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| | a | An individual whose net worth (including home, furnishings and automobiles), or joint net worth with spouse, exceeds $1,000,000 as of the date of this Agreement. (Net worth means the excess of total assets at fair market value, including home, furnishings and automobiles, over total liabilities. A principal residence should be valued either at (A) cost (including the cost of improvements, net of current encumbrances upon the property) or (B) appraised value as determined by a written appraisal used by an institutional lender making a loan to the individual secured by the property, including the cost of subsequent improvements, net of current encumbrances upon the property.) |
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| | b | An individual whose gross income exceeded $200,000 in each of the two most recent calendar years, or whose joint gross income with the individual’s spouse exceeded $300,000 in each of the two most recent calendar years and, in either case, the individual has reasonable expectation of his single or joint gross income, respectively, reaching the same level in the current year. |
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| | c | A partnership, corporation, limited liability company or business trust that either (i) is 100% owned by individuals who are accredited investors under (a) or (b) above, or (ii) was not formed for the specific purpose of investing in the Fund and whose total assets exceed $5,000,000. |
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| | d | An employee benefit plan: (i) whose investment decision is made by a plan fiduciary (as defined in ERISA §3(21)) that is a bank, savings and loan association, insurance company or registered investment adviser; (ii) whose total assets exceed $5,000,000 as of the date of this Agreement; or (iii) if a self-directed plan, whose investment decisions are made solely by persons who are accredited investors. |
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| | e | A U.S. bank, U.S. savings and loan association or other similar U.S. institution acting in its individual or fiduciary capacity. |
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| | f | A broker-dealer registered pursuant to §15 of the Securities Exchange Act of 1934. |
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| | g | An organization described in §501(c)(3) of the Internal Revenue Code with total assets exceeding $5,000,000 and not formed for the specific purpose of investing in the Fund. |
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| | h | Any trust with total assets exceeding $5,000,000, not formed for the specific purpose of investing in the Fund, and whose purchase is directed by a person with such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment. |
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| | i | A plan established and maintained by a state or its political subdivisions, or any agency or instrumentality thereof, for the benefit of its employees, and which has total assets in excess of $5,000,000. |
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| | j | An insurance company as defined in §2(13) of the Securities Act of 1933, or a registered investment company. |
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|
| Sections 3(c)(1) & 3(c)(7) Single Investor Status
(Applicable only to Subscribers that are not individuals.) |
| | Except as otherwise disclosed to the Fund, the Manager or the Administrator in writing: |
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| | a | Subscriber was not formed for the purpose of investing in the Fund nor did or will its beneficial owners contribute additional capital for the specific purpose of investing in the Fund. |
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| | b | Subscriber’s investment in the Fund will be allocated to the accounts of all of its beneficial owners on a pro rata basis in accordance with their respective interests in such Subscriber, unless otherwise required by applicable law or regulation. |
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| | c | Subscriber is not aware of any facts or circumstances indicating that the beneficial owners of any entity that is a direct or indirect beneficial owner of Subscriber (a “Participating Entity”) will participate in such Participating Entity’s direct or indirect interest in the Fund on a basis other than pro rata in accordance with their respective interests in such Participating Entity, unless otherwise required by applicable law or regulation. |
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| | d | Subscriber has not sought the consent of Subscriber’s beneficial owners to make Subscriber’s investment in the Fund. |
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| | e | Subscriber’s investment in the Fund (together with any amounts previously invested by it in the Fund) will be less than 40% of its total assets. |
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|
| NASD Restricted Person StatusFor purposes of determining whether Subscriber is a “restricted person,” the following definitions apply: |
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| | | “BD” – any domestic or foreign broker-dealer, regardless of whether such broker-dealer is a member of the NASD. |
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| | | “Benefit Plan Investor” – any domestic or foreign employee benefit plan. Benefit Plan Investors include, by way of example and not of limitation, corporate pension and profit sharing plans, “simplified employee pension plans,” Keogh plans for self-employed individuals (including partners), individual retirement accounts, medical benefit plans, church pension plans, governmental pension plans, any similar foreign plans or accounts. |
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| | | “Foreign Investment Company” – any foreign investment fund that is listed on a foreign exchange or authorized for sale to the public by a foreign regulatory authority and that has provided to the Administrator such documentation and assurances as the Administrator reasonably determines to be necessary to classify such fund as a “foreign investment company” for purposes of paragraph (l)(6) of the NASD’s hot issues rule. Any such foreign fund that does not provide such documentation and assurances to the Administrator will be considered a Private Investment Company for purposes of this determination. |
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| | | “Private Investment Company” – any domestic or foreign investment fund (other than a Benefit Plan Investor, Foreign Investment Company, Publicly Traded Company or Registered Investment Company), whether structured as a partnership (general or limited), limited liability company, trust, corporation or other entity, including hedge funds, family investment funds, investment clubs and other like accounts. |
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| | | “Publicly Traded Company” – any domestic or foreign company (other than a Foreign Investment Company or Registered Investment Company) whose equity securities are listed on a U.S. national securities exchange or the NASDAQ National Market of the Nasdaq Stock Market. Such term includes a BD that meets the definition of Publicly Traded Company. |
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| | | “Registered Investment Company” – any investment company registered under the Investment Company Act. |
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| | | “Limited Business BD” means an NASD member engaged solely in buying and selling investment company or variable contract securities and/or direct participation program securities. |
