Exhibit 4.2
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
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PROGRAM SUBSCRIPTION AGREEMENT
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Units of Limited Liability Company Interest
Minimum Investment in any FuturesAccess Fund: $10,000
Xxxxxxx Xxxxx Alternative Investments LLC
Princeton Corporate Campus
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
(866) MER-ALTS; (000) 000-0000
The completed Program Subscription Agreement Signature Page (attached
hereto) must be delivered to your Financial Advisor.
A completed Purchase and Exchange Form Signature Page must also be
delivered to your Financial Advisor in order for your subscription or
exchange to be processed.
If you have any questions about how to complete the Program Subscription
Agreement Signature Page or the Purchase and Exchange Form Signature Page,
please contact your Xxxxxxx Xxxxx Financial Advisor or a representative of
Xxxxxxx Xxxxx Alternative Investments LLC at (866) MER-ALTS; (000) 000-0000.
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THE FUTURESACCESS FUNDS AVAILABLE THROUGH THE XXXXXXX XXXXX
FUTURESACCESS(SM) PROGRAM ARE SPECULATIVE, ILLIQUID INVESTMENTS.
THE UNITS ARE ONLY SUITABLE FOR A LIMITED PORTION OF
THE RISK SEGMENT OF A PORTFOLIO.
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Selling Agent:
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
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FOR THE USE OF U.S. INVESTORS ONLY
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
PROGRAM SUBSCRIPTION AGREEMENT
For the Use of U.S. Investors
How to Invest in the Xxxxxxx Xxxxx FuturesAccess(SM) Program
General
Xxxxxxx Xxxxx Alternative Investments LLC ("MLAI") has attempted to minimize
the paperwork normally associated with Investors participating in private
placements in general and in the Xxxxxxx Xxxxx FuturesAccess(SM) Program
("FuturesAccess") in particular. All information which Investors must complete
is included in the Program Subscription Agreement Signature Page and the
Purchase and Exchange Form Signature Page. The Program Subscription Agreement
Signature Page must be completed only once (unless your Financial Advisor
otherwise requests). Acceptance of your Program Subscription Agreement
entitles you to participate in any fund included in FuturesAccess (a
"FuturesAccess Fund"), including any new FuturesAccess Funds added in the
future (subject to availability).
Investors participating in the FuturesAccess Funds through both taxable and
tax-exempt accounts must submit separate Program Subscription Agreement
Signature Pages for each such account (unless your Financial Advisor informs
you otherwise).
When (or any time after) you submit your Program Subscription Agreement
Signature Page, you must also submit a Purchase and Exchange Form Signature
Page selecting the specific FuturesAccess Fund(s) into which you wish to
invest or exchange. Unless your Financial Advisor otherwise requests, there is
no need to submit a Program Subscription Agreement Signature Page for each
FuturesAccess Fund investment or exchange. You need only identify your
selection on a Purchase and Exchange Form Signature Page.
Only the detachable Signature Page to this Program Subscription Agreement and
to the Purchase and Exchange Form need be submitted, not the full Program
Subscription Agreement or Purchase and Exchange Form.
If you have any questions as to how to complete either the Program
Subscription Agreement Signature Page or the Purchase and Exchange Form
Signature Page, or need additional Program Subscription Agreements or Purchase
and Exchange Forms, please contact your Financial Advisor or:
Xxxxxxx Xxxxx Alternative Investments LLC
Princeton Corporate Campus
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
(866) MER-ALTS; (000)000-0000
Your Financial Advisor must countersign both your Program Subscription
Agreement Signature Page and your Purchase and Exchange Form Signature Page.
Give the Signature Pages to your Financial Advisor to send to MLAI.
Steps to investing:
1. Read and carefully review this Program Subscription Agreement.
2. Complete and detach the Program Subscription Agreement Signature
Page.
3. Give the completed Program Subscription Agreement Signature Page to
your Financial Advisor. Your Financial Advisor will review and
countersign this Signature Page and forward it to MLAI.
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4. Read and carefully review the Part One (A) Confidential Program
Disclosure Document: FuturesAccessSM Program General Information, the
Part Two Confidential Program Disclosure Document: Statement of
Additional Information and the Part One (B) Confidential Program
Disclosure Document: Trading Advisor Information (collectively, the
"Confidential Program Disclosure Document"), including the
description of each FuturesAccess Fund into which you are considering
investing or exchanging.
5. Consult with your Financial Advisor as to which of the FuturesAccess
Funds are suitable for your portfolio.
6. Complete and detach the Purchase and Exchange Form Signature Page
indicating the FuturesAccess Funds you have selected.
7. Give the completed Purchase and Exchange Form Signature Page to your
Financial Advisor. Your Financial Advisor will review and countersign
this Signature Page and forward it to MLAI.
8. To exchange among FuturesAccess Funds, complete a Purchase and
Exchange Form Signature Page and submit it to your Financial Advisor
no less than 45 days before the proposed calendar quarter-end (or
month-end, in certain cases) for the exchange.
9. Your Financial Advisor will inform you of when your Xxxxxxx Xxxxx
Account will be debited in the amount of your investments in
FuturesAccess (in the case of subscriptions), as well as of when any
exchange will be effective.
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The Subscriber may invest in FuturesAccess through taxable accounts
as well as through IRA and other tax-exempt accounts. Investments by
the Subscriber and by related tax-exempt as well as taxable accounts
(including certain investments for the benefit of immediate family
members of the Subscriber) may be combined for purposes of meeting
FuturesAccess (but not individual FuturesAccess Fund) minimums. A
separate Program Subscription Agreement Signature Page must be
completed for each such account.
