CRESCENT CAPITAL BDC, INC. SUBSCRIPTION AGREEMENT

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Exhibit 10.5

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TABLE OF CONTENTS

 

	Page
Directions for the Completion of the Subscription Documents	ii
Subscription Agreement	4
Schedule 1 to Subscription Agreement: Subscriber Information   (For All Subscribers)	28
Schedule 2 to Subscription Agreement: Status as Benefit Plan Investor or Other Plan Investor  (For ERISA Stockholders, including IRAs, and Other Plan Investors Only)	38
Annex A to Subscription Agreement: Subscriber Questionnaire for Individual Investors (including IRAs)	43
Annex B to Subscription Agreement: Subscriber Questionnaire for Institutional Investors	46
Exhibit A: Anti-Money Laundering Questionnaire	51

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The attached Subscription Agreement (including the Annexes, Schedules and Exhibits attached thereto, the “Subscription Documents”) relates to the offering by Crescent Capital BDC, Inc. (the “Company”) to you (the “Subscriber”) of common shares, par value $0.001, of the Company (“Shares”).  Shares are being offered to qualified investors pursuant to the confidential Private Placement Memorandum of the Company. Capitalized terms not defined in these directions shall have the meanings given to them in the Subscription Agreement.

Subscription Documents that are missing requested information or signatures will not be considered for acceptance unless and until such information or signatures are provided.

1.	For Individual Subscribers (including IRAs).

1.1.

Fill in the name of the Subscriber and the amount of the Capital Commitment on page 1 of the Subscription Agreement.

1.2.

Initial each category that applies to the Subscriber in Section 9.10 on page 16 of the Subscription Agreement and, if applicable, provide the requested information in the last set of blanks.

1.3.

Fill in the name of the Subscriber and the date (print name of Subscriber) on page 26 of the Subscription Agreement and sign in the blank provided.  For individuals investing through an ▇▇▇, the name and signature of, and other information relating to, the Custodian/Trustee of the ▇▇▇ is required on page 26.

1.4.

All Subscribers must complete Schedule 1; ▇▇▇ subscribers must also complete Schedule 2.

1.5.

Complete Annex A by checking the appropriate box or boxes.

1.6.

Complete Exhibit A.

2.	For Institutional Subscribers.

2.1.

Fill in the name of the Subscriber and the amount of the Capital Commitment on page 1 of the Subscription Agreement.

2.2.

Initial each category that applies to the Subscriber in Section 9.10 on page 16 of the Subscription Agreement and, if applicable, provide the requested information in the last set of blanks.

2.3.

Fill in the name of the Subscriber and the date (print name and title of authorized signatory) on page 26 of the Subscription Agreement and sign in the blank provided.

2.4.

All Subscribers must complete Schedule 1 and Benefit Plan Investors and Other Plan Investors (each as defined in Schedule 2) must also complete Schedule 2.

2.5.

Complete Annex B by checking the appropriate box or boxes.

2.6.

Complete Exhibit A.

 

 

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3.

Required IRS Certifications – For all Subscribers: Institutional and Individual Investors.  Fill in, sign (print name and title of authorized signatory, if applicable) and date the applicable form of the U.S. Internal Revenue tax form ▇-▇, ▇-▇▇▇▇, ▇-▇▇▇▇-▇, ▇-▇▇▇▇, W-8IMY or W-8ECI (please use the most recent version of the applicable tax form).  These tax forms are available on request from the Company and may also be obtained from ▇▇▇.▇▇▇.▇▇▇.

4.	Delivery of Subscription Documents. Please deliver two completed and original signed copies of the Subscription Documents and any required evidence of authorization to the Company at the following address:

▇▇▇▇▇ ▇▇▇▇

▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn:  Investor Relations

 

5.	If the Company accepts your subscription (in whole or in part), the Company will countersign the Subscription Agreement and deliver a copy of it to you following the Closing at the address you provide in the Subscription Documents.

6.	Inquiries. If you have questions concerning any of the information requested, you should ask your attorney, accountant or other financial advisor. Inquiries regarding subscription procedures should be directed to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇, e-mail:  ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.

 

 

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¹ A BHC Subscriber is defined as a subscriber that is a bank holding company, as defined in Section 2(a) of the Bank Holding Company Act of 1956, as amended (the “BHC Act”), a non-bank subsidiary (for purposes of the BHC Act) of a bank holding company, a foreign banking organization, as defined in Regulation K of the Board of Governors of the Federal Reserve System (12 C.F.R.  § 211.23) or any successor regulation, or a non-bank subsidiary (for purposes of the BHC Act) of a foreign banking organization which subsidiary is engaged, directly or indirectly in business in the United States and which in any case holds Shares for its own account.

