Exhibit 4.2
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
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PROGRAM SUBSCRIPTION AGREEMENT
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Units of Limited Liability Company Interest
Minimum Investment in any FuturesAccess Fund: $10,000
Xxxxxxx Xxxxx Alternative Investments LLC
Princeton Corporate Campus
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
(866) MER-ALTS; (000) 000-0000
The completed Program Subscription Agreement Signature Page (attached
hereto) must be delivered to your Financial Advisor.
A completed Purchase and Exchange Form Signature Page must also be
delivered to your Financial Advisor in order for your subscription or
exchange to be processed.
If you have any questions about how to complete the Program Subscription
Agreement Signature Page or the Purchase and Exchange Form Signature Page,
please contact your Xxxxxxx Xxxxx Financial Advisor or a representative of
Xxxxxxx Xxxxx Alternative Investments LLC at (866) MER-ALTS; (000) 000-0000.
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THE FUTURESACCESS FUNDS AVAILABLE THROUGH THE XXXXXXX XXXXX
FUTURESACCESS(SM) PROGRAM ARE SPECULATIVE, ILLIQUID INVESTMENTS.
THE UNITS ARE ONLY SUITABLE FOR A LIMITED PORTION OF
THE RISK SEGMENT OF A PORTFOLIO.
--------------------
Selling Agent:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
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FOR THE USE OF U.S. INVESTORS ONLY
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
PROGRAM SUBSCRIPTION AGREEMENT
For the Use of U.S. Investors
How to Invest in the Xxxxxxx Xxxxx FuturesAccess(SM) Program
General
Xxxxxxx Xxxxx Alternative Investments LLC ("MLAI") has attempted to minimize
the paperwork normally associated with Investors participating in private
placements in general and in the Xxxxxxx Xxxxx FuturesAccessSM Program
("FuturesAccess") in particular. All information which Investors must complete
is included in the Program Subscription Agreement Signature Page and the
Purchase and Exchange Form Signature Page. The Program Subscription Agreement
Signature Page must be completed only once (unless your Financial Advisor
otherwise requests). Acceptance of your Program Subscription Agreement
entitles you to participate in any fund included in FuturesAccess (a
"FuturesAccess Fund"), including any new FuturesAccess Funds added in the
future (subject to availability).
Investors participating in the FuturesAccess Funds through both taxable and
tax-exempt accounts must submit separate Program Subscription Agreement
Signature Pages for each such account (unless your Financial Advisor informs
you otherwise).
When (or any time after) you submit your Program Subscription Agreement
Signature Page, you must also submit a Purchase and Exchange Form Signature
Page selecting the specific FuturesAccess Fund(s) into which you wish to
invest or exchange. Unless your Financial Advisor otherwise requests, there is
no need to submit a Program Subscription Agreement Signature Page for each
FuturesAccess Fund investment or exchange. You need only identify your
selection on a Purchase and Exchange Form Signature Page.
Only the detachable Signature Page to this Program Subscription Agreement and
to the Purchase and Exchange Form need be submitted, not the full Program
Subscription Agreement or Purchase and Exchange Form.
If you have any questions as to how to complete either the Program
Subscription Agreement Signature Page or the Purchase and Exchange Form
Signature Page, or need additional Program Subscription Agreements or Purchase
and Exchange Forms, please contact your Financial Advisor or:
Xxxxxxx Xxxxx Alternative Investments LLC
Princeton Corporate Campus
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
(866) MER-ALTS; (000) 000-0000
Your Financial Advisor must countersign both your Program Subscription
Agreement Signature Page and your Purchase and Exchange Form Signature Page.
Give the Signature Pages to your Financial Advisor to send to MLAI.
Steps to investing:
1. Read and carefully review this Program Subscription Agreement.
2. Complete and detach the Program Subscription Agreement Signature
Page.
3. Give the completed Program Subscription Agreement Signature Page
to your Financial Advisor. Your Financial Advisor will review and
countersign this Signature Page and forward it to MLAI.
U.S. Investors
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4. Read and carefully review the Part One (A) Confidential Program
Disclosure Document: FuturesAccess(SM) Program General Information,
the Part Two Confidential Program Disclosure Document: Statement
of Additional Information and the Part One (B) Confidential
Program Disclosure Document: Trading Advisor Information
(collectively, the "Confidential Program Disclosure Document"),
including the description of each FuturesAccess Fund into which
you are considering investing or exchanging.
5. Consult with your Financial Advisor as to which of the
FuturesAccess Funds are suitable for your portfolio.
6. Complete and detach the Purchase and Exchange Form Signature Page
indicating the FuturesAccess Funds you have selected.
7. Give the completed Purchase and Exchange Form Signature Page to
your Financial Advisor. Your Financial Advisor will review and
countersign this Signature Page and forward it to MLAI.
8. To exchange among FuturesAccess Funds, complete a Purchase and
Exchange Form Signature Page and submit it to your Financial
Advisor no less than 45 days before the proposed calendar
quarter-end (or month-end, in certain cases) for the exchange.
9. Your Financial Advisor will inform you of when your Xxxxxxx Xxxxx
Account will be debited in the amount of your investments in
FuturesAccess (in the case of subscriptions), as well as of when
any exchange will be effective.
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The Subscriber may invest in FuturesAccess through taxable accounts
as well as through IRA and other tax-exempt accounts. Investments by
the Subscriber and by related tax-exempt as well as taxable accounts
(including certain investments for the benefit of immediate family
members of the Subscriber) may be combined for purposes of meeting
FuturesAccess (but not individual FuturesAccess Fund) minimums. A
separate Program Subscription Agreement Signature Page must be
completed for each such account.
The Subscriber should indicate on the Program Subscription Agreement
Signature Page as well as on each Purchase and Exchange Form
Signature Page whether the Subscriber is investing together with any
related accounts.
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The detachable Program Subscription Agreement Signature Page attached hereto
should be completed and delivered to your Financial Advisor, together with the
Purchase and Exchange Form Signature Page identifying the FuturesAccess Funds
in which you wish to invest.
The Purchase and Exchange Form is a separate document with its own detachable
Signature Page.
U.S. Investors
-2-
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
PROGRAM SUBSCRIPTION AGREEMENT
For the Use of U.S. Investors
This Program Subscription Agreement relates to your participation in
FuturesAccess. A number of different FuturesAccess Funds are included in
FuturesAccess. In addition to the Program Subscription Agreement Signature
Page (attached hereto), you must also submit a Purchase and Exchange Form
Signature Page (attached to the Purchase and Exchange Form) identifying the
particular FuturesAccess Fund(s) into which you wish to invest or exchange.
You must submit a new Purchase and Exchange Form Signature Page each time you
invest or exchange into a new FuturesAccess Fund. Following initial completion
of the Program Subscription Agreement, you need only submit a new Program
Subscription Agreement Signature Page if so requested by your Xxxxxxx Xxxxx
Financial Advisor.
-------------------
This Program Subscription Agreement relates to your subscription to one or
more of the FuturesAccess Funds.
Each Investor must also complete a Purchase and Exchange Form Signature Page
indicating the specific FuturesAccess Fund(s) to which such Investor wishes to
subscribe, and acknowledging receipt of the Confidential Program Disclosure
Document, as well as the FuturesAccess Fund Descriptions and the FuturesAccess
Fund Offering Documents relating to such FuturesAccess Fund(s).
By completing and executing the Program Subscription Agreement Signature Page,
the undersigned (the "Subscriber") is confirming that the Subscriber has the
level of financial sophistication necessary to evaluate the merits and risks
of specialized, non-traditional investments such as the FuturesAccess Funds,
and understands that the speculative and illiquid nature of an investment in
one or more of the FuturesAccess Funds makes such investment appropriate only
for a limited portion of the Subscriber's portfolio.
The Subscriber also understands and agrees that, although MLAI will use its
reasonable efforts to keep the information provided in each Program
Subscription Agreement Signature Page and each Purchase and Exchange Form
Signature Page strictly confidential, one or more FuturesAccess Funds and/or
MLAI may present the Program Subscription Agreement Signature Page as well as
the Purchase and Exchange Form Signature Page and the information provided
therein to such parties as MLAI deems advisable if called upon to establish
the availability under any applicable law of an exemption from registration
for the FuturesAccess Funds' units of limited liability company interest (the
"Units"), or compliance with applicable law by any of the FuturesAccess Funds,
MLAI or any of their respective affiliates, or if such information is or may
be relevant to an issue in any action, suit or proceeding to which any
FuturesAccess Fund, MLAI or any of their respective affiliates are a party or
by which they are or may be bound, or upon the request of any regulatory,
governmental or self-regulatory authority.
Capitalized terms used but not defined herein will have the meaning assigned
to them in the Confidential Program Disclosure Document.
U.S. Investors
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I. Representations, Warranties and Agreements of the Subscriber. As an
inducement to MLAI to accept the Subscriber's Program Subscription Agreement
Signature Page and any Purchase and Exchange Form Signature Page submitted by
the Subscriber, the Subscriber represents and warrants to MLAI and the
applicable FuturesAccess Fund(s) as follows:
A. Authority and Eligibility
-------------------------
(1) If an individual, the Subscriber (including each individual joint
Subscriber) is at least 21 years old and is legally competent to
execute and deliver the Program Subscription Agreement Signature
Page and the Purchase and Exchange Form Signature Page and to
comply with the terms of this Program Subscription Agreement and
the Purchase and Exchange Form, as well as to discharge the
Subscriber's obligations to FuturesAccess.
If an Entity (e.g., a corporation, partnership, limited liability
company or trust), the Subscriber is duly authorized and qualified
to become an Investor. If the Subscriber is a passive investment
vehicle, the sponsor of the Subscriber either is duly registered
as a "commodity pool operator" with the Commodity Futures Trading
Commission and a member in good standing of the National Futures
Association in such capacity or is exempt from such registration.
(2) The person (the "Signatory"; the Subscriber and the Signatory to
be referred to collectively as the Subscriber, unless the context
otherwise requires) executing and delivering the Program
Subscription Agreement Signature Page and any Purchase and
Exchange Form Signature Page or making an investment or exchange
into or from any FuturesAccess Fund on behalf of the Subscriber
has been duly authorized by the Subscriber to do so. The
Subscriber has full right and power to comply with the terms of
this Program Subscription Agreement and the Purchase and Exchange
Form, as well as to discharge its obligations to FuturesAccess,
including under the General Form of Operating Agreement of the
FuturesAccess Fund (the "Operating Agreement").
Entity Subscribers must confirm that they are authorized to invest
in the FuturesAccess Funds, each of which is a speculative,
non-traditional investment. Many Entity investors may not, in
fact, be authorized -- pursuant to their charter documents,
investment policies or other applicable provisions -- to invest in
the FuturesAccess Funds.
