,
member or other beneficial owner of the Subscriber. The Subscriber warrants
that it will promptly notify the General Partner in writing of any changes to
such schedule at any time during the Subscriber's investment in the
Partnership.)
(ii) You must check one of the following two boxes:
[X] The Subscriber's Capital Contribution does not exceed 40% of its
total assets and does not exceed 40% of its committed capital.
[ ] The Subscriber is unable to so represent. (Please attach a
schedule that includes the name and address of each shareholder, partner,
member or other beneficial owner of the Subscriber. The Subscriber warrants
that it will promptly notify the General Partner in writing of any changes to
such schedule at any time during the Subscriber's investment in the
Partnership.)
(iii) You must check one of the following two boxes:
[X] The shareholders, partners, members or other beneficial
owners of the Subscriber (including plan participants if the Subscriber
is an employee benefit or pension plan) do not, and will not, have
individual discretion as to their participation in particular investments
made by the Subscriber.
[ ] The Subscriber is unable to so represent. (Please attach a
schedule that includes the name and address of each shareholder, partner,
member or other beneficial owner of the Subscriber. The Subscriber warrants
that it will promptly notify the General Partner in writing of any changes to
such schedule at any time during the Subscriber's investment in the
Partnership.)
(iv) You must check one of the following two boxes:
[X] The Subscriber is not an "investment company" that is registered
or required to be registered under the Investment Company Act.
[ ] The Subscriber is unable to so represent. (Please attach a
schedule listing the name and address of each beneficial owner of such
investment company's shares. The Subscriber warrants that it will
promptly notify the General Partner in writing of any changes to such
schedule at any time during the Subscriber's investment in the Partnership.)
(v) You must check one of the following two boxes:
[X] The Subscriber is not relying on the exclusions set forth in
Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act as the basis
for its exclusion from the definition of "investment company" set forth in
Section 3(a) of the Investment Company Act.
[ ] The Subscriber is unable to so represent. (Please attach a
schedule that includes the name and address of each shareholder, partner,
member or other beneficial owner of the Subscriber. The Subscriber warrants
that it will promptly notify the General Partner in writing of any changes
to such schedule at any time during the Subscriber's investment in the
Partnership.)
(m) NASD Free-Riding and Withholding Interpretation. The U.S. National
Association of Securities Dealers, Inc. ("NASD") restricts certain persons
("Restricted Persons") from profiting from the gains on "hot issues"
(securities issued in a public offering that trade at a premium in the
secondary market). In order for the Fund to invest in hot issues (if it
decides to do so), it must obtain certain information regarding each
Subscriber and each person having a direct or indirect beneficial interest in
with respect to Subscriber, to determine whether the Subscriber is a
Restricted Person.
(You must check one of the following two boxes.)
[ ] Subscriber represents and warrants that it is not a member firm
of the National Association of Securities Dealers, Inc. (the "NASD") or any
person associated with any such NASD member firm or any person to whom any NASD
member firm or any person associated therewith would be prohibited or
otherwise restricted under the Free-Riding and Withholding Interpretation of
the XXXX, Xxxxxxx XX-0000-0 of the NASD's Conduct Rules (the "NASD
Interpretation"), from selling "hot issues" (as defined in the NASD
Interpretation).
[X] The Subscriber is unable to so represent.
(n) ERISA. The Subscriber is/is not a "benefit plan investor"
within the meaning of paragraph (f)(2) of the Department of Labor plan asset
regulations (29 CFR 2510.3-101), as indicated by marking one of the following
boxes:
[ ] is a benefit plan investor
[X] is not a benefit plan investor
Note: "Benefit plan investors" include, but are not limited to, individual
retirement accounts, pension, profit-sharing and stock bonus plans and
governmental plans.
(o) Tax Year. The Subscriber's tax year ends on:
[X] December 31
[ ] Other
______________________
(please specify)
(p) Tax Status. The Subscriber is not an organization (i) the
income of which is exempt from taxation under Section 401 or 501 of the Code
or (ii) that generally is taxed on its income under the Code only to the
extent that it is engaged in an "unrelated trade or business" within the
meaning of Section 513(a) of the Code (a "tax exempt organization").