The Subscriber should indicate on the Program Subscription Agreement
Signature Page as well as on each Purchase and Exchange Form
Signature Page whether the Subscriber is investing together with any
related accounts.
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The detachable Program Subscription Agreement Signature Page attached hereto
should be completed and delivered to your Financial Advisor, together with the
Purchase and Exchange Form Signature Page identifying the FuturesAccess Funds
in which you wish to invest.
The Purchase and Exchange Form is a separate document with its own detachable
Signature Page.
U.S. Investors
-2-
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
PROGRAM SUBSCRIPTION AGREEMENT
For the Use of U.S. Investors
This Program Subscription Agreement relates to your participation in
FuturesAccess. A number of different FuturesAccess Funds are included in
FuturesAccess. In addition to the Program Subscription Agreement Signature
Page (attached hereto), you must also submit a Purchase and Exchange Form
Signature Page (attached to the Purchase and Exchange Form) identifying the
particular FuturesAccess Fund(s) into which you wish to invest or exchange.
You must submit a new Purchase and Exchange Form Signature Page each time you
invest or exchange into a new FuturesAccess Fund. Following initial completion
of the Program Subscription Agreement, you need only submit a new Program
Subscription Agreement Signature Page if so requested by your Xxxxxxx Xxxxx
Financial Advisor.
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This Program Subscription Agreement relates to your subscription to one or
more of the FuturesAccess Funds.
Each Investor must also complete a Purchase and Exchange Form Signature Page
indicating the specific FuturesAccess Fund(s) to which such Investor wishes to
subscribe, and acknowledging receipt of the Confidential Program Disclosure
Document, as well as the FuturesAccess Fund Descriptions and the FuturesAccess
Fund Offering Documents relating to such FuturesAccess Fund(s).
By completing and executing the Program Subscription Agreement Signature Page,
the undersigned (the "Subscriber") is confirming that the Subscriber has the
level of financial sophistication necessary to evaluate the merits and risks
of specialized, non-traditional investments such as the FuturesAccess Funds,
and understands that the speculative and illiquid nature of an investment in
one or more of the FuturesAccess Funds makes such investment appropriate only
for a limited portion of the Subscriber's portfolio.
The Subscriber also understands and agrees that, although MLAI will use its
reasonable efforts to keep the information provided in each Program
Subscription Agreement Signature Page and each Purchase and Exchange Form
Signature Page strictly confidential, one or more FuturesAccess Funds and/or
MLAI may present the Program Subscription Agreement Signature Page as well as
the Purchase and Exchange Form Signature Page and the information provided
therein to such parties as MLAI deems advisable if called upon to establish
the availability under any applicable law of an exemption from registration
for the FuturesAccess Funds' units of limited liability company interest (the
"Units"), or compliance with applicable law by any of the FuturesAccess Funds,
MLAI or any of their respective affiliates, or if such information is or may
be relevant to an issue in any action, suit or proceeding to which any
FuturesAccess Fund, MLAI or any of their respective affiliates are a party or
by which they are or may be bound, or upon the request of any regulatory,
governmental or self-regulatory authority.
Capitalized terms used but not defined herein will have the meaning assigned
to them in the Confidential Program Disclosure Document.
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I. Representations, Warranties and Agreements of the Subscriber. As an
inducement to MLAI to accept the Subscriber's Program Subscription Agreement
Signature Page and any Purchase and Exchange Form Signature Page submitted by
the Subscriber, the Subscriber represents and warrants to MLAI and the
applicable FuturesAccess Fund(s) as follows:
A. Authority and Eligibility
(1) If an individual, the Subscriber (including each individual joint
Subscriber) is at least 21 years old and is legally competent to
execute and deliver the Program Subscription Agreement Signature
Page and the Purchase and Exchange Form Signature Page and to
comply with the terms of this Program Subscription Agreement and
the Purchase and Exchange Form, as well as to discharge the
Subscriber's obligations to FuturesAccess.
If an Entity (e.g., a corporation, partnership, limited liability
company or trust), the Subscriber is duly authorized and qualified
to become an Investor. If the Subscriber is a passive investment
vehicle, the sponsor of the Subscriber either is duly registered
as a "commodity pool operator" with the Commodity Futures Trading
Commission and a member in good standing of the National Futures
Association in such capacity or is exempt from such registration.
(2) The person (the "Signatory"; the Subscriber and the Signatory to
be referred to collectively as the Subscriber, unless the context
otherwise requires) executing and delivering the Program
Subscription Agreement Signature Page and any Purchase and
Exchange Form Signature Page or making an investment or exchange
into or from any FuturesAccess Fund on behalf of the Subscriber
has been duly authorized by the Subscriber to do so. The
Subscriber has full right and power to comply with the terms of
this Program Subscription Agreement and the Purchase and Exchange
Form, as well as to discharge its obligations to FuturesAccess,
including under the General Form of Operating Agreement of the
FuturesAccess Fund (the "Operating Agreement").
Entity Subscribers must confirm that they are authorized to invest
in the FuturesAccess Funds, each of which is a speculative,
non-traditional investment. Many Entity investors may not, in
fact, be authorized -- pursuant to their charter documents,
investment policies or other applicable provisions -- to invest in
the FuturesAccess Funds.
