EFTA00314773.pdf

SUBSCRIPTION BOOKLET ADW CAPITAL PARTNERS, L.P. Limited Partnership Interests November 2015 CONFIDENTIAL EFTA00314773  ADW CAPITAL PARTNERS, L.P. SUBSCRIPTION PROCEDURES This Subscription Booklet (this "Booklet") is being provided to prospective investors in connection with an offering (the "Offering") of limited partnership interests ("Interests") by ADW Capital Partners, L.P., a Delaware limited partnership (the "Fund"). Prior to subscribing for Interests in the Fund, prospective investors should read the Confidential Memorandum of the Fund (the "Memorandum"), the Amended and Restated Agreement of Limited Partnership of the Fund, as the same may be amended from time to time (the "Partnership Agreement- ), and this Booklet in their entirety. In order to invest in the Fund, please follow the subscription procedures outlined below. 1. Please complete, execute and date the signature page to the Subscription Agreement and complete and notarize the Notarization Acknowledgment attached thereto. 2. Please complete the Investor Profile (attached as Exhibit 1). 3. Please review and complete the applicable form(s) of Confidential Investor Questionnaire ("Questionnaire") (attached as Exhibit B). The following three forms of Questionnaire are included in this Booklet: (i) Questionnaire for Individuals (attached as Exhibit B-1). The Questionnaire for Individuals must be completed by any subscriber that is a natural person (Le., an individual). In the event that the subscriber consists of more than one natural person subscribing as joint tenants or tenants in common (other than as husband and wife subscribing as joint tenants), each such person should complete a separate Questionnaire for Individuals. If the subscriber is a husband and wife subscribing as joint tenants, only one Questionnaire is required. (ii) Questionnaire for Trusts (attached as Exhibit B-2). The Questionnaire for Trusts must be completed by any subscriber that is a trust (whether revocable, irrevocable or otherwise) (other than an employee benefit plan, individual retirement account, self-directed employee retirement plan or other Benefit Plan Investor). Each such subscriber must also comply with the additional requirements set forth in the footnotes and instructions to the Questionnaire, which may require that a Questionnaire also be prepared for one or more additional persons or entities. (iii) Questionnaire for Entities (attached as Exhibit B-3). The Questionnaire for Entities must be completed by any subscriber that is a corporation, partnership, limited liability company, retirement system, employee benefit plan or other Benefit Plan Investor (including an individual retirement account of a natural person or self-directed employee benefit plan of a natural person) or similar entity, and, as applicable, such subscriber should comply with the additional requirements set forth in the footnotes and instructions to the Questionnaire, which may require that a Questionnaire also be prepared for one or more additional persons or entities. 4. Please complete the U.S. IRS Form W-9 (attached as Exhibit C). Subscribers that are not "United States persons" are required to provide information about their status for withholding tax purposes on IRS Fonn W-BEN, IRS Form W-8IMY, IRS Fonn W-8EXP, or IRS Form W-8ECI, as applicable. Copies of such tax forms are available via the U.S. Internal Revenue Service's website at www.irs.gov. ADW CAPITAL PARTNERS. L.P. t CONFIDENTIAL EFTA00314774 5. Please complete the Anti-Money Laundering Compliance Supplement and provide the documents and information required therein (attached as Exhibit D). 6. Please carefully review the Privacy Notice of ADW Capital Management, LLC (attached as Exhibit E). 7. Return completed and executed documents. Please return copies of the completed and executed subscription documents to the Fund and the Fund's administrator, SS&C Technologies, Inc. (the "Administrator") via e-mail at [email protected] and [email protected], respectively. Promptly thereafter, please return an original of the completed and executed subscription documents (including two original copies of the signature page to the Subscription Agreement and the Notarization Acknowledgement) to the Fund via courier to the address set forth below: ADW Capital Partners, L.P. c/o ADW Capital Management, LLC 1133 Broadway Suite 719 New York, NY 10010 ATTN: Adam D. Wyden Telephone: Facsimile• 8. Payment of Capital Contributions. Please deliver payment in the full amount of the Capital Contribution (as defined herein) in U.S. dollars by fed wire transfer of immediately available funds to the account of the Fund in accordance with wire instructions set forth below no later than one (1) business day prior to the requested Closing Date (as defined herein). JP MORGAN CHASE Chase Manhattan Bank - 1 Chase Manhattan Plaza New York, NY ABA # Account Name: Goldman Sachs Execution & Clearing, L.P. (GSEC) Account Number: For Further Credit to: ADW Capital Partners, L.P. Account Number: By the order of: [Subscriber Name] IMPORTANT: I. Please have your financial institution identify your name on the wire transfer. 2. We recommend that your financial institution charge its wiring fees separately so that the amount you have elected to invest may be invested. 