XXXXXXXX-XXXXXXXXX INSTITUTIONAL INVESTORS FUND LLC
FORM OF SUBSCRIPTION AGREEMENT
Xxxxxxxx-Xxxxxxxxx Institutional
Investors Fund, LLC
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Re: Subscription for Membership Interests
Ladies and Gentlemen:
This will confirm our understanding regarding the subscription by the
undersigned for Membership Interests in Xxxxxxxx-Xxxxxxxxx Institutional
Investors Fund, LLC (the "Company") with respect to the Emerging Countries
Series ("Series").
Reference is made to the First Amended and Restated Operating Agreement of
the Company dated as of June __, 2000 ("Operating Agreement"). All capitalized
terms which are defined in the Operating Agreement shall have the same meaning
in this Subscription Agreement, unless otherwise defined herein or unless the
context otherwise requires.
1. CONTRIBUTION. The undersigned herewith contributes to the Company the
amount set forth on the execution page of this Subscription Agreement, in
exchange for a membership interest ("Membership Interest") in the Series.
2. ADOPTION OF OPERATING AGREEMENT. The undersigned hereby accepts,
adopts and agrees to be bound by each and every provision contained in the
Operating Agreement, and agrees to become a Member thereunder.
3. POWER OF ATTORNEY. The undersigned hereby irrevocably makes,
constitutes and appoints the Manager as its true and lawful attorney-in-fact in
its name and stead in accordance with and for the limited purposes stated in
Section 10.8 of the Operating Agreement. The power of attorney hereby granted is
irrevocable and coupled with an interest, and may be exercised by the
attorney-in-fact for the undersigned as well as other Members by executing any
instrument by use of the single signature of such attorney-in-fact acting for
all the Members.
4. REPRESENTATIONS AND WARRANTIES OF THE UNDERSIGNED. By executing this
Subscription Agreement, the undersigned represents and warrants to the Manager
and the Company that:
(a) If the undersigned is a plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"),
(i) The person signing this Subscription Agreement is, or is an
authorized delegate of, a named fiduciary of the plan having authority to manage
and control the assets of the plan to be invested in the Company, to enter into
this Subscription Agreement and to make the representations called for herein on
the plan's behalf;
(ii) If the Company's assets constitute "plan assets" of employee
benefit plan Members for purposes of ERISA, the person signing this Subscription
Agreement is authorized to appoint and hereby appoints the Investment Manager as
investment manager with respect to the plan's assets invested in the Company;
(iii) The undersigned has evaluated for itself, to the extent it
deems necessary, the merits of an investment in the Series, as contemplated by
the Operating Agreement and Prospectus for the Series, and has determined that
the investment in the Series is prudent and consistent with the plan's
investment and diversification strategies; and
(iv) In making the investment, the undersigned is acting solely
for the benefit of the plan, and not for the benefit of the Investment Manager,
or any party in interest (as defined in ERISA) of the undersigned.
(b) The undersigned understands that the transfer of the Membership
Interest is restricted, and withdrawal from the Series is prohibited, except as
set forth in the Operating Agreement and Prospectus for the Series.
(c) The undersigned is the sole party in interest agreeing to purchase
its Membership Interest and is acquiring such interest for its own account, for
investment purposes only and not with a view to the resale or other distribution
thereof, in whole or in part. The undersigned is aware that the Membership
Interest has not been registered under the Securities Act of 1933, as amended
("1933 Act"), or registered or qualified under the securities laws of California
or the state in which the undersigned resides or is located, and that the
Membership Interest may not be resold or otherwise disposed of, except as
specifically provided in the Prospectus for the Series, unless it is registered
or qualified under the 1933 Act and such state securities laws or an exemption
from such registration or qualification is available.
(d) The undersigned has received all information relating to the
Company and the Series and first learned of the Company and the Series in the
jurisdiction listed in
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the address of the undersigned on the execution page of this Subscription
Agreement, and the undersigned intends that the state securities laws of that
state govern this transaction.
(e) The undersigned:
(i) Has been furnished with a copy of the Prospectus for the
Series dated June 28, 2000 ("Prospectus"), any documents which may have been
made available upon request and the Operating Agreement, and the undersigned has
carefully read the Prospectus and the Operating Agreement and understands and
has evaluated the risks of a purchase of a Membership Interest.
(ii) Has been given the opportunity to ask questions of, and
receive answers from, the Investment Manager concerning the terms and conditions
of the offering and other matters pertaining to this investment, and has been
given the opportunity to obtain such additional information necessary to verify
the accuracy of the information contained in the Prospectus in order for the
undersigned to evaluate the merits and risks of the purchase of the Membership
Interest, and has not been furnished with any other offering literature or
prospectus except as mentioned in the Prospectus, the Operating Agreement or
this Subscription Agreement.
(iii) Has carefully reviewed the risk factors contained in the
Prospectus and understands the risks described therein.
