EXHIBIT B
SUBSCRIPTION AGREEMENT AND POWER OF ATTORNEY
INSTRUCTIONS: THIS SUBSCRIPTION AGREEMENT MUST BE COMPLETED BY ALL INITIAL
INVESTORS. SEE PAGE B-4 FOR ADDITIONAL INSTRUCTIONS. IF YOU ARE ALREADY A MEMBER
AND ARE MAKING A SUBSEQUENT INVESTMENT, PLEASE USE AN ADDITIONAL INVESTMENT FORM
(SEE EXHIBIT D). IF YOU HAVE ANY QUESTIONS REGARDING COMPLETION OF THIS FORM,
PLEASE CALL XXXX XXXXXXX AT 000-000-0000.
ACP Continuum Return Fund II, LLC
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned hereby irrevocably agrees to purchase the membership units
("Units") that may be purchased with the subscription amount which the
undersigned has indicated below and that the undersigned is otherwise eligible
to purchase. The undersigned acknowledges that the Board of Directors (the
"Board") of ACP Continuum Return Fund II, LLC (the "Company") has the discretion
to place the subscribed amount in the Company, based on whether the undersigned
is an "accredited investor." Terms not defined herein have the meaning set forth
in the Company's Confidential Private Placement Memorandum ("Memorandum"). The
undersigned acknowledges and agrees that, unless waived by the Company,
purchases must be for a minimum of $25,000, that additional purchases must be
for a minimum of $10,000 and that the Company may accept or reject any
subscription in whole or in part.
INVESTOR REPRESENTATIONS AND AGREEMENTS
In connection with the sale of Units to the undersigned and to induce the
Company to issue the Units, the undersigned hereby represents, warrants and
agrees as follows:
1. The undersigned, by reason of the knowledge and experience in financial
and business matters of the undersigned and the access which the undersigned has
had to information about the Company (including an opportunity to ask questions
of the officers of the Company and receive answers concerning the Company's
operations), believes that the undersigned is capable of evaluating the merits
and risks of an investment in the Units.
2. The undersigned acknowledges receipt of a copy of the Memorandum,
setting forth the relevant terms and conditions of this investment, as well as
all such information as the undersigned deems necessary or appropriate as a
prudent and knowledgeable investor in evaluating the purchase of Units. The
undersigned has carefully read the Memorandum, including particularly the
portions thereof entitled "Risk Factors" and "Fees and Expenses." The
undersigned acknowledges that the Board has made available the opportunity to
obtain additional information to verify the accuracy of the information
contained in the Memorandum and to evaluate the merits and risks of this
investment. The undersigned acknowledges that the undersigned has had an
opportunity to ask questions of the officers and representatives of the Company
regarding the prospects of the Company or otherwise related to the merits and
risks of this investment and, to the extent the undersigned has taken advantage
of such opportunity, has received satisfactory answers concerning the terms and
conditions of the offering and the information in the Memorandum. In reaching
the conclusion that the undersigned desires to acquire Units, the undersigned
acknowledges, represents and warrants that the undersigned has carefully
evaluated the financial resources, net worth and investment position of the
undersigned, including with respect to natural persons all investments in
securities that are not readily marketable, and the risks associated with this
investment and acknowledges, represents and warrants that the undersigned is
able to bear the economic risks of this investment, could sustain a loss of the
entire investment in the Units and, with respect to natural persons, has
adequate net worth to provide for current needs and no need for liquidity in the
Units.
3. The undersigned acknowledges that pursuant to the terms of the Company's
Operating Agreement, Units in the Company are non-transferable without the
written consent of the Board, and that no member will have the right to require
the Company to redeem Units or portions thereof. Members may not be able to
liquidate their
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investment other than as a result of repurchases of Units by the Company, which
are scheduled to occur at least twice a year. In addition, the undersigned
hereby represents, warrants and agrees that the undersigned is acquiring Units
solely for the account of the undersigned, for investment and not on behalf of
other persons or with the view to the distribution or resale thereof. The
undersigned further represents that the financial condition of the undersigned
is such that the undersigned is not under any present necessity or constraint to
dispose of any of such Units to satisfy any existing or contemplated debt or
undertaking. The undersigned further represents that the undersigned has no
present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for or which is likely to compel a
disposition in any manner of any of the Units, that the undersigned is not aware
of any circumstances presently in existence which are likely to promote in the
future any disposition by the undersigned of the Units and that the undersigned
does not have in mind any sale of any Units upon the occurrence or nonoccurrence
of any predetermined or undetermined event or circumstance.
