SOLICITING ADVISOR AGREEMENT
Exhibit
1.01
_______________,
2009
Pebble
Management Group, LLC
0000 X
Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
XX 00000
Ladies
and Gentlemen:
This
Solicting Advisor Agreement (the “Agreement”) is hereby entered into by and
between Pebble U. S. Market Fund, LLC, a Louisiana limited liability company
(the "Company"), whose managing partner is Pebble Asset Management, LLC ("XXX"),
and Pebble Management Group, LLC ("PMG", "Agent" or "you"), as
follows:
The
Company is offering (the "Offering") for sale its newly issued units (the
"Units"). It is acknowledged that XXX may, in its sole discretion, regardless of
any priorities or preferences, accept or reject subscriptions in whole or in
part in the Offering and terminate the Offering at any time. Once made,
subscriptions are irrevocable provided that a subscriber may revoke his
subscription within 10 business days prior to the applicable Closing (defined
below), whichever comes first, by the subscriber delivering written notice to
XXX.
The term
"Initial Offering Period" is the period commencing on the date of acceptance of
the registration statement by the Securities and Exchange Commission and ending
on _________________________, 2009 (unless extended by XXX upon amendment of the
Registration Statement (defined below)) or such earlier date as XXX has accepted
subscriptions for at least $500,000 in the Offering. During the Initial Offering
Period, Agent will offer Units for sale at an "Initial Closing" at a price equal
to $1,000 per Unit, which Initial Closing will not take place unless XXX has
accepted subscriptions for at least 500 Units. If the minimum number of Units is
not sold during the Initial Offering Period, the Offering will terminate and all
subscription amounts (together with any interest earned thereon) will be
refunded to subscribers, as described in the Prospectus and
hereinafter.
Units
which remain unsold following the Initial Closing will be offered for sale in a
continuing offering (the "Continuing Offering") at monthly closings ("Monthly
Closings;" the Initial Closing or any Monthly Closing, each a "Closing") to be
held on the last day of each month at a price per Unit equal to 100% of the Net
Asset Value, as defined in the Company's subscription agreement and prospectus
and disclosure document (the "Subscription Agreement"), as of the close of
business on the date of such Monthly Closing.
The
minimum initial subscription for an investor is $5,000. Once an investor has
been admitted to the Company, there is no minimum for additional subscriptions,
except that they must be in multiples of $1,000.
The
Company has filed with the Securities and Exchange Commission (the "Commission")
a Registration Statement on Form S-1 containing a prospectus relating to the
Offering for the registration of the Units under the Securities Act of 1933, as
amended (the "1933 Act"). The Registration Statement, as amended and as declared
effective by the Commission, is hereinafter referred to as the "Registration
Statement." The prospectus on file with the Commission at the time the
Registration Statement initially becomes effective is hereinafter called the
"Prospectus," except that if the Company files a Prospectus pursuant to Rule 424
of the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") which differs from the Prospectus on file at the time the
Registration Statement initially becomes effective, or if the Company files an
amendment to the Registration Statement subsequent to the time it initially
becomes effective and such amendment contains a Prospectus which differs from
the Prospectus on file at the time the Registration Statement initially becomes
effective, the term "Prospectus" refers to the Prospectus filed pursuant to Rule
424 or contained in such amendment to the Registration Statement from and after
the time said Prospectus is filed with or transmitted to the Commission for
filing.
Any terms
not expressly defined herein have the same definition and meaning as is set
forth in the Prospectus.
Subject
to the terms and conditions herein set forth, the Company hereby appoints PMG as
its exclusive marketing agent to consult with and advise the Company, and, on a
"best efforts" basis, to assist the Company with the solicitations of
subscriptions for Units in connection with the Company's offering of the Units.
Agent will offer and sell Units in compliance with the requirements set forth in
the Registration Statement, the Prospectus, the Subscription Agreement and this
Agreement.
On the
basis of the representations, warranties and agreements herein contained, and
subject to the terms and conditions herein set forth, PMG accepts such
appointment and agrees to consult with and advise the Company as to matters
relating to the Offering and agrees to use its best efforts to solicit
subscriptions for Units in accordance with this Agreement; provided, however,
that the Agent will not be responsible for obtaining subscriptions for any
specific number of Units, will not be required to purchase any Units and will
not be obligated to take any action which is inconsistent with any applicable
law, regulation, decision or order or decree, directive, agreements or
memorandum of or with any court, regulatory body, administrative agency, or
other government body. Units will be offered by means of Subscription Documents,
substantially in the respective forms set forth as Exhibit C to the
Prospectus.
The
parties agree that Units may be sold by the Agent or by other SEC or state
registered investment advisors appointed by the Agent (each an "Additional
Soliciting Advisor"), provided that each such other registered investment
advisor executes an Additional Soliciting Advisor Agreement in the form attached
hereto as Exhibit A. The Soliciting Agent and each Additional Soliciting Advisor
will notify the Company of the identity of the investment advisor representative
of the Agent or Additional Soliciting Advisor, as the case may be, credited with
the sale of each Unit (such investment advisor representative being referred to
as the "Responsible Advisor" and such Unit being referred to as a "Credited
Unit").
The
Soliciting Agent and each Additional Soliciting Advisor will agree diligently to
make inquiries of each prospective purchaser of Units concerning the suitability
of such an investment for such person and to retain in its records and make
available to the Company for a period of a least six years, information
establishing that an investment in Units is suitable for each purchaser of Units
solicited by them.
SECTION
2. COMPENSATION OF THE SOLICITING AGENT, ADDITIONAL SOLICITING ADVISORS AND
RESPONSIBLE ADVISORS
As
compensation for the Agent's services under this Agreement or an Additional
Soliciting Advisor's services under an Additional Soliciting Advisor Agreement,
the Company will pay to the Agent or such Additional Soliciting Advisor, as the
case may be, an annual 1.50% advisory fee payable at the rate of 1/12 of 1.50%
per month of the month-end net asset value of the Company.
To be
eligible to receive such advisory fee, the Responsible Advisor must, at the date
of payment, be an investment advisor representative of a SEC or state registered
investment advisor that is registered with the Commission (such requirements
being referred to as the "Eligibility Requirements").
Once you
or an Additional Soliciting Advisor sell Units to a particular investor, you or
such Additional Soliciting Advisor will be entitled to a advisory fee on any
Units subsequently purchased by that investor, and such units will be deemed
Credited Units of the Responsible Advisor, for which he will be entitled to a
advisory fee so long as he satisfies the Eligibility Requirements.
The
appointment of the Agent hereunder will terminate upon completion or termination
of the Offering.
(a) The
Initial Closing for the acceptance of subscriptions for Units is currently
scheduled to be held on or before_______________________. Monthly Closings in
the Continuing Offering for Units will be held as of the last day of each
month.
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(b)
Subject to its right to reject any subscription in its sole discretion in whole
or in part at any time prior to acceptance, XXX, on behalf of the Company, will
accept subscriptions for Units properly made and cause proper entry to be made
in the Unit register to be maintained by the XXX. No certificate evidencing
Units will be issued to any subscriber; rather, Agent will deliver confirmations
in its customary form to subscribers whose subscriptions have been accepted by
the XXX at each Closing.
(c) At
each Closing, the delivery, receipt, and acceptance of subscriptions for Units
will be subject to the terms and conditions set forth in this Agreement,
including payment of the full subscription price for Units and delivery of
properly completed Subscription Documents by each subscriber.
(d) Upon
the satisfaction of such terms and conditions, the aggregate subscription price
for Units will be paid and delivered to the Company at each
Closing.