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17.7.        No Independent Legal Representation.  Dechert LLP (“Dechert”) has acted as legal counsel to the Company in connection with the offering of Shares.  Dechert also acts as legal counsel to the Advisor and its affiliates.  Conflicts could arise due to these multiple representations.  The Subscriber understands that, in connection with the offering and subsequent advice provided to the Company, Dechert will not represent Stockholders of the Company, and no independent legal counsel has been retained to represent the Stockholders of the Company.  The Subscriber hereby acknowledges and agrees that in the event that any dispute or controversy arises between any Subscriber and the Company or between any Subscriber and the Advisor and/or any of its affiliates that Dechert represents, then each Subscriber agrees that Dechert may represent the Company or the Advisor and/or its affiliates in any such dispute or controversy to the fullest extent permitted by applicable law, regulation or professional rules in the relevant jurisdictions and each Subscriber hereby consents to such representation.

17.8.        Headings, etc. The table of contents and the headings of the sections of this Subscription Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof.

17.9.        Severability.  In the event any provision of this Subscription Agreement is determined to be invalid or unenforceable, such provision shall be deemed severed from the remainder of this Subscription Agreement and replaced with a valid and enforceable provision as similar in intent as reasonably possible to the provision so severed, and shall not cause the invalidity or unenforceability of the remainder of this Subscription Agreement.

17.10.      Entire Agreement.  This Subscription Agreement, together with its Attachments (which Attachments are incorporated in this Subscription Agreement by reference), constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and any other prior or contemporaneous written or oral agreements, statements or assurances with respect to this subject matter are hereby rescinded and terminated.

17.11.      Irrevocability and Acceptance.  This Subscription Agreement is and shall be irrevocable by the undersigned but will not be binding on the Company unless and until it is agreed to and accepted by the Company.  The Company in its sole discretion may accept this Subscription Agreement with respect to the Capital Commitment in whole or in part.  Acceptance will be given either by delivery of this Subscription Agreement to the Subscriber with the form of acceptance executed by the Company or by such execution and written notice thereof to the Subscriber.  This Subscription Agreement will expire if it is not accepted by the Company on or prior to nine months from the date Subscriber has executed this Subscription Agreement.

17.12.      Counterparts; Facsimile or PDF Signatures. This Subscription Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.  Facsimile or PDF counterpart signatures to this Subscription Agreement shall be acceptable and binding.

17.13.      Electronic Delivery of Communications.  The Subscriber hereby acknowledges and agrees that the Company and/or the Advisor may deliver and make reports, statements and other communications, including, without limitation, the Offering Documents, this Subscription Agreement, Form 1099s and other tax related information and documentation (“Account Communications”), available to the Subscriber in electronic form, such as e-mail or by posting on a web site.  It is the Subscriber’s affirmative obligation to notify the Company in writing if the Subscriber’s e-mail address(es) listed in Section 5 of Schedule 1 change(s).  The Subscriber may revoke or restrict its consent to electronic delivery of Account Communications at any time by notifying the Company, in writing, of the Subscriber’s intention to do so, and will thereafter receive such Account Communications in paper form.

 

 

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18.           Compliance with the U.S. Patriot Act; Solicitation Fee Acknowledgment.

18.1.        Compliance with the U.S. Patriot Act.  The Subscriber hereby understands that to help the United States government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information that identifies each Subscriber who opens an account, all as set forth on Schedule 1.  The responses provided on such Schedule are deemed to be made in this Subscription Agreement as if expressly set forth herein.

18.2.        Solicitation Fee Acknowledgement.

(a) The Subscriber hereby acknowledges that, if the Subscriber was referred to the Company by a Placement Agent, the Placement Agent, a registered broker-dealer, entered into a written agreement (the “Engagement Letter”) with the Company and the Advisor whereby the Placement Agent will receive a solicitation fee and certain other fees from the Advisor with respect to investors referred to the Company.  This solicitation fee will be paid to the Placement Agent by the Advisor out of the normal fees the Advisor receives.

(b) If the Subscriber was not referred to the Company by a Placement Agent, the Company acknowledges that, to its knowledge, there is no placement fee or commission due or paid in connection with the Subscriber’s investment in the Company.