(3) The Subscriber has had substantive business dealings with Xxxxxxx
Xxxxx and/or a Xxxxxxx Xxxxx Financial Advisor for at least six
months, and believes that Xxxxxxx Xxxxx and/or the Subscriber's
Xxxxxxx Xxxxx Financial Advisor should have sufficient information
to be able to assess the Subscriber's financial position,
knowledge and sophistication.
(4) The Subscriber (and the Subscriber's financial advisors, if any)
has sufficient knowledge and experience in financial and business
matters that the Subscriber is capable of evaluating the merits
and risks of an investment in a FuturesAccess Fund and of making
an informed investment decision regarding the purchase of the
Units, and the Subscriber is able to bear the economic risk of a
speculative investment such as the FuturesAccess Funds, including
the risk of losing the Subscriber's entire investment. The
Subscriber understands that investment in the FuturesAccess Funds
is suitable only for a limited portion of the risk segment of the
Subscriber's portfolio.
(5) The Subscriber (and the Subscriber's financial advisors, if any)
will (i) receive and carefully review a copy of the Confidential
Program Disclosure Document, the FuturesAccess Fund Descriptions
and the FuturesAccess Fund Offering Documents relating to each
FuturesAccess Fund in which the Subscriber proposes to invest, and
(ii) carefully evaluate and understand the various risks of such
investment before submitting a Purchase and Exchange Form
Signature Page to subscribe to such FuturesAccess Fund. The
Subscriber will only do so if the Subscriber can afford to bear
such risks.
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(6) The Subscriber (and the Subscriber's financial advisors, if any)
has been furnished with any materials the Subscriber has requested
relating to any FuturesAccess Fund, its proposed operations, the
private placement of the Units, the Trading Advisors and any other
matters related thereto.
(7) If the Subscriber is an Entity, the Subscriber was not formed for
the specific purpose of investing in any FuturesAccess Fund and no
more than 40% of its assets are invested in any FuturesAccess
Fund, investors in the Subscriber participate in investments made
by the Subscriber on a pro rata basis in accordance with each such
investor's interest in the Subscriber (except as necessary to
comply with applicable laws or regulations), and the Subscriber's
assets are not considered to constitute assets of any "employee
benefit plan" as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), regardless of whether
such employee benefit plan is subject to ERISA, or any "plan" as
defined in Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), regardless of whether such plan is subject
to Section 4975 of the Code.
(8) If the Subscriber is an insurance company using assets of its
general account to purchase Units, the Subscriber hereby
represents and warrants that the percentage of such assets used to
purchase the Units of any FuturesAccess Fund that represents the
assets of "employee benefit plans" does not exceed the percentage
indicated on the Program Subscription Agreement Signature Page.
B. Restrictions on Exchanges and Transfers
---------------------------------------
(1) The Subscriber acknowledges that MLAI is under no obligation to
maintain the Exchange Privilege of FuturesAccess and that such
Exchange Privilege may be terminated at any time. The Subscriber
must not invest in any FuturesAccess Fund in reliance on the
continuation of the Exchange Privilege.
(2) Certain FuturesAccess Funds may be subject to redemption fees
and/or other liquidity restrictions. In the event that one or more
FuturesAccess Funds suspend redemptions or the calculation of net
asset value, the Exchange Privilege with respect to such
FuturesAccess Fund(s) will also be suspended.
(3) The Subscriber acknowledges that: (i) the transfer of the
Subscriber's Units is subject to restrictions in the Operating
Agreement and requires the approval of MLAI, which approval may be
withheld in its sole discretion; (ii) the Units may not be
transferred to any person that is not an "accredited investor" (as
defined in Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")); (iii) investments in the
FuturesAccess Funds are illiquid; (iv) no market exists for the
Units, and none is expected to develop; and (v) no FuturesAccess
Fund will be listed on any exchange or otherwise regularly traded.
C. Disclosures
-----------
(1) The Subscriber confirms that none of MLAI, the FuturesAccess
Funds, the Trading Advisors, the Selling Agent or any associate,
affiliate, representative or advisor of any of the foregoing,
guarantees the success of an investment in any FuturesAccess Fund
or that substantial losses will not be incurred on such
investment.
(2) The Subscriber understands that the Selling Agent is not
guaranteeing or assuming responsibility for the operation or
possible liabilities of MLAI, any FuturesAccess Fund or any
Trading Advisor.
(3) The Subscriber understands that MLAI is an indirect subsidiary of
Xxxxxxx Xxxxx & Co., Inc. ("ML&Co."), as well as an affiliate of
the Selling Agent. The Subscriber further understands that MLAI
may assign its interest as Sponsor or Program Manager as described
in the Operating Agreements of the FuturesAccess Funds.
U.S. Investors
S-3
(4) The Subscriber understands that, as disclosed in the Confidential
Program Disclosure Document, MLPF&S receives substantial brokerage
commissions from the FuturesAccess Funds. Such brokerage
commissions were not negotiated at arm's-length.
(5) The Subscriber acknowledges and agrees to the investment of the
FuturesAccess Funds' cash as described under "Interest Income
Arrangements" in the Part One (A) Confidential Program Disclosure
Document: FuturesAccess(SM) Program General Information.
(6) The Subscriber acknowledges and understands that Xxxxxxx Xxxxx may
make the K-1s prepared for the Subscriber in connection with the
Subscriber's investments in the Program Fund(s) accessible to the
Subscriber's Xxxxxxx Xxxxx Financial Advisor, and consents to its
Financial Advisor having access to the Subscriber's K-1s.
D. Tax Issues
----------
(1) The Subscriber confirms, under penalty of xxxxxxx, that the
Subscriber is a U.S. Person, as such term is defined in Section
7701(a)(30) of the Code, and the Subscriber undertakes to advise
the FuturesAccess Fund and MLAI promptly in writing if the
Subscriber is no longer a U.S. Person during the term of the
Subscriber's investment in the FuturesAccess Fund. The Subscriber
understands that if at any time it ceases to be a U.S. Person, it
may be subject to U.S. withholding tax or other consequences as
well as being required to redeem out of the Program.
(2) The Subscriber confirms that, unless otherwise indicated in
Section 8 of the Program Subscription Agreement Signature Page,
the Subscriber is not subject to backup withholding. The
Subscriber understands that the Program will not accept
subscriptions from the Subscriber if the Subscriber is subject to
backup withholding.
X. Xxxxxxxx and Updating of Subscriber Information
-----------------------------------------------
(1) The Subscriber represents that all the information, financial or
otherwise, which the Subscriber has furnished to MLAI, the Selling
Agent or the Subscriber's Xxxxxxx Xxxxx Financial Advisor in
connection with subscribing for Units in any FuturesAccess Fund,
or which is set forth on the Program Subscription Agreement
Signature Page and any Purchase and Exchange Form Signature Page,
including all representations, warranties and agreements contained
herein, is correct and complete as of the date on which such
information was furnished, and if there should be any material
change in such information, the Subscriber will immediately notify
MLAI and the Selling Agent and furnish such revised or corrected
information to MLAI.
(2) The Subscriber agrees that the representations, warranties and
agreements contained in this Program Subscription Agreement or a
Purchase and Exchange Form Signature Page, including all
representations, warranties and agreements contained therein,
shall be deemed to be repeated as of the date the Subscriber
purchases Units of any FuturesAccess Fund.
(3) The Subscriber agrees that the representations, warranties and
agreements contained in this Program Subscription Agreement, and
all other information regarding the Subscriber set forth on the
Program Subscription Agreement Signature Page, or the relevant
Purchase and Exchange Form Signature Page(s), and any or all other
information which the Subscriber discloses to his or her Xxxxxxx
Xxxxx Financial Advisor, may be used as a defense in any actions
relating to any FuturesAccess Fund or the offering of its Units,
and that it is only on the basis of such representations,
warranties, agreements and other information that MLAI may be
willing to accept the Subscriber's subscription to any
FuturesAccess Fund.
U.S. Investors
S-4
F. Trustees, Agents, Representatives and Nominees
----------------------------------------------
If the Subscriber is acting as trustee, agent, representative or nominee
for an investor (a "Beneficial Owner"), the Subscriber understands and
acknowledges that the representations, warranties and agreements made
herein are made by the Subscriber (A) with respect to the Subscriber and
(B) with respect to the Beneficial Owner. The Subscriber further
represents and warrants that it has all requisite power and authority
from said Beneficial Owner to execute and deliver the Program
Subscription Agreement Signature Page and any related Purchase and
Exchange Form Signature Page as well as to invest in any FuturesAccess
Fund. The Subscriber also agrees to indemnify each FuturesAccess Fund,
MLAI and their respective affiliates and agents for any and all costs,
fees and expenses (including legal fees and disbursements) in connection
with any damages resulting from any misrepresentation or misstatement of
the Subscriber contained herein or therein or made by the Subscriber to
the Subscriber's Xxxxxxx Xxxxx Financial Advisor, or the assertion of
the Subscriber's lack of proper authorization from the Beneficial Owner
to execute and deliver the Program Subscription Agreement Signature Page
or the Purchase and Exchange Form Signature Page or to discharge the
Subscriber's obligations hereunder or thereunder.
G. Money Laundering Prevention
---------------------------
The Subscriber's subscription monies were not derived from activities
that may contravene United States (federal or state) or international
anti-money laundering laws and regulations. The Subscriber is not (i) an
individual, entity or organization named on a United States Office of
Foreign Assets Control ("OFAC") "watch list" and does not have any
affiliation with any kind of such individual, (ii) a foreign shell bank,
(iii) a person or entity resident in or whose subscription funds are
transferred from or through a jurisdiction identified as non-cooperative
by the Financial Action Task Force or (iv) a senior foreign political
figure,(1) an immediate family member(2) or close associate(3) of a
senior foreign political figure within the meaning of the USA PATRIOT
Act of 2001.(4) The Subscriber agrees to promptly notify MLAI should it
become aware of any change in the information set forth in this
representation. The Subscriber acknowledges that, by law, MLAI may be
obligated to "freeze the account" of the Subscriber, either by
prohibiting additional subscriptions, declining any redemption requests
and/or segregating the assets in the account in compliance with
governmental regulations, and MLAI may also be required to report such
action and to disclose the Subscriber's identity to OFAC. The Subscriber
represents and warrants that all of the information which it has
provided to the Program in connection with the Subscription Document is
true and correct, and agrees to provide any information MLAI or its
agents deem necessary to comply with its anti-money laundering program
and related responsibilities from time to time. If the Subscriber has
indicated in these Subscription Documents that it is an intermediary
subscribing in the Program as a record owner in its capacity as agent,
representative or nominee on behalf of one or more underlying investors
("Underlying Investors"), it agrees that the representations, warranties
and covenants are made by it on behalf of itself and the Underlying
Investors.
II. Further Advice and Assurances. The Subscriber agrees to provide
additional information regarding its investment experience, financial position
or otherwise, to MlAI or the Selling Agent, as they may reasonably request.
