EXHIBIT 1.01
GENERAL DISTRIBUTOR'S AGREEMENT
by and between
MAN INVESTMENTS INC.
and
MAN-AHL 130, LLC
and
MAN INVESTMENTS (USA) CORP.
AGREEMENT, made as of the __th day of _________, 2005, by and between
Man-AHL 130, LLC, Man Investments (USA) Corp. (the "Managing Member") and Man
Investments Inc.
RECITAL
WHEREAS, Man-AHL 130, LLC, a Delaware limited liability company (the
"Fund"), is registering an offering of __________, in aggregate, of Class A1,
Class A2, Class B1 and Class B2 units of its limited liability company interests
("Units") under the Securities Act of 1933, as amended, to be offered for sale
in a public offering in accordance with the terms and conditions set forth in
the prospectus included in the Fund's registration statement filed with the
Securities and Exchange Commission on Form S-1, as it may be amended from time
to time.
In this connection, the Fund desires that Man Investments Inc. (the
"General Distributor") act as General Distributor for the sale and distribution
of the offering of Units that has been registered as described above and of any
additional offering of Units that may become registered during the term of this
Agreement.
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows;
1. Representations and Warranties of the Managing Member.
The Managing Member represents and warrants to you as follows:
(a) The Fund is a limited liability company duly organized
pursuant to and validly existing under the laws of the State of Delaware, with
full power and authority to engage in the trading described in its Prospectus.
(b) The Fund has filed with the Securities and Exchange Commission
(the "SEC"), a registration statement on Form S-1 (No. 333-_______), as
initially filed with the SEC on June __, 2005, as amended by Amendment No. 1
thereto filed with the SEC on _______, 2005, as amended by Amendment No. 2
thereto filed with the SEC on ______, 2005, for the registration of the Units
under the Securities Act of 1933, as amended (the "1933 Act"), and has filed one
copy thereof with the National Futures Association (the "NFA") in accordance
with NFA Compliance Rule 2-13 and the rules and regulations of the Commodity
Futures Trading Commission (the "CFTC") under the Commodity Exchange Act, as
amended (the "Commodity Act"). The registration statement as amended and
delivered to all parties hereto at the time it
becomes effective and the prospectus included therein are hereinafter called the
"Registration Statement" and the "Prospectus," respectively, except that (i) if
the Fund files a subsequent post-effective amendment to the registration
statement, then the term "Registration Statement" shall, from and after the
declaration of the effectiveness of such post-effective amendment, refer to the
registration statement as amended by such post-effective amendment thereto, and
the term "Prospectus" shall refer to the prospectus as most recently issued by
the Fund pursuant to the rules and regulations of the SEC promulgated under the
1933 Act (the "SEC Regulations") and (ii) if the Fund files a subsequent
registration statement for the registration of additional Units, then the term
"Registration Statement" shall, from and after the declaration of the
effectiveness of such additional registration statement, refer to the additional
registration statement, and the term "Prospectus" shall refer to the prospectus
as most recently issued by the Fund pursuant to the SEC Regulations.
(c) The Registration Statement and Prospectus contain all
statements and information required to be included therein by the Commodity Act
and the rules and regulations promulgated thereunder. When the Registration
Statement becomes effective under the 1933 Act and at all times subsequent
thereto up to and including each Closing Time (as defined in Section 5(b)), the
Registration Statement and Prospectus will comply in all material respects with
the requirements of the 1933 Act, the Commodity Act, the SEC Regulations and the
rules and regulations of the CFTC and will be accurate and complete in all
material respects. The Registration Statement as of its effective date will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus as of the date of its issue and at all times
subsequent thereto up to and including each Closing Time will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
such statements are made, not misleading.
(d) All action required to be taken by the Fund as a condition to
the sale of the Units to qualified subscribers therefor has been, or prior to
each Closing Time will have been, taken; and, upon payment of the consideration
therefor specified in all accepted subscription agreements for purchases of
Units (collectively, the "Subscription Agreements"), the Units will constitute
valid interests in the Fund.