The
Company and XXX represent and warrant to the Agent as follows:
(a) The
Company intends to file the Registration Statement with the Commission or
before_________________, 2009. The Company also intends to file copies of the
Registration Statement with (i) the CFTC under the Commodity Exchange Act (the
"CEA") and the rules and regulations promulgated thereunder by the CFTC (the
"CFTC Rules"); and (ii) the National Futures Association (the "NFA") in
accordance with NFA Compliance Rule 2-13. At the time the Registration Statement
becomes effective and at all times thereafter, including the Initial Closing and
each Monthly Closing, the Registration Statement shall comply in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations, the
CEA, the CFTC Rules, and the rules of the NFA. The Registration Statement and
the Prospectus contain all statements and information required to be included
therein by the CEA and the CFTC Rules. The Registration Statement, the
Prospectus, and any Sales Information (as such terms are defined previously
herein or in Section 7 hereof) authorized by the Company for use in connection
with the Offering does 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, in light of the circumstances under which they were
made, not misleading, and, if applicable, at such later time as any Prospectus
was filed with or mailed to the Commission for filing, the Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading, provided, however, that the
representations and warranties in this Section 4(a) will not apply to statements
in or omissions from such Registration Statement, Prospectus or any Sales
Information made in reliance upon and in conformity with information furnished
to the Company by the Agent expressly regarding the Agent for use in the
Prospectus or Sales Information, which information includes the disclosure
included in the Prospectus under the caption "THE SOLICITATION ADVISORS." The
Sales Information will comply with the 1933 Act, the 1973 Act Regulations, the
CEA, the CFTC Rules and the Rules of the NFA.
(b) The
Subscription Documents provides for the subscription for and sale of the Units;
all action required to be taken by XXX and the Company as a condition to the
sale of the Units to qualified subscribers therefore has been, or prior to each
Closing will have been, taken; and, upon payment of the consideration therefore
specified in each accepted Subscription Documents, the Units will constitute
valid interests in the Company for which Units were subscribed.
(c) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Louisiana with full
power and authority to conduct its business as described in the Prospectus, and
has been duly qualified to do business under the laws of, and is in good
standing as such in, every jurisdiction where the conduct of its business
requires such qualification, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or the
business, operations or income of the Company (a "Material Adverse
Effect").
(d) XXX
is a limited liability company duly organized, validly existing, and in good
standing under the laws of Louisiana, and is qualified to do business and is in
good standing under the laws of each jurisdiction in which the nature or conduct
of its business requires such qualification and where the failure to be so
qualified could materially adversely affect PAM's ability to perform its
obligations hereunder or under the Subscription Documents or as described in the
Prospectus.
(e) Each
of the Company and XXX has full power and authority, as applicable, under
applicable law, to conduct its business and perform its respective obligations,
as applicable, under this Agreement and all other agreements referred to in the
Prospectus or the Registration Statement to which the Company or XXX is a
party.
(f) XXX
will have a net worth at each Closing sufficient in amount and satisfactory in
form to meet the net worth requirements set forth in the
Prospectus.
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(g) The
Company does not own, directly or indirectly, other than in the ordinary course
of its business, equity securities or any equity interest in any business
enterprises.
(h) McGladrey & Xxxxxx, LLP, the firm which has issued its reports on
certain financial statements included in the Registration Statement and the
Prospectus, is an independent certified public accountant within the meaning of
the Code of Professional Conduct of the American Institute of Certified Public
Accountants and are independent accountants as required by the 1933 Act and the
1933 Act Regulations.
(i) This
Agreement, and all other agreements referred to in the Prospectus or the
Registration Statement to which the Company or XXX is a party have each been
duly and validly authorized, executed and delivered by XXX on behalf of the
Company and XXX, as applicable, and each constitutes a valid and binding
agreement of the Company and XXX, as applicable, enforceable against the Company
and XXX, as applicable, in accordance with its terms except to the extent
limited by bankruptcy, reorganization, insolvency, moratorium and other laws of
general application relating to or affecting the enforcement of creditors'
rights and by general equitable principles and except as rights to indemnity
hereunder may be limited by applicable securities laws. The Company has full
power and lawful authority to issue and sell the Units to be sold by it
hereunder on the terms and conditions set forth herein, all necessary corporate
proceedings therefore have been duly and validly taken, and no consent,
approval, authorization or other order of any governmental authority is required
in connection with such authorization, execution and delivery or with the
authorization, issue and sale of the Units, except such as may be required under
the 1933 Act or state securities laws.
(j) The
Units have been duly and validly authorized and, when issued and delivered
pursuant to this Agreement, will be duly and validly issued, fully paid and
non-assessable. The Units are not subject to preemptive rights of any security
holder of the Company.
(k) The
consummation of the transactions herein contemplated and the fulfillment of the
terms of this Agreement, and all other agreements referred to in the Prospectus
or the Registration Statement to which the Company or XXX is a party, to be
performed by the Company and XXX, as applicable, will not conflict in any
material respect with or result in a material breach of any of the terms or
provisions of, or constitute a material default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the property or
assets of the Company or XXX pursuant to the terms of any indenture, mortgage,
deed of Company, agreement for money borrowed or any other material agreement or
instrument to which the Company or XXX is a party, or by which the Company or
XXX may be bound, or to which any of the property or assets of the Company or
XXX are subject, nor will such action result in any violation of the provisions
of the charter or the bylaws, certificate of limited Company or Company
agreement, as applicable, of the Company or XXX, or any statute or any order,
rule or regulation applicable to the Company or XXX of any court or any
regulatory authority or other governmental body having jurisdiction over the
Company or XXX, assuming satisfaction by the Agent of the terms of this
Agreement and full compliance by the Agent and any other SEC or state registered
investment advisors and their associated persons with all applicable statutes,
orders, rules, or regulations in connection with the Offering.
(l) The
financial statements of the Company and XXX, together with the related notes
thereto, set forth in the Registration Statement and the Prospectus, fairly
present the financial position and results of operations of the Company and XXX
on the basis stated in the Registration Statement, at the respective dates and
for the respective periods to which they apply. Such statements and related
notes are accurate, complete and correct, comply as to form in all material
respects with all applicable accounting requirements, including the 1933 Act
Regulations, have been prepared in accordance with generally accepted accounting
principles ("GAAP"), which were consistently applied throughout the periods
involved, except as otherwise disclosed therein. Since the date of the
statements of financial condition included in the Registration Statement, except
as contemplated in the Prospectus, no events have occurred that have had a
Material Adverse Effect. The summaries of such financial statements and other
financial, statistical and pro forma information and related notes set forth in
the Registration Statement and the Prospectus are (i) accurate and correct and
fairly present the information purported to be shown thereby at the dates and
for the periods indicated on a basis consistent with the audited financial
statements of the Company and XXX and (ii) in compliance in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(m)
Except as disclosed in the Registration Statement and Prospectus, there is not
now pending or, to the knowledge of XXX, threatened, any action, suit or
proceeding, before or by any court, governmental agency or body or
self-regulatory organization to which XXX, any "principals" of XXX, as defined
in CFTC Rule 4.10(e) ("XXX Principals") or the Company is a party, which might
result in a Material Adverse Effect, nor is XXX aware of any facts which would
form the basis for the assertion of any material claim or liability that are not
disclosed in the Registration Statement and Prospectus, and neither XXX nor any
XXX Principal has received any notice of an investigation by the Commission, the
CFTC, or the NFA regarding noncompliance by XXX, the XXX Principals or the
Company with the 1933 Act, the 1933 Act Regulations, the Securities Exchange Act
of 1934, as amended (the "1934 Act"), any other federal securities laws, rules
or regulations, the CEA, the CFTC Rules, or the rules of the NFA, which action,
suit, proceeding, or investigation resulted or might reasonably be expected to
result in any material adverse change in the condition, financial or otherwise,
business or prospects of XXX or of the Company, or which could be material to an
investor's decision to invest in any of the Company.
