Exhibit 10.1
INTRODUCER AGREEMENT
(U.S. Guaranteed Introducer - Fully Disclosed)
THIS AGREEMENT is made and entered into as of this 15 day of June 2001
by and between E. D. & F. Man International Inc., a Delaware corporation
("Clearing Broker"), and Strategic Futures and Options, Inc., Minnesota
corporation ("Introducer").
WHEREAS, Introducer is registered as a futures commission merchant or
introducing broker with the Commodity Futures Trading Commission ("CFTC') under
the Commodity Exchange Act. as amended (the "Act"), and is a member of the
National Futures Association ("NFA");
WHEREAS, Introducer desires to introduce certain accounts ("Accounts")
on behalf of its customers ("Customers") to Clearing Broker on a fully disclosed
basis and to obtain from Clearing Broker clearing, execution, and other services
relating to transactions in commodities, commodity futures contracts, options on
commodities, options on commodity futures contracts. forward contracts, spot and
forward currencies, physical commodities and any similar instrument which may be
purchased or sold by or through Clearing Broker for the Accounts;
WHEREAS, Clearing Broker is a clearing member of various contract
markets and exchanges and their clearinghouses and is registered as a futures
commission merchant with the CFTC under the Act;
WHEREAS, Clearing Broker desires to provide clearing, execution, and
other services for the Accounts on the terms and conditions set forth herein;
WHEREAS, Fox Inc. has entered into an agreement with Clearing Broker
which includes provisions that obligate Fox Inc. to indemnify Clearing Broker
for certain losses incurred by Clearing Broker resulting from its relationship
with Introducer;
WHEREAS, Introducer desires to enter into a Guarantee Agreement (as
such term is defined by the CFTC) with Clearing Broker;
WHEREAS, Clearing Broker desires to enter into a Guarantee Agreement
with Introducer;
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements set forth herein, the parties agree as follows:
1. Services Provided by Clearing Broker.
Clearing Broker, acting as Introducer's agent, shall perform the
following services:
(a) Clearing Broker shall maintain the Accounts on a fully disclosed
basis in accordance with any applicable law, rule. or regulation of or
administered by the CFTC, NFA, any United States contract market, exchange,
clearinghouse, governmental agency or other self-regulatory organization
("applicable law"). Clearing Broker reserves the right to refuse to accept or
carry any Account or clear or settle any transactions therein.
(b) Clearing Broker shall receive and execute orders for the Accounts
in accordance with instructions transmitted by Introducer or its Customers.
Clearing Broker may execute orders through employees of Clearing Broker or
through independent contractors in contract markets of which Clearing Broker is
a member and may utilize the services of other futures commission merchants or
brokers and dealers which are members of contract markets or exchanges of which
Clearing Broker is not a member. Clearing Broker may, but shall not be obligated
to, execute orders received directly from Introducer or Introducer's Customer.
(c) Clearing Broker shall prepare and transmit to Customers written
reports of margin calls, confirmation. purchase-and-sale, and monthly
statements. and such other documents as may be required by applicable law. Such
reports and other documents furnished by Clearing Broker to Customers shall
indicate that the Accounts are introduced by Introducer to Clearing Broker.
(d) Clearing Broker shall settle and clear transactions in the
Accounts.
(e) Clearing Broker shall hold cash. securities. and other property
received from or on behalf of Customers in accordance with applicable law.
Clearing Broker shall not be obligated to pay interest on cash held for
Customers.
(f) Clearing Broker will perform all cashiering functions for the
Accounts including, without limitation, receipt and delivery of securities,
warehouse receipts or commodities, making and receiving payments for
transactions, payment and collection of interest on Accounts, payment of
dividends and transmission of margin calls to Introducer.
(g) Clearing Broker, and not Introducer, shall have the right, within
the limits of applicable law and regulations to lend, either to Clearing Broker
or to others, any securities or other property held by Clearing Broker in any
margin Account together with all attendant rights of ownership, and to use all
such property as collateral for Clearing Broker's general loans. All such
property, together with all attendant rights of ownership, may be pledged,
repledged, hypothecated or rehypothecated, either separately or in common with
other such property for any amounts due Clearing Broker thereon or for a greater
sum, and Clearing Broker shall have no obligation to retain a like amount of
similar property in its possession and control.
(h) Concurrent with the execution and delivery of this Agreement,
Clearing Broker and Introducer each agree to execute and deliver a Guarantee
Agreement in the form set forth in CFTC Form I -FR-IB (Part B) as Exhibit A
hereto ("Guarantee Agreement"). This Agreement and the Guarantee Agreement shall
become effective as of the date set forth in the Guarantee Agreement and shall
remain effective until this Agreement is terminated as provided in termination
provisions hereof.
2. Services Not Performed by Clearing Broker.
(a) Clearing Broker will not perform any of the following services or
functions:
(i) Preparation of Introducer's general accounting and payroll
records. financial statements, or regulatory reports.