3. Please call Adam D. Wyden at to confirm the date and the amount of the wire. ADW CAPITAL PARTNERS. L.P. ii CONFIDENTIAL EFTA00314775  You must wire the payment from an account in your name. If you are not wiring your payment from a financial institution located in an Approved Country,' you must contact the Fund for further instructions prior to wiring your payment which may result in a delay in your subscription. 9. Questions. uestions concerning the subscription documents should be directed to Adam D. Wyden, at 10. Additional Capital Contributions. Investors wishing to make an additional Capital Contribution to the Fund should do so by completing and executing the Additional Subscription Form attached to this Booklet as Exhibit F. A copy of a completed and executed Additional Subscription Form should be faxed to the Fund at the facsimile number provided above and the original mailed to the Fund at the address set forth above. I I. Requests for Withdrawals. An investor desiring to request a withdrawal of all or a portion of their capital account should do so by completing and executing the Request for Withdrawal Form attached to this Booklet as Exhibit G. A copy of the completed and executed Request for Withdrawal Form should be faxed to the Fund at the facsimile number provided above and the original mailed to the Fund at the address set forth above. Please note that withdrawals are subject to a number of significant restrictions and limitations. For more information, please see the Memorandum and the Partnership Agreement. ■* * * Do not alter the Subscription Agreement. Any alteration to the form of the Subscription Agreement by you will be void and will not form a part of the Subscription Agreement. Your execution of the signature page to the Subscription Agreement will constitute your acceptance of and agreement to all terms and conditions set forth in the Subscription Agreement in the form presented to you, unless otherwise agreed to in writing by the General Partner. Please review any information provided in these documents on your behalf and correct any inaccuracies or mistakes. The General Partner reserves the right at any time to accept or reject all or any portion of any subscription in its sole discretion. As of the date hereof, the following countries are members of the Financial Action Task Force on Anti-Money Laundering (each, an "Approved Country"): Argentina. Australia. Austria. Belgium. Brazil. Canada. China. Denmark. Finland. France. Germany. Greece. Hong Kong. Iceland. India. Ireland. Italy. Japan. Luxembourg. Mexico. Kingdom of the Netherlands. New Zealand. Norway. Portugal. Republic of Korea. Russian Federation. Singapore. South Africa. Spain. Sweden. Switzerland. Turkey. United Kingdom. and the United States. For a current list of Approved Countries, please sec *v. w.fatf-ealiore. ADW CAPITAL PARTNERS. L.P. iii CONFIDENTIAL EFTA00314776  ADW CAPITAL PARTNERS, L.P. IMPORTANT NOTICES THE OFFERING OF INTERESTS CONTEMPLATED HEREIN HAS NOT BFFN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY OTHER JURISDICTIONS, PURSUANT TO ONE OR MORE EXEMPTIONS FROM REGISTRATION FOR TRANSACTIONS NOT INVOLVING A PUBLIC OFFERING. THE FUND ALSO WILL NOT BE REGISTERED AS AN INVESTMENT COMPANY UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS AMENDED, PURSUANT TO AN EXCLUSION PROVIDED FROM THAT DEFINITION THEREUNDER. CONSEQUENTLY, INTERESTS WILL BE SOLD ONLY TO INVESTORS THAT MEET CERTAIN MINIMUM ELIGIBILITY QUALIFICATIONS, AS DESCRIBED HEREIN. THE INTERESTS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES AUTHORITY OR ANY OTHER REGULATORY AUTHORITY, NOR HAS ANY OF THE FOREGOING PASSED UPON OR ENDORSED THE MERITS OF THE FUND DOCUMENTS OR THE OFFERING. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE GENERAL PARTNER IS SOLELY RESPONSIBLE FOR THE STATEMENTS AND DISCLOSURES SET FORTH IN THE FUND DOCUMENTS. THE PURCHASE OF AN INTEREST INVOLVES A SIGNFICANT DEGREE OF RISK AND IS AN APPROPRIATE INVESTMENT ONLY FOR PERSONS OF ADEQUATE MEANS THAT HAVE NO NEED FOR IMMEDIATE LIQUIDITY WITH RESPECT TO THEIR INVESTMENT IN THE FUND. A PROSPECTIVE INVESTOR SHOULD BE PREPARED TO BEAR THE ECONOMIC RISK OF AN INVESTMENT IN THE FUND FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE INTERESTS HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE LAWS OF ANY OTHER APPLICABLE JURISDICTION, AND, THEREFORE, CANNOT BE SOLD OR TRANSFERRED UNLESS THEY ARE SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THE FUND IS UNDER NO OBLIGATION TO REGISTER THE INTERESTS UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE LAWS OF ANY OTHER JURISDICTION. TRANSFER OF THE INTERESTS IS RESTRICTED BY THE TERMS OF THE PARTNERSHIP AGREEMENT AND APPLICABLE SECURITIES LAWS. ADW CAPITAL PARTNERS. L.P. iv CONFIDENTIAL EFTA00314777  ADW CAPITAL PARTNERS, L.P. SUBSCRIPTION AGREEMENT ADW Capital Partners, L.P. do ADW Capital Management, LLC 1133 Broadway Suite 719 New York, NY 10010 ATTN: Adam D. Wyden Telephone: Facsimile: Ladies and Gentlemen: The undersigned prospective investor (the "Investor") wishes to become a limited partner in ADW Capital Partners, L.P., a Delaware limited partnership (the "Fund"), and acquire a limited partnership interest in the Fund (an "Interest") upon the terms and subject to the conditions set forth in this Subscription Agreement (this "Agreement'), the Confidential Memorandum of the Fund, as the same may be supplemented, modified or updated from time to time (the "Memorandum"), and the Amended and Restated Agreement of Limited Partnership of the Fund, as the same may be amended and/or restated from time to time (the "Partnership Agreement" and, together with this Agreement and the Memorandum, the "Fund Documents"). The general partner and investment manager of the Fund is ADW Capital Management, LLC, a Delaware limited liability company (the "General Partner"). SS&C Technologies, Inc. serves as the Fund's administrator (the "Administrator") and provides various administrative and other services to the Fund. All references herein to "dollars" or "$" are to U.S. dollars. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Partnership Agreement. 1. Capital Contribution. (a) Subject to the terms and conditions set forth herein and in the Partnership Agreement, the Investor hereby agrees to become a limited partner in the Fund (a "Limited Partner") and, in connection therewith, irrevocably subscribes for and agrees to purchase an Interest in the amount set forth on the signature page hereto, or such lesser amount as the General Partner shall choose to accept pursuant to Section 2(a' below (the "Capital Contribution"). The minimum initial Capital Contribution for a Limited Partner is $250,000; provided, however, a Capital Contribution of a lesser amount may be accepted by the General Partner in its discretion. (b) The Investor acknowledges and agrees that the execution and delivery of this Agreement by the Investor constitutes a binding and irrevocable offer to make the Capital Contribution and purchase an Interest as set forth herein and an agreement to hold such offer open until it is either accepted or rejected by the General Partner in its sole discretion. ADW CAPITAL PARTNERS. L.P. CONFIDENTIAL EFTA00314778  (c) Unless otherwise agreed in writing by the General Partner, the Investor shall be required to pay the full amount of the Capital Contribution in U.S. dollars via fed wire transfer in immediately available funds to the account of the Fund by no later than one (1) business day prior to the Closing Date (as defined below). 2. Acceptance of Agreement. It is understood and agreed that this Agreement is made pursuant to and in accordance with the following terms and conditions: (a) The General Partner, on behalf of the Fund, shall have the right to accept or reject this Agreement and shall have the right to accept or reject all or any part of the Capital Contribution in its sole discretion, and this Agreement and the Capital Contribution shall be deemed to be accepted by the General Partner and the Fund only when the General Partner has executed the acceptance page to this Agreement and the Investor has been enrolled as a Limited Partner in the books and records of the Fund. If the General Partner chooses to accept only part of the Capital Contribution, then the General Partner shall be authorized to revise the amount indicated as the Capital Contribution on the signature page to this Agreement and shall notify the Investor in writing of such revision promptly after the applicable Closing Date (the amount as so revised shall thereafter be the Investor's Capital Contribution for all purposes hereof). If the General Partner rejects the Capital Contribution, in whole or in part, the Capital Contribution, or any portion thereof, as the case may be, will be returned to the Investor without interest thereon. (b) The Investor acknowledges and agrees that if the Capital Contribution is accepted, in whole or in part, by the General Partner, (i) the Investor will, with no further action required on its part, become a Limited Partner of the Fund and (ii) the Investor will be bound by, and shall otherwise comply with, all of the provisions, terms and obligations set forth in the Partnership Agreement, as if set out in full herein. 3. Closing; Conditions to Closing. (a) Subject to the terms and conditions hereof, the closing (the "Closing") of the sale and purchase of an Interest and admission of the Investor as a Limited Partner shall take place on such dates and times selected by the General Partner in accordance with the Partnership Agreement (the "Closing Date"). (b) The Fund's and the General Partner's obligations hereunder are subject to acceptance by the General Partner of this Agreement and the Capital Contribution, and to the fulfillment of each of the following conditions: (1) The covenants, representations and warranties of, and any other information relating to or provided by, the Investor in this Agreement, the Investor Profile, a copy of which is attached hereto as Exhibit A and incorporated by reference herein (the "Investor Profile"), the applicable Confidential Investor Questionnaires, the forms of which are attached hereto as Exhibit B and incorporated by reference herein (the "Questionnaire"), and the Anti- Money Laundering Compliance Supplement, a copy of which is attached hereto as Exhibit D and incorporated by reference herein (the "AML Supplement"), shall be true, correct and complete in all respects on and as of the date set forth on the signature page to this Agreement and the respective Closing Date. Each of the tax forms that the Investor has delivered or will deliver to the Fund pursuant to the instructions set forth in "Subscription Procedures" are incorporated by reference herein (collectively, the "Tax Forms"), and the Investor represents, warrants and agrees that all of the statements, answers and information set forth in the Tax Forms are true and correct as of the date hereof. The Investor hereby agrees to notify the General Partner promptly in writing ADW CAPITAL PARTNERS. L.P. 2 CONFIDENTIAL EFTA00314779  should there be any change or inaccuracy in any representation, warranty or covenant made, or any other information provided by the Investor in, or in connection with, this Agreement, the Investor Profile, the Questionnaire, the Tax Forms or the AML Supplement. (2) All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident to such transactions shall be satisfactory in substance and form to the General Partner, and the General Partner shall have received all such counterpart originals or certified or other copies of such documents as the General Partner may request. 