---------------------------
(1) A "senior foreign political figure" is defined as a senior official in the
executive, legislative, administrative, military or judicial branches of a
non-U.S. government (whether elected or not), a senior official of a major
non-U.S. political party, or a senior executive of a non-U.S. government-owned
corporation. In addition, a "senior foreign political figure" includes any
corporation, business or other entity that has been formed by, or for the
benefit of, a senior foreign political figure.
(2) "Immediate family" of a senior foreign political figure typically includes
the figure's parents, siblings, spouse, children and in-laws.
(3) A "close associate" of a senior foreign political figure is a person who
is widely and publicly known to maintain an unusually close relationship with
the senior foreign political figure, and includes a person who is in a
position to conduct substantial domestic and international financial
transactions on behalf of the senior foreign political figure.
(4) The United States "Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001",
Pub. L. No. 107-56 (2001).
U.S. Investors
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If the Subscriber is an Entity, MLAI, in its sole discretion, may
require the Subscriber to submit a copy of its articles of
incorporation, by-laws, authorizing resolution, partnership agreement,
trust agreement, operating agreement or other related documents, as the
case may be. Alternatively, Entities may be required to submit an
opinion of counsel to the effect that the investment proposed to be made
in the FuturesAccess Fund(s) by the Subscriber is authorized.
III. Subscriber Eligibility. THE SUBSCRIBER WILL BE REQUIRED TO INDICATE ON
THE PROGRAM SUBSCRIPTION AGREEMENT SIGNATURE PAGE WHICH OF THE FOLLOWING
REQUIREMENTS THE SUBSCRIBER SATISFIES IN ORDER TO QUALIFY AS AN "ACCREDITED
INVESTOR," AS DEFINED IN REGULATION D UNDER THE SECURITIES ACT.
A. Accredited Investor Requirements
--------------------------------
Individual Subscribers
----------------------
(1) An individual that has an individual net worth or joint net worth
with such individual's spouse, in excess of $1,000,000. "Net
worth" for these purposes means the value of total assets at fair
market value, including home, home furnishings and automobiles,
less total liabilities.
or
--
(2) An individual that (i) had individual income (exclusive of any
income attributable to such individual's spouse) of more than
$200,000 for each of the past two years or joint income with such
individual's spouse in excess of $300,000 in each of those years
and (ii) reasonably expects to reach the same individual income
level, or the same joint income level, as the case may be, in the
current year.
Entity Subscribers
------------------
(3) A corporation, partnership, limited liability company,
Massachusetts or similar business trust or tax-exempt organization
as defined in Section 501(c)(3) of the Code, that (i) has total
assets in excess of $5,000,000 and (ii) was not formed for the
specific purpose of investing in the FuturesAccess Fund in
question.
or
--
(4) A revocable trust which may be amended or revoked at any time by
the grantors thereof, and of which all of the grantors are
"accredited investors" under either Section III.B(1) or Section
III.A(2) above.
or
--
(5) A trust (i) that has total assets in excess of $5,000,000, (ii)
that was not formed for the specific purpose of investing in the
FuturesAccess Fund in question and (iii) the investment decisions
of which are directed by a person who has such knowledge and
experience in business and financial matters as to be capable of
evaluating the merits and risks of an investment in such
FuturesAccess Fund.
or
--
(6) A trust for which a bank or savings and loan association is acting
as fiduciary in making the investment decision to subscribe to the
FuturesAccess Fund in question.
or
--
U.S. Investors
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(7) A bank as defined in Section 3(a)(2) of the Securities Act, acting
in its fiduciary or individual capacity, or a savings and loan
association or other institution as defined in Section 3(a)(5) of
the Securities Act.
or
--
(8) An insurance company as defined in Section 2(13) of the Securities
Act, acting in its individual capacity.
or
--
(9) A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended.
or
--
(10) An investment company registered under the Investment Company Act
of 1940, as amended (the "Company Act") or a business development
company as defined in Section 2(a)(48) of the Company Act.
or
--
(11) A Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
or
--
(12) A plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, which
plan has total assets in excess of $5,000,000.
or
--
(13) A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as amended.
or
--
(14) An employee benefit plan within the meaning of Title I of ERISA
where (i) the investment decision with respect to this investment
is made by a plan fiduciary, as defined in Section 3(21) of ERISA,
which is either a bank, savings and loan association, insurance
company or registered investment adviser, (ii) the employee
benefit plan has assets in excess of $5,000,000 or (iii) the plan
is a self-directed plan, with investment decisions made solely by
persons who are "accredited investors," as defined in the
Securities Act.
or
--
(15) An Entity whose equity owners are each "accredited investors,"
i.e., persons meeting the requirements set forth in any of
Sections III.A(1)-(14) above.
IV. Indemnity. The Subscriber agrees to indemnify and hold harmless each
FuturesAccess Fund, MLAI, the Selling Agent and each Investor in respect of
all claims, actions, demands, losses, costs, expenses and damages, whether
involving such parties or third parties, resulting from any inaccuracy in any
of the Subscriber's representations or warranties made to each FuturesAccess
Fund, MLAI, the Selling Agent and the Subscriber's Xxxxxxx Xxxxx Financial
Advisor or from any breach of any of the Subscriber's agreements contained in
this Program Subscription Agreement (including the Program Subscription
Agreement Signature Page) or in any of the Subscriber's Purchase and Exchange
Forms
U.S. Investors
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(including the Purchase and Exchange Form Signature Page), or from any
unsuccessful securities proceeding brought by the Subscriber against any
FuturesAccess Fund, MLAI or the Selling Agent.
V. Governing Law; Consent To Jurisdiction. THIS PROGRAM SUBSCRIPTION
AGREEMENT AND ANY RELATED PURCHASE AND EXCHANGE FORM SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. THE PARTIES HERETO CONSENT TO THE JURISDICTION OF THE STATE AND FEDERAL
COURTS IN THE CITY, COUNTY AND STATE OF NEW YORK WITH RESPECT TO ANY
PROCEEDING OR CLAIM ARISING HEREUNDER, THEREUNDER OR OTHERWISE IN RESPECT OF
THE PROGRAM.
VI. Power of Attorney. In connection with the acquisition of Units pursuant
to this Program Subscription Agreement (and the related Program Subscription
Agreement Signature Page) and a Purchase and Exchange Form (and the related
Purchase and Exchange Form Signature Page), the Subscriber does hereby (in
addition to, and not by way of limitation of, the Power of Attorney included
in Section 10.02 of the Operating Agreement) irrevocably constitute and
appoint MLAI and each officer thereof, individually, as the Subscriber's true
and lawful representative and attorney-in-fact, with full power of
substitution, in the Subscriber's name, place and stead: (a) (i) to receive
and pay over to the related FuturesAccess Fund(s) on behalf of the Subscriber,
to the extent set forth in the Operating Agreement, all funds received
hereunder, and (ii) to complete or correct, on behalf of, and at the direction
of, the Subscriber, all documents to be executed by the Subscriber in
connection with the Subscriber's subscription for Units, including, without
limitation, filling in or amending amounts, dates and other pertinent
information; and (b) to execute, acknowledge, swear to, file and record (if
applicable) on the Subscriber's behalf, and in the appropriate public offices
if relevant: (i) the Operating Agreement (including the power of attorney
included therein); (ii) all instruments which MLAI may deem necessary or
appropriate to reflect virtually any amendment, change or modification of the
Operating Agreement or the Certificate of Formation, including of related
FuturesAccess Fund(s); and (iii) all instruments, agreements and documents
which MLAI considers necessary to, or appropriate for, the operation of the
related FuturesAccess Fund(s) as contemplated in the Confidential Program
Disclosure Document and the Operating Agreement.
The Subscriber agrees and acknowledges that MLAI and the other Investors are
relying on the continued validity of the foregoing Power of Attorney, and that
the Power of Attorney granted hereby shall be deemed to be coupled with an
interest, shall be irrevocable, and shall survive and not be affected by the
subsequent death, incapacity, termination, bankruptcy, insolvency or
dissolution of the Subscriber.
VII. General. The Subscriber understands that this Program Subscription
Agreement (including the Program Subscription Agreement Signature Page), any
Purchase and Exchange Form (including the Purchase and Exchange Form Signature
Page) submitted by the Subscriber, and the representations, warranties,
agreements and other provisions hereof and thereof: (a) shall be binding upon
the Subscriber and the Subscriber's legal representatives, successors and
assigns; (b) shall survive the Subscriber's admission as an Investor; and (c)
may be executed (through the Signature Pages) by the Subscriber and accepted
by any FuturesAccess Fund in one or more counterparts as well as in facsimile,
each of which shall be considered an original and all of which together shall
constitute one instrument.
If any provision of this Program Subscription Agreement (including the Program
Subscription Agreement Signature Page) or any Purchase and Exchange Form
(including the Purchase and Exchange Form Signature Page) submitted by the
Subscriber is determined to be invalid or unenforceable under any applicable
law, then such provision shall be deemed inoperative to the extent, and only
to the extent, of such invalidity or unenforceability and only in the
jurisdiction which reaches such determination. Any such provision shall be
deemed modified to conform with such applicable law. Any provision hereof
which may be held invalid or unenforceable under any applicable law shall not
affect the validity or enforceability of any other provisions hereof, and to
this extent the provisions hereof shall be severable.
You may submit a Purchase and Exchange Form Signature Page together with the
Program Subscription Agreement Signature Page or separately. However, your
subscription cannot be processed until both have been received.
VIII. Legends.
-------
U.S. Investors
S-8
IN MAKING AN INVESTMENT DECISION, SUBSCRIBERS MUST RELY ON THEIR OWN
EXAMINATION OF FUTURESACCESS, THE APPLICABLE FUTURESACCESS FUND(S) AND
THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED.
FUTURESACCESS HAS NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE
FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE
ADEQUACY OF THE CONFIDENTIAL PROGRAM DISCLOSURE DOCUMENT OR THE
FUTURESACCESS FUND DESCRIPTIONS THEREIN. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE UNITS ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT (A) WITH THE PRIOR WRITTEN
CONSENT OF MLAI, (B) AS PERMITTED UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM AND (C) AS PERMITTED UNDER THE COMPANY ACT. SUBSCRIBERS SHOULD
BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE RISKS OF AN INVESTMENT IN
THE FUTURESACCESS FUNDS FOR AN INDEFINITE PERIOD OF TIME.
THE INVESTOR (AND EACH EMPLOYEE, REPRESENTATIVE OR OTHER AGENT OF THE
INVESTOR) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY
KIND, THE TAX TREATMENT AND TAX STRUCTURE OF THE TRANSACTION AND ALL
MATERIALS OF ANY KIND (INCLUDING OPINIONS OR OTHER TAX ANALYSES) THAT
ARE PROVIDED TO THE INVESTOR RELATING TO SUCH TAX TREATMENT AND TAX
STRUCTURE.
For Georgia Investors Only.
--------------------------
THE UNITS HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH (13) OF THE
CODE SECTION 10-5-9 OF THE GEORGIA SECURITIES ACT OF 1973, AND MAY NOT
BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER
SUCH ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT.
