EXHIBIT 1.05
AGREEMENT
THIS AGREEMENT, dated August 31, 2001, is by and between Xxxxxxxx &
Company, Inc. ("Xxxxxxxx"), a commodity trading advisor and commodity pool
operator, the Xxxxxxxx Strategic Allocation Fund, L.P. ("CSAF") a Delaware
limited partnership, X. Xxxx, Inc. ("HBI"), a Maryland corporation, and Xxxxxx &
Company, Inc. ("SCI"), a Maryland corporation.
WHEREAS, Xxxxxxxx, CSAF and HBI are parties to an agreement dated January
12, 1994 titled "Xxxxxxxx Strategic Allocation Fund, L.P. Auxiliary Selling
Agreement" (the "Auxiliary Selling Agreement"), the terms of which provide that
Xxxxxxxx will compensate HBI, a broker-dealer registered with the Securities and
Exchange Commission ("SEC") and a member of the National Association of
Securities Dealers, Inc. ("NASD"), for providing certain services to and for
CSAF;
WHEREAS, Xxx Xxxxxx, a registered representative of HBI, was instrumental
in establishing the relationship evidenced by the Auxiliary Selling Agreement
and currently, along with other HBI registered representatives (who also are
employees of SCI), provides services on behalf of HBI under the Auxiliary
Selling Agreement, and will continue to provide such services subject to the
terms of this Agreement;
WHEREAS, Xxx Xxxxxx is the President and principal stockholder of SCI, a
commodity introducing broker and commodity pool operator which Xxx Xxxxxx
desires to register as an SEC and NASD broker-dealer; and
WHEREAS, the parties hereto desire to transfer all of HBI's rights,
obligations and benefits under and to the Auxiliary Selling Agreement from HBI
to SCI, and, in such event, that Xxx Xxxxxx shall provide such services under
the Auxiliary Selling Agreement solely on behalf of SCI as he had previously
provided under the Auxiliary Selling Agreement on behalf of HBI.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Assignment and Acceptance. HBI hereby transfers and assigns all of its
rights, title, interest and benefits under and to the Auxiliary Selling
Agreement to SCI, free and clear of any claims, pledges, liens or other
encumbrances, which SCI hereby accepts.
2. Assumption. SCI hereby assumes the obligations of HBI under the
Auxiliary Selling Agreement and agrees to perform and to be bound by each and
every term and provision of the Auxiliary Selling Agreement and the parties
hereto agree that by SCI's execution of this Agreement it shall be and become a
party to the Auxiliary Selling Agreement in the place and stead of HBI and HBI
shall be deemed to cease to be a party thereto and shall have no rights,
interests or benefits thereunder.
3. Effectiveness. Notwithstanding the parties' execution of this
Agreement, this Agreement shall only become effective upon SCI's execution of an
NASD Membership Agreement (which shall indicate that SCI may engage in
activities relating to the private placement of securities) and the NASD's
acceptance of such Membership Agreement, thereby evidencing SCI's status as a
broker-dealer registered with the SEC and as a member of the NASD, as long as
this takes place within two years of the date of this Agreement.
4. Selling Agreement. The parties acknowledge and agree that promptly
after the effectiveness of this Agreement, Xxxxxxxx, CSAF and SCI will enter
into a new selling agreement on terms and conditions similar to the terms and
condition contained in the Selling Agreement between and among HBI, Xxxxxxxx and
CSAF, dated January 12, 1994 (the only difference being those changes as
reflected in the "Form of Selling Agreement among the Partnership, the General
Partner, PaineWebber Incorporated and the Selling Agent" as filed as Exhibit
1.01 by CSAF as part of its Registration Statement on August 8, 2000, and any
additional changes that may be made to the Form after that date).
5. Other Agreements. Except as may be expressly set forth herein, HBI and
SCI agree that the terms of this Agreement shall not affect the terms and
provisions of any prior agreement entered into between HBI and SCI.
6. Miscellaneous.
A. This Agreement shall be binding and inure to the benefit of the
heirs, executors, administrators, successors and assigns of the parties and
each of their respective heirs, executors, administrators, successors and
assigns.
B. This Agreement constitutes legal, valid and binding obligations of
the parties, enforceable in accordance with its terms. This Agreement may
not be modified unless the modification is in writing signed by all of the
parties hereto.
C. If any provision of this Agreement is held to be invalid, void or
unenforceable, the remaining provisions of this Agreement shall remain
valid and shall be enforced and construed as if such invalid portion were
never as a part of this Agreement.
D. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to principles
of conflicts of law.
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E. This Agreement may be signed in one or more counterparts, each of
which shall be an original and all of which together form one and the same
instrument.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
executed as of the last date shown below.
XXXXXXXX & COMPANY, INC.
By: /s/ XXXXXXX X. XXXXX 8/31/01
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Chief Financial Officer Date
XXXXXXXX STRATEGIC ALLOCATION FUND, L.P.
By: /s/ XXXXXXX X. XXXXX 8/31/01
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Chief Financial Officer Date
Xxxxxxxx & Company, Inc., G.P.
H. XXXX, INC.
By: /s/ XXXX X. XXXXXXX 8/27/01
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Senior Vice President Date
XXXXXX & COMPANY, INC.
By: /s/ XXX XXXXXX 8/30/01
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President Date
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