19.           Confidentiality.

(a) The Subscriber acknowledges that the Offering Document and other information relating to the Company have been submitted to the Subscriber on a confidential basis for use solely in connection with the Subscriber’s consideration of the purchase of Shares.  The Subscriber agrees that, without the prior written consent of the Company (which consent may be withheld at the sole discretion of the Company), the Subscriber shall not (i) reproduce the Offering Document or any other information relating to the Company, in whole or in part, or (ii) disclose the Offering Document or any other information relating to the Company to any person who is not an officer or employee of the Subscriber who is involved in its investments, or partner (general or limited) or affiliate of the Subscriber (it being understood and agreed that if the Subscriber is a pooled investment fund, it shall only be permitted to disclose the Offering Document or other information related to the Company to its limited partners or underlying investors if the Subscriber has required its limited partners or underlying investors to enter into confidentiality undertakings no less onerous than the provisions of this Section 19), except to the extent (A) such information has become generally available to the public other than as a result of the breach of this Section 19 by the Subscriber or any agent or affiliate of the Subscriber; (B) such information may be required to be included in any report, statement or testimony required to be submitted to any municipal, state or national regulatory body having jurisdiction over the Subscriber; (C) such information may be required in response to any summons or subpoena or in connection with any litigation; (D) necessary to comply with any law, order, regulation or ruling applicable to the Subscriber; (E) it is necessary to disclose such information to the Subscriber’s employees and professional advisors (including the Subscriber’s auditors and counsel and, for an ERISA Stockholder, such Persons as are necessary for the proper administration of the ERISA plan), so long as such Persons are advised of the confidentiality obligations contained herein; and (F) such information may be required in connection with an audit by any taxing authority.  The Subscriber further agrees to return the Offering Document and any other information relating to the Company if no purchase of Shares is made or upon the Company’s request therefore.  The Subscriber acknowledges and agrees that monetary damages would not be sufficient remedy for any breach of this section by it, and that in addition to any other remedies available to the Company in respect of any such breach, the Company shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach.

 

 

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(b) The Subscriber further acknowledges that all information received in connection with this Subscription Agreement and the Company is confidential, and agrees that in the event the Subscriber receives material non-public information, the Subscriber shall not engage in any securities trading on the basis of such information in violation of applicable law.

20.           Compliance with Laws; Disclosure.  The Company may disclose information concerning the Company or the Stockholders to the extent necessary to comply with applicable laws, including ERISA (if applicable), and regulations or policies, including any anti-money laundering or anti-terrorist laws or regulations or policies related thereto.  Each Subscriber hereby agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary to enable the Company and/or the Advisor to comply with applicable laws, including, without limitation, ERISA (if applicable) and the Investment Company Act, and regulations or policies thereunder.  The Subscriber consents to disclosure by the Company and its agents of information pertaining to the Subscriber to relevant third parties as the Company or its agents reasonably deem appropriate or necessary in connection with the operations of the Company, including without limitation, to governmental, regulatory, national security, courts, law enforcement or other authorities, banks, financial intermediaries and counterparties, including, without limitation, to parties outside of the jurisdiction in which the information was initially collected by the Company. The Subscriber hereby agrees to provide the Company and State Street Bank and Trust Company, promptly upon request, all information requested in connection with their anti-money laundering and know-your-customer requirements. Each Subscriber hereby represents and warrants that the Subscriber has obtained all consents and approvals, as required by all applicable laws, regulations, by-laws and ordinances that regulate the collection, processing, use or disclosure of information concerning the Subscriber, necessary to disclose such information to the Company, and as required for the Company to use and disclose such information in connection with the performance of its obligations hereunder, and that the disclosure of such information does not violate any applicable laws, regulations, by-laws or ordinances. The Subscriber shall fully indemnify the Company and the Company shall have no liability for any action taken or omitted by it in reliance upon the foregoing representation and warranty for claims or complaints for failure to comply with any applicable law that regulates the collection, processing, use or disclosure of information concerning the Subscriber.

 

 

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Crescent Capital BDC, Inc. and CBDC Advisors, LLC (hereinafter “we,” “our” or “us”) recognize the importance of keeping information about you secure and confidential. We do not sell or share your nonpublic personal and financial information with marketers or others outside our affiliated group.  We carefully manage information to safeguard your privacy and to provide you with consistently excellent service.  We are providing this policy to you to comply with the requirements of Regulation S-P, “Privacy of Consumer Financial Information,” issued by the United States Securities and Exchange Commission and the Federal Trade Commission (“FTC”) privacy regulations.