4. The undersigned understands that the Company is not currently issuing
certificates to members.
5. The undersigned understands that no federal or state agency has
recommended or endorsed the purchase of the Units or passed upon the adequacy of
the information set forth in the Memorandum.
6. The undersigned acknowledges that neither the Company, the Board nor any
person acting on behalf of the Company or the Board offered the Units by means
of any form of general advertising, such as media advertising or seminars.
7. All of the negotiations concerning this transaction have been carried on
solely by the parties and their respective employees, counsel and financial
advisors. The undersigned has not dealt with any unaffiliated broker or other
person who could claim a broker's fee or other remuneration with regard to any
purchase of the Units nor is the undersigned aware of any commission or other
remuneration being paid or given or to be paid or given directly or indirectly
with regard to such purchase. The undersigned has relied upon the undersigned's
own legal counsel as to all legal matters and questions presented with reference
to the offering and has relied upon the accountant or other financial advisor of
the undersigned and/or the financial experience of the undersigned as to all
financial matters and questions presented with reference to this offering.
8. The undersigned agrees that the Board's acceptance of this Subscription
Agreement on behalf of the Company shall in no way obligate the Company to
proceed with the offering described in the Memorandum or to complete such
offering and acknowledges that the Company has the right, in its sole and
absolute discretion, to abandon the offering at any time prior to completion
thereof and to return the purchase price of the Units, without interest.
9. The undersigned hereby agrees that this subscription is irrevocable and
that the representations and warranties set forth in this Subscription Agreement
shall survive the acceptance hereof by the Board on behalf of the Company and
that said representations and warranties will be deemed reaffirmed at any time
the undersigned makes an additional purchase of Units.
10. This Subscription Agreement and the representations set forth herein
shall become effective and binding upon the undersigned, and upon the
undersigned's heirs, legal representatives, successors and assigns, upon the
Board's acceptance hereof, on behalf of the Company, in the space provided
below.
11. The undersigned fully comprehends the terms, conditions and
consequences related to this offering, including the possibility that the
undersigned must hold the Units indefinitely, and agrees that the laws of the
State of Delaware shall apply to this transaction.
12. The undersigned acknowledges that by executing this Subscription
Agreement that the undersigned is appointing the Board as the undersigned's
attorney-in-fact for, among other purposes, execution of the Operating Agreement
and that such execution by the Board as attorney-in-fact for the undersigned
will obligate the undersigned as if the undersigned executed the Operating
Agreement.
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POWER OF ATTORNEY
The undersigned hereby irrevocably constitutes, and empowers to act alone,
the Board, as the undersigned's attorney-in-fact with authority to execute,
acknowledge and swear to all instruments and file all documents requisite to
carry out the intention and purpose of this Subscription Agreement and Power of
Attorney, including without limitation, the Company's Operating Agreement, all
amendments to the Operating Agreement and any schedules thereto effected in
accordance with the Operating Agreement, all amendments to the Certificate of
Formation filed with the Delaware Secretary of State and the Operating Agreement
and all business certificates and other certificates and amendments thereto to
be executed and/or filed from time to time in accordance with applicable laws.
This Power of Attorney authorizes the Board to appoint its substitute under this
Power of Attorney.
The foregoing appointment shall be deemed to be a power coupled with an
interest in recognition of the fact that each of the members will be relying
upon the power of the manager to act as contemplated in the Operating Agreement
in such filing and other action by it on behalf of the Company. The foregoing
power of attorney shall be irrevocable and shall survive the incapacity,
bankruptcy, insolvency, death, dissolution or termination of the undersigned.