2. Appointment of General Distributor.
The Fund hereby appoints you as the sole general distributor of Units
in connection with the aforesaid public offering of Units, and the Fund further
agrees from and after the date of this Agreement, that it will not, without your
consent, sell or agree to sell any Units otherwise than through you, [except
that the Fund may itself sell Units without sales charges as an investment to
the officers, trustees or directors and bona fide present and former full-time
employees of Man Entities and to other investors who are identified in the
Prospectus as having the privilege to buy Units of a Class not subject to the
Client Servicing Fee described in the Prospectus.]
3. Sale of Units.
You agree to serve as the general distributor of Units in accordance
with the terms of this Agreement, and to offer Units to investors as agent of
the Fund either directly or through broker-dealers which enter into selling
agreements with you. In connection with the offering of Units, you further agree
that:
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(a) You will use your best efforts to sell Units, provided,
however, that when requested by the Fund at any time because of market or other
economic considerations or abnormal circumstances of any kind, or when agreed to
by mutual consent between you and the Fund, you will suspend such efforts. The
Fund may also withdraw the offering of Units at any time when required by the
provisions of any statute, order, rule or regulation of any governmental body
having jurisdiction. It is understood that you do not undertake to sell all or
any specific number or amount of Units.
(b) You will comply fully with all applicable laws, and the rules
and interpretations of the National Association of Securities Dealers, Inc. (the
"NASD"), the Securities and Exchange Commission (the "SEC"), the Commodity
Futures Trading Commission (the "CFTC"), state securities administrators and any
other regulatory body. In particular, and not by way of limitation, you
represent and warrant that you are familiar with Rule 2810 of the NASD Conduct
Rules and that you will comply fully with all the terms thereof in connection
with the offering and sale of the Units. You will not execute any sales of Units
from a discretionary account over which you have control without prior written
approval of the customer in whose name such discretionary account is maintained.
(c) You will not make offers or sales of Units except in the
manner set forth in the Fund's Registration Statement, and you specifically
agree that if an investor is eligible to invest in a Class of Units for which no
Client Servicing Fee or other compensation is to be paid to you hereunder, you
will nevertheless offer and sell such Class of Units to that investor. We have
established procedures that are to be followed in connection with the offer and
sale of Units and you agree not to make offers or sales of any Units and agree
to require all broker-dealers that enter into selling agreements with you not to
make any such offers or sales except in compliance with such procedures. In this
regard, you agree that:
(i) No sale of Units to any one investor will be for less than the
minimum amount as may be specified in the Prospectus or as the Fund shall advise
you.
(ii) No offer or sale of Units will be made in any state or
jurisdiction, or to any prospective investor located in any state or
jurisdiction, where Units have not been registered or qualified for offer and
sale under applicable state securities laws unless Units are exempt from the
registration or qualification requirements of such laws.
(iii) Sales of Units will be made only to investors who are
"accredited investors," as defined in SEC Regulation Section 501(a), and who
otherwise meet the minimum income and net worth standards as described in the
Prospectus, if any, who you, or the broker-dealers engaged by you, have
reasonable grounds to believe, on the basis of information obtained from the
subscriber concerning, among other things, the subscriber's investment
objectives, other investments, financial situation and needs, that (to the
extent relevant for the purposes of Rule 2810 and giving due consideration to
the fact that the Fund is in no respects a "tax shelter") the subscriber is or
will be in a financial position appropriate to enable the subscriber to realize
to a significant extent the benefits of the Fund, including the tax benefits (if
any) described in the Prospectus; the subscriber has a fair market net worth
sufficient to sustain the risks inherent in participating in the Fund; and the
Units are otherwise a suitable investment for the subscriber. You agree to
maintain such records as are required by the applicable rules of the NASD and
the state securities commissions for purposes of determining investor
suitability. In connection with making the foregoing representations and
warranties, you further represent and warrant that you have, among other things,
examined the following sections in the Prospectus and obtained such
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additional information from the Fund regarding the information set forth
thereunder as you have deemed necessary or appropriate to determine whether the
Prospectus adequately and accurately discloses all material facts relating to an
investment in the Fund and provides an adequate basis to subscribers for
evaluating an investment in the Units:
"Risk Factors"
"Use of Proceeds"
"Management's Discussion and Analysis of the Fund's
Prospective Operations"
"Management of the Fund"
"Performance Information"
"Net Asset Value"
"Fees and Expenses paid by the Fund"
"Redemptions; and Transfers of Units"
"Conflicts of Interest; Transactions Between Man Group and the
Fund"
"Tax Consequences"
"Benefit Plan Investors"
"Futures Markets and Trading Methods"
"Alternative Investment Strategies in General"
"Supplemental Performance Information"
(iv) You will, or will require the broker-dealers engaged by you
to, inform all prospective purchasers of Units of all pertinent facts relating
to the liquidity and marketability of the Units as set forth in the Prospectus.