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(n) XXX
and each "principal" of XXX, as defined in CFTC Rule 3.1(a), have all federal,
state, regulatory, self-regulatory, and exchange approvals, licenses,
registrations, and memberships, and have effected all filings with federal and
state regulators, self-regulatory organizations, and exchanges required to
conduct their business and to act as described in the Registration Statement and
the Prospectus, or required to perform their obligations under this Agreement
and all other agreements referred to in the Prospectus or the Registration
Statement to which the Company or XXX is a party. XXX is registered as a
commodity pool operator under the CEA and is a member in good standing of the
NFA. PAM's principals identified in the Prospectus are all of PAM's
Principals.
(o) To
the extent required under CFTC Rules and applicable CFTC staff no-action
letters, the actual performance of all pools "operated" within the meaning of
the CEA by XXX and of PAM's Principals is disclosed in the
Prospectus.
(p) The
Company and XXX have filed all necessary federal, state, and local income and
franchise tax returns and have paid, or are contesting in good faith, all taxes
shown as due thereon; and XXX has no knowledge of any tax deficiency which has
been or might be asserted against the Company or XXX, which would result in a
Material Adverse Effect.
(q) All
contracts and other documents of the Company or XXX which are, under the 1933
Act Regulations, required to be filed as exhibits to the Registration Statement
have been so filed.
(r) The
conduct of the businesses of the Company and XXX is in compliance in all
respects with applicable federal, state, local and foreign laws and regulations,
except where the failure to be in compliance would not have a Material Adverse
Effect. The Company and XXX are in possession of all necessary licenses,
permits, consents, certificates, orders, and other governmental authorizations
currently required for the conduct of their respective businesses, except where
failure to obtain such licenses, permits, consents, certificates, orders or
other governmental authorizations would not have a Material Adverse Effect, and
all such licenses, permits, consents, certificates, orders and other
governmental authorizations are in full force and effect and neither the Company
nor XXX has received any notice of proceedings related to the revocation or
modification thereof, and the Company and XXX are in all material respects
complying therewith; the expiration of any such licenses, permits, consents,
certificates, orders and other governmental authorizations would not materially
affect their operations; and none of the activities or businesses of the Company
or XXX is in violation of, or causes the Company or XXX to violate, any material
law, rule, regulation or order of the United States, any state, county or
locality, or any agency or body of the United States or of any state, county or
locality.
(s)
Neither the Company nor XXX is in violation, breach or default of or under its
charter or bylaws, certificate of limited Company or limited Company agreement,
as applicable, or any material bond, debenture, note or other evidence of
indebtedness or any material contract, agency agreement, indenture, mortgage,
loan agreement, lease, joint venture or other material agreement or instrument
to which the Company or XXX is a party or by which it or any of its properties
may be bound, or is in material violation of any federal, foreign, state or
local law, order, rule, regulation, writ, injunction or decree of any
government, governmental instrumentality or court, which violation would have a
Material Adverse Effect.
(t) The
Company and XXX will make and keep accurate books and records reflecting their
respective assets and maintain internal accounting controls which provide
reasonable assurance that (i) transactions are executed with management's
authorization; (ii) transactions are recorded as necessary to permit preparation
of the Company's consolidated financial statements and to maintain
accountability for the assets of the Company and XXX; (iii) access to the assets
of the Company and XXX is permitted only in accordance with management's
authorization; and (iv) the reported accountability of the assets of the Company
and XXX is compared with existing assets at reasonable intervals.
(u) The
Company knows of no outstanding claims for finder's, origination or underwriting
fees with respect to the sale of the Units except as contemplated
herein.
(v) All
material transactions between the Company or XXX and the officers, directors,
partners or shareholders who beneficially own more than 5% of any class of the
Company's voting securities required to be disclosed under the rules of the
Commission, have been accurately disclosed in the Registration Statement and the
Prospectus, and, except as noted therein, the terms of each such transaction are
fair to the Company and no less favorable to the Company than the terms that
could have been obtained from unrelated parties.
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(w) The
Company will not take, directly or indirectly, any action (and does not know of
any action taken by its managers, officers, unit holders or others) designed to
or which has constituted or which might reasonably be expected to cause or
result in, under the 1934 Act, stabilization or manipulation of the price of any
security of the Company to facilitate, the sale or resale of the
Units.
Any
certificate signed by an officer of XXX and delivered to the Agent or its
counsel that refers to this Agreement will be deemed to be a representation and
warranty by XXX to the Agent as to the matters covered thereby with the same
effect as if such representation and warranty were set forth
herein.
The
Company and XXX hereby covenant with the Agent as follows:
(a) The
Company will not, at any time before or after the Registration Statement,
including any supplement filed pursuant to Rule 424 under the 1933 Act, is
declared effective by the Commission file any amendment to such Registration
Statement without so notifying the Agent and without providing the Agent a
reasonable opportunity to review such amendment.
(b) The
Company will immediately upon receipt of any information concerning the events
listed below notify the Agent and promptly confirm the notice in
writing:
(i) of
the receipt of any comments from the Commission, or any other governmental
entity having authority with respect to the transactions contemplated by this
Agreement;
(ii) any
requests by the Commission or any other governmental entity having authority for
any amendment or supplement to the Registration Statement or for additional
information;
(iii) of
the issuance by the Commission or any other governmental entity having authority
of any order or other action suspending the Offering or the use of the
Registration Statement or the Prospectus;
(iv) the
issuance by the Commission or any state authority having jurisdiction of any
stop order suspending the effectiveness of the Registration Statement or of the
initiation or threat of initiation or threat of any proceedings for that
purpose; or
(v) of
the occurrence of any event mentioned in paragraph (g) below.
The
Company will make every reasonable effort to prevent the issuance by the
Commission or any state authority having jurisdiction of any such order and, if
any such order at any time is issued, to obtain the lifting thereof at the
earliest possible time.
(c) The
Company will give the Agent notice of its intention to file, and reasonable time
to review prior to filing, any amendment or supplement to the Registration
Statement or the Prospectus.
(d) The
Company has delivered or will deliver to the Agent and to its counsel two
complete conformed copies (including all exhibits) of the Registration
Statement, as originally filed and each amendment thereto.
(e) The
Company will furnish to the Agent, without charge, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of such Prospectus (as amended or supplemented)
as the Agent may reasonably request for the purposes contemplated by the 1933
Act or the 1934 Act or the respective applicable rules and regulations of the
Commission there under. The Company authorizes the Agent to use the Prospectus
(as amended or supplemented, if amended or supplemented) for any lawful manner
in connection with the sale of the Units by the Agent.
(f) The
Company will comply in all material respects with the 1933 Act Regulations, the
1934 Act and the rules and regulations of the Commission promulgated under the
1934 Act (the "1934 Act Regulations"), and all other applicable laws (including
state Blue Sky laws) to be complied with prior to, at, and subsequent to each
Closing. During the periods prior to each Closing and when the Prospectus is
required to be delivered, the Company will comply in all material respects, at
its own expense, with all requirements imposed upon it by the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations, in each case as from
time to time in force, in accordance with the provisions hereof and the
Prospectus.