We are committed to protecting the nonpublic personal and financial information of our investors and consumers who obtain or seek to obtain financial products or services primarily for personal, family or household purposes. We fulfill our commitment by establishing and implementing policies and systems to protect the security and confidentiality of this information.  In our offices, we limit access to nonpublic personal and financial information about you to those of our personnel who need to know the information in order to provide products or services to you. We maintain physical, electronic and procedural safeguards to protect your nonpublic personal and financial information.

We may collect the following types of nonpublic personal and financial information about you from the following sources:

·

Your name, address and identifying numbers, and other personal and financial information, from you and from identification cards and papers you submit to us, on applications, subscription agreements or other forms or communications.

·

Information about your account balances and financial transactions with us, our affiliated entities, or nonaffiliated third parties, from our internal sources, from affiliated entities and from nonaffiliated third parties.

·

Information about your account balances and financial transactions and other personal and financial information, from consumer credit reporting agencies or other nonaffiliated third parties, to verify information received from you or others.

We may disclose your name, address and account and other identifying numbers, as well as information about your pending or past transactions and other personal financial information, to nonaffiliated third parties, as necessary to execute, process, service and confirm your securities transactions, to administer and service your account and commingled investment vehicles in which you are invested, or to market our products and services through joint marketing arrangements.

 

 

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We may disclose nonpublic personal and financial information concerning you to law enforcement agencies, federal regulatory agencies, national security agencies, courts, self-regulatory organizations or other nonaffiliated third parties, if required or requested to do so by a court order, judicial subpoena or regulatory inquiry.  Such information may be used or disclosed outside of the jurisdiction in which it was initially collected by the Company.

We do not otherwise disclose your nonpublic personal and financial information to nonaffiliated third parties, except where we believe in good faith that disclosure is required or permitted by law. Because we do not disclose your nonpublic personal and financial information to nonaffiliated third parties, our Privacy Policy does not contain opt-out provisions.

We do not disclose nonpublic personal and financial information about former investors to nonaffiliated third parties unless required or requested to do so by a court order, judicial subpoena or regulatory inquiry, or otherwise where we believe in good faith that disclosure is required or permitted by law.

Should you have any questions about our Privacy Policy, please contact us by email or by regular mail at the address below:

▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

 

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*If ▇▇▇, must be in the form of:(the name of the ▇▇▇ Custodian) for the benefit of (the name of the individual) and must also be acknowledged by custodian or trustee below.

Acknowledgment by ▇▇▇ Custodian or Trustee with respect to Investment for an ▇▇▇:

By signing below, the undersigned custodian or trustee of the ▇▇▇ for the benefit of the Individual Subscriber named above (the “Client ▇▇▇”) acknowledges that investment in the Company is being made through the Client ▇▇▇ from the below referenced account and certifies that the Client ▇▇▇ has directed the custodian or trustee to sign this Subscription Agreement on behalf of the ▇▇▇.  The trustee or custodian’s contact, account reference number and Tax ID are set forth below.

 

THIS SUBSCRIPTION AGREEMENT SHALL NOT BE EFFECTIVE UNLESS AND UNTIL IT IS COUNTERSIGNED BY THE COMPANY:

[Company’s signature page follows]

 

 

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SIGNATURE PAGE OF THE COMPANY:

Agreed to and Accepted by

 

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Instructions: Please complete the applicable parts of this Schedule.

Name and Address (please print)

 

1.             Investment.  The minimum Capital Commitment in the Company is $50,000. Please indicate below the amount of the Subscriber’s Capital Commitment in the Company.

Amount of Capital Commitment:  $________________

Payment made by wire direct to:

 

2.             Primary Contact Person for this Account.

 

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3.             Persons authorized to act for the Subscriber (i.e. authorized to invest in funds, request redemptions or withdrawal, direct payment of funds, etc.).  In addition to the persons authorized by the power of attorney contained in Section 10 of the Subscription Agreement, the Subscriber hereby authorizes the person(s) noted below to act individually on behalf of this account unless otherwise noted.  Please provide name, specimen signatures and titles in the form that such person would sign documents on behalf of this account, and telephone numbers. Without limiting the power of attorney contained in Section 10 of the Subscription Agreement, if there are circumstances under which more than one signature is required to take action with respect to this account, please state such circumstances.  Requests to change the identity of persons authorized to act on behalf of a Subscriber which is a corporation, partnership, trust, estate or other fiduciary must be accompanied by appropriate documentation establishing the authority of the person seeking to act on behalf of the Subscriber.  The Subscriber agrees that the Company may rely on the information provided herein until it receives written notice of superseding instructions.

