APPENDIX C
EXCELSIOR VENTURE
PARTNERS III, LLC
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SUBSCRIPTION
BOOKLET
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EXCELSIOR VENTURE PARTNERS III, LLC
SUBSCRIPTION INSTRUCTIONS
This booklet contains documents which must be executed and returned if you
wish to invest in Excelsior Venture Partners III, LLC (the "Company"). You
should consult with an attorney, accountant, investment advisor or other
advisor regarding an investment in the Company and its suitability for you.
All Subscription Documents must be completed correctly and thoroughly or
they will not be accepted. If you wish to invest, please complete, sign and
return this Subscription Booklet and retain the Company's prospectus.
If you have any questions concerning these Subscription Documents or would
like assistance completing them, please contact your investment advisor.
INSTRUCTIONS FOR INDIVIDUALS (SUBSCRIPTIONS THROUGH A RETIREMENT PLAN,
INCLUDING IRAS AND 401KS, MUST BE MADE PURSUANT TO THE "INSTRUCTIONS FOR
ENTITIES OTHER THAN INDIVIDUALS," BELOW)
1. Fill out and sign page 16.
NOTE: By executing page 16, the investor thereby grants the Power
of Attorney contained in the Subscription Agreement under Section
1(c).
2. Return this booklet to your U.S. Trust contact or directly to the
Company at the address listed on the next page under the heading
COMPANY ADDRESS.
3. Follow the instructions listed on the next page under the heading
PAYMENT OF CAPITAL CONTRIBUTION.
INSTRUCTIONS FOR ENTITIES OTHER THAN INDIVIDUALS (TRUSTS, CORPORATIONS,
CUSTODIANS, IRAS ETC.)
1. Direct the appropriate personnel to answer the Questionnaire found
on page 14 by initialing in the spaces provided.
2. Appropriate personnel should fill out and sign page 16.
NOTE: By executing page 16, the investor thereby grants the Power
of Attorney contained in the Subscription Agreement under Section
1(c).
3. IF THE INVESTOR IS A PARTNERSHIP, please complete Exhibit A and
attach to it a copy of the Investor's partnership agreement or
other governing instruments; IF THE INVESTOR IS A CUSTODIAN,
TRUSTEE OR AGENT, please complete Exhibit B and attach to it a copy
of the Investor's trust declaration or other governing instrument;
IF THE INVESTOR IS A CORPORATION, please complete Exhibit C and
attach to it a copy of the Investor's Articles of Incorporation and
By-laws or other governing instruments; IF THE INVESTOR IS A
LIMITED LIABILITY COMPANY, please complete Exhibit D and attach to
it a copy of the Investor's operating agreement or other governing
instruments.
4. Return this booklet to your U.S. Trust contact or directly to the
Company at the address listed below under the heading COMPANY
ADDRESS.
5. Follow the instructions listed below under the heading PAYMENT OF
CAPITAL CONTRIBUTION.
COMPANY ADDRESS:
Excelsior Venture Partners III, LLC
114 West 47th Street
New York, NY 10036
Attention: Katherine Hunsley
PAYMENT OF CAPITAL CONTRIBUTION
If you maintain an account with U.S. Trust, you may elect to have your
payment deducted from your designated U.S. Trust account by checking the
appropriate box on the Execution Page or may make your payment by wire or
check on or before the date of the closing of the Company. If you do not
maintain a U.S. Trust account, payment must be made by wire or check on or
before the date of the closing of the Company. If you elect to have your
payment deducted directly from your designated U.S. Trust account, the
Company will notify U.S. Trust of the date and time of the proposed closing
at least three business days prior to the proposed closing date. On, or
before the proposed closing date, monies will be deducted from your
designated U.S. Trust account and transmitted to the escrow account
maintained by PFPC Inc., as Escrow Agent, pending closing. As explained in
the prospectus, if subscription for at least $250,000,000 have not been
received by the Termination (as defined in the prospectus), the offering
will terminate and funds will be returned to investors. Please carefully
follow the instructions listed below to insure proper payment.
To Pay By Check:
Make payable to: PFPC Inc. as Escrow Agent for Excelsior Venture
Partners III, LLC
Send to: PFPC Inc.
c/o Excelsior Venture Partners III, LLC
103 Bellevue Parkway
Wilmington, DE 19809
Attention: Lisa Sparco
To Pay By Wire:
IT IS IMPERATIVE THAT YOU INCLUDE YOUR NAME (OR, IF YOU ARE WIRING MONEY ON
BEHALF OF AN ENTITY, THE NAME OF THE ENTITY) IN THE REFERENCE LINE OF THE
WIRE INSTRUCTIONS.
