Exhibit 10.6
FUTURES PORTFOLIO FUND, L.P. ADVISORY AGREEMENT
This ADVISORY AGREEMENT is entered into as of December 1, 2004 by and
among Xxxxxx & Company, Inc., a Maryland corporation (the "General Partner"),
Futures Portfolio Fund, LP, a Maryland limited partnership (the
"Partnership"), and DKR Fusion Management LP, a Delaware Limited Partnership
(the "Advisor"), whose main business address is 0000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000.
RECITAL
The Partnership wishes to retain the Advisor to manage a commodity
trading account of the Partnership (the "Account") that the Partnership will
establish for that purpose. For purposes of this Agreement, the Account shall
consist of the Account Allocation (as defined in Section 3(a) below), Trading
Profits, all additions thereto and withdrawals therefrom and all amounts that
become part of the Account as a result of the transactions therein.
NOW THEREFORE, the parties agree as follows:
1. Advisor's Duties
(a) The Advisor will trade "commodities" (as defined in ss.1(g) below)
for the Account, pursuant to the terms and conditions of this Agreement.
However, nothing in this Agreement or in the Advisor's activities for the
Partnership shall cause the Advisor to be a partner of, joint venturer with or
have a similar relationship to the General Partner, any other trader for the
Partnership.
(b) Subject to the provisions of this Agreement, the Account will be
managed on a pari passu basis with the portfolio of the DKR Quantitative
Strategies Program (the "Program"), as described in Appendix I attached
hereto; provided, however, that notwithstanding anything to the contrary
herein, the Partnership acknowledges that investments for the Account may not
be made on a pari passu basis, due to, among other things, differing liquidity
needs with respect to withdrawal requests, different tax situations, and the
testing of new strategies which may be practical or appropriate only for
certain accounts.
(c) The Advisor will use its reasonable efforts to generate profits for
the Account, but makes no assurance that the Account will be profitable or not
incur losses.
(d) In managing the Account pursuant to this Agreement and all other
accounts which the Advisor manages from time to time, the Advisor will manage
the Account and all such other accounts in a good faith effort to achieve an
equitable treatment of all accounts under management.
(e) If position limits restrict the number of positions the Advisor may
establish for the Account, it will use its reasonable efforts to allocate
transaction orders equitably between the Account and the other accounts it
manages.
(f) The Advisor will place orders for the Account through Calyon
Financial Inc. or such futures commission merchants as is mutually agreed upon
by the Advisor and the General Partner (the "FCM"). The Advisor may select its
own executing and/or floor brokers for execution of trades and give-up to the
FCM. The Advisor is not responsible for the brokerage commission rates charged
to the Partnership by the FCMs which execute commodity transactions for the
Account. All purchases and sales of commodities for the Account shall be for
the account and at the risk of the Partnership. All commissions and expenses
arising from the trading of, or other transactions in the course of the
administration of, the Account shall be charged to the Partnership.
(g) The Advisor has provided information to the Partnership and the
General Partner which has been included in the Private Offering Memorandum of
the Partnership dated December 1, 2004. The Advisor will promptly advise the
General Partner of any occurrence that renders this Agreement or the
information on the Advisor contained in the Private Offering Memorandum of the
Partnership materially inaccurate or materially incomplete, whether as of the
date of this Agreement or at a later date.
(h) As used in this Agreement, the terms "commodities" and "commodity
transactions" shall mean and include, without limitation, commodities,
commodity futures contracts, commodity options, forward contracts and other
commodity interests.
(i) The Advisor shall give the Partnership written notice as promptly as
reasonably practicable of any proposed material change in the Advisor's
trading systems, methods, models, strategies, or formulae or the manner in
which trading decisions are to be made or implemented and shall not make any
such proposed material change without having given the Partnership at least 20
business days prior written notice of such change. The addition and/or
deletion of commodity interests from the Partnership's portfolio managed by
the Advisor ordinarily shall not be deemed a change in the Advisor's trading
systems, methods, models, strategies, or formulae and prior written notice to
the Partnership shall not be required therefore.