U.S. Investors
S-9
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
PROGRAM SUBSCRIPTION AGREEMENT SIGNATURE PAGE
For the Use of U.S. Investors
By executing this Program Subscription Agreement Signature Page, the
Subscriber makes all of the representations, warranties, agreements,
acknowledgements and undertakings set forth in the Program Subscription
Agreement.
An investment in FuturesAccess is suitable only for sophisticated Investors
who have the financial resources and the willingness to accept the risks
inherent in an investment in FuturesAccess, and for whom an investment in
FuturesAccess does not represent a complete investment program. The risks
associated with an investment in FuturesAccess are described in the
Confidential Program Disclosure Document. The Subscriber should carefully read
the Confidential Program Disclosure Document prior to deciding whether to
invest in any FuturesAccess Fund.
The Subscriber hereby makes and affirms all representations, warranties and
agreements set forth on behalf of the Subscriber in the Program Subscription
Agreement.
1 REGISTRATION OF UNITS (Check one):
Must match the registration of the Xxxxxxx Xxxxx Account specified in
Section 2(b) below.
Individual Subscribers:
-----------------------
|_| Individual Ownership |_| Tenants in Common
(One signature required below) (all tenants must sign and initial below)
|_| Joint Tenants with Rights of Survivorship |_| Other (please specify): ________________
(all tenants must sign and initial below)
Entity Subscribers:
-------------------
|_| Trust |_| Corporation
|_| Grantor |_| Partnership/Limited Liability Company
|_| Other (please specify): ________________
2 SUBSCRIBER INFORMATION: (Information must match the Xxxxxxx Xxxxx
Account type specified in Section 1 above.)
The Subscriber must provide all information exactly as it is to appear
on the records of FuturesAccess.
(a) Subscriber's Name:_____________________________________________________
(b) Xxxxxxx Xxxxx Account to be Debited:___________________________________
(c) Name of Xxxxxxx Xxxxx Financial Advisor:_______________________________
(d) Social Security / Taxpayer ID Number (if Joint Subscribers, provide
both):_________________________________________________________________
(e) Residence Address (for Individuals):___________________________________
(Street)
_______________________________________________________________________
(City) (State) (Zip Code)
------------------------------------------------------------------------------
U.S. Investors
Program Subscription Agreement Signature Page
SP-1
(f) Principal Place of Business (for Entities):_________________________
(Street)
____________________________________________________________________
(City) (State) (Zip Code)
(g) Correspondence Address (if different from above):___________________
(Street)
____________________________________________________________________
(City) (State) (Zip Code)
(h) Telephone Number:___________________________________________________
Business Home
(i) E-Mail Address:_____________________________________________________
(j) In correspondence, please address the Subscriber as: Dear:__________
(k) Date of Birth (for Individuals) (if Joint Subscribers, provide
both):______________________________________________________________
(l) Date of Organization (for Entities):________________________________
(m) Jurisdiction of Organization (for Entities):________________________
(n) Name of Contact Person (for Entities):______________________________
(o) Fiscal/Tax Year (for Entities):_____________________________________
3 SOLICITATION INFORMATION: The Subscriber first heard about FuturesAccess
from:
|_| Xxxxxxx Xxxxx Financial Advisor
|_| Other (please specify): _________________________________
4 SUBSCRIBER REQUIREMENTS:
(If joint Subscribers, each must provide the required information and
initial such information.)
(a) The Subscriber is an "accredited investor," because the Subscriber
satisfies the following requirement, as set forth under Section
III.A of the Program Subscription Agreement. (See pages S-6 and
S-7.)
Please circle which requirement the Subscriber satisfies under
Section III.B and initial below: (circle only one)
Individual Subscriber:
III.A(1) III.A(2)
------------------------ ---------------------------------
(Initial here) (Initial here - Joint Subscribers)
Entity Subscribers:
lll.A(3) lll.A(4) III.A(5) III.A(6) III.A(7) III.A(8)
lll.A(9) III.A(10) III.A(11) III.A(12) lll.A(13) III.A(14) III.A(15) (Please complete Item 4(c), below)
------------------------ ------------------------------------
(Initial here) (Initial here - Joint Subscribers)
U.S. Investors
Program Subscription Agreement Signature Page
SP-2
(b) If the Subscriber satisfies the requirements set forth under
Section III.A(15) above, the Subscriber represents and warrants
that it has confirmed that each equity owner of the Subscriber
is an "accredited investor" in its own right, and that MLAI,
based upon this representation, has a reasonable basis to accept
the Subscriber as an "accredited investor."
------------------------ ------------------------------------
(Initial here) (Initial here - Joint Subscribers)
5 SUITABILITY AND NATURE OF INVESTMENT:
The Subscriber understands that an investment in FuturesAccess is
speculative, illiquid, long-term, and does not represent a complete
investment program. The Subscriber confirms that it has (either alone or
with the Subscriber's financial advisors, if any) sufficient knowledge
and expertise to be able to evaluate the merits and risks of investing
in FuturesAccess. The Subscriber has considered the speculative and
illiquid nature of an investment in FuturesAccess within the context of
the Subscriber's total portfolio, understands that Units of the
FuturesAccess Funds are only suitable for a limited portion of the risk
segment of the Subscriber's overall portfolio, and can bear the various
risks of such an investment.
------------------------ ------------------------------------
(Initial here) (Initial here - Joint Subscribers)
6 OTHER INFORMATION:
Insurance Company General Account: The percentage of assets in such
account used to purchase Units that represents the assets of "employee
benefit plans" does not exceed _______%.
Employee Benefit Plan Assets: Please check the following box if 25% or
more of any class of the equity securities of the Subscriber is owned by
a benefit plan organized by an employer or employee organization to
provide retirement, deferred compensation, medical, death, disability,
unemployment, vacation or similar benefits to employees (including IRAs,
XXXXX and 401(k) plans) |_|.
7 RELATED ACCOUNTS:
PLEASE LIST ANY OTHER ACCOUNTS OF WHICH YOU OR A MEMBER OF YOUR
IMMEDIATE FAMILY IS THE PRIMARY BENEFICIARY OR BENEFICIAL OWNER AND
WHICH INVEST IN FUTURESACCESS.
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
U.S. Investors
Program Subscription Agreement Signature Page
SP-3
8 INTERNAL REVENUE CODE CERTIFICATION:
The Subscriber hereby represents, warrants and certifies as follows:
--------------------------------------------------------------------------
(a) Under penalty of perjury, by signature below, the Subscriber
certifies that the Social Security/Taxpayer ID number set forth
above is the true, correct and complete Social Security/Taxpayer
ID number of the Subscriber, and the Subscriber is a taxable
United States person.
(b) Under penalty of perjury, by signature below, the Subscriber
certifies that the Subscriber is not subject to backup
withholding, either because the Subscriber is exempt from backup
withholding, or because (i) the Subscriber has not been notified
by the Internal Revenue Service that the Subscriber is subject
to backup withholding, or (ii) the Internal Revenue Service has
notified the Subscriber that the Subscriber is no longer subject
to backup withholding.
(c) CROSS OUT ITEM (b) ABOVE IF YOU HAVE BEEN NOTIFIED BY THE
INTERNAL REVENUE SERVICE THAT YOU ARE CURRENTLY SUBJECT TO
BACKUP WITHHOLDING BECAUSE YOU HAVE FAILED TO REPORT ALL
INTEREST AND DIVIDENDS ON YOUR TAX RETURN.
--------------------------------------------------------------------------
The Subscriber agrees to notify MLAI within 30 days of any change in the
information set forth in this Section 8.
9 SIGNATURE(S):
By signing below, the Subscriber represents that: (a) if an individual,
the Subscriber is at least 21 years old and legally competent; (b) if an
Entity, (i) the Subscriber has been duly formed and is validly existing
and is in good standing under the laws of the jurisdiction of its
formation with full power and authority to enter into the transactions
contemplated by the Confidential Program Disclosure Document, the
Program Subscription Agreement, each applicable Purchase and Exchange
Form and each applicable Operating Agreement, including the purchase of
Units, (ii) based upon a review of the Subscriber's constitutional
documents and/or based on consultation with counsel or advisors, the
Subscriber is authorized to invest in FuturesAccess, and (iii) the
Signatory has been authorized by the Subscriber to execute and deliver
this Program Subscription Agreement Signature Page and any related
Purchase and Exchange Form Signature Page submitted or to be submitted
by the Subscriber; (c) has received and read the offering materials
related to FuturesAccess and the relevant FuturesAccess Fund(s); (d)
this Program Subscription Agreement Signature Page and any related
Purchase and Exchange Form Signature Page have been or will be duly and
validly authorized, executed and delivered by the Subscriber; and (e)
this Program Subscription Agreement Signature Page, any related Purchase
and Exchange Form Signature Page and any related Operating Agreement
submitted or to be submitted by the Subscriber constitutes or will
constitute the valid, binding and enforceable agreement of the
Subscriber.
--------------------------------------------------------------------------
The Internal Revenue Service does not require your consent to any
provision of this document other than the certifications required to
avoid backup withholding.
--------------------------------------------------------------------------
-----------------------------------------------------------------
(Signature of Individual Subscriber)
-----------------------------------------------------------------
(Signature of Joint Subscriber, if applicable)
Dated:
--------------------------------------
-----------------------------------------------------------------
--------------------------------------------- (Name of Entity Subscriber)
Please check the following box if the
Subscriber is a Xxxxxxx Xxxxx officer or
employee: |_|
---------------------------------------------
By:
----------------------------------------------------------
Name:
Title:
U.S. Investors
Program Subscription Agreement Signature Page
SP-4
10 FINANCIAL ADVISOR ATTESTATION:
The undersigned Financial Advisor ("FA") hereby certifies that the
Subscriber is known to and is a client of the undersigned, and has had
substantive discussions with the undersigned regarding the Subscriber's
investment objectives. The FA confirms that he/she has a reasonable basis
for believing (i) that all of the representations made by the Subscriber
in the Program Subscription Agreement are true and correct, and (ii) based
on information obtained from the Subscriber concerning its investment
objectives, other investments, financial situation and needs, and any
other information known to the FA, that an investment in FuturesAccess is
suitable for the Subscriber.
-------------------------------------------------------- -----------------------------------------------------
Financial Advisor Production Number Financial Advisor Signature
FINANCIAL ADVISORS SHOULD RETURN THE COMPLETED AND
EXECUTED PROGRAM SUBSCRIPTION AGREEMENT SIGNATURE PAGE BY OVERNIGHT MAIL TO:
Xxxxxxx Xxxxx Alternative Investments LLC
000 Xxxxxxxx Xxxx Xxxx Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
Phone: (0-000) 000-0000 Fax: (000) 000-0000
Attn: Document Control
----------------------------
Subscribers should retain a copy of the Program Subscription Agreement as
well as a copy of this Program Subscription Agreement Signature Page for
their records.
