HAWKWOOD COMMODITIES FUND LIMITED (the "Fund") APPLICATION FORM FOR USE BY NON-US PERSONS

Transcription

1 HAWKWOOD COMMODITIES FUND LIMITED (the "Fund") APPLICATION FORM FOR USE BY NON-US PERSONS To: Apex Fund Services (Dubai) Ltd Office 101 Gate Village Building 5 PO Box Dubai International Financial Centre Dubai United Arab Emirates Attention: Ms. Josephine Murphy Tel: hawkwood@apexfunddubai.ae Fax: * Delete as appropriate. A. Application 1. For applications during the Initial Offer Period only I/We hereby irrevocably apply for (number in words) Class A Sterling Shares/Class B Sterling Shares* at a price of 1,000 per Class A Sterling Share/ 1,000 per Class B Sterling Share* subject to receipt thereof for value no later than 5.00 p.m. (Dubai time) on the last day of the Initial Offer Period of..... (amount in figures) (amount in words). For all applications (including applications for additional Shares) I/We hereby irrevocably apply for such number of Class A Sterling Shares/Class B Sterling Shares* (including fractions) in the Fund as may be subscribed for with. (amount in figures).....(amount in words) subject to receipt thereof from me/us for value no later than 5.00 p.m. (Dubai time) on the Valuation Day preceding the Subscription Day on which this application is effective in accordance with the terms of the Prospectus. N.B. If you wish to subscribe for more than one class of Share, please complete a separate Application Form for each class of Share. B. General Declarations 2. I/We hereby acknowledge that I/we have received and read the current Prospectus relating to the Fund and that this application is made subject to the terms of the London/013/ /SVW/GTY gty(ldnwk12806) L_LIVE_EMEA1: v3

2 Prospectus and subject to the Memorandum and Articles of Association of the Fund. I/We acknowledge that the Fund reserves the right to reject any application in whole or in part. 3. I/We hereby certify that I/we am/are not a US Person 1 and that the Shares hereby applied for are not being acquired directly or indirectly by or on behalf of, or for the account of, a US Person and at the time a buy order for the Shares was originated, I/we was/were outside the United States. 2 I/We further confirm that I/we will notify the Administrator in the event that I/we become a US Person or hold the Shares on behalf of, or for the account or benefit of, a US Person. I/We further confirm that that if I/we am/are a commodity pool, my/our investment is directed by an entity which (i) is not required to be registered in any capacity with the United States Commodities Futures Trading Commission ("CFTC") or to be a member of the National Futures Association ( NFA ); (ii) is exempt from CFTC registration; or (iii) is duly registered with the CFTC in an appropriate capacity or capacities and is a member in good standing of the NFA. 1 The term US Person means a person other than a Non-United States Person. A Non-United States Person means (a) a natural person who is not a resident of the United States, (b) a partnership, corporation or other entity, other than an entity organised principally for passive investment, organised under the laws of a non-us jurisdiction and which has its principal place of business in a non-us jurisdiction, (c) an estate or trust, the income of which is not subject to United States income tax regardless of source, (d) an entity organised principally for passive investment such as a pool, investment company or other similar entity, provided that units of participation in the entity held by persons who do not qualify as Non-United States Persons or otherwise as qualified eligible persons represent in the aggregate less than 10 per cent of the beneficial interest in the entity and that such entity was not formed principally for the purpose of facilitating investment by persons which do not qualify as Non-United States Persons in a commodity pool with respect to which the commodity pool operator is exempt from certain requirements of Part 4 of the CFTC s regulations by virtue of its participants being Non-United States Persons, and (e) a pension plan for employees, officers or principals of an entity organised and with its principal place of business outside the United States. As used herein, the term "US" or United States" means the United States of America (including the states and District of Columbia), its territories and possessions and other areas subject to its jurisdiction. 2 Applicants who are unable to make this certification MUST contact the Administrator to obtain a copy of the US Persons Application Form. 4. I/We confirm that I/we am/are a benefit plan investor 3 and/or am/are investing on behalf of a benefit plan investor. I/We declare that not more than per cent of the entity s assets are attributable to such plans and accounts. I/We further agree to notify the Fund 30 days prior to this representation no longer being true or likely to become untrue. OR I/we confirm that I/we am/are not a benefit plan investor 3 and am/are not investing on behalf of a benefit plan investor. * Delete as appropriate 3 A benefit plan investor means any employee benefit plan which is subject to Title I of the US Employee Retirement Income Security Act of 1974, as amended ( ERISA ) or any plan, such as an individual retirement account or retirement plan exclusively for self-employed persons, subject to the prohibited transactions provisions of Section 4975 of the US Internal Revenue Code of 1986, as amended. A benefit plan investor also includes any entity 25 per cent or more of any class of whose interests are owned by such plans proportionally to the extent to which the interests in the entity are held by benefit plan investors. Entities indicating they are benefit plan investors may be asked to establish the maximum extent or amount of their assets which are attributable to benefit plan investors. 5. I/We hereby declare that I/we am/are not a member of the public of the Cayman Islands. 2 L_LIVE_EMEA1: v3

