SUBSCRIPTION AGREEMENT
INSTRUCTIONS: THIS SUBSCRIPTION AGREEMENT MUST BE COMPLETED BY ALL INITIAL
INVESTORS. SEE PAGE B-4 FOR ADDITIONAL INSTRUCTIONS. IF YOU ARE ALREADY A
SHAREHOLDER AND ARE MAKING A SUBSEQUENT INVESTMENT, PLEASE USE AN ADDITIONAL
INVESTMENT FORM (SEE ATTACHED). IF YOU HAVE ANY QUESTIONS REGARDING COMPLETION
OF THIS FORM, PLEASE CALL XXXX XXXXXXX AT (000) 000-0000.
[NAME OF FUND]
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned hereby irrevocably agrees to purchase units of beneficial
interest ("Shares") of [NAME OF FUND] (the "Fund"), a separate portfolio series
of ACP Funds Trust (the "Trust"), with the subscription amount which the
undersigned has indicated below and that the undersigned is otherwise eligible
to purchase. The undersigned acknowledges that the Board of Trustees (the
"Board") of the Fund has the discretion to place the subscribed amount in the
Fund, based on whether the undersigned is an "accredited investor." Terms not
defined herein have the meaning set forth in the Fund's Confidential Private
Placement Memorandum ("Memorandum"). The undersigned acknowledges and agrees
that, unless waived by the Board, purchases must be for a minimum of $25,000,
that additional purchases must be for a minimum of $10,000 and that the Board
may accept or reject any subscription in whole or in part.
INVESTOR REPRESENTATIONS AND AGREEMENTS
In connection with the sale of Shares to the undersigned and to induce the
Fund to issue the Shares, the undersigned hereby represents, warrants and agrees
as follows:
1. The undersigned, by reason of the knowledge and experience in financial
and business matters of the undersigned and the access which the undersigned has
had to information about the Fund (including an opportunity to ask questions of
the officers of the Fund and receive answers concerning the Fund's operations),
believes that the undersigned is capable of evaluating the merits and risks of
an investment in the Shares.
2. The undersigned acknowledges receipt of a copy of the Memorandum,
setting forth the relevant terms and conditions of this investment, as well as
all such information as the undersigned deems necessary or appropriate as a
prudent and knowledgeable investor in evaluating the purchase of Shares. The
undersigned has carefully read the Memorandum, including particularly the
portions thereof entitled "Risk Factors" and "Fees and Expenses." The
undersigned acknowledges that the Board has made available the opportunity to
obtain additional information to verify the accuracy of the information
contained in the Memorandum and to evaluate the merits and risks of this
investment. The undersigned acknowledges that the undersigned has had an
opportunity to ask questions of the officers and representatives of the Fund
regarding the prospects of the Fund or otherwise related to the merits and risks
of this investment and, to the extent the undersigned has taken advantage of
such opportunity, has received satisfactory answers concerning the terms and
conditions of the offering and the information in the Memorandum. In reaching
the conclusion that the undersigned desires to acquire Shares, the undersigned
acknowledges, represents and warrants that the undersigned has carefully
evaluated the financial resources, net worth and investment position of the
undersigned, including with respect to natural persons all investments in
securities that are not readily marketable, and the risks associated with this
investment and acknowledges, represents and warrants that the undersigned is
able to bear the economic risks of this investment, could sustain a loss of the
entire investment in the Shares and, with respect to natural persons, has
adequate net worth to provide for current needs and no need for liquidity in the
Shares.
3. The undersigned acknowledges that pursuant to the terms of the Trust's
Declaration of Trust and the Fund's Memorandum, Shares in the Fund are
non-transferable without the written consent of the Board, and that no
shareholder will have the right to require the Fund to redeem Shares or portions
thereof. Shareholders may not be able to liquidate their investment other than
as a result of repurchases of Shares by the Fund, which are scheduled to occur
at least twice a year. In addition, the undersigned hereby represents, warrants
and agrees that the undersigned is acquiring
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Shares solely for the account of the undersigned, for investment and not on
behalf of other persons or with the view to the distribution or resale thereof.
The undersigned further represents that the financial condition of the
undersigned is such that the undersigned is not under any present necessity or
constraint to dispose of any of such Shares to satisfy any existing or
contemplated debt or undertaking. The undersigned further represents that the
undersigned has no present or contemplated agreement, undertaking, arrangement,
obligation, indebtedness or commitment providing for or which is likely to
compel a disposition in any manner of any of the Shares, that the undersigned is
not aware of any circumstances presently in existence which are likely to
promote in the future any disposition by the undersigned of the Shares and that
the undersigned does not have in mind any sale of any Shares upon the occurrence
or nonoccurrence of any predetermined or undetermined event or circumstance.