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(g) If,
at any time during the period when the Prospectus relating to the Units is
required to be delivered (including the period after the Initial Closing and
prior to each Monthly Closing), any event relating to or affecting the Company
occurs, as a result of which it is necessary or appropriate, in the reasonable
good faith opinion of the Agent's counsel, to amend or supplement the
Registration Statement or Prospectus in order to make the Registration Statement
or Prospectus not misleading in light of the circumstances existing at the time
it is delivered to a purchaser, the Company will, at its expense, forthwith
prepare, file with the Commission and furnish to the Agent a reasonable number
of copies of an amendment or amendments of, or a supplement or supplements to,
the Registration Statement or Prospectus (in form and substance satisfactory to
the Agent and its counsel after a reasonable time for review) which will amend
or supplement the Registration Statement or Prospectus so that as amended or
supplemented it will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading. For the purpose of this Agreement, the Company will
timely furnish to the Agent such information with respect to itself as the Agent
may from time to time reasonably request.
(h) If
required, the Company will take all necessary actions, in cooperation with you,
to qualify or register the Units for offering and sale by the Company under the
applicable securities or Blue Sky laws of each jurisdiction as you may
reasonably designate, provided, however, that the Company will not be obligated
to qualify to do business in any jurisdiction in which it is not so qualified.
In each jurisdiction where any of the Units has been qualified or registered as
above provided, the Company will make and file such statements and reports in
each fiscal period as are or may be required by the laws of such
jurisdictions.
(i)
During the period which the Units are registered under the 1934 Act or for the
three years from the final Closing, whichever period is greater, the Company
will furnish to its unit holders as soon as practicable after the end of each
fiscal year an annual report (including a consolidated statement of financial
condition and consolidated statements of income or operations, changes in
shareholders' equity and cash flows of the Company and XXX as at the end of and
for such year, certified by independent public accountants in accordance with
Regulation S-X under the 1933 Act).
(j) The
Company will use the net proceeds from the sale of the Units in the manner set
forth in the Prospectus under the caption "Use of Proceeds."
(k) Other
than as permitted by the 1933 Act, the 1933 Act Regulations and the laws of any
state in which the Units are qualified for sale, the Company will not distribute
any Prospectus, offering circular or other offering material in connection with
the offer and sale of Units.
(l) The
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earning statement (in form complying with the provisions of Rule 158
of the regulations promulgated under the 0000 Xxx) covering a twelve-month
period beginning not later than the first day of the Company's fiscal quarter
next following the effective date (as defined in such Rule 158) of the
Registration Statement.
(m) The
Company will file, if required, with the Commission such reports on Form SR as
may be required pursuant to Rule 463 under the 1933 Act.
(n) The
Company will register the Units under Section 12(g) of the 1934 Act when
appropriate and will not deregister the Units for a period of at least three
years thereafter, unless such registration is no longer required.
(o) Prior
to each Closing, the Company will conduct its business in compliance in all
material respects with all applicable federal and state laws, rules,
regulations, decisions, directives and orders including, without limitation, all
decisions, directives and orders of the NFA and the CFTC.
(p) The
Company will not, prior to each Closing, incur any liability or obligation,
direct or contingent, or enter into any material transactions, other than in the
ordinary course of business, except as contemplated by the
Prospectus.
(q) The
representations and warranties made in this Agreement will be true and correct
as of the date hereof and as of each Closing.
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The
Company agrees to pay or cause to be paid and reimburse the party making payment
for all expenses incident to the performance of the obligations of the Company
under this Agreement, including, without limitation, the following: (i) the fees
and disbursements of the Company's counsel, accountants and other advisors; (ii)
the qualification of the Units under all applicable securities or Blue Sky laws,
including filing fees and the fees and disbursements of counsel in connection
therewith and in connection with the preparation of a Blue Sky memorandum; (iii)
the printing and delivery to the Agent in such quantities as the Agent
reasonably request of copies of the Registration Statement and the Prospectus,
as amended or supplemented and all other documents in connection with this
Agreement; (iv) filing fees incurred in connection with the review of the
Offering by the Commission, CFTC and the NFA.
The
Company agrees to pay PMG 1.25% on an annual basis, 1/12th of
1.25% payable monthly, to promote the sales of the Company units, process and
retain all subscription documents and redemption requests for a period of no
less than 6 years from the initial subscription or related request, and produce
and deliver all required monthly statements, reports, and other information as
required by the Prospectus. The Company and XXX will be provided full and
unfettered access to all documents on a continuous basis.
(a) The
Company agrees to indemnify and hold harmless the Agent and any Additional
Soliciting Advisor, its respective officers, directors, agents, servants and
employees and each person, if any, who controls the Agent within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
loss, liability, claim, damage or expense whatsoever (including but not limited
to settlement expenses), joint or several, that any indemnified party may suffer
or to which any indemnified party may become subject under all applicable
federal and state laws or otherwise, and to promptly reimburse any indemnified
party upon written demand for any expenses (including fees and disbursements of
counsel) incurred by such indemnified party in connection with investigating,
preparing or defending any actions, proceedings or claims (whether commenced or
threatened) to the extent such losses, claims, damages, liabilities or actions:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in (a) the Registration Statement (or any
amendment or supplement thereto), the Prospectus (or any amendment or supplement
thereto), (b) any application or other instrument or document of the Company or
based upon written information supplied by the Company or their representatives
filed in any state or jurisdiction to register or qualify any or all of the
Units under the securities laws thereof (collectively, the "Blue Sky
Application"), or (c) any application or other document, advertisement, oral
statement, or communication ("Sales Information") prepared, made or executed by
or, with its consent, on behalf of the Company, or based upon written or oral
information furnished by, or with its consent, on behalf of the Company, in
connection with or in contemplation of the transactions contemplated by this
Agreement; (ii) arise out of or are based upon the omission or alleged omission
to state in any of the foregoing documents or information a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; or (iii)
arise from any theory of liability whatsoever relating to or arising from or
based upon the Registration Statement (or any amendment or supplement thereto),
preliminary or final Prospectus (or any amendment or supplement thereto), Blue
Sky Application or Sales Information or other documentation distributed in
connection with the Offering; provided, however, that no indemnification is
required under this paragraph (a) to the extent such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statements or
alleged untrue statements in, or material omission or alleged material omission
from, the Registration Statement (or any amendment or supplement thereto),
Prospectus or Sales Information made in reliance upon and in conformity with
information furnished to the Company by the Agent regarding PMG expressly for
use in the Prospectus.
(b) The
Agent agrees to indemnify and hold harmless the Company, its directors,
officers, agents, servants and employees, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act, against any and all loss, liability, claim, damage or expense
whatsoever (including but not limited to settlement expenses), joint or several,
that the Company or any of them may suffer or to which the Company or any of
them may become subject under all applicable federal and state laws or
otherwise, and to promptly reimburse the Company and any such persons upon
written demand for any expenses (including fees and disbursements of counsel)
incurred by the Company or any of them in connection with investigating,
preparing or defending any actions, proceedings or claims (whether commenced or
threatened) to the extent such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any amendment or
supplement thereto) or the Prospectus (or any amendment or supplement thereto),
the Sales Information, or arise out of or are based upon the omission or alleged
omission to state in any of the foregoing documents a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that your obligations under this Section 7(b) will exist only if, and only to
the extent, that such untrue statement or alleged untrue statement was made in,
or such material fact or alleged material fact was omitted from the Registration
Statement (or any amendment or supplement thereto) or the Prospectus (or any
amendment or supplement thereto) or the Sales Information in reliance upon and
in conformity with information furnished to the Company by the Agent expressly
for use in the Prospectus.