Wire to: PNC Bank Delaware
ABA #: 031100089
FBO: PFPC Inc. as Escrow Agent for
Excelsior Venture Partners III, LLC
Account #: 56-0401-4748
Reference: [Insert Investor's name here]
THE COMPANY IS NOT AVAILABLE FOR INVESTMENT TO RESIDENTS OF ALABAMA,
ARKANSAS, KANSAS, MAINE, MARYLAND, MASSACHUSETTS, MISSISSIPPI AND MISSOURI.
SCHEDULE A CONTAINS ADDITIONAL INFORMATION AND REQUIREMENTS FOR RESIDENTS
IN CERTAIN OTHER STATES.
See next page for tear-out prepared instructions to deliver to your
bank/financial institution.
WIRING INSTRUCTIONS
___________________________ Insert your
___________________________ Bank/Financial
___________________________ Institution name
___________________________ and address here.
Dear Sir/Madam:
Please wire _________________ (insert your dollar amount)
from my account number __________________ (insert your account number) and
send the proceeds to:
PNC Bank Delaware
ABA #: 031100089
FBO: FPFC Inc. as Escrow Agent for
Excelsior Venture Partners III, LLC
Account #: 56-0401-4748
Reference:
Sincerely,
Investor Signature _________________________
Print name _________________________
Address _________________________
_________________________
_________________________
Daytime Telephone # _________________________
SUBSCRIPTION AGREEMENT
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Excelsior Venture Partners III, LLC
c/o United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Ladies and Gentlemen:
Reference is made to the prospectus dated ___________, 2000
(the "Prospectus") with respect to the offering of units of membership
interest ("Units") in Excelsior Venture Partners III, LLC (the "Company").
Capitalized terms used but not defined herein shall have the respective
meanings given them in the Prospectus.
The undersigned subscribing investor (the "Investor") hereby
agrees as follows:
1. Subscription for the Units.
(a) The Investor agrees to become a Member of the Company
and agrees to make a capital contribution to the Company in the amount set
forth on the Execution Page of this Subscription Agreement under the
heading "Capital Commitment" on the terms and conditions described herein
and in the Prospectus.
(b) The Investor acknowledges and agrees that it is not
entitled to cancel, terminate or revoke this subscription or any agreements
or power of attorney of the Investor hereunder, except as otherwise set
forth in this Section 1(b), the Prospectus or applicable law, and such
subscription and agreements and power of attorney shall survive (i) changes
in the transaction, documents and instruments described in the Prospectus
which in the aggregate are not material or which are contemplated by the
Prospectus and (ii) the death or disability of the Investor; provided,
however, that if the Company shall not have accepted this subscription on
or before December 31, 2000, subject to extension by the Company's Board of
Managers (the date of any such acceptance of this subscription the "Closing
Date"), this subscription, all agreements of the Investor hereunder and the
power of attorney granted hereby shall be cancelled and this Subscription
Agreement will be returned to the Investor.
(c) The Investor hereby irrevocably constitutes and appoints
each member of the Company's Board of Managers and the appropriate officers
of the Company (and any designee of, substitute for or successor to any of
them) as the Investor's true and lawful attorney in the Investor's name,
place and stead, (i) to receive and pay over to the Company on behalf of
the Investor, to the extent set forth in this Subscription Agreement, all
funds received hereunder, (ii) to execute, complete or correct, on behalf
of the Investor, all documents to be executed by the Investor in connection
with the Investor's subscription for Units, including, without limitation,
filling in or amending amounts, dates, and other pertinent information and
(iii) to make, execute, acknowledge, deliver, swear to, file and record:
(A) this Agreement and a certificate of formation, a certificate of doing
business under fictitious name and any other instrument or filing which the
Board of Managers or the appropriate officers of the Company consider
necessary or desirable to carry out the purposes of this Subscription
Agreement, the Operating Agreement or the business of the Company or that
may be required under the laws of any state or local government or of any
other jurisdiction; (B) any and all amendments, restatements,
cancellations, or modifications of the instruments described in (A) above;
(C) any and all instruments related to the admission, removal, or
withdrawal of any Member; and (D) all documents and instruments that may be
necessary or appropriate to effect the dissolution and termination of the
Company. This power of attorney shall be deemed coupled with an interest,
shall be irrevocable and shall survive any transfer of some or all of the
Investor's Units.
2. Certain Acknowledgments and Agreements of the Investor.
The Investor understands and acknowledges that the
subscription for the Units contained herein may be accepted or rejected, in
whole or in part, by the Company in its sole and absolute discretion. No
subscription shall be deemed accepted until the subscription has actually
been accepted and, if necessary, any subsequent acts have been taken which
shall be deemed an acceptance of this Agreement by the Company for all
purposes. The Investor understands that Skadden, Arps, Slate, Meagher &
Flom LLP acts as counsel only to the Company, the Investment Adviser and
Investment Sub-Adviser and no attorney-client relationship exists between
Skadden, Arps, Slate, Meagher & Flom LLP and any other person solely by
reason of such person making an investment in the Company.