(3) The Subscriber has had substantive business dealings with Xxxxxxx
Xxxxx and/or a Xxxxxxx Xxxxx Financial Advisor for at least six
months, and believes that Xxxxxxx Xxxxx and/or the Subscriber's
Xxxxxxx Xxxxx Financial Advisor should have sufficient information
to be able to assess the Subscriber's financial position,
knowledge and sophistication.
(4) The Subscriber (and the Subscriber's financial advisors, if any)
has sufficient knowledge and experience in financial and business
matters that the Subscriber is capable of evaluating the merits
and risks of an investment in a FuturesAccess Fund and of making
an informed investment decision regarding the purchase of the
Units, and the Subscriber is able to bear the economic risk of a
speculative investment such as the FuturesAccess Funds, including
the risk of losing the Subscriber's entire investment. The
Subscriber understands that investment in the FuturesAccess Funds
is suitable only for a limited portion of the risk segment of the
Subscriber's portfolio.
(5) The Subscriber (and the Subscriber's financial advisors, if any)
will (i) receive and carefully review a copy of the Confidential
Program Disclosure Document, the FuturesAccess Fund Descriptions
and the FuturesAccess Fund Offering Documents relating to each
FuturesAccess Fund in which the Subscriber proposes to invest, and
(ii) carefully evaluate and understand the various risks of such
investment before submitting a Purchase and Exchange Form
Signature Page to subscribe to such FuturesAccess Fund. The
Subscriber will only do so if the Subscriber can afford to bear
such risks.
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(6) The Subscriber (and the Subscriber's financial advisors, if any)
has been furnished with any materials the Subscriber has requested
relating to any FuturesAccess Fund, its proposed operations, the
private placement of the Units, the Trading Advisors and any other
matters related thereto.
(7) If the Subscriber is an Entity, the Subscriber was not formed for
the specific purpose of investing in any FuturesAccess Fund and no
more than 40% of its assets are invested in any FuturesAccess
Fund, investors in the Subscriber participate in investments made
by the Subscriber on a pro rata basis in accordance with each such
investor's interest in the Subscriber (except as necessary to
comply with applicable laws or regulations), and the Subscriber's
assets are not considered to constitute assets of any "employee
benefit plan" as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), regardless of whether
such employee benefit plan is subject to ERISA, or any "plan" as
defined in Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), regardless of whether such plan is subject
to Section 4975 of the Code.
(8) If the Subscriber is an insurance company using assets of its
general account to purchase Units, the Subscriber hereby
represents and warrants that the percentage of such assets used to
purchase the Units of any FuturesAccess Fund that represents the
assets of "employee benefit plans" does not exceed the percentage
indicated on the Program Subscription Agreement Signature Page.
B. Restrictions on Exchanges and Transfers
(1) The Subscriber acknowledges that MLAI is under no obligation to
maintain the Exchange Privilege of FuturesAccess and that such
Exchange Privilege may be terminated at any time. The Subscriber
must not invest in any FuturesAccess Fund in reliance on the
continuation of the Exchange Privilege.
(2) Certain FuturesAccess Funds may be subject to redemption fees
and/or other liquidity restrictions. In the event that one or more
FuturesAccess Funds suspend redemptions or the calculation of net
asset value, the Exchange Privilege with respect to such
FuturesAccess Fund(s) will also be suspended.
(3) The Subscriber acknowledges that: (i) the transfer of the
Subscriber's Units is subject to restrictions in the Operating
Agreement and requires the approval of MLAI, which approval may be
withheld in its sole discretion; (ii) the Units may not be
transferred to any person that is not an "accredited investor" (as
defined in Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")); (iii) investments in the
FuturesAccess Funds are illiquid; (iv) no market exists for the
Units, and none is expected to develop; and (v) no FuturesAccess
Fund will be listed on any exchange or otherwise regularly traded.
C. Disclosures
(1) The Subscriber confirms that none of MLAI, the FuturesAccess
Funds, the Trading Advisors, the Selling Agent or any associate,
affiliate, representative or advisor of any of the foregoing,
guarantees the success of an investment in any FuturesAccess Fund
or that substantial losses will not be incurred on such
investment.
(2) The Subscriber understands that the Selling Agent is not
guaranteeing or assuming responsibility for the operation or
possible liabilities of MLAI, any FuturesAccess Fund or any
Trading Advisor.
(3) The Subscriber understands that MLAI is an indirect subsidiary of
Xxxxxxx Xxxxx & Co., Inc. ("ML&Co."), as well as an affiliate of
the Selling Agent. The Subscriber further understands that MLAI
may assign its interest as Sponsor or Program Manager as described
in the Operating Agreements of the FuturesAccess Funds.
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(4) The Subscriber understands that, as disclosed in the Confidential
Program Disclosure Document, MLPF&S receives substantial brokerage
commissions from the FuturesAccess Funds. Such brokerage
commissions were not negotiated at arm's-length.
(5) The Subscriber acknowledges and agrees to the investment of the
FuturesAccess Funds' cash as described under "Interest Income
Arrangements" in the Part One (A) Confidential Program Disclosure
Document: FuturesAccessSM Program General Information.
(6) The Subscriber acknowledges and understands that Xxxxxxx Xxxxx may
make the K-1s prepared for the Subscriber in connection with the
Subscriber's investments in the Program Fund(s) accessible to the
Subscriber's Xxxxxxx Xxxxx Financial Advisor, and consents to its
Financial Advisor having access to the Subscriber's K-1s.