4. The undersigned understands that the Fund is not currently issuing
certificates to shareholders.
5. The undersigned understands that no federal or state agency has
recommended or endorsed the purchase of the Shares or passed upon the adequacy
of the information set forth in the Memorandum.
6. The undersigned acknowledges that neither the Fund, the Board nor any
person acting on behalf of the Fund or the Board offered the Shares by means of
any form of general advertising, such as media advertising or seminars.
7. All of the negotiations concerning this transaction have been carried
on solely by the parties and their respective employees, counsel and financial
advisors. Except as otherwise agreed to by the Fund, the undersigned has not
dealt with any unaffiliated broker or other person who could claim a broker's
fee or other remuneration with regard to any purchase of the Shares nor is the
undersigned aware of any commission or other remuneration being paid or given or
to be paid or given directly or indirectly with regard to such purchase. The
undersigned has relied upon the undersigned's own legal counsel as to all legal
matters and questions presented with reference to the offering and has relied
upon the accountant or other financial advisor of the undersigned and/or the
financial experience of the undersigned as to all financial matters and
questions presented with reference to this offering.
8. The undersigned agrees that the Board's acceptance of this Subscription
Agreement on behalf of the Fund shall in no way obligate the Fund to proceed
with the offering described in the Memorandum or to complete such offering and
acknowledges that the Fund has the right, in its sole and absolute discretion,
to abandon the offering at any time prior to completion thereof and to return
the purchase price of the Shares, without interest.
9. The undersigned hereby agrees that this subscription is irrevocable and
that the representations and warranties set forth in this Subscription Agreement
shall survive the acceptance hereof by the Board on behalf of the Fund and that
said representations and warranties will be deemed reaffirmed at any time the
undersigned makes an additional purchase of Shares.
10. This Subscription Agreement and the representations set forth herein
shall become effective and binding upon the undersigned, and upon the
undersigned's heirs, legal representatives, successors and assigns, upon the
Board's acceptance hereof, on behalf of the Fund, in the space provided below.
11. The undersigned fully comprehends the terms, conditions and
consequences related to this offering, including the possibility that the
undersigned must hold the Shares indefinitely, and agrees that the laws of the
State of Delaware shall apply to this transaction.
12. If the investment contemplated herein is being undertaken by an IRA,
then the undersigned is the custodian, trustee or other legal owner of the
assets of the IRA. In addition, the execution and delivery of this Subscription
Agreement and the investments contemplated hereby have been duly authorized in
accordance with the provisions of the instrument or instruments governing such
IRA, and this subscription and the investments contemplated hereby are in
accordance with all requirements applicable to such IRA under its governing
instrument or instruments and under the Code. Additionally, the undersigned
represents that the person exercising investment discretion with respect to the
investment contemplated herein is a person (who is not the Trust's investment
manager, placement agent, transfer agent, trustee or affiliate thereof) who has
concluded that an investment in the Shares of the Fund is appropriate and that
such person has not relied upon the Trust's investment manager, placement agent,
transfer agent, trustee or affiliate any thereof as a primary basis for its
decision in directing this investment into Shares of the Fund. For purposes of
this section, an "IRA" shall mean an "individual retirement account" as defined
in section 408 of the Internal Revenue Code of 1986, as amended.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this ____ day of ________________, _____.
MANNER IN WHICH TITLE IS TO BE HELD (check one)
___ Individual Ownership ___ Partnership(1)
___ Joint Tenant with Right of Survivorship ___ Corporation(1)
(both parties must sign) ___ Other1_______
___ Trust/IRA1
___ Tenants in Common
(both parties must sign)
Subscription Amount $______________________________ (Minimum $25,000)
INDIVIDUALS, TRUSTS, PARTNERSHIPS OR JOINT OWNER OR ADDITIONAL REQUIRED SIGNATURE
OTHER ENTITIES(2) (IF ANY)
INSTRUCTION: THIS COLUMN MUST BE COMPLETED INSTRUCTION: THIS COLUMN SHOULD ONLY BE
BY ALL INVESTORS. COMPLETED FOR JOINT TENANTS OR TENANTS IN
COMMON (OR FOR AN ENTITY THAT REQUIRES TWO
SIGNATURES).