3. Representations and Warranties of the Investor.
The Investor, for the Investor and for the Investor's heirs,
personal representatives, successors and assigns, makes the following
representations, declarations and warranties with the intent that the same
may be relied upon in determining the suitability of the undersigned as an
investor in the Company. The following representations, warranties and
agreements shall survive the Closing Date.
(a) The Investor has received, read carefully and
understands the Prospectus and all exhibits thereto and has consulted the
Investor's own attorney, accountant or investment advisor with respect to
the investment contemplated hereby and its suitability for the Investor.
Any special acknowledgment set forth below with respect to any statement
contained in the Memorandum shall not be deemed to limit the generality of
this representation and warranty.
(b) The fair value of the Investor's total assets (exclusive
of the Investor's principal residence) less the Investor's total liabilities is
at least $1,000,000. The amount that the Investor is subscribing for does
not exceed 10% of the Investor's total assets less the Investor's total
liabilities.
(c) The Investor understands and acknowledges that (i) the
Investor must bear the economic risk of the Investor's investment in the
Units until the termination of the Company; (ii) the Investor has no
contract, undertaking, agreement or arrangement with any person to sell,
transfer or pledge to such person or anyone else any of the Units which the
Investor hereby subscribes to purchase or any part thereof, and the
Investor has no present plans to enter into any such contract, undertaking,
agreement or arrangement; (iii) the Units cannot be sold or transferred
without the prior written consent of the Company, which shall be granted or
may be withheld in accordance with the terms of the Operating Agreement and
will be withheld if transfer would subject the Company to adverse tax
consequences; (iv) following any sale, transfer or disposition of Units,
less than 25% of the value of the class of Units may be held by "benefit
plan investors" within the meaning of DOL Regulation 2510.3-101, 29 C.F.R.
Section 2510.3-101; (v) there will be no public market for the Units; and
(vi) any disposition of the Units may result in unfavorable tax
consequences to the Investor.
(d) The Investor is aware and acknowledges that (i) the
Company has no operating history; (ii) the Units involve a substantial
degree of risk of loss of the Investor's entire investment and there is no
assurance of any income from such investment; (iii) any federal and/or
state income tax benefits which may be available to the Investor may be
lost through the adoption of new laws or regulations or changes to existing
laws and regulations or changes in the interpretation of existing laws and
regulations; (iv) the Investor, in making its investment, is relying solely
upon the advice of the Investor's personal tax advisor with respect to the
tax aspects of an investment in the Company; and (v) because there are
substantial restrictions on the transferability of the Units it may not be
possible for the undersigned to liquidate its investment readily in any
event, including in case of an emergency.
(e) If the Investor is a corporation, limited liability
company, trust, partnership or other entity, the statements made by the
Investor in Paragraph 7 hereto are true, correct and complete in all
material respects.
(f) If the Investor is a natural person, the Investor is at
least 21 years of age and the Investor has adequate means of providing for
all its current and foreseeable needs and personal contingencies and has no
need for liquidity in this investment, and if the Investor is an
unincorporated association, all of its members who are U.S. Persons (as
defined in subsection (m) of this Section 3) are at least 21 years of age.
(g) The Investor has evaluated the risks of investing in the
Units, and has determined that the Units are a suitable investment for the
Investor. The Investor can bear the economic risk of this investment and
can afford a complete loss of its investment. In evaluating the suitability
of an investment in the Units, the Investor has not relied upon any advice,
representations or other information (whether oral or written) other than
as set forth in the Prospectus and exhibits thereto, and independent
investigations made by the Investor or representative(s) of the Investor
that are not affiliated with the Company. The Investor has reviewed the
eligibility requirements of Schedule A, attached to this Agreement, and to
the extent applicable, meets all suitability and eligibility requirements
described therein.
(h) The Investor is knowledgeable and experienced in
evaluating investments and experienced in financial and business matters
and is capable of evaluating the merits and risks of investing in the
Units. The aggregate amount of the investments of the Investor in, and the
Investor's commitments to, all similar investments that are illiquid is
reasonable in relation to the Investor's net worth.
(i) The Investor maintains its domicile, and is not merely a
transient or temporary resident, at the residence address shown on the
signature page of this Subscription Agreement.