8
(c) Each
indemnified party must give prompt written notice to each indemnifying party of
any action, proceeding, claim (whether commenced or threatened), or suit
instituted against it in respect of which indemnity may be sought hereunder. No
indemnification will be available to any party who fails to give notice as
provided in this Section 7(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but otherwise the omission so to
notify the indemnifying party will not relieve it from any liability that it may
have to an indemnified party under this Section 7. An indemnifying party may
participate at its own expense in the defense of such action. In addition, if it
so elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified parties that are defendants in such action, and such indemnified
parties will not be liable for any fees and expenses of such counsel for the
indemnified parties incurred thereafter in connection with such action,
proceeding or claim, other than reasonable costs of investigation. In any
action, proceeding or claim, the indemnified party will have the right to retain
its own counsel, but the fees and disbursements of such counsel will be at its
own expense unless (i) the parties to any such action, proceeding or claim
include both the indemnifying party and the indemnified party and (ii)
representation of both parties by the same counsel reasonably would be deemed
inappropriate due to actual or potential conflicting interests between them. In
no event will the indemnifying parties be liable for the fees and expenses of
more than one separate firm of attorneys (other than any special counsel that
said firm may retain) for each indemnified party in connection with any one
action, proceeding or claim or separate but similar or related actions,
proceedings or claims in the same jurisdiction arising out of the same general
allegations or circumstances.
In order
to provide for just and equitable contribution in circumstances in which the
indemnification provided for in Section 7 is due in accordance with its terms
but is for any reason held by a court to be unavailable from the Company or the
Agent, the Company or the Agent will contribute to the aggregate losses, claims,
damages and liabilities (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting any contribution
received by the Company or the Agent from persons other than the other party
thereto, who may also be liable for contribution) to the party entitled to
indemnification in such proportion so that the Agent is responsible for that
portion represented by the percentage that the fees paid to the Agent pursuant
to Section 1 of this Agreement (not including expenses) bears to the gross
proceeds received by the Company from the sale of the Units in the Offering and
the Company will be responsible for the balance. If, however, the allocation
provided above is not permitted by applicable law, then each indemnifying party
will contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Agent on the other in
connection with the statements or omissions which resulted in such losses,
claims, damage or liabilities (or actions, proceedings or claims in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Agent on the other will
be deemed to be in the same proportion as the total gross proceeds from the
Offering (before deducting expenses) received by the Company bears to the total
fees (not including expenses) received by the Agent. The relative fault will be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or other omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or the Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Agent agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to above in this Section 8. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions, proceedings or claims in respect thereof
referred to above in this Section 8 will be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action, proceeding or claim. It is expressly
agreed that the Agent will not be liable for any loss, liability, claim, damage
or expense or be required to contribute any amount which in the aggregate
exceeds the amount paid to the Agent under the Agreement. It is understood that
the above-stated limitation on the Agent's liability is essential to the Agent
and that the Agent would not have entered into this Agreement if such limitation
had not been agreed to by the parties to this Agreement. No person found guilty
of any fraudulent misrepresentation (within the meaning of Section 11 (f) of the
0000 Xxx) will be entitled to contribution from any person who was not also
found guilty of such fraudulent misrepresentation. The obligations of the
Company and the Agent under this Section 8 and under Section 7 hereof will be in
addition to any liability which the Company and the Agent may otherwise have.
For purposes of this Section 8, each of the Agent's officers and directors and
each person, if any, who controls the Agent within the meaning of the 1933 Act
and the 1934 Act will have the same rights to contribution as each officer and
director of the Company and each person, if any, who controls the Company within
the meaning of the 1933 Act and the 1934 Act, and each officer and director of
the Agent or the Company, will have the same rights to contribution as the Agent
or the Company, respectively. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action, suit, claim or proceeding
against such party in respect of which a claim for contribution may be made
against another party under this Section 8, will notify such party from whom
contribution may be sought. No person will be entitled to contribution hereunder
who fails to give notice as provided in this Section 8 if the party to whom
notice was not given was unaware of the proceeding to which such notice would
have related and was prejudiced by the failure to give such notice, but
otherwise the omission so to notify the party from whom contribution is sought
will not relieve it from any liability that it may have to a party seeking
contribution under this Section 8.
(a) In
the event that at least 500 Units are not sold by the end of the Initial
Offering Period, this Agreement will terminate and any such termination will be
without liability of any party to any other party except as otherwise provided
in Sections 1, 6, 7 and 8 hereof.
9
(b) In
the event the Company elects not to accept any subscriptions for Units in the
Offering, this Agreement will terminate upon refund by the Company to each
person who has ordered any of the Units the full amount which it may have
received from such persons and no party to this Agreement will have any
obligation to the other hereunder, except for the Company's obligations under
Sections 1, 6, 7 and 8 hereof.
The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Agent, as set forth in this Agreement, will
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the Agent or any of
its officers or directors or any person controlling the Agent, or the Company or
any officer, director or person controlling the Company, and will survive
termination of the Agreement, except as otherwise provided in Sections 1, 6, 7
and 8 hereof, and the receipt or delivery of any payment for the
Units.
Notices
hereunder, except as otherwise provided herein, must be given in writing or by
telegraph, addressed (a) to the Agent at 0000 X Xxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxx, XX 00000 (Attention: Manager) with a copy (which will not constitute
notice) to Milling, Benson, and Xxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, XX 00000-0000 (Attention: Xxxxxxxx Xxxxxxxx, Esq.).
This
Agreement is made solely for the benefit of and will be binding upon the parties
hereto and their respective successors and the controlling persons, directors
and officers referred to in Section 7 hereof and no other person will have any
right or obligations hereunder. The term "successor" does not include any
purchaser of any of the Units.
This
Agreement will be governed by and construed in accordance with the laws of the
State of Louisiana.
This
Agreement may be signed in various counterparts which together will constitute
one agreement.
If the
foregoing correctly sets forth the arrangement among the Company and the Agent,
please indicate acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance will constitute a binding
agreement.
Very
truly yours,
Pebble U.
S. Market Fund, LLC
By:
|
Pebble
Asset Management, LLC,
|
||
Its
Manager
|
|||
By:
|
|
Date:
|
|
Xxxxxxx
Xxxxxxxx
|
|||
Manager
|
|||
Accepted
as of the date first above written.
|
|||
Pebble
Management Group, LLC
|
|||
By:
|
|
Date:
|
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Xxxxxxx
Xxxxxxx
|
|||
Manager
|
10
Exhibit
A
ADDITIONAL
SOLICITING ADVISOR AGREEMENT
This
Additional Soliciting Advisor Agreement (the “Agreement”) is made between Pebble
Management Group, LLC (“PMG”) and ____________________________________ (the “RIA”), this
_____day of ______________ 20___.
PMG
hereby invites the RIA to participate as an additional soliciting advisor on a
non-exclusive, non-transferable and non-assignable basis to offer for sale Units
of the Pebble U. S. Market Fund, LLC (the “Units”), PMG investment advisory,
and/or 401(k) retirement advisory services. The RIA hereby accepts such
invitation and agrees to participate in such offer for sale on the terms and
conditions set out in this Agreement.
