SUBSCRIPTION AGREEMENT Golub Capital BDC LLC
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Capital BDC LLC
Ladies
and Gentlemen:
The terms
of this subscription agreement (the “Agreement”) are made
and entered into between ▇▇▇▇▇ Capital BDC LLC, a Delaware limited liability
company (the “Company”), and GEMS
Fund, L.P. (the “Investor”).
In order
to subscribe for limited liability company interests (the “LLC Interests”) of
the Company, a prospective Investor must complete and execute this Agreement in
accordance with the instructions set forth in this Agreement. This
Agreement in its entirety, together with the appropriate payment as described
herein, should then be returned to:
▇▇▇▇▇
Capital BDC LLC
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇
Subscriptions
from suitable prospective Investors will be accepted at the sole discretion of
the Company. If your subscription is not accepted, we shall return
your payment, without interest.
In
connection with the proposed purchase by the Investor of LLC Interests pursuant
to Regulation D (“Regulation D”) under
the Securities Act of 1933, as amended (the “Securities Act”), the
Investor agrees and acknowledges, on its own behalf or on behalf of each account
for which it is acquiring LLC Interests, and makes the representations and
agreements, on its own behalf or on behalf of each account for which it is
acquiring LLC Interests, set forth in Sections 1 through 4 and Sections 9
through 29 of this Agreement:
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Name
in which the LLC Interests are to be Registered:
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GEMS
Fund, L.P.
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Address:
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▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇,
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Social
Security Number
or
Taxpayer Identification Number, as applicable:
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Subscription
Amount: No. of LLC
Interests Dollars
$128,205.13
per
unit 195 $25,000,000
Please
make payment by check or bank draft, money order or wire transfer to ▇▇▇▇▇
Capital BDC LLC for the amount of your subscription.
IF YOU
ARE ACTING FOR MORE THAN ONE INVESTOR, PLEASE COMPLETE THE FORM ATTACHED HERETO
AS ANNEX A FOR EACH OF THOSE INVESTORS.
The
Investor(s) has/have provided a completed and signed Substitute IRS Form W-9 as
set forth in Section 29 of this Agreement. This Agreement has been
executed by the Investor(s) or a duly authorized representative of the
Investor(s), as of the date indicated below.
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Date: February
5, 2010
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INVESTOR
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
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Accepted:
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▇▇▇▇▇
CAPITAL BDC LLC
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Chief
Executive Officer
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The
Subscription
1. The
undersigned, desiring to become an Investor in the Company, hereby subscribes
for and agrees to purchase LLC Interests in the Company.
2. In
exchange for the LLC Interests subscribed for herein, the undersigned hereby
irrevocably commits to pay $128,205.13 per LLC Interest to the Company on the
terms and conditions set forth in the Company’s limited liability company
operating agreement (“LLC
Agreement”).
3. Upon
signing the signature page of this Agreement by or on behalf of each named
Investor, (i) the Agreement shall be validly executed and delivered to such
Investor and shall be valid, binding and enforceable against such Investor in
accordance with the terms and subject to the conditions set forth in this
Agreement, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization and similar laws affecting creditors’ rights generally and
equitable principles of general applicability, and (ii) such Investor
irrevocably subscribes for and agrees to purchase from the Company the number of
LLC Interests set forth next to the Investor’s name on page 1 of this
Agreement. Notwithstanding the foregoing, any subscription may be
revoked by the Company until delivery of such document or prior to the
fulfillment of the condition set forth in Section 4.
4. The
Investor understands and agrees that the Company reserves the right to accept or
reject the Investor’s subscription for any reason or for no reason, in whole or
in part, at any time prior to its acceptance by the Company and such
subscription shall be deemed to be accepted by the Company only when this
Agreement is signed by a duly authorized person by or on behalf of the
Company. This Agreement may be signed in counterpart
form.
