EXHIBIT 1.2
ADDITIONAL SELLING AGENT AGREEMENT
GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
(AN ILLINOIS LIMITED PARTNERSHIP)
$200,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
DEARBORN CAPITAL MANAGEMENT, L.L.C.
General Partner and Commodity Pool Operator
DATED ____________, 2003
GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
ADDITIONAL SELLING AGENT AGREEMENT
TABLE OF CONTENTS
PAGE
Section 1. Representations and Warranties of the General Partner..............1
Section 2. Offering and Sale of Units.........................................6
Section 3. Compliance with Rule 28 and General Laws..........................10
Section 4. Blue Sky Survey...................................................13
Section 5. Covenants of the General Partner..................................13
Section 6. Payment of Expenses and Fees......................................14
Section 7. Conditions of Closing.............................................15
Section 8. Indemnification, Contribution and Exculpation.....................18
Section 9. Status of Parties.................................................20
Section 10. Representations, Warranties and Agreements to Survive Delivery....20
Section 11. Termination.......................................................20
Section 12. Survival..........................................................20
Section 13. Notices and Authority to Act......................................21
Section 14. Parties; Assignment...............................................21
Section 15. Governing Law.....................................................21
Section 16. Consent to Jurisdiction...........................................21
Section 17. Counterparts......................................................21
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GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
(AN
ILLINOIS LIMITED PARTNERSHIP)
$200,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
CLASS A UNITS: PREVAILING NET ASSET VALUE PER UNIT
CLASS B UNITS: INITIALLY $1,000 PER UNIT; THEREAFTER
PREVAILING NET ASSET VALUE PER UNIT
ADDITIONAL SELLING AGENT AGREEMENT
[DATE]
[ADDITIONAL SELLING AGENT NAME AND ADDRESS]
Dear Sir/Madam:
DEARBORN CAPITAL MANAGEMENT, L.L.C., an
Illinois limited liability company
(the "GENERAL PARTNER"), serves as the general partner of an
Illinois limited
partnership pursuant to the Revised Uniform Limited Partnership Act of the State
of
Illinois (the "
ILLINOIS ACT") under the name
GRANT PARK FUTURES FUND LIMITED
PARTNERSHIP (the "FUND"), for the purpose of engaging in the speculative trading
of futures contracts, forward contracts, options on futures contracts, forward
contracts and on commodities, security futures contracts, spot contracts, swap
contracts and other commodity interest contracts, implementing the trading
methods of the independent commodity trading advisors engaged by the General
Partner on behalf of the Fund. ______________, ____________ and ____________
have been appointed pursuant to the Selling Agreement by and among each such
person, the General Partner and the Fund as principal selling agents for the
Fund (collectively, the "PRINCIPAL SELLING AGENTS"). Other selling agents (the
"ADDITIONAL SELLING AGENTS") may be selected by the General Partner in its sole
discretion. You have been so selected by the General Partner.
The Fund desires to raise capital as herein provided by the sale of units
of limited partnership interest in the Fund (the "UNITS"), the purchasers of
which will become limited partners ("LIMITED PARTNERS") of the Fund, and the
undersigned Additional Selling Agent hereby agrees to use its best efforts to
market the Units pursuant to the terms hereof. Accordingly, the undersigned
Additional Selling Agent, the General Partner and the Fund, intending to be
legally bound, hereby agree as set forth below. This
Additional Selling Agent
Agreement shall be referred to herein as the "AGREEMENT."
Section 1. REPRESENTATIONS AND WARRANTIES OF THE GENERAL PARTNER. The
General Partner represents and warrants to the Additional Selling Agent as of
the date hereof, with such representations and warranties to be restated and
reaffirmed as of each Closing Date (as defined in Section 2(e) hereof):
(a) The Fund has provided to the Additional Selling Agent, and filed with
the Securities and Exchange Commission (the "SEC"), a registration statement on
Form S-1 (No. 333-104317), as initially filed with the SEC on April 4, 2003 and
an amendment or amendments thereto, 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 ("NFA") in accordance with NFA
Compliance Rule 2-13, the Commodity Exchange Act, as amended (the "COMMODITY
ACT"), and the rules and regulations thereunder (the "CFTC Regulations"). The
registration statement as amended and delivered to all parties hereto at the
time it becomes effective together with any registration statement filed to
register additional Units under the 1933 Act pursuant to Rule 462(b) under the
1933 Act, 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
(ii) 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"), together with any current supplement or
supplements thereto.
The General Partner agrees to suspend the offering immediately and inform
the Additional Selling Agent if the General Partner has any reason to believe
that it may be necessary or advisable to amend the Registration Statement or
supplement the Prospectus.
No reference to the Additional Selling Agent may be made in the
Registration Statement, Prospectus or in any promotional materials or other
marketing materials, including "Tombstone Ads" or other communications
qualifying under Rule 134 of the SEC Regulations (collectively, "PROMOTIONAL
MATERIAL"), that has not been approved by the Additional Selling Agent, which
approval the Additional Selling Agent may withhold in its sole and absolute
discretion. The Fund will cooperate with the Principal Selling Agents in causing
to be filed, all Promotional Material with the National Association of
Securities Dealers, Inc. (the "NASD"), and will not use any such Promotional
Material unless the NASD has stated in writing that it appears to comply with
all applicable standards or the requirement for such a statement has been waived
by the Principal Selling Agents. The Fund will file, or cause to be filed, all
Promotional Material in state jurisdictions as requested or required by law, and
will not use any such Promotional Material in any state that has expressed any
objection thereto (except pursuant to agreed-upon modifications to the
Promotional Material).
(b) The certificate of limited partnership (the "CERTIFICATE OF LIMITED
PARTNERSHIP") pursuant to which the Fund has been formed and the Third Amended
and Restated Limited Partnership Agreement (the "LIMITED PARTNERSHIP AGREEMENT")
provide for the subscription for and sale of the Units of the Fund; all action
required to be taken by the General Partner and the Fund as a condition to the
sale of the Units to qualified subscribers therefor has been, or prior to the
Initial Closing Date (as defined in Section 2(e) hereof) will have been, taken;
and, upon payment of the consideration
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therefor specified in all accepted Subscription Agreements and Powers of
Attorney, the form of which is set forth as Appendix B to the Prospectus, the
Units will constitute valid units of limited partnership interest in the Fund as
to which the subscribers thereto will have limited personal liability to the
extent provided for under the
Illinois Act and will be Limited Partners of the
Fund entitled to all the applicable benefits under the Limited Partnership
Agreement and the
Illinois Act.