(j) The representations, warranties, agreements,
undertakings and acknowledgments made by the Investor in this Subscription
Agreement are made with the intent that they be relied upon by the Company,
Charles Schwab & Co., Inc. (the "Distributor") and any selling agent in
determining its suitability as a purchaser of the Units, and shall survive
its purchase. In addition, the Investor undertakes to notify the Company
immediately of any change in any representation, warranty or other
information relating to the Investor set forth herein.
(k) The Investor, if it is a corporation, limited liability
company, trust, partnership or other entity, is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization and the execution, delivery and performance by it of this
Subscription Agreement and the Operating Agreement are within its powers,
have been duly authorized by all necessary corporate or other action on its
behalf, require no action by or in respect of, or filing with, any
governmental body, agency or official (except as disclosed in writing to
the Company), and do not and will not contravene, or constitute a default
under, any provision of applicable law or regulation or of its certificate
of incorporation, By-laws or other comparable organizational documents or
any agreement, judgment, injunction, order, decree or other instrument to
which the Investor is a party or by which the Investor or any of the
Investor's property is bound. This Agreement constitutes, and the Operating
Agreement, when executed and delivered, will constitute, a valid and
binding agreement of the Investor, enforceable against the Investor in
accordance with its terms.
(l) If the Investor is a natural person, the execution,
delivery and performance by the Investor of this Subscription Agreement and
the Operating Agreement are within the Investor's legal right, power and
capacity, require no action by or in respect of, or filing with, any
governmental body, agency or official (except as disclosed in writing to
the Company), and do not and will not contravene, or constitute a default
under, any provision of applicable law or regulation or of any agreement,
judgment, injunction, order, decree or other instrument to which the
Investor is party or by which the Investor or any of his or her property is
bound. This Subscription Agreement constitutes, and the Operating
Agreement, when executed and delivered, will constitute, a valid and
binding agreement of the Investor, enforceable against the Investor in
accordance with its terms.
(m) The Investor is a United States citizen if an
individual, and if an entity is organized under the laws of the United
States or a state thereof or is otherwise a U.S. Person (1) as defined
below or as otherwise defined in Rule 902 under the U.S. Securities Act of
1933, as amended.
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(1) For purposes of this representation, a U.S. Person is (i) a natural
person who is a citizen of or resident in the United States; (ii) a
partnership or corporation organized or incorporated under the laws of
the United States; (iii) an estate of which any executor or
administrator is a U.S. person; (iv) a trust of which any trustee is a
U.S. person; (v) an agency or branch of a foreign entity located in
the United States; (vi) a non- discretionary account or similar
account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a U.S. person; (vii) a
discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated, or
(if an individual) resident in the United States; and (viii) a
partnership or corporation if (A) organized or incorporated under the
laws of any foreign jurisdiction; and (B) formed by one or more of the
above and/or one or more natural persons resident in the U.S.
principally for the purpose of investing in securities not registered
under the Securities Act, unless it is organized or incorporated, and
owned, by accredited investors (as defined in Rule 501(a)) who are not
natural persons, estates or trusts; provided, however, that the term
"U.S. Person" shall not include any person or entity that is not
treated as a U.S. Person for purposes of the Internal Revenue Code of
1986, as amended.
(n) By purchase of Units, the Investor represents to the
Investment Adviser, the Investment Sub-Adviser, the Board of Managers, the
Distributor and the Company that the Investor has neither acquired nor will
transfer, assign or market any Units the Investor purchases (or any
interest therein) on or through an "established securities market" or a
"secondary market (or the substantial equivalent thereof)" within the
meaning of section 7704(b) of the Internal Revenue Code of 1986, as
amended, including, without limitation, an over-the-counter-market or an
interdealer quotation system that regularly disseminates firm buy or sell
quotations. Further, the Investor agrees that, if it determines to transfer
or assign any of its Units or any interest therein pursuant to the
provisions of the Operating Agreement, it will cause its proposed
transferee to agree to the transfer restrictions set forth herein and to
make the representations set forth above.
(o) The Investor has evaluated the Prospectus and has
determined that the Investor is and will be in a financial position
appropriate to enable the Investor to realize to a significant extent the
benefits described in the Prospectus.
4. Indemnification. The Investor recognizes that the offer
of the Units was made in reliance upon the Investor's representations and
warranties set forth in Paragraph 3 above and the acknowledgments and
agreements set forth in Paragraph 2 above. The Investor agrees to provide,
if requested, any additional information that may reasonably be required to
determine the eligibility of the Investor to purchase the Units. The
Investor hereby agrees to indemnify the Company, each member of the Board
of Managers of the Company, the Investment Adviser, the Investment
Sub-Adviser, the Distributor and any of their affiliates and controlling
persons and each other member and any successor or assign of the foregoing
and to hold each of them harmless from and against any loss, damage or
liability (including attorney's fees) due to or arising out of a breach of
any representation, warranty, acknowledgment or agreement of the Investor
contained in this Subscription Agreement or in any other document provided
by the Investor to the Company in connection with the Investor's investment
in the Units. Notwithstanding any provision of this Agreement, the Investor
does not waive any rights granted to it under applicable securities laws.