D. Tax Issues
(1) The Subscriber confirms, under penalty of xxxxxxx, that the
Subscriber is a U.S. Person, as such term is defined in Section
7701(a)(30) of the Code, and the Subscriber undertakes to advise
the FuturesAccess Fund and MLAI promptly in writing if the
Subscriber is no longer a U.S. Person during the term of the
Subscriber's investment in the FuturesAccess Fund. The Subscriber
understands that if at any time it ceases to be a U.S. Person, it
may be subject to U.S. withholding tax or other consequences as
well as being required to redeem out of the Program.
(2) The Subscriber confirms that, unless otherwise indicated in
Section 8 of the Program Subscription Agreement Signature Page,
the Subscriber is not subject to backup withholding. The
Subscriber understands that the Program will not accept
subscriptions from the Subscriber if the Subscriber is subject to
backup withholding.
X. Xxxxxxxx and Updating of Subscriber Information
(1) The Subscriber represents that all the information, financial or
otherwise, which the Subscriber has furnished to MLAI, the Selling
Agent or the Subscriber's Xxxxxxx Xxxxx Financial Advisor in
connection with subscribing for Units in any FuturesAccess Fund,
or which is set forth on the Program Subscription Agreement
Signature Page and any Purchase and Exchange Form Signature Page,
including all representations, warranties and agreements contained
herein, is correct and complete as of the date on which such
information was furnished, and if there should be any material
change in such information, the Subscriber will immediately notify
MLAI and the Selling Agent and furnish such revised or corrected
information to MLAI.
(2) The Subscriber agrees that the representations, warranties and
agreements contained in this Program Subscription Agreement or a
Purchase and Exchange Form Signature Page, including all
representations, warranties and agreements contained therein,
shall be deemed to be repeated as of the date the Subscriber
purchases Units of any FuturesAccess Fund.
(3) The Subscriber agrees that the representations, warranties and
agreements contained in this Program Subscription Agreement, and
all other information regarding the Subscriber set forth on the
Program Subscription Agreement Signature Page, or the relevant
Purchase and Exchange Form Signature Page(s), and any or all other
information which the Subscriber discloses to his or her Xxxxxxx
Xxxxx Financial Advisor, may be used as a defense in any actions
relating to any FuturesAccess Fund or the offering of its Units,
and that it is only on the basis of such representations,
warranties, agreements and other information that MLAI may be
willing to accept the Subscriber's subscription to any
FuturesAccess Fund.
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F. Trustees, Agents, Representatives and Nominees
If the Subscriber is acting as trustee, agent, representative or nominee
for an investor (a "Beneficial Owner"), the Subscriber understands and
acknowledges that the representations, warranties and agreements made
herein are made by the Subscriber (A) with respect to the Subscriber and
(B) with respect to the Beneficial Owner. The Subscriber further
represents and warrants that it has all requisite power and authority
from said Beneficial Owner to execute and deliver the Program
Subscription Agreement Signature Page and any related Purchase and
Exchange Form Signature Page as well as to invest in any FuturesAccess
Fund. The Subscriber also agrees to indemnify each FuturesAccess Fund,
MLAI and their respective affiliates and agents for any and all costs,
fees and expenses (including legal fees and disbursements) in connection
with any damages resulting from any misrepresentation or misstatement of
the Subscriber contained herein or therein or made by the Subscriber to
the Subscriber's Xxxxxxx Xxxxx Financial Advisor, or the assertion of
the Subscriber's lack of proper authorization from the Beneficial Owner
to execute and deliver the Program Subscription Agreement Signature Page
or the Purchase and Exchange Form Signature Page or to discharge the
Subscriber's obligations hereunder or thereunder.
G. Money Laundering Prevention
The Subscriber's subscription monies were not derived from activities
that may contravene United States (federal or state) or international
anti-money laundering laws and regulations. The Subscriber is not (i) an
individual, entity or organization named on a United States Office of
Foreign Assets Control ("OFAC") "watch list" and does not have any
affiliation with any kind of such individual, (ii) a foreign shell bank,
(iii) a person or entity resident in or whose subscription funds are
transferred from or through a jurisdiction identified as non-cooperative
by the Financial Action Task Force or (iv) a senior foreign political
figure,(1) an immediate family member(2) or close associate(3) of a
senior foreign political figure within the meaning of the USA PATRIOT
Act of 2001.(4) The Subscriber agrees to promptly notify MLAI should it
become aware of any change in the information set forth in this
representation. The Subscriber acknowledges that, by law, MLAI may be
obligated to "freeze the account" of the Subscriber, either by
prohibiting additional subscriptions, declining any redemption requests
and/or segregating the assets in the account in compliance with
governmental regulations, and MLAI may also be required to report such
action and to disclose the Subscriber's identity to OFAC. The Subscriber
represents and warrants that all of the information which it has
provided to the Program in connection with the Subscription Document is
true and correct, and agrees to provide any information MLAI or its
agents deem necessary to comply with its anti-money laundering program
and related responsibilities from time to time. If the Subscriber has
indicated in these Subscription Documents that it is an intermediary
subscribing in the Program as a record owner in its capacity as agent,
representative or nominee on behalf of one or more underlying investors
("Underlying Investors"), it agrees that the representations, warranties
and covenants are made by it on behalf of itself and the Underlying
Investors.
II. Further Advice and Assurances. The Subscriber agrees to provide additional
information regarding its investment experience, financial position or
otherwise, to MlAI or the Selling Agent, as they may reasonably request.