3 6. I/We hereby warrant and confirm to the Fund that I/we have the knowledge, expertise and experience in financial matters to evaluate the risks of investing in the Fund, am/are aware of the risks inherent in investing in the assets in which the Master Fund will invest and the method by which these assets will be held and/or traded, and can bear the loss of my/our entire investment in the Fund. 7. I/We hereby declare that the Shares are not being acquired and will not be held in violation of any applicable laws. 8. I/We agree not to duplicate or to furnish particulars of the Prospectus, or to divulge any of its contents, to any person other than my/our investment, legal or tax advisors (who may use the information contained in the Prospectus solely for purposes relating to my/our investment in the Fund). 9. I/We hereby confirm that I/we shall be deemed to make, on a continuing basis, each of the statements contained herein unless I/we notify you to the contrary in relation to any Shares I/we may hold or obtain at any time. 10. I/We hereby agree to indemnify and hold harmless the Fund, the Master Fund, the Directors, the Manager, the Investment Advisor, the Administrator, their respective directors, officers and employees and the Shareholders against any loss, liability, cost or expense (including without limitation legal fees, taxes and penalties) which may result directly or indirectly, from any misrepresentation or breach of any warranty, condition, covenant or agreement contained herein or in any other document delivered by the undersigned to the Fund. 11. I/We hereby confirm that the Fund, the Directors, the Manager, the Investment Advisor and the Administrator are each authorised and instructed to accept and execute any instructions in respect of the Shares to which this application relates given by me/us by facsimile. If instructions are given by me/us by facsimile, I/we undertake to confirm in writing. I/We hereby agree to indemnify the Fund, the Master Fund, the Directors, the Manager, the Investment Advisor and the Administrator, their respective directors, officers and employees and agree to keep each of them indemnified against any loss of any nature whatsoever arising to each of them as a result of any of them acting on facsimile instructions. The Fund, the Directors, the Manager, the Investment Advisor and the Administrator may rely conclusively upon and shall incur no liability in respect of any action taken upon any notice, consent, request, instructions or other instrument believed, in good faith, to be genuine or to be signed by properly authorised persons. I/we hereby consent to the Fund and its delegates and its or their duly authorised agents and any of their respective related, associated or affiliated companies obtaining, holding, using, disclosing and processing my/our data: (i) to manage and administer my/our holding of Shares and any related accounts, (ii) for any other specific purposes where I/we have given specific consent, (iii) to comply with legal or regulatory requirements applicable to the Administrator or me/us, and (iv) for disclosure or transfer whether in Dubai or outside of Dubai, including without limitation the United States of America, which may not have the same data protection laws as Dubai, to regulatory bodies, auditors, technology providers for the purposes specified above (v) or other legitimate business interests of the Fund. The Administrator and the Fund will hold any personal information provided by me/us in confidence and in accordance with the data protection laws of Dubai. I/We hereby acknowledge my/our right of access to and the right to amend and rectify my/our personal data, as provided under these laws. I/We consent to the Administrator, its delegates, authorised agents and associated or affiliated companies using, disclosing, processing and transferring outside the European Union my/our personal data which is revealed on this form or is disclosed by me/us subsequently. 3 L_LIVE_EMEA1: v3