5. General. This Agreement (i) shall be binding upon the
Investor and the heirs, personal representatives, successors and assigns of
the Investor, (ii) shall be governed, construed and enforced in accordance
with the laws of the State of Delaware, without reference to any principles
of conflicts of law (except insofar as affected by the state securities or
"blue sky" laws of the jurisdiction in which the offering described herein
has been made to the Investor), (iii) shall survive the admission of the
Investor to the Company as a Member, and (iv) shall, if the Investor
consists of more than one person, be the joint and several obligation of
all such persons.
6. Assignment. The Investor agrees that neither this
Subscription Agreement nor any rights which may accrue to the Investor
hereunder may be transferred or assigned.
7. Suitability. If the Investor is a corporation, limited
liability company, trust, partnership or other entity, the truth,
correctness and completeness of the information supplied by the Investor in
the attached Investor Questionnaire for Entities is warrantied pursuant to
Paragraph 3(e) hereof.
8. Arbitration. ANY CLAIM, CONTROVERSY, DISPUTE OR DEADLOCK
ARISING UNDER THIS AGREEMENT (COLLECTIVELY, A "DISPUTE") SHALL BE SETTLED
BY ARBITRATION, IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE NASD,
EXCEPT IN THE EVENT THAT THE NASD IS UNWILLING TO ACCEPT JURISDICTION OF
THE MATTER, SUCH ARBITRATION SHALL BE HELD IN ACCORDANCE WITH THE RULES AND
REGULATIONS OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). ALL
ARBITRATIONS SHALL BE HELD IN SAN FRANCISCO, CALIFORNIA. ANY ARBITRATION
AND AWARD OF THE ARBITRATORS, OR A MAJORITY OF THEM, SHALL BE FINAL AND THE
JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY STATE OR FEDERAL
COURT HAVING JURISDICTION. NO PUNITIVE DAMAGES ARE TO BE AWARDED.
Schedule A
RESIDENTS OF THE FOLLOWING STATES MUST MEET THE
SUITABILITY STANDARDS SET FORTH BELOW
ARIZONA
To invest in Units of the Company, Arizona residents must represent
that their investment in Units of the Company does not represent more than
ten percent of their net worth less the value of their investments in
limited partnership interests and have one of the following: (a) an annual
gross income of at least seventy-five thousand dollars and a net worth of
at least seventy-five thousand dollars exclusive of home, car and home
furnishings; (b) a net worth of at least two hundred twenty-five thousand
dollars exclusive of home, car and home furnishings; or (c) in the case of
sales to qualified pension or profit sharing plans or trusts, Keogh plans
or individual retirement accounts, that the net worth and income
requirements set forth in items (a) or (b) of this paragraph are met by the
fiduciary account or by the donor who directly or indirectly supplies the
monies for the purchase of the securities.
MINNESOTA
To invest in Units of the Company, Minnesota residents must qualify
as an accredited investor as that term is defined under Rule 501 of the
Securities Act of 1933, as amended, and as set forth in Schedule B attached
hereto.
NEBRASKA
To invest in Units of the Company, Nebraska residents must meet one
of the following: (a) individual annual taxable income of at least $200,000
in each of the two most recent years or joint income with spouse in excess
of $300,000 in two each of the two most recent years and a reasonable
expectation of reaching the same income level in the current year; or (b)
individual or joint net worth with spouse of at least one million dollars.
NEW HAMPSHIRE
To invest in Units of the Company, New Hampshire residents must
meet one of the following: (a) annual taxable income of at least fifty
thousand dollars and a net worth of at least one hundred and twenty-five
thousand dollars; or (b) a net worth of at least two hundred and fifty
thousand dollars.
OKLAHOMA
To invest in Units of the Company, Oklahoma residents must qualify
as an accredited investor as that term is defined under Rule 501 of the
Securities Act of 1933, as amended, and set forth in Schedule B attached
hereto.
TEXAS
To invest in Units of the Company, Texas residents must qualify as
an accredited investor as that term is defined under Rule 501 of the
Securities Act of 1933, as amended, and set forth in Schedule B attached
hereto.
WEST VIRGINIA
To invest in Units of the Company, West Virginia residents must
meet one of the following: (a) individual annual taxable income of at least
$200,000 in each of the two most recent years or joint income with spouse
in excess of $300,000 in two each of the two most recent years and a
reasonable expectation of reaching the same income level in the current
year; or (b) individual or joint net worth with spouse of at least one
million dollars.