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(1) A "senior foreign political figure" is defined as a senior official in the
executive, legislative, administrative, military or judicial branches of a
non-U.S. government (whether elected or not), a senior official of a major
non-U.S. political party, or a senior executive of a non-U.S. government-owned
corporation. In addition, a "senior foreign political figure" includes any
corporation, business or other entity that has been formed by, or for the
benefit of, a senior foreign political figure.
(2) "Immediate family" of a senior foreign political figure typically includes
the figure's parents, siblings, spouse, children and in-laws.
(3) A "close associate" of a senior foreign political figure is a person who
is widely and publicly known to maintain an unusually close relationship with
the senior foreign political figure, and includes a person who is in a
position to conduct substantial domestic and international financial
transactions on behalf of the senior foreign political figure.
(4) The United States "Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001",
Pub. L. No. 107-56 (2001).
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If the Subscriber is an Entity, MLAI, in its sole discretion, may
require the Subscriber to submit a copy of its articles of
incorporation, by-laws, authorizing resolution, partnership agreement,
trust agreement, operating agreement or other related documents, as the
case may be. Alternatively, Entities may be required to submit an
opinion of counsel to the effect that the investment proposed to be made
in the FuturesAccess Fund(s) by the Subscriber is authorized.
III. Subscriber Eligibility. THE SUBSCRIBER WILL BE REQUIRED TO INDICATE ON
THE PROGRAM SUBSCRIPTION AGREEMENT SIGNATURE PAGE WHICH OF THE FOLLOWING
REQUIREMENTS THE SUBSCRIBER SATISFIES IN ORDER TO QUALIFY AS AN "ACCREDITED
INVESTOR," AS DEFINED IN REGULATION D UNDER THE SECURITIES ACT.
A. Accredited Investor Requirements
Individual Subscribers
(1) An individual that has an individual net worth or joint net worth
with such individual's spouse, in excess of $1,000,000. "Net
worth" for these purposes means the value of total assets at fair
market value, including home, home furnishings and automobiles,
less total liabilities.
or
(2) An individual that (i) had individual income (exclusive of any
income attributable to such individual's spouse) of more than
$200,000 for each of the past two years or joint income with such
individual's spouse in excess of $300,000 in each of those years
and (ii) reasonably expects to reach the same individual income
level, or the same joint income level, as the case may be, in the
current year.
Entity Subscribers
(3) A corporation, partnership, limited liability company,
Massachusetts or similar business trust or tax-exempt organization
as defined in Section 501(c)(3) of the Code, that (i) has total
assets in excess of $5,000,000 and (ii) was not formed for the
specific purpose of investing in the FuturesAccess Fund in
question.
or
(4) A revocable trust which may be amended or revoked at any time by
the grantors thereof, and of which all of the grantors are
"accredited investors" under either Section III.B(1) or Section
III.A(2) above.
or
(5) A trust (i) that has total assets in excess of $5,000,000, (ii)
that was not formed for the specific purpose of investing in the
FuturesAccess Fund in question and (iii) the investment decisions
of which are directed by a person who has such knowledge and
experience in business and financial matters as to be capable of
evaluating the merits and risks of an investment in such
FuturesAccess Fund.
or
(6) A trust for which a bank or savings and loan association is acting
as fiduciary in making the investment decision to subscribe to the
FuturesAccess Fund in question.
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or
(7) A bank as defined in Section 3(a)(2) of the Securities Act, acting
in its fiduciary or individual capacity, or a savings and loan
association or other institution as defined in Section 3(a)(5) of
the Securities Act.
or
(8) An insurance company as defined in Section 2(13) of the Securities
Act, acting in its individual capacity.
or
(9) A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended.
or
(10) An investment company registered under the Investment Company Act
of 1940, as amended (the "Company Act") or a business development
company as defined in Section 2(a)(48) of the Company Act.
or
(11) 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.
or
(12) 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, which
plan has total assets in excess of $5,000,000.
or
(13) A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as amended.
or
(14) An employee benefit plan within the meaning of Title I of ERISA
where (i) the investment decision with respect to this investment
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, (ii) the employee
benefit plan has assets in excess of $5,000,000 or (iii) the plan
is a self-directed plan, with investment decisions made solely by
persons who are "accredited investors," as defined in the
Securities Act.
or
(15) An Entity whose equity owners are each "accredited investors,"
i.e., persons meeting the requirements set forth in any of
Sections III.A(1)-(14) above.
IV. Indemnity. The Subscriber agrees to indemnify and hold harmless each
FuturesAccess Fund, MLAI, the Selling Agent and each Investor in respect of
all claims, actions, demands, losses, costs, expenses and damages, whether
involving such parties or third parties, resulting from any inaccuracy in any
of the Subscriber's representations or warranties made to each FuturesAccess
Fund, MLAI, the Selling Agent and the Subscriber's Xxxxxxx Xxxxx Financial
Advisor or from any breach of any of the Subscriber's agreements contained in
this Program Subscription Agreement (including the Program Subscription
Agreement Signature Page) or in any of the Subscriber's Purchase and Exchange
Forms
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(including the Purchase and Exchange Form Signature Page), or from any
unsuccessful securities proceeding brought by the Subscriber against any
FuturesAccess Fund, MLAI or the Selling Agent.
V. Governing Law; Consent To Jurisdiction. THIS PROGRAM SUBSCRIPTION
AGREEMENT AND ANY RELATED PURCHASE AND EXCHANGE FORM SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. THE PARTIES HERETO CONSENT TO THE JURISDICTION OF THE STATE AND FEDERAL
COURTS IN THE CITY, COUNTY AND STATE OF NEW YORK WITH RESPECT TO ANY
PROCEEDING OR CLAIM ARISING HEREUNDER, THEREUNDER OR OTHERWISE IN RESPECT OF
THE PROGRAM.