The RIA
warrants that it has obtained all necessary licenses and authorizations of all
applicable authorities to engage in the activities covered by this Agreement and
the RIA shall immediately inform PMG in writing if at any time such license or
authorization expires or is withdrawn. The RIA acknowledges its understanding
that it is not entitled to any compensation hereunder for any period during
which it has been suspended or expelled from necessary licensing or
authorization by any or all of the applicable authorities. The RIA shall
immediately notify PMG in writing of any suspension or expulsion by an
applicable authority.
The RIA
agrees to offer, sell and distribute Units in the Pebble U. S. Market Fund, LLC,
PMG investment advisory, and/or 401(k) retirement advisory services only in such
states or territories where it is permitted to offer, sell and distribute any of
the products or services offered through PMG. RIA may not contract or engage any
other person or organization to solicit clients on behalf of PMG unless such
other person or organization enters into an Agreement with PMG that conforms to
the requirements of the Securities Act of 1933 and Department of Labor Laws, as
amended, and the rules thereunder.
RIA
agrees to regularly communicate with the clients regarding their investment
account and inform PMG if the client’s financial condition or investment
objectives have changed.
Pebble
Asset Management, LLC (XXX), through PMG, reserves the right to cancel or refuse
or terminate, in whole or in part, any instruction or application to subscribe
for Units or contract for purchase of any Units. RIA agrees that no compensation
will be due or owing to the RIA on any transactions which are refused or
cancelled. In addition, PMG reserves the right to cancel or refuse or terminate,
in whole or in part, any client account with PMG for any reason.
RIA shall
perform the services hereunder as an independent contractor and not as an
employee of PMG. Nothing in the Agreement shall constitute or is deemed to
constitute a partnership, joint venture, agency, trust, formal business
organization, separate legal entity or other association of any kind between the
parties hereto. RIA shall have no authority to bind or act on behalf of PMG.
Except as specifically provided by this Agreement, RIA shall not act or
represent or hold itself out as having authority to act as agent or partner of
PMG or in any way bind or commit PMG to any obligations. Any such act will
create a separate liability in RIA to any and all third parties affected as a
consequence. The rights, duties, obligations and liabilities of the parties
shall be several and not joint or collective and each party shall be responsible
individually only for its obligations described by this Agreement.
The RIA:
(a) shall not make any representation other than as set out in the sales
documents, offering memorandum, prospectus or similar documents issued by PMG,
or any of its affiliates, or give or make any warranty on behalf of PMG; (b)
shall observe the terms and conditions relating to the promotion of PMG and to
the issuance and sale of the Units whether contained in the sales documentation
issued by the Issuer or in any directions of PMG provided to the RIA, or imposed
by law or regulations having the force of law in any country or territory in
which the RIA is promoting the Units or in which any investor or potential
investor in the Units is a resident or of which such investor is a citizen or
national and, in particular, but without limitation, the RIA shall not promote
the Units or procure or seek to procure subscriptions for the Units from any
person (whether an individual, firm or corporation) who is not eligible by
reason of nationality or otherwise, to invest in the Units; (c) Shall observe
the terms and conditions relating to the promotion of PMG investment advisory or
401(k)/retirement services and to the solicitation of clients whether contained
in the sales documentation issued by PMG or in any directions of PMG provided to
the RIA, the RIA shall not promote PMG services or seek to solicit clients who
are not eligible by reason of nationality or otherwise. (d) Acknowledges its
responsibility under applicable law to make every reasonable effort to determine
that the purchase of Units and/or other PMG offerings through this agreement is
a suitable and appropriate investment for each person to whom RIA solicits,
based on information provided by such person.
11
In connection with its activities under this Agreement, the RIA shall use only such sales documents and/or promotional brochures as have been approved by PMG. PMG shall obtain approval for such sales documents to the extent legally required by the supervisory authority in any relevant jurisdiction prior to their use. The RIA shall not circulate any prospectus which has been withdrawn or supplemented.
The RIA
shall have no authority to accept applications for Units, client accounts, or
retirement plans on behalf of the Company and shall in no circumstances have any
power to enter into a transaction on behalf or in any other way to bind the
Company.
The RIA
warrants to observe the conduct of business rules applicable in any state or
territory in which the RIA is promoting any product or service of or through PMG
or, if applicable, in which any investor or potential investor is resident or of
which such investor is a citizen or national. It is the RIA's duty to inform
investors and potential investors in a reasonable manner about the Units or
advisory services and about the risks of investing in them, and to observe the
terms and conditions relating to the sale and distribution of Units imposed by
law or regulations having the force of law in any applicable state or
territory.
For
Pebble U. S. Market Fund, LLC clients, the RIA will provide to PMG one copy of
the subscription documents (attached as Exhibit C in the Prospectus and
Disclosure Document) with original client signatures. PMG will execute and
retain the original and return an executed copy to the client. The current
prospectus and disclosure document and subscription documents can be printed or
downloaded from the Fund website, xxx.xxxxxxxx.xxx.
For PMG
Investment Advisory clients, the RIA will provide to PMG one copy of the PMG
Investment Management Agreement with original client signatures. PMG will
execute and retain the original and return an executed copy to the client. The
PMG Investment Management Agreement is available from the PMG website,
xxx.xxxxxxxx.xxx.
For
401(k)/Retirement Advisory clients, the RIA will provide to PMG one copy with
original client signatures of the 401(k)/Retirement account agreement. This
agreement will be provided on an individual plan basis. PMG will execute and
retain one original and return an executed copy to the client. The 401(k)
Retirement documents can be downloaded from the PMG website,
xxx.xxxxxxxx.xxx.
The RIA
will provide to each client a current copy of PMG’s Disclosure Statement (“Form
ADV, Part II”) as required by Rule 204-3 under the Act at the time of any
solicitation activities on behalf of PMG. A copy of PMG’s most recent ADV, Part
II is available from the PMG website, xxx.xxxxxxxx.xxx. Each client solicited
under this Agreement must sign the RIA’s Disclosure Statement and deliver a
signed copy to PMG. Delivery of this acknowledgement shall be required prior to
PMG engaging in any advisory activities with respect to the client. Moreover, RIA agrees to
forgo any and all fees if RIA does not promptly deliver the signed solicitation
disclosure statement.
RIA's use
of any of trademarks, trade names or logos of PMG shall be in a form and manner
agreed to by PMG and in compliance with any applicable country-of-origin
labeling requirements. RIA's use of any trademarks, trade names or logos of PMG
shall be restricted to and coextensive with the performance of all of RIA's
duties under this Agreement, shall cease immediately in the event this Agreement
is terminated, and shall not be construed as conferring upon RIA any right or
interest in or to such trademarks, trade names, or logos or to any registration
thereof.
RIA shall
submit all advertising copy, including but not limited to sales brochures,
newspaper and yellow page advertisements, radio and television commercials,
internet-based web material, to PMG for approval, in PMG's sole discretion,
prior to using the same in commerce.
PMG shall
support the RIA concerning the offering and distribution of Units and/or
advisory services by providing the RIA with such sales documents and promotional
brochures as have been approved by PMG. Copies of the prospectus and any
amendments and supplements thereto will be supplied without charge. PMG will
provide the RIA with such current information or modifications regarding Pebble
U. S. Market Fund, LLC or the distribution of Units as are necessary to promote
the Units. PMG will provide sales documents and promotional brochures regarding
investment advisory and/or 401(k) retirement services as have been approved by
PMG.
12
The RIA
is not authorized to directly or indirectly promote, offer, sell, distribute or
deliver any of the Units in states or territories except those identified to the
RIA by PMG.