4. Representations, Warranties and Agreements of the Investor. The Investor hereby represents, warrants, agrees, certifies and covenants to and for the benefit of the Fund, the General Partner and each of their respective agents and affiliates (each, a "Fund Party" and collectively, the "Fund Parties"), as follows: (a) The Investor has received, carefully read and understands each of the Fund Documents. The Investor acknowledges that it has made an independent decision to subscribe for an Interest and that, in making its decision to subscribe for an Interest, the Investor has relied solely upon the Fund Documents and any independent investigations made by the Investor. The Investor has not relied on any information, representation or statement (written or oral) of the Fund Patties other than those expressly set forth in the Fund Documents and the Investor acknowledges that no Fund Party has made, or is making, a recommendation or providing investment advice to the Investor regarding an investment in the Fund. The Investor acknowledges and agrees that the General Partner does not provide any investment advisory or other similar services to, or otherwise serve as investment adviser of, the Investor. To the extent the Investor has required or desired any advice in connection with the Offering or this Agreement or any assistance in understanding or evaluating an investment in the Fund, the Investor has engaged its own financial, legal, tax, accounting and other advisors, and has not expected or received any such advice or assistance from any Fund Party. The Investor and any independent advisors engaged by such Investor have conducted their own analysis and due diligence to the full extent they have deemed such action necessary and, based upon such independent analysis and due diligence and on the Fund Documents, the Investor has made its own independent determination to subscribe for an Interest and become a Limited Partner. (b) The Investor has been provided an opportunity to obtain additional information concerning the Offering, the Fund, the Interests and/or all other information to the extent the General Partner possesses or can acquire such information without unreasonable effort or expense, and has been given the opportunity to ask questions of, and receive answers from, the General Partner concerning the terms and conditions of the Offering, the Fund, the Interests and any other matters pertaining thereto. (c) The Investor has such knowledge and experience in financial and business matters such that the Investor is capable of evaluating the merits and risks associated with an investment in the Fund and is able to bear such risks, and has obtained, in the Investor's judgment, sufficient information from the General Partner to evaluate the merits and risks of an investment in the Fund. The Investor has evaluated the risks of an investment in the Fund, understands there are significant risks of loss incidental to the purchase of an Interest and has determined that an Interest is a suitable and appropriate investment for the Investor. (d) The Investor is aware of the limited provisions for transferability and withdrawal from the Fund. The Investor has carefully reviewed and considered and understands the provisions relating to transfers and withdrawals from the Fund as described in the Fund Documents. The ADW CAPITAL PARTNERS. L.P. 3 CONFIDENTIAL EFTA00314780 Investor has no need of liquidity with respect to its investment in the Fund, can afford a complete loss of its investment in the Fund and can afford to hold the investment for an indefinite period of time. (e) The Investor is subscribing for an Interest for its own account, for investment purposes only and not with a view toward distributing or reselling its Interest, whether in whole or in part. (f) The Investor acknowledges and agrees that it will be subject to the Management Fee, as such term is described in the Fund Documents. In addition, the Investor understands that an affiliate of the General Partner will be entitled to receive a Performance Allocation with respect to the Investor in accordance with the terms set forth in the Partnership Agreement and the Memorandum. The Investor represents and warrants to the Fund Parties that: (i) the Partnership Agreement constitutes an arm's-length contract between the Investor, the other Limited Partners and the General Partner; and (ii) the Investor fully understands the Performance Allocation and its risks, including the fact that the Performance Allocation may create an incentive for the General Partner, due to its relationship with its affiliate, to engage in more speculative investment activities than might be the case if only a Management Fee was charged. (g) The Investor understands that (i) past performance of the Fund, the General Partner or any of the principals is not necessarily indicative of the future performance or profitability of the Fund; (ii) no U.S. federal