ASPECT GLOBAL DIVERSIFIED FUND LP SELLING AGREEMENT
Exhibit
1.1
Aspect
Global Diversified Fund LP (the “Partnership”), a
limited partnership organized pursuant to a certificate of limited partnership
filed on March 23, 2007 (the “Certificate of Limited
Partnership”) and a limited partnership agreement dated as of March 23,
2007 (the “Limited
Partnership Agreement”) under the Delaware Revised Uniform Limited
Partnership Act (the “DRULPA”), will offer,
subject to the terms and conditions set forth in this Selling Agreement (“Agreement”), to,
sell, and issue up to an aggregate of 1,200,000 units of limited partnership
interest in the Partnership (“Units”), in three
series of Units (“Series A Units”,
“Series B
Units” and “Series I Units”,
collectively, the “Units”).
Xxxxxx
& Company, Inc., a Maryland corporation (“SCI”), is the sole
general partner of the Partnership (the “General
Partner”).
The
undersigned (the “Selling Agent”), a
_________________ will act as a selling agent for the Partnership on a “best
efforts” basis, in accordance with the terms and conditions of this Agreement
and consistent with the Registration Statement (defined in Section
1(a) below).
1. Representations and
Warranties of the General Partner and the Partnership. Each of
the General Partner and the Partnership severally represent and warrant to the
Selling Agent as follows, provided that with respect to
representations and warranties regarding the General Partner or its principals
under this Section 1 only the General Partner (and not the
Partnership) makes such General Partner related representations and
warranties:
(a) The
Partnership has provided to the Selling Agent, and filed with the Securities and
Exchange Commission (the “SEC”) on
[_____________], 2008, a registration statement on Form S-1 (SEC File No.
333-148049), as declared effective by the SEC on [_____________], 2008, for the
registration of an aggregate of 1,200,000 Units, under the Securities Act of
1933, as amended (the “1933 Act”), and the
rules and regulations promulgated by the SEC thereunder (the “SEC Regulations”).
Copies of such registration statement have also been filed with: (i) the
Financial Regulatory Authority (“FINRA”) pursuant to
its Conduct Rules; and (ii) the National Futures Association (the “NFA”) in accordance
with NFA Compliance Rule 2-13. The registration statement and
the prospectus included therein are hereinafter called the “Registration
Statement” and the “Prospectus,”
respectively, except that if the Partnership files a post-effective amendment to
its registration statement or is supplemented, then the term “Registration
Statement” shall, from and after the filing of each such amendment or
supplement, refer to the Registration Statement, as amended by such amendment or
supplement, and the term “Prospectus” shall refer to the amended prospectus then
on file with the SEC as part of the Registration Statement; and if a prospectus
as first issued in compliance with the SEC Regulations shall differ from the
prospectus on file at the time the applicable Registration Statement or any
amendment thereto shall have become effective, the term “Prospectus” shall refer
to the prospectus most recently so issued from and after the date on which it
shall have been issued, including any amendment or supplement thereto. The
Partnership will not file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus revising disclosure concerning the
Selling Agent unless the Selling Agent has received reasonable prior notice of
and a copy of such amendment or supplement and has not reasonably objected
thereto in writing within one business day of receipt of such notice and
copy.
(b) The
Limited Partnership Agreement provides for the subscription for and sale of the
Units; all action required to be taken by the General Partner and the
Partnership as a condition to the
sale of
the Units to qualified subscribers therefore has been, or prior to each Monthly
Closing (as defined in Section 3(b) hereof) will have been taken; and, upon
payment of the consideration therefor specified in each accepted Subscription
Agreement and Power of Attorney, in the form included in the Prospectus (the
“Subscription
Agreement”), the Units will constitute valid limited partnership
interests in the Partnership.
(c) The
Partnership is a limited partnership duly organized pursuant to the Certificate
of Limited Partnership, the Limited Partnership Agreement, and the DRULPA, and
is validly existing under the laws of the State of Delaware with full power and
authority to engage in the trading of futures, swaps, options and
over-the-counter contracts, including currency forwards traded in the United
States and internationally (as described in the Prospectus) and to engage in its
other contemplated activities as described in the Prospectus; the Partnership
has received a certificate of authority to do business in the State of Maryland
and is qualified to do business in each jurisdiction in which the nature or
conduct of its business requires such qualification and where the failure to be
so qualified could materially adversely affect the Partnership’s ability to
perform its obligations hereunder.
(d) The
General Partner is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Maryland, and is qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the nature or conduct of its business requires such qualification and
where the failure to be so qualified could materially adversely affect the
General Partner’s ability to perform its obligations hereunder or under the
Limited Partnership Agreement, or as described in the Prospectus.
(e) Each
of the Partnership and the General Partner has full partnership or corporate
power and authority, as applicable, under applicable law to conduct its business
and perform its respective obligations, as applicable, under the Limited
Partnership Agreement.
(f) When
the Registration Statement becomes effective under the 1933 Act and at all times
subsequent thereto, up to and including each Monthly Closing, the Registration
Statement and the Prospectus will comply in all material respects with the
requirements of the 1933 Act, the SEC Regulations, the Commodity Exchange Act,
as amended (the “CEAct”), the rules
and regulations adopted by the Commodity Futures Trading Commission (the “CFTC”) under the
CEAct (the “CFTC
Rules”), and the rules of the FINRA and the NFA. As of its
effective date, the Registration Statement will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading. The Prospectus, as of its date of issue and as of each
Monthly Closing, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which such statements were made, not
misleading. Any supplemental sales literature employed in offering
the Units (“Sales
Literature”), when read in conjunction with the Prospectus, as of its
date of issue and as of each Monthly Closing, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which such
statements were made, not misleading. Any Sales Literature will
comply with the 1933 Act, the SEC Regulations, the CEAct, the CFTC Rules, and
the rules of the FINRA and the NFA. This representation and warranty
shall not, however, apply to any statement or omission in the Registration
Statement, Prospectus, or Sales Literature relating to the Selling Agent or made
in reliance upon and in conformity with information furnished by the Selling
Agent.
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(g) The
accountants who certified the financial statements filed with the SEC as part of
the Registration Statement are, with respect to the General Partner and the
Partnership, independent public accountants as required by the 1933 Act and the
SEC Regulations.
(h) The
financial statements filed as part of the Registration Statement and those
included in the Prospectus present fairly the financial position of the
Partnership and of the General Partner as of the dates indicated; and, to the
best of its knowledge, said financial statements have been prepared in
conformity with generally accepted accounting principles (as described
therein).
(i) Since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated in or
contemplated by the Registration Statement and the Prospectus, there has not
been any material adverse change in the condition, financial or otherwise,
business or prospects of the General Partner or the Partnership, whether or not
arising in any ordinary course of business.
(j) The
General Partner will have a net worth at each Monthly Closing sufficient in
amount and satisfactory in form to meet the net worth requirements set forth in
the Limited Partnership Agreement and will maintain its minimum investment in
Units of General Partnership Interest as provided in the Limited Partnership
Agreement.
(k) The
Limited Partnership Agreement and this Agreement have each been duly and validly
authorized, executed, and delivered by the General Partner on behalf of the
Partnership and the General Partner, and each constitutes a valid and binding
agreement of the Partnership and of the General Partner, enforceable in
accordance with its terms.
(l) The
execution and delivery of the Limited Partnership Agreement, will not
violate, or constitute a breach of, or default under, the certificate of
incorporation or bylaws of the General Partner, the Certificate of Limited
Partnership or the Limited Partnership Agreement of the Partnership, or any
other agreement or instrument by which either the General Partner or the
Partnership, as the case may be, is bound, or any law, order, rule, or
regulation applicable to the General Partner or the Partnership of any court,
governmental body, administrative agency, panel, or self-regulatory organization
having jurisdiction over the General Partner or the Partnership.
(m) Except
as set forth in the Registration Statement or the Prospectus, there has not been
in the five years preceding the date of the Prospectus and there is not pending
or, to the best of the General Partner’s knowledge, threatened, any action,
suit, or proceeding at law or in equity before or by any court, governmental
body, administrative agency, panel, or self-regulatory organization to which the
Partnership, the General Partner, or any of the “principals” of the General
Partner, as defined in CFTC Rule 4.10(e) (“General Partner
Principals”), is or was a party, or to which any of the assets of the
General Partner or the Partnership is or was subject; and neither the General
Partner nor any General Partner Principal has received any notice of an
investigation by the SEC, CFTC, FINRA, or NFA regarding non-compliance by the
General Partner, the General Partner Principals, or the Partnership with the
1933 Act, the SEC Regulations, the Securities Exchange Act of 1934, as amended
(the “1934
Act”), any other federal securities laws, rules or regulations, the
CEAct, the CFTC Rules, or the rules of the FINRA or the NFA, which action, suit,
proceeding, or investigation resulted or might reasonably be expected to result
in any material adverse change in the condition, financial or otherwise,
business or prospects of the General Partner or the Partnership, or which could
be material to an investor’s decision to invest in the Partnership.
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(n) The
General Partner and each “principal” of the General Partner, as defined in CFTC
Rule 3.1(a), have all federal, state, and foreign governmental, regulatory,