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| | | An individual is a member of the “immediate family” of a restricted person if such individual is a parent, mother-in-law or father-in-law, spouse, sibling, brother-in-law or sister- in-law, child, or son-in-law or daughter-in-law, of such restricted person. |
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| | | Each of the persons described below is a “restricted person” for purposes of Subscriber’s representation that it is or is not a “restricted person. |
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| | Broker-Dealers and Related Persons |
| | a | Any BD, acting for its own account or for the account of any other BD. |
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| | b | Any BD acting for the account of another person (other than another BD), unless such BD has provided the Fund or the Manager such documentation and assurances as the Fund or the Manager reasonably determines to be necessary to verify that such other person is not a restricted person as described in any of paragraphs (a)-(m) or (t) below. |
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| | c | Any officer, director, manager, general partner, employee or agent of a BD (other than a person who is an officer, director, manager, general partner, employee or agent solely of a Limited Business BD). |
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| | d | Any “associated person” of a BD (other than an “associated person” solely of a Limited Business BD). An “associated person” of a BD is any sole proprietor, manager, partner, officer, director or branch manager of the BD, or any individual who occupies a similar status or who performs similar functions, or who is engaged in the investment banking or securities business and who directly controls or is controlled by a BD, whether or not the individual is registered or exempt from registration with the NASD. |
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| | e | Any member of the “immediate family” of a restricted person described in paragraph (c) or (d) above. |
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| | f | Any individual who is supported to a material extent, directly or indirectly, by any BD (other than a Limited Business BD) or by any restricted person described in paragraph (c), (d) or (e) above. |
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| | g | Any individual or entity who owns or has contributed capital to any BD (other than a Limited Business BD), unless (i) such BD is an NASD member; (ii) such person’s equity or capital interest in such NASD member is passive and less than 10% (directly or indirectly) of such NASD member’s equity or capital; and (iii) the shares of such NASD member (or of its parent) are publicly traded on a U.S. national securities exchange or the NASDAQ Stock Market. |
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| | h | Any member of the “immediate family” of a restricted person described in paragraph (g) above who is supported to a material extent, either directly or indirectly, by such restricted person. |
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| | Finders, Fiduciaries and Related Persons |
| | i | Any individual or entity who is now acting or has previously acted as a finder in respect of any public offering of securities. |
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| | j | Any individual or entity who is now acting or has previously acted in a fiduciary capacity to the managing underwriter of any public offering of securities, such as an attorney, accountant or financial consultant. |
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| | k | Any individual who is supported to a material extent, either directly or indirectly, by a restricted person described in paragraph (i) or (j) above. |
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| | Officers and Employees of Investment Companies and Other Institutional Investors and Related Persons |
| | l | Any senior officer or a person in the securities department of, or an employee or other person who may influence or whose activities directly or indirectly involve or are related to the function of buying or selling securities for, a bank, savings and loan institution, insurance company, Benefit Plan Investor, Foreign Investment Company, Private Investment Company, Registered Investment Company, investment advisory or investment management firm, other money management firm, or other institutional type account, U.S. or non-U.S. |
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| | m | Any individual who is supported to a material extent, either directly or indirectly, by a restricted person described in paragraph (l) above. |
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| | Banks, Trust Companies and Other Financial Institutions Not Acting For Their Own Accounts |
| | n | Any U.S. or non-U.S. bank, any branch of a non-U.S. bank, any U.S. or non-U.S. trust company or other U.S. or non-U.S. financial institution acting for the account or accounts of another person, unless such bank, branch, trust company or other financial institution has delivered to the Administrator such documentation and assurances as the Administrator reasonably determines to be necessary to verify that such other person is not a restricted person described in any of paragraphs (a)-(m) or (t). |
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| | Benefit Plan Investors |
| | o | Any Benefit Plan Investor sponsored by a BD. |
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| | p | Any Benefit Plan Investor sponsored by an entity engaged in financial services activities, including but not limited to banks, insurance companies, investment advisers and investment managers, and other money managers, that does not permit participation by a broad class of participants but is designed primarily for the benefit of restricted persons. |
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| | q | Any Benefit Plan Investor not qualified under ERISA, unless the trustee or other person responsible for managing the business and affairs of such Benefit Plan Investor has delivered to the Administrator such documentation and assurances as the Administrator reasonably determines to be necessary to enable the Fund to comply with the provisions of paragraph (g)(5) of the NASD’s hot issues rule. |
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| | Private Investment Companies |
| | r | Any Private Investment Company, unless the general partner, managing member or other person responsible for managing the business and affairs of such company has delivered to the Administrator such documentation and assurances as the Administrator reasonably determines to be necessary to enable the Fund to comply with the provisions of paragraph (g)(5) of the NASD’s hot issues rule. |
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| | Publicly Traded Companies In Which Restricted Persons Have Beneficial Interests |
| | s | Any Publicly Traded Company of which any restricted person described in paragraphs (a)-(m) above directly or indirectly owns more than 5% of the equity securities. |
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| | Accounts and Other Entities In Which Restricted Persons Have Beneficial Interests |
| | t | Any account or other entity (other than (i) a Benefit Plan Investor; (ii) a Foreign Investment Company; (iii) a Private Investment Company; (iv) a Registered Investment Company; or (v) a Publicly Traded Company) in which any restricted person described in any of paragraphs (a)-(m) has an ownership or financial interest. |