(iv) Has such knowledge and experience in financial, tax and
business matters that the undersigned is capable of evaluating the merits and
risks of acquisition of the Membership Interest and of making an informed
investment decision with respect thereto.
(v) Has investigated the acquisition of the Membership Interest to
the extent the undersigned has deemed necessary or desirable and the Investment
Manager has provided the undersigned with any assistance the undersigned has
requested in connection therewith.
(vi) Has determined that a Membership Interest is a suitable
investment for the undersigned.
(f) The undersigned is not relying on the Investment Manager, the
Company, the Operating Agreement, the Prospectus or this Subscription Agreement
with respect to individual and Company tax and other economic considerations
involved in the investment.
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(g) If the undersigned is a corporation, partnership, trust, estate or
other entity, it is empowered, authorized and qualified to become a Member in,
and authorized to pay its capital contribution to, the Company in the manner
contemplated in the Operating Agreement, and the person signing this
Subscription Agreement and the Investment Questionnaire on behalf of such entity
has been duly authorized by such entity to do so.
(h) The information appearing in the Investment Questionnaire
delivered to the Investment Manager prior to, or together with, this
Subscription Agreement is true, complete and correct.
(i) The Investment Manager may rely on the continued accuracy and
completeness of these representations and warranties with respect to the Company
unless and until the undersigned delivers to the Investment Manager a written
execution and delivery instrument stating that such information is no longer
accurate and complete.
(j) At no time was the undersigned presented with or solicited by any
form of general solicitation or general advertising, including, but not limited
to, any advertisement, article, notice or other communication published in a
newspaper, magazine or similar media, or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising for the specific purpose of investing in the
Company.
5. INDEMNIFICATION. The undersigned and the trustee, if any, or
authorized agent thereof, agree to indemnify and hold harmless the Company and
the Investment Manager from any and all claims, actions and causes of action
whatsoever arising from the breach, or alleged breach, of any representation or
warranty contained in paragraph 4 of this Subscription Agreement.
6. ASSIGNMENT. The undersigned may not transfer or assign this
Subscription Agreement or any of its rights or interests in, to or under this
Subscription Agreement, and any attempted transfer or assignment shall be void
and without force or effect.
7. NOTICES. Each notice relating to this Subscription Agreement shall be
in writing and shall be delivered in person, by overnight air carrier, by
registered or certified mail, by facsimile transmission or by telegram, at the
address set forth herein.
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8. COUNTERPARTS. This Subscription Agreement may be executed in any
number of counterparts, each of which shall be considered an original.
9. SEVERABILITY. Every provision of this Subscription Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity of the remainder of the Subscription Agreement.
10. NON-WAIVER. No provision of this Subscription Agreement shall be
deemed to have been waived except if such waiver is contained in a written
notice given to the party claiming such waiver has occurred, and no such waiver
shall be deemed to be a waiver of any other or further obligation or liability
of the party or parties in whose favor the waiver was given.
11. APPLICABLE LAW. Except to the extent covered by applicable federal
law, including without limitation ERISA, this Subscription Agreement and the
rights and obligations of the parties hereto with respect to the subscription
shall be interpreted and enforced in accordance with, and governed by, the laws
of the State of California applicable to agreements made and to be performed
wholly within that jurisdiction.
12. ENTIRETY OF AGREEMENT. This agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.
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MEMBER
EXECUTION PAGE
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MEMBER
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NAME OF MEMBER:
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ADDRESS:
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EMERGING COUNTRIES SERIES
CAPITAL CONTRIBUTION $
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NAME OF INDIVIDUAL TO WHOM
NOTICES AND INFORMATION
SHOULD BE SENT:
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ADDRESS:
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SOCIAL SECURITY NO. OR
FEDERAL TAXPAYER ID. NO.:
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EXECUTION PAGE
CONTINUED
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TYPE OF PROPOSED OWNERSHIP (CHECK ONE):
___ Individual ___ Company
___ Community Property ___ Corporation
___ Joint Tenant ___ Trust
___ Tenants in Common ___ (other) ________________
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[Name of Member]
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[Name of Trustee*]
By:
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Signature
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Print Name and Office of
Signing Person
DATE: , 2000
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ACCEPTANCE
Xxxxxxxx-Xxxxxxxxx Capital Management, as Investment Manager, hereby
accepts the above subscription to acquire a Membership Interest in
Xxxxxxxx-Xxxxxxxxx Institutional Investors Fund, LLC with respect to the
Emerging Countries Series set forth above, and hereby admits the subscriber as a
Member of the Company with respect to such Emerging Countries Series.
DATED AS OF , 2000
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XXXXXXXX-XXXXXXXXX CAPITAL
MANAGEMENT, MANAGER
By: Xxxxxxxx-Xxxxxxxxx Capital Management
Holdings, L.P., its general partner
By: Xxxxxxxx-Xxxxxxxxx Capital Management
Holdings, Inc., its general partner
Title:
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