------------------------------------------ ------------------------------------------
Name of Individual or Entity Name of Individual or Entity
------------------------------------------ ------------------------------------------
Signature Signature
------------------------------------------ ------------------------------------------
Title (if any) Title (if any)
------------------------------------------ ------------------------------------------
Street Address Street Address
------------------------------------------ ------------------------------------------
City, State and Zip Code City, State and Zip Code
------------------------------------------ -----------------------------------------
Tax ID or Tax ID or
Social Security Number Social Security Number
----------
(1) Entities (including trusts and partnerships) must also have the
Certificate of Signatory attached hereto executed.
(2) By executing this Subscription Agreement and inserting the Tax
Identification or Social Security Number, the undersigned is certifying
(i) that the Social Security or Tax Identification number is true and
complete, and (ii) that the undersigned, or entity on whose behalf the
undersigned is signing, is not subject to backup withholding either
because the person has not been notified that such person is subject to
backup withholding as a result of a failure to report all interest or
dividends, or the Internal Revenue Service has notified the person that
such person is no longer subject to backup withholding. (Please cross out
the statement in (ii) if the IRS has notified the subscriber that such
person is subject to backup withholding because of underreporting of
interest or dividends.)
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INSTRUCTIONS
1. For this Subscription Agreement to constitute a valid subscription for
Shares, it must be executed in duplicate by the undersigned and must be returned
to the Board. A Subscription Agreement may be accepted by the Board on behalf of
the Fund as of the first day of each month.
2. This Subscription Agreement will become effective only upon the Board's
acceptance hereof, on behalf of the Fund, in the space provided below. If, after
reviewing the qualifications of the undersigned, the Board determines to accept
this Subscription Agreement as to any or all of the amount for which
subscription is hereby made, the Board will execute this Subscription Agreement
in duplicate and will return one executed copy to the undersigned.
3. This Subscription Agreement and accompanying documents should be
returned to the Fund c/o the Board of Trustees at the following address: 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000. Payment should be made
by certified check payable to the Fund. Wire transfer instructions to the Fund's
custodial account are available by contacting Xxxx Xxxxxxx at (000) 000-0000.
4. If the investor is an entity (I.E., a trust, partnership, corporation
or other organization), the Certificate of Signatory attached hereto must be
executed by a duly authorized person.
B-4
CERTIFICATE OF SIGNATORY
INSTRUCTION: THIS CERTIFICATE OF SIGNATORY SHOULD BE COMPLETED IF THE INVESTOR
IS AN ENTITY. IF TWO SIGNATURES ARE REQUIRED BY THE ENTITY, PLEASE COMPLETE A
CERTIFICATE OF SIGNATORY FOR EACH PERSON SIGNING THE SUBSCRIPTION AGREEMENT.
I, _________________________________________, am the _________________ of
____________________________________________ ("Entity").
I certify that I am empowered and duly authorized by the Entity to execute
and carry out the terms of the Subscription Agreement and to purchase and hold
the Shares, and certify further that the Subscription Agreement has been duly
and validly executed on behalf of the Entity and constitutes a legal and binding
obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this ___ day of_________________.
----------------------------------
(Signature)
B-5
ACCEPTANCE
The Board of Trustees of ACP Funds Trust hereby accepts the subscription
embodied in the Subscription Agreement as to $____________ of Shares of [NAME OF
FUND], which shall be effective on ____________________, on all the terms and
conditions set forth herein and in the Memorandum.
ACP Funds Trust
By: ___________________________
Its: __________________________
Date: _________________________
B-6
PURCHASER SUITABILITY QUESTIONNAIRE
INSTRUCTIONS: THIS QUESTIONNAIRE MUST BE COMPLETED BY ALL INITIAL INVESTORS.
PLEASE CALL XXXX XXXXXXX AT (000) 000-0000 IF YOU HAVE ANY QUESTIONS ON
COMPLETING THIS QUESTIONNAIRE.
[NAME OF FUND]
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned is furnishing the information contained herein to you in
order to enable you to determine whether the subscription of the undersigned to
purchase units of beneficial interest ("Shares") in [NAME OF FUND] (the "Fund"),
a series of ACP Funds Trust (the "Trust"), may be accepted in accordance with
the provisions of the Securities Act of 1933, as amended ("Act"), including
Section 4(2) thereof, and Regulation D promulgated by the Securities and
Exchange Commission thereunder. The undersigned understands that (a) you will
rely on the information contained herein for the purposes of making such
determination, (b) the Shares will not be registered under the Act in reliance
upon the exemptions from registration afforded by Section 4(2) of the Act and
Regulation D promulgated thereunder and (c) this Questionnaire is not an offer
of any Shares or any other securities to the undersigned.