(v) No offer or sale will be made to any person on the List of
Specially Designated Nationals and Blocked Persons published by the Office of
Foreign Assets Control of the United States Department of Treasury, as such list
may be amended from time to time, or who resides or has a business in any
jurisdiction identified by the Office of Foreign Assets Control.
(vi) You will furnish to prospective investors only such
information concerning the Fund and the offering of Units as may be contained in
the Prospectus or any written supplements thereto, and such other materials as
you have prepared or as may provided to you by the Fund which comply with
applicable laws and regulations. For purposes of the offering of Units, the Fund
will deliver to you as promptly as practicable from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act, such
number of copies of the Prospectus (as amended or supplemented) as you may
reasonably request for the purposes contemplated by the 1933 Act or the SEC
Regulations.
4. Sales Compensation.
Units shall be sold by you at the public offering price described in
the Prospectus, initially, with respect to each Class of Units, $100 per Unit,
and thereafter at Net Asset Value. For each Class A1 Unit and Class B1 Unit sold
by you, Man Investments (USA) Corp., the Managing Member of the Fund, shall pay
to you a Client Servicing Fee equal to 1/12 of 1% of the Net Asset Value of each
such Unit at each month-end (a 1% annual rate), calculated monthly and paid
quarterly in arrears, plus additional sales compensation equal to 1/12 of .25%
of the Net Asset Value of each such Unit at each month-end (a 0.25% annual
rate), calculated monthly and paid quarterly in arrears, in each case, for as
long as such Unit remains outstanding, provided, however that the maximum Client
Servicing Fee and additional sales compensation, in aggregate, payable to you
with respect to any Unit is 10% of the initial sale price of such Unit.
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You shall not be entitled to receive, and neither the Fund nor Man Investments
(USA) Corp. shall pay Client Servicing Fees or additional sales compensation in
respect of any Unit in an amount, in aggregate, in excess of 10% of the initial
sale price of such Unit. Man Investments (USA) Corp., and not the Fund, shall
have sole responsibility for payment of the Client Servicing Fee and additional
sales compensation. You may re-allow all or any portion of the Client Servicing
Fee and additional sales compensation to broker-dealers as you may determine.
5. Purchase of Units.
(a) As General Distributor, you shall have the right to accept or
reject subscriptions for the purchase of Units at your discretion. Any
consideration that you may receive in connection with a rejected subscription
must be returned promptly.
(b) If at least the minimum number of Units of Class A1 and Class
A2 Units or Class B1 or Class B2 Units shall have been so subscribed for, then
on ________, 2005 or (i) at such earlier time after subscriptions for the
minimum number of Units shall have been received as determined by the Managing
Member or (ii) at such later date on or prior to ________, 2005 to which the
Managing Member may extend the initial offering, we shall agree upon a date for
the initial closing of the Fund (not later than five (5) business days after the
end of the Initial Offering Period). Thereafter, Units may continue to be sold
as of the first day of each calendar month, in the discretion of the Fund (each
such date, together with the initial closing date, a "Closing Time").
(c) All payments for subscriptions may be made by wire transfer
pursuant to the wire instructions set forth in the Subscription Agreement or by
subscriber check payable to "_______AS ESCROW AGENT FOR MAN-AHL 130, LLC ESCROW
ACCOUNT NO. ______" maintained at [Bank] (the "Escrow Agent"). Such payments
will be transmitted to the Escrow Agent by Noon, New York time, on the business
day following receipt thereof.