----------------------------
U.S. Investors
Program Subscription Agreement Signature Page
SP-5
----------------
PLACE LABEL HERE
----------------
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
Xxxxxxx Xxxxx Alternative Investments LLC
Princeton Corporate Campus
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
(866) MER-ALTS; (000) 000-0000
--------------------
FUTURESACCESS PROGRAM SUBSCRIPTION AND
EXCHANGE AGREEMENT
--------------------
A completed Signature Page (attached to this FuturesAccess Program
Subscription and Exchange Agreement) must be delivered to your Financial
Advisor in order for your subscription or exchange to be processed.
If you have any questions about how to complete the Signature Page, please
contact your Xxxxxxx Xxxxx Financial Advisor or a representative of
Xxxxxxx Xxxxx Alternative Investments LLC at: (866) MER-ALTS; (866)
637-2587.
--------------------
THE FUTURESACCESS FUNDS AVAILABLE THROUGH THE XXXXXXX XXXXX
FUTURESACCESS(SM) PROGRAM ARE SPECULATIVE INVESTMENTS. THE UNITS ARE ONLY
SUITABLE FOR A LIMITED PORTION OF THE RISK SEGMENT OF AN INVESTOR'S
PORTFOLIO.
--------------------
Selling Agent:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
--------------------
FOR THE USE OF U.S. INVESTORS ONLY
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
to access
SINGLE-ADVISOR MANAGED FUTURES FUNDS
FUTURESACCESS PROGRAM SUBSCRIPTION
AND EXCHANGE AGREEMENT
For Use by U.S. Investors
How to Invest in FuturesAccess
General
Xxxxxxx Xxxxx Alternative Investments LLC ("MLAI") has attempted to minimize
the paperwork normally associated with subscribers ("Investors") participating
in private placements in general and in the Xxxxxxx Xxxxx FuturesAccessSM
Program ("FuturesAccess") in particular. All information which Investors must
complete is included in the Signature Page attached to this FuturesAccess
Program Subscription and Exchange Agreement ("Subscription Agreement").
Acceptance of your Subscription Agreement entitles you to participate in any
fund included in FuturesAccess (a "FuturesAccess Fund"), including any new
FuturesAccess Funds added in the future (subject to availability).
Investors participating in the FuturesAccess Funds through both taxable and
tax-exempt accounts must submit separate Signature Pages for each such account
(unless their Financial Advisor informs them otherwise).
Investors must submit a new Signature Page each time they wish to invest in or
exchange into a FuturesAccess Fund.
Only the detachable Signature Page attached hereto must be submitted to your
Financial Advisor, not the full Subscription Agreement. Your Financial Advisor
must countersign your Signature Page. Please give the Signature Page to your
Financial Advisor to send to MLAI.
If you have any questions as to how to complete the Signature Page, or need
additional FuturesAccess Program Subscription and Exchange Agreements or
Signature Pages, please contact your Financial Advisor or:
Xxxxxxx Xxxxx Alternative Investments LLC
Princeton Corporate Campus
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
(866) MER-ALTS; (000) 000-0000
Steps to investing
1. Read and carefully review the Confidential Program Disclosure
Document, which is comprised of the Part One (A) Confidential
Program Disclosure Document: FuturesAccess Program General
Information, Part Two Confidential Program Disclosure Document:
Statement of Additional
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-1
Information and Part One (B) Confidential Program Disclosure
Document: Trading Advisor Information (collectively referred to as
the "Confidential Program Disclosure Document") relating to the
FuturesAccess Fund into which you are considering investing or
exchanging. Capitalized terms used herein but not defined shall have
the meanings assigned to them in the Confidential Program Disclosure
Document.
2. Read and carefully review this Subscription Agreement and the
Signature Page attached hereto.
3. Consult with your Financial Advisor as to which of the FuturesAccess
Funds are suitable for your portfolio.
4. Complete and detach the Signature Page providing the Investor
information requested and indicating the specific FuturesAccess
Fund(s) you have selected.
5. Give the completed Signature Page to your Financial Advisor. Your
Financial Advisor will review and countersign the Signature Page and
forward it to MLAI.
6. To invest in or exchange among FuturesAccess Funds, you must submit
a completed Signature Page to your Financial Advisor no less than 10
days prior to the effective month-end of your investment or
exchange. All subscriptions into and exchanges among FuturesAccess
Funds are subject to the availability of the applicable
FuturesAccess Fund(s) and to acceptance by MLAI.
7. If you subscribe to a FuturesAccess Fund during its initial offering
period, after your Subscription Agreement has been accepted, your
entire subscription (including any amounts designated to be invested
in other FuturesAccess Funds) may be debited from your Xxxxxxx Xxxxx
Account and credited to an escrow account on a settlement date
notified to you by your Financial Advisor. Subscriptions debited and
held in escrow will bear interest, and all interest actually earned
on such subscriptions will be credited to the respective
FuturesAccess Fund when the units of limited liability company
interest (the "Units") of such FuturesAccess Fund(s) are first
issued.
8. No escrow account will be used for Units sold after the initial
offering period of a FuturesAccess Fund. Rather, your Xxxxxxx Xxxxx
Account will be debited on or about each closing date in the amount
of your subscription, which will be invested directly in the
FuturesAccess Fund(s). No interest will be payable with respect to
any such subscriptions.
9. Your Financial Advisor will inform you of the effective date of your
subscription, when your Xxxxxxx Xxxxx Account will be debited in the
amount of your investment, as well as the effective date of any
exchange.
--------------------------------------------------------------------------------
The Subscriber may invest in FuturesAccess through taxable accounts as
well as through IRA and other tax-exempt accounts. Investments by the
Subscriber and by related tax-exempt as well as taxable accounts
(including certain investments for the benefit of immediate family
members of the Subscriber) may be combined for purposes of meeting
FuturesAccess minimums (see "Offering Procedures - Classes of Units" in
the Part One (A) Confidential Program Disclosure Document: FuturesAccess
Program General Information). A separate Signature Page must be
completed for each such account. If any of the accounts listed on the
signature page include plans subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), such as individual
retirement accounts ("IRAs"), or plans that are subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the
Subscriber must represent on the Signature Page that the aggregation of
such plans with other
--------------------------------------------------------------------------------
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-2
--------------------------------------------------------------------------------
accounts for any purpose relating to FuturesAccess or the Xxxxxxx Xxxxx
HedgeAccess(R) Program ("HedgeAccess") does not result in an act of
self-dealing under the prohibited transaction provisions of Section 4975
of the Code or Section 406 of ERISA.
The Subscriber should indicate on the Signature Page whether the
Subscriber is investing together with any related accounts.
--------------------------------------------------------------------------------
Multiple Classes of Units
Subscribers may choose between Class A Units (upfront sales commission; lower
ongoing Sponsor Fees) and Class C Units (no upfront sales commission; higher
ongoing Sponsor Fees). There is no minimum aggregate subscription or Net Asset
Value required to invest in Class A or Class C Units (other than the $10,000
FuturesAccess minimum).
If a Subscriber instructs MLAI to combine subscriptions or investments
involving any plan subject to Section 4975 of the Code or the provisions of
ERISA, the Subscriber is deemed to represent that the aggregation of such
plans with other accounts for any purpose relating to FuturesAccess or
HedgeAccess does not result in an act of self-dealing under the prohibited
transaction provisions of Section 4975 of the Code or Section 406 of ERISA.
Prior to April 1, 2006, whether an Investor was eligible to receive Class I or
Class D Units was determined based on an Investor's aggregate subscriptions
(excluding exchanges) in FuturesAccess overall as well as, in the case of
Class D Units, aggregate subscriptions (including exchanges) into a particular
FuturesAccess Fund. For subscriptions effective on and after April 1, 2006,
Class I and Class D eligibility are determined not on the basis of aggregate
subscriptions, but on the basis of an Investor's total "FuturesAccess
Investment" (see below) in FuturesAccess overall as well as, in the case of
Class D Units, a particular FuturesAccess Fund.
An Investor's "FuturesAccess Investment," determined as of the beginning of
each month, equals the greater of:
o The market value of an Investor's Units in FuturesAccess (or a
particular FuturesAccess Fund, as applicable) based on the most
recently available Net Asset Values, plus pending subscriptions; or
o An Investor's net subscriptions to FuturesAccess overall (or a
particular FuturesAccess Fund, as applicable). Net subscriptions
means an Investor's aggregate subscriptions less aggregate
redemptions (not including pending redemptions).
Except for purposes of determining Class D eligibility in a particular
FuturesAccess Fund, the purchase and sale of Units in an exchange offset each
other and have no effect on the amount of an Investor's net subscriptions to
FuturesAccess overall.
FuturesAccess Investments attributable to certain related accounts may be
combined for purposes of determining an Investor's Class I and Class D
eligibility.
In addition, Investors who participate in HedgeAccess (private investment
funds that primarily trade securities rather than futures) are permitted to
aggregate their investments in FuturesAccess with their investments in
HedgeAccess for purposes of determining such Investors' Class I and Class D
eligibility.
Other than the $10,000 minimum investment in any FuturesAccess Fund, there is
no minimum aggregate subscription or Net Asset Value required to invest in
Class A or Class C Units.
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-3
New Investors whose initial subscription equals or exceeds $5,000,000 will be
issued Class I Units in each FuturesAccess Fund in which they invest. If an
existing Investor, whose FuturesAccess Investment is less than $5,000,000, makes
an additional subscription which causes such Investor's FuturesAccess Investment
to equal or exceed $5,000,000 (including the new subscription), the entire new
subscription will be invested in Class I Units. The Investor's existing Units
shall not be converted from Class A or Class C (as the case may be) to Class I
Units, but all subsequent subscriptions and exchanges made by such Investor will
be for Class I Units.
Class D eligibility is determined on both an individual FuturesAccess Fund and
an overall FuturesAccess basis. If an Investor makes a single subscription to
any one FuturesAccess Fund of $5,000,000 or more, the Investor shall receive
Class D Units in that FuturesAccess Fund. If an Investor previously subscribed
for less than $5,000,000 in a FuturesAccess Fund and then submits an
additional subscription or subscriptions to that FuturesAccess Fund which
brings such Investor's FuturesAccess Investment in that FuturesAccess Fund
over the $5,000,000 threshold, the entire new subscription will be invested in
Class D Units. The Investor's existing Units in that FuturesAccess Fund will
not be converted to Class D Units, but all subsequent subscriptions or
exchanges by such Investor into the same FuturesAccess Fund will be for Class
D Units. Notwithstanding the fact that an Investor's FuturesAccess Investment
in a FuturesAccess Fund equals or exceeds $5,000,000, if that Investor invests
or exchanges into another FuturesAccess Fund in which such Investor's
FuturesAccess Investment is less than $5,000,000, such Investor will not
receive Class D Units in such other FuturesAccess Fund (except as described in
the next paragraph).