The undersigned acknowledges that the terms of the Operating Agreement
permit certain amendments to the Operating Agreement, the schedules thereto and
the articles of organization to be effected and certain other actions to be
taken or omitted by, or with respect to, the Company, in each case with the
approval of less than all the members. If, and when (i) such an amendment is
proposed or such an action is proposed to be taken or omitted by, or with
respect to, the Company which requires, under the terms of the Operating
Agreement, actual consent of less than all the members, and (ii) the consent of
those members whose consent is required has been given in the manner
contemplated by the Operating Agreement, then each non-consenting member agrees
that the attorney-in-fact specified above, with full power of substitution, is
hereby authorized and empowered to make, swear to, verify, deliver, record, file
and/or publish, for and on behalf of such non-consenting member, and in such
member's name, place and stead, any and all instruments and documents which may
be necessary or appropriate under Delaware law and any and all other applicable
laws and regulations to permit such amendment to be lawfully made or action
lawfully taken or omitted. Each consenting and non-consenting member is fully
aware that such member and each other member had executed this, or a similar,
Power of Attorney and that each member will rely on the effectiveness of such
powers with a view to the orderly administration of the Company's affairs.
INDEMNIFICATION
The undersigned xxxxxx agrees to indemnify the Board from liability to the
extent provided in Section 3.7 of the Operating Agreement.
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INSTRUCTIONS
1. For this Subscription Agreement and Power of Attorney to constitute a
valid subscription for membership Units, it must be executed in duplicate by the
undersigned and must be returned to the Board. A Subscription Agreement and
Power of Attorney may be accepted by the Board on behalf of the Company as of
the first day of each month.
2. This Subscription Agreement and Power of Attorney will become effective
only upon the Board's acceptance hereof, on behalf of the Company, in the space
provided below. If, after reviewing the qualifications of the undersigned, the
Board determines to accept this Subscription Agreement as to any or all of the
amount for which subscription is hereby made, the Board will designate which
Company the investor is eligible to invest in, execute this Subscription
Agreement and Power of Attorney in duplicate, and will return one executed copy
to the undersigned.
3. This Subscription Agreement and Power of Attorney and accompanying
documents should be returned to the Company c/o the Board of Directors at the
following address, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000.
Payment should be made by certified check payable to the Company. Wire transfer
instructions to the Company's custodial account are available by contacting
Xxxx Xxxxxxx at 000-000-0000.
4. If the investor is an entity (I.E., a trust, partnership, corporation or
other organization), the Certificate of Signatory attached hereto must be
executed by a duly authorized person.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this ____ day of _________________, _____.
MANNER IN WHICH TITLE IS TO BE HELD (check one)
___ Individual Ownership ___ Partnership(1)
___ Joint Tenant with Right of Survivorship ___ Corporation(1)
(both parties must sign) ___ Other(1)__________
___ Trust/IRA(1)
___ Tenants in Common
(both parties must sign)
Subscription Amount $______________________________ (Minimum $25,000)
INDIVIDUALS, TRUSTS, PARTNERSHIPS OR JOINT OWNER OR ADDITIONAL REQUIRED SIGNATURE
OTHER ENTITIES(2) (IF ANY)
INSTRUCTION: THIS COLUMN MUST BE COMPLETED INSTRUCTION: THIS COLUMN SHOULD ONLY BE
BY ALL INVESTORS. COMPLETED FOR JOINT TENANTS OR TENANTS IN
COMMON (OR FOR AN ENTITY THAT REQUIRES TWO
SIGNATURES).
------------------------------------------ ------------------------------------------
Name of Individual or Entity Name of Individual or Entity
------------------------------------------ ------------------------------------------
Signature Signature
----------
(1) Entities (including trusts and partnerships) must also have the Certificate
of Signatory attached hereto executed.
