EXHIBIT B SUBSCRIPTION AGREEMENT AND POWER OF ATTORNEY
Exhibit
99.2P
EXHIBIT
B
SUBSCRIPTION AGREEMENT AND
POWER OF ATTORNEY
Instructions: This
Subscription Agreement must be completed by all initial
investors. See page B-4 for additional instructions. If
you are already a member and are making a subsequent investment, please use an
Additional Investment Form (See Exhibit D). If you have any questions
regarding completion of this form, please call ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at (▇▇▇)-▇▇▇-▇▇▇▇
▇▇▇▇▇.
ACP
Strategic Opportunities Fund II, LLC
c/o
Ascendant Capital Partners, LP
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Berwyn,
PA 19312
Ladies
and Gentlemen:
The
undersigned hereby irrevocably agrees to purchase the membership units (“Units”)
that may be purchased with the subscription amount which the undersigned has
indicated below and that the undersigned is otherwise eligible to
purchase. The undersigned acknowledges that the Board of Directors
(the “Board”) of ACP Strategic Opportunities Fund II, LLC (the “Company”) has
the discretion to place the subscribed amount in the Company, based on whether
the undersigned is an “accredited investor.” Terms not defined herein
have the meaning set forth in the Company’s Confidential Private Placement
Memorandum (“Memorandum”). The undersigned acknowledges and agrees
that, unless waived by the Company, purchases must be for a minimum of $100,000,
that additional purchases must be for a minimum of $25,000 and that the Company
may accept or reject any subscription in whole or in part.
Investor
Representations and Agreements
In
connection with the sale of Units to the undersigned and to induce the Company
to issue the Units, the undersigned hereby represents, warrants and agrees as
follows:
1. The
undersigned, by reason of the knowledge and experience in financial and business
matters of the undersigned and the access which the undersigned has had to
information about the Company (including an opportunity to ask questions of the
officers of the Company and receive answers concerning the Company’s
operations), believes that the undersigned is capable of evaluating the merits
and risks of an investment in the Units.
2. The
undersigned acknowledges receipt of a copy of the Memorandum, setting forth the
relevant terms and conditions of this investment, as well as all such
information as the undersigned deems necessary or appropriate as a prudent and
knowledgeable investor in evaluating the purchase of Units. The
undersigned has carefully read the Memorandum, including particularly the
portions thereof entitled “Risk Factors” and “Fees and Expenses.” The
undersigned acknowledges that the Board has made available the opportunity to
obtain additional information to verify the accuracy of the information
contained in the Memorandum and to evaluate the merits and risks of this
investment. The undersigned acknowledges that the undersigned has had
an opportunity to ask questions of the officers and representatives of the
Company regarding the prospects of the Company or otherwise related to the
merits and risks of this investment and, to the extent the undersigned has taken
advantage of such opportunity, has received satisfactory answers concerning the
terms and conditions of the offering and the information in the
Memorandum. In reaching the conclusion that the undersigned desires
to acquire Units, the undersigned acknowledges, represents and warrants that the
undersigned has carefully evaluated the financial resources, net worth and
investment position of the undersigned, including with respect to natural
persons all investments in securities that are not readily marketable, and the
risks associated with this investment and acknowledges, represents and warrants
that the undersigned is able to bear the economic risks of this investment,
could sustain a loss of the entire investment in the Units and, with respect to
natural persons, has adequate net worth to provide for current needs and no need
for liquidity in the Units.
B-1
3. The
undersigned acknowledges that pursuant to the terms of the Company’s Operating
Agreement, Units in the Company are non-transferable without the written consent of the
Board, and that no member will have the right to require the Company to
redeem Units or portions thereof. Members may not be able to
liquidate their investment other than as a result of repurchases of Units by the
Company, which are scheduled to occur at least twice a year. In
addition, the undersigned hereby represents, warrants and agrees that the
undersigned is acquiring Units solely for the account of the undersigned, for
investment and not on behalf of other persons or with the view to the
distribution or resale thereof. The undersigned further represents
that the financial condition of the undersigned is such that the undersigned is
not under any present necessity or constraint to dispose of any of such Units to
satisfy any existing or contemplated debt or undertaking. The
undersigned further represents that the undersigned has no present or
contemplated agreement, undertaking, arrangement, obligation, indebtedness or
commitment providing for or which is likely to compel a disposition in any
manner of any of the Units, that the undersigned is not aware of any
circumstances presently in existence which are likely to promote in the future
any disposition by the undersigned of the Units and that the undersigned does
not have in mind any sale of any Units upon the occurrence or nonoccurrence of
any predetermined or undetermined event or circumstance.