(ii) Payment of Introducer's general business expenses.
(iii) Payment of commissions or any other fees to Introducer's
employees and agents.
(iv) Verification of information and instructions provided to
Clearing Broker by Introducer or by Customers. Introducer acknowledges
that Clearing Broker shall be entitled to rely upon any such
information or instructions which Clearing Broker believes to be
transmitted from Introducer or a Customer. Introducer further
acknowledges that Clearing Broker shall not be required to determine
the suitability of or otherwise screen any Customer order prior to
execution and that Clearing Broker shall not be required to make any
determination of the adequacy of the equity in any Account before
executing an order.
(v) Supervision of Introducer or of Introducer's employees and
agents.
(vi) Notwithstanding anything else herein, Clearing Broker
will not be responsible for compliance with any applicable reporting,
disclosure or record keeping requirements under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") with respect to
transactions subject to this Agreement.
(b) Clearing Broker will not be required to make any investigation into
the facts surrounding any transaction that it may have with Introducer or that
Introducer may have with its Customers or other persons, nor will Clearing
Broker be responsible for compliance by Introducer with the law of any
jurisdiction in which Introducer or a Customer conducts business.
3. Obligations of Introducer.
(a) Introducer's conduct hereunder shall at all times be in compliance
with applicable law and in a manner consistent with the instructions and
requests of Clearing Broker and in compliance with all statutes, laws,
ordinances, requirements of any government governmental authority, regulatory
agency or self-regulatory body wherever located with jurisdiction over
Introducer, its Customers or any Accounts.
(b) Introducer shall diligently supervise the activities of its
employees and agents.
(c) Introducer shall use due diligence to learn all essential facts
relative to each Account, each Customer, each order and every person holding a
power-of-attorney over each Account. Each new Account created for a Customer
shall be approved in writing by a principal of Introducer and a principal of Fox
Inc. or such principal's designee. This provision is for the sole benefit of the
parties hereto and is not intended for the benefit of any Customer or other
person other than Fox Inc.
(d) Introducer shall maintain compliance and supervisory procedures
which are adequate to assure compliance by Introducer and its employees and
agents with applicable law and procedures established from time to time by
Clearing Broker. Without limiting the generality of the foregoing, such
compliance and supervisory procedures shall cover the Opening, approval, and
monitoring of Accounts, including review of order entry procedures for and
trading activity in Accounts; supervision of trading advice and recommendations
provided to Customers; compliance with anti-money laundering requirements;
compliance with Office of Foreign Asset Control requirements; and supervision of
special accounts such as discretionary accounts, commodity pool or fund
accounts, option trading accounts, and accounts of employees or officers of
Introducer or of futures commission merchants, introducing brokers, commodities
and securities brokers and dealers, self-regulatory organizations, or financial
institutions and shall include any responsibilities under New York Stock
Exchange ("NYSE") Rules 405 and 407 and 408.
(e) Prior to the opening of an Account, Introducer shall furnish
Clearing Broker with all pertinent information with respect to that Account.
including such information as is requested in Clearing Broker's standard new
account documentation. and Introducer shall supplement that information in the
event there are any changes thereto. Clearing Broker shall not unreasonably
withhold approval of any new Customer account submitted by Introducer that has
not been altered or modified and that meets Clearing Broker's risk, credit.
profitability and compliance criteria. Introducer further agrees that it will
not use any document or agreement in connection with the opening or maintenance
of an Account that has not been supplied or approved by Clearing Broker.
(f) Introducer shall be responsible for determining the authenticity,
accuracy, and genuineness of all orders, instructions, certificates. papers. and
signatures received with respect to an Account.
(g) Introducer shall assure that no Customer will be permitted to
establish or maintain positions in an Account if such Customer is not in
compliance with all applicable margin requirements as established from time to
time by Clearing Broker. Introducer will promptly communicate to Customers any
margin calls initiated by Clearing Broker and use its best efforts to assure
timely payment of margin as required by Clearing Broker. Clearing Broker may
accept margin payments by non-certified check through the regular mail;
provided, however, that Clearing Broker may, in its sole discretion and without
prior notice, require that such payments be made by certified or cashier's check
or by wire transfer. Introducer will apprise its Customers of the risks of
trading and of changes in Clearing Broker margin policies and requirements.
Introducer shall be responsible for all errors in the Accounts, unless such
errors shall have been caused by Clearing Broker or any floor broker selected by
Clearing Broker.
(h) Introducer shall abide by procedures established by Clearing Broker
with respect to the transmission of orders for the Accounts. Without limiting
the generality of the foregoing, Introducer agrees not to accept or transmit to
Clearing Broker an order from or for the Account of a Customer unless
immediately upon receipt thereof a written record of such order is prepared.
including the Account identification and order number, and Introducer records on
such order by time-stamping the date and time (to the nearest minute) the order
is received, when it was transmitted to Clearing Broker, and when it was
confirmed to the Customer by Introducer. Introducer shall keep all records
required hereunder for a period of not less than six years.
(i) Introducer agrees that it will not accept or hold in its name any
money, securities, or property (or extend credit in lieu thereof) to margin,
guarantee, or secure any trades, contracts, or positions effected or carried in
any Account. All such money, securities, and property shall be received on
behalf of Clearing Broker and in its name (and all checks and drafts shall be
payable to the order of Clearing Broker) and shall transmitted to Clearing
Broker or, at the direction of Clearing Broker, deposited in such bank account
or accounts as may be designated by Clearing Broker.
(j) Introducer shall not guarantee any Customer against loss or a
margin call in an Account or in respect of any transaction effected with or for
such Customer or make any representation to such effect.
(k) Introducer shall be responsible for handling and resolving all
Customer inquiries, disputes and complaints. Each party shall promptly inform
the other party of any written complaint or material verbal complaint it
receives from any Customer. In the event Introducer cannot resolve the dispute
to the satisfaction of the relevant Customer, Introducer shall meet with
Clearing Broker and discuss strategy for resolving the dispute. In the event the
parties cannot agree and Clearing Broker makes a good faith determination that
failure to settle the relevant complaint could result in a regulatory finding
against Clearing Broker or subject Clearing Broker to adverse media coverage,
then Clearing Broker shall have the right to terminate this Agreement as if for
cause pursuant to the provisions of Section 11(a). In the event Clearing Broker
shall terminate this Agreement under this Section 3(k) for reasons other than
the conduct or alleged conduct of Introducer, Clearing Broker shall continue to
clear the Accounts for a period of ninety (90) days following such notice,
unless the parties otherwise agree in writing to different terms.
Notwithstanding the foregoing, during this period, Clearing Broker shall have no
obligation to clear any Account or maintain any Customer relationship giving
rise to the termination.
(l) Introducer shall not permit any person to exercise any
discretionary authority with respect to any transaction in an Account unless it
has obtained (in a form approved by Clearing Broker) a signed copy of the
power-of-attorney, authorization. or other document by which such power is given
and a signed copy of such further documents as may be required by Clearing
Broker or by applicable law.
(m) Introducer shall use its best efforts to assure that each Customer
complies with all applicable position limits established by -the CFTC or a
contract market or exchange or Clearing Broker and shall not knowingly permit
any transaction to be effected in an Account in violation of such limits.
Introducer shall promptly report to Clearing Broker the facts concerning any
Account that has exceeded any applicable limit.
(n) Introducer shall promptly report to Clearing Broker any special
calls for information made upon any of its Customers by the CFTC or any contract
market or exchange or self-regulatory organization and shall refrain from
soliciting or accepting any order (other than orders to liquidate existing
positions) from any Customer who is in violation of such a special call.
(o) Introducer shall make no report or statement (whether orally or in
writing) to any Customer with respect to any transaction, position. or other
matter relating to a Customer's Account that is not in conformity with
statements, reports, and information furnished by Clearing Broker pursuant to
this Agreement.
(p) Introducer shall check out with Clearing Broker each day's business
by 4:00 p.m. Chicago time for accuracy and completeness. Concurrence between
Introducer and Clearing Broker will be binding, except that Clearing Broker
shall have the right to amend, add, or cancel any trade (or any aspect or
portion thereof) the next succeeding business day if floor and clearinghouse
clearance reports properly support such action. Any such amendment, addition. or
cancellation will be reported to Introducer promptly on such succeeding business
day, and Introducer shall be required immediately to accept such amendment.
addition. or cancellation.
(q) Introducer shall not hold itself out as an agent of Clearing
Broker, or as being associated with Clearing Broker in any manner other than in
the clearing relationship established pursuant to this Agreement. Without
limiting the generality of the foregoing, Introducer shall not issue any
communication, advertisement, market letter, or sales literature directed to any
Customer or containing the name of Clearing Broker without the prior written
consent of Clearing Broker.
(r) In the event that Clearing Broker permits Introducer or any
Customers use of or access to any electronic order entry, electronic order
routing or electronic account access system (whether or not sponsored by
Clearing Broker) (collectively, the "Service"), Introducer agrees as follows:
(i) Introducer is responsible for each Customer's use of the
Service. Use of the Service will be governed by the terms of use.
privacy statements. and other agreements and disclosures provided with
the Service. Introducer acknowledges and recognizes that the Service is
new technology and as a consequence, there may be periods of time when
the Service is not available. Introducer agrees that it Will provide
Customers who use the Service with alternate means to enter orders in
the event of any unavailability of the Service.
(ii) If as part of the Service, Clearing Broker permits
Introducer to link to Clearing Broker's website or to any new account
documents and related material posted on its website ("Covered
Information"), Introducer shall not bypass or disable access to any
agreements, legends or other information preceding the Covered
Information. Additionally Introducer agrees to abide by any written
procedures issued by Clearing Broker's Information Technology
Department regarding the Service, website linking and usage.
(iii) If Clearing Broker permits Introducer to allow Customers
to route orders to Clearing Broker through any order routing system not
sponsored by Clearing Broker, Introducer recognizes and agrees that
Clearing Broker shall have no responsibility for the maintenance or
quality of services provided through that order routing system.
Introducer further agrees that even though Clearing Broker may not be a
party to any agreement with the sponsor of the order routing system
governing its terms of use, Clearing Broker shall nonetheless enjoy all
the rights and privileges of the sponsor of the order routing system as
if Clearing Broker were the sponsor of the order routing system.
(s) Introducer agrees to notify Clearing Broker promptly of any
material adverse change in Introducer's financial condition or of the
commencement or threatened commencement of any action, suit, proceeding or
investigation against Introducer or any of its principals or employees.
4. Disclosure to Customers.
Clearing Broker shall limit its services as provided in this Agreement
and Introducer shall not hold itself out as an agent of Clearing Broker or any
affiliate of Clearing Broker except as provided for in this Agreement.
Introducer shall be responsible for informing Customers of the nature of the
clearing relationship between Clearing Broker and Introducer, and Introducer
agrees that it and its employees and agents will not make any representation to
Customers regarding Clearing Broker or Clearing Broker's responsibilities that
is inconsistent with the terms of this Agreement.
5. Access to Information; Financial Reports.
(a) Introducer shall make its books and records available for
reasonable inspection at all times by duly authorized representatives of
Clearing Broker, governmental authority, regulatory agency, self-regulatory
organization or any contract market or clearinghouse through which trades for
Customers are executed or cleared.
(b) Introducer shall provide Clearing Broker with a copy of its
quarterly and year-end financial statements and reports of its auditors. if any,
as and when such reports are prepared. Introducer further agrees to provide such
interim financial information as Clearing Broker may reasonably request.
(c) Introducer shall, upon request. provide Clearing Broker with any
information in Introducer's possession with respect to any Customer or any
Account.
6. Confidentiality.
(a) Clearing Broker shall exercise reasonable care to prevent access to
information regarding Introducer or Customers by unauthorized persons and will
keep confidential any information it has concerning the business of Introducer.
Notwithstanding the foregoing, Clearing Broker shall be held harmless for
complying with any request for information or document by any governmental
regulator, contract market or exchange or other self-regulatory organization, or
any subpoena, court order or other legal process which Clearing Broker believes
to be valid and effective.
(b) Introducer shall keep confidential any information it acquires
regarding Clearing Broker and its business pursuant to its clearing relationship
with Clearing Broker.
(c) The provisions of this Section 6 shall survive the termination of
this Agreement.
7. Indemnification
(a) Introducer shall fully indemnify, protect and hold harmless
Clearing Broker and its directors, officers, shareholders. Employees, agents,
affiliates, and each person, if any, controlling Clearing Broker from and
against all manner of claims, demands, proceedings, suits, or actions (whether
in law or in equity) and liabilities, losses, expenses, and costs (including
reasonable attorneys' fees, collectively "Losses") in the event: (i) Clearing
Broker complies with any instruction or order received from Introducer or any
Customer in respect to an Account; (ii) Introducer or any Customer fails to
satisfy any margin requirement or to pay any amount due to Clearing Broker or
any of its affiliates; (iii) Introducer fails to perform its obligations or
breaches its representations, warranties, and covenants hereunder; (iv) any
Customer institutes a claim, suit, action, or other proceeding (whether in law
or in equity) against Clearing Broker or any of its affiliates for any reason,
or any exchange or any U.S. or non-U.S. governmental agency or self-regulatory
organization institutes a claim, suit, action, or other proceeding against
Clearing Broker or any of its affiliates relating to this Agreement or any
Account or Customer, or (v) Clearing Broker shall incur Losses arising from
Introducer's activities unrelated to this Agreement; provided, however, in the
case of subsection (i) hereof, that Clearing Broker shall not be entitled to
indemnity in any such matter if and to the extent Clearing Broker is found to
have engaged in gross negligence or willful misconduct in the performance of its
services under this Agreement. For purposes of this paragraph. the term Customer
shall include any broker introduced by Introducer and its Customers.
(b) Clearing Broker and its affiliates shall be entitled to collect or
secure any amount owed to them hereunder or otherwise by means which shall
include, but not be limited to, charging Introducer's "house" account and/or
setting off any amount owed to Introducer by Clearing Broker or any of its
affiliates. In such instance, Clearing Broker need not resort to remedies
against any Customer in order to collect or secure such amount by such means. As
security for the obligations of Introducer under this Agreement and to Clearing
Broker's affiliates, Introducer shall deposit the sum of U.S. $__________ with
Clearing Broker, which amount shall bear interest at the overnight loan rate.
Such interest shall be credited on a monthly basis to Introducer's security
deposit account with Clearing Broker. In addition, Clearing Broker will also
credit monthly Introducer's net revenue hereunder to Introducer's security
deposit account at such times that the balance of that account is less than U.S.
$__________. Thereafter, Introducer may withdraw any excess from the account.
Clearing Broker and its affiliates are authorized to transfer, use, and apply
all or any portion of such security deposit whenever Clearing Broker or its
affiliates deem it necessary to pay or satisfy amounts owed to Clearing Broker
or any affiliates thereof, or third parties by reason of this Section 7.
Introducer further agrees that, if any person or entity has instituted or
threatened a claim, suit action, or other proceeding against Clearing Broker or
any of its affiliates which reasonably could expose such person to any
liability, loss, cost, or expense which is the obligation of Introducer
hereunder, Clearing Broker is authorized to withhold an amount equal to the
amount of any such claim, suit, action, or other proceeding from any amounts
owed to Introducer, or from any other funds. securities, or other property owned
by Introducer on deposit with Clearing Broker for any purpose until such claim.
suit, action, or other proceeding has been fully resolved to the satisfaction of
Clearing Broker.
8. Compensation.
Clearing Broker will collect commissions established by Introducer and
paid on transactions executed and cleared for Customers and will pay over the
same to Fox Inc. monthly after deducting clearing charges and any other amounts
owing to Clearing Broker or any of its affiliates under this Agreement, Clearing
Broker's agreement with Fox Inc. or otherwise. Amounts due to Introducer shall
be payable directly to Fox Inc., and Clearing Broker shall have no obligation to
pay any amounts to Introducer. Fox Inc. agrees that it shall compensate
Introducer pursuant to arrangements agreed to between Fox Inc. and Introducer.
Fox Inc. and Introducer agree that Clearing Broker has not participated in, nor
is it responsible for, the terms agreed to between Fox Inc. and Introducer. In
the event there shall be a dispute between Fox Inc. and Introducer regarding any
amounts payable by Fox Inc. to Introducer, Clearing Broker's sole responsibility
shall be to hold any amounts in dispute until such time that Fox Inc. and
Introducer have resolved the matter. Clearing Broker may, but shall not be
required, to interplead any disputed amount into a court of competent
jurisdiction. with the cost of the interpleader action to be paid from the
amounts in dispute.
9. No Omnibus Account.
Except as expressly permitted by Clearing Broker, during the term of
this Agreement Introducer may not utilize an omnibus account maintained at
Clearing Broker to effect transactions for Customers. Introducer agrees to have
all Customer orders executed only on a fully-disclosed basis, unless Clearing
Broker shall have consented in writing to the use of an omnibus account.
10. Representations. Warranties, and Covenants.
(a) Introducer represents, warrants, and covenants as follows:
(i) Introducer is now, and during the term of this Agreement
will remain duly registered as a futures commission merchant or
introducing broker with the CFTC.
(ii) Introducer is now, and during the term of this Agreement
will remain, a member in good standing of NFA
(iii) Introducer has all requisite authority, under the laws
and rules and regulations of its home jurisdiction and in each other
jurisdiction in which it conducts business to enter into this Agreement
and to retain the services of Clearing Broker in accordance with the
terms hereof and discharge its obligations hereunder.
(iv) If an entity, Introducer is duly organized. validly
existing, and in good standing under the laws of the jurisdiction of
its organization, and is qualified to do business in such other
urisdictions as the nature of its business activities and properties
therein may require.
(v) Introducer is aware of, and familiar with the provisions
of, the US Foreign Corrupt Practices Act of 1977, as amended (the
"FCPA") and its purposes and will take no action and make no payment in
violation of. or which might cause Clearing Broker or any of its
associated persons or affiliates to be in violation of, the FCPA.
(vi) Introducer has taken all requisite action to authorize
the execution, delivery, and performance of this Agreement and the
transactions contemplated herein. This Agreement has been duly
authorized, executed. and delivered by Introducer and is binding upon
and enforceable against Introducer in accordance with its terms.
(vii) Except as set forth in Exhibit B, Introducer's sole
business is the introduction of customer accounts as contemplated by
this Agreement. Introducer is now, and during the term of this
Agreement will remain, in compliance with all laws, rules and
regulations having applicability to its business, including those
specified in Exhibit B.
(b) Clearing Broker represents, warrants, and covenants to Introducer
as follows:
(i) Clearing Broker is now, and during the term of this
Agreement Will remain, duly registered as a futures commission merchant
with the CFTC.
(ii) Clearing Broker is now, and during the term of this
Agreement will remain, a member in good standing of NFA.
(iii) Clearing Broker is now, and during the term of this
Agreement will remain, in compliance with the minimum financial and
financial reporting requirements of the CFTC and each contract market,
exchange or other self-regulatory organization of which it is a member.
11. Termination.
(a) This Agreement may be terminated by either party without cause upon
ninety (90) days written notice delivered as provided in Section 12 hereof. This
Agreement may be terminated immediately by either party if any representation or
warranty ceases to be true or if any duties. responsibilities, obligations, or
covenants are not duly performed during the term of this Agreement. The
obligations of Introducer under Section 7 hereof shall survive any termination
of this Agreement.
(b) Upon termination of this Agreement and in addition to the
provisions of Section 7(b) hereof, Clearing Broker shall be entitled to
withhold, without recourse by Introducer, payment of compensation due to
Introducer pursuant to Section 8 hereof for the greater of ninety days or the
pendency of any claim, demand, proceeding, suit. or action (whether in law or
equity) arising under, or out of transactions under, this Agreement.
12. Notices.
Except as otherwise provided in this Agreement. all notices required to be given
under this Agreement shall be in writing, and shall be effective upon receipt as
provided herein. Any such written notice shall be deemed received upon the
earlier of: (a) actual receipt by the other party; or (b) the close of business
on: (i) the date of transmission if sent by facsimile or same-day courier; (ii)
on the business day after the date of transmission, if sent by overnight mail;
or (iii) the fifth business day after transmission, if sent by air mail, postage
prepaid, and (if applicable) return receipt requested. For the purposes of
delivery of any notice hereunder, the address and facsimile number of Clearing
Broker and Introducer, respectively, shall be as set forth on the signature page
hereof. Either party may change its address or facsimile number for notices by
giving written notice of the new address or number to the other party. Any party
providing a notice must also provide a copy to Fox Inc. at 000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 0000 - A. Xxxxxxx, Xxxxxxxx, 00000 and a copy to Xxxx X.
Xxxxxxxx, Esq. at Xxxx X. Xxxxxxxx and Assoc.. Two Prudential Plaza, ISO Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx, 00000-0000.
13. Limitation on Liability.
Neither Clearing Broker nor any of its affiliates will be responsible for delays
in the transmission of execution of orders due to breakdown or failure of
transmission or communication facilities or to any other cause or causes beyond
their control. Independent floor brokers responsible for the execution of
Customer orders are not agents of Clearing Broker and Clearing Broker shall not
be responsible for the acts or omissions of such floor brokers not selected by
Clearing Broker.
14. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS WITHOUT REGARD TO THE CHOICE-OF-LAW PROVISIONS THEREOF. ALL DISPUTES,
CLAIMS, ACTIONS, OR PROCEEDINGS ARISING DIRECTLY, OR INDIRECTLY OR OTHERWISE IN
CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS AGREEMENT SHALL BE LITIGATED AT
THE DISCRETION AND ELECTION OF CLEARING BROKER ONLY IN A COURT LOCATED IN
CHICAGO, ILLINOIS. INTRODUCER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED IN CHICAGO, ILLINOIS. INTRODUCER APPOINTS AND
DESIGNATES CLEARING BROKER (OR ANY OTHER PERSON WHOM CLEARING BROKER MAY FROM
TIME TO TIME HEREINAFTER DESIGNATE) AS INTRODUCER'S TRUE AND LAWFUL
ATTORNEY-IN-FACT AND DULY AUTHORIZED AGENT FOR SERVICE OF LEGAL PROCESS, AND
AGREES THAT SERVICE OF SUCH PROCESS UPON CLEARING BROKER OR SUCH OTHER PARTY
SHALL CONSTITUTE PERSONAL SERVICE OF SUCH PROCESS UPON INTRODUCER; PROVIDED,
THAT CLEARING BROKER OR SUCH OTHER PARTY SHALL, WITHIN FIVE DAYS AFTER RECEIPT
OF ANY SUCH PROCESS, FORWARD THE SAME BY CERTIFIED OR REGISTERED MAIL, TOGETHER
WITH ALL PAPERS AFFIXED THERETO, TO INTRODUCER'S ADDRESS SET FORTH ON THE
SIGNATURE PAGE HEREOF.
(b) No action, regardless of form, arising out of transactions under
this Agreement may be commenced against Clearing Broker and its directors,
officers, shareholders, employees, representatives, agents, successors, or
assigns in any forum by the undersigned, its successors, or assigns more than
one year after the claim giving rise to such action has arisen.
(c) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. No
assignment or amendment shall be valid unless the other party consents to such
assignment or amendment in writing. Notwithstanding the foregoing, any
assignment by Clearing Broker to any entity controlled directly or indirectly by
it or in connection with the sale of all or substantially all its business will
be deemed not to require the consent of Introducer.
(d) This Agreement is the entire agreement between the parties relating
to the subject hereof and all prior negotiations and understandings between the
parties, whether written or oral, are hereby merged into this Agreement. Except
as otherwise expressly provided in this Agreement, no provision of this
Agreement may be waived or amended unless the waiver or amendment is in writing
and signed by a duly authorized officer of Clearing Broker and a duly authorized
principal of Introducer. No extension, amendment or substitute agreement shall
be entered into without the consent of Fox Inc. if such extension, amendment or
substitute agreement effects the financial terms of this Agreement or the
termination provisions. Clearing Broker is authorized to provide Fox Inc. with a
copy of any extension. amendment or substitute agreement. No waiver or amendment
of this Agreement shall be implied from any course of dealing between the
parties or from any failure by a party to assert its rights under this Agreement
on any occasion or series of occasions. The Agreement shall automatically
terminate simultaneously with the termination of Clearing Broker's introducer
agreement with Fox Inc.