The
remuneration payable to the RIA or properly licensed individuals on transactions
in Units or advisory services is set out in the attached Schedule A. All
advisory and solicitation fees generated by Units of Pebble U. S. Market Fund,
LLC shall be paid monthly in arrears no later than the 20th calendar day of such
month according to Schedule A based on the net asset value of Units which the
RIA is credited as having sold. All advisory and solicitation fees generated by
PMG investment advisory and 401(k)/retirement services shall be paid quarterly
in arrears no later than the 20th calendar day of such month according to
Schedule A based on the net asset value of accounts which the RIA is credited as
the soliciting advisor of record.
The RIA
shall use due diligence to learn the essential facts relative to every person or
entity for whom orders for the purchase of Units are effected or solicited
advisory service clients’ accounts are accepted and shall follow procedures that
are at least equivalent to those required by the USA Patriot Act and regulations
adopted thereunder on prevention of the use of the financial system for the
purposes of money laundering as amended from time to time. In the event that PMG
requires information or is required by any competent authority to provide
information as to the identity of investors or in the event that any form of
money laundering is suspected, the RIA agrees to make a full disclosure of such
information to PMG and/or all appropriate authorities. Where the RIA is a
resident in a country which is a member of the Financial Action Task Force, such
disclosure shall be made to the extent provided by local law. The RIA will
retain the evidence of verification of identity and records of all transactions
for at least five years following the ending of the relationship with any person
for whom orders for the subscription of Units have been affected.
PMG
reserves the right to seek and the RIA agrees to supply to PMG and/or any
designated representative of them, without undue delay, such documentation as it
may request in order to satisfy itself as to the essential facts relative to the
RIA and any suspected or potential money laundering. If the RIA fails to supply
such documentation as requested by PMG, each Issuer and/or representative of
them within a reasonable period of time, this Agreement may be terminated at the
sole discretion of PMG immediately in writing in accordance with clause 7
(except to the extent that PMG will not be required to give written notice of
such termination). In the event that PMG and/or any representative of them is
required by any competent authority to provide information as to the identity of
the RIA or in the event that money laundering is suspected, the RIA agrees to
make a full disclosure of all relevant information to PMG and/or all appropriate
authorities.
The RIA
warrants and agrees to indemnify PMG and hold PMG harmless from and against all
liabilities, losses, damages, claims and expenses, including attorneys' and
other legal fees, in connection with the foregoing warranty.
PMG may
terminate or suspend this Agreement immediately if any licenses or approvals
required of the RIA are suspended, expire or are revoked or if the RIA is
otherwise unable to perform its duties hereunder, or if any finding of
wrongdoing or breach of any laws or regulations is made against it or if the
intermediary breaches any term or conditions of this agreement.
Either
party may terminate this agreement without cause upon 30 days written notice
given to the other party.
If this
Agreement is terminated pursuant to Article 7, then RIA shall not be entitled to
any advisory fees or any other remuneration, subsequent to the first to occur of
the suspension, expiration or revocation of any licenses or approvals required
of the RIA, or the date that RIA is otherwise unable to perform its duties
hereunder, or the date of any wrongdoing or breach of any laws or regulations or
this agreement by RIA, or the date of termination hereof.
This
Agreement shall terminate upon the termination of the Solicitor Advisor
Agreement.
13
PMG
agrees to indemnify and hold harmless the RIA and each person, if any, who
controls such person within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages, costs, expenses, liabilities, joint
or several (including any investigatory, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), and actions to which they, or any of them,
may become subject under the Securities Act, the Securities Exchange Act of
1934, the Commodity Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages, costs,
expenses, liabilities or actions arise out of or are based upon any untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment of supplement thereto,
or the omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading (in the case of the
Prospectus, of any amendment or supplement thereto, in the light of the
circumstances under which such statements were made); provided, however, that in
no event shall the indemnification agreement contained in this subsection of
Section 8 inure to the benefit of any of the indemnified parties (or any person
controlling any such party within the meaning of Section 15 of the Securities
Act) on account of any losses, claims, damages, costs, expenses and liabilities
arising from the sale of the Units to any person if such losses, claims,
damages, costs, expenses, liabilities or actions arise out of or are based upon,
an untrue statement or omission in a preliminary prospectus or the Prospectus or
a supplement or amendment thereto, if a preliminary prospectus, the Prospectus,
the Prospectus as amended or supplemented or as further amended or supplemented,
respectively, shall correct, prior to the delivery to such person of his
subscription, the untrue statement or omission which is the basis of
the loss, claim, damage, liability or action for which indemnification is sought
and a copy of a preliminary prospectus, the Prospectus or the Prospectus as
amended or supplemented or as further amended or supplemented, as the case may
be, had not been sent or given to such indemnified person at or prior to the
receipt of the subscription.
The RIA
agrees to indemnify and hold harmless the Pebble U. S. Market Fund, LLC, PMG and
any affiliates, as the case may be, and each person, if any, who controls the
Pebble U. S. Market Fund, LLC or as the case may be, within the meaning of
Section 15 of the Securities Act to the same extent as the foregoing indemnity
from PMG set forth in Section 8 (and, in the case of PMG, for any indemnity paid
by PMG pursuant to Section 8, but only insofar as such losses, claims, damages,
costs, expenses, liabilities or actions arise out of or are based upon a breach
of any agreement, covenant, representation or warranty set forth in this
Agreement by the RIA.
Each of
the parties to this Agreement understands that the obligations of each party
subject to this Section 8 are separate and distinct. Notwithstanding any other
provision of this Section 8, PMG (i) shall have no obligation to indemnify the
RIA for more than the amount of proceeds resulting from the sale of Units by the
RIA during the Continuing Offering Period and/or more than the amount of
proceeds resulting of the placement of clients’ assets with PMG investment
advisory or 401(k) retirement services plus the RIA's actual expenses incurred
in connection with any loss, claim, damage, charge or liability (including
reasonable attorneys' and accountants' fees incurred in defense thereof) and
(ii) any obligation of PMG to indemnify the RIA shall be adjusted to reflect the
relative responsibility of the RIA (if any) for the circumstances giving rise to
the losses, claims, damages, costs, expenses, liabilities or actions for which
indemnification is sought.
Notwithstanding
any other provision of this Agreement, indemnification of PMG or its controlling
persons by Pebble U. S. Market Fund, LLC shall be permitted only to the extent
permitted by the Subscription Documents.
Any party
which proposes to assert the right to be indemnified under this Section 8 will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim is to be made against
an indemnified party under this Section 8, notify each such indemnifying party
of the commencement of such action, suit or proceeding but the omission to
notify an indemnifying party shall not relieve such indemnifying party from any
liability which it may have to any indemnified party under this Section 8 except
to the extent, and only to the extent, that such omission was prejudicial to the
indemnifying party. In no event shall any such omission relieve an indemnifying
party of any liability which it may have to an indemnified party otherwise than
under this Section 8. In case any such action, suit or proceeding shall be
brought against any indemnified party, and such party shall notify the
indemnifying party of the commencement thereof; the indemnifying party shall be
entitled to participate therein, and, if it shall wish, individually or jointly
with any other indemnifying party, to assume (or have such other party assume)
the defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election (or the election of such other party) so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses, other than reasonable costs of investigation
requested by the indemnifying party (or such other party), subsequently incurred
by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any such action,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment by counsel by such indemnified party
has been authorized by the indemnifying party (or such other indemnifying party
as may have assumed the defense of the action in questions), (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
interest between the indemnifying party (or such other party) and the
indemnified party in the conduct of the defense of such action (in which case
the indemnifying party (or such other party) shall not have the right to direct
the defense of such action on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the defense
of such action, in each of which cases the fees and expenses of counsel shall be
at the expense of the indemnifying party (subject to possible reimbursement of
the indemnifying party by such other party). An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
In the case of (ii) above, the indemnifying party (or the indemnifying parties,
if an indemnified party shall have a claim for indemnification against more than
one indemnifying party) shall not be liable for the expenses of more than one
separate counsel for each of the following groups: (x) the RIA and any person
who controls the RIA within the meaning of Section 15 of the Securities Act, and
(y) Pebble U. S. Market Fund, LLC and Pebble Asset Management, LLC and any
person who controls the Pebble U. S Market Fund, LLC and within the meaning of
Section 15 of the Securities Act.
