This Addendum supplements the subscription application (the "Application"; together with this Addendum, the "Agreement") between HedgeFund Intelligence Ltd. ("HFI") and the party named below (hereafter, the "Subscriber") for the newsletter or magazine published by HFI (hereafter, the "Publication").
To be eligible for receipt of the Publication, the Subscriber must pay HFI in accordance with the provisions of the Application, and must meet and provide a certification of its applicable qualification, as provided below. In addition, the Subscriber must abide by the use restrictions provided herein.
The Subscriber hereby certifies that it is one of the following:
- The Subscriber is not resident in the United States of America.
- The Subscriber is a natural person whose individual net worth, or joint net worth with his or her spouse, exceeds $1,000,000.
- The Subscriber is a natural person who had an individual income in excess of $200,000 in each of the last two calendar years, or joint income with his or her spouse in excess of $300,000 in each of such years, and reasonably expects to reach the same income level in this calendar year.
- The Subscriber is an entity with total assets in excess of $5,000,000, the Subscriber was not formed for the purpose of investing in any of the funds listed in U.S. Hedge (each, a "Fund"; collectively, the "Funds"), and the Subscriber is one of the following entities:
- a corporation; or
- a partnership; or
- a limited liability company; or
- a business trust; or
- a tax-exempt organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, amended.
- The Subscriber is a personal (non-business) trust with total assets in excess of $5,000,000, and the Subscriber was not formed for the purpose of investing in any of the Funds. Any decision by the Subscriber to invest in the Funds, if any, will be directed by a person who has such knowledge and experience in financial and business matters so as to be capable of evaluating the risks of an investment in a Fund.
- The Subscriber is an employee benefit plan within the meaning of Title 1 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and the Subscriber satisfies at least one of the following conditions:
- it has total assets in excess of $5,000,000; or
- investment decisions are made by a plan fiduciary, as such term is defined in Section 3(21) of ERISA, and such fiduciary is a bank, savings and loan association, insurance company or registered investment adviser; or
- it is self-directed plan (i.e., a tax-qualified defined contribution plan in which a participant may exercise control over the investment of assets credited to his or her account) and the decision to invest is made solely by the participants investing, and each such participant is an accredited investor.
- The Subscriber is an Individual Retirement Account in which all of the participant(s) are accredited investors because each participant has a net worth in excess of $1,000,000 or has had an individual income of in excess of $200,000 (or a joint income with spouse in excess of $300,000) in each of the last two calendar years and reasonably expects to reach the same income level in the current year.
- The Subscriber is an employee benefit plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, and the Subscriber has total assets in excess of $5,000,000.
- The Subscriber is licensed, or subject to supervision, by U.S. Federal or state examining authorities as a "savings and loan association", "insurance company" or "small business investment company" (as such terms are used and defined in 17 CFR §230.501 (a)) or is an account for which a bank or savings and loan association is subscribing in a fiduciary capacity and over which such fiduciary exercises investment discretion.
- The Subscriber is registered with the U.S. Securities and Exchange Commission as a broker or an investment company; or has elected to be treated or qualifies as a "business development company" (within meaning of Section 2(a)(48) of the Investment Company Act of 1940, as amended (the "Company Act")).
- The Subscriber is an entity in which all of the equity owners are qualified under one or more of the foregoing.
II. Restrictions on Investment Activity
The Subscriber agrees not to invest in any Fund whose performance is published in the Publication for at least 30 days after receipt of such publication, unless the Subscriber or its affiliates already invest in, have already been solicited for, or are already actively considering an investment in such Fund.
III. Permissible Use
(a) Reliance on Information.
The representations, warranties, agreements, undertakings and acknowledgments made in this Agreement by the Subscriber, including those made above in Section I, will be relied upon by HFI in determining the Subscriber's suitability with respect to its receipt of the U.S. Hedge Fund and by the Funds in relation to their compliance with U.S. federal and state securities laws, and shall survive termination or expiration of this Agreement.
(b) No Redistribution of Data.
The Subscriber agrees not to deliver or otherwise redistribute any U.S. Hedge Fund to anyone other than Representatives (as defined below) of the Subscriber. The Subscriber agrees and acknowledges that any other redistribution of such information could constitute or result in any of the following with respect to one or more of the Funds: (i) making a public offering of securities that would be required to be registered under Section 5 of the Securities Act of 1933, as amended; (ii) making a public offering of securities within the meaning of Sections 3(c)(1) or 3(c)(7) of the Company Act, that would render unavailable to a Fund the exclusion from the definition of "investment company" provided by those sections; and (iii) the investment manager of any Fund holding itself out generally to the public as an investment adviser within the meaning of Section 203(b)(3) of the Investment Advisers Act of 1940, as amended.
The Subscriber hereby agrees to indemnify, defend and hold HFI harmless from claims as described therein, and the Subscriber further acknowledges and agrees that it shall be obligated to indemnify, defend and hold HFI harmless from any claims arising from this Agreement or from the Subscriber's use of U.S. Hedge Fund.
"Confidential Material" shall mean any information disclosed to the Subscriber in connection with this Agreement, including, without limitation, and any information that relates to or involves any of the Funds, including information relating to the Funds' performance. The Subscriber acknowledges that the Confidential Material is of a proprietary and confidential nature and that damage to HFI and/or the Funds and/or the investment managers of the Funds and that irreparable harm could result if such Confidential Material is disclosed to any third party. The Subscriber agrees that, except as required by law, the Confidential Material will be kept confidential by the Subscriber and will not be disclosed in any manner whatsoever, except that the Subscriber may disclose all or portions of the Confidential Material to its authorized personnel or professional advisors (collectively the "Representatives") who need to know such information.
The Subscriber shall inform its Representatives of the confidential nature of the Confidential Material and shall direct its Representatives to treat such information confidentially and otherwise to comply with the terms of this Agreement. The Subscriber agrees that it will maintain a complete and accurate record of all persons to whom the Confidential Material is given. The Subscriber shall be responsible for any breach of this Agreement by any of its Representatives and the Subscriber shall, at its sole expense, use its best efforts (including, but not limited to, court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Confidential Material.
The Subscriber understands and agrees that money damages would not be an adequate remedy for any breach of this Agreement and that HFI shall be entitled to equitable relief, including injunctions and specific performance, if the Subscriber or its Representatives breach or threaten to breach any provision of this Agreement. Such remedies shall not be deemed to be the exclusive remedies for a breach or threatened breach by the Subscriber or its Representatives of this Agreement but shall be in addition to all other remedies available at law or equity to HFI. The Subscriber further agrees to waive any requirement for the posting of a bond in connection with any such equitable relief. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that the Subscriber has breached this Agreement, then the Subscriber shall be liable and pay to HFI the reasonable legal fees HFI has incurred in connection with such litigation, including any appeal therefrom.
(f) Third Party Beneficiaries.
This Agreement is not intended, and shall not be deemed, to confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns or to otherwise create any third-party beneficiary hereto, provided, that as against the Subscriber, each Fund is intended and shall be deemed to be a third-party beneficiary with respect to the indemnity and disclaimer of warranty provisions hereof.
Notwithstanding anything to the contrary contained in the Agreement, the Subscriber shall be required to certify its compliance with the provisions relating to its U.S. of US Hedge contained in this Agreement upon request from HFI.
The Subscriber agrees to promptly notify HFI if there is any change with respect to any of the information or representations made herein and to provide HFI with such further information as HFI may reasonably require.
Sections III and IV of this Addendum shall survive termination of this Agreement.