Schedule B
DEFINITION OF ACCREDITED INVESTOR
"Accredited investor" shall mean any person who comes within any of the
following categories, or who the issuer reasonably believes comes within
any of the following categories, at the time of the sale of the securities
to that person:
a. A bank, or any savings and loan association or other
institution acting in its individual or fiduciary capacity;
a broker or dealer; an insurance company; an investment
company or a business development company under the
Investment Company Act of 1940, as amended; a Small Business
Investment Company licensed by the U.S. Small Business
Administration; a plan 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 million; an employee benefit plan
whose investment decision is being made by a plan fiduciary,
which is either a bank, savings and loan association,
insurance company or registered investment adviser, or an
employee benefit plan whose total assets are in excess of
$5,000,000 or a self-directed employee benefit plan whose
investment decisions are made solely by persons that are
"accredited investors;"
b. A private business development company under the Investment
Advisers Act of 1940;
c. Any corporation, partnership, limited liability company,
Massachusetts or similar business trust or organization
described in Section 501(c)(3) of the Internal Revenue Code
that has total assets in excess of $5,000,000, and was not
formed for the specific purpose of acquiring the Units;
d. Any trust, not formed for the specific purpose of acquiring
the securities offered, with total assets in excess of
$5,000,000 and whose purchase is directed by a sophisticated
person;
e. Any director, executive officer, or general partner of the
Company;
f. Any natural person with:
i. a net worth, (including residence, personal property
and other assets in excess of total liabilities)
taken together with the net worth of the Investor's
spouse, exceeds $1,000,000;
ii. individual gross income in excess of $200,000 (or
joint income with spouse in excess of $300,000) in
each of the two previous years and a reasonable
expectation of gross individual income in excess of
$200,000 (or joint income with spouse in excess of
$300,000) this year; or
g. Any entity in which all of the equity holders are accredited
investors.
INVESTOR QUESTIONNAIRE FOR ENTITIES
EXAMPLES OF ENTITIES INCLUDE, BUT ARE NOT LIMITED TO, TRUSTS, CORPORATIONS,
LIMITED PARTNERSHIPS AND LIMITED LIABILITY COMPANIES.
ENTITIES (NON-INDIVIDUALS): PLEASE COMPLETE THIS QUESTIONNAIRE.
1. Legal form of entity (corporation, partnership, trust, etc.):
________________________________________________________________
Investor entity was organized under the laws of the state of______________
2. The fiscal year-end of the Investor is ______________.
(Month/Day)
3. ERISA. (i) The Investor, and each account on behalf of which it is
acquiring the Units IS _____ / IS NOT _____ (check one): using funds to
acquire Units that constitute assets of any of the following:
(a) an "employee benefit plan" as defined in section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether or not it is subject to Title I of ERISA
(including but not limited to governmental plans);
(b) a plan (including IRAs) described in section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code");
(c) an entity whose underlying assets include (or are deemed to
include) plan assets by reason of a plan's investment in such
entity (including but not limited to an insurance company
general account, an insurance company separate account, and a
collective investment fund); or
(d) an entity that otherwise constitutes a "benefit plan
investor" within the meaning of the Department of Labor
Regulation, 29 C.F.R. Section 2510.3-101 (the "Plan Assets
Regulation") (the plans and entities described in clauses (a),
(b),(c) and (d) above being referred to as "Benefit Plan
Investors").
(ii) The Investor, and each account on behalf of which it is acquiring
the Units, IS _____ / IS NOT _____ (check one) a Controlling Person. A
Controlling Person is defined as a person (other than Benefit Plan
Investors) that has discretionary authority or control with respect to
the assets of an entity or that provides investment advice for a fee
(direct or indirect) with respect to such assets, or any affiliate of
such a person.
(iii) The Investor acknowledges that the Company will not register the
sale, transfer or disposition of the Units unless, following such sale,
transfer or disposition, less than twenty-five percent (25%) of the
value of the class of Units is held by Benefit Plan Investors. It
further acknowledges that for purposes of determining whether Benefit
Plan Investors hold less than twenty-five percent (25%) of the value of
the Units, (a) the value of any Units held by Controlling Persons that
are not Benefit Plan Investors will be disregarded, and (b) unless
specific disclosure is made by the Investor to the Issuer to the
contrary, an insurance company general account will be treated as if
100% of the assets of such general account constituted assets of a
Benefit Plan Investor.