or state agency or authority has passed upon the Fund or the Interests or made any findings or determination as to the merits or fairness of an investment in the Fund; and (iii) the representations, warranties, covenants, undertakings and acknowledgements made by the Investor in, or in connection with, this Agreement, the Investor Profile, the Questionnaire, the AML Supplement and the Tax Forms will be relied upon by the Fund Parties and the Administrator in determining the Investor's eligibility as a purchaser of an Interest and the Fund Parties' compliance with applicable laws, and, if applicable, shall survive the Investor's admission as a Limited Partner. The representations, warranties and agreements made by the Investor in this Agreement, the Investor Profile, the Questionnaire, the AML Supplement and the Tax Forms are true, correct and complete in all respects as of the date set forth on the signature page to this Agreement and will continue to be true, correct and complete in all respects for as long as the Investor remains a Limited Partner. (h) The Investor has all requisite power, authority and capacity to acquire and hold an Interest, and to execute, deliver and comply with the terms and provisions of each of the documents and instruments required to be executed and delivered by the Investor in connection with the Investor's subscription for an Interest, including this Agreement, and such execution, delivery and compliance does not conflict with, or constitute a default under, any instruments governing the Investor, or violate any applicable law, regulation or order, or any agreement to which the Investor is a patty or by which the Investor is or may be bound. If the Investor is an entity or trust, the person executing and delivering this Agreement and any other documents or instruments on behalf of the Investor has all requisite power, authority and capacity to execute and deliver such documents and instruments, and, upon the General Partner's or the Administrator's request, will furnish to the General Partner or the Administrator true and correct copies of Investor's current governing documents or any other documents reasonably requested by the General Partner to establish such requisite power, authority and capacity. This Agreement constitutes and will constitute a legal, valid and binding obligation of the Investor, enforceable in accordance with its terms. If the Investor lives in a community property state in the United States, either (i) the source of the Investor's Capital Contribution will be the Investor's separate property and the Investor will hold the Interest as its separate property, or (ii) the Investor has the authority alone to bind the community property with respect to this Agreement, the Partnership Agreement and all agreements contemplated hereby and thereby. ADW CAPITAL PARTNERS. L.P. 4 CONFIDENTIAL EFTA00314781  All information that the Investor has provided to the Fund Parties and the Administrator concerning or relating to the Investor, the Investor's status, financial position and knowledge and experience in financial, tax and business matters, or, in the case of an Investor that is an entity, the knowledge and experience in financial, tax and business matters of the person making the investment decision on behalf of such entity, including, without limitation, the information provided by the Investor in the Investor Profile, is true, correct and complete in all respects on and as of the date set forth on the signature page to this Agreement and shall remain true, correct and complete during the term of the Investor's investment in the Fund. (j) The Investor understands that the value of a Limited Partner's Capital Account and distributions therefrom under the Partnership Agreement, and the performance of the Fund, may be based on unaudited and in some cases, estimated, valuations of the Fund's investments and that valuations provided in an Investor's Capital Account statement may be unaudited, estimated values. (k) The Investor understands that the Interests and their offer, sale and distribution have not been, and are not expected to be, registered or qualified under the U.S. Securities Act of 1933, as amended (the "Securities Act"), or the laws of any other applicable jurisdiction. The Investor is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act. The Investor has not been organized or reorganized for the specific purpose of acquiring an Interest or for otherwise investing in the Fund. The Investor recognizes that there is no established trading market for the Interests and it is extremely unlikely that any public market for the Interests will develop. The Investor understands and agrees that the Interests must be held indefinitely unless they are subsequently registered under the Securities Act and, where required, under the laws of other jurisdictions, or unless an exemption from registration is otherwise available. Even if such an exemption is available, the Investor understands and agrees that its Interest may not be offered, sold, pledged or otherwise transferred, encumbered or disposed of (collectively, a "Transfer"), without, among other things, the prior written consent of the General Partner, which may be given or withheld in its sole discretion. A transferee of Interests may be admitted to the Fund as a substitute Limited Partner only with the consent of the General Partner, which may be given or withheld in its sole discretion. The Investor shall