4 12. I/We consent to the recording of telephone calls made to and received from me/us by the Administrator, its delegates, its duly appointed agents and any of their respective related, associated or affiliated companies for record keeping, security and/or training purposes. 13. I/We hereby consent to details of my/our shareholding being disclosed to the Manager, the Investment Advisor, any sales agent appointed by the Manager, the Investment Advisor or any other companies within the Manager's or Investment Advisor s group of companies. C. Additional Declarations Delete if not applicable 14. (Individuals only) I confirm that I have reached the age of majority under the laws of my country of nationality or domicile. 15. (Corporate applicants only) We hereby confirm that we have the full right and power to make this application and invest in Shares and all necessary corporate action has been taken to authorise this application and such investment. 16. (Banks and Brokers) We are a bank or broker and are making this application on behalf of clients for investment purposes. We hereby make each of the declarations in Section B above and Section D below on behalf of such clients and further covenant that we will notify the Fund if we become aware that any such client has become a US Person, that we will not at any time knowingly transfer or deliver Shares or any interest therein to a US Person and that we will not make any transfer of Shares in the United States. D. Anti-Money Laundering Declarations 17. I/We acknowledge that measures aimed at the prevention of money laundering may require verification of my/our identity and/or source of funds. I/We acknowledge that Shares will not be issued until such time as the Administrator has received and is satisfied with all the information and documentation requested to verify my/our identity, address and/or source of funds. I/We acknowledge that the Administrator shall be held harmless against any loss arising as a result of a failure to process my/our application for Shares if such information and documentation as has been requested by the Administrator has not been provided by me/us. I/We understand and agree that the Fund prohibits the investment of funds by any persons or entities that are acting, directly or indirectly, (i) in contravention of any applicable laws and regulations, including anti-money laundering regulations or conventions, (ii) on behalf of terrorists or terrorist organisations, including those persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by the US Treasury Department's Office of Foreign Assets Control ("OFAC"), as such list may be amended from time to time, (iii) for a senior foreign political figure, any member of a senior foreign political figure's immediate family or any close associate of a senior foreign political figure, unless the Fund, after being specifically notified by me/us in writing that I/we am/are such a person, conducts further due diligence, and determines that such investment shall be permitted, or (iv) for a foreign shell bank (such persons or entities in (i) - (iv) are collectively referred to as "Prohibited Persons"). I/We represent, warrant and covenant that: (i) I/we am/are not, nor is any person or entity controlling, controlled by or under common control with me/us, a Prohibited Person, and (ii) to the extent I/we have any beneficial owners, (a) I/we have carried out thorough due diligence to establish the identities of such beneficial owners, (b) based on such due 4 L_LIVE_EMEA1: v3

5 diligence, I/we reasonably believe that no such beneficial owners are Prohibited Persons, (c) I/we hold the evidence of such identities and status and will maintain all such evidence for at least five years from the date of my/our complete redemption from the Fund, and (d) I/we will make available such information and any additional information that the Fund may require upon request. If any of the foregoing representations, warranties or covenants ceases to be true or if the Fund no longer reasonably believes that it has satisfactory evidence as to their truth, notwithstanding any other agreement to the contrary, the Fund may be obligated to freeze my/our investment, either by prohibiting additional investments, declining or suspending any redemption requests and/or segregating the assets constituting the investment in accordance with applicable regulations, or my/our investment may immediately be redeemed by the Fund, and the Fund may also be required to report such action and to disclose my/our identity to OFAC or other authority. In the event that the Fund is required to take any of the foregoing actions, I/we understand and agree that I/we shall have no claim against the Fund, the Master Fund, the Manager, the Investment Advisor, the Administrator or their respective affiliates, directors, members, partners, shareholders, officers, employees and agents for any form of damages as a result of any of the aforementioned actions. I/We agree to indemnify and hold harmless the Fund, the Manager, the Investment Advisor, the Administrator, and their respective affiliates, directors, members, partners, shareholders, officers, employees and agents from and against any and all losses, liabilities, damages, penalties, costs, fees and expenses (including legal fees and disbursements) which may result, directly or indirectly, from any inaccuracy in or breach of any representation, warranty, covenant or agreement set forth in this Section. I/We represent that the subscription funds are not the direct or indirect proceeds of drug trafficking, terrorist or such other criminal activity and I/we agree to produce such documents as may be required by the Administrator to substantiate this representation. I/We declare that the source of wealth/income being invested is from Delete the following if not applicable and complete as appropriate 18. (Designated Bodies 4 only) I/We declare that I am/we are licensed as... (description) by the... (regulatory body) under the laws of... (country) and am/are thereby subject to regulations and/or guidelines which to the best of my/our knowledge and understanding are in accordance with the Financial Action Task Force Recommendations on the prevention of money-laundering and that this application is made in my/our name on behalf of my/our clients whose identity has been properly verified by me/us in accordance with the guidelines. 4 A Designated Body is an individual or other entity which is regulated in respect of the provision of banking or investment services in a country which is a member of the European Union or the Financial Action Task Force. 19. (Individuals only) I/We declare that I am a/we are private investor(s) who is/are making this application on my/our own behalf and not in any way as representative(s) of any other party. 5 L_LIVE_EMEA1: v3