(c) The Fund is a limited partnership existing under the laws of the State
of
Illinois with full power and authority to engage in the business to be
conducted by it, as described in the Registration Statement and Prospectus. The
Fund is qualified to do business in each jurisdiction in which such
qualification is necessary in order to protect the limited liability of Limited
Partners and in which the nature or conduct of its business as described in the
Registration Statement and Prospectus requires such qualification and the
failure to be so qualified would be reasonably likely to have a material adverse
effect on the results of operations, financial condition or business ("MATERIAL
ADVERSE EFFECT") of the Fund.
(d) The General Partner is, and will continue to be so long as it is the
general partner of the Fund, a limited liability company duly organized,
existing and in good standing under the laws of the State of
Illinois and is in
good standing and qualified to do business in each jurisdiction in which the
nature or conduct of its business as described in the Registration Statement and
Prospectus requires such qualification and the failure to be so qualified would
be reasonably likely to have a Material Adverse Effect on the Fund or the
General Partner.
(e) Each of the Fund and the General Partner has full limited partnership
or limited liability company power and authority, as the case may be, under
applicable law to perform its respective obligations under the Limited
Partnership Agreement and this Agreement, and to conduct its business as
described in the Registration Statement and Prospectus.
(f) When the Registration Statement becomes effective under the 1933 Act
and at all times subsequent thereto up to and including each Closing Date, the
Registration Statement, Prospectus and Promotional Material will comply in all
material respects with the requirements of the 1933 Act, the SEC Regulations,
the Commodity Act and the CFTC Regulations. Each of the Registration Statement,
the Prospectus and each item of Promotional Material as of the Initial Closing
Date and each Closing Date thereafter 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; PROVIDED, HOWEVER, that this representation and warranty does
not apply to statements made or omitted in reliance upon, and in conformity
with, written information furnished to the General Partner with respect to the
Additional Selling Agent by or on behalf of the Additional Selling Agent,
expressly for use in such Registration Statement, Prospectus or Promotional
Material.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse
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change in the results of operations, financial condition or business of
the General Partner or the Fund, whether or not arising in the ordinary course
of business, of which the Additional Selling Agent has not been informed by the
General Partner.
(h) Each of the Limited Partnership Agreement and this Agreement has been
duly and validly authorized, executed and delivered by the General Partner (in
the case of the Limited Partnership Agreement) and by the Fund and the General
Partner (in the case of this Agreement). The Limited Partnership Agreement
constitutes a valid and binding obligation of the General Partner enforceable
against the General Partner subject to the effects of: (1) bankruptcy,
insolvency, fraudulent transfer and conveyance, reorganization, receivership,
moratorium and other similar laws (including judicially developed doctrines with
respect to such laws) affecting the rights and remedies at the time in effect
affecting the enforceability of creditors generally; (2) general principles of
equity, whether applied by a court of law or equity with respect to performance
and enforcement of the Limited Partnership Agreement and (3) any limitations
under federal securities laws and other applicable laws and considerations of
public policy that relate to indemnification and contribution.
(i) The execution and delivery of the Limited Partnership Agreement and
this Agreement, the incurrence of the obligations set forth therein and herein
and the consummation of the transactions contemplated therein, herein and in the
Prospectus: (i) will not constitute a breach of, or default under, any
instrument or agreement by which the General Partner or the Fund, as the case
may be, or any of their properties or assets is bound, or any statute, order,
rule or regulation applicable to the General Partner or the Fund, as the case
may be, of any court or any governmental body or administrative agency having
jurisdiction over the General Partner or the Fund, as the case may be, except as
would not be reasonably likely to have a Material Adverse Effect on the General
Partner or the Fund; (ii) will not result in the creation or imposition of any
lien, charge or encumbrance on any property or assets of the General Partner or
the Fund, except as would not be reasonably likely to have a Material Adverse
Effect on the General Partner or the Fund; and (iii) will not give any party a
right to terminate its obligations or result in the acceleration of any
obligations under any material instrument or agreement by which the General
Partner or the Fund, as the case may be, or any of their respective properties
or assets is bound, except as would not, in the aggregate, be reasonably likely
to have a Material Adverse Effect on the General Partner or the Fund.
(j) Except as otherwise disclosed in the Registration Statement or the
Prospectus, there is not pending nor, to the General Partner's knowledge,
threatened any action, suit or proceeding before or by any court or other
governmental body to which the General Partner or the Fund is a party, or to
which any of the assets of the General Partner or the Fund is subject, that
would reasonably be expected to have a Material Adverse Effect on the General
Partner or the Fund or which is required to be disclosed in the Registration
Statement or Prospectus pursuant to the Commodity Act, the CFTC Regulations, the
1933 Act or the SEC Regulations.
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(k) No stop order relating to the Registration Statement has been issued by
any federal or state securities commission, and no proceedings therefor are
pending or, to the knowledge of the General Partner, threatened.
(l) The General Partner and each of its principals and employees have, and
will continue to have so long as it is the general partner of the Fund, all
federal and state governmental, regulatory, self-regulatory and commodity
exchange approvals and licenses, and the General Partner (either on behalf of
itself or its principals and employees) has effected all filings and
registrations with federal and state governmental, regulatory or self-regulatory
agencies required to conduct its business and to act as described in the
Registration Statement and Prospectus or required to perform its or their
obligations as described under the Limited Partnership Agreement, except as
would not be reasonably likely to have a Material Adverse Effect on the General
Partner or the Fund (including, without limitation: (i) registration as a
commodity pool operator under the Commodity Act; (ii) membership in the NFA as a
"commodity pool operator"; and (iii) registration as a "transfer agent" with the
SEC); and this Agreement and the performance of such obligations will not
contravene or result in a breach of: (1) any provision of the General Partner's
limited liability company operating agreement; or (2) any agreement, instrument,
order, law or regulation binding upon the General Partner or any of its
employees or principals, except as would not be reasonably likely to have a
Material Adverse Effect on the General Partner or the Fund.
(m) The Fund does not require any federal or state governmental,
regulatory, self-regulatory or commodity exchange approvals, licenses or
registrations and the Fund need not effect any filings with any federal or state
governmental agencies in order to conduct its business and to act as
contemplated by the Registration Statement and Prospectus and to issue and sell
the Units (other than filings under the 1933 Act, the Commodity Act and state
securities laws relating solely to the offering of the Units).
(n) The General Partner has the financial resources necessary to meet its
obligations relating to the payment of expenses and fees to the Additional
Selling Agent pursuant to Section 6 hereunder.
(o) The actual performance of the Fund is disclosed in the Prospectus as
required by the Commodity Act, the CFTC Regulations and the rules of the NFA
(the "NFA RULES"); all of the information regarding the actual performance of
the Fund set forth in the Prospectus is complete and accurate in all material
respects and, except as disclosed in the Prospectus, is in accordance and
compliance with the disclosure requirements of the Commodity Act, the CFTC
Regulations and the NFA Rules.