The representations to be made pursuant to this paragraph (iii) shall
be deemed made on each day from the date the Investor makes such
representations through and including the date on which such Investor
disposes of its interests in the Units. The Investor understands and
agrees that the information supplied above will be utilized to
determine whether Benefit Plan Investors own less than 25% of the
Units, both upon the original issuance of Units and upon any subsequent
transfer of any equity interest in the Company for any reason.
In evaluating the suitability of an investment in the Units, the
Investor has not relied upon any advice, representations or other
information (whether oral or written) other than as set forth in the
Prospectus and exhibits thereto, and independent investigations made by
the Investors or representatives of the Investor that are not
affiliated with the Company.
4. Please indicate whether or not the Investor is a U.S. pension trust or
governmental plan qualified under section 401(a) of the Code or a U.S.
tax-exempt organization qualified under section 501(c)(3) of the Code.
____ Yes ____ No
EXCELSIOR VENTURE PARTNERS III, LLC
EXECUTION PAGE
IN WITNESS WHEREOF, THE UNDERSIGNED INVESTOR HAS EXECUTED THIS SUBSCRIPTION
AGREEMENT.
Mr., Mrs. Jr., Sr., II, III, IV, Esq., CPA
Ms., Dr. _________________________________
(Investor/Contact Name)
RESIDENCE
Address: ___________________________________ Telephone: ( )______________
____________________________________________ Fax: ( )____________________
City:___________ State:______ Zip:________ E-Mail: ( )_________________
MAILING ADDRESS (IF OTHER THAN RESIDENCE)
Title: _____________________________________ Telephone: ( )_____________
Company Name: ______________________________ Fax: ( )___________________
Address: ___________________________________ E-Mail: ( )________________
City:___________ State:______ Zip:________
Investor Name: _______________________________________________________
U.S. Trust Account Number: ___________________________________________
Investor Type
|_| Individual Joint: |_| Rights of Survivorship |_| Trust |_| Partnership
|_| Tenants in Common |_| Corporation |_| L.L.C.
|_| Other: ________________________________________________________
Social Security/Tax ID No: _______________ Signature: __________________
Print Name and Title (if
applicable):
_____________________________
State in which this Agreement
was signed: ____________________________ Date of Execution: ________, 20__
CAPITAL COMMITMENT: $_______________ (Must be a multiple of $500 greater
than $100,000.)
Method of Payment: | | Debit U.S. Trust Account |_| Wire |_| Check
WIRE PAYMENT INFORMATION FOR INVESTOR (FOR COMPANY DISTRIBUTIONS). IF
DISTRIBUTIONS ARE TO BE WIRED TO THE U.S. TRUST ACCOUNT NUMBER LISTED
ABOVE, CIRCLE "YES" BELOW AND LEAVE THE REMAINDER BLANK.
U.S. Trust Account: Yes or No
Bank Name: _________________________ Bank Officer: _____________________
Address: ___________________________ Telephone: ________________________
Investor Account Number: ___________ ABA Number: _______________________
EXHIBIT A
CERTIFICATE OF PARTNERSHIP INVESTOR
TO BE COMPLETED BY INVESTORS WHO ARE PARTNERSHIPS.
CERTIFICATE OF ____________________________________________ (the "Partnership")
(Name of Partnership)
The undersigned, constituting all of the partners of the Partnership who
must consent to the proposed investment by the Partnership hereby certify
as follows:
1. That the Partnership commenced business on ______________________ and
was established pursuant to a Partnership Agreement dated
__________________ (the "Agreement").
2. That a true and correct copy of the Agreement is attached hereto and
that, as of the date hereof, the Agreement has not been amended (except as
to any attached amendments) or revoked and is still in full force and
effect.
3. That, as the partners of the Partnership, we have the authority to
determine, and have determined, (i) that the investment in, and the
purchase of an interest in Excelsior Venture Partners III, LLC is of
benefit to the Partnership and (ii) to make such investment on behalf of
the Partnership.
4. That _______________________________________________ is authorized to
execute all necessary documents in connection with our investment in
Excelsior Venture Partners III, LLC.
IN WITNESS WHEREOF, we have executed this certificate as the
partners of the Partnership this _______ day of ___________, ____, and
declare that it is truthful and correct.
(Name of Partnership)
By: _______________________________________
Partner
By: _______________________________________
Partner
By: _______________________________________
Partner
(Attach extra signature pages if necessary)
EXHIBIT B
CERTIFICATE OF TRUST INVESTOR
TO BE COMPLETED BY INVESTORS WHO ARE TRUSTS.
CERTIFICATE OF __________________________________________________ (the "Trust")
(Name of Trust)
The undersigned, constituting all of the Trustees of the Trust. hereby
certify as follows:
1. That the Trust was established pursuant to a Trust Agreement dated
_______________________________________________ (the "Agreement").
2. That a true and correct copy of the Agreement is attached hereto and
that as of the date hereof, the Agreement has not been amended (except as
to any attached amendments) or revoked and is still in full force and
effect.