6 Please supply the following: (a) a certified** copy of your passport (or national identity card) showing the photograph and noting your signature; and (b) Proof of address: for example one of the following, an original or certified** copy of a recent utility bill, bank statement, or any other documentation issued by a government agency, showing the residential address of all investors (not more than three months old). **All certified copies should be certified by a police officer, chartered and certified public accountant, notaries public, solicitor, embassy and consular staff, the applicant s Bank or Independent Professional Adviser if authorised and regulated in a Member State of the EU, the EEA and members of the FATF (GAFI). 20. (Corporate applicants only) We hereby declare that the corporation was duly registered on...(date) under the laws of... (country) and that it is not a financial intermediary. We further declare that the following persons are all the directors of the corporation: (1) Name.. Residential Address.. Business Address.. Occupation Date of Birth. (2) Name.. Residential Address.. Business Address.. Occupation Date of Birth. (3) Name.. Residential Address.. Business Address.. Occupation Date of Birth. (4) Name.. Residential Address.. Business Address.. Occupation Date of Birth. Additional directors' details should be supplied on a separate sheet of paper. The Administrator should be notified of any change in the directors. 6 L_LIVE_EMEA1: v3

7 Please supply the following: (a) (b) (c) (d) Certified** copy of Certificate of Incorporation (or equivalent); Certified** copy of Memorandum and Articles of Association (or equivalent document showing registered corporate office); Certified** copy of the corporation or entity s list of authorised signatories; List of Director s names, occupations and business addresses; AND If the company is not quoted on a stock exchange or a subsidiary of a company quoted on a stock exchange in a Member State of the EU, the EEA and members of the FATF (GAFI), please also supply: (i) Identification as per natural persons (see 20 above) for at least 2 directors and all persons authorised to operate on the account; and (ii) List of names, addresses, dates of birth and occupations of Shareholders holding 10 per cent or more of the issued share capital of the company The Administrator may also, without limitation, seek confirmation of shareholders and require additional information and/or documentation relating to the directors. **All certified copies should be certified by a police officer, chartered and certified public accountant, notaries public, solicitor, embassy and consular staff, the applicant s Bank or Independent Professional Adviser if authorised and regulated in a Member State of the EU, the EEA and members of the FATF (GAFI). The Administrator may request from the applicant such additional information to enable the Administrator to determine the applicant s compliance with applicable regulatory requirements or the applicant s anti-money laundering verification status and the applicant shall provide to the Administrator from time to time such information as may reasonably be requested. Each person acquiring Shares must satisfy the foregoing both at the time of subscription and at all times thereafter until such person ceases to be a Shareholder. Accordingly, the applicant agrees to notify the Administrator promptly if there is any change with respect to any of the foregoing information, declarations or representations and to provide the Administrator with such further information as the Administrator may reasonably require. This application will not be accepted and Shares will not be issued unless one of 19, 20 or 21 has been completed and until all information and documentation has been received by the Administrator to its satisfaction. For entities not classified by 19 to 21 above, please contact the Administrator for documentation requirements. E. Savings Directive Declarations I/We acknowledge that details of my/our shareholding, including information provided by me/us for the purposes of my/our application for Shares may be required by law to be disclosed to a relevant tax authority pursuant to EC Council Directive 2003/48/EC of 3 June 2003 (the Savings Directive ). Without prejudice to the generality of the foregoing, I/we consent to disclosure of my/our identity, shareholding and details of my/our income derived from that shareholding by the Administrator, Manager or any person deemed to be a paying agent for the purposes of the Savings Directive (a Paying Agent ) to any such relevant tax authority. I/We agree to provide such information as may be required (whether in this Application Form or otherwise), and I/we consent to the disclosure of such information to such person or persons as 7 L_LIVE_EMEA1: v3