(p) The General Partner acknowledges that the Additional Selling Agent's
customer lists constitute proprietary data belonging to the Additional Selling
Agent, and the General Partner agrees that it will not disseminate or use any
confidential information regarding any such data, except as required by law or
in connection with the operation of the Fund. Furthermore, the General Partner
agrees that it will not solicit any client on the Additional Selling Agent's
customer lists (exclusive of any such person who is a pre-existing client of the
General Partner or an Existing Limited Partner (as defined in
5
Section 2(a)), except as requested by the Additional Selling Agent in connection
with soliciting investments in the Fund.
(q) The accountants who certified the financial statements of the General
Partner and of the Fund included in the Registration Statement are, with respect
to the General Partner and the Fund, independent public accountants as required
by the 1933 Act and the SEC Regulations. These financial statements fairly
present the financial condition of the General Partner and the Fund as of the
dates shown and the results of operations and changes in partners' capital of
the Fund for the periods shown, and are presented in accordance with generally
accepted accounting principles as currently in effect in the United States.
Section 2. OFFERING AND SALE OF UNITS.
(a) The Additional Selling Agent is hereby appointed as a non-exclusive
Additional Selling Agent for the Fund during the term herein specified for the
purpose of finding acceptable subscribers for the Units through a public
offering of such Units. Subject to the performance by the General Partner of its
obligations hereunder and to the completeness and accuracy in all material
respects of the representations and warranties of the General Partner contained
herein, the Additional Selling Agent hereby accepts such agency and agrees on
the terms and conditions herein set forth to use its best efforts to find
acceptable subscribers for the Units, provided that there is no minimum number
of Units for which the Additional Selling Agent agrees to find subscribers.
It is understood that the Additional Selling Agent's agreement to use its
best efforts to find acceptable subscribers for the Units shall not prevent it
from acting as a selling agent or underwriter for the securities of other
issuers, including affiliates of the Additional Selling Agent, that may be
offered or sold during the term hereof. The agency of the Additional Selling
Agent hereunder shall continue until the expiration or termination of this
Agreement as provided herein, including such additional period as may be
required to effect a final closing of the sale of the Units subscribed for
through the date of such termination. All subscriptions are subject to
acceptance or rejection, in whole or in part in the General Partner's sole
discretion, and no compensation shall be due hereunder in respect of rejected
subscriptions.
The Additional Selling Agent acknowledges that the Units are divided into
separate Classes each of which is open for investment only by certain
subscribers as follows and as described in the Prospectus, or otherwise in the
General Partner's discretion. Class A Units are reserved for: (i) current
Limited Partners who purchased beneficial interests in the Fund during the
private offering of the Fund's interests ("EXISTING LIMITED PARTNERS"); and (ii)
new subscribers subscribing for the requisite minimum subscription amount as
described below. Class B Units are reserved for new subscribers generally. The
minimum initial subscription amount for Class A Units for new subscribers is
$200,000. The minimum initial subscription amount for Class A Units for Existing
Limited Partners is $15,000, except for Existing Limited Partners that are
employee benefit plans or individual retirement accounts, for which the minimum
initial subscription amount is $5,000. The minimum additional subscription
amount for Class A
6
Units for all Limited Partners is $15,000, except for Limited Partners that are
employee benefit plans or individual retirement accounts, for which the minimum
additional subscription amount is $5,000. The minimum initial subscription
amount for Class B Units is $10,000, except for subscribers that are employee
benefit plans or individual retirement accounts, for which the minimum initial
subscription amount is $5,000. The minimum additional subscription amount for
Class B Units for all Limited Partners is $2,000. The foregoing minimum
subscription requirements are subject to any higher or different minimum
subscription requirements that may be imposed by certain state securities
regulators, as may be set forth in the Subscription Requirements attached as
Appendix C to the Prospectus.
No upfront sales commission will be payable to the Additional Selling Agent
in connection with its sales of any Class A Units. With respect to sales of
Class B Units, the General Partner agrees to pay, from its own funds, an upfront
sales commission to the Additional Selling Agent equal to 3.5% of the Net Asset
Value per Unit (as defined in the Limited Partnership Agreement) of each Class B
Unit sold by the Additional Selling Agent at each Closing Date. The General
Partner shall pay the upfront sales commission with respect to any sale of Class
B Units due to the Additional Selling Agent within fifteen (15) business days of
the applicable Closing Date.
The Additional Selling Agent agrees that it will promptly pass on to its
Registered Representatives that portion of the upfront sales commissions
received from the General Partner for its sale of Class B Units to which such
Registered Representatives are entitled pursuant to the Additional Selling
Agent's standard compensation procedures, as determined by the Additional
Selling Agent from time to time.
(b) The General Partner agrees to pay, from its own funds, ongoing trailing
commissions to the Additional Selling Agent with respect to its sales of the
Units as follows.
For ongoing services rendered to Limited Partners holding Class A Units
as described below in this subsection (b), the General Partner shall pay the
Additional Selling Agent ongoing trailing commissions in an amount equal to
___% of the month-end Net Asset Value per Unit (a ___% annual rate) of all
Class A Units sold by the Additional Selling Agent that remain outstanding as
of the end of each month (including Units redeemed as of the end of such
month), provided that the total underwriting compensation per Class A Unit
will not exceed 10% of the subscription proceeds of the unit unless the
Additional Selling Agent remains registered with the CFTC as a futures
commission merchant or introducing broker and remains a member in good
standing of the NFA in such capacity, and the registered representative of
the Additional Selling Agent responsible for the sale is registered with the
CFTC, is a member of the NFA and has either passed the Series 3 or Series 31
examination or was "grandfathered" as an associated person of the Additional
Selling Agent.
Such ongoing trailing commissions shall begin to accrue with respect to
each Class A Unit as of the end of the first full month following the Closing
Date for the sale
7
of such Unit, and shall continue only for as long as such Class A Unit remains
outstanding, regardless of the termination of this Agreement for any reason.
For ongoing services rendered to Limited Partners holding Class B Units as
described below in this subsection (b), the General Partner shall pay the
Additional Selling Agent ongoing trailing commissions in an amount equal to
0.292% of the month-end Net Asset Value per Unit (a 3.5% annual rate) of all
Class B Units sold by the Additional Selling Agent that remain outstanding as of
the end of each month (including Units redeemed as of the end of such month),
provided that the total underwriting compensation per Class B Unit will not
exceed 10% of the subscription proceeds of the unit unless the Additional
Selling Agent remains registered with the CFTC as a futures commission merchant
or introducing broker and remains a member in good standing of the NFA in such
capacity and the registered representative of the Selling Agent responsible for
the sale is registered with the CFTC, is a member of the NFA and has either
passed the Series 3 or Series 31 examination or was "grandfathered" as an
associated person of the Additional Selling Agent.