VI. Power of Attorney. In connection with the acquisition of Units pursuant
to this Program Subscription Agreement (and the related Program Subscription
Agreement Signature Page) and a Purchase and Exchange Form (and the related
Purchase and Exchange Form Signature Page), the Subscriber does hereby (in
addition to, and not by way of limitation of, the Power of Attorney included
in Section 10.02 of the Operating Agreement) irrevocably constitute and
appoint MLAI and each officer thereof, individually, as the Subscriber's true
and lawful representative and attorney-in-fact, with full power of
substitution, in the Subscriber's name, place and stead: (a) (i) to receive
and pay over to the related FuturesAccess Fund(s) on behalf of the Subscriber,
to the extent set forth in the Operating Agreement, all funds received
hereunder, and (ii) to complete or correct, on behalf of, and at the direction
of, the Subscriber, all documents to be executed by the Subscriber in
connection with the Subscriber's subscription for Units, including, without
limitation, filling in or amending amounts, dates and other pertinent
information; and (b) to execute, acknowledge, swear to, file and record (if
applicable) on the Subscriber's behalf, and in the appropriate public offices
if relevant: (i) the Operating Agreement (including the power of attorney
included therein); (ii) all instruments which MLAI may deem necessary or
appropriate to reflect virtually any amendment, change or modification of the
Operating Agreement or the Certificate of Formation, including of related
FuturesAccess Fund(s); and (iii) all instruments, agreements and documents
which MLAI considers necessary to, or appropriate for, the operation of the
related FuturesAccess Fund(s) as contemplated in the Confidential Program
Disclosure Document and the Operating Agreement.
The Subscriber agrees and acknowledges that MLAI and the other Investors are
relying on the continued validity of the foregoing Power of Attorney, and that
the Power of Attorney granted hereby shall be deemed to be coupled with an
interest, shall be irrevocable, and shall survive and not be affected by the
subsequent death, incapacity, termination, bankruptcy, insolvency or
dissolution of the Subscriber.
VII. General. The Subscriber understands that this Program Subscription
Agreement (including the Program Subscription Agreement Signature Page), any
Purchase and Exchange Form (including the Purchase and Exchange Form Signature
Page) submitted by the Subscriber, and the representations, warranties,
agreements and other provisions hereof and thereof: (a) shall be binding upon
the Subscriber and the Subscriber's legal representatives, successors and
assigns; (b) shall survive the Subscriber's admission as an Investor; and (c)
may be executed (through the Signature Pages) by the Subscriber and accepted
by any FuturesAccess Fund in one or more counterparts as well as in facsimile,
each of which shall be considered an original and all of which together shall
constitute one instrument.
If any provision of this Program Subscription Agreement (including the Program
Subscription Agreement Signature Page) or any Purchase and Exchange Form
(including the Purchase and Exchange Form Signature Page) submitted by the
Subscriber is determined to be invalid or unenforceable under any applicable
law, then such provision shall be deemed inoperative to the extent, and only
to the extent, of such invalidity or unenforceability and only in the
jurisdiction which reaches such determination. Any such provision shall be
deemed modified to conform with such applicable law. Any provision hereof
which may be held invalid or unenforceable under any applicable law shall not
affect the validity or enforceability of any other provisions hereof, and to
this extent the provisions hereof shall be severable.
You may submit a Purchase and Exchange Form Signature Page together with the
Program Subscription Agreement Signature Page or separately. However, your
subscription cannot be processed until both have been received.
VIII. Legends.
U.S. Investors
S-8
IN MAKING AN INVESTMENT DECISION, SUBSCRIBERS MUST RELY ON THEIR OWN
EXAMINATION OF FUTURESACCESS, THE APPLICABLE FUTURESACCESS FUND(S) AND
THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED.
FUTURESACCESS HAS NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE
FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE
ADEQUACY OF THE CONFIDENTIAL PROGRAM DISCLOSURE DOCUMENT OR THE
FUTURESACCESS FUND DESCRIPTIONS THEREIN. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE UNITS ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT (A) WITH THE PRIOR WRITTEN
CONSENT OF MLAI, (B) AS PERMITTED UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM AND (C) AS PERMITTED UNDER THE COMPANY ACT. SUBSCRIBERS SHOULD
BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE RISKS OF AN INVESTMENT IN
THE FUTURESACCESS FUNDS FOR AN INDEFINITE PERIOD OF TIME.
THE INVESTOR (AND EACH EMPLOYEE, REPRESENTATIVE OR OTHER AGENT OF THE
INVESTOR) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY
KIND, THE TAX TREATMENT AND TAX STRUCTURE OF THE TRANSACTION AND ALL
MATERIALS OF ANY KIND (INCLUDING OPINIONS OR OTHER TAX ANALYSES) THAT
ARE PROVIDED TO THE INVESTOR RELATING TO SUCH TAX TREATMENT AND TAX
STRUCTURE.
For Georgia Investors Only.
THE UNITS HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH (13) OF THE
CODE SECTION 10-5-9 OF THE GEORGIA SECURITIES ACT OF 1973, AND MAY NOT
BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER
SUCH ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT.