 

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4.             Tax Information:

Please provide your Taxpayer I.D. Number/Social Security Number (as applicable):

Tax ID/SSN:

For Joint Accounts, please provide the Taxpayer I.D. or Social Security Number (as applicable) for each Joint Account Holder.

The Subscriber is a (please check the appropriate box):

 

☐ Corporation

☐ Limited Partnership

☐ General Partnership

☐ Limited Liability Company

☐ S-Corporation

☐ Charitable Trust

☐ Tax-Exempt Endowment

☐ Private Tax-Exempt Foundation

☐ Employee Benefit Plan (self-directed)

☐ Employee Benefit Plan (trustee directed)

☐ Fund of Funds

☐ Other Tax Exempt Organization_____________________________

☐ Other _____________________________

Tax year ends: ____________________

State (if applicable) and country of residence for tax purposes: ____________________

For a domestic self-directed employee benefit plan (e.g. ▇▇▇▇▇ or self-directed 401k):

▇▇▇▇▇ or Plan Account Number _______________

Tax year ends ____________________

Plan or Custodian Taxpayer I.D. Number ______________________________

 

 

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Cost Basis Election:

All Subscribers, please elect a cost basis reporting method that will apply with respect to your investment in the Shares by checking the applicable box below (if you do not elect a cost basis method below, the default method that will apply to your Shares is First In, First Out (FIFO)):

☐ First In, First Out (FIFO) (This is the default method if no election is made.)

☐ Average Cost Basis

☐ Specific Share Identification (SSI)

☐ SSI – First In, First Out (SSI – FIFO)

☐ SSI – Highest In, First Out (SSI – HIFO)

☐ SSI - Low Cost Long Term

☐ SSI - Low Cost

☐ SSI - Low Cost Short Term

☐ SSI - High Cost Long Term

☐ SSI - High Cost Short Term

☐ SSI – Last In, First Out (SSI – LIFO)

☐ SSI – Proportional

☐ SSI – Manual Selection

If you wish to change your cost basis election at any time in the future, please contact the Company and provide your account number, current cost-basis election and revised cost-basis election. The Company will provide the information to State Street Bank and Trust Company to implement the change.

 

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5.	Statements and Other Correspondence.  Statements and other correspondence should be sent to (give name, address, fax number and email address, if available):

☐

Please check here if the Subscriber wishes to “opt in” to the Company’s Dividend Reinvestment Plan prior to a Listing.

☐

Please check here if the Subscriber wishes to “opt out” of the Company’s Dividend Reinvestment Plan and receive cash distributions.

Please indicate where cash distributions should be sent (please check and complete one):

 

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8.1

You understand that the entire amount of your investment may be lost. ☐ Yes   ☐ No

 

8.2

You have prior experience investing in, and are familiar with, the types of investments in which the Company will invest.     ☐ Yes   ☐ No

 

8.3

Following your investment in the Company, you will have adequate means of providing for your current needs and contingencies and you have no need for liquidity in this investment.   ☐ Yes  ☐ No

 

8.4

Your investment in the Company represents less than 5% of your net worth (excluding principal residence).     ☐ Yes  ☐ No

 

If not, estimate percentage of net worth (excluding principal residence)                %.

 

 

(The Subscriber must initial each applicable category.)

 

 

OR

 

 

 

Please complete the below questions on behalf of the beneficial owner² of the Shares in the Company.

 

 

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10.1

Has the beneficial owner, within the last ten (10) years, been convicted of a felony or misdemeanor (a) in connection with the purchase or sale of any security, (b) involving the making of any false filing with the SEC or (c) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities?

10.2

Is the beneficial owner subject to any order, judgment or decree of any court of competent jurisdiction, entered in the last five (5) years, that restrains or enjoins the beneficial owner from engaging in or continuing to engage in any conduct or practice (a) in connection with the purchase or sale of any security, (b) involving the making of a false filing with the SEC or (c) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities?

☐ Yes  ☐ No

10.3

Is the beneficial owner subject to a Final Order3 of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations, or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, or the National Credit Union Administration, that:

(a)  bars the beneficial owner from:

(1)

association with an entity regulated by such commission, authority, agency, or officer;

 

(2)

engaging in the business of securities, insurance, or banking; or

 

(3)

engaging in savings association or credit union activities; or

 

(b)

constitutes a Final Order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct within the last ten (10) years?