(e) Neither this Agreement nor the performance of services by Clearing
Broker hereunder shall be construed to create a joint venture or partnership
between Clearing Broker and Introducer. Nothing in this Agreement shall be
construed or constitute employment or an offer of employment by Clearing Broker.
(f) Clearing Broker and its affiliates will not be liable to Introducer
or any Customers for any loss, liability, claim. cost damage or expense
resulting, either directly or indirectly from and without limitation: the
action. inaction, non- performance or failure of, or restrictions imposed by any
government, agency, court regulatory organization, exchange, clearing
organization, market, broker, dealer, depository or custodian; the suspension of
trading, war, labor strikes or actions or acts of god; the corruption of data;
communication or computer failure, including delay, breakdown or failure of the
Service or any related hardware or software and any events or conditions beyond
Clearing Broker's or its affiliates' control. Clearing Broker and its affiliates
reserve the right to act in anticipation of events or conditions of the type
described herein and may, without liability to introducer, take whatever actions
it or they deem necessary to protect its or their interests and those of its
customers.
(g) Whenever possible. each provision of this Agreement shall be
interpreted in such a manner as to be valid and effective under applicable law.
In the event that any one or more of the provisions of the Agreement shall be
held invalid, illegal, or unenforceable in any respect, such provisions shall be
severed from this Agreement, and the validity, legality, and enforcement of the
remaining provisions contained herein shall not be affected or impaired thereby.
(h) The section headings in this Agreement are inserted for convenience
of reference only and are not intended to limit the applicability or affect the
meaning of any of its provisions.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be executed by their duly authorized representative as of the day and year
first set forth above.
Strategic Futures and Options, Inc. E. D. & F. MAN INTERNATIONAL INC.
Name of Introducer
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx Liataud
----------------------------------- ----------------------------------
Title: President Title: VP
Address For Notices: Address For Notices:
Strategic Futures and Options, Inc. E. D. & F. Man International Inc.
1750 Yankee Doodle Road, STE. 202 440 X. XxXxxxx St., 20th Fl.
Eagan, MN 55121 Xxxxxxx, XX 00000
Attention: General Counsel
As to Section 8:
FOX INC.
By: /s/ Xxxxxxx Xxx
-----------------------------------
Title: President
EXHIBIT A
GUARANTEE AGREEMENT
In consideration for the introduction of commodity customer, option customer,
foreign futures customer and foreign options customer accounts by Strategic
Futures and Options, Inc., an introducing broker, to E.D. & F. Man International
Inc., a futures commission merchant registered with the Commission as such, and
in satisfaction of the adjusted net capital requirements with which the
introducing broker otherwise would have to comply pursuant to Commission
Regulation ss.1.17, 17 C.F.R ss.1.17, the futures commission merchant guarantees
performance by the introducing broker, of, and shall be jointly and severally
liable for, all obligations of the introducing broker under the Commodity
Exchange Act, as it may be amended from time to time, and the rules, regulations
and orders which have been or may be promulgated thereunder with respect to the
solicitation of and transactions involving all commodity customer, option
customer, foreign futures customer and foreign options customer accounts of the
introducing broker entered into on or after the effective date of this
agreement.
This guarantee agreement shall be enforceable regardless of the subsequent
incorporation, merger or consolidation of either the futures commission merchant
or the introducing broker, or any change in the composition, nature, personnel
or location of the futures commission merchant or the introducing broker.
For purposes of this agreement only, the futures commission merchant shall be
deemed to be the agent of the introducing broker upon whom process may be served
in any action or proceeding against the introducing broker under the Commodity
Exchange Act and the rules, regulations and orders promulgated thereunder.
The futures commission merchant acknowledges that at the time of execution of
this guarantee agreement, there are not any conditions precedent, concurrent or
subsequent affecting, impairing or modifying in any manner the obligations of
the futures commission merchant hereunder, or the immediate taking effect of
this agreement as the entire agreement of the futures commission merchant with
respect to guaranteeing the introducing broker's obligations as set forth herein
to the Commission and to the introducing broker's commodity customers, option
customers, foreign futures customers and foreign options customers under the
Commodity Exchange Act.
If this guarantee agreement is filed in connection with an application for
initial registration as an introducing broker, this agreement shall be effective
as of the date registration is granted to the introducing broker. If this
guarantee agreement is filed other than in connection with an application for
initial registration as an introducing broker, it shall be effective as of the
date agreed to by the futures commission merchant and the introducing broker as
set forth below.