You and the Managing Member may make such other arrangements regarding
the transmission of subscriptions as they may deem convenient or appropriate;
provided that any such arrangement must comply in all relevant respects with SEC
Regulations 10b-9 and 15c2-4.
6. 1933 Act Registration.
The Fund agrees that it will use its best efforts to maintain the
effectiveness of the Registration Statement under the 1933 Act. The Fund further
agrees to prepare and file any amendments to the Registration Statement as may
be necessary and any supplemental data in order to comply with the 1933 Act.
7. State Blue Sky Qualification.
The Fund will take such steps as may be necessary and feasible to
qualify Units for sale in states, territories or dependencies of the United
States, the District of Columbia, and the Commonwealth of Puerto Rico, in
accordance with the laws thereof, and to renew or extend any such qualification;
provided, however, that the Fund shall not be required to qualify Units or to
maintain the qualification of Units in any jurisdiction where it shall deem such
qualification disadvantageous to the Fund. The Managing Member agrees to cause
counsel to the Managing Member, to prepare and deliver to you, a Blue Sky Survey
which shall set forth the United States jurisdictions in which the Units may be
offered and sold. The Managing Member agrees to use
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its best efforts to qualify the Units under the securities or Blue Sky laws of
the various state jurisdictions, and to maintain such qualification during the
term of the offering, provided that the Managing Member reserves the right to
withdraw application for the Units' registration. It is understood and agreed
that you may rely, in connection with the offering and sale of Units in any
United States jurisdiction, on advice given by counsel to the Managing Member as
to the legality of the offer or sale of the Units in such jurisdiction.
8. Duties of General Distributor.
You agree that:
(a) You shall furnish to the Fund any pertinent information
required to be inserted with respect to you as General Distributor within the
purview of the Securities Act of 1933 in any reports or registrations required
to be filed with any governmental authority;
(b) You will not make any representations inconsistent with the
information contained in the Prospectus;
(c) You shall maintain such records as may be reasonably required
for the Fund or its investor servicing agent to respond to member requests or
complaints, and to permit the Fund to maintain proper accounting records, and
you shall make such records available to the Fund and its investor servicing
agent upon request;
(d) In performing your duties under this Agreement, you shall
comply with all requirements of the Fund's Prospectus and all applicable laws,
rules and regulations with respect to the purchase, sale and distribution of
Units; and
(e) Notwithstanding anything to the contrary in this Agreement,
you: (i) maintain anti-money laundering policies that comply with the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 and applicable Federal anti-money laundering
regulations, including steps to verify the identity of prospective subscribers
("AML Laws, Regulations and Policies"); (ii) comply with such AML Laws,
Regulations and Policies; (iii) will promptly deliver to the Fund's notice of
any such AML Laws, Regulations and Policies violation, suspicious activity,
suspicious activity investigation or filed Suspicious Activity Report that
relates to any prospective subscriber for, or purchaser of, Units; and (iv) will
cooperate with and deliver information reasonably requested concerning
subscribers that purchased Units necessary to comply with such AML Laws,
Regulations and Policies.
9. Liability.
To the extent consistent with applicable law, the General Distributor
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by the Fund in connection with the matters to which this Agreement
relates, except a loss resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties, from reckless disregard
of its obligations and duties under this Agreement, or from its failure to
comply with laws, rules and regulations applicable to it in connection with its
distribution of the Units.
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10. Disclaimer of Managing Member and Member Liability.
The General Distributor understands and agrees that the obligations of
the Fund under this Agreement are not binding upon the Managing Member or any
other member of the Fund personally, but bind only the Fund and the Fund's
property; the General Distributor represents that it has notice of the
provisions of the Limited Liability Company Agreement of the Fund disclaiming
Managing Member and member liability for acts or obligations of the Fund.