4. The
undersigned understands that the Company is not currently issuing certificates
to members.
5. The
undersigned understands that no federal or state agency has recommended or
endorsed the purchase of the Units or passed upon the adequacy of the
information set forth in the Memorandum.
6. The
undersigned acknowledges that neither the Company, the Board nor any person
acting on behalf of the Company or the Board offered the Units by means of any
form of general advertising, such as media advertising or seminars.
7. All
of the negotiations concerning this transaction have been carried on solely by
the parties and their respective employees, counsel and financial
advisors. The undersigned has not dealt with any unaffiliated broker
or other person who could claim a broker’s fee or other remuneration with regard
to any purchase of the Units nor is the undersigned aware of any commission or
other remuneration being paid or given or to be paid or given directly or
indirectly with regard to such purchase. The undersigned has relied
upon the undersigned’s own legal counsel as to all legal matters and questions
presented with reference to the offering and has relied upon the accountant or
other financial advisor of the undersigned and/or the financial experience of
the undersigned as to all financial matters and questions presented with
reference to this offering.
8. The
undersigned agrees that the Board’s acceptance of this Subscription Agreement on
behalf of the Company shall in no way obligate the Company to proceed with the
offering described in the Memorandum or to complete such offering and
acknowledges that the Company has the right, in its sole and absolute
discretion, to abandon the offering at any time prior to completion thereof and
to return the purchase price of the Units, without interest.
9. The
undersigned hereby agrees that this subscription is irrevocable and that the
representations and warranties set forth in this Subscription Agreement shall
survive the acceptance hereof by the Board on behalf of the Company and that
said representations and warranties will be deemed reaffirmed at any time the
undersigned makes an additional purchase of Units.
10. This
Subscription Agreement and the representations set forth herein shall become
effective and binding upon the undersigned, and upon the undersigned’s heirs,
legal representatives, successors and assigns, upon the Board’s acceptance
hereof, on behalf of the Company, in the space provided below.
11. The
undersigned fully comprehends the terms, conditions and consequences related to
this offering, including the possibility that the undersigned must hold the
Units indefinitely, and agrees that the laws of the State of Delaware shall
apply to this transaction.
12. The
undersigned acknowledges that by executing this Subscription Agreement that the
undersigned is appointing the Board as the undersigned’s attorney-in-fact for,
among other purposes, execution of the Operating Agreement and that such
execution by the Board as attorney-in-fact for the undersigned will obligate the
undersigned as if the undersigned executed the Operating
Agreement.
B-2
Power
of Attorney
The
undersigned hereby irrevocably constitutes, and empowers to act alone, the
Board, as the undersigned’s attorney-in-fact with authority to execute,
acknowledge and swear to all instruments and file all documents requisite to
carry out the intention and purpose of this Subscription Agreement and Power of
Attorney, including without limitation, the Company’s Operating Agreement, all
amendments to the Operating Agreement and any schedules thereto effected in
accordance with the Operating Agreement, all amendments to the Certificate of
Formation filed with the Delaware Secretary of State and the Operating Agreement
and all business certificates and other certificates and amendments thereto to
be executed and/or filed from time to time in accordance with applicable
laws. This Power of Attorney authorizes the Board to appoint its
substitute under this Power of Attorney.
The
foregoing appointment shall be deemed to be a power coupled with an interest in
recognition of the fact that each of the members will be relying upon the power
of the manager to act as contemplated in the Operating Agreement in such filing
and other action by it on behalf of the Company. The foregoing power
of attorney shall be irrevocable and shall survive the incapacity, bankruptcy,
insolvency, death, dissolution or termination of the undersigned.