3. That, as the Trustee(s) of the Trust, we have determined that the
investment in, and the purchase of, an interest in Excelsior Venture
Partners III, LLC is of benefit to the Trust and have determined to make
such investment on behalf of the Trust.
4. That ____________________________________ is authorized to execute, on
behalf of the Trust, any and all documents in connection with the Trust's
investment in Excelsior Venture Partners III, LLC.
IN WITNESS WHEREOF, we have executed this certificate as the
Trustee(s) of the Trust this _______ day of __________, ____, and declare
that it is truthful and correct.
(Name of Trust)
By: _______________________________________
Trustee
By: _______________________________________
Trustee
By: _______________________________________
Trustee
(Attach extra signature pages if necessary)
EXHIBIT C
CERTIFICATE OF CORPORATE INVESTOR
TO BE COMPLETED BY INVESTORS WHO ARE CORPORATIONS.
CERTIFICATE OF ___________________________________________ (the "Corporation")
(Name of Corporation)
The undersigned. being the duly elected and acting Secretary or Assistant
Secretary of the Corporation. hereby certifies as follows:
1. That the Corporation commenced business on ____________________________
and was incorporated under the laws of the State of ___________________ on
___________________.
2. That a true and correct copy of the Articles of Incorporation and By
Laws of the Corporation is attached hereto and that, as of the date hereof,
the Articles of Incorporation and By Laws have not been amended (except as
to any attached amendments) or revoked and are still in full force and
effect.
3. That the Board of Directors of the Corporation has determined, or
appropriate officers under authority of the Board of Directors have
determined, that the investment in, and purchase of, Units in Excelsior
Venture Partners III, LLC is of benefit to the Corporation and has
determined to make such investment on behalf of the Corporation. Attached
hereto is a true, correct and complete copy of resolutions of the Board of
Directors (or an appropriate committee thereof) of the Corporation duly
authorizing this investment, and said resolutions have not been revoked,
rescinded or modified and remain in full force and effect.
4. That the following named individuals are duly elected officers of the
Corporation, who hold the offices set opposite their respective names and
who are duly authorized to execute any and all documents in connection with
the Corporation's investment in Excelsior Venture Partners III, LLC, and
that the signatures written opposite their names and titles are their
correct and genuine signatures.
Name Title Signature
____________________ ____________________ ____________________
____________________ ____________________ ____________________
(Attach extra pages if necessary)
IN WITNESS WHEREOF, I have executed this certificate and
affixed the seal of this Corporation this day of , , and declare that it is
truthful and correct.
(Name of Corporation)
By: _____________________________________
Name:
Title:
EXHIBIT D
CERTIFICATE OF LIMITED LIABILITY COMPANY INVESTOR
TO BE COMPLETED BY INVESTORS WHO ARE LIMITED LIABILITY COMPANIES.
CERTIFICATE OF _____________________________ (the "Limited Liability Company")
(Name of Limited Liability Company)
The undersigned, being a duly elected and acting Manager of the Limited
Liability Company, hereby certifies as follows:
1. That the Limited Liability Company commenced business on
________________________ and was organized under the laws of the State of
________________________ on ________________________.
2. That a true and correct copy of the Limited Liability Company Agreement
is attached hereto and that, as of the date hereof, the Limited Liability
Company Agreement has not been amended (except as to any attached
amendments) or revoked and is still in full force and effect.
3. That the Managers of the Limited Liability Company have determined that
the investment in, and purchase of, Units in Excelsior Venture Partners
III, LLC is of benefit to the Limited Liability Company and has determined
to make such investment on behalf of the Limited Liability Company.
Attached hereto is a true, correct and complete copy of resolutions of the
Managers (or an appropriate committee thereof) of the Limited Liability
Company duly authorizing this investment, and said resolutions have not
been revoked, rescinded or modified and remain in full force and effect.
4. That the following named individuals are duly elected managers of the
Limited Liability Company, who hold the offices set opposite their
respective names and who are duly authorized to execute any and all
documents in connection with the Limited Liability Company's investment in
Excelsior Venture Partners III, LLC, and that the signatures written
opposite their names and titles are their correct and genuine signatures.
Name Title Signature
____________________ ____________________ ____________________
____________________ ____________________ ____________________
(Attach extra pages if necessary)
IN WITNESS WHEREOF, I have executed this certificate and
affixed the seal of this Limited Liability Company this day of , , and
declare that it is truthful and correct.
(Name of Limited Liability Company)
By: ________________________________
Name:
Title:
