ASPEN DIVERSIFIED FUND LLC
SUBSCRIPTION AGREEMENT
AUGUST 4, 2006
(Not for use for investments after May 1, 2007)
PLEASE READ CAREFULLY BEFORE SIGNING
ALL SUBSCRIPTIONS ARE SUBJECT TO ACCEPTANCE BY THE MANAGING MEMBER. ALL
INFORMATION REQURIED TO BE PROVIDED HEREIN BY SUBSCRIBERS FOR DETERMINING
PURCHASER QUALIFICATION WILL BE KEPT STRICTLY CONFIDENTIAL.
Subscription Address:
ASPEN DIVERSIFIED FUND LLC
c/o Aspen Partners, Ltd.
Managing Member
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Note: Completed documents must be received by Aspen Partners, Ltd. by the
close of business, three business days before month end. Funds must be
received by Aspen Partners, Ltd. by the close of business, two business days
before month end.
Wire Instructions:
Bank of America, N.A., New York, NY
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
ABA# 026 009 593
Credit - Aspen Diversified Fund LLC
Account #003 286 235 140
For Further Credit To: (Insert Investor Title)
Federal and state securities laws require that investors in private offerings
such as this Fund meet certain suitability requirements. In order to
determine whether you qualify for this investment, the Managing Member needs
information regarding your financial status and investment background. It is
imperative that you fill out the following documents accurately and
completely. Incomplete documents will be returned, and may cause delays in
the investment. The information set forth in this Agreement will be kept
confidential by the Managing Member and will not be disclosed except (i) to
the extent that any information is required to be disclosed in accordance
with any law, rule, regulation or order of any court, arbitration panel,
governmental, regulatory or self-regulatory authority (ii) to the agents,
employees and affiliates of the Managing Member; and (iii) to the attorneys,
accountants and other persons providing professional services to the Managing
Member and the Fund.
ASPEN DIVERSIFIED FUND, LLC
SUBSCRIPTION AGREEMENT
Ladies and Gentlemen:
I. Subscription for Interests in the Fund.
The undersigned subscriber (the "Investor") hereby irrevocably
subscribes for that dollar amount of limited liability company
interests ("Interests") in the Aspen Diversified Fund LLC, a Delaware
limited liability company (the "Fund"), as set forth on the signature
page attached hereto. The minimum initial subscription is $25,000 for
Interests in Class A, Class B, and Class E and $5,000,000 for
Interests in Class C and Class D; a lower minimum may be permitted by
Aspen Partners, Ltd., the Managing Member of the Fund (the "Managing
Member") in special cases and may be permitted with respect to sales
made by certain selling agents. Payment in full for Interests must
be received by the Fund no less than two (2) business days prior to
the first day of the month in which the Investor desires to become a
member of the Fund. Payment for the Interests may be made by check
payable to "Aspen Diversified Fund, LLC" or by wire transfer of
immediately available funds to the Fund's bank account (wire transfer
instructions are available from the Managing Member). This signed
Subscription Agreement (the "Subscription Agreement") together with a
completed Questionnaire to Prospective Purchasers attached as Annex A
hereto (the "Purchaser Questionnaire"), must be received by the Fund
no less than three (3) business days prior to the first day of the
month in which the Investor desires to become a member of the Fund.
For purposes of this Subscription Agreement, a business day shall
mean any day other than Saturday, Sunday or a day on which the
commercial banks located in the State of Georgia are closed for
business. The undersigned understands that if the undersigned's
subscription is rejected the undersigned's subscription amount will
be promptly returned to the undersigned without interest or
deduction. If accepted, the undersigned's subscription amount will
be used to purchase an Interest. Except as otherwise provided by
state securities laws, all subscriptions, once submitted, are
irrevocable.
II. Representations and Warranties of Subscriber.
As an inducement to the Managing Member, acting on behalf of the
Fund, to sell the undersigned the Interest for which the undersigned
has subscribed, the undersigned hereby represents and warrants to the
Managing Member and the Fund as follows:
a. If an individual, the Investor is over 21 years old and is legally
competent to execute this Agreement; if an entity, the Investor is duly
authorized and qualified to become a member in the Fund (a "Member") and the
individual signing this Agreement has been duly authorized by the Investor to
do so; and the Investor has received and carefully read a copy of the
Confidential Private Offering Memorandum and Disclosure Document of the Fund
dated May 12, 2005, including the Exhibits thereto and Risk Disclosure
Statements (the "Memorandum") relating to and describing the terms and
conditions of the offering of interests.
b. The Investor has a pre-existing business relationship with the
Manager, the Investor's purchaser representative, or an authorized selling
agent. The Investor has such knowledge and expertise in financial, tax and
business matters and is capable of evaluating the merits and risks of an
investment in the interests and of making an informed investment decision
with respect thereto. The Investor and the Investor's purchaser
representative, if any, have carefully reviewed and understand the various
risks of an investment in the Fund, including the risks summarized in the
Memorandum under "Risk Factors;" and the Investor can afford to bear the
risks of an investment in the Fund, including the risk of losing the
Investor's entire investment.
c. The Investor understands that the Managing Member, selling agents
and Investor's purchaser representative potentially have conflicts of
interest with the Fund, and the Investor has carefully reviewed the various
conflicts summarized under "Conflicts of Interest" in the Memorandum.
d. The Investor understands that the data in the performance tables in the
Memorandum should be read only in conjunction with the notes to the tables
and should not be interpreted to mean that the Fund will have similar results
or will realize any profits whatsoever.
e. The Investor is acquiring the Interest for which the Investor has
subscribed for the Investor's own account, as principal, for investment and
not with a view to the resale or distribution of all or any part of the
Interest. The Investor understands that the Interests have not been
registered under the Securities Act of 1933 (the "Act"), or any similar state
law and cannot be transferred or assigned except in certain limited
circumstances set forth in the Fund's Limited Liability Company Operating
Agreement (the "Operating Agreement"). The Investor understands that
redemption of the interests is restricted and that no market will exist for
the resale of such securities. The Investor understands that redemption of
interests is restricted as summarized under "Redemptions, Assignments, and
Distributions" in the Memorandum.
f. The Investor and the Investor's purchaser representative, if any, have
been furnished with any materials relating to the Fund, its operation, the
private placement of Interests, the commodity experience of the officers of
the Managing Member and Sub-Advisor of the Fund (the "Sub-Advisor"), the
performance record of the trading method to be utilized by the Managing
Member and Sub-Advisor and any other matter relating to this private
placement which they have requested; the Investor and the Investor's
purchaser representative, if any, have received answers to all inquiries put
to the Managing Member and its principals; and the Investor and the
Investor's purchaser representative, if any, have been afforded the
opportunity to ask questions and obtain any additional information necessary
to verify the accuracy of any representation or information set forth in the
Memorandum.
g. The Investor has relied only on the information in the Memorandum and
any information furnished or made available to the Investor pursuant to
paragraph (f) above in determining to subscribe for an Interest.
h. The Investor is not required to be registered with the Commodity
Futures Trading Commission ("CFTC") in any capacity under the Commodity
Exchange Act, as amended (the "CEA"), and the CFTC's rules to be so
registered and the Investor is not a commodity pool subject to the disclosure
requirements of Part 4 of the CFTC's rules; or, in the alternative, the
Investor is properly registered with the CFTC in all capacities in which it
is required to be registered under the CEA and the CFTC's rules.
i. All the information which the Investor has furnished to the Managing
Member in the Purchaser Questionnaire, or which is set forth herein, is
correct and complete as of the date of this Agreement, and if there should be
any material change in such information prior to the Investor's admission as
a Member the Investor will immediately furnish such revised or corrected
information to the Managing Member or if there should be any material change
in such information at any time while the Investor's is a Member the Investor
will notify the Managing Member within 30 calendar days.
j. The Investor, if not a benefit plan investor as described in Section 3
below on the date this Subscription Agreement is signed, agrees to notify the
Managing Member immediately if the Investor becomes a benefit plan investor.
k. The Investor agrees that the foregoing representations and warranties
may be used as a defense in any actions relating to the Fund or the offering
of the Interests, and that it is only on the basis of such representations
and warranties that the Managing Member may be willing to accept the
Investor's subscription for Interests.
l. Under penalties of perjury, the Investor represents warrants and
certifies that the Investor is not subject to "backup withholding" pursuant
to Section 3406 of the Internal Revenue Code of 1986, as amended (the
"Code"), and that the Investor has provided the Investor's correct tax
identification number below.
m. The Investor acknowledges that the Investor has been advised to consult
with the Investor's own attorney regarding legal matters concerning the Fund
and to consult with the Investor's tax adviser regarding the tax consequences
of participating in the Fund.
III. Employee Retirement Income Security Act of 1974, as amended ("ERISA")
Accounts.
If the Investor is acting on behalf of an "employee benefit plan," as
defined in and subject to ERISA, or a "plan," as defined in Section 4975 of
the Code (a "Plan"), the individual signing this Subscription Agreement on
behalf of the undersigned, in addition to the representations and warranties
set forth in Section 2 hereof, hereby further represents and warrants, as or
on behalf of the fiduciary of the Plan responsible for purchasing Interests
in the Fund (the "Plan Fiduciary"), that: (a) the Plan Fiduciary has
considered an investment in the Fund in light of the risks relating thereto;
(b) the Plan Fiduciary has determined that, in view of such considerations,
the investment in the Fund is consistent with the Plan Fiduciary's
responsibilities under ERISA; (c) the Plan's investment in the Fund does not
violate and is not otherwise inconsistent with the terms of any legal
document constituting the Plan or any trust agreement thereunder; (d) the
Plan's investment in the Fund has been duly authorized and approved by all
necessary parties; (e) none of the Managing Member, Sub-Advisor, any Selling
Agent, any of their respective affiliates or any of their respective agents
or employees: (i) has investment discretion with respect to the investment
of assets of the Plan used to purchase Interests; (ii) has authority or
responsibility to or regularly gives investment advice with respect to the
assets of the Plan used to purchase Interests for a fee and pursuant to an
agreement or understanding that such advice will serve as a primary basis for
investment decisions with respect to the Plan and that such advice will be
based on the particular investment needs of the Plan; or (iii) is an
employer maintaining or contributing to the Plan; and (f) the Plan Fiduciary
(i) is authorized to make, and is responsible for, the decision to invest in
the Fund, including the determination that such investment is consistent with
the requirement imposed by Section 404 of ERISA that Plan investments be
diversified so as to minimize the risks of large losses, (ii) is independent
of the Managing Member, Sub-Advisor, any selling agent and each of their
respective affiliates, and (iii) is qualified to make such investment
decision. The Investor will, at the request of the Managing Member, furnish
the Managing Member with such information as the Managing Member may
reasonably require to establish that the purchase of an Interest by the Plan
does not violate any provision of ERISA or the Code, including without
limitation, those provisions relating to "prohibited transactions" by
"parties in interest" or "disqualified persons" as defined therein.
IV. Documentation.
If the Investor is an entity, the Managing Member may request certain
documentation prior to accepting its subscription. Upon request:
a corporation may be required to deliver one copy of its articles of
incorporation and by-laws, and a copy of any document authorizing or
governing its investment policies, e.g., resolutions of the Managing Member;
a company may be required to deliver one copy of its operating
agreement or other governing agreement; and
a trust may be required to deliver one copy of its declaration of
trust or other governing instrument and any document authorizing or governing
its investment policies.
Alternatively, entities may submit an opinion of counsel to the
effect that the investment proposed to be made in the Fund by the subscriber
is authorized (such counsel need not pass on the suitability of such
investment, which is a question of fact). In addition, the subscriber should
attach a reasonably current balance sheet of the subscriber, a statement of
income for the previous year plus any other financial information which the
subscriber believes may be relevant to a determination of the suitability of
the Fund for the subscriber.
V. Representations and Warranties of the Subscriber under the Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (the "USA PATRIOT Act").
a. The Investor represents that all of the information it has provided
to the Fund in connection with this Agreement is true and correct.
b. The Investor agrees to provide any information deemed necessary by
the Managing Member in its sole discretion to comply with its anti-money
laundering programs and related responsibilities from time to time.
c. The Investor represents that the Investor, and each beneficial owner
of the Investor is not (i) an individual, entity or organization on any
Office of Foreign Assets Control "watch list" of foreign nations,
organizations and individuals and does not have any affiliation of any kind
with such an individual, entity or organization (see
xxxx://xxx.xxxxx.xxx/xxxx); (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; and (iv) an individual or group identified in Executive Order
13224 with whom U.S. persons are prohibited from doing business because such
persons have been identified as terrorists or persons who support terrorism
(please see xxxx://xxx.xxxxx.xxx/xxxxxxxxx.xxxx).
d. The Investor represents that the funds to be invested in the Fund
were not derived from any activities that may contravene U.S. or non-U.S.
anti-money laundering laws or regulations.
e. The Investor is not, and no beneficial owner of the Investor is, a
senior foreign political figure,1 an immediate family member of a senior
foreign political figure2 or a close associate of a senior foreign political
figure.3
f. The Investor is acquiring the Interest for which the Investor has
subscribed for the Investor's own account, risk and beneficial interest, as
principal, for investment and not with a view to the resale or distribution
of all or any part of such Interest, or, if the Investor is an intermediary
subscribing for the Interest on behalf of one or more investors or beneficial
owners ("Owners"), the Investor agrees that the representations made in
Section V (a) through (e) herein are made by the Investor on behalf of and
with respect to both the Investor and all such Owners.
VI. Acceptance of Operating Agreement.
The Investor agrees that as of the date of the acceptance of the
Investor's subscription funds by the Company the Investor shall
become a Member, and the Investor hereby agrees to each and every
term of the Operating Agreement, a copy of the form of which is
attached as Exhibit A to the Fund's Memorandum dated May 2005, as
amended and supplemented from time to time, as if the Investor's
signature were subscribed thereto. Moreover, the Investor agrees to
be bound by the terms and conditions of all modifications or
amendments to the Operating Agreement in accordance with the terms
thereof. The Investor hereby authorizes the Managing Member as the
Investor's attorney-in-fact to subscribe the Investor's name to such
Operating Agreement or any modification or amendment thereto pursuant
to the power of attorney set forth in Section 7 hereof (the "Power of
Attorney"). It is understood, however, that this Agreement is not
binding on the Fund until the Managing Member accepts it, which
acceptance is in the Managing Member's sole discretion.
VII. Power of Attorney.
a. In connection with the Investor's subscription for Interests, the
Investor hereby irrevocably constitutes and appoints the Managing Member, its
principals and officers, or any of them, with full power of substitution, as
the Investor's true and lawful representative and attorney-in-fact, granting
unto such attorney-in-fact full power of substitution and with full power and
authority in the Investor's name, place and stead to make, execute,
acknowledge, deliver, swear to, file and record in all necessary or
appropriate places: (a) the Operating Agreement; (b) all other documents,
certificates or instruments that the Managing Member deems appropriate to
qualify, continue or terminate the Fund as a limited liability company in the
jurisdictions in which the Fund may conduct business; (c) all instruments
that the Managing Member deems appropriate to reflect a change or
modification of the Fund in accordance with the terms of the Operating
Agreement; (d) all other certificates, documents and instruments with any
jurisdiction that the Managing Member deems appropriate to carry out the
business of the Fund; (e) certificates of assumed name; and (f) all
conveyances and other instruments that the Managing Member deems appropriate
to effect the dissolution and liquidation of the Fund.
b. This Power of Attorney is coupled with an Interest, is irrevocable,
and shall survive the death, dissolution, incompetence or incapacity of the
Investor or an assignment by the Investor of the Investor's Interests except
that where the assignee thereof has been admitted to the Fund as a
substituted member, this Power of Attorney shall survive such assignment for
the sole purpose of enabling the Managing Member to execute, acknowledge and
file any certificate, instrument or document necessary or appropriate to
effect such substitution.
c. The Investor hereby agrees to be bound by all of the representations
of the attorney-in-fact and waives any and all defenses that may be available
to the Investor to contest, negate or disaffirm the actions of the attorney-
in-fact or its successors under this Power of Attorney, and hereby ratifies
and confirms all acts that said attorney-in-fact may take as attorney-in-fact
hereunder in all respects, as though performed by the Investor.
VIII. Additional Subscriptions.
Subject to the terms of the Memorandum and the Operating Agreement,
Members may purchase additional Interests as of the first day of any
calendar month (or at other times as determined by the Managing
Member) subject to the consent of the Managing Member, in its sole
discretion. Therefore, the Member hereby represents, warrants and
agrees that all of the representations and warranties of the Investor
set forth herein and in the Purchaser Questionnaire will be true and
correct on the date any such additional purchase of Interests is made
(or, if there have been any changes in such information, the Investor
will have advised the Fund in writing of such changes).
IX. Assignability.
The Investor agrees not to transfer or assign this Subscription
Agreement or any interest of the Investor therein. This Subscription
Agreement and the representations and warranties contained herein or
in the Purchaser Questionnaire shall be binding upon the heirs,
executors, administrators, and other successors of the Investor and
this Subscription Agreement shall inure to the benefit of and be
enforceable by the Fund. If there is more than one signatory hereto,
the obligations, representations, warranties, and agreements of the
Investor are made jointly and severally.
X. Applicable Law.
This Subscription Agreement shall be construed in accordance with the
laws of the State of Delaware, without regard to principles of
conflicts of law. Any and all litigation arising out of this
Subscription Agreement shall be conducted only in courts located in
the State of Georgia.
XI. Entire Agreement.
This Subscription Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof, may be
amended only by a writing executed by all of the parties, and
supersedes any prior agreement between the parties with respect to
the subject matter hereof.
XII. State Securities Legend.
Prospective investors from the following state should note the
required legend below.
Georgia Investors. THE UNITS WILL BE SOLD IN RELIANCE ON THE EXEMPTION FROM
SECURITIES REGISTRATION CONTAINED IN PARAGRAPH 13 OF 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 FROM SUCH ACT OR PURSUANT TO AN EFFECTIVE
REGISTRATION UNDER SUCH ACT.
[THIS PAGE INTENTIONALLY LEFT BLANK]
PURCHASER QUESTIONNAIRE
Investor Information
Title of Account as it should appear in our records (e.g.: Xxxx Xxx or ABC
Custodian FBO Xxxx Xxx XXX Account#000-000)
Taxpayer ID to be used for tax reporting purposes (Custodian tax ID for
XXX/Xxxxx/Pension)
Mailing Address of Investor
City
State
Zip Code
Check here if you prefer to receive account information by email.
Investor Email Address
Daytime Area Code and Telephone Number
Evening Area Code and Telephone Number
Financial Advisor
Financial Advisor/Account Executive
Area Code and Telephone Number
Broker/Dealer (if applicable)
Account Reporting
If the units are to be held in a custodial or brokerage account, please
complete the following:
Custodian or Brokerage Firm Name
Area Code and Telephone Number
Custodian or Brokerage Account Number
If the units are to be reported to a Reporting Agency, please complete the
following:
Reporting Agency Name
Area Code and Telephone Number
Reporting Agency Account Number
If you would like duplicate statements send to any other third party, please
complete the following. Please note that your financial advisor and
custodian will automatically receive account information.
Third Party Name
Mailing Address of Third Party
City
State
Zip Code
Check here if the third party prefers to receive account information by
email.