Such ongoing trailing commissions shall begin to accrue with respect to
each Class B Unit as of the end of the thirteenth full month following the
Closing Date for the sale of such Unit, and shall continue only for as long as
such Class B Unit remains outstanding, regardless of the termination of this
Agreement for any reason.
The General Partner shall pay the ongoing trailing commissions due to the
Additional Selling Agent within fifteen (15) business days of the end of each
applicable calendar month.
Notwithstanding the foregoing, ongoing trailing commissions shall be
payable to the Additional Selling Agent only in respect of Units sold by
Registered Representatives who are themselves registered with the CFTC and who
have passed either the Series 3 National Commodity Futures Examination or the
Series 31 Futures Managed Funds Examination, and are contingent upon the
provision by such Registered Representatives of ongoing services in connection
with the Units sold by such Registered Representatives, including: (i) inquiring
of the General Partner from time to time, at the request of an owner of Units,
as to the Net Asset Value per Unit; (ii) inquiring of the General Partner from
time to time, at the request of an owner of Units, regarding the commodity
interest markets and the Fund; (iii) assisting, at the request of the General
Partner, in the redemption of Units; and (iv) providing such other services to
the owners of Units as the General Partner may, from time to time, reasonably
request. The Additional Selling Agent agrees to adopt procedures to monitor the
adequacy of the ongoing services provided by Registered Representatives.
The Additional Selling Agent agrees to pass ongoing trailing commissions on
to their Registered Representatives, pursuant to the Additional Selling Agent's
standard compensation procedures, as determined by the Additional Selling Agent
from time to time.
8
(c) In the case of Class A Units acquired by Existing Limited Partners in
exchange for their limited partnership interests in the Fund previously sold by
the Additional Selling Agent on a private placement basis, the Additional
Selling Agent will not receive any upfront sales commissions for the Units at
the Initial Closing of such Units. However, if the Additional Selling Agent is
receiving ongoing trailing commissions in respect of such privately placed
limited partnership interests it will continue to receive such ongoing trailing
commissions with respect to the Class A Units exchanged therefor; provided,
however, that as of the Initial Closing, such ongoing trailing commissions shall
be paid in accordance with subsection (b) above (subject to Rule 2810 of the
NASD Conduct Rules in respect of aggregate compensation which may be received by
the Additional Selling Agent).
(d) Ongoing trailing commissions will be paid at the end of each calendar
month on the basis of the Units outstanding during each month during such month.
Net Asset Value per Unit, for purposes of determining ongoing trailing
commissions, shall be calculated after reduction of all expenses of the Fund,
including accrued and unpaid expenses, as set forth in the Limited Partnership
Agreement.
The Additional Selling Agent, although otherwise entitled to ongoing
trailing commissions will not be entitled to receipt thereof for any month
during any portion of which the Registered Representative who is receiving
compensation based upon such ongoing trailing commissions is at any time not
properly registered with the CFTC or does not provide the ongoing services
described in subsection (b) above.
(e) The General Partner shall notify the Additional Selling Agent of the
initial closing of the sale of Units (the "INITIAL CLOSING" and the date of such
closing, the "INITIAL CLOSING DATE"), as well as of the aggregate number of
Units for which the General Partner has received acceptable subscriptions.
Thereafter, Units may continue to be sold as of close of business on the last
business day of each calendar month (each such date or the Initial Closing Date,
a "CLOSING DATE"), in the discretion of the Fund.
(f) Notwithstanding any other provision of this Agreement to the contrary,
no upfront sales commissions or ongoing trailing commissions shall be paid to
the Additional Selling Agent on Units sold to the General Partner or any of its
principals or affiliates.
(g) The Fund shall not in any respect be responsible for any upfront sales
commissions or ongoing trailing commissions described herein. All such
commissions are to be solely the responsibility of the General Partner.
(h) Notwithstanding anything in this Section 2 to the contrary, the
Additional Selling Agent shall not be entitled to any compensation hereunder in
respect of a sale to any subscriber if the General Partner determines that
another authorized selling agent of the Fund is primarily responsible for or
should otherwise be credited with such sale. In making this determination, the
General Partner shall endeavor to act fairly. Any dispute regarding compensation
shall be conclusively resolved by the General Partner.
9
Section 3. COMPLIANCE WITH RULE 2810 AND GENERAL LAWS.
(a) It is understood that the Additional Selling Agent has no commitment
with regard to the sale of the Units other than to use its best efforts. In
connection with the offer, sale and distribution of the Units, the Additional
Selling Agent represents and warrants that it will comply fully with all
applicable laws and regulations, and the rules, policy statements and
interpretations of the NASD, the SEC, the CFTC, state securities administrators
and any other regulatory or self-regulatory body. In particular, and not by way
of limitation, the Additional Selling Agent represents and warrants that it is
familiar with Rule 2810 of the NASD Conduct Rules and that it will comply fully
with all the terms thereof in connection with the offering and sale of the
Units. The Additional Selling Agent will not execute any sales of Units from a
discretionary account over which it has control without prior written approval
of the customer in whose name such discretionary account is maintained.
(b) The Additional Selling Agent agrees not to recommend the purchase of
Units to any subscriber unless the Additional Selling Agent shall 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: (i) (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; (ii) the subscriber has a fair market net
worth sufficient to sustain the risks inherent in participating in the Fund;
(iii) the subscriber qualifies as an acceptable subscriber on the basis set
forth in the Prospectus, the Subscription Agreement and Power of Attorney and
the Subscription Requirements; (iv) the subscriber is not a "Prohibited
Investor," as such term is defined in the Subscription Requirements, and
acceptance of the subscriber's subscription will not otherwise breach any laws,
rules and regulations designed to avoid money laundering applicable to either
the Additional Selling Agent, the General Partner or the Fund; and (v) the Units
are otherwise a suitable investment for the subscriber. The Additional Selling
Agent agrees 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 the case of such records related to Texas subscribers,
such records shall be maintained for no less than six (6) years from the date
such records are generated and, in the case of such records related to all other
subscribers, for the time periods otherwise required by the NASD. In connection
with making the foregoing representations and warranties, the Additional Selling
Agent further represents and warrants that it has, among other things, examined
the Prospectus including, without limitation, the sections listed below and
obtained such additional information from the General Partner regarding the
information set forth thereunder as the Additional Selling Agent has 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:
10
"Risk Factors"
"Performance of the Fund"
"The General Partner"
"Use of Proceeds"
"Fees and Expenses"
"Limited Partnership Agreement - Redemptions,
Distributions and Transfers"
"U. S. Federal Income Tax Consequences"
"The Commodity Interest Markets"
"Supplemental Performance Information"
In connection with making the representations and warranties set forth in
this paragraph, the Additional Selling Agent has not relied on inquiries made by
or on behalf of any other parties.