(2) By executing this Subscription Agreement and inserting the Tax
Identification or Social Security Number, the undersigned is certifying (i)
that the Social Security or Tax Identification number is true and complete,
and (ii) that the undersigned, or entity on whose behalf the undersigned is
signing, is not subject to backup withholding either because the person has
not been notified that such person is subject to backup withholding as a
result of a failure to report all interest or dividends, or the Internal
Revenue Service has notified the person that such person is no longer
subject to backup withholding. (Please cross out the statement in (ii) if
the IRS has notified the subscriber that such person is subject to backup
withholding because of underreporting of interest or dividends.)
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------------------------------------------ ------------------------------------------
Title (if any) Title (if any)
------------------------------------------ ------------------------------------------
Street Address Street Address
------------------------------------------ ------------------------------------------
City, State and Zip Code City, State and Zip Code
------------------------------------------ -----------------------------------------
Tax ID or Tax ID or
Social Security Number Social Security Number
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CERTIFICATE OF SIGNATORY
INSTRUCTION: THIS CERTIFICATE OF SIGNATORY SHOULD BE COMPLETED IF THE INVESTOR
IS AN ENTITY. IF TWO SIGNATURES ARE REQUIRED BY THE ENTITY, PLEASE COMPLETE A
CERTIFICATE OF SIGNATORY FOR EACH PERSON SIGNING THE SUBSCRIPTION AGREEMENT.
I, __________________________________, am the ________________________ of
_______________________________________ ("Entity").
I certify that I am empowered and duly authorized by the Entity to execute
and carry out the terms of the Subscription Agreement and Power of Attorney and
to purchase and hold the Units, and certify further that the Subscription
Agreement and Power of Attorney has been duly and validly executed on behalf of
the Entity and constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this ___ day of _________________.
--------------------------------
(Signature)
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ACCEPTANCE
The Board of Directors of ACP Continuum Return Fund II, LLC, on behalf of
ACP Continuum Return Fund II, LLC, hereby accepts the subscription embodied in
the Subscription Agreement and Power of Attorney as to $____________ of
membership Units, which shall be effective on ____________________, on all the
terms and conditions set forth herein and in the Memorandum.
ACP Continuum Return Fund II, LLC
By:
------------------------------------
Its:
-----------------------------------
Date:
----------------------------------
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EXHIBIT C
PURCHASER SUITABILITY QUESTIONNAIRE
INSTRUCTIONS: THIS QUESTIONNAIRE MUST BE COMPLETED BY ALL INITIAL INVESTORS.
PLEASE CALL XXXX XXXXXXX AT 000-000-0000 IF YOU HAVE ANY QUESTIONS ON
COMPLETING THIS QUESTIONNAIRE.
ACP Continuum Return Fund II, LLC
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned is furnishing the information contained herein to you in
order to enable you to determine whether the subscription of the undersigned to
purchase membership units ("Units") in ACP Continuum Return Fund II, LLC
(the "Company") may be accepted in accordance with the provisions of the
Securities Act of 1933, as amended ("Act"), including Section 4(2) thereof, and
Regulation D promulgated by the Securities and Exchange Commission thereunder.
The undersigned understands that (a) you will rely on the information contained
herein for the purposes of making such determination, (b) the Units will not be
registered under the Act in reliance upon the exemptions from registration
afforded by Section 4(2) of the Act and Regulation D promulgated thereunder and
(c) this Questionnaire is not an offer of any Units or any other securities to
the undersigned.
The undersigned hereby makes the following representations and provides the
following information:
(1) PLEASE INITIAL IN THE SPACE PROVIDED ALL APPLICABLE ITEMS IN SUBSECTION
(A), IF ANY, AND ONE ALTERNATIVE IN SUBSECTION (B), IF ANY.