Representations,
Warranties and Covenants of the Company
5. The
Company has been duly organized as a limited liability company and is validly
existing and in good standing under the laws of the State of
Delaware. The Company has full right, power and authority to enter
into this Agreement and to perform its obligations hereunder.
6. This
Agreement has been duly authorized by the Company and, when executed and
delivered by the Company, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability.
7. The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene any provision of
applicable law or the organizational documents of the Company or any agreement
of other instrument binding upon the Company, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for performance by the Company of its
obligations under this Agreement, except where failure to do so would not
reasonably be expected to have a material adverse effect.
8. All
of the LLC Interests are duly authorized, validly issued, fully paid and
nonassessable, no holder thereof is or will be subject to personal liability by
reason of being such a holder, and except as set forth in the LLC Agreement,
such LLC Interests are not subject to the preemptive rights of any Unitholder of
the Company.
Representations,
Warranties and Covenants of each Investor
9. The
Investor is a legal entity of the type reflected in Annex A hereto and is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization. The Investor has
full right, power and authority to enter into this Agreement and to perform its
obligations hereunder.
10. Any
information furnished to the Company by the Investor, including with respect to
the Investor’s financial position, background and investment experience, is
true, correct and complete in all material respects as of the date of this
Agreement.
11. The
execution and delivery by the Investor of, and the performance by the Investor
of its obligations under, this Agreement will not contravene any provision of
applicable law or the organizational documents of the Investor or any agreement
of other instrument binding upon the Investor, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Investor,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for performance by the Investor of its
obligations under this Agreement, except where failure to do so would not
reasonably be expected to have a material adverse effect.
12. GEMS
hereby agrees that it may not vote proxies or give consents sought by the
Company with respect to any entity or portfolio investment for which GC Advisors
LLC or any affiliate of GC Advisors LLC is the general partner, managing member
or investment adviser. Rather, such votes will be cast or consents given as
instructed by the limited partners of GEMS based on such limited partner’s
proportional interest therein. GEMS hereby undertakes to inform its limited
partners or of any matter requiring such a vote or consent and will provide them
with copies of all related proxy materials and similar information.
Conditions
13. The
obligations of the Company under this Agreement shall be subject to (i) the
Company’s acceptance of this Agreement and (ii) the execution of an amendment to
that certain credit facility described in the Company’s Registration Statement
on Form N-2 (File No. 333-163279). If these conditions are not
fulfilled, (i) this Agreement shall terminate and (ii) neither party shall have
any claim against the other party for costs, damages, compensation or
otherwise.
Accredited
Investor and Qualified Purchaser
14. The
Investor certifies that it is an “accredited investor” as such term is defined
in Regulation D. Annex B, as completed by the Investor, sets
forth the basis on which the Investor satisfies accredited investor
status. The Investor is a “qualified purchaser” as defined for
purposes of Section 3(c)(7) of the Investment Company Act of 1940, as amended,
and a “qualified eligible person” under Commodity Futures Trading Commission
Rule 4.7. Annex C, as completed by the Investor, sets forth the basis
on which the Investor satisfies qualified purchaser and qualified eligible
person status.
15. The
Investor is knowledgeable, sophisticated and experienced in business and
financial matters, and it fully understands the limitations on ownership, sale,
transfer or other disposition of the LLC Interests. The Investor is
able to bear the economic risk of its investment in the LLC Interests and is
currently able to afford the complete loss of such investment. The
Investor is aware that there are substantial risks incident to the purchase of
the LLC Interests.
Transfer
Restrictions
16. The
Investor understands and agrees that the LLC Interests are being offered in a
transaction not involving any public offering within the United States within
the meaning of the Securities Act; that the LLC Interests have not been
registered under the Securities Act and will only be registered pursuant to the
terms and conditions of a registration rights agreement to be executed by and
among the Company and all investors in this private placement; and that the LLC
Interests may not be transferred except as permitted by the Company’s LLC
Agreement. The Investor agrees that, if in the future it decides to
offer, resell, pledge or otherwise transfer such LLC Interests (or any interest
therein), such LLC Interests or interest therein will be offered, resold,
pledged or otherwise transferred as permitted by the Company’s LLC Agreement and
only in a transaction exempt from, or not subject to, the registration
requirements of the Securities Act or pursuant to a registration statement
declared effective by the Securities and Exchange Commission (the “SEC”).
