SUBSCRIPTION AGREEMENT
Xxxx Family of Funds
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
1. Pursuant to prior understandings and discussions, the undersigned
("Subscriber") hereby agrees to purchase from Xxxx Family of Funds, a Delaware
trust (the "Trust"), Ten Thousand (10,000) shares (the "Shares") of beneficial
interest of Halter Xxxx USX China Fund, a series of the Trust, with a par value
of $0.01 per Share, at a price of Ten Dollars ($10.00) per share. Subscriber
hereby acknowledges (i) that this subscription shall not be deemed to have been
accepted by the Trust until the Trust indicates its acceptance by returning to
Subscriber an executed copy of this subscription, and (ii) that acceptance by
the Trust of this subscription is conditioned upon the information and
representations of Subscriber hereunder being complete, true and correct as of
the date of this subscription and as of the date of closing of sale of the
Shares to Subscriber.
2. Until actual delivery of the purchase price to the Trust and
acceptance by the Trust of the purchase price and this Subscription Agreement,
the Trust shall have no obligation to Subscriber. The Trust may revoke a prior
acceptance of this Subscription Agreement at any time prior to delivery to and
acceptance by the Trust of the purchase price for the Shares.
3. Subscriber understands, acknowledges and agrees as follows:
(a) Subscriber has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Trust and of making an informed investment decision.
(b) Subscriber has the capacity to protect his own interest in
connection with this transaction by reason of his prior personal or business
relationships with the Trust or its officers or directors or his business or
financial experience.
(c) Subscriber understands that because the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act")
or applicable state securities laws, Subscriber cannot dispose of any or all of
the Shares unless such Shares are subsequently registered under the Securities
Act, and/or applicable state securities laws, or exemptions from such
registration are available. Subscriber acknowledges and understands it has no
right to require the Trust to register the Shares, except as provided in this
Agreement. Subscriber further understands that the Trust, as a condition to the
transfer of any of the Shares, may require that the request for transfer be
accompanied by opinion of counsel satisfactory to the Trust, in form and
substance satisfactory to the Trust and preceded by prior written notice, to the
effect that the proposed transfer does not result in violation of the Securities
Act or applicable state securities laws, unless such transfer is covered by an
effective registration statement under the Securities Act and all applicable
state securities laws. Subscriber understands that each certificate representing
the Shares and any securities issued upon conversion or exercise of any
securities in, the Shares or on account of ownership thereof will bear the
following legend or one substantially similar thereto:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or
the securities laws of any state. These securities have been acquired
for investment and not with a view to distribution or resale, and may
not be sold, mortgaged, pledged, hypothecated or otherwise transferred
without an effective registration statement for such shares under the
Securities Act and applicable state securities laws, or an opinion of
counsel satisfactory to the corporation that registration is not
required under the Securities Act and applicable state securities laws.
(2) The representations, warranties, understandings, acknowledgments
and agreements in this Agreement are true and accurate as of the date hereof,
shall be true and accurate as of the date of the acceptance hereof by the Trust
and shall survive thereafter.
(3) This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of Delaware, as such laws are
applied by Delaware courts to agreements entered into and to be performed in
Delaware, and shall be binding upon Subscriber, his heirs, estate, legal
representatives, successors and assigns and shall inure to the benefit of the
Trust and its successors and assigns.
(4) Subscriber agrees not to transfer or assign this Agreement, or any
of his interest herein, without the express written consent of the Trust.
(5) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any and all
prior or contemporaneous representations, warranties, agreements and
understandings in connection therewith. This Agreement may be amended only by a
writing executed by all parties hereto. This Agreement may be executed in one or
more counterparts.
(6) Subscriber recognizes it is important under the Securities Act and
state securities law that the Trust determine if potential investors are
"accredited investors," as defined in Appendix A attached hereto. Subscriber
represents that it is an "accredited investor." Subscriber further represents
that it is a citizen of TN. Subscriber is not a resident of any other
jurisdiction.
(The remainder of this page is intentionally left blank.
Signature page follows.)
IN WITNESS WHEREOF, Subscriber has executed this Subscription Agreement
this _______ day of ______________, 2005.
Subscription:
10,000
----------------------------
Number of Shares
$100,000
----------------------------
Total Payment Enclosed
/s/ Xxxxxxx X. Xxxx XXX
--------------------------------------------
Signature
Name: Xxxxxxx X. Xxxx XXX
---------------------------------------
--------------------------------------------
Social Security Number
0000 Xxxxx Xxxxxx, Xxxxx 000
--------------------------------------------
Xxxxxxx, Xxxxxxxxx 00000
--------------------------------------------
--------------------------------------------
Address
Acceptance:
The foregoing Subscription Agreement is accepted on this the ____ day of
____________, 2005.
XXXX FAMILY OF FUNDS
By: /s/ Xxxxx XxXxxxxxxx
-----------------------------------------
Xxxxx XxXxxxxxxx, Secretary
---------------- ---------
ATTEST:
/s/ Xxxxxxx X. Xxxx
---------------------------------
Xxxxxxx X. Xxxx, President
--------------- ---------
3
APPENDIX A
An Accredited Investor is defined as follows:
1. a natural person whose individual net worth, or joint net worth, with
that person's spouse, at the time of purchase exceeds $1,000,000;
2. a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year (the year in which the
purchase is made);
3. any trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of investing in the Trust, whose purchase is directed by a
sophisticated person having such knowledge and experience in financial and
business matters that he is capable of evaluating the risks and merits of
investing in the Trust;
4. a director or executive officer of the Trust;
5. an organization described in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
6. a bank as defined in the Securities Act of 1933 (the "Act"), or a
savings and loan association or other institution as defined in the Act whether
acting in its individual or fiduciary capacity; a broker or dealer registered
under the Securities Exchange Act of 1934; an insurance company as defined in
the Act; an investment company registered under the Investment Company Act of
1940 or a business development company as defined in the Act; a Small Business
Investment Company licensed under the Small Business Investment Act of 1958; an
employee benefit plan within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, if the investment decision is made by a plan
fiduciary, which is either a bank, savings and loan association, an insurance
company, or registered investment adviser, or if the employee benefit plan has
total assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are accredited investors;
7. a "private business development company" as defined in the Investment
Advisers Act of 1940; or
8. an entity in which all of the equity owners are accredited investors.