(a) The undersigned is an "Accredited Investor" as defined in Rule 501(a)
under the Act because:
INDIVIDUALS
___ (i) The undersigned, individually or jointly with his or
her spouse, has a net worth in excess of $1,000,000;
or
___ (ii) The undersigned has had individual income in excess
of $200,000 or jointly with his or her spouse has
had income in excess of $300,000 in each of the two
most recent years and reasonably expects to have
income in excess of such levels in the current year;
or
TRUSTS/IRAS
___ (iii) The undersigned is a trust, with total assets in
excess of $5,000,000, not formed for the specific
purpose of acquiring the Units, whose purchases are
directed by a person who qualifies under either (i)
or (ii), above; or
___ (iv) The undersigned is a revocable grantor trust and the
grantors of such trust qualify as accredited
investors under either (i) or (ii), above; or
___ (v) The undersigned is an individual retirement account
(IRA) and the owner of such account qualifies as an
accredited investor under (i) or (ii), above; or
PARTNERSHIPS/CORPORATIONS OR OTHER ENTITIES
___ (vi) The undersigned is a corporation, partnership or
other entity, all the equity investors of which
satisfy either (i) or (ii), above; or
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___ (vii) The undersigned is a corporation or partnership
which was not formed for the specific purpose of
acquiring the Units, with total assets in excess of
$5,000,000; or
___ (viii) The undersigned is an employee benefit plan within
the meaning of Title I of ERISA (i) whose plan
fiduciary is either a bank, insurance company or
registered investment advisor or (ii) whose total
assets exceed $5,000,000. If the decision to invest
in the Company is NOT made by the plan fiduciary,
each participant in the plan must be an "accredited
investor."
(b) SELECT ONE OF THE FOLLOWING. Persons who do not qualify under one of
the following subsections may NOT purchase Units in the offering
regardless of whether they qualify under Section (a), above.
___ (i) The undersigned is a natural person with a net worth
(I.E., total assets minus total liabilities) of $1.5
million as of the date hereof, either alone or with
such person's spouse, or the undersigned will invest
at least $750,000 in the Company; or
___ (ii) The undersigned is a corporation, partnership,
association, joint stock company, trust or any other
organized group of persons ________________________
(insert form of organization) with a net worth
(I.E., total assets minus total liabilities) of $1.5
million as of the date hereof or the undersigned
will invest at least $750,000 in the Company. In
addition, the undersigned represents and warrants
that if the undersigned is (x) an entity that would
be a registered investment company but for the
exception provided from that definition in Section
3(c)(1) of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), (y) a
registered investment company under the Investment
Company Act or (z) a business development company
within the meaning of Section 202(a)(22) of the
Investment Advisers Act of 1940, as amended (the
"Investment Advisers Act"), each of its equity
owners independently meet the requirements of either
Subsection (b)(i), (b)(ii) or (b)(iii); or
___ (iii) The undersigned is an executive officer or director
of Ascendant Capital Partners, LLC (the "Investment
Manager") or employee of the Investment Manager who,
in connection with such person's regular functions
or duties participates in the investment activities
of the Investment Manager and has performed such
activities for the Investment Manager or another
investment adviser for at least 12 months.
(2) The undersigned is willing and able to bear the economic risk of an
investment in the Units in an amount equal to the total amount for which the
undersigned desires to subscribe. In making the foregoing statement, the
undersigned has given consideration to whether the undersigned can afford to
hold the Units indefinitely and whether, at the present time, the undersigned
can afford a complete loss of such investment. The undersigned has further
considered that the minimum investment in the Company is $25,000.
(3) Any purchase of Units will be solely for the account of the undersigned
and not for the account of any other person or with a view to any resale,
division or other distribution thereof.
(4) The undersigned hereby warrants and represents to you that (a) the
information contained herein is true, accurate and complete and may be relied
upon by you and (b) the undersigned will notify you immediately of any material
change in any of the information contained herein occurring prior to your
acceptance of any subscription from the undersigned with respect to the
undersigned's purchase of any Units now or in the future.
ITEMS (5)-(8) MUST BE PROVIDED BY EACH PROSPECTIVE OFFEREE:
(5) Name(s) of Offeree(s): _____________________________________________
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____________________________________
Age(s) (for natural persons only):________________________
(6) Home Address and Telephone Number: ____________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(7) Employer or Business Association and Position: ________________________
___________________________________________________________________________
___________________________________________________________________________
(8) Business Address and Telephone Number:_________________________________
___________________________________________________________________________
___________________________________________________________________________
IN WITNESS WHEREOF, the undersigned has executed this Purchaser Suitability
Questionnaire this ______ day of ____________, _____.