U.S. Investors
S-9
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
PROGRAM SUBSCRIPTION AGREEMENT SIGNATURE PAGE
For the Use of U.S. Investors
By executing this Program Subscription Agreement Signature Page, the
Subscriber makes all of the representations, warranties, agreements,
acknowledgements and undertakings set forth in the Program Subscription
Agreement.
An investment in FuturesAccess is suitable only for sophisticated Investors
who have the financial resources and the willingness to accept the risks
inherent in an investment in FuturesAccess, and for whom an investment in
FuturesAccess does not represent a complete investment program. The risks
associated with an investment in FuturesAccess are described in the
Confidential Program Disclosure Document. The Subscriber should carefully read
the Confidential Program Disclosure Document prior to deciding whether to
invest in any FuturesAccess Fund.
The Subscriber hereby makes and affirms all representations, warranties and
agreements set forth on behalf of the Subscriber in the Program Subscription
Agreement.
1 REGISTRATION OF UNITS (Check one):
Must match the registration of the Xxxxxxx Xxxxx Account specified in
Section 2(b) below.
Individual Subscribers:
|_| Individual Ownership |_| Tenants in Common
(One signature required below) (all tenants must sign and initial below)
|_| Joint Tenants with Rights of Survivorship |_| Other (please specify): ________________
(all tenants must sign and initial below)
Entity Subscribers:
|_| Trust |_| Corporation
|_| Grantor |_| Partnership/Limited Liability Company
|_| Other (please specify): ________________
2 SUBSCRIBER INFORMATION: (Information must match the Xxxxxxx Xxxxx
Account type specified in Section 1 above.)
The Subscriber must provide all information exactly as it is to appear
on the records of FuturesAccess.
(a) Subscriber's Name:__________________________________________________
(b) Xxxxxxx Xxxxx Account to be Debited:________________________________
(c) Name of Xxxxxxx Xxxxx Financial Advisor:____________________________
(d) Social Security / Taxpayer ID Number (if Joint Subscribers,
provide both):______________________________________________________
(e) Residence Address (for Individuals):________________________________
(Street)
________________________________________________________________________________
(City) (State) (Zip Code)
U.S. Investors
Program Subscription Agreement Signature Page
SP-1
(f) Principal Place of Business (for Entities):_________________________
(Street)
________________________________________________________________________________
(City) (State) (Zip Code)
(g) Correspondence Address (if different from above):___________________
(Street)
________________________________________________________________________________
(City) (State) (Zip Code)
(h) Telephone Number:___________________________________________________
Business Home
(i) E-Mail Address:_____________________________________________________
(j) In correspondence, please address the Subscriber as: Dear:__________
(k) Date of Birth (for Individuals) (if Joint Subscribers, provide
both):______________________________________________________________
(l) Date of Organization (for Entities):________________________________
(m) Jurisdiction of Organization (for Entities):________________________
(n) Name of Contact Person (for Entities):______________________________
(o) Fiscal/Tax Year (for Entities):_____________________________________
3 SOLICITATION INFORMATION: The Subscriber first heard about FuturesAccess
from:
|_| Xxxxxxx Xxxxx Financial Advisor
|_| Other (please specify): __________________________
4 SUBSCRIBER REQUIREMENTS:
(If joint Subscribers, each must provide the required information and
initial such information.)
(a) The Subscriber is an "accredited investor," because the Subscriber
satisfies the following requirement, as set forth under Section
III.A of the Program Subscription Agreement. (See pages S-6 and
S-7.)
Please circle which requirement the Subscriber satisfies under
Section III.B and initial below: (circle only one)
Individual Subscriber:
III.A(1) III.A(2)
------------------------ ----------------------------------
(Initial here) (Initial here - Joint Subscribers)
Entity Subscribers:
III.A(3) III.A(4) III.A(5) III.A(6) III.A(7) III.A(8)
III.A(9) III.A(10) III.A(11) III.A(12) III.A(13) III.A(14)
III.A(15) (Please complete Item 4(c), below)
------------------------ ----------------------------------
(Initial here) (Initial here - Joint Subscribers)
U.S. Investors
Program Subscription Agreement Signature Page
SP-2
(b) If the Subscriber satisfies the requirements set forth under
Section III.A(15) above, the Subscriber represents and warrants
that it has confirmed that each equity owner of the Subscriber is
an "accredited investor" in its own right, and that MLAI, based
upon this representation, has a reasonable basis to accept the
Subscriber as an "accredited investor."
------------------------ ------------------------------------
(Initial here) (Initial here - Joint Subscribers)
5 SUITABILITY AND NATURE OF INVESTMENT:
The Subscriber understands that an investment in FuturesAccess is
speculative, illiquid, long-term, and does not represent a complete
investment program. The Subscriber confirms that it has (either alone or
with the Subscriber's financial advisors, if any) sufficient knowledge
and expertise to be able to evaluate the merits and risks of investing
in FuturesAccess. The Subscriber has considered the speculative and
illiquid nature of an investment in FuturesAccess within the context of
the Subscriber's total portfolio, understands that Units of the
FuturesAccess Funds are only suitable for a limited portion of the risk
segment of the Subscriber's overall portfolio, and can bear the various
risks of such an investment.
------------------------ ------------------------------------
(Initial here) (Initial here - Joint Subscribers)
6 OTHER INFORMATION:
Insurance Company General Account: The percentage of assets in such
account used to purchase Units that represents the assets of "employee
benefit plans" does not exceed ______%.