☐ Yes  ☐ No

10.4

Is the beneficial owner subject to an order of the SEC pursuant to Section 15(b) or 15B(c) of the Exchange Act or Section 203(e) or (f) of the Advisers Act that (a) suspends or revokes the beneficial owner’s registration as a broker, dealer, municipal securities dealer or investment adviser, (b) places limitations on the beneficial owner’s activities, functions or operations, or (c) bars the beneficial owner from being associated with any entity or from participating in the offering of any ▇▇▇▇▇ stock?

☐ Yes  ☐ No

 

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10.5

Is the beneficial owner subject to any order of the SEC, entered in the last five (5) years, that orders the beneficial owner to cease and desist from committing or causing a violation or future violation of (a) any scienter-based anti-fraud provision of the federal securities laws (including without limitation Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, Section 15(c)(1) of the Exchange Act and Section 206(1) of the Advisers Act, or any other rule or regulation thereunder) or (b) Section 5 of the Securities Act?

☐ Yes  ☐ No

10.6

Is the beneficial owner suspended or expelled from membership in, or suspended or barred from association with a member of, a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade?

☐ Yes  ☐ No

10.7

Has the beneficial owner filed as a registrant or issuer, or has the beneficial owner been named as an underwriter in, any registration statement or Regulation A offering statement filed with the SEC that, within the last five (5) years, (a) was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or (b) is currently the subject of an investigation or a proceeding to determine whether such a stop order or suspension order should be issued?

☐ Yes  ☐ No

10.8

Is the beneficial owner subject to (a) a United States Postal Service false representation order entered into within the last five (5) years, or (b) a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations?

☐ Yes  ☐ No

10.9

If the answer is “yes” to any of questions 10.1 through 10.8 above, has the beneficial owner obtained a waiver from disqualification under Rule 506(d)(2) either (a) from the SEC or (b) from the court or regulatory authority that entered the relevant order, judgment or decree?

☐ Yes  ☐ No

If the answer is “Yes” to any of questions 10.1 through 10.9 above, provide an explanation of the matter in question and attach a copy of the order, judgment or other relevant documentation.

 

The Subscriber hereby confirms that the foregoing statements are true, accurate and complete. The Subscriber further acknowledges, represents, warrants and agrees that (a) the Company is relying on these responses in order to satisfy certain obligations the Company has under federal securities laws, including in connection with SEC filings made by or with respect to the Company, (b) the Subscriber has acted with reasonable care in conducting due diligence (including, in light of the circumstances, making factual inquiry into the existence of any disqualification) to confirm the veracity of the responses, and (c) for so long as the Subscriber holds any Shares in the Company, the Subscriber will notify the Company in writing as soon as reasonably practicable if there is any change in any of the responses set forth herein or if the Subscriber or beneficial owner becomes aware of any pending or threatened proceeding, judgment, order, or other action or circumstance that is reasonably likely to result in any change in the responses set forth in this Section 10.

 

 

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Schedule 2 to Subscription Agreement:

Status as Benefit Plan Investor or Other Plan Investor

(For ERISA Stockholders, including IRAs, and Other Plan Investors Only)

(a)

Overview

The U.S. Department of Labor (the “DOL”) has promulgated a regulation, 29 C.F.R. Section 2510.3-101 (as modified by Section 3(42) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the “Plan Assets Regulation”).  Pursuant to the Plan Assets Regulation, the term “Benefit Plan Investor” includes: (i) any employee benefit plan (as defined in Section 3(3) of ERISA) subject to Part 4 of Subtitle B of Title I of ERISA; (ii) any plan, account or arrangement that is subject to Section 4975 of the Code; (e.g., an individual retirement account); and (iii) any entity whose underlying assets include plan assets by reason of the investment in the entity, by any employee benefit plan or other plan described in (i) or (ii), or otherwise.  For purposes of this determination, (i) the value of equity interests held by a person (other than a Benefit Plan Investor) that has discretionary authority or control with respect to the assets of the entity or that provides investment advice for a fee (direct or indirect) with respect to such assets (or any affiliate of any such person) is disregarded, and (ii) only that portion of the equity interests of an entity described in clause (iii) of the preceding sentence investing in another entity that are held by Benefit Plan Investors are included in the testing of such other entity.  Benefit Plan Investors also include that portion of any insurance company’s general account assets that are considered “plan assets” for purposes of ERISA or Section 4975 of the Code.