IF THE OFFEREE IS A CORPORATION,
IF THE OFFEREE IS AN INDIVIDUAL: PARTNERSHIP, TRUST OR OTHER ENTITY:
------------------------------------ ---------------------------------------
Signature of Offeree Print or Type Name of Offeree
By:
------------------------------------ ------------------------------------
Signature of Joint Offeree, if any
------------------------------------ ---------------------------------------
Print or Type Name(s) of Offeree(s) Print or Type Name and Title
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EXHIBIT D
ADDITIONAL INVESTMENT FORM
ACP Continuum Return Fund II, LLC
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned member of ACP Continuum Return Fund II, LLC (the "Company")
hereby makes the following additional investment in the Company in accordance
with the terms of the Operating Agreement of the Company and the Confidential
Private Placement Memorandum of the Company. The undersigned agrees that this
additional investment will not be effective until the Board of Director's
acceptance below. In connection with this additional investment, the undersigned
agrees that the representations, warranties and agreements contained in the
undersigned's Subscription Agreement and Power of Attorney remain true and
correct and agrees to all the terms and conditions contained therein.
Additional Investment Amount $____________ (Minimum $10,000)
INSTRUCTION: THIS FORM SHOULD BE SIGNED IN THE SAME MANNER AND BY THE SAME
PERSONS AS THE ORIGINAL SUBSCRIPTION AGREEMENT.
INDIVIDUALS, TRUSTS, PARTNERSHIPS JOINT OR ADDITIONAL REQUIRED SIGNATURE
OR OTHER ENTITIES (IF ANY)
------------------------------------ --------------------------------------
Name of Individual or Entity Name of Individual or Entity
------------------------------------ --------------------------------------
Signature Signature
------------------------------------ --------------------------------------
Title (if any) Title (if any)
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ACCEPTANCE
The Board of Directors of ACP Continuum Return Fund II, LLC, on behalf of
ACP Continuum Return Fund II, LLC, hereby accepts the additional investment
embodied in the Additional Investment Form as to $______________ of membership
Units, which shall be effective on _________________________________, on all the
terms and conditions set forth herein and in the Memorandum.
ACP Continuum Return Fund II, LLC
By:
-------------------------------------
Its:
------------------------------------
Date:
-----------------------------------
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EXHIBIT E
REPURCHASE REQUEST FORM
ACP Continuum Return Fund II, LLC
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned hereby requests repurchase by the Company of: (Please check
one of the following alternatives)
|_| $_______________ of my Units
|_| All of my Units (after payment of fees, expenses and performance
allocations in accordance with the Operating Agreement)
The undersigned understands that the repurchase will be effected in accordance
with the terms and conditions of the Operating Agreement of the Company and as
set forth in the Confidential Private Placement Memorandum of the Company, as
amended and supplemented from time to time. Members choosing to tender Units (or
portions thereof) for repurchase must do so by the date specified in the notice
describing the terms of the offer (the "Expiration Date") which generally will
be sixty (60) days before the date as of which Units are to be repurchased. The
undersigned (either in my individual capacity or as an authorized representative
of an entity, if applicable) hereby represents and warrants that the undersigned
is the true, lawful and beneficial owner of the Units of the Company to which
this Repurchase Request relates with full power and authority to request
repurchase of such Units. Such Units are not subject to any pledge or otherwise
encumbered in any fashion.
SIGNATURES MUST BE IDENTICAL TO NAME(S) IN WHICH UNITS ARE REGISTERED.
------------------------------------ --------------------------------------
Name(s) Street Address
------------------------------------ --------------------------------------
City State Zip Code
------------------------------------ --------------------------------------
(Signature and title (if applicable)) (Signatures of joint owner (if any))
Date: ________________
(PLEASE ATTACH ANY SPECIAL DELIVERY INSTRUCTIONS FOR THE PROCEEDS OF UNITS TO BE
REDEEMED HEREBY).
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