not Transfer its Interest (in whole or in part) or any interest therein in contravention of the Partnership Agreement or applicable state, federal and/or foreign laws. (I) The Investor understands that the Fund is not and will not be registered as an "investment company" under the U.S. Investment Company Act of 1940, as amended (the "Company Act"), pursuant to an exclusion provided from such definition by Section 3(c)(1) thereunder, nor will the Fund make any public offering of the Interests within or outside the United States. If the Investor is a participant-directed defined contribution plan (such as a 401(k) plan), partnership or other pooled investment vehicle, then, unless otherwise indicated in the Questionnaire, the Investor hereby represents that: (A) it has not been organized or reorganized (as such terms are interpreted under the Company Act) for the purpose of acquiring an Interest or for otherwise investing in the Fund; (B) its total investment in the Fund does not and will not constitute forty percent (40%) or more of the Investor's total assets (including committed capital); (C) each of its equity owners or participants participates in investments made by the Investor pro raw in accordance with its interest in the Investor and, accordingly, its beneficial owners or participants cannot opt-in or opt-out of investments made by the Investor; and (D) its beneficial or equity owners or participants did not and will not contribute additional capital (other than previously committed capital) for the purpose of purchasing an Interest. (m) If the Investor is (i) an "investment company" (as such term is defined in the Company Act) or (ii) would be an "investment company" but for the exclusions provided from such definition under Section 3(c)(I) or Section 3(c)(7) of the Company Act, then, except as otherwise ADW CAPITAL PARTNERS. L.P. 5 CONFIDENTIAL EFTA00314782 indicated in the Questionnaire, the Investor does not and will not own more than ten percent (10%) of the outstanding Interests. (n) The Investor is a "qualified client," as such term is defined in Rule 205-3 under the U.S. Investment Advisers Act of 1940, as amended (the "Advisers Act"'). If the Investor is a 2 company that would be defined as an "investment company" under Section 3(a) of the Company Act but for the exclusion provided from that definition by Section 3(c)(1) of the Company Act, each equity owner of the Investor is also a qualified client. (o) The Investor acknowledges that the Fund may from time to time invest in "new issues," as such term is defined under the rules of the Financial Industry Regulatory Authority ("FINRA Rules"). In order for the General Partner to determine the extent to which the Investor is eligible to participate in profits and losses from such "new issues," the Investor must make certain representations and certifications to the Fund, as set forth in the Questionnaire. (p) The Investor acknowledges that it is not subscribing for an Interest as a result of or pursuant to: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media outlet (including any Internet site containing information about the Fund which is not password protected) or broadcast over television or radio, or (ii) any seminar or meeting whose attendees, including the Investor, had been invited as a result of, or pursuant to, any of the foregoing. (q) Except as expressly indicated on the Questionnaire, the Investor is a "U.S. Person," as such term is defined in (i) Rule 902(k) of Regulation S promulgated under the Securities Act, and (ii) Section 7701(a)(30) of the U.S. Internal Revenue Code of 1986, as amended (the "Code"). (r) The purchase of an Interest and, if applicable, any future Transfer of an Interest, shall not be effected on or through (i) a United States national, regional or local securities exchange, (ii) a foreign securities exchange, or (iii) an interdealer quotation system that regularly disseminates firm buy or sell quotations by identified brokers or dealers. The Investor further represents that any acquisition, Transfer or other disposition of an Interest, as applicable, will not be made by, through or on behalf of (i) a person such as a broker or dealer, making a market in Interests, or (ii) a person who makes available to the public bid or offer quotes with respect to the Interests. (s) The Investor understands that (i) the General Partner is not currently registered as an investment adviser with either the Securities and Exchange Commission or any other state regulatory authority, (ii) the General Partner and its affiliates may in the future manage investments for clients other than the Fund (including other private investment funds purchasing the same or similar financial instruments or employing the same or similar investment strategies) and that the General Partner and its affiliates engage in other activities in addition to those on behalf of the Fund, (iii) the General Partner may effect transactions between clients, in accordance with the policies and procedures set forth in the Fund Documents, and (iv) the General Partner provides investment advice to the Fund and not to individual Limited Partners or prospective investors or the Investor, and no investment advisory or contractual or fiduciary or special relationship exists or will exist between the Investor and the General Partner. 