New Investors whose initial subscription equals or exceeds $15,000,000 will be
issued Class D Units in each FuturesAccess Fund in which they invest,
irrespective of whether such Investor's FuturesAccess Investments in any one
FuturesAccess Fund equals or exceeds $5,000,000. If an existing Investor,
whose FuturesAccess Investment is less than $15,000,000, makes an additional
subscription immediately after which such Investor's FuturesAccess Investment
equals or exceeds $15,000,000 (including the new subscription), the entire new
subscription will be invested in Class D Units. The Investor's existing Units
will not be converted to Class D Units, but all subsequent subscriptions and
exchanges made by such Investor will be for Class D Units.
Subscriptions made to all FuturesAccess Funds shall be aggregated for purposes
of determining whether an Investor is eligible to invest in Class D or Class I
Units.
Once an Investor is issued Class I or Class D Units, such Investor will
continue to be issued Class I or Class D Units (as applicable) irrespective of
the level of such Investor's FuturesAccess Investment at any future date.
However, if an Investor withdraws entirely from FuturesAccess or a particular
FuturesAccess Fund and subsequently reinvests, such Investor's Class I and/or
Class D Unit eligibility will be determined from the date of such reinvestment
as if the Investor had never previously participated in FuturesAccess or such
FuturesAccess Fund.
Xxxxxxx Xxxxx officers and employees invest in Class I Units without regard to
the $5,000,000 minimum FuturesAccess Investment requirement.
Certain Xxxxxxx Xxxxx clients may invest in Class I Units on different terms
than those described herein, depending on the type of Xxxxxxx Xxxxx Account
held by such clients. In addition, Program Funds may from time to time offer
to certain Xxxxxxx Xxxxx clients a customized Class of Units having different
financial terms than those described herein, provided that doing so does not
have a material adverse effect on existing Investors. Such customized Classes
will generally be designed for Investors who are subject to additional fees on
their investments in the FuturesAccess Funds depending on the type of Xxxxxxx
Xxxxx Account held by such Investors or other reasons, and will not be
generally available to other Investors.
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-4
Investors who are "Qualified Purchasers" (generally, individuals with
$5,000,000 and entities with $25,000,000 of "Net Investments") may also
participate in HedgeAccess, which provides access to "hedge funds" (private
investment funds which primarily trade securities). Investors who participate
in both Programs may aggregate their investments in both Programs toward the
minimum investment levels established for acquiring Class I and Class D Units
established for HedgeAccess and vice versa.
The Exchange Privilege
An Investor exchanging Class A, Class C or Class I Units in a FuturesAccess
Fund for Units in another FuturesAccess Fund will generally receive Units of
the same Class and Series (if there is more than one Series of a Class) in
such other Program Fund. However, if an exchange brings an Investor's
FuturesAccess Investments in a particular FuturesAccess Fund to or over the
$5,000,000 threshold, the entire exchange will be invested in Class D Units.
The Investor's existing Units in such FuturesAccess Fund will not be converted
to Class D Units, but all subsequent subscriptions and exchanges by such
Investor into such FuturesAccess Fund will be for Class D Units.
An Investor exchanging Class D Units in a FuturesAccess Fund for Units in
another FuturesAccess Fund will be issued Class I Units in the latter if the
Investor's FuturesAccess Investments in the latter FuturesAccess Fund total less
than $5,000,000 and such Investor's FuturesAccess Investments in FuturesAccess
overall do not equal or exceed $15,000,000.
Exchanging into a FuturesAccess Fund is the equivalent to making a new
investment in such FuturesAccess Fund (although no sales commissions will be
charged on any exchange) and is subject to all the risks described in the
Confidential Program Disclosure Document. For tax purposes, exchanging out of
a FuturesAccess Fund is treated as a taxable redemption from such
FuturesAccess Fund.
----------------------
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-5
THE XXXXXXX XXXXX FUTURESACCESS(SM) PROGRAM
FUTURESACCESS PROGRAM SUBSCRIPTION AND EXCHANGE AGREEMENT
For Use by U.S. Investors
This FuturesAccess Program Subscription and Exchange Agreement ("Subscription
Agreement") relates to your participation in the Xxxxxxx Xxxxx FuturesAccessSM
Program ("FuturesAccess"). A number of different FuturesAccess Funds are
included in the Program. You must identify the particular FuturesAccess
Fund(s) into which you wish to invest or exchange on the Signature Page
attached hereto. You must submit a new Signature Page each time you wish to
invest in or exchange among FuturesAccess Funds.
-------------------
The Subscriber must complete the Signature Page indicating the specific
FuturesAccess Fund(s) to which the Subscriber wishes to subscribe or into
which the Subscriber wishes to exchange, and acknowledging receipt of the
Confidential Program Disclosure Document.
By completing and executing the Signature Page, the Subscriber is confirming
that the Subscriber has the level of financial sophistication necessary to
evaluate the merits and risks of specialized, non-traditional investments such
as the FuturesAccess Funds, and understands that the speculative and illiquid
nature of an investment in one or more of the FuturesAccess Funds makes such
investment appropriate only for a limited portion of the Subscriber's
portfolio.
The Subscriber also understands and agrees that, although MLAI will use
reasonable efforts to keep the information provided in each Signature Page
strictly confidential, MLAI and/or one or more FuturesAccess Funds may present
the Signature Page and the information provided therein to such parties as
MLAI deems advisable if called upon to establish the availability under any
applicable law of an exemption from registration for the Units, or compliance
with applicable law by any of the FuturesAccess Funds, MLAI or any of their
respective affiliates, or if such information is or may be relevant to an
issue in any action, suit or proceeding to which any FuturesAccess Fund, MLAI
or any of their respective affiliates is a party or by which they are or may
be bound, or upon the request of any regulatory, governmental or
self-regulatory authority.
I. Representations, Warranties and Agreements of the Subscriber. As an
inducement to MLAI to accept the Subscriber's Subscription Agreement, the
Subscriber represents and warrants to MLAI and the applicable FuturesAccess
Fund(s) as follows:
A. Authority and Eligibility
-------------------------
(1) (a) If an individual, the Subscriber (including each individual
joint Subscriber) is at least 21 years old and is legally competent
to execute and deliver the Signature Page and to comply with the
terms of this Subscription Agreement, as well as to discharge the
Subscriber's obligations to the Program.
(b)(i) If an entity (e.g., a corporation, partnership, limited
liability company or trust), the Subscriber is duly authorized and
qualified to become an Investor. If the Subscriber is a passive
investment vehicle, the sponsor of the Subscriber either is duly
registered as a "commodity pool operator" with the Commodity Futures
Trading Commission and a
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-6
member in good standing of the National Futures Association in such
capacity or is exempt from such registration.
(ii) The person (the "Signatory"; the Subscriber and the Signatory
to be referred to collectively as the "Subscriber", unless the
context otherwise requires) executing and delivering the Signature
Page or making an investment or exchange into or from any
FuturesAccess Fund on behalf of the Subscriber has been duly
authorized by the Subscriber to do so. The Subscriber has full right
and power to comply with the terms of this Subscription Agreement,
as well as to discharge its obligations to FuturesAccess, including
under the General Form of Operating Agreement of the FuturesAccess
Funds (the "Operating Agreement").
Entity Subscribers must confirm that they are authorized to invest
in the FuturesAccess Funds, each of which is a speculative,
non-traditional investment. Many entity investors may not, in fact,
be authorized -- pursuant to their charter documents, investment
policies or other applicable provisions -- to invest in the
FuturesAccess Funds.
(2) The Subscriber has had substantive business dealings with Xxxxxxx
Xxxxx and/or a Xxxxxxx Xxxxx Financial Advisor for at least six
months, and believes that Xxxxxxx Xxxxx and/or the Subscriber's
Xxxxxxx Xxxxx Financial Advisor should have sufficient information
to be able to assess the Subscriber's financial position, knowledge
and sophistication.
(3) The Subscriber (and the Subscriber's financial advisors) has
sufficient knowledge and experience in financial and business
matters that the Subscriber is capable of evaluating the merits and
risks of an investment in a FuturesAccess Fund and of making an
informed investment decision regarding the purchase of the Units,
and the Subscriber is able to bear the economic risk of a
speculative investment such as the FuturesAccess Funds, including
the risk of losing the Subscriber's entire investment. The
Subscriber understands that investment in FuturesAccess Funds is
suitable only for a limited portion of the risk segment of the
Subscriber's portfolio, and that the Subscriber's investments in the
FuturesAccess Funds must represent no more than only a limited
portion of the Subscriber's overall portfolio.
(4) The Subscriber (and the Subscriber's financial advisors) has (i)
received and carefully reviewed a copy of the Confidential Program
Disclosure Document including the Part One (B) Confidential Program
Disclosure Document: Trading Advisor Information relating to the
Trading Advisors for the FuturesAccess Funds in which the Subscriber
proposes to invest, and in particular the "Risk Factors" section of
the Part One(A) Confidential Program Disclosure Document:
FuturesAccess Program General Information, and (ii) has carefully
evaluated and understands the various risks of an investment in each
FuturesAccess Fund in which the Subscriber proposes to invest,
including without limitation the limited liquidity, absence of
regulatory oversight and performance volatility of such
FuturesAccess Funds, and the Subscriber can afford to bear such
risks.
(5) The Subscriber (and the Subscriber's financial advisors) has been
afforded the opportunity to ask and receive complete and
satisfactory answers to any questions and to obtain any additional
information and materials the Subscriber has reasonably requested
relating to any FuturesAccess Fund, its proposed operations, the
private placement of the Units, the Trading Advisors and any other
matters related thereto including any additional information which
MLAI possesses or can acquire without unreasonable effort or expense
that is necessary to verify the accuracy of the information included
in the Confidential Program Disclosure Document.
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-7
(6) The Subscriber (and the Subscriber's financial advisors) has relied
only on the information contained in the Confidential Program
Disclosure Document in determining whether to subscribe for Units in
a FuturesAccess Fund or FuturesAccess Funds, irrespective of any
information the Subscriber may have been furnished as described
above.
(7) The Subscriber (and the Subscriber's financial advisors) understands
that any performance information contained in the Confidential
Program Disclosure Document should not be interpreted to mean that
the applicable FuturesAccess Fund or Trading Advisor will have
similar results in the future or avoid substantial losses.
(8) The Subscriber (and the Subscriber's financial advisors)
specifically recognizes and consents to the conflicts of interest
described in the Confidential Program Disclosure Document.
(9) The Subscriber (and the Subscriber's financial advisors)
acknowledges that MLAI has established the business terms of each
FuturesAccess Fund without arm's-length negotiations with any
representatives of prospective investors, and that no party has
represented the investors in establishing the terms of any aspect of
FuturesAccess.
(10) The Subscriber (and the Subscriber's financial advisors) understands
and agrees that Units will be redeemed and MLAI's fees calculated on
the basis of estimated numbers (as well as subsequent revisions of
such numbers), and that no retroactive adjustments will be made to
reflect any differences between estimated and final numbers.