The
undersigned acknowledges that the terms of the Operating Agreement permit
certain amendments to the Operating Agreement, the schedules thereto and the
articles of organization to be effected and certain other actions to be taken or
omitted by, or with respect to, the Company, in each case with the approval of
less than all the members. If, and when (i) such an amendment is
proposed or such an action is proposed to be taken or omitted by, or with
respect to, the Company which requires, under the terms of the Operating
Agreement, actual consent of less than all the members, and (ii) the consent of
those members whose consent is required has been given in the manner
contemplated by the Operating Agreement, then each non-consenting member agrees
that the attorney-in-fact specified above, with full power of substitution, is
hereby authorized and empowered to make, swear to, verify, deliver, record, file
and/or publish, for and on behalf of such non-consenting member, and in such
member’s name, place and stead, any and all instruments and documents which may
be necessary or appropriate under Delaware law and any and all other applicable
laws and regulations to permit such amendment to be lawfully made or action
lawfully taken or omitted. Each consenting and non-consenting member
is fully aware that such member and each other member had executed this, or a
similar, Power of Attorney and that each member will rely on the effectiveness
of such powers with a view to the orderly administration of the Company’s
affairs.
Indemnification
The
undersigned ▇▇▇▇▇▇ agrees to indemnify the Board from liability to the extent
provided in Section 3.7 of the Operating Agreement.
B-3
INSTRUCTIONS
1. For
this Subscription Agreement and Power of Attorney to constitute a valid
subscription for membership Units, it must be executed in duplicate by the
undersigned and must be returned to the Board. A Subscription
Agreement and Power of Attorney may be accepted by the Board on behalf of the
Company as of the first day of each month.
2. This
Subscription Agreement and Power of Attorney will become effective only upon the
Board’s acceptance hereof, on behalf of the Company, in the space provided
below. If, after reviewing the qualifications of the undersigned, the
Board determines to accept this Subscription Agreement as to any or all of the
amount for which subscription is hereby made, the Board will designate which
Company the investor is eligible to invest in, execute this Subscription
Agreement and Power of Attorney in duplicate, and will return one executed copy
to the undersigned.
3. This
Subscription Agreement and Power of Attorney and accompanying documents should
be returned to the Company c/o the Board of Directors at the following address,
Ascendant Capital Partners, LP., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Payment should be made by certified check payable
to the Company. Wire transfer instructions to the Company’s custodial
account are available by contacting ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇.
4. If
the investor is an entity (i.e., a trust, partnership,
corporation or other organization), the Certificate of Signatory attached hereto
must be executed by a duly authorized person.
IN
WITNESS WHEREOF, the undersigned has executed this Subscription Agreement this
____ day of ________________, _____.
▇▇▇▇▇▇ in Which Title is to
be Held (check one)
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Individual
Ownership
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Partnership1
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Joint
Tenant with Right of Survivorship (both parties must sign)
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o
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Corporation1
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o
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Trust/IRA1
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o
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Other1_____________
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o
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Tenants
in Common (both parties must sign)
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Subscription
Amount $
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(Minimum
$100,000)
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Name of
Custodian:
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Custodian
Account Number:
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Custodian
TIN#:
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Name of Adviser to be
copied on Statements:
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(if
Applicable)
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Firm
Name:
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Address:
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Address:
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Phone:
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Email:
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1 Entities (including trusts and partnerships) must also have the Certificate of Signatory attached hereto executed.
B-4
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Individuals, Trusts,
Partnerships or other Entities2
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Joint
Owner or Additional Required Signature (if any)
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Instruction: this
column must be completed by all
investors.
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Instruction: this
column should only be completed for joint tenants or tenants in common (or
for an entity that requires two signatures).
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Name
of Individual or Entity
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Name
of Individual or Entity
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Signature
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Signature
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Title
(if any)
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Title
(if any)
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Street
Address
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Street
Address
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City,
State and Zip Code
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City,
State and Zip Code
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Tax
ID or Social Security Number
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Tax
ID or Social Security Number
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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.)