The Additional Selling Agent agrees 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.
The Additional Selling Agent shall cause its Registered Representatives to
certify in writing that such Registered Representative has made the required
determinations in each Subscription Agreement and Power of Attorney submitted by
the Registered Representative in respect of a subscriber; PROVIDED, HOWEVER,
that such determinations shall not be binding on the General Partner.
Each party agrees that no subscription will be deemed final and binding on
any new subscriber until at least five (5) business days after the date the
subscriber receives the Prospectus. In connection therewith, the Additional
Selling Agent agrees to indicate in each Subscription Agreement and Power of
Attorney submitted by a Registered Representative in respect of a subscriber the
date on which the Prospectus was delivered to that subscriber.
(c) All payments for subscriptions may be made by subscriber check payable
to "
Grant Park Futures Fund Limited Partnership - Subscription Account" or wire
transfer for deposit in the Fund's account maintained at Xxxxxx Bank & Trust
(wire transfer instructions: Account No. 274-9513, ABA #000000000), and
submitted, along with a completed Subscription Agreement and Power of Attorney,
to the Additional Selling Agent at least five (5) business days prior to the
applicable Closing Date or at an earlier date if required by the Additional
Selling Agent.
(d) As an alternative to submitting subscription checks or wire transfers,
a subscriber may instead authorize the Additional Selling Agent to debit the
subscriber's customer securities account maintained with the Additional Selling
Agent, as may be permitted by the Additional Selling Agent. Subscribers who do
so must have their subscription payments in their accounts on the date their
subscription is accepted, with subscribers to be notified of such date by the
Additional Selling Agent. Settlement of the payment for subscriptions will occur
not later than three (3) business days following
11
notification by the General Partner to the Additional Selling Agent of the
acceptance of a particular subscription. On each settlement date, subscribers'
customer securities accounts will be debited by the Additional Selling Agent in
the amount of their subscriptions. The amount of the subscription payments so
debited will be transmitted by the Additional Selling Agent directly to the
Fund's account maintained at Xxxxxx Bank & Trust in the form of an Additional
Selling Agent check or wire transfer payable to the Fund.
The Additional Selling Agent and the General Partner 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.
(e) The Additional Selling Agent represents, warrants and covenants to the
General Partner and the Fund that it and all of its personnel involved in the
activities contemplated hereunder have all governmental, regulatory and
self-regulatory registrations, approvals, memberships and licenses required to
perform its obligations under this Agreement and to receive compensation
therefor and that it and such personnel will maintain all such registrations,
approvals, memberships and licenses during the term of this Agreement and for
such time as the Additional Selling Agent and such personnel shall receive
compensation hereunder. Specifically but without limitation to the foregoing,
the Additional Selling Agent represents, warrants and covenants as follows, as
applicable: (i) in the event that it is to engage in the offer and sale of Units
in the United States, it is registered as a broker-dealer with the SEC, is a
member in good standing of the NASD, is registered with the relevant regulatory
authority in each state in which it will solicit subscribers, is registered with
the CFTC as a futures commission merchant or introducing broker and is a member
in good standing of the NFA; or (ii) (a) it is a foreign bank, broker, dealer or
institution that has all registrations, approvals, memberships and licenses
required to engage in the offer and sale of the Units in the non-U.S.
jurisdictions in which it does business; and (b) it will make no offers or sales
of Units within the United States, its territories or possessions or areas
subject to U.S. jurisdiction.
(f) The Additional Selling Agent represents, warrants and covenants that
it: (i) maintains anti-money laundering policies and procedures that comply with
the Bank Secrecy Act of 1970, as amended, and applicable federal anti-money
laundering regulations, including policies and procedures to verify the identity
of prospective subscribers ("AML LAWS, REGULATIONS AND POLICIES"); (ii) complies
with AML Laws, Regulations and Policies; (iii) will promptly deliver to the
General Partner, to the extent permitted by applicable law, notice of any AML
Laws, Regulations and Policies violation, suspicious activity, suspicious
activity investigation or filed Suspicious Activity Report that relates to any
prospective subscriber for Units; and (iv) will cooperate with the General
Partner and deliver information reasonably requested by the General Partner
concerning subscribers that purchased Units sold by the Additional Selling Agent
necessary for the General Partner or the Fund to comply with AML Laws,
Regulations and Policies.
12
Section 4. BLUE SKY SURVEY. The General Partner agrees to cause Xxxxxx
Xxxxxx Xxxxx Xxxxxxxx, counsel to the General Partner, to prepare and deliver to
the Additional Selling Agent, a Blue Sky Survey that shall set forth the United
States jurisdictions in which the Units may be offered and sold. The General
Partner agrees to use 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 General Partner
reserves the right to withdraw application for the Units' registration. It is
understood and agreed that the Additional Selling Agent may rely, in connection
with the offering and sale of Units in any United States jurisdiction, on advice
given by Xxxxxx Xxxxxx Xxxxx Xxxxxxxx as to the legality of the offer or sale of
the Units in such jurisdiction.
Section 5. COVENANTS OF THE GENERAL PARTNER.
(a) The General Partner will notify the Additional Selling Agent
promptly: (i) when any amendment to the Registration Statement shall have
become effective or any supplement (not including any monthly report) to
the Prospectus is filed; (ii) of the receipt of any further comments from
the SEC, CFTC, NFA or any other federal or state regulatory or
self-regulatory body with respect to the Registration Statement; (iii) of
any request by the SEC, CFTC, NFA or any other federal or state regulatory
or self-regulatory body for any further amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information relating thereto; (iv) of any material criminal,
civil or administrative proceedings against or involving the General
Partner or the Fund; (v) of the issuance by the SEC, CFTC, NFA or any other
federal or state regulatory or self-regulatory body, as applicable, of any
order suspending the effectiveness of the Registration Statement under the
1933 Act, the registration or NFA membership of the General Partner as a
"commodity pool operator," or the registration of the Units under the Blue
Sky or securities laws of any state or other jurisdiction or any order or
decree enjoining the offering or the use of the then current Prospectus or
any Promotional Material or of the institution of any action or proceeding
for any such purpose; or (vi) of any threatened action of the type referred
to in clauses (iii) through (v) of which the General Partner has been
notified. In the event any order of the type referred to in clause (v) is
issued, the General Partner agrees to use best efforts to obtain a lifting
or rescinding of such order at the earliest feasible date.
(b) The General Partner will deliver to the Additional Selling Agent
as many conformed copies of the Registration Statement as originally filed
and of each amendment thereto, together with exhibits, as the Additional
Selling Agent may reasonably request.