11. Indemnification.
The Managing Member agrees to indemnify, defend and hold the General
Distributor and its affiliates and brokers and their affiliates that have
entered into selling agreements with the General Distributor free and harmless
from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) that the
General Distributor and its affiliates and brokers and their affiliates that
have entered into selling agreements with the General Distributor may incur, as
the result of acting as distributor for the Fund, under the 1933 Act or under
common law or otherwise, arising out of or based upon (i) any untrue statement,
or alleged untrue statement, of a material fact contained in the Fund's
Registration Statement, (ii) any omission, or alleged omission, to state a
material fact required to be stated in the Fund's Registration Statement to make
the statements in either thereof not misleading or (iii) any Fund-related
advertisement or sales literature that is not in compliance with applicable
laws, rules or regulations (including, but not limited to NASD Conduct Rules);
provided, however, that the Managing Member's agreement to indemnify the General
Distributor and its affiliates and brokers and their affiliates that have
entered into selling agreements with the General Distributor shall not be deemed
to cover any claims, demands, liabilities or expenses arising out of any
statements or representations as are contained in the Fund's Registration
Statement, advertisements or sale literature furnished in writing to the Fund by
the General Distributor and used in the Fund's Registration Statement,
advertisements or sales literature, or arising out of or based upon any omission
or alleged omission to state a material fact in such written information
furnished by the General Distributor which is required to be stated or necessary
to make the information not misleading.
In the event of a formal legal action, the Managing Member shall be
provided with written notice of an action brought against the General
Distributor or its affiliates or brokers or their affiliates that have entered
into selling agreements with the General Distributor, promptly following receipt
of service of the summons or other first legal process. Any failure to promptly
notify the Managing Member will relieve the Managing Member from any liability
which it may have to the person against whom such action is brought, or to any
other person, by reason of any such untrue, or alleged untrue, statement or
omission, or alleged omission for reasons other than on account of the Managing
Member's indemnity obligations under this section if that delay materially
prejudices the Managing Member's ability to defend against the action. The
Managing Member will be entitled to assume the defense of any such action
brought to enforce any such claim, demand or liability if such defense shall be
conducted by counsel of good standing approved by the General Distributor or its
affiliates or brokers or their affiliates that have entered into selling
agreements with the General Distributor, which approval shall not be
unreasonably withheld. In the event the Managing Member elects to assume the
defense of any such suit and retain counsel of good standing so approved, the
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but in any case where the Managing
Member does not elect to assume the defense of any such suit or in
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case the General Distributor or its affiliates or brokers or their affiliates
that have entered into selling agreements with the General Distributor
reasonably withhold approval of counsel chosen by the Managing Member, the
Managing Member will reimburse the General Distributor and its affiliates and
brokers and their affiliates that have entered into selling agreements with the
General Distributor named as defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained by them.
12. Allocation of Costs.
The Fund or the Managing Member shall pay the cost of composition and
printing of sufficient copies of its Prospectus and the expense of registering
Units for sale under federal securities laws and for qualifying such Units under
state blue sky laws pursuant to Section 7. You shall pay the expenses normally
attributable to the sale of Units, including the cost of distributing the
Prospectus to prospective investors in the Fund.
13. Duration.
This Agreement will take effect on the date first set forth above.
Unless earlier terminated pursuant to Section 14 hereof, this Agreement shall
remain in effect for a period of one (1) year from such date and thereafter from
year to year.
14. Termination.
This Agreement may be terminated (i) by the General Distributor at any
time without penalty upon sixty days' written notice to the Fund (which notice
may be waived by the Fund); or (ii) by the Fund at any time without penalty upon
sixty days' written notice to the General Distributor (which notice may be
waived by the General Distributor).
15. Amendment and Assignment.
Any amendment to this Agreement shall be in writing executed by all
parties hereto.
16. Section Headings.
The headings for each section are for descriptive purposes only, and
such headings are not to be construed or interpreted as part of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Man-AHL 130, LLC
By: Man Investments (USA) Corp., its
Managing Member
By:
---------------------------------
Name:
Title:
Man Investments (USA) Corp.
By:
---------------------------------
Name:
Title:
Man Investments Inc.
By:
---------------------------------
Name:
Title:
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