(q) Special Notice to Florida Subscribers Only. Each Subscriber
that is a Florida resident is hereby informed of his right to void his
acquisition of the Interest within three days after he first tenders his
Capital Contribution. This right does not exist, however, if the Fund
determines not to rely on the registration exemption contained in Section
517.061(11) of the Florida Securities and Investor Protection Act. The
Subscriber represents and warrants that he has been given access to all
material books and records of the Fund and has been given access to all
material contracts and documents relating to his acquisition of the Interest.
2.1 Effect and Time of Representations. The Subscriber's
representations and warranties set forth in this Agreement are true, and have
been complied with, as of the date of the Subscriber's execution of this
Agreement and shall be true and correct as of the Subscriber's admission to
the Fund as a Shareholder. The Subscriber acknowledges that the Fund and each
Shareholder thereof have relied and will rely upon the representations and
warranties of the Subscriber set forth in this Agreement, and that all such
representations and warranties shall survive the execution and delivery of the
Subscriber Agreements notwithstanding any knowledge on the part of the Fund or
the Manager of any breach of any such representation or warranty, and the
issue and sale of the Shares. The Subscriber hereby agrees to indemnify and
hold harmless the Fund, the Manager, and their respective affiliates, together
with the directors, officers and employees of each of the foregoing, from and
against any and all claims, damages and liabilities (including without
limitation reasonable attorney fees) resulting from, arising out of or
relating to any breach of any representation or warranty contained in this
Article II.
ARTICLE III
POWER OF ATTORNEY
3.1 Power of Attorney. The Subscriber hereby constitutes and appoints Xxxxxx
Xxxxxxx and the General Partner, and each of them, with full power of
substitution and re-substitution, as the Subscriber's true and lawful
attorneys-in-fact, with full power and authority in the Subscriber's name,
place and stead to make, execute, deliver, acknowledge, publish, file and swear
to in the execution, delivery, acknowledgment, filing and/or recording of:
(a) the Partnership Agreement, and any amendments thereto as may be
required to effect: admission of additional Partners pursuant to Article 4;
assignment or transfers of Interests pursuant to Article 10; additional capital
contributions pursuant to Article 5; or withdrawal of Partners pursuant to
Article 8.
(b the Partnership's Certificate of Limited Partnership required under
the laws of the State of Delaware or the laws of any other jurisdiction in
which such Certificate is required to be filed and any amendments thereto or
cancellation thereof;
(c) any certificates, instruments and documents, including
without limitation, fictitious name certificates, as may be required by, or may
be appropriate under, the laws of the United States, the laws of the State of
Delaware or any other state or jurisdiction in which the Partnership is doing
or intends to do business;
(d) any other instrument which may be required to be filed by the
Partnership under the laws of any jurisdiction or by any governmental agency,
or which such attorneys-in-fact, or any of them, deem advisable to file; and
(e) any documents which may be required to effect the admission of a
successor to the General Partner, a Substitute Limited Partner, or the
dissolution and termination of the Partnership, in accordance with the terms
of the Partnership Agreement.
3.2 Irrevocability; Survivability. The foregoing grant of authority:
(a) is a Special Power of Attorney coupled with an interest and is
irrevocable;
(b) may be exercised by such attorneys-in-fact for the Subscriber, and
the Subscriber's name shall be listed in the instrument as a Limited Partner;
and
(c) shall survive the Subscriber's delivery of an assignment of the
Interest except that where the assignee thereof has been approved by the
General Partner for admission to the Partnership as a Substitute Limited
Partner as provided for in Article 10 of the Partnership Agreement, the Special
Power of Attorney shall survive the delivery of such assignment for the sole
purpose of enabling such attorneys-in-fact, or any of them, to execute,
acknowledge and file any instrument necessary to effect such substitution.
3.3 Binding Effect; Waiver of Defenses; Ratification. The Subscriber hereby
agrees to be bound by all the representations of the Subscriber's attorneys-in-
fact and waives any and all defenses which may be available to the Subscriber
to contest, negate or disaffirm the actions of such attorneys-in-fact, or any
of them, under this Power of Attorney, and hereby ratifies and confirms all
acts which said attorneys-in-fact, or any of them, may take as attorneys-in-
fact hereunder in all respects as though performed by the Subscriber.