(c) The General Partner will deliver to the Additional Selling Agent
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) and of the
Promotional Material as the Additional Selling Agent may reasonably request
for the purposes contemplated by the 1933 Act or the SEC Regulations.
13
(d) During the period when the Prospectus is required to be delivered
pursuant to the 1933 Act, the General Partner and the Fund will comply with
all requirements imposed upon them by the 1933 Act, the SEC Regulations,
the Commodity Act and the CFTC Regulations, as from time to time in force,
so far as necessary to permit the continuance of sales of the Units during
such period in accordance with the provisions hereof and as set forth in
the Prospectus.
(e) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of the General Partner or any of the Selling Agents,
to amend or supplement the Prospectus in order to make the Prospectus not
materially misleading in the light of the circumstances existing at the
time it is delivered to a subscriber, or to conform with applicable CFTC
Regulations or SEC Regulations, the General Partner shall promptly prepare
and file such amendment(s) of or supplement(s) to the Prospectus effecting
the necessary changes, and furnish to the Additional Selling Agent, at the
expense of the General Partner, a reasonable number of copies of such
amendment(s) or supplement(s). Upon receipt by the Additional Selling Agent
of notice of any such event or any notice pursuant to Section 5(a) above,
the Additional Selling Agent shall, at the request of the General Partner,
immediately discontinue the offering of Units until the filing of the
applicable amendment or supplement or lifting or rescinding of the
applicable order, as the case may be.
Section 6. PAYMENT OF EXPENSES AND FEES. The General Partner will pay all
expenses incident to the performance of the obligations of the General Partner
and the Fund hereunder, including: (i) the printing and delivery to the
Additional Selling Agent in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto, of the Prospectus and any
supplements or amendments thereto, and of any Promotional Material; (ii) the
reproduction of this Agreement and the printing and filing of the Registration
Statement and the Prospectus (and, in certain cases, the exhibits thereto) with
the SEC and NFA; (iii) the payment of filing fees to the SEC and the NASD; (iv)
the qualification of the Units under the securities or "Blue Sky" laws in the
various jurisdictions, including the payment of filing fees and the fees and
disbursements of the General Partner's counsel incurred in connection therewith;
and (v) the services of Xxxxxx Xxxxxx Xxxxx Xxxxxxxx and accountants for the
General Partner and the Fund.
The General Partner and the Additional Selling Agent are each aware of the
limitations imposed by Rule 2810 of the NASD Conduct Rules on the aggregate
compensation that may be received by the Additional Selling Agent in connection
with the offering and sale of the Units. The General Partner acknowledges and
agrees that it will not make, and the Additional Selling Agent acknowledges and
agrees that it will in no event accept, any payments from the General Partner
which, when added to the upfront sales commissions (not including ongoing
trailing commissions) that the Additional Selling Agent receives on each sale of
a Unit, would exceed 10% of the gross proceeds of the Units sold to the public.
14
Section 7. CONDITIONS OF CLOSING. The sale of the Units is subject to the
accuracy of the representations and warranties of the parties hereto, to the
performance by such parties of their respective obligations hereunder and to the
following further conditions:
(a) The Registration Statement shall have become effective and at each
Closing Date no order suspending the effectiveness thereof shall have been
issued under the 1933 Act or proceeding therefor initiated or threatened by
the SEC, and the NFA shall have accepted the Prospectus as a Disclosure
Document pursuant to CFTC Regulations and NFA Rules without a finding of
further deficiencies.
(b) At or prior to the Initial Closing Date, Xxxxxx Xxxxxx Xxxxx
Xxxxxxxx counsel to the General Partner, shall deliver its opinion, in form
and substance satisfactory to the parties hereto, to the effect that:
(i) The Fund is a limited partnership existing under the laws of
the State of Illinois with full partnership authority to conduct the
business in which it engages as described in the Registration
Statement, the Prospectus and herein.
(ii) The General Partner is a limited liability company existing
and in good standing under the laws of the State of Illinois. The
General Partner has limited liability company authority to perform its
obligations as described in the Registration Statement, the Prospectus
and herein.
(iii) This Agreement has been duly authorized, executed and
delivered by the Fund and the General Partner and the performance by
the Fund and the General Partner of the transactions contemplated
herein and set forth in the Prospectus will not, to the knowledge of
such counsel, result in a breach or violation of any of the terms or
provisions of or constitute a default under (i) any material
contracts, indentures, deeds of trust, loan agreements, notes, leases
or other agreements as listed on an exhibit to such opinion (the
"MATERIAL CONTRACTS"), (ii) the General Partner's certificate of
formation or limited liability company operating agreement, (iii) any
laws or administrative rules or regulations normally applicable to
transactions of the type contemplated hereby or in the Prospectus, or
(iv) any order, writ, injunction or decree known to such counsel of
any court or any governmental body or administrative agency having
jurisdiction over the General Partner or the Fund.
(iv) The Limited Partnership Agreement has been duly authorized,
executed and delivered by the General Partner and constitutes a valid
and binding obligation of the General Partner enforceable against the
General Partner, subject to the effects of: (1) bankruptcy,
insolvency, fraudulent transfer and conveyance, reorganization,
receivership, moratorium and other similar laws (including judicially
developed doctrines with respect to such laws) affecting the rights
and remedies at the time in effect affecting the enforceability of
creditors generally; (2) general principles of equity, whether applied
by a court of law or equity with respect to performance and
enforcement of the Limited Partnership Agreement; and (3) any
limitations under federal securities laws and other applicable laws
and
15
considerations of public policy that relate to indemnification and
contribution. The execution and delivery of the Limited Partnership
Agreement, and the incurrence of the obligations therein and the
consummation of the transactions contemplated therein will not result
in a breach or violation of any of the terms or provisions of or
constitute a default under (i) any Material Contracts, (ii) the
General Partner's certificate of formation or limited liability
company operating agreement, (iii) any laws or administrative rules or
regulations normally applicable to transactions of the type
contemplated thereby, or (iv) any order, writ, injunction or decree
known to such counsel of any court or any governmental body or
administrative agency having jurisdiction over the General Partner or
the Fund.
(v) No filing, order, authorization, approval or consent of any
court, governmental or self-regulatory agency or body is necessary in
connection with the subscription for and sale of the Units, except
such as may be required under the 1933 Act, the Commodity Act, the NFA
Rules, NASD rules and applicable state securities or "Blue Sky" laws.
(vi) Assuming that all action required to be taken by the General
Partner and the Fund as a condition to the subscription for and sale
of the Units to qualified subscribers therefor has been taken, and,
upon payment of the consideration therefor specified in the accepted
Subscription Agreements and Powers of Attorney and satisfaction of all
applicable subscription requirements by such subscribers, the Units
will constitute valid units of limited partnership interest in the
Fund, and each subscriber who purchases Units will become a Limited
Partner with limited personal liability to the extent provided for
under the Illinois Act.