17. The
Investor agrees that any certificate representing LLC Interests shall bear a
legend stating the foregoing transfer restrictions, which restrictions shall
terminate only in accordance with the terms of such legend.
18. Each
of the foregoing restrictions is subject to any requirement of law that the
disposition of the Investor’s property or the property of such investor account
or accounts on behalf of which the Investor holds the LLC Interests be at all
times within the control of the Investor or of such accounts and subject to
compliance with any applicable federal and state securities laws.
The
Offering
19. The
Investor acknowledges that no materials relating to the sale of the LLC
Interests have been subject to review, comment or approval by the staff of the
SEC or any state securities commission.
20. The
Investor is not purchasing the LCL Interests with a view to, or for offer or
sale in connection with, any distribution thereof (within the meaning of the
Securities Act) that would be in violation of the securities laws of the United
States or any state thereof. The Investor has a pre-existing
relationship with the Company or its affiliates.
21. The
party signing this Agreement is acquiring the LLC Interests for its own account,
as an Investor, or for an Investor (which is itself an accredited investor,
qualified purchaser and qualified eligible person) as to which the party signing
this Agreement exercises sole investment discretion and is authorized to make
the representations, and enter into the agreements, contained in this
Agreement. The party signing this Agreement has indicated herein
whether it is acquiring the LLC Interests for its own account, as an Investor,
or for the account of one or more Investors.
22. The
Investor has had access to all information that it believes is necessary,
sufficient or appropriate in connection with its purchase of the LLC Interests,
it has been afforded an opportunity to ask questions concerning the terms and
conditions of the offering and sale of the LLC Interests, it has had all such
questions answered to its satisfaction, it has been supplied all additional
information as it has requested and, after being advised by persons deemed
appropriate by the Investor concerning this Agreement and the transactions
contemplated hereby, it has made an independent decision to purchase the LLC
Interests based on information it has determined to be adequate to verify the
accuracy of any other information that the Investor deems relevant to making an
investment in the LLC Interests.
23. The
Investor became aware of the offering of the LLC Interests by the Company, and
the LLC Interests were offered to the Investor, through direct contact between
the Investor and the Company. The Investor did not become aware of,
nor were the LLC Interests offered to the Investor by any other means,
including, in each case, by any form of general solicitation or general
advertising. In making the decision to purchase the LLC Interests,
the Investor relied solely on information obtained by the Investor directly from
the Company as a result of any inquiries by the Investor or one or more of the
Investor’s advisors.
General
24. The
Investor acknowledges that the Company and its affiliates and others will rely
on the acknowledgments, representations and warranties contained in this
Agreement as a basis for exemption of the sale of the LLC Interests under the
Securities Act and under the securities laws of all applicable states and for
other purposes. Each party signing this Agreement agrees to notify
the Company promptly if any of the acknowledgments, representations or
warranties set forth in this Agreement are no longer accurate.
25. The
Company and its affiliates are irrevocably authorized to produce this Agreement
or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
26. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered to the Company
at the address set forth below or, if to the Investors, at the addresses set
forth on the first page hereof or in Annex A, as applicable, or at such other
address as the Investors shall from time to time designate in writing to the
Company. Each such notice, request or other communication shall be
effective (i) if given by facsimile, when such facsimile is transmitted to the
facsimile number set forth below, page one or on Annex A, as applicable, if such
facsimile is transmitted on a business day, and if not, then on the next
business day thereafter, or (ii) if given by mail, three (3) days after mailed
by registered or certified mail (return receipt requested) or (c) if given by
express courier, on the day delivered by an express courier (with confirmation
by recipient) to the following addresses:
▇▇▇▇▇
Capital BDC LLC
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇
27. This
Agreement contains the entire agreement between the parties hereto with respect
to the matters contemplated herein and supersedes all prior agreements or
understandings among the parties related to such matters.
28. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware.
29. The
Investor agrees to provide, together with this completed and signed Agreement, a
completed and signed Substitute IRS Form W-9.
ANNEX
A
INFORMATION
ON ADDITIONAL INVESTORS
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Name
(use exact name in which securities
are to be registered)*
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Address and Facsimile
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Social Security Number
(or Tax Identification
Number, as applicable)
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Subscription Amount ($)
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1.
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2.
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3.
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4.
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5.
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* Please
complete one copy of Annex B and Annex C for each investor.
A-1
ANNEX
B
ACCREDITED
INVESTOR STATUS
Accredited Investor
Status. Please ▇▇▇▇ the appropriate box next to each
description applicable:
[ ] A
natural person whose individual net worth, or joint net worth with that person's
spouse, exceeds $1,000,000.
[ ] A
natural person who had individual income in excess of $200,000 in each of the
most recent two years, or joint income with that person's spouse in excess of
$300,000 in each of the most recent two years and who has a reasonable
expectation of reaching the same income level in the current year.
[ ] A
director or executive officer (as defined in Rule 501(f) of Regulation D
promulgated under the Securities Act) of the Company.
[ ] 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 or dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934, as amended.
[ ] 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, or a business development company (as defined in Section 2(a)(48) of
the Investment Company Act of 1940, as amended).
[ ] 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, as amended.
[ ] 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 (A) 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 advisor, (B) the employee benefit plan has
total assets in excess of $5,000,000 or (C) if the plan is a self directed plan,
its investment decisions are made solely by persons who are accredited
investors.
[ ] A
private business development company (as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940, as amended).
[ ] A
corporation, a partnership, an organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, or a Massachusetts or similar
business trust, not formed for the specific purpose of acquiring securities,
with total assets in excess of $5,000,000.
[ ] A
trust, with total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring securities, whose acquisition is directed by a person who,
either alone or with his or her purchaser representative(s), has such knowledge
and experience in financial business matters that such person is capable of
evaluating the merits and risks of acquiring securities.
[ X
] An entity in which all of the
equity owners meet the requirements of at least one of the above subparagraphs
for accredited investors.
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Date: February
5, 2010
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GEMS
Fund, L.P.
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇.
▇▇▇▇▇
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Title:
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B-1
ANNEX
C
QUALIFIED
PURCHASER AND QUALIFIED ELIGIBLE PERSON STATUS
Qualified Purchaser and
Qualified Eligible Person Status. Please ▇▇▇▇ the appropriate
box next to each description applicable:
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(1)
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[ ]
A
natural person (including any person who will hold a joint, community
property, or other similar shared ownership interest in the Company with
that person’s qualified purchaser spouse) who owns at least $5,000,000 in
Investments (as defined in Schedule
I).
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(2)
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[ ]
A
company* that owns at least $5,000,000 in Investments and that is owned
directly or indirectly by or for two or more natural persons who are
related as siblings or spouse (including former spouses), or direct lineal
descendants by birth or adoption, spouses of such persons, the estates of
such persons, or foundations, charitable organizations, or trusts
established by or for the benefit of such persons (“Family
Company”).
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(3)
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[ ]
A
trust that is not covered by clause (2) above, and that was not formed for
the specific purpose of investing in the Company, as to which the trustee
or other person authorized to make decisions with respect to the trust,
and each settlor or other person who has contributed assets to the trust,
is a person described in clause (1), (2), or
(4).
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(4)
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[ ]
A
person (including a company), acting for its own account or the accounts
of other qualified purchasers, who in the aggregate owns and invests on a
discretionary basis, not less than $25,000,000 in
Investments.