B-5
CERTIFICATE
OF SIGNATORY
Instruction: This
Certificate of Signatory should be completed if the investor is an
entity. If two signatures are required by the entity, please complete
a Certificate of Signatory for each person signing the Subscription
Agreement.
I,
_________________________________________, am the
__________________________________ of
____________________________________________ (“Entity”).
I certify
that I am empowered and duly authorized by the Entity to execute and carry out
the terms of the Subscription Agreement and Power of Attorney and to purchase
and hold the Units, and certify further that the Subscription Agreement and
Power of Attorney has been duly and validly executed on behalf of the Entity and
constitutes a legal and binding obligation of the Entity.
IN
WITNESS WHEREOF, I have set my hand this ___ day of
_________________________.
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(Signature)
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B-6
ACCEPTANCE
The Board
of Directors of ACP Strategic Opportunities Fund II, LLC, on behalf of ACP
Strategic Opportunities Fund II, LLC, hereby accepts the subscription embodied
in the Subscription Agreement and Power of Attorney as to $____________ of
membership Units, which shall be effective on ____________________, on all the
terms and conditions set forth herein and in the Memorandum.
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ACP
Strategic Opportunities Fund II, LLC
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By:
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Its:
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Date:
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B-7
EXHIBIT
C
PURCHASER SUITABILITY
QUESTIONNAIRE
Instructions: This
Questionnaire must be completed by all initial
investors. Please call ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇
if you have any questions on completing this Questionnaire.
ACP
Strategic Opportunities Fund II, LLC
c/o
Ascendant Capital Partners, LP
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Berwyn,
PA 19312
Ladies
and Gentlemen:
The
undersigned is furnishing the information contained herein to you in order to
enable you to determine whether the subscription of the undersigned to purchase
membership units (“Units”) in ACP Strategic Opportunities Fund II, LLC (the
“Company”) may be accepted in accordance with the provisions of the Securities
Act of 1933, as amended (“Act”), including Section 4(2) thereof, and Regulation
D promulgated by the Securities and Exchange Commission
thereunder. The undersigned understands that (a) you will rely on the
information contained herein for the purposes of making such determination, (b)
the Units will not be registered under the Act in reliance upon the exemptions
from registration afforded by Section 4(2) of the Act and Regulation D
promulgated thereunder and (c) this Questionnaire is not an offer of any Units
or any other securities to the undersigned.
The
undersigned hereby makes the following representations and provides the
following information:
(1)
Please
initial in the space
provided all applicable items
in subsection (a), if any, and one alternative in
subsection (b), if any.
(a)
The undersigned is an “Accredited Investor” as defined in Rule 501(a) under the
Act because:
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Individuals
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o
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(i)
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The
undersigned, individually or jointly with his or her spouse, has a net
worth in excess of $1,000,000; or
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o
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(ii)
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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
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Trusts/IRAs
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o
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(iii)
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The
undersigned is a trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Units, whose purchases
are directed by a person who qualifies under either (i) or (ii), above;
or
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o
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(iv)
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The
undersigned is a revocable grantor trust and the grantors of such trust
qualify as accredited investors under either (i) or (ii), above;
or
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o
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(v)
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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
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C-1
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Partnerships/Corporations
or other Entities
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o
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(vi)
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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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o
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(vii)
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The
undersigned is a corporation or partnership which was not
formed for the specific purpose of acquiring the Units, with total assets
in excess of $5,000,000; or
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o
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(viii)
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The
undersigned is an employee benefit plan within the meaning of Title I of
ERISA (i) whose plan fiduciary is either a bank, insurance company or
registered investment advisor or (ii) whose total assets exceed
$5,000,000. If the decision to invest in the Company is not made by the plan fiduciary, each
participant in the plan must be an “accredited
investor.”
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(b)
Select one of the
following. Persons who do not qualify under one of the
following subsections may not purchase Units in
the offering regardless of whether they qualify under Section (a),
above.