This guarantee agreement is binding and, is and shall remain in full force and
effect unless terminated in accordance with the rules, regulations or orders
promulgated by the Commission with respect to such
terminations. Termination of this agreement will not affect the liability of the
futures commission merchant with respect to obligations of the introducing
broker incurred on or before the date this agreement is terminated.
Dated: Dated:
E.D & F. Man International Inc. Strategic Futures and Options, Inc.
Introducing Broker
Address: Address:
000 Xxxxx XxXxxxx Xx., 20th Fl. Xxxxx 000
Xxxxxxx. XX 00000 0000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
By: /s/ Xxxxxx Liataud By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------- ------------------------------
V.P.
Effective Date: Date of NFA approval
PERSONAL GUARANTEE
In order to induce E. D. & F. Man International Inc. (the, "Clearing Broker") to
enter into the Introducer Agreement with Strategic Futures and Options, Inc., a
Minnesota corporation ("Introducer"), to which this guarantee is attached, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned hereby, jointly and severally in the
case of multiple guarantors. personally and unconditionally guarantees the
prompt, full, and complete performance of any and all covenants and agreements
of Introducer to Clearing Broker and its affiliates and the payment of any and
all indebtedness, damages, costs, and expenses (including attorneys' fees and
costs of collection) owed to or which may become due to Clearing Broker by
Introducer.
This guarantee shall remain in full force and effect until the termination of
the Introducer Agreement; provided, however, that the undersigned shall not be
released from his obligations hereunder so long as any claim of Clearing Broker
against Introducer which arises out of. or relates to, directly or indirectly,
the Introducer Agreement is not settled to the satisfaction of Clearing Broker
or discharged in full.
The undersigned hereby expressly waives (a) notice of acceptance of this
guarantee by Clearing Broker, (b) notice of any default or non-performance of
Introducer under the Introducer Agreement (c) notice of any modification to the
Introducer Agreement or any extension of time granted to Introducer, and (d) all
defenses, offsets, and counterclaims which the undersigned may at any time have
to any claim of Clearing Broker against Introducer. The undersigned expressly
acknowledges that amendment or modification of the Introducer Agreement or the
renewal or extension of any indebtedness of, Introducer shall not in any manner
release. affect. or impair his liability under this guarantee. The undersigned
further agrees that no invalidity of the Introducer Agreement or any obligation
thereunder shall affect or impair his liability under this guarantee.
Clearing Broker, may, in its discretion. proceed against the undersigned,
jointly and severally in the case of multiple guarantors, to collect any
obligation covered by this guarantee without first proceeding against
Introducer. Upon five days' written notice by Clearing Broker, the undersigned
shall pay any and all indebtedness, damages, costs, and expenses due Clearing
Broker from Introducer and shall perform any and all duties and obligations of
Introducer to Clearing Broker. This guarantee shall be construed pursuant to the
laws of the State of Illinois, shall inure to the benefit of Clearing Broker,
its successors. and assigns, and shall be binding on the undersigned, his heirs,
and assigns.
All notices required to be delivered under this guarantee shall be in writing
and shall be effective upon the earlier of: (a) actual receipt by the other
party; or (b) the close of business on: (i) the date of transmission if sent by
facsimile or same-day courier; (ii) the business day after the date of
transmission, if sent by overnight mail; or (iii) the fifth business day after
transmission, if sent by air mail, postage prepaid and (if applicable) return
receipt requested. For the purposes of delivery of any notice hereunder, the
address and facsimile number of Clearing Broker shall be as set forth on the
signature page of the Introducer Agreement and the address and facsimile number
of the undersigned shall be as set forth on the signature page hereof. Either
party may change its address or facsimile number for notices by giving written
notice of the new address or number to the other party.
This guarantee shall be governed by the laws of the State of Illinois without
regard to the choice-of-law provision thereof. All disputes. claims, actions, or
proceedings arising directly, indirectly or otherwise in connection with, out
of, related to or from this guarantee shall be litigated at the discretion and
election of Clearing Broker only in a court located in Chicago, Illinois. The
undersigned hereby consents and submits to the jurisdiction of any state or
federal court located within the City of Chicago, State of Illinois, and waives
any objection to venue in such court. The undersigned appoints and designates
Clearing Broker (or any other party whom Clearing Broker may from time to time
hereinafter designate) as the undersigned's true and lawful attorney-in-fact and
duly authorized agent for service of legal process, and agrees that service of
such process upon Clearing Broker or such other party shall constitute personal
service of such process upon the undersigned; provided, that Clearing Broker or
such other party shall, within five days after receipt of any such process,
forward the same by certified or registered mail, together with all papers
affixed thereto, to the address provided below.
All pronouns shall be deemed to refer to the masculine or feminine, as the
gender of the undersigned requires, and the singular shall import the plural in
the context of this guarantee.
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Individually, as Guarantor
Strategic Futures and Options, Inc.
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
------------------------------------
Address
Xxxxx, XX 00000
------------------------------------
City State Zip
(000) 000-0000
------------------------------------
Facsimile
Date: 3/8/01