(vii) The information in the Prospectus under the caption "U.S.
Federal Income Tax Consequences," to the extent that such information
constitutes matters of law or legal conclusions, has been reviewed by
such counsel and is correct in all material respects, insofar as it
relates to the income tax consequences to the Fund and to the federal
income tax consequences of an investment in the Fund by U.S.
individual taxpayers.
(viii) The Registration Statement is effective under the 1933 Act
and, to the knowledge of such counsel, no proceeding for a stop order
is pending or threatened under Section 8(d) or Section 8(e) of the
1933 Act or any applicable state "Blue Sky" laws.
(ix) At the time the Registration Statement became effective, the
Registration Statement, and at the time the Prospectus and any
amendments or supplements thereto were first issued, the Prospectus
(other than the financial statements and notes thereto and other
financial and statistical data or past performance information
included therein, as to which such counsel need render no opinion),
complied as to form in all material respects with the requirements of
16
the 1933 Act, SEC Regulations, the Commodity Act, the CFTC Regulations
and the NFA Rules.
(x) Assuming operation in accordance with the Prospectus, the
Fund will not be an "investment company" or a company "controlled" by
an "investment company" as those terms are defined in the Investment
Company Act of 1940, and the General Partner need not be registered as
an "investment adviser" under the Investment Advisers Act of 1940 in
respect of its management of the Fund.
Such counsel shall state that it has participated in
conferences with officers and other representatives of the General
Partner and representatives of the indepednent public accountants
for the General Partner and the Fund, at which conferences such
counsel made inquiries of such officers, representatives and
accountants and discussed the contents of the Registration
Statement and the Prospectus, and no facts have come to the
attention of such counsel that cause them to believe that either
the Registration Statement, at the time such Registration Statement
became effective, or the Prospectus or any amendment or supplement
thereto, as of the date of such opinion contained any untrue
statement of a material fact or omitted to state a material fact
stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading
(it being understood that such counsel need express no opinion with
respect to the financial statements and notes thereto and other
financial and statistical data or past performance information
included therein).
Such counsel shall also state that to the knowledge of such
counsel, based solely on its review of its litigation docket and an
officer's certificate from the General Partner: (1) there are no
legal or governmental proceedings pending to which the Fund or the
General Partner is a party, that are required to be described in
the Registration Statement or the Prospectus that are not so
described; and to such counsel's knowledge no such proceedings are
threatened by governmental authorities or others.
(c) At or prior to the Initial Closing Date, the Fund shall have
received a capital contribution of the General Partner in the amount
required by its Limited Partnership Agreement and as described in the
Prospectus.
(d) At or prior to the Initial Closing Date, executed copies of the
Limited Partnership Agreement and this Agreement shall be delivered to the
parties hereto.
(e) The parties hereto shall have been furnished with such additional
information, opinions and documents, including supporting documents
relating to parties described in the Prospectus and certificates signed by
such parties with regard to information relating to them and included in
the Prospectus as they may reasonably require for the purpose of enabling
them to pass upon the sale of the Units as herein contemplated and related
proceedings, in order to evidence the accuracy or completeness of any of
the representations or warranties or the fulfillment of any of the
conditions herein contained; and all actions taken by the parties hereto in
connection with the sale of the Units as herein contemplated shall be
reasonably satisfactory in form and substance to
17
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx, counsel for the General Partner, and to the
Selling Agent.
(f) If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as required by this Agreement to be fulfilled
prior to a Closing Date, this Agreement and all obligations hereunder may
be cancelled by any party hereto by notifying the other parties hereto of
such cancellation in writing or by facsimile at any time at or prior to
such Closing Date, and any such cancellation or termination shall be
without liability of any party to any other party other than in respect of
Units already sold and except as otherwise provided in Sections 6 and 8 of
this Agreement.
Section 8. INDEMNIFICATION, CONTRIBUTION AND EXCULPATION.
(a) The General Partner severally (not the Fund) agrees to indemnify
and hold harmless the Additional Selling Agent and each person, if any, who
controls the Additional Selling Agent within the meaning of Section 15 of
the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising from any untrue statement of a material
fact or alleged untrue statement of a material fact contained in the
Registration Statement, in the Prospectus (or any amendment or
supplement thereto) or in the Promotional Material or any omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances in which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body commenced or threatened, or of any
claim whatsoever, based upon any such untrue statement or omission or
any such alleged untrue statement or omission; PROVIDED, HOWEVER, that
any settlement shall be subject to indemnity hereunder only if
effected with the prior written consent of the General Partner; and
(iii) against any and all expense whatsoever (including the
reasonable fees and disbursements of counsel) reasonably incurred in
investigating, preparing or defending against litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever, based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above;
PROVIDED, HOWEVER, that: (1) the General Partner will not be liable in any
such case to the extent that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, the Prospectus or the Promotional Material in reliance upon and
in conformity with written information furnished to the General Partner by
or on behalf of the Additional Selling Agent specifically for inclusion
therein;
18
and (2) such indemnity with respect to any Prospectus shall not inure to
the benefit of the Additional Selling Agent (or any person controlling the
Additional Selling Agent) from whom the person asserting any such loss,
liability, claim, damage or expense purchased the Units that are the
subject thereof if the Additional Selling Agent was responsible for
delivering a Prospectus to such person and such person did not receive a
copy of the Prospectus, as amended or supplemented, at or prior to the
confirmation of the sale of such Units to such person and any untrue
statement or omission of a material fact contained in any Prospectus was
corrected in the Prospectus, as amended or supplemented. This indemnity
agreement will be in addition to any liability which the General Partner
may otherwise have.
(b) The Additional Selling Agent agrees to indemnify and hold harmless
the General Partner, each of its members, each of its officers who signs
the Registration Statement, and each person who controls the General
Partner within the meaning of Section 15 of the 1933 Act to the same extent
as the foregoing indemnities to the Additional Selling Agent, but only with
reference to written information relating to the Additional Selling Agent
furnished to the General Partner, by or on behalf of the Additional Selling
Agent specifically for inclusion in the documents referred to in the
indemnity set forth in subsection (a). This indemnity agreement will be in
addition to any liability that the Additional Selling Agent may otherwise
have.
(c) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to any otherwise indemnified person in respect of
any loss, liability, claim, damage or expense referred to herein, then the
otherwise indemnifying party shall, in lieu of indemnifying the otherwise
indemnified person contribute to the amount paid or payable by such
otherwise indemnified person as a result of such loss, liability, claim,
damage or expense: (1) in such proportion as shall be appropriate to
reflect the relative benefits received by the General Partner on the one
hand and the Additional Selling Agent on the other from the offering of the
Units by the Additional Selling Agent; or (2) if the allocation provided by
clause (1) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (1) above but also the relative fault of the General Partner on the
one hand and the Additional Selling Agent on the other with respect to the
statements or omissions which resulted in such loss, liability, claim,
damage or expense, as well as any other relevant equitable considerations.
In no event shall the aggregate contribution or liability of the Additional
Selling Agent exceed the aggregate upfront sales commissions and ongoing
trailing commissions paid to the Additional Selling Agent hereunder.
Relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the General
Partner on the one hand or the Additional Selling Agent on the other, the
intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties agree that it would not be just and equitable if contributions
pursuant to this subsection (c) were to be determined by pro rata
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an otherwise indemnifying party to the otherwise indemnified
person as a result of the loss, liability, claim, damage or expense
referred to above in this subsection (c) shall be
19
deemed to include, for purposes of this subsection (c), any legal or other
expenses reasonably incurred by such otherwise indemnified person in
connection with investigating or defending any such action or claim.
(d) In no case shall a party be liable under this indemnity and
contribution agreement with respect to any claim unless such party shall be
notified in writing of the nature of the claim within a reasonable time
after the assertion thereof, but failure to so notify such party shall not
relieve such party from any liability which it may have otherwise than on
account of this indemnity and contribution agreement, unless such party has
been prejudiced by such failure. Such party shall be entitled to
participate at its own expense in the defense or, if it so elects within a
reasonable time after receipt of such notice, to assume the defense of any
suit so brought, which defense shall be conducted by counsel chosen by it
and satisfactory to the indemnified person (or person entitled to
contribution hereunder) or parties, defendant or defendants therein.
Each party agrees to notify the other party within a reasonable time of the
assertion of any claim in connection with the sale of the Units against it or
any of its officers or directors or any controlling persons within the meaning
of Section 15 of the 1933 Act.
Section 9. STATUS OF PARTIES. In marketing Units pursuant to this
Agreement, the Additional Selling Agent is acting solely as an agent for the
Fund, and not as a principal. The Additional Selling Agent will use its best
efforts to assist the Fund in obtaining performance by each purchaser solicited
by the Additional Selling Agent whose offer to purchase Units from the Fund has
been accepted on behalf of the Fund, but the Additional Selling Agent shall not
have any liability to the Fund in the event that Subscription Agreements and
Powers of Attorney are improperly completed or any such purchase is not
consummated for any reason. Except as specifically provided herein, the
Additional Selling Agent shall in no respect be deemed to be an agent of the
Fund.
Section 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or
contained in certificates of any party hereto submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
made by, or on behalf of, the Additional Selling Agent, the General Partner, the
Fund, or any person who controls any of the foregoing, and shall survive the
Closing Dates.
Section 11. TERMINATION. In addition to any other termination rights set
forth elsewhere in this Agreement, each party shall have the right to
terminate this Agreement: (i) at any time upon no less than fifteen (15)
business days' prior written notice to the non-terminating party; or (ii) at
any time upon written notice to the non-terminating party in the event the
non-terminating party breaches a material representation, warranty or
covenant of this Agreement.
Section 12. SURVIVAL. Section 2 (with respect to compensation payable for
Units outstanding as of the date of termination) and Sections 6, 8, 13, 14, 15
and 16 hereof shall survive the termination of this Agreement for any reason.
20
Section 13. NOTICES AND AUTHORITY TO ACT. All communications hereunder
shall be in writing and, if sent to the General Partner or the Fund, shall be
mailed, delivered or faxed and confirmed to the General Partner at: Dearborn
Capital Management, L.L.C., 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, facsimile: (000) 000-0000, Attention: Xx. Xxxxx X. Xxxxxxxx;
with copies to: Xxxxxx Xxxxxx Xxxxx Xxxxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, facsimile: (000) 000-0000, Attention: Xx. Xxxxxx
X. Xxxxxx and Xx. Xxxx X. Xxxx and, if sent to the Additional Selling Agent,
shall be mailed, delivered or faxed and confirmed to it at___________________,
Attention: _______________, with copies to __________________________________,
Attention: _______________. Notices shall be effective when actually received.
Section 14. PARTIES; ASSIGNMENT. This Agreement shall inure to the benefit
of and be binding upon the Additional Selling Agent, the Fund, the General
Partner and such parties' respective successors and permitted assigns to the
extent provided herein. This Agreement and the conditions and provisions hereof
are intended to be and are for the sole and exclusive benefit of the parties
hereto and their respective successors, permitted assigns and controlling
persons and parties indemnified hereunder, and for the benefit of no other
person, firm or corporation. No purchaser of a Unit shall be considered to be a
successor or an assignee solely on the basis of such purchase. No party may
assign its rights or obligations under this Agreement to any other person
without the prior written consent of the other parties hereto.
Section 15. GOVERNING LAW. This Agreement and the rights and obligations of
the parties created hereby shall be governed by the laws of the State of
Illinois.
Section 16. CONSENT TO JURISDICTION. The parties hereto agree that any
action or proceeding arising directly, indirectly, or otherwise in connection
with, out of, related to, or from this Agreement, any breach hereof, or any
transaction covered hereby, shall be resolved, whether by arbitration or
otherwise, within the City of Chicago. Accordingly, the parties hereto consent
and submit to the jurisdiction of the federal and state courts and applicable
arbitral body located within the City of Chicago. The parties further agree that
any such action or proceeding brought by any party to enforce any right, assert
any claim, or obtain any relief whatsoever in connection with this Agreement
shall be brought by such party exclusively in the federal or state courts, or if
appropriate, before any applicable arbitral body, located within the City of
Chicago.
The General Partner and the Fund each agree that, at the request of the
Additional Selling Agent, they will submit any action or proceeding referred to
in this Section 16 to NFA arbitration in the City of Chicago, and agree to
execute and deliver to the Additional Selling Agent the Additional Selling
Agent's standard form of arbitration agreement, as required by NFA Rules.
Section 17. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original and all of which together shall be deemed one
and the same instrument.
21
If the foregoing is in accordance with your understanding of their
agreement, you are requested to sign and return to the General Partner and the
Fund a counterpart hereof, whereupon this instrument along with all counterparts
will become a binding agreement among the parties in accordance with its terms.
Very truly yours,
GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
By: Dearborn Capital Management, L.L.C.,
General Partner
By:
--------------------------------------
Xxxxx X. Xxxxxxxx, President
DEARBORN CAPITAL MANAGEMENT, L.L.C.
By: Dearborn Capital Management, Ltd.
its Managing Member
By:
--------------------------------------
Xxxxx X. Xxxxxxxx, President
Confirmed and accepted as of
the date first above written:
[ADDITIONAL SELLING AGENT]
By:
----------------------------------------
Title:
-------------------------------------
22