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(i)
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The
undersigned is a natural person with a net worth (i.e., total assets
minus total liabilities) of $1.5 million as of the date hereof, either
alone or with such person’s spouse, or the undersigned will invest at
least $750,000 in the Company; or
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o
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(ii)
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The
undersigned is a corporation, partnership, association, joint stock
company, trust or any other organized group of persons
________________________ (insert form of organization) with a net worth
(i.e., total
assets minus total liabilities) of $1.5 million as of the date hereof or
the undersigned will invest at least $750,000 in the
Company. In addition, the undersigned represents and warrants
that if the undersigned is (x) an entity that would be a registered
investment company but for the exception provided from that definition in
Section 3(c)(1) of the Investment Company Act of 1940, as amended (the
“Investment Company Act”), (y) a registered investment company under the
Investment Company Act or (z) a business development company within the
meaning of Section 202(a)(22) of the Investment Advisers Act of 1940, as
amended (the “Investment Advisers Act”), each of its equity owners
independently meet the requirements of either Subsection (b)(i), (b)(ii)
or (b)(iii); or
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o
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(iii)
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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.
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(2)
The undersigned is willing and able to bear the economic risk of an investment
in the Units in an amount equal to the total amount for which the undersigned
desires to subscribe. In making the foregoing statement, the
undersigned has given consideration to whether the undersigned can afford to
hold the Units indefinitely and whether, at the present time, the undersigned
can afford a complete loss of such investment. The undersigned has
further considered that the minimum investment in the Company is
$100,000.
(3)
Any purchase of Units will be solely for the account of the undersigned and not
for the account of any other person or with a view to any resale, division or
other distribution thereof.
(4)
The undersigned hereby warrants and represents to you that (a) the information
contained herein is true, accurate and complete and may be relied upon by you
and (b) the undersigned will notify you immediately of any material change in
any of the information contained herein occurring prior to your acceptance of
any subscription from the undersigned with respect to the undersigned’s purchase
of any Units now or in the future.
C-2
Items
(5)-(8) Must Be Provided By Each Prospective
Offeree:
(5) Name(s)
of Offeree(s): ___________________________________________________
________________________________________
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 ____________, _____.
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If
the offeree is an individual:
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If
the offeree is a corporation, partnership, trust or other
entity:
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Signature
of Offeree
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Print
or Type Name of Offeree
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By:
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Signature
of Joint Offeree, if any
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Print
or Type Name(s) of Offeree(s)
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Print
or Type Name and Title
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C-3
EXHIBIT
D
ADDITIONAL INVESTMENT
FORM
ACP
Strategic Opportunities Fund II, LLC
c/o
Ascendant Capital Partners, LP
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Berwyn,
Pennsylvania 19312
Ladies
and Gentlemen:
The
undersigned member of ACP Strategic Opportunities Fund II, LLC (the “Company”)
hereby makes the following additional investment in the Company in accordance
with the terms of the Operating Agreement of the Company and the Confidential
Private Placement Memorandum of the Company. The undersigned agrees
that this additional investment will not be effective until the Board of
Director’s acceptance below. In connection with this additional
investment, the undersigned agrees that the representations, warranties and
agreements contained in the undersigned’s Subscription Agreement and Power of
Attorney remain true and correct and agrees to all the terms and conditions
contained therein.
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Additional
Investment Amount $
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(Minimum
$25,000)
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Instruction: This
form should be signed in the same manner and by the same persons as the original
Subscription Agreement.
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Individuals,
Trusts, Partnerships or other Entities
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Joint
or Additional Required Signature (if any)
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Name
of Individual or Entity
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Name
of Individual or Entity
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Signature
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Signature
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Title
(if any)
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Title
(if any)
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D-1
ACCEPTANCE
The Board
of Directors of ACP Strategic Opportunities Fund II, LLC, on behalf of ACP
Strategic Opportunities Fund II, LLC, hereby accepts the additional investment
embodied in the Additional Investment Form as to $______________ of membership
Units, which shall be effective on _________________________________, on all the
terms and conditions set forth herein and in the Memorandum.
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ACP
Strategic Opportunities Fund II, LLC
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By:
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Its:
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Date:
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D-2