The undersigned hereby makes the following representations and provides
the following information:
(1) PLEASE INITIAL IN THE SPACE PROVIDED ALL APPLICABLE ITEMS IN
SUBSECTION (A), IF ANY, AND ONE ALTERNATIVE IN SUBSECTION (B), IF ANY.
(a) The undersigned is an "Accredited Investor" as defined in Rule 501(a)
under the Act because:
INDIVIDUALS
___ (i) The undersigned, individually or jointly with his or her spouse,
has a net worth in excess of $1,000,000; or
___ (ii) The undersigned has had individual income in excess of $200,000 or
jointly with his or her spouse has had income in excess of
$300,000 in each of the two most recent years and reasonably
expects to have income in excess of such levels in the current
year; or
TRUSTS/IRAS
___ (iii) The undersigned is a trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring the
Shares, whose purchases are directed by a person who qualifies
under either (i) or (ii), above; or
___ (iv) The undersigned is a revocable grantor trust and the grantors of
such trust qualify as accredited investors under either (i) or
(ii), above; or
___ (v) The undersigned is an individual retirement account (IRA) and the
owner of such account qualifies as an accredited investor under
(i) or (ii), above; or
PARTNERSHIPS/CORPORATIONS OR OTHER ENTITIES
___ (vi) The undersigned is a corporation, partnership or other entity, all
the equity investors of which satisfy either (i) or (ii), above;
or
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___ (vii) The undersigned is a corporation or partnership which was not
formed for the specific purpose of acquiring the Shares, with
total assets in excess of $5,000,000; or
___ (viii) The undersigned is an employee benefit plan within the meaning of
Title I of ERISA (i) whose plan fiduciary is either a bank,
insurance company or registered investment advisor or (ii) whose
total assets exceed $5,000,000. If the decision to invest in the
Fund is not made by the plan fiduciary, each participant in the
plan must be an "accredited investor."
(b) SELECT ONE OF THE FOLLOWING. Persons who do not qualify under one of the
following subsections may not purchase Shares in the offering regardless
of whether they qualify under Section (a), above.
___ (i) The undersigned is a natural person with a net worth (I.E., total
assets minus total liabilities) of $1.5 million as of the date
hereof, either alone or with such person's spouse, or the
undersigned will invest at least $750,000 in the Fund; or
___ (ii) The undersigned is a corporation, partnership, association, joint
stock company, trust or any other organized group of persons
________________________ (insert form of organization) with a net
worth (i.e., total assets minus total liabilities) of $1.5 million
as of the date hereof or the undersigned will invest at least
$750,000 in the Fund. In addition, the undersigned represents and
warrants that if the undersigned is (x) an entity that would be a
registered investment company but for the exception provided from
that definition in Section 3(c)(1) of the Investment Company Act
of 1940, as amended (the "Investment Company Act"), (y) a
registered investment company under the Investment Company Act or
(z) a business development company within the meaning of Section
202(a)(22) of the Investment Advisers Act of 1940, as amended (the
"Investment Advisers Act"), each of its equity owners
independently meet the requirements of either Subsection (b)(i),
(b)(ii) or (b)(iii); or
___ (iii) The undersigned is an executive officer or director of Ascendant
Capital Partners, LLC (the "Investment Manager") or employee of
the Investment Manager who, in connection with such person's
regular functions or duties participates in the investment
activities of the Investment Manager and has performed such
activities for the Investment Manager or another investment
adviser for at least 12 months.
(2) The undersigned is willing and able to bear the economic risk of an
investment in the Shares in an amount equal to the total amount for which the
undersigned desires to subscribe. In making the foregoing statement, the
undersigned has given consideration to whether the undersigned can afford to
hold the Shares indefinitely and whether, at the present time, the undersigned
can afford a complete loss of such investment. The undersigned has further
considered that the minimum investment in the Fund is $25,000.
(3) Any purchase of Shares will be solely for the account of the
undersigned and not for the account of any other person or with a view to any
resale, division or other distribution thereof.
(4) The undersigned hereby warrants and represents to you that (a) the
information contained herein is true, accurate and complete and may be relied
upon by you and (b) the undersigned will notify you immediately of any material
change in any of the information contained herein occurring prior to your
acceptance of any subscription from the undersigned with respect to the
undersigned's purchase of any Shares now or in the future.