Third Party Email Address
Investment Details
A Units
B Units
C Units
Subscription Amount: $
If A Units, Selling Commission Rate (0-4%): %
Less Selling Commission: $
Net Investment Amount: $
Check Enclosed Wire to Follow
Type of Account
Individual
S-Corporation
Joint Tenants with Right of Survivorship *
Other Corporation
Tenants in Common *
Irrevocable Trust
Community Property
Estate
Individual Retirement Account (XXX)
Retirement Plan (The PLAN is the Subscriber)
Self-Directed Account in a Retirement Plan
General Partnership
Revocable Trust
Limited Partnership
* Both Parties must sign.
Limited Liability Company
Other Entity (specify)
Please Complete SECTION 1, beginning on page 9.
Please Complete SECTION 2, beginning of page 13.
SECTION 1
Individual Investors Must Complete this Section
1. For the purpose of complying with certain state securities laws, the
following information is required.
In which State(s) do you file Income Tax Teturns?
In which State do you hold a valid Driver's License?
In which State are you registered to vote?
2. Date of Birth (Individuals) or Date of Formation (Entities)
3. Employer
4. Nature of Employer's Business
5. Your Position
6. Previous Investment Experience:
(a) Do you have a brokerage account? Yes No
(b) Have you ever bought securities which were exempt from federal and state
registration (private placement offerings)? Yes No
(c) Have you ever invested in an issuer whose form of business was a limited
partnership or limited liability company? Yes No
7. Do you intend to purchase Interests solely for your own account? Yes
No
If no, please indicate who else would have a direct or indirect interest in
the Interests purchased and the nature of that interest.
8. BY INITIALING BELOW, I HEREBY ACKNOWLEDGE THAT I HAVE READ AND I
UNDERTSAND THE FOLLOWING PRIVACY POLICY OF THE MANAGING MEMBER AND THE FUND:
THE MANAGING MEMBER AND THE FUND COLLECT INFORMATION ABOUT INVESTORS PROVIDED
ON SUBSCRIPTION AGREEMENTS AND ON ANY OTHER FORMS DELIVERED TO THE MANAGING
MEMBER OR THE FUND BY INVESTORS. THE MANAGING MEMBER AND THE FUND WILL NOT
DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT CURRENT OR FORMER INVESTORS
TO ANYONE, EXCEPT AS PERMITTED BY LAW. WITH RESPECT TO INTERNAL SECURITY
PROCEDURES, THE MANAGING MEMBER AND THE FUND RESTRICT ACCESS TO INVESTORS'
NONPUBLIC PERSONAL INFORMATION TO THOSE MEMBERS, OFFICERS OR EMPLOYEES OF THE
MANAGING MEMBER WHO NEED TO KNOW THAT INFORMATION TO OPERATE THE FUND AND TO
PERFORM RELATED SERVICES TO THE INVESTORS. IN ADDITION, THE MANAGING MEMBER
AND THE FUND MAINTAIN PHYSICAL, ELECTRONIC AND PROCEDURAL SAFEGUARDS THAT
COMPLY WITH FEDERAL STANDARDS TO GUARD INVESTORS' NONPUBLIC PERSONAL
INFORMATION.
Acknowledged
Initials
In order to induce the Fund to permit the Investor to purchase Interests, the
Investor hereby represents as follows:
9. "Accredited Investor" Status.
To ensure that Interests are sold pursuant to an appropriate exemption from
registration under applicable federal and state securities laws, the Investor
is furnishing certain information by checking all boxes below preceding any
statement below which is applicable to the Investor. By checking one of the
boxes below (other than O.), the Investor represents that the Investor is an
"Accredited Investor" as that term is defined in Rule 501(a) of Regulation D
under the Act.
The Investor certifies that the information contained in each of the
following checked statements (to be checked by the Investor only if
applicable) is true and correct and hereby agrees to immediately notify the
Managing Member of any changes which should occur in such information prior
to the Managing Member's acceptance of any subscription.