(11) If the Subscriber is an entity, the Subscriber was not formed for
the specific purpose of investing in any FuturesAccess Fund, no more
than 40% of the Subscriber's assets are invested in any
FuturesAccess Fund and investors in the Subscriber participate in
investments made by the Subscriber on a pro rata basis in accordance
with each such investor's interest in the Subscriber (except as
necessary to comply with applicable laws or regulations).
(12) If the Signatory is, or is acting on behalf of, an "employee benefit
plan," as defined in and subject to ERISA, or any "plan," as defined
in and subject to Section 4975 of the Code (a "Plan"), the
Signatory, in addition to the other representations and warranties
set forth herein, further represents and warrants as, or on behalf
of, the fiduciary (the "Plan Fiduciary") of the Plan responsible for
purchasing Units that: (a) the Plan Fiduciary has considered an
investment in the applicable FuturesAccess Fund(s) for such Plan in
light of the risks relating thereto; (b) the Plan Fiduciary has
determined that, in view of such considerations, the proposed
investment in such FuturesAccess Fund(s) is consistent with the Plan
Fiduciary's responsibilities under ERISA; (c) the Plan's investment
in such FuturesAccess Fund(s) 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
such FuturesAccess Fund(s) has been duly authorized and approved by
all necessary parties; (e) none of MLAI, the Trading Advisors, the
Selling Agent, MLIB, the Financial Advisors or any of their
respective agents, employees or affiliates: (i) has investment
discretion with respect to the investment of assets of the Plan used
to purchase Units in such FuturesAccess Fund(s); (ii) has authority
or responsibility to or regularly gives investment advice with
respect to the assets of the Plan used to purchase Units in such
FuturesAccess Fund(s) 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
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-8
decision to invest in such FuturesAccess Fund(s), 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 MLAI, the Trading Advisors, the Selling Agent, MLIB,
each Financial Advisor and each of their respective affiliates and
(iii) is qualified to make such investment decision. The Signatory
will, at the request of MLAI, furnish MLAI with such information as
MLAI may reasonably require to establish that the purchase of Units
by the Subscriber 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.
(13) If the Subscriber is an insurance company using assets of its
general account to purchase Units, the Subscriber hereby represents
and warrants that none of such assets used to purchase the Units of
any FuturesAccess Fund represent the assets of "employee benefit
plans," or the Subscriber has notified MLAI of the percentage of
such assets that represents the assets of "employee benefit plans."
(14) The Subscriber understands that no federal or state agency or
securities exchange has reviewed the Confidential Program Disclosure
Document or the private placement of the Units or has made any
finding or determination as to the fairness of the business terms of
an investment in any FuturesAccess Fund.
(15) The Subscriber is acquiring the Units for the Subscriber's own
account, as principal, for investment and not with a view to the
resale or distribution of all or any of such Units. The Subscriber
understands that, based in part on the representations and
warranties of the Subscriber, and the Units have not been and will
not be registered under the Securities Act of 1933, as amended (the
"Securities Act"), the securities laws of any state, or the
securities laws of any other jurisdiction.
B. Program Restrictions on Exchanges and Transfers
-----------------------------------------------
(1) The Subscriber acknowledges that MLAI is under no obligation to
maintain the FuturesAccess Exchange Privilege and that such Exchange
Privilege may be terminated at any time. The Subscriber must not
invest in any FuturesAccess Fund in reliance on the continuation of
the Exchange Privilege.
(2) In the event that one or more FuturesAccess Funds suspend
redemptions or the calculation of net asset value, the Exchange
Privilege with respect to such FuturesAccess Fund(s) will also be
suspended.
(3) The Subscriber acknowledges that: (i) the transfer of the
Subscriber's Units is subject to restrictions in the Operating
Agreement and requires the approval of MLAI, which approval may be
withheld in its sole discretion; (ii) the Units may not be
transferred to any person that is not an "accredited investor" (as
defined in Regulation D under the Securities Act); (iii) investments
in the FuturesAccess Funds are illiquid; (iv) no market exists for
the Units, and none is expected to develop; and (v) no FuturesAccess
Fund will be listed on any exchange or otherwise regularly traded.
C. Disclosures
-----------
(1) The Subscriber confirms that none of MLAI, the FuturesAccess Funds,
the Trading Advisors, the Selling Agent or any associate, affiliate,
representative or advisor of any of the foregoing, guarantees the
success of an investment in any FuturesAccess Fund or that
substantial losses will not be incurred on such investment.
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-9
(2) The Subscriber understands that the Selling Agent is not
guaranteeing or assuming responsibility for the operation or
possible liabilities of MLAI, any FuturesAccess Fund or any Trading
Advisor, and that neither the Selling Agent nor MLAI will supervise
or participate in any respect in the management or trading decisions
for any FuturesAccess Fund.
(3) The Subscriber understands that MLAI is an indirect subsidiary of
Xxxxxxx Xxxxx & Co., Inc. ("ML&Co."), as well as an affiliate of the
Selling Agent which also serves as the commodity broker for each
FuturesAccess Fund and receives brokerage commissions as well as
interest income (or the equivalent) as a result of acting in such
capacity. The Subscriber also understands that MLIB, an affiliate of
MLAI, may act as a forward currency counterparty for each
FuturesAccess Fund.
(4) The Subscriber understands that, as disclosed in the Confidential
Program Disclosure Document, MLAI will receive a portion of the
advisory compensation which would otherwise be payable to the
relevant Trading Advisor in respect of any FuturesAccess Fund.
(5) The Subscriber acknowledges and agrees that (i) the relevant
FuturesAccess Funds may execute trades, including trades executed on
a principal-to-principal basis, with affiliates of MLAI and (ii)
MLAI may invest the cash reserves of FuturesAccess Funds in
short-term investment vehicles or deposit accounts managed or
maintained by MLAI or an affiliate.
(6) The Subscriber acknowledges and understands that Xxxxxxx Xxxxx may
make the K-1s prepared for the Subscriber in connection with the
Subscriber's investments in the Program Fund(s) accessible to the
Subscriber's Xxxxxxx Xxxxx Financial Advisor, and consents to its
Financial Advisor having access to the Subscriber's K-1s.
D. Tax Issues
----------
(1) The Subscriber confirms, under penalty of xxxxxxx, that the
Subscriber is a U.S. Person, as such term is defined in Section
7701(a)(30) of the Code, and the Subscriber undertakes to advise the
FuturesAccess Fund and MLAI promptly in writing if the Subscriber is
no longer a U.S. Person during the term of the Subscriber's
investment in a FuturesAccess Fund. The Subscriber understands that
if at any time it ceases to be a U.S. Person, it may be subject to
U.S. withholding tax or other consequences as well as being required
to redeem out of the Program.
(2) The Subscriber acknowledges that annual tax information received
from the FuturesAccess Funds may not be received in sufficient time
to permit the Subscriber to incorporate such information into the
Subscriber's own annual tax information prior to April 15 of each
year; as a result, the Subscriber understands that it will likely be
required to obtain extensions for filing U.S. federal, state and
local income tax returns each year.
(3) The Subscriber confirms that, unless otherwise indicated on the
Signature Page, the Subscriber is not subject to backup withholding.
The Subscriber understands that the Program will not accept
subscriptions from the Subscriber if the Subscriber is subject to
backup withholding.
X. Xxxxxxxx and Updating of Subscriber Information
-----------------------------------------------
(1) The Subscriber represents that all the information, financial or
otherwise, which the Subscriber has furnished to the applicable
FuturesAccess Fund(s), the Selling Agent or the Subscriber's Xxxxxxx
Xxxxx Financial Advisor in connection with subscribing for Units
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-10
in any such FuturesAccess Fund(s), or which is set forth on the
Signature Page, including all representations, warranties and
agreements contained herein, is correct and complete as of the date
on which such information was furnished, and if there should be any
material change in such information, the Subscriber will immediately
notify MLAI and the Selling Agent and furnish such revised or
corrected information to MLAI.
(2) The Subscriber agrees that the representations, warranties and
agreements contained in this Subscription Agreement (including the
Signature Page) shall be deemed to be repeated as of the date the
Subscriber purchases Units of any FuturesAccess Fund.
(3) The Subscriber agrees that the representations, warranties and
agreements contained in this Subscription Agreement, and all other
information regarding the Subscriber set forth on the Signature
Page, and any or all other information which the Subscriber
discloses to his or her Xxxxxxx Xxxxx Financial Advisor, may be used
as a defense in any actions relating to any FuturesAccess Fund or
the offering of its Units, and that it is only on the basis of such
representations, warranties, agreements and other information that
MLAI may be willing to accept the Subscriber's subscription to any
FuturesAccess Fund.
F. Trustees, Agents, Representatives and Nominees
----------------------------------------------
If the Subscriber is acting as trustee, agent, representative or nominee
for an investor (a "Beneficial Owner"), the Subscriber understands and
acknowledges that the representations, warranties and agreements made
herein are made by the Subscriber (A) with respect to the Subscriber and
(B) with respect to the Beneficial Owner. The Subscriber further
represents and warrants that it has all requisite power and authority from
said Beneficial Owner to execute and deliver the Signature Page as well as
to invest in the relevant FuturesAccess Fund(s). The Subscriber also
agrees to indemnify each FuturesAccess Fund, MLAI and their respective
affiliates and agents for any and all costs, fees, expenses (including
legal fees and disbursements) and damages incurred in connection with or
from any misrepresentation or misstatement of the Subscriber contained
herein or in the Signature Page or made by the Subscriber to the
Subscriber's Xxxxxxx Xxxxx Financial Advisor, or the assertion of the
Subscriber's lack of proper authorization from the Beneficial Owner to
execute and deliver the Signature Page or to discharge the Subscriber's
obligations hereunder or thereunder.
G. Money Laundering Prevention
---------------------------
The Subscriber's subscription monies were not derived from activities that
may contravene United States (federal or state) or international
anti-money laundering laws and regulations. The Subscriber is not (i) an
individual, entity or organization named on a United States Office of
Foreign Assets Control ("OFAC") "watch list" and does not have any
affiliation with any kind of such individual, (ii) a foreign shell bank,
(iii) a person or entity resident in or whose subscription funds are
transferred from or through a jurisdiction identified as non-cooperative
by the Financial Action Task Force, (iv) a senior foreign political
figure,(1) an immediate family member(2) or close associate(3) of a senior
foreign political figure within the meaning of the USA PATRIOT Act of
----------------------
(1) A "senior foreign political figure" is defined as a senior official in the
executive, legislative, administrative, military or judicial branches of a
non-U.S. government (whether elected or not), a senior official of a major
non-U.S. political party, or a senior executive of a non-U.S. government-owned
corporation. In addition, a "senior foreign political figure" includes any
corporation, business or other entity that has been formed by, or for the
benefit of, a senior foreign political figure.
(2) "Immediate family" of a senior foreign political figure typically includes
the figure's parents, siblings, spouse, children and in-laws.