2 As used herein. the term - company- means a corporation, a partnership, a limited liability company, limited partnership. an association, a joint-stock company. a mist, a fund, or any organized group of persons whether incorporated or not: or any receiver, trustee in a case under title I I of the United States Code or similar official or any liquidating agent for any of the foregoing, in his capacity as such. ADW CAPITAL PARTNERS. L.P. 6 CONFIDENTIAL EFTA00314783  (t) If the Investor is acting as agent, trustee, nominee, custodian, investment manager, administrator or otherwise (for such purpose, each an "Investor Representative") for a person (such person, the "Beneficial Holder"), the Investor Representative understands, acknowledges and agrees that the representations, warranties and covenants made herein are made by the Investor Representative (i) with respect to the Beneficial Holder, and (ii) except as the context otherwise requires, with respect to the Investor Representative. The Investor Representative represents and warrants that it has all requisite power and authority from the Beneficial Holder to execute and perform its obligations under the Fund Documents. The Investor Representative also agrees to indemnify the Fund Parties and the Administrator from and against any and all costs, fees, expenses and losses (including legal fees and disbursements) incurred by any such Fund Parties and/or the Administrator and resulting directly or indirectly from the Investor Representative's misrepresentation, misstatement or omission contained herein, or the assertion of the Investor Representative's lack of proper authorization from the Beneficial Holder to enter into this Agreement or perform the obligations hereof or related hereto. If the Investor is acting as Investor Representative for a Beneficial Holder, the Investor acknowledges that any reference to "Investor" herein shall be deemed, where applicable, to refer to both the Investor and the Beneficial Holder. (u) Except as otherwise disclosed to the Fund Parties in the Questionnaire, the Investor is not (i) an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is subject to the provisions of Title I of ERISA, (ii) an individual retirement account or annuity or other "plan" that is subject to the prohibited transaction provisions of Section 4975 of the Code or (iii) a fund of funds, an insurance company separate account or an insurance company general account or another entity or account (such as a group trust), in each case whose underlying assets are deemed under the Department of Labor's regulations promulgated under ERISA at 29 C.F.R. Section 2510.3-101, et seq., as modified by Section 3(42) of ERISA (the "Plan Assets Regulation"), to include "plan assets" of any "employee benefit plan" subject to ERISA or a "plan" subject to Section 4975 of the Code (each referred to as a "Benefit Plan Investor"). If the Investor indicates in the Questionnaire that it is not a Benefit Plan Investor, it represents, warrants and covenants that it shall not become a Benefit Plan Investor for so long as it holds an Interest. If the Investor is not currently a Benefit Plan Investor, but later becomes a Benefit Plan Investor while it is a Limited Partner, the Investor agrees to immediately notify the General Partner of such change in writing and include in the notification the maximum percentage of the Investor's equity interests that are held, or will be held, by Benefit Plan Investors. The Investor agrees to notify the General Partner promptly in writing if there is any change in the percentage of the Investor's assets that are treated as "plan assets" for purposes of the Plan Assets Regulation. (v) Except as otherwise disclosed to the Fund Parties in the Questionnaire, the Investor is not a "governmental plan" within the meaning of Section 3(32) of ERISA or Section 414(d) of the Code (a "Governmental Plan Investor"). If the Investor is a Governmental Plan Investor, it acknowledges that federal, state or local laws or regulations governing the investment and management of the assets of such governmental plan may contain fiduciary and/or prohibited transaction requirements similar to those under ERISA and the Code and may include other limitations on permissible investments. (w) If the Investor is (i) a Benefit Plan Investor, (ii) a Governmental Plan Investor, or (iii) other retirement plan or arrangement (collectively, "Plans" or "Plan"), the Investor hereby makes the following representations, warranties and covenants: (1) The Plan's decision to subscribe for an Interest was made by duly authorized fiduciaries in accordance with the Plan's governing documents, which fiduciaries are independent of the Fund Parties. No advice or recommendations of the Fund Parties was relied upon by such fiduciaries in deciding to subscribe for an Interest. Such fiduciaries of the ADW CAPITAL PARTNERS. L.P. 7 CONFIDENTIAL EFTA00314784  Plan have considered any fiduciary duties or other obligations arising under ERISA, Section 4975 of the Code and any other non-U.S., federal, state or local law substantially similar to ERISA or Section 4975 of the Code ("Similar Law"), including any regulations, rules and procedures issued thereunder and related judicial interpretations, in determining to subscribe for an Interest, and such fiduciaries have determined that an investment in the Fund is consistent with such fiduciary duties and other obligations. (2) No discretionary authority or control was exercised by the Fund Patties in connection with the subscription for an Interest by the Plan. No individualized investment