(a) The investor is a natural person whose individual net worth or joint net
worth with that person's spouse as of the date hereof is in excess of
$1,000,000.
(b) The Investor is a natural person who had an individual income in excess
of $200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has
reasonable expectation of reaching the same income level in the current year.
(c) The Investor is a director or executive officer of the Fund's Managing
Member.
(d) None of the foregoing statements is true with respect to the Investor.
10. Foreign Person Status. Check the statement below if applicable:
Under penalties of perjury, the Investor represents, warrants and certifies
that the Investor is a foreign person as defined in Section 1446(e) of the
Code and that the Investor will notify the Fund within sixty (60) days of a
change to foreign status.
11. Employee Benefit Plan Status. Check the statement below if applicable:
The Investor is an employee benefit plan within the meaning of ERISA
(including both 401(k) and other types of defined contribution plans) that
permits participant directed investments.
SIGNATURE
Executed At (City & State)
Signature of Subscriber
Date
Signature of Joint Subscriber (if applicable)
Date
SECTION 2
Entity Investors Must Complete this Section
1. Please state the nature of the Investor's business:
2. State of Formation
Date of Formation
3. Was the Investor organized for the specific purpose of acquiring the
Interests? Yes No
If "Yes," please explain.
4. Were the securities of or interests in the Investor sold by way or a
registered public offering or an unregistered private placement? If "Yes,"
please explain. Yes No
5. $ Approximate Total Assets of the Investor
$ Net Worth of the Investor
6. Will more than 40% of Investor's Total Assets be invested in the
Interests? Yes No
7. Number of beneficial owners in the Investor:
8. Please provide a breakdown of the number of each of the following types
of beneficial owners in the Investor, and if a beneficial owner is a
corporation, limited liability company, partnership, trust, or other entity,
provide the number of shareholders, partners, beneficiaries, or other equity
or beneficial owners of each such beneficial owner.
Type of Beneficial Number of Such If an Entity Beneficial Owner
Owner Beneficial Owners Number of its Beneficial Owners
Individuals
Corporations
Limited Liability Companies
Partnerships
Trusts
Other Entities (describe below)
9. If the Investor is a partnership or limited liability company, is the
investment in Interests being participated in by the partners or members of
the Investor in substantially the same proportions as prior investments made
by the Investor? If "No," please explain. Yes No Not Applicable
10. Is the Investor engaged, or has the Investor ever held itself out or does
the Investor presently hold itself out or anticipate holding itself out to
the beneficial owners or the public as being engaged, or does the Investor
anticipate engaging, in the business of investing, reinvesting, owning,
holding, or trading in securities? If "Yes," give details. Yes No
11. Is the Investor a registered investment company under the Investment
Company Act of 1940, as amended, (the "1940 Act")? Yes No
12. Does the Investor rely on the exemptions from the 1940 Act provided by
Section 3(c)(1) or 3(c)(7) thereunder? Yes No
In order to induce the Fund to permit the Investor to purchase Interests, the
Investor hereby represents as follows:
13. "Accredited Investor" Status.
To ensure that Interests are sold pursuant to an appropriate exemption from
registration under applicable federal and state securities laws, the Investor
is furnishing certain information by checking all boxes below preceding any
statement below which is applicable to the Investor. By checking one of the
boxes below (other than L.), the Investor represents that the Investor is an
"Accredited Investor" as that term is defined in Rule 501(a) of Regulation D
under the Act.
The Investor certifies that the information contained in each of the
following checked statements (to be checked by the Investor only if
applicable) is true and correct and hereby agrees to immediately notify the
Managing Member of any changes which should occur in such information prior
to the Managing Member's acceptance of any subscription.
(a) The Investor is an irrevocable trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring Interests, whose
purchase is directed by a sophisticated person as described in Rule 506(b)(2)
(ii) of Regulation D under the Act.