Employee Benefit Plan Assets: Please check the following box if 25% or
more of any class of the equity securities of the Subscriber is owned by
a benefit plan organized by an employer or employee organization to
provide retirement, deferred compensation, medical, death, disability,
unemployment, vacation or similar benefits to employees (including IRAs,
XXXXX and 401(k) plans) |_|.
7 RELATED ACCOUNTS:
PLEASE LIST ANY OTHER ACCOUNTS OF WHICH YOU OR A MEMBER OF YOUR
IMMEDIATE FAMILY IS THE PRIMARY BENEFICIARY OR BENEFICIAL OWNER AND
WHICH INVEST IN FUTURESACCESS.
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
U.S. Investors
Program Subscription Agreement Signature Page
SP-3
8 INTERNAL REVENUE CODE CERTIFICATION:
The Subscriber hereby represents, warrants and certifies as follows:
--------------------------------------------------------------------------
(a) Under penalty of perjury, by signature below, the Subscriber
certifies that the Social Security/Taxpayer ID number set forth
above is the true, correct and complete Social Security/Taxpayer
ID number of the Subscriber, and the Subscriber is a taxable
United States person.
(b) Under penalty of perjury, by signature below, the Subscriber
certifies that the Subscriber is not subject to backup
withholding, either because the Subscriber is exempt from backup
withholding, or because (i) the Subscriber has not been notified
by the Internal Revenue Service that the Subscriber is subject to
backup withholding, or (ii) the Internal Revenue Service has
notified the Subscriber that the Subscriber is no longer subject
to backup withholding.
(c) CROSS OUT ITEM (b) ABOVE IF YOU HAVE BEEN NOTIFIED BY THE INTERNAL
REVENUE SERVICE THAT YOU ARE CURRENTLY SUBJECT TO BACKUP
WITHHOLDING BECAUSE YOU HAVE FAILED TO REPORT ALL INTEREST AND
DIVIDENDS ON YOUR TAX RETURN.
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The Subscriber agrees to notify MLAI within 30 days of any change in the
information set forth in this Section 8.
9 SIGNATURE(S):
By signing below, the Subscriber represents that: (a) if an individual,
the Subscriber is at least 21 years old and legally competent; (b) if an
Entity, (i) the Subscriber has been duly formed and is validly existing
and is in good standing under the laws of the jurisdiction of its
formation with full power and authority to enter into the transactions
contemplated by the Confidential Program Disclosure Document, the
Program Subscription Agreement, each applicable Purchase and Exchange
Form and each applicable Operating Agreement, including the purchase of
Units, (ii) based upon a review of the Subscriber's constitutional
documents and/or based on consultation with counsel or advisors, the
Subscriber is authorized to invest in FuturesAccess, and (iii) the
Signatory has been authorized by the Subscriber to execute and deliver
this Program Subscription Agreement Signature Page and any related
Purchase and Exchange Form Signature Page submitted or to be submitted
by the Subscriber; (c) has received and read the offering materials
related to FuturesAccess and the relevant FuturesAccess Fund(s); (d)
this Program Subscription Agreement Signature Page and any related
Purchase and Exchange Form Signature Page have been or will be duly and
validly authorized, executed and delivered by the Subscriber; and (e)
this Program Subscription Agreement Signature Page, any related Purchase
and Exchange Form Signature Page and any related Operating Agreement
submitted or to be submitted by the Subscriber constitutes or will
constitute the valid, binding and enforceable agreement of the
Subscriber.
--------------------------------------------------------------------------
The Internal Revenue Service does not require your consent to any
provision of this document other than the certifications required to
avoid backup withholding.
--------------------------------------------------------------------------
----------------------------------------------------
(Signature of Individual Subscriber)
----------------------------------------------------
(Signature of Joint Subscriber, if applicable)
Dated:
-----------------------------------------
----------------------------------------- ----------------------------------------------------
Please check the following box if the (Name of Entity Subscriber)
Subscriber is a Xxxxxxx Xxxxx officer or
employee: |_|
-----------------------------------------
By:
-------------------------------------------------
Name:
Title:
U.S. Investors
Program Subscription Agreement Signature Page
SP-4
10 FINANCIAL ADVISOR ATTESTATION:
The undersigned Financial Advisor ("FA") hereby certifies that the
Subscriber is known to and is a client of the undersigned, and has had
substantive discussions with the undersigned regarding the Subscriber's
investment objectives. The FA confirms that he/she has a reasonable
basis for believing (i) that all of the representations made by the
Subscriber in the Program Subscription Agreement are true and correct,
and (ii) based on information obtained from the Subscriber concerning
its investment objectives, other investments, financial situation and
needs, and any other information known to the FA, that an investment in
FuturesAccess is suitable for the Subscriber.
--------------------------------------------- -----------------------------------------------------
Financial Advisor Production Number Financial Advisor Signature
FINANCIAL ADVISORS SHOULD RETURN THE COMPLETED AND
EXECUTED PROGRAM SUBSCRIPTION AGREEMENT SIGNATURE PAGE BY OVERNIGHT MAIL TO:
Xxxxxxx Xxxxx Alternative Investments LLC
000 Xxxxxxxx Xxxx Xxxx Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
Phone: (0-000) 000-0000 Fax: (000) 000-0000
Attn: Document Control
----------------------------
Subscribers should retain a copy of the Program Subscription Agreement
as well as a copy of this Program Subscription Agreement Signature Page
for their records.
----------------------------
U.S. Investors
Program Subscription Agreement Signature Page
SP-5
----------------------------
PLACE LABEL HERE
----------------------------