3.4 Conflicts with Partnership Agreement. In the event of any conflict
between the provisions of the Partnership Agreement and any document executed
or filed by the attorneys-in-fact pursuant to this Power of Attorney, the
Partnership Agreement shall govern.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. Any notice, request, demand or other communication required by
or permitted to be given in connection with this Agreement shall be in
writing, except as expressly otherwise permitted herein, and shall be
delivered in person, sent by first class mail (postage prepaid and certified
or registered, with return receipt requested), sent by facsimile or similar
means of communication, or delivered by a courier service (charges prepaid),
to the respective party at its address as set forth on the signature page to
this Agreement. Each party may change its address by notifying each other
party of such change in accordance with the provisions of this Section 4.1.
Any such notice, request, demand or other communication shall be deemed to be
given (a)when received, if personally delivered; (b)if mailed, on the third
business day after it is deposited in the United States mail, properly
addressed, with proper postage affixed; (c)if sent by facsimile or similar
device, when electronically confirmed; and (d)if sent by courier service, 24
hours after shipped by such courier service; provided, however, that any
notice to the Partnership shall be effective only if and when received by the
General Partner.
4.2 Governing Law; Consent to Jurisdiction. This Agreement shall be governed
by and construed in accordance with the internal laws (and not the law of
conflicts) of the State of Delaware. The parties hereby consent to the non-
exclusive jurisdiction of the courts of the State of Delaware and any federal
or state court located in Minneapolis, Minnesota for any action arising out of
this Agreement.
4.3 Binding Effect, and Severability. The Subscriber may not assign any of
its rights or obligations under this Agreement without the prior written
consent of the General Partner. This Agreement and the rights and obligations
set forth herein shall be binding upon, and shall inure to the benefit of, the
Subscriber, the Partnership and the General Partner, and their respective
successors and permitted assigns. If any provision of this Agreement, or the
application of such provision to any circumstance, shall be invalid under the
laws of the applicable jurisdiction, the remainder of this Agreement or the
application of such provision to other persons or circumstances or in other
jurisdictions shall not be affected thereby.
4.4 Entire Agreement. This Agreement, including the appendices hereto,
constitutes the entire agreement, and supersedes all prior agreements or
understandings, among the parties hereto with respect to the subject matter
hereof.
4.5 Counterparts. This Agreement may be executed in one or more separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement as
of the date set forth opposite its name below.
PRINTWARE, INC.
_________________________________
(Type or Print Name of Subscriber)
Date: By: /s/Xxxx X. Xxxxxxxxxxx
------------------------ -------------------------------------
Xxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
Business Address of Subscriber: 0000 Xxxxx Xxxxxxxxxx Xxxx
Xx. Xxxx, Xxxxxxxxx 00000
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
E-Mail Address: xxxxxx@xxxxxxxxxxxx.xxx
U.S. Taxpayer ID No.: 00-0000000
Residence of Subscriber (a natural person):
__________________________________________
__________________________________________
__________________________________________
Telephone Number:
_________________________
Facsimile Number:
_________________________
Capital Contribution: $2,000,000.00
Accepted as of March 1, 2001
WHITEBOX STATISTICAL ARBITRAGE FUND, L.P.
By: /s/Xxxxxxxx Xxxx
------------------------------------------
Xxxxxxxx Xxxx
By: Whitebox Statistical Arbitrage Advisors, LLC,
its General Partner
UNITED STATES TAXABLE INVESTORS ONLY
Under penalty of perjury, by signature above, Subscriber certifies that (a)
the Social Security Number or Taxpayer ID Number is Subscriber's true, correct
and complete Social Security Number or Taxpayer ID Number and (b) Subscriber
is not subject to backup withholding because: (i) Subscriber is exempt from
backup withholding; (ii) Subscriber has not been notified by the Internal
Revenue Service (the "IRS") that Subscriber is subject to backup withholding;
or (iii) the IRS has notified Subscriber that Subscriber is no longer subject
to backup withholding.