(b)	Status as Benefit Plan Investor (Please Check Each as Applicable)

 

	☐          Yes
	☐           No

 

	☐          Yes
	☐           No

 

 

	☐          Yes
	☐           No

 

 

_______ %

 

 

Without limiting the remedies available in the event of a breach, the Subscriber expressly agrees to promptly disclose to the Company in writing any changes with respect to the percentages set forth in question (iv) and (vi) above (as applicable), to promptly re-confirm such percentage at any time upon the request of the Company (or other person acting on behalf of the Company), and to provide such other information reasonably requested by the Company (or other person acting on behalf of the Company) for purposes of determining whether or not the Company is holding “plan assets.”

 

 

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(xii)         Is the Subscriber obligated to file an annual return/report on an Internal Revenue Service Form 5500?

 

Subscribers answering “yes” to the above question (xii) are requested to provide the following information:

 

 

(2)          ☐        The decision to invest in the Company was made by the applicable fiduciaries that have the authority and discretion to and are duly authorized to make such investment with appropriate consideration of relevant investment factors with regard to the Stockholder and is consistent with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under ERISA or other applicable law;

 

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The undersigned agrees to notify the Company promptly of any changes in the foregoing information which may occur prior to or following an investment in the Company.

 

	Name of Subscriber (please print)
	By: Name of Fiduciary
	By: (Name of Signer, Title/Capacity)

 

 

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Annex A to Subscription Agreement:

Subscriber Questionnaire for Individual Investors (including IRAs)

	☐	as an individual.
	☐	with the Subscriber’s spouse (please check one)1:
		☐	as joint tenants with rights of survivorship.
		☐	as tenants in common.
		☐	as community property.
	☐	through a revocable trust established to facilitate distribution of the Subscriber’s estate and there are ___ living grantor(s) and ___ beneficiary (ies) other than the grantors (determined by treating any person indirectly owning an interest in the trust through one or more pass-through entities (i.e., limited liability companies treated as a partnership for income tax purposes, partnerships, S corporations and trusts) as if such person were a beneficiary).
		If the Subscriber is investing through a revocable trust, the Subscriber further represents that:  (Please indicate whether the following representations are applicable by checking the appropriate box.)
		a. substantially all of the value of each beneficial owner’s interest (direct or indirect) in the trust is not attributable to such trust’s interest (direct or indirect) in the Company.
		(Please check one.) ☐Yes   ☐ No
	☐	through an Individual Retirement Account (For U.S. domestic Subscribers only. Does not apply to foreign Subscribers.)
	☐	through the Subscriber’s self-directed ▇▇▇▇▇ Plan Account.
	☐	through another self-directed employee benefit plan as defined in Title I of ERISA.

 

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END OF ANNEX A

 

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Annex B to Subscription Agreement:

Subscriber Questionnaire for Institutional Investors

	☐	an employee benefit plan as defined in Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and (check appropriate box):
		☐	the investment decision is made by a plan fiduciary as defined in Section 3(21) of ERISA, which is either a bank, savings and loan association, insurance company or registered investment adviser and the name of the plan fiduciary is _________________________; or
		☐	the plan has total assets in excess of $5,000,000; or
		☐	the plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors” within the meaning of Regulation D.
	☐	a plan that is established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if the plan has total assets in excess of $5,000,000.
	☐	an insurance company as defined in Section 2(13) of the Securities Act.
	☐	an investment company registered under the Investment Company Act.
	☐	a business development company (as defined in Section 2(a)(48) of the Investment Company Act).
	☐	a private business development company as defined in Section 202(a)(22) of the Advisers Act.
	☐	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.
	☐	a bank (as defined in Section 3(a)(2) of the Securities Act) or a savings and loan association or other institution (as defined in Section 3(a)(5)(A) of the Securities Act), whether acting in regard to this investment in its individual or a fiduciary capacity.
	☐	a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
	☐	an organization described in Section 501(c)(3) of the Code, with total assets in excess of $5,000,000.
	☐	a corporation, a Massachusetts or similar business trust, partnership or limited liability company, not formed for the specific purpose of acquiring Shares, with total assets in excess of $5,000,000.

	☐	a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring Shares, whose purchase of Shares is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of the prospective investment.
	☐	an entity in which all of the equity owners are “accredited investors” within the meaning of Regulation D.  (NOTE: This paragraph should only be checked if the Subscriber cannot establish it is an accredited investor under one of the categories described above.  If the Subscriber checks this box, each equity owner of the Subscriber’s securities must complete and submit to the Company a copy of Annex A or B, as applicable, along with an original executed signature page and may be requested to complete, execute and submit to the Company its own Subscription Agreement.  If necessary, please request additional copies of this Subscription Agreement from the Company.)