8 may be deemed to be a Paying Agent in order to permit them to comply with their obligations under the Savings Directive. I/We undertake to ensure that such information as I/we provide is kept up-to-date and to notify to the Administrator any change to such information which may be relevant for the purposes of the Savings Directive as soon as reasonably practicable (including without limitation any change in my/our name, permanent residential address or registered office and/or the State in which I/we are resident for tax purposes). I/We hereby agree to indemnify and hold harmless such person or persons as may be deemed to be a Paying Agent against any loss, liability, cost or expense (including without limitation legal fees, taxes and penalties) which may result directly or indirectly from any failure by me/us to provide information or from any information which I/we provide being incorrect or ceasing to be correct in accordance with this Application Form. I/We acknowledge that Shares will not be issued until such time as the Administrator has received and is satisfied with all the information and documentation requested in order to comply with the terms of the Savings Directive. I/We acknowledge that the Fund or the Administrator on its behalf also reserves the right to refuse to make any redemption payment or distribution to a Shareholder where the Fund or the Administrator is not satisfied with the information and documentation that has been provided. (Individuals only) Please supply the following (to the extent not already provided pursuant to paragraph 19 above): A certified** copy of your passport (or national identity card) showing the photograph and your date and place of birth and (if available) the Taxpayer Identification Number ( TIN ) allocated to you by the State in which you are resident for tax purposes; Proof of your permanent residential address: for example an original or certified** copy of a recent utility bill (not more than three months old); and If your passport (or national identity card) does not show your TIN, other documentary proof of identity showing your TIN (if available), such as a certificate of residence for tax purposes from the tax authorities of the State in which you are resident for tax purposes. **All certified copies should be certified by a Notary Public, Solicitor, Company Registrar or any other person appropriately authorised under the laws of your country or domicile and should be certified or otherwise authenticated in such manner as would make them admissible in evidence in proceedings before a court in Dubai. (Non-natural persons only) We declare as follows: We are a legal person not being an individual (and are not acting in a representative capacity on behalf of an individual*) and are not any of the following types of legal person: a Finnish avoin yhtiö (Ay) / öppet bolag; a Finnish kommandiittiyhtiö (Ky) / kommanditbolag; a Swedish handelsbolag (HB); or a Swedish kommanditbolag (KB). Yes / No ** Our profits are taxed under general arrangements for business taxation (corporation tax or similar). 8 L_LIVE_EMEA1: v3

9 Yes / No ** We are (a) an undertaking for collective investment in transferable securities eligible for recognition in accordance with EC Council Directive 85/611/EEC of 20 December 1985 as amended or (b) have elected to be so treated for the purposes of the Savings Directive and enclose an original certificate from the State in which I/we are resident for tax purposes to that effect: Yes / No ** * Applicants who are unable to make this declaration should contact the Administrator. ** Please delete as appropriate. 9 L_LIVE_EMEA1: v3