(b) The Investor is an employee benefit plan within the meaning of ERISA, and
(please check one):
the investment decision has been made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which is either a bank, savings and loan association,
insurance company or registered investment adviser, or
the employee benefit plan has total assets in excess of $5,000,000, or
if a self-directed plan, investment decisions are made solely by persons that
are accredited investors and all participants and beneficiaries in such plan
are accredited investors.
(c) The Investor is a private business development company as defined in
Section 202(a)(22) of the Advisers Act of 1940, as amended (the "Advisers
Act").
(d) The Investor is an organization described in Section 501(c)(3) of the
Code, corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring interests in the Fund, with
total assets in excess of $5,000,000.
(e) The Investor is a bank as defined in Section 3(a)(2) of the Act, or a
savings and loan association or other institution as defined in Section 3(a)
(5)(A) of the Act whether acting in its individual capacity for its own
account or fiduciary capacity for the account of an accredited investor.
(f) The Investor is a broker or dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934, as amended (the "1934 Act").
(g) The Investor is an insurance company as defined in Section 2(13) of the
Act acting for its own account or for the account of an accredited investor.
(h) The Investor is an investment company registered under the 1940 Act or a
business development company as defined in Section 2(a)(48) of that Act and
was not formed for the specific purpose of investing in the Fund.
(i) The Investor is 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.
(j) The Investor is 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.
(k) The Investor is an entity in which each of the equity owners is described
in one of statements (a) through (j) above.
(l) The Investor is an entity in which each of the equity owners is described
in one of statements in Section 1, Item 9 (a) through (d).
(m) None of the foregoing statements is true with respect to the Investor.
14. Foreign Person Status. Check the statement below if applicable:
Under penalties of perjury, the Investor represents, warrants and certifies
that the Investor is a foreign person as defined in Section 1446(e) of the
Code and that the Investor will notify the Fund within sixty (60) days of a
change to foreign status.
15. Employee Benefit Plan Status. Check the statement below if applicable:
The Investor is an employee benefit plan within the meaning of ERISA
(including both 401(k) and other types of defined contribution plans) that
permits participant directed investments.
If any participant in an employee benefit plan is permitted to direct the
investment of assets in such plan, then (a) the investment in the Fund will
be made as part of a generic investment option made available by such plan;
(b) the decision to invest assets of the generic investment option will be
made without direction from or consultation with the participant; (c)
immediately following the investment in the Fund, such investment will
constitute less than 50% of the assets of the generic investment option; and
(d) no representation has been or will be made to the participant that any
specific portion of the generic investment option will be invested in the
Fund or that assets will continue to be invested in the Fund, and any
materials regarding the Fund provided to the participant will contain a
disclaimer to such effect.
SIGNATURE PAGE
The undersigned warrants that he/she has full power and authority to execute
this Subscription Agreement on behalf of the above entity, and investment in
the Fund is not prohibited by the governing documents of the entity or by any
law applicable to such entity.
Executed At (City & State)
Signature
Print Name of Signatory
Date
Signature
Print Name of Signatory
Date
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ACCEPTANCE
The undersigned, as Managing Member of Aspen Diversified Fund, LLC, hereby
accepts the foregoing subscription as to $ _________________________ this
____ day of ______________, 20____. This subscription shall not be binding
until accepted by the Managing Member and shall become effective as of the
date of such acceptance, upon the terms set forth in Section 2 of the
Subscription Agreement.
MANAGING MEMBER:
ASPEN PARTNERS, LTD.
By:
Xxxxxx Xxxxxxxx
Executive Vice President
Aspen Partners, Ltd. hereby acknowledges, accepts and agrees to the
appointment of it as an investment manager as described in Section 3(38) of
ERISA of the Plan(s) named above with respect to assets of the Fund which are
deemed for purposes of ERISA or Section 4975 of the Code to be assets of the
Plan(s) during such times as such Fund assets so constitute Plan assets and
Aspen Partners, Ltd. hereby acknowledges that during such times the
undersigned will be a fiduciary under ERISA with respect to such Plan(s).
ASPEN PARTNERS, LTD.
By:
Xxxxxx Xxxxxxxx
Managing Director
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