 

 

☐ was ☐  was not formed, organized, reorganized, capitalized or recapitalized for the specific purpose of acquiring Shares;

☐ is ☐ is not operated for the specific purpose of acquiring Shares;

☐ is ☐ is not an investment entity for which the Subscriber’s stockholders, partners, members or other beneficial owners can have individual discretion as to their participation or non-participation through the Subscriber in (i) the Subscriber’s purchase or Shares or (ii) particular investments made by the Company;

☐ will ☐ will not have more than 40% of the value of the Subscriber’s total assets (or, if the Subscriber is a private investment fund with binding, unconditional capital commitments from the Subscriber’s partners or members, more than 40% of the Subscriber’s committed capital) invested in the Company upon making this investment.

 

 

 

 

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- OR -

 

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1	This information may be found online at ▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇.

2	This information may be found online at ▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇.

3	A non-US shell bank is a non-US bank without a physical presence in its country of domicile/ incorporation.

4	A person who is widely and publicly known to maintain an unusually close relationship with the senior non-US political figure, including a person who is in a position to conduct substantial financial transactions on behalf of such figure.

- 49 -

 

9.	Pay To Play Matters.

 

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☐          other than the Pay to Play Rule, no “pay to play” or other similar compliance obligations would be imposed on the Company, the Advisor or their affiliates in connection with the Subscriber’s subscription;

- OR -

☐          If the Subscriber cannot make the above certification, indicate in the space  below all other “pay to play” laws, rules or guidelines, or lobbyist disclosure laws or rules, the Company, the Advisor or their affiliates, employees or Placement Agents would be subject to in connection with the Subscriber’s subscription:

 

END OF ANNEX B

 

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5	Any U.S. state or political subdivision of a U.S. state, including:

(i)

Any agency, authority, or instrumentality of the U.S. state or political subdivision;

(ii)

A pool of assets sponsored or established by the U.S. state or political subdivision or any agency, authority or instrumentality thereof, including, but not limited to a “defined benefit plan” as defined in section 414(j) of the Internal Revenue Code (26 U.S.C. 414(j)), or a U.S. state general fund;

Investor Profile Form - Corporation, Partnership, Trust or Other Entity

1.	Subscriber Name:
	(enter legal name)
	(a) Subscriber is (check one, if applicable):			☐ ERISA
				☐ Govt. Pension Plan
				☐ U.S. Publicly Traded Company (on NYSE, Nasdaq or ASE)
				☐ U.S. Registered Broker-Dealer
	Note: If entity is a pension fund regulated by the Department of Labor, a federal or state instrumentality, a bank or broker-dealer registered with the SEC or a U.S. company publicly traded on the NYSE or Nasdaq, the balance of the information on this Investor Profile Form need not be completed, but please execute this Investor Profile Form on the following page.
	IF NONE OF THE ABOVE, COMPLETE THE BALANCE OF FORM
	(b)	Type of Subscriber:
		(i.e. corporate cash account, foundation or endowment, insurance assets, etc.)
	(c)	Place of Incorporation or Formation:
	(d)	Date of Incorporation or Formation:
	(e)	Principal business activity:
2.	Principal Business Street Address:
3.	Taxpayer I.D. Number (or foreign government ID number):
4.	Source of Investment Funds:
5.	Is Subscriber a non-U.S. Financial Institution? ☐ Yes ☐ No (If Yes, Complete Foreign Due Diligence Questionnaire)
6.	Authorized Subscriber Contacts:
	(if the Subscriber was formed within the previous 6 months fill out Investor Profile Form – Individual Investor for at least one authorized signer on account)
	(a)	Name:
		(Must provide full first name; no initials allowed)
	(b)	Title/Relationship:

 

 

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7.	Is Subscriber account to be held in the name of a registered investment adviser, a commingled fund or an intermediary that is not a registered broker-dealer or a registered investment company? ☐ Yes     ☐ No
8.	Verification Documents (Please provide a copy of each of the following documents that apply:
	Recent Audited Financial Statement(s) or Annual Report:
	Client’s Organizational Documents (Certificate of Incorporation, Limited Partnership Agreement, Trust
	Agreement or equivalent):
	In the case of a trust, provide evidence of the existence of the trust (e.g. a copy of the trust instrument)
	Subscriber Representative Signature
	I hereby certify the information above and any information provided in connection herewith is true and correct.
	Name, Title			Signature		Date

 

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FOREIGN DUE DILIGENCE QUESTIONNAIRE

 

 

 

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