10 PLEASE COMPLETE THE FOLLOWING SECTIONS (AS APPROPRIATE) AND SIGN ON PAGE 11. Details of applicant(s) Name(s) of Applicant(s). Correspondence Address... Contact Details. Telephone.. Fax. .. Registration details Individual Shareholders Shares may be registered in either single name or in up to four names Mr/Mrs/Ms/Title.. Surname. First Name(s).. Address Tel.. Fax .. Registration details Individual Shareholders Shares may be registered in either single name or in up to four names Mr/Mrs/Ms/Title.. Surname. First Name(s).. Address Tel.. Fax .. Registration details Individual Shareholders Shares may be registered in either single name or in up to four names Mr/Mrs/Ms/Title. Surname... First Name(s) Address Tel... Fax . Registration details Individual Shareholders Shares may be registered in either single name or in up to four names Mr/Mrs/Ms/Title. Surname... First Name(s) Address Tel... Fax L_LIVE_EMEA1: v3

11 Corporate Shareholders Full title of body corporate... Address Tel.. Fax .. To be valid, Application Forms must be signed by each applicant. In the case of a partnership/firm applications should be signed by all the partners/proprietors. In the case of a corporation, applications should be executed under seal or signed by a duly authorised signatory provided that a certified copy of the authority authorising the signatory and an authenticated list of signatories accompanies the application. If this application is signed under power of attorney, such power of attorney or a duly certified copy thereof must accompany this Application Form. Authorised Signatories The Fund and Administrator are authorised to act on the written instructions of any person listed below until further notice. Name Signature Bank Details Until further notice, funds may be wired to the Shareholder as follows: Bank Name: Bank Address: ABA or CHIPS no: Account Name: Account Number: For further credit: 11 L_LIVE_EMEA1: v3

12 PLEASE SIGN BELOW Signature of all applicant(s) (natural persons) or duly authorised signatories (corporate applicants) Name. Date Name. Date Name. Date Name. Date.. 12 L_LIVE_EMEA1: v3

13 Notes Terms defined in the Prospectus have the same meaning in this Application Form. Applications for Shares shall be sent to the Administrator by mail (with a copy by facsimile) as set out in the Prospectus. Applications for an initial subscription of Shares must be for an amount of not less than the sterling equivalent of $100,000 or such lesser amount as the Directors may in any particular case determine. The minimum amount of additional subscriptions is sterling equivalent of $10,000 or such lesser amount as the Directors may in any particular case determine. Following the close of the Initial Offer Period, Shares will be available for subscription at the relevant Subscription Price on such Subscription Day. The Subscription Price will be equal to the Net Asset Value per Share as at the Valuation Day immediately preceding the Subscription Day on which the application is effective. A subscriber may also be required to pay an additional amount as an Equalisation Credit. In the case of corporate Shareholders, signatories may be required to produce evidence of authority. Fractions of Shares will, if necessary, be issued. Interest on subscription monies will accrue to the Fund. The Fund reserves the right to reject any application in whole or part at its absolute discretion, in which event the amount paid on application or the balance thereof (as the case may be) will be returned (without interest) as soon as practicable at the risk and cost of the applicant. The Directors are authorised from time to time to resolve to close the Fund or any Class of Shares to new subscriptions on such basis and on such terms as the Directors may in their absolute discretion determine. All the Shares will be registered Shares and will only be issued in bookstock form, meaning that a Shareholder s entitlement will be evidenced by an entry in the Fund s register of Shareholders, as maintained by the Administrator, and not by a share certificate. The Directors may declare a suspension of the issue of Shares in the circumstances described in the Prospectus. 13 L_LIVE_EMEA1: v3

14 BANK INSTRUCTION LETTER USE THIS LETTER IN CONJUNCTION WITH APPLICATIONS FOR SHARES To: The Manager Name of Bank Address Branch Number/Sort Code Dear Sir, To the debit of my/our account number... with your Bank, please remit by direct transfer the sum of (in figures) (in words) net of bank charges for value not later than 5.00 p.m. (Dubai time) on. (insert date): Bank Barclays Bank plc, The Esplande, St Helier, Jersey, Channel Islands Account Name: Account Number: Sort Code: Account Currency: GBP Hawkwood Commodities Fund Limited Swift: BARCGB22 Please also fax the Administrator, Apex Fund Services (Dubai) Ltd with the details of the transfer (fax number: ). Full name (typed or in block capitals) Account name Date Signature(s) L_LIVE_EMEA1: v3