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(5)
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[ ]
A
natural person (including any person who will hold a joint, community
property, or other similar shared ownership interest in the Company with
that person’s qualified purchaser spouse) who owns at least $5,000,000 in
Investments.
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(6)
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[ ]
A
“Qualified Institutional Buyer” as
defined in Rule 144A under the Securities Act (as that term is modified by
the limitations imposed thereon by Rule 2a51-1(g)(1) under the Investment
Company Act);
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(7)
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[ X ]
A
company, regardless of the amount of its Investments, each of the
beneficial owners of securities issued by such company is a person
described in clause (1), (2), (3), (4), or (5) of this Annex
C. (If this
item is checked, please contact the Company. Additional
requirements may
apply.)
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Date: February
5, 2010
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GEMS
Fund, L.P.
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇.
▇▇▇▇▇
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*
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For
purposes of this Question, “company” includes a corporation, a
partnership, an association, a joint-stock company, a trust or a
fund. In order to be a “qualified purchaser” any company that
both (i) would, but for an exception provided in Sections 3(c)(1) or
3(c)(7) of the Investment Company Act, be an investment company and (ii)
was in existence prior to May 1, 1996, must have complied with the consent
provisions of Section 2(a)(51)(C) of the Investment Company
Act.
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C-1
SCHEDULE
I
For the
purposes of determining “qualified purchaser” status, the term “Investments”
means all of the following:
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(i)
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Securities
(as defined by Section 2(a)(1) of the Securities Act), other than
securities of an issuer that controls, is controlled by, or is under
common control with, the Investor, unless the issuer of
such securities is any of the
following:
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(A)
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An
investment company, a company that would be an investment company under
the Investment Company Act but for the exclusions provided by Sections
3(c)(1) through 3(c)(9) of the Investment Company Act or the exemptions
provided by Rules 3a-6 or 3a-7 thereunder, or a commodity
pool;
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(B)
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A
company that files reports pursuant to Section 13 or Section 15(d) of the
Exchange Act or that has a class of securities that are listed on a
“designated offshore securities market” as that term is defined by
Regulation S under the Securities Act;
or
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(C)
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A
company with shareholders’ equity of not less than $50 million (determined
in accordance with generally accepted accounting principles) as reflected
on the company’s most recent financial statements, provided that such
financial statements present the information as of a date within 16 months
preceding the date on which the Investor acquires LLC Interests in the
Company.
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(ii) Real
estate held for “Investment Purposes,” as described below.
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(iii)
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“Commodity
Interests” held for Investment Purposes, as described
below. “Commodity Interests” means commodity futures contracts,
options on commodity futures contracts, and options on physical
commodities traded on or subject to the rules
of:
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(A)
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Any
contract market designated for trading such transactions under the
Commodity Exchange Act (“CEA”) and the
rules thereunder; or
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(B)
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Any
board of trade or exchange outside the United States, as contemplated in
Part 30 of the rules under the CEA.
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(iv)
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“Physical
Commodities” held for Investment Purposes, as described
below. “Physical Commodity” means any physical commodity with
respect to which a Commodity Interest is traded on a market specified in
(iii)(A) or (B) immediately above.
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(v)
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To
the extent not securities, “Financial Contracts” entered into for
Investment Purposes, as described below. “Financial Contracts”
means any arrangement that:
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(A)
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Takes
the form of an individually negotiated contract, agreement, or option to
buy, sell, lend, swap, or repurchase, or other similar individually
negotiated transaction commonly entered into by participants in the
financial markets;
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(B)
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Is
in respect of securities, commodities, currencies, interest or other
rates, other measures of value, or any other financial or economic
interest similar in purpose or function to any of the foregoing;
and
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(C)
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Is
entered into in response to a request from a counter party for a
quotation, or is otherwise entered into and structured to accommodate the
objectives of the counter party to such
arrangement.