advice was provided to the Plan by the Fund Parties based upon the Plan's investment policies or strategies, overall portfolio composition or diversification with respect to its subscription for an Interest. (3) None of the Fund Parties or any of their Affiliates shall act as a fiduciary to the Plan under ERISA, the Code or any Similar Law with respect to the Investor's subscription for an Interest or the management or operation of the Fund. (4) Assuming that the assets of the Fund are not "plan assets" within the meaning of Section 3(42) of ERISA, the acquisition and holding of an Interest by the Investor and the activities of the Fund Patties will not cause any non-exempt "prohibited transactions" within the meaning of Section 406 of ERISA or Section 4975 of the Code or result in a violation of any Similar Law. (x) If the Investor is a Benefit Plan Investor or a Plan, it acknowledges that no purchase of an Interest by or proposed Transfer of an Interest to a person that has represented that it is a Benefit Plan Investor shall be permitted to the extent that such purchase or Transfer would result in Benefit Plan Investors owning twenty-five percent (25%) or more of the value of any class of Interests immediately after such purchase or proposed Transfer (excluding any Interests of the General Partner and its affiliates). In addition, the Investor acknowledges that the General Partner may require a Benefit Plan Investor to withdraw all or a portion of its Interest to the extent it deems necessary to comply with the twenty-five percent (25%) limitation. The Investor further acknowledges that, notwithstanding the reasonable efforts of the General Partner, no assurance can be made that the Fund will satisfy the twenty- five percent (25%) limitation, or any other exception such that the underlying assets of the Fund are not deemed to include "plan assets" for purposes of the Plan Assets Regulation. (y) If the Investor is an insurance company and is investing the assets of its general account (or the assets of a wholly-owned subsidiary of its general account) in the Fund, it has identified in Section I of the Questionnaire whether the assets underlying the general account constitute "plan assets" within the meaning of Section 401(c) of ERISA. The Investor agrees to promptly notify the General Partner if there is a change in the percentage of the general account's assets that constitute "plan assets" and include the new percentage in the notice. (z) If the Investor is a "charitable remainder trust" within the meaning of Section 664 of the Code, the Investor has advised the General Partner in writing of such fact and the Investor acknowledges that it understands the risks, including specifically the tax risks, if any, associated with its investment in the Fund. (aa) To the extent permitted by applicable law, the Fund Parties and the Administrator may present this Agreement, the Investor Profile, the Questionnaire, the AML Supplement, the Tax Forms and any information provided in such documents and any other information and documents provided by the Investor to such parties (e.g., affiliates, attorneys, auditors, administrators, ADW CAPITAL PARTNERS. L.P. 8 CONFIDENTIAL EFTA00314785 brokers and regulators) as they deem necessary or advisable to facilitate the acceptance of the Capital Contribution and management of the Fund, including, but not limited to, in connection with applicable anti-money laundering and similar laws, if called upon to establish the availability under applicable law of an exemption from registration of the Interests, compliance with applicable law or regulations and any relevant exemptions relied upon by the Fund Parties or their respective affiliates or any agent of such persons (including the Administrator) or if the contents of such documents are relevant to any issue in any action, suit or proceeding to which any of the Fund Parties or the Administrator are a party or by which they are bound or if the information is required to facilitate the Fund's investments. The Fund Parties and the Administrator (and any agent of such parties) may also release information about the Investor if directed to do so by the Investor, if compelled to do so by law or in connection with any government or self-regulatory organization request or investigation. The Investor acknowledges receipt of the Privacy Notice of the General Partner, a copy of which is attached to this Agreement as Exhibit E. (bb) The Investor hereby agrees to (i) provide any form, certification or other document and/or information reasonably requested by and acceptable to the General Partner that is necessary for the Fund (A) to prevent withholding or qualify for a reduced rate of withholding or backup withholding in any jurisdiction from or through which the Fund receives payments or (B) to satisfy reporting or other obligations under the Code and the United States Treasury Regulations; (ii) update or replace such form, certification or other document and/or information in accordance with its terms or subsequent amendments; and (iii) otherwise comply with any reporting obligations imposed by the United States or any other jurisdiction, including reporting obligations that may be imposed by future legislation. The Investor agrees that if, and to the extent that, the Fund is required to make any payment, withholding or deduction as a consequence of the Investor failing to comply in a timely manner with the requirement(s) set forth in t