(3) A "close associate" of a senior foreign political figure is a person who is
widely and publicly known to maintain an unusually close relationship with the
senior foreign political figure, and includes a person who is in a position to
conduct substantial domestic and international financial transactions on behalf
of the senior foreign political figure.
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-11
2001.(4) The Subscriber agrees promptly to notify MLAI should the
Subscriber become aware of any change in the information set forth in this
representation. The Subscriber acknowledges that, by law, MLAI may be
obligated to "freeze the account" of the Subscriber, either by prohibiting
additional subscriptions, declining any redemption requests and/or
segregating the assets in the account in compliance with governmental
regulations, and MLAI may also be required to report such action and to
disclose the Subscriber's identity to OFAC. The Subscriber represents and
warrants that all of the information which it has provided to the Program
in connection with this Subscription Agreement is true and correct, and
agrees to provide any information MLAI or its agents deem necessary to
comply with MLAI's anti-money laundering program and related
responsibilities from time to time. If the Subscriber is an intermediary
subscribing to the Program as a record owner in its capacity as agent,
representative or nominee on behalf of one or more underlying investors
("Underlying Investors"), the Subscriber agrees that the representations,
warranties and covenants are made by it on behalf of itself and the
Underlying Investors.
II. Further Advice and Assurances. The Subscriber agrees to provide additional
information regarding its investment experience, financial position or
otherwise, to MLAI or the Selling Agent, as they may reasonably request.
If the Subscriber is an entity, MLAI, in its sole discretion, may require
the Subscriber to submit a copy of its articles of incorporation, by-laws,
authorizing resolution, partnership agreement, trust agreement, operating
agreement or other related documents, as the case may be. Alternatively,
entities may be required to submit an opinion of counsel to the effect
that the investment proposed to be made in the FuturesAccess Fund(s) by
the Subscriber is authorized.
III. Subscriber Eligibility. THE SUBSCRIBER WILL BE REQUIRED TO REPRESENT ON
THE SIGNATURE PAGE THAT THE SUBSCRIBER SATISFIES ONE OR MORE OF THE
ELIGIBILITY REQUIREMENTS IN SECTION III.A BELOW AND QUALIFIES AS AN
"ACCREDITED INVESTOR," AS DEFINED IN REGULATION D UNDER THE SECURITIES ACT.
A. Accredited Investor Requirements
--------------------------------
Individual Subscribers
----------------------
(1) An individual that has an individual net worth or joint net worth
with such individual's spouse, in excess of $1,000,000. "Net worth"
for these purposes means the value of total assets at fair market
value, including home, home furnishings and automobiles, less total
liabilities.
or
--
(2) An individual that (i) had individual income (exclusive of any
income attributable to such individual's spouse) of more than
$200,000 for each of the past two years or joint income with such
individual's spouse in excess of $300,000 in each of those years and
(ii) reasonably expects to reach the same individual income level,
or the same joint income level, as the case may be, in the current
year.
Entity Subscribers
------------------
(3) A corporation, partnership, limited liability company, Massachusetts
or similar business trust or tax-exempt organization as defined in
Section 501(c)(3) of the Code, that (i) has
-----------------------
(4) The United States "Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001",
Pub. L. No. 107-56 (2001).
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-12
total assets in excess of $5,000,000 and (ii) was not formed for the
specific purpose of investing in the FuturesAccess Fund in question.
or
--
(4) A revocable trust which may be amended or revoked at any time by the
grantors thereof, and of which all of the grantors are "accredited
investors" under either Section III.A(1) or Section III.A (2) above.
or
--
(5) A trust (i) that has total assets in excess of $5,000,000, (ii) that
was not formed for the specific purpose of investing in the
FuturesAccess Fund in question and (iii) the investment decisions of
which are directed by a person who has such knowledge and experience
in business and financial matters as to be capable of evaluating the
merits and risks of an investment in such FuturesAccess Fund.
or
--
(6) A trust for which a bank or savings and loan association is acting
as fiduciary in making the investment decision to subscribe to the
FuturesAccess Fund in question.
or
--
(7) A bank as defined in Section 3(a)(2) of the Securities Act, acting
in its fiduciary or individual capacity, or a savings and loan
association or other institution as defined in Section 3(a)(5) of
the Securities Act.
or
--
(8) An insurance company as defined in Section 2(13) of the Securities
Act, acting in its individual capacity.
or
--
(9) A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended.
or
--
(10) An investment company registered under the Investment Company Act of
1940, as amended (the "Company Act"), or a business development
company as defined in Section 2(a)(48) of the Company Act.
or
--
(11) A Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
or
--
----------------------
U.S. Investors
FuturesAccess Program Subscription and Exchange Agreement
S-13
(12) A plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, which plan
has total assets in excess of $5,000,000.
or
--
(13) A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as amended.
or
--
(14) An employee benefit plan within the meaning of Title I of ERISA
where (i) the investment decision with respect to this investment is
made by a plan fiduciary, as defined in Section 3(21) of ERISA,
which is either a bank, savings and loan association, insurance
company or registered investment adviser, (ii) the employee benefit
plan has assets in excess of $5,000,000 or (iii) the plan is a
self-directed plan, with investment decisions made solely by persons
who are "accredited investors," as defined in the Securities Act.
or
--
(15) An Entity whose equity owners are each "accredited investors," i.e.,
persons meeting the requirements set forth in any of Sections
III.A(1)-(14) above.
IV. Indemnity. The Subscriber agrees to indemnify and hold harmless each
FuturesAccess Fund, MLAI, the Selling Agent and each Investor in respect of all
claims, actions, demands, losses, costs, expenses and damages, whether involving
such parties or third parties, resulting from any inaccuracy in any of the
Subscriber's representations or warranties made to such FuturesAccess Fund,
MLAI, the Selling Agent and/or the Subscriber's Xxxxxxx Xxxxx Financial Advisor
or from any breach of any of the Subscriber's agreements contained in this
Subscription Agreement (including the Signature Page), or from any unsuccessful
securities proceeding brought by the Subscriber against any FuturesAccess Fund,
MLAI or the Selling Agent.
V. Acceptance of the Operating Agreement. The Subscriber agrees that on the
date designated by MLAI as the date when the Subscriber is admitted to a
FuturesAccess Fund or FuturesAccess Funds into which the Subscriber is investing
or exchanging, the Subscriber shall become a Limited Liability Company Member in
each such FuturesAccess Fund. The Subscriber hereby agrees to each and every
term of the Operating Agreement for each such FuturesAccess Fund, to be bound by
all of the terms and conditions of such Operating Agreement(s), and to perform
any obligations therein imposed on the Subscriber.
VI. Power of Attorney. In connection with the acquisition of Units pursuant to
this Subscription Agreement (and the related Signature Page), the Subscriber
does hereby (in addition to, and not by way of limitation of, the Power of
Attorney included in Section 10.02 of the Operating Agreement) irrevocably
constitute and appoint MLAI and each officer thereof, individually, as the
Subscriber's true and lawful representative and attorney-in-fact, with full
power of substitution, in the Subscriber's name, place and stead: (a) (i) to
receive and pay over to the related FuturesAccess Fund(s) on behalf of the
Subscriber, to the extent set forth in the Operating Agreement, all funds
received hereunder and (ii) to complete or correct, on behalf of, and at the
direction of, the Subscriber, all documents to be executed by the Subscriber in
connection with the Subscriber's subscription for Units, including, without
limitation, filling in or amending amounts, dates and other pertinent
information; and (b) to execute, acknowledge, swear to, file and record (if
applicable) on the Subscriber's behalf, and in the appropriate public offices if
relevant: (i) the Operating Agreement (including the power of attorney included
therein); (ii) all instruments which MLAI may deem necessary or appropriate to
reflect virtually any amendment, change or modification of the Operating
Agreement or the Certificate of Formation, including of related FuturesAccess
Fund(s); and
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(iii) all instruments, agreements, and documents which MLAI considers necessary
to, or appropriate for, the operation of the related FuturesAccess Fund(s) as
contemplated in the Confidential Program Disclosure Document and the Operating
Agreement.
The Subscriber agrees and acknowledges that MLAI and the other Investors are
relying on the continued validity of the foregoing Power of Attorney, and that
the Power of Attorney granted hereby shall be deemed to be coupled with an
interest, shall be irrevocable, and shall survive and not be affected by the
subsequent death, incapacity, termination, bankruptcy, insolvency or
dissolution of the Subscriber.
VII. Governing Law; Consent To Jurisdiction. THIS SUBSCRIPTION AGREEMENT
(INCLUDING THE SIGNATURE PAGE) SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO
CONSENT TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS IN THE CITY,
COUNTY AND STATE OF NEW YORK WITH RESPECT TO ANY PROCEEDING OR CLAIM ARISING
HEREUNDER OR OTHERWISE IN RESPECT OF THE PROGRAM.
VIII. General. The Subscriber understands that this Subscription Agreement
(including the Signature Page) submitted by the Subscriber, and the
representations, warranties, agreements and other provisions hereof (and
thereof) as well as all representations and warranties made by the Subscriber
to the Subscriber's Xxxxxxx Xxxxx Financial Advisor: (a) shall be binding upon
the Subscriber and the Subscriber's legal representatives, successors and
assigns; (b) shall survive the Subscriber's admission as an Investor; and (c)
may be executed (by executing the Signature Page) by the Subscriber and
accepted by any FuturesAccess Fund in one or more counterparts as well as in
facsimile, each of which shall be considered an original and all of which
together shall constitute one instrument.
If any provision of this Subscription Agreement (including the Signature Page)
submitted by the Subscriber is determined to be invalid or unenforceable under
any applicable law, then such provision shall be deemed inoperative to the
extent, and only to the extent, of such invalidity or unenforceability and
only in the jurisdiction which reaches such determination. Any such provision
shall be deemed modified to conform with such applicable law. Any provision
hereof which may be held invalid or unenforceable under any applicable law
shall not affect the validity or enforceability of any other provisions
hereof, and to this extent the provisions hereof shall be severable.
IX. Legends.
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IN MAKING AN INVESTMENT DECISION, SUBSCRIBERS MUST RELY ON THEIR OWN
EXAMINATION OF FUTURESACCESS, THE APPLICABLE FUTURESACCESS FUND(S) AND THE
TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THE
PROGRAM HAS NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES
HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THE
CONFIDENTIAL PROGRAM DISCLOSURE DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE UNITS ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT (A) WITH THE PRIOR WRITTEN CONSENT
OF MLAI AND (B) AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
SUBSCRIBERS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE RISKS OF
AN INVESTMENT IN THE FUTURESACCESS FUNDS FOR AN INDEFINITE PERIOD OF TIME.
For Georgia Investors Only.
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THE UNITS HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH (13) OF THE
CODE SECTION 10-5-9 OF THE GEORGIA SECURITIES ACT OF 1973, AND MAY NOT BE
SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT
OR PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT.
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