ITEMS (5)-(8) MUST BE PROVIDED BY EACH PROSPECTIVE OFFEREE:
(5) Name(s) of Offeree(s): _____________________________________________
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Age(s) (for natural persons only):________________________
(6) Home Address and Telephone Number: ________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(7) Employer or Business Association and Position: ____________________
________________________________________________________________________
________________________________________________________________________
(8) Business Address and Telephone Number: ____________________________
________________________________________________________________________
________________________________________________________________________
IN WITNESS WHEREOF, the undersigned has executed this Purchaser
Suitability Questionnaire this ______ day of ____________, _____.
IF THE OFFEREE IS A CORPORATION,
IF THE OFFEREE IS AN INDIVIDUAL: PARTNERSHIP, TRUST OR OTHER ENTITY:
----------------------------------- ------------------------------------
Signature of Offeree Print or Type Name of Offeree
By:
----------------------------------- ------------------------------------
Signature of Joint Offeree, if any
----------------------------------- ------------------------------------
Print or Type Name(s) of Offeree(s) Print or Type Name and Title
C-3
ADDITIONAL INVESTMENT FORM
[NAME OF FUND]
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned shareholder of [NAME OF FUND] (the "Fund"), a series of
ACP Funds Trust (the "Trust"), hereby makes the following additional investment
in the Fund in accordance with the terms of the Declaration of Trust of the
Trust and the Confidential Private Placement Memorandum of the Fund. The
undersigned agrees that this additional investment will not be effective until
the Board of Trustees' acceptance below. In connection with this additional
investment, the undersigned agrees that the representations, warranties and
agreements contained in the undersigned's Subscription Agreement remain true and
correct and agrees to all the terms and conditions contained therein.
Additional Investment Amount $____________ (Minimum $10,000)
INSTRUCTION: THIS FORM SHOULD BE SIGNED IN THE SAME MANNER AND BY THE SAME
PERSONS AS THE ORIGINAL SUBSCRIPTION AGREEMENT.
INDIVIDUALS, TRUSTS, PARTNERSHIPS JOINT OR ADDITIONAL REQUIRED SIGNATURE
OR OTHER ENTITIES (IF ANY)
----------------------------------- ------------------------------------
Name of Individual or Entity Name of Individual or Entity
----------------------------------- ------------------------------------
Signature Signature
----------------------------------- ------------------------------------
Title (if any) Title (if any)
D-1
ACCEPTANCE
The Board of Trustees of ACP Funds Trust hereby accepts the additional
investment embodied in the Additional Investment Form as to $______________ of
Shares of [NAME OF FUND], which shall be effective on
_________________________________, on all the terms and conditions set forth
herein and in the Memorandum.
ACP Funds Trust
By:
--------------------------------
Its:
-------------------------------
Date:
------------------------------
D-2
REPURCHASE REQUEST FORM
[NAME OF FUND]
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned hereby requests repurchase by [NAME OF FUND] (the "Fund"),
a series of ACP Funds Trust (the "Trust"), of: (Please check one of the
following alternatives)
|_| $_______________ of my Shares
|_| All of my Shares
The undersigned understands that the repurchase will be effected in accordance
with the terms and conditions of the Declaration of Trust of the Trust and as
set forth in the Confidential Private Placement Memorandum of the Fund, as
amended and supplemented from time to time. Shareholders choosing to tender
Shares (or portions thereof) for repurchase must do so by the date specified in
the notice describing the terms of the offer (the "Expiration Date"), which
generally will be sixty (60) days before the date as of which Shares are to be
repurchased. The undersigned (either in his or her individual capacity or as an
authorized representative of an entity, if applicable) hereby represents and
warrants that the undersigned is the true, lawful and beneficial owner of the
Shares of the Fund to which this Repurchase Request relates with full power and
authority to request repurchase of such Shares. Such Shares are not subject to
any pledge or otherwise encumbered in any fashion.
SIGNATURES MUST BE IDENTICAL TO NAME(S) IN WHICH SHARES ARE REGISTERED.
----------------------------------- ------------------------------------
Name(s) Street Address
----------------------------------- ------------------------------------
City State Zip Code
----------------------------------- ------------------------------------
(Signature and title (if applicable)) (Signatures of joint owner (if any))
Date: ________________
(PLEASE ATTACH ANY SPECIAL DELIVERY INSTRUCTIONS FOR THE PROCEEDS OF SHARES TO
BE REDEEMED HEREBY).