2. Compensation
(a) The Partnership will pay the Advisor: (i) after the end of each
quarter a management fee of 0.5% of the Account's Net Assets (as defined in
ss.2(b) below) at the end of the quarter (2% annually); and (ii) after the end
of each year an incentive fee of 20% of any "Trading Profits" (as defined in
ss.2(c) below) generated by the Advisor in the Account during the respective
year. Payment shall be made within 30 days after the quarter-end for
management fees and calendar year-end for incentive fees after an invoice has
been provided to the Partnership by the Advisor.
(b) "Net Assets" are the Notional Account Allocation (defined below)
increased or decreased by any all Trading Profits (including from previous
years).
(c) "Trading Profits" are the sum of: the net of all realized and
unrealized profits and losses on the Notional Account Allocation for the
respective calendar year; minus: any cumulative net realized and unrealized
losses (which shall not include incentive fee expenses) from the Advisor's
trading of the Account carried forward from all previous periods since the
last period for which an incentive fee was payable to the Advisor, and any
management fees paid or accrued to the Advisor. Trading Profits will be
calculated solely on the basis of assets allocated to the Advisor and
incentive fees will not be paid on interest income earned in the Account.
(d) With regard to the carry-forward loss referred to in ss.2(c) above:
If the Partnership withdraws funds from the Account during a period (whether
by reason of redemptions, distributions, or reallocations of assets) when
there is such a carry-forward loss, the loss shall be reduced, at the time of
the withdrawal, by the percentage obtained by dividing the amount of the
withdrawal by the Account's Net Assets immediately before the withdrawal.
(e) If any portion of the Account is withdrawn at any time other than at
the end of a fiscal year, a pro rata portion of any Management Fee and
Incentive Fee accrued by the Advisor will be paid to the Advisor at that time.
If this Agreement is terminated at any time other than at the end of a fiscal
year, the Advisor will receive any Management Fee and Incentive Fee accrued by
the Advisor in respect of the Account at that time.
(f) The FCM shall value all open forward, option, futures or options on
futures contract positions at their liquidating value (or cost of liquidation,
as the case may be). All other assets of the Account (except goodwill, which
shall not be taken into account) shall be assigned such value as the FCM may
reasonably determine. The Partnership (or the FCM) shall send the Account
valuations to the Advisor on a monthly basis. The FCM shall also determine the
Net Assets of the Account and shall send a Net Assets Report to the Advisor on
a monthly basis, in a form reasonably acceptable to the FCM and the Advisor.
If the Advisor disagrees with the FCM's determination of the Net Assets of the
Account, the Advisor shall send a written notice to the Partnership and the
FCM of such disagreement and the basis therefore within 15 business days after
the Advisor's receipt of the monthly report of the Net Assets of the Account.
Thereafter, the Partnership, FCM and the Advisor shall use reasonable efforts
to resolve such disagreement within 15 business days of Partnership's receipt
of notification. If the parties are not able to agree on the Net Assets of the
Account, the Advisor's auditors will determine the Net Assets of the Account
Value to be used in calculating the fees set forth above.
3. Funding of the Account
(a) The Partnership shall contribute to the FCM the capital necessary to
meet margin requirements for the Advisor to manage the Account (the "Account
Allocation"). Initially, the Advisor will manage pursuant to this Agreement a
notional amount equal to US$50,000,000 (the "Notional Account Allocation").
The Notional Account Allocation shall be calculated exclusive of profits and
losses.
(b) The Partnership may reallocate its assets between the various
advisors managing its accounts and withdraw capital from the Account at any
time. The Partnership shall promptly notify the Advisor, by telephone or
telex, of any such withdrawal, and shall to the extent feasible give the
Advisor advance written notice of such withdrawal. The
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Partnership may add capital to the Account at any time with the prior approval
of the Advisor and shall promptly notify the Advisor of any such intended
action.
(c) The Partnership, and not the Advisor, shall manage the non-commodity
transactions of the Account, such as the purchase of U.S. Treasury bills.
4. Discretionary Trading and Funds Transfer Authorization
The Partnership hereby authorizes the Advisor to place orders, in the
Advisor's discretion, with the FCM for the execution of commodity transactions
for the Account. The Partnership constitutes and appoints the Advisor as its
attorney-in-fact for such purpose, with full authority to act on the
Partnership's behalf (except that the Advisor shall not have any authority to
withdraw any funds, securities or other property from the Account). Upon the
Advisor's request, the General Partner shall deliver to the Advisor, and renew
when necessary, a Commodity Trading Authorization form to the above effect.
5. Errors; Account Statements
The Advisor shall promptly notify: (a) the Partnership of any error
committed by the Advisor in transmitting Account orders, and (b) the
Partnership and the FCM of any Account transaction that the Advisor believes
was erroneously executed by the FCM. The General Partner shall instruct the
FCM promptly to furnish the Advisor with copies of all Account confirmations,
purchase and sale statements, and monthly account statements.
6. Advisor's Representations
The Advisor represents that this Agreement has been duly and validly
authorized, executed and delivered on behalf of the Advisor, and when duly
executed and delivered by the Partnership and the General Partner, will be a
valid and binding contract of the Advisor enforceable in accordance with its
terms.
7. General Partner's and Partnership's Representations and Covenants
The General Partner and the Partnership represent that:
(a) This Agreement has been duly and validly authorized, executed and
delivered and is a valid and binding contract of the General Partner and the
Partnership enforceable in accordance with its terms.
(b) The Partnership is duly formed and validly existing as a Maryland
limited partnership, with full partnership power to carry out its obligations
under this Agreement and its Agreement of Limited Partnership.
(c) The private offering memorandum pursuant to which the Partnership's
limited partnership interests will be offered, as amended and supplemented
from time to time, (collectively, the "Memorandum") will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they are made, not misleading, or omit to
state any material information required to be disclosed therein under the
Commodity Exchange Act, as amended (the "CEA"), the Securities Act of 1933, as
amended (the "1933 Act"), and the rules promulgated thereunder; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the General Partner by or on behalf of the
Advisor, including, without limitation, all references to the Advisor and its
affiliates (as defined in ss.8(h) below), controlling persons, shareholders,
partners, directors, officers and employees, as well as to such Advisor's
trading approach and performance history.
(d) The General Partner is duly formed and validly existing as a Maryland
corporation with full power and authority to carry out its obligations under
this Agreement and is registered with the Commodity Futures Trading Commission
("CFTC") as a commodity pool operator and is a member of the National Futures
Association ("NFA").
(e) The Partnership will make to the Partnership's limited partners (the
"Limited Partners") all disclosures necessary with respect to the retention of
the Advisor to manage the Account to comply with the CEA, the CFTC's
regulations thereunder, the rules and regulations of the NFA and the
applicable state and federal securities laws and regulations.
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(f) The Partnership represents, warrants and covenants to the Advisor
that the Partnership is and will remain a "qualified eligible person" within
the meaning of Regulation 4.7 under the Commodity Exchange Act and
acknowledges that, in reliance upon such regulation, the Advisor has not
delivered to the Partnership a CTA Disclosure Document.
(g) The Partnership hereby represents that the Units offered by the
Partnership are intended to qualify as "publicly-offered securities" as
defined in Department of Labor Regulation Section 2510.3-101(b)(2) so as to
avoid the assets of the Partnership being considered to be "plan assets" for
purposes of the Employee Retirement Income Security Act of 1974, as amended,
or Section 4975 of the Internal Revenue Code of 1986, as amended.
(h) The Partnership acknowledges that (i) the Advisor will employ
speculative trading strategies consistent with the Program, (ii) will employ
leverage consistent with the Program which, among other investment techniques,
can make its investment performance volatile, (iii) there is a risk that the
Partnership's investment in the Account may be lost in whole or in part, and
(iv) the Advisor's past performance is not necessarily indicative of future
results.
(i) The Partnership acknowledges: (i) that it has made an independent
decision to open the Account and that in making this decision, the Partnership
has relied solely upon this Agreement and independent investigations made by
the Partnership, (ii) no reliance on the Advisor, or any other person or
entity with respect to the legal, tax and other economic considerations
involved in this investment other than the Partnership's own advisers and
(iii) the Partnership's investment in the Account is consistent with the
investment purposes, objectives and cash flow requirements of the Partnership
and will not adversely affect the Partnership's overall need for
diversification and liquidity.
(j) The Partnership hereby represents that it has internal policies and
controls reasonably designed to prevent any investments in the Partnership by
people appearing in the Treasury Department Office of Foreign Assets Control
("OFAC") lists or by any senior foreign political figure or any immediate
family member or close associate of a senior foreign political figure. For
purposes of this paragraph, a "senior political figure" is defined as a senior
official in the executive, legislative, administrative, military or judicial
branches of a non-U.S. government (whether elected or not), a senior official
of a major non-U.S. political party, or a senior executive of a non-U.S.
government-owned corporation. In addition, a "senior foreign political figure"
includes any corporation, business or other entity that has been formed by, or
for the benefit of, a senior foreign political figure. "Immediate family" of a
senior foreign political figure typically includes the figure's parents,
siblings, spouse, children and in-laws. A "close associate" of a senior
foreign political figure is a person who is widely and publicly known to
maintain an unusually close relationship with the senior foreign political
figure, and includes a person who is in a position to conduct substantial U.S.
and non-U.S. financial transactions on behalf of the senior foreign political
figure.
(k) There are no actions, suits, proceedings or investigations pending
or, to the knowledge of the Partnership, threatened against the Partnership,
at law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrument or
any self-regulatory organization or any commodity exchange.
(1) The Advisor, either alone or in conjunction with the General Partner
or its affiliates, is not an organizer or promoter of the Partnership.
(m) All necessary and appropriate actions have been taken by the
Partnership and the General Partner to terminate any other trading managers
that previously managed the portions of the Partnership which are being
committed to the management of the Advisor pursuant to this Agreement.
(n) The Partnership is not required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
(o) The offer and sale of the limited partnership interests will be
conducted in accordance with all applicable federal and state laws and
regulations.
(p) The above representations and warranties shall be continuing during
the term of this Agreement and, if at any time, any event has occurred which
would make or tend to make any of the foregoing not true, the General Partner
will promptly notify the Advisor.
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8. Indemnification
(a) By the Partnership and the General Partner. The Partnership and the
General Partner jointly and severally agree to indemnify and hold harmless the
Advisor and each of its employees, principals, partners officers or any other
person who controls the Advisor and their respective shareholders, partners,
members, directors, officers, employees and controlling persons and the legal
representatives of any of them against any loss, claim, damage, charge, or
liability (collectively, "Losses") to which such parties may become subject,
resulting from a demand, claim, lawsuit, action or proceeding relating to this
Agreement or the services performed by the Advisor hereunder, except for
Losses arising from the Advisor's gross negligence, willful misconduct or
breach of this Agreement or a representation, warranty or agreement made
herein by the Advisor.
(b) By the Advisor. The Advisor agrees to indemnify and hold harmless
each of the Partnership and the General Partner and each affiliate thereof,
against any Losses to which such parties may become subject resulting from the
Advisor's gross negligence, willful misconduct, material breach of this
Agreement or a representation, warranty or agreement made herein by the
Advisor or due to materially inaccurate or materially incomplete disclosures
about the Advisor and its affiliates that were provided to the Partnership and
the General Partner by the Advisor for inclusion in the Partnership's
Memorandum.
(c) Limitations. None of the indemnifications contained in this Section
shall be applicable to default judgments, confessions of judgment or
settlements entered into by any indemnified party claiming indemnification
without the prior consent of the indemnifying party.
(d) Notice and Defense of Claims. Promptly after receipt by an
indemnified party under this section of notice of the commencement of any
action, that party will, if a claim in respect thereof is to be made against
an indemnifying party under this Section, notify the indemnifying party of the
commencement thereof, but the omission to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
under this Section. In case any such action is sought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, but shall continue to be liable to the indemnified
party in all other respect as heretofore set forth in this Section.
(e) Retention of Separate Counsel. If the indemnified party reasonably
determines that its interest is or may be adverse to the indemnifying party's
or that there may be a legal defense available to the indemnified party that
is different from, in addition to or inconsistent with a defense available to
the indemnifying party, the indemnified party may retain its own counsel and
shall be indemnified by the indemnifying party for any expenses reasonably
incurred in investigating or defending the action.
(f) Advances. Expenses incurred by an indemnified party in defending a
threatened or asserted claim or a threatened or pending action shall be paid
by the indemnifying party in advance of final disposition or settlement of
such matter, if and to the extent that the person on whose behalf such
expenses are paid shall agree to reimburse the indemnifying party in the event
indemnification is not permitted under this section upon final disposition or
settlement.
(g) Survival. The provisions of this Section shall survive the
termination or expiration of this Agreement.
(h) "Affiliate" means general partner, officer, director, employee, or
shareholder, and any general partner, officer, director, employee or
shareholder of such shareholder.
(i) The foregoing indemnification shall be in addition to, and shall in
no respect limit or restrict, any other remedies which may be available to an
indemnified party. The termination of any demand, claim, lawsuit, action or
proceeding by settlement shall not, in itself, create a presumption that the
conduct in question was not undertaken in good faith and without gross
negligence or willful misconduct.
(j) Notwithstanding any of the foregoing to the contrary, the provisions
of this Section 8 shall not be construed so as to provide (or attempt to
provide) for the indemnification of the parties for any liability (including
liability under federal securities laws which, under certain circumstances,
impose liability even on persons that act in good faith), to the extent (but
only to the extent) that such indemnification would be in violation of the
federal securities or other
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applicable law, but shall be construed so as to effectuate the provisions of
this Section 8 to the fullest extent permitted by law.
9. Term
(a) Term and Renewal. This Agreement shall continue in effect for a
period of one year following the end of the month in which the Partnership
shall begin to receive trading advice from the Advisor hereunder. Thereafter,
this Agreement shall be renewed automatically for additional one-year terms
unless either the Partnership or the Advisor, upon written notice given prior
to the original termination date or any extended termination date, shall
notify the other party of his or its intention not to renew.
(b) Termination. Notwithstanding Section 6(a) hereof, this Agreement
shall terminate:
(i) immediately if the Partnership shall terminate and be dissolved
in accordance with its Agreement of Limited Partnership or otherwise; or
(ii) immediately after receipt by the Advisor from the General
Partner or by the General Partner from the Advisor of written notice of
termination; or
(iii) immediately if the Advisor can no longer effectively implement
its or his trading strategy on behalf of the Partnership; or
(iv) immediately, at the discretion of the General Partner, if any
of the following events shall occur; (1) the Advisor shall become bankrupt or
insolvent; (2) the Advisor shall be unable to use all or any portion of his or
its trading systems, methods, models, strategies, or formulae as in effect on
the date of this Agreement, or as refined or modified in the future in
accordance herewith, for the benefit of the Partnership for any reason
whatsoever; (3) the Advisor's registration with the CFTC as a commodity
trading advisor or the Advisor's membership in the NFA in such capacity shall
expire or shall be revoked, suspended, terminated, not renewed, or limited,
conditioned, restricted, or qualified in any material respect; (4) the Advisor
shall change or violate any of the Trading Policies or any administrative
policy of the Partnership except with the prior written consent of the
Partnership; (5) the Partnership, upon receipt of not less than 20 business
days' prior written notice from the Advisor pursuant to Section 1(h) hereof,
shall send written notice to the Advisor stating that the material change
proposed by the Trading advisor in his or its trading systems, methods,
models, strategies, or formulae or the manner in which trading decisions are
to be made or implemented is unacceptable to the General Partner; (6) the
Advisor shall fail to perform any of its obligations under this Agreement.
10. Arbitration
The parties agree that all controversies which may arise in connection
with any transaction contemplated by this Agreement or the construction,
performance or breach of this Agreement or any other agreement between the
parties hereto, whether entered into prior, on or subsequent to the effective
date of this Agreement, shall be determined by arbitration, and in accordance
with the rules then obtaining of the NFA, or if no such rules are then in
effect, then the rules then obtaining of the Chicago Board of Trade; provided,
however, that (a) the arbitrator(s) shall be experienced in the matters to be
under dispute, (b) the authority of the arbitrator(s) shall be limited to
construing and enforcing the terms and conditions of this Agreement as
expressly set forth herein, and (c) the arbitrator(s) shall state the reasons
for the award in a written opinion. The award of the arbitrator(s), or a
majority of them, shall be final, and judgment upon the award may be confirmed
and entered in any court, state or federal, having jurisdiction.
11. Miscellaneous
(a) Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the matters referred to herein, and no
other agreement, verbal or otherwise, shall be binding as between the parties
unless it is in writing and signed by the party against whom enforcement is
sought.
(b) Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party. This Agreement shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
(c) Amendment; Waiver. This Agreement may not be amended except by the
written consent of the parties. No waiver of any provision of this Agreement
may be implied from any course of dealing between the parties or from any
failure by a party to assert its rights under this Agreement on any occasion
or series of occasions.
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(d) Severability. If any provision of this Agreement, or the application
of any provision to any person or circumstance, shall be held to be
inconsistent with any law, ruling, rule or regulation, the remainder of this
Agreement, or the application of the provision to persons or circumstances
other than those as to which it is held inconsistent, shall not be affected
thereby.
(e) Notices. All notices required or desired to be delivered under this
Agreement shall be in writing and shall be effective when delivered personally
on the day delivered, or, when given by registered or certified mail, postage
prepaid, return receipt requested, on the day of receipt, addressed as follows
(or to such other address as the party entitled to notice shall designate):
If to the Partnership Xxxxxx & Company, Inc.
and the General Partner: 00000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, President
If to the Advisor: At the address on page 1 above.
(f) Survival. The provisions of this Agreement shall survive the
termination of this Agreement with respect to any matter arising while this
Agreement was in effect.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with Illinois law (excluding the law thereof which requires the
application of, or reference to, the law of any other jurisdiction).
(h) Property Right of the Advisor. The Partnership, the General Partner
and their employees or agents acknowledge that commodity interest trading
advice provided and trading strategies used by the Advisor are confidential
property rights belonging to it; the Partnership further agrees, unless
authorized by the Advisor, that such advice will not be disseminated in whole
or in part, directly or indirectly, to any of the Limited Partners, brokers,
brokers' customers, employees, agents, officers, directors or any others,
except as necessary to conduct the business of the Partnership or except as
required by any applicable law or regulation. Nothing contained in this
Agreement shall require the Advisor to disclose the confidential or
proprietary details of its trading systems or strategies.
(i) Confidentiality.
Each of the parties to this Agreement agrees that they shall
not, and shall not permit any of their affiliates or employees to, at any
time, use or disclose to any person any confidential information of the other
parties, except as required for the purpose of providing the services and
performing its obligations under this Agreement. Without limiting the
foregoing, the General Partner and the Partnership acknowledge and agree that
the positions traded by the Advisor, models and processes are confidential
information. The parties agree that the General Partner and Partnership may
disclose to investors in the Partnership, during in-person meetings, selected
portfolio positions of the Account, provided that no written position reports
may be given to investors. The parties agree to take reasonable precautions to
maintain the confidentiality of confidential information and to inform its
representatives (and investors) of the confidential nature of confidential
information. The General Partner and Partnership agree that they shall not,
and shall cause their representatives not, to use any information or data
concerning the Account or its trading activities to recreate or reverse
engineer any of the Advisor's investment strategies, models or processes.
(j) Limit on Liability. The Advisor shall not be liable to the
Partnership, its partners or any of their respective successors or permitted
assigns except by reason of its acts or omissions taken or omitted due to
willful misconduct or gross negligence. The foregoing sentence is intended to
limit the liability of the Advisor, and nothing therein shall expressly or
impliedly create any liability, duty or responsibility on the part of any
person. Notwithstanding any of the foregoing to the contrary, the provisions
of this Section 11(j) shall not be construed so as to limit (or attempt to
limit) the liability of the parties (including liability under federal
securities laws which, under certain circumstances, impose liability even on
persons that act in good faith), to the extent (but only to the extent) that
would be in violation of the federal securities or other applicable law, but
shall be construed so as to effectuate the provisions of this Section 11(j) to
the fullest extent permitted by law.
(k) Agreement Not Exclusive. The Advisor's present business is advising
with respect to the purchase and sale of commodity interests. The services
provided by the Advisor hereunder are not to be deemed exclusive. The
Partnership and General Partner acknowledge that, subject to the terms of this
Agreement, the Advisor may render
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advisory, consulting and management services to other clients for which it may
charge fees similar or different from those charged to the Partnership. The
Advisor shall be free to advise others and manage other accounts during the
term of this Agreement and to use the same or different information, computer
programs and trading strategies which it obtains, produces or utilizes in the
performance of services for the Partnership.
(1) Right to Approve Offering Materials. The Partnership and the General
Partner each agree that it shall not place any advertisement in any media or
distribute or disseminate any offering materials including, without
limitation, letters, brochures and the Memorandum, which makes any reference
to the Advisor, this Agreement or the transactions or arrangements
contemplated herein without the prior written approval of the Advisor.
(m) Independent Contractor. This Agreement is not a contract of
employment, and nothing contained herein shall be construed to create an
exclusive relationship or the relationship of employer or agent and principal
or a joint venture or partnership between the parties hereto, except as
otherwise expressly set forth herein. Each of the Partnership, the General
Partner and the Advisor is an independent contractor and shall be free to
exercise its judgment and discretion with regard to the conduct of its
business except as otherwise limited herein.
(n) Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one original Agreement.
(o) Headings. Headings to sections and subsections in this Agreement are
for the convenience of the parties and are not a part of or affect the meaning
of this Agreement.
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION (THE
"CFTC") IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS
ACCOUNT DOCUMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN FILED WITH THE CFTC.
THE CFTC DOES NOT PASS UPON THE MERITS OF PARTICIPATING IN A TRADING PROGRAM
OR UPON THE ADEQUACY OR ACCURACY OF COMMODITY TRADING ADVISOR DISCLOSURE.
CONSEQUENTLY, THE CFTC HAS NOT REVIEWED OR APPROVED THE TRADING PROGRAM
ADOPTED HEREUNDER OR ANY BROCHURE OR ACCOUNT DOCUMENT.
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IN WITNESS WHEREOF this Advisory Agreement has been executed for and on behalf
of the undersigned as of the date first above written.
The Partnership: The Advisor:
Futures Portfolio Fund, L.P. DKR Fusion Management L.P.
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By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxx
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Xxxxxxx X. Xxxxxx, President Name: Xxxxxx Xxxxxx
Xxxxxx & Company, Inc. Title: Authorized Signatory
Xxxxxx & Company, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
Xxxxxx & Company, Inc.
9
APPENDIX I
INVESTMENT PROGRAM
Investment Objective
The objective of the Account is to identify statistical trading opportunities
in the marketplace and then formulate quantitative models that will exploit
these trading opportunities. A statistical trading opportunity exists when
certain quantifiable variables meet certain values and similar historical
observations have proven to yield, on average, a positive return. Currently,
the Account invests, holds, sells (long and short) and trades (on margin or
otherwise) in securities and other intangible investment instruments
consisting principally of financial futures, commodity futures and forwards,
foreign exchange forwards and OTC options. However, the Account is permitted
to invest in the broadest range of securities, commodities and other financial
instruments. Leverage is utilized as part of the Account's investment program.
Investment Philosophy
To execute and manage its investment program for the Account, the Advisor uses
quantitative strategies that are based on statistical models. A quantitative
strategy relies on mathematical and statistical principles and uses input data
that is readily available from data feed or data vendors. A complete
quantitative model analyzes statistical evidence in the investment process,
such as securities screening, timing of "buy" and "sell" signals, asset
allocation, portfolio risk management and trade executions. The Advisor's
discretion is used in the development of the models underlying the strategies
and the allocation of assets across strategies. To minimize slippage and
achieve best execution, some discretion may also be used in the order
execution methodology and the timing of trading. A systematic approach to
investing is very objective and trading decisions are not influenced by the
news of the moment.
The quantitative strategies utilized by the Account invest in liquid
securities so that positions can be phased in and out at will without raising
timing concerns.
The research and development process that yields quantitative strategies and
their trading systems consists of three stages:
l. Identification of statistical trading opportunities. Profitable
quantitative trading models are developed by studying the past. The Advisor
uses simulation programs, statistical software applications, charts, graphics,
and financial literature in the research process. The strategies and systems
utilized have been designed to identify as many statistical trading
opportunities as possible in order to produce steady returns while preserving
capital and incurring low volatility in trading performance. Preserving
capital when few or no profitable trading opportunities present themselves is
made possible through diversification. The Account achieves diversification by
trading as many markets as possible in search of profitable trading
opportunities, utilizing as many distinct, non-correlated strategies as
possible.
2. Formulation of the statistical model to exploit the identified trading
opportunities. Back-testing of a given strategy is accomplished by running
simulations on extensive historical data. All aspects of trading are
programmed into the simulation program in order to run realistic outcomes.
Trade execution assumptions in the simulation program are particularly
important to reflect properly transaction costs and derive realistic
performance numbers. A quantitative model is typically made of several parts
and each part is independently tested and evaluated on its own merit. Each
part is required to make significant contributions in order to be included in
the final product.
3. Validation of the model by back-testing the strategy. As with
formulation, validation of the statistical models follows a rigorous
scientific process. Daily evaluation of trading systems for each strategy
takes place in the form of a comparison of each strategy's performance with
its respective simulated or expected performance. The Advisor takes other
important steps in the validation process to manage methodology risk. Such
steps include in- and out-of-sample testing of the models and avoidance of
"curve fitting" of historical data by keeping the ratio of simulated trades to
the number of parameters high. "Curve fitting" occurs when a model has a good
simulated performance but no predictive power for the future. A sensitivity
analysis of the strategy's performance over different values of the model's
parameters is done to increase the robustness or predictive power of the
statistical model. Also, the Advisor has searched for quantitative strategies
with uniform performance over time and across markets, as the uniformity
characteristics preserve a model's value as a predictor of future performance.
Typically, those strategies following the above criteria yield the highest
risk-adjusted returns or highest Xxxxxx ratios. As the Advisor's investment
philosophy favors strategies predicted
to yield high Xxxxxx ratios or risk-adjusted returns (over those predicted to
yield high absolute returns), the statistical models as formulated and
validated enable the Advisor to execute and manage its investment program for
the Account.
As there are no fixed guidelines as to portfolio composition, the securities
comprising the portfolio reflect the Advisor's views as to which quantitative
strategies are implemented. The Advisor seeks to ensure that multiple
strategies are used at any given time in order to provide as much
diversification as possible. The Account's asset allocation to the different
strategies is part of the research process and the strategies' weighting will
be based on their own merits. The Advisor constantly monitors the markets
traded utilizing active pre-computed "buy" and "sell" levels and asset
rebalancing across strategies occurs monthly if necessary, as described
further under "Risk Management".
Risk Management
Each quantitative strategy has its own risk management system that manages
individual market stop loss levels, leverage and correlation of the securities
in the portfolio. Due to the extensive diversification of the portfolio, a
small amount of the Account's capital will be at risk in any given security,
although fast market conditions may cause greater losses. Leverage is utilized
in connection with the Account's investment program. Performance reviews of
each strategy utilized by the Account will take place and, provided the
individual strategies' respective performance is in line with the Advisor's
expectation for such performances, the Advisor will allocate the profits and
losses across all strategies. If a strategy's performance begins to deviate
from its historical norm, the Advisor will progressively reduce the allocation
to its trading system. Ultimately, if negative performance persists, a
strategy may be reengineered or completely phased out. The performance of the
entire portfolio is monitored by the Advisor on an intra-day basis utilizing
real-time monitoring tools. There can be no assurance that the Advisor's risk
management techniques and strategies will be successful at all times and in
all market conditions.
The descriptions contained herein of specific strategies that are or may be
engaged in by the Account should not be understood as in any way limiting the
Account's investment activities. The Account may engage in investment
strategies that are not described herein, but that the Advisor considers
appropriate for the Account.
The investment program of the Account is speculative and may entail
substantial risks. Since market risks are inherent in all securities
investments to varying degrees, there can be no assurance that the investment
objective of the Account will be achieved. In fact, certain investment
practices described above can, in some circumstances, potentially increase the
adverse impact on the Account's investment portfolio.