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(vi)
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If
the Investor is a company that would be an investment company but for one
of the exclusions provided by Section 3(c)(1) or Section 3(c)(7) of the
Investment Company Act, or a commodity pool, any amounts payable to the
Investor pursuant to a firm agreement or similar binding commitment
pursuant to which a person has agreed to acquire an interest in, or make
capital contributions to, the Investor upon demand of the Investor;
and
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(vii)
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Cash
and cash equivalents (including foreign currencies) held for Investment
Purposes, as described below,
including:
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I-1
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(A)
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Bank
deposits, certificates of deposit, bankers acceptances and similar bank
instruments held for Investment Purposes;
and
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(B)
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The
net cash surrender value of an insurance
policy.
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Investment
Purposes. For purposes of the definition of “Investment” the
following applies. Real estate is not considered to be held for
Investment Purposes by an Investor if it is used by the Investor or a Related
Person, as defined below, for personal purposes or as a place of business, or in
connection with the conduct of the trade or business of the Investor or a
Related Person, provided that
real estate owned by an Investor that is engaged primarily in the
business of investing, trading or developing real estate in connection with such
business may be deemed to be held for Investment
Purposes. Residential real estate is not deemed to be used for
personal purposes if deductions with respect to such real estate are not
disallowed by Section 280A of the Internal Revenue Code of 1986, as
amended. A Commodity Interest or Physical Commodity owned, or a
financial contract entered into, by an Investor that is engaged primarily in the
business of investing, reinvesting, or trading in Commodity Interests, Physical
Commodities or financial contracts in connection with such business may be
deemed to be held for Investment Purposes. The term “Related Person”
generally means a person who is related to the Investor as a sibling, spouse or
former spouse, or is a direct lineal descendant or ancestor by birth or adoption
of the Investor, or is a spouse of such descendant or ancestor, provided that,
in the case of a Family Company, a Related Person includes any owner of the
Family Company and any person who is a Related Person of such
owner.
Valuation. For
purposes of determining whether an Investor is a qualified purchaser, the
aggregate amount of Investments owned and invested on a discretionary basis by
the Investor shall be the Investments’ fair market value on the most recent
practicable date or their cost, provided that: in the case of Commodity
Interests, the amount of Investments shall be the value of the initial margin or
option premium deposited in connection with such Commodity Interests; and, in
each case, certain deductions (described below) from the amount of Investments
owned by the Investor must be made. In determining whether any person
is a qualified purchaser there is deducted from the amount of such person’s
Investments the amount of any outstanding indebtedness incurred to acquire or
for the purpose of acquiring the Investments owned by such
person. Additionally, in determining whether a Family Company is a
qualified purchaser, there will be deducted from the value of such Family
Company’s Investments any outstanding indebtedness incurred by an owner of the
Family Company to acquire such Investments.
Joint
Investments. In determining whether a natural person is a
qualified purchaser, there may be included in the amount of such person’s
Investments any Investments held jointly with such person’s spouse, or
Investments in which such person shares with such person’s spouse a community
property or similar shared ownership interest. In determining whether
spouses who are making a joint investment in the Company are qualified
purchasers, there may be included in the amount of each spouse’s Investments any
Investments owned by the other spouse (whether or not such Investments are held
jointly). In each case, the amount of any such Investments will be
reduced by any deductions specified above (under “Valuation”) with
respect to each spouse.
Investments by
Subsidiaries. For purposes of determining the amount of
Investments owned by a company under paragraph (c) of the “Qualified Purchaser”
question in the Investor Qualifications section above, there may be included
Investments owned by majority-owned subsidiaries of the company and Investments
owned by a company (“Parent Company”) of
which the company is a majority-owned subsidiary, or by a majority-owned
subsidiary of the company and other majority-owned subsidiaries of the Parent
Company.
Certain Retirement Plans and
Trusts. In determining whether a natural person is a qualified
purchaser, there may be included in the amount of such person’s Investments any
Investments held in an individual retirement account or similar account the
Investments of which are directed by and held for the benefit of such
person.
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