14
This
Agreement embodies the entire understanding between the parties hereto in
respect of the subject matter hereof and no modification or amendment of any
provision of this Agreement shall be effective unless the same shall be reduced
to writing and signed by the parties hereto.
The
illegality, invalidity or enforceability of any provision of this Agreement
under the law of any jurisdiction shall not affect its legality, validity or
enforceability under the law of any other jurisdiction nor the legality,
validity or enforceability of any other provision.
In case
that single terms of this Agreement are or become inoperative or impracticable,
the rest of this Agreement shall remain unaffected thereby. To the extent
practicable, any invalid or inoperative terms will be replaced by valid and
operative terms which are closest to the real purpose of the invalid or
inoperative terms.
All
controversies resulting from this contract, including the question of its valid
realization and its pre-effects and consequences, exclusively lie in the
jurisdiction of the competent court of Louisiana, and the parties agree that
Louisiana law, applied without regard to conflict of laws principles, shall be
solely applicable to the interpretation and enforcement of this
Agreement.
This
Agreement is deemed to have been drafted jointly by the parties, and any
uncertainty or ambiguity shall not be construed for or against either party as
an attribution of drafting to either party.
This
Agreement may be executed in any one or more counterparts, each of which shall
constitute an original, no other counterpart needing to be produced, and all of
which, when taken together, shall constitute but one and the same instrument. If
this Agreement is signed and transmitted by facsimile machine or electronic
mail, the signature of any party on such agreement transmitted by facsimile or
electronic mail shall be considered, and have the same force and effect, as an
original document.
FOR
PEBBLE MANAGEMENT GROUP, LLC:
|
FOR
THE RIA:
|
|
|
Signature
|
Signature
of Authorized Signatory
|
Xxxxxxx
Xxxxxxx – Manager
|
|
Pebble
Management Group, LLC
|
|
|
|
Printed
Name of Authorized Signatory
|
|
|
|
Title
of Authorized Signatory
|
|
Date:____________________
|
Date:____________________
|
15
SCHEDULE
A
REMUNERATION
Made on
_______________, 20____ between Pebble Management Group, LLC (“PMG”) and
________________________________("RIA"), this remuneration agreement (the
“Agreement”) as accepted by both parties according to the stipulations set forth
in this Schedule A.
1. In
consideration of the RIA soliciting and obtaining purchasers of the Units of
Pebble U. S. Market Fund, LLC (the ‘Units”), PMG shall pay the RIA an advisory
fee equal to 1.50% annually (payable monthly) of the net asset value of the
Units of the Pebble U. S. Market Fund, LLC sold through the RIA. The advisory
fee is payable to the RIA in monthly installments of 1/12th of
1.50% based on the month end net asset value of the Units sold through the RIA.
The advisory fee is negotiable between the RIA and the purchaser of Units
through the RIA. Advisory fees charged which are higher or lower than 1.50% will
be settled between the RIA and client. PMG has no responsibilities in settling
differences in advisory fees charged which differ from the 1.50% annually paid
by the Pebble U. S. Market Fund, LLC to PMG.
The
ongoing compensation specified above shall be in consideration of and is
contingent upon the provision by the RIA or its affiliates of additional
services in connection with the Units sold by the RIA, including: (w) inquiring
of Pebble Asset Management, LLC (“XXX”) from time to time, at the request of an
owner of Units sold by it, as to the net asset value of a Unit; (x) inquiring
of from time to time, at the request of an owner of Units sold be it,
regarding the commodities markets and the Pebble U. S. Market Fund, LLC; (y)
assisting, at the request of XXX or PMG, in the redemption of Units sold by it;
and (z) providing such other services to the owners of the Units sold by it as
XXX or PMG may, from time to time, reasonably request. The RIA also will use its
best efforts to insure that any of its investment advisor representatives to
whom compensation is passed on will cooperate in providing the services
specified in clauses (w) through (z) above for as long as such representative
continues in the employment of the RIA. The RIA shall forfeit its rights
hereunder to receive any ongoing compensation relating to the additional
services for the entirety of any month during which it is not duly registered
with the appropriate federal or state authorities.
In
consideration of the solicitation of additional soliciting registered investment
advisory firms (“SRIA”) by investment advisor representatives of the RIA, PMG
will pay to the investment advisor representative of the RIA (provided both the
firm and individual represents that they are registered with the SEC or
appropriate state authorities) 0.25% annually (payable monthly) based on the
month end net asset value of the units sold by the SRIAs . PMG will pay the
ongoing compensation to the investment advisor representative for accounts of
SRIAs that are directly solicited by the investment advisor representative.
Additional registered investment advisory firms solicited by SRIAs will accrue
ongoing compensation to the SRIA only, not the investment advisor representative
that solicited the SRIA. Such ongoing compensation shall commence at the
beginning of the second full month after the sale of the Units by any directly
solicited SRIAs. The RIA agrees that such compensation will be paid directly to
its investment advisory representatives who are registered with the appropriate
federal or state authorities and have passed the Uniform Investment Advisor
Examination (Series 65) or are considered exempt from taking the exam by the
appropriate licensing authorities. If any such investment advisor representative
shall transfer employment to another registered investment advisory firm, and
the Unit holders to which he sold shall also become clients of the transferee
firm, the RIA agrees to transfer its ongoing compensation to the transferee
firm.
2. In
consideration of the RIA soliciting and obtaining clients for the PMG investment
advisory or 401(k) retirement advisory services, PMG shall pay the RIA according
to the outline shown below:
Solicitors
of assets to the PMG asset management and/or 401(k) retirement plan services are
paid on all business according to the following grid. The amount paid is based
on the net amount of revenue received by PMG for a client after all custodian
fees and charges are deducted. Fees are paid quarterly or monthly where
appropriate.
Soliciting
Advisors
Type of
Business
|
Payout
|
|
PMG
Asset Management
|
50%
|
|
PMG
401(k)/Retirement Plans
|
50%
|
|
1.50%
advisory fee per prospectus
|
16
FOR
PEBBLE MANAGEMENT GROUP, LLC:
|
FOR
THE RIA:
|
|
|
Signature
|
Signature
of Authorized Signatory
|
Xxxxxxx
Xxxxxxx – Manager
|
|
Pebble
Management Group, LLC
|
|
Printed
Name of Authorized Signatory
|
|
|
|
Title
of Authorized Signatory
|
|
Date:____________________
|
Date::____________________
|
Please
provide the following information.
1)
Company Legal Name:
|
|
|
2)
Company Address:
(P.O
Box not acceptable)
|
|
|
|
||
|
||
3)
Company Mailing Address:
(If
different than Address)
|
|
|
|
||
|
||
4)
Contact Person:
|
|
|
5)
Phone/Fax:
|
________________________
/ ______________________________
|
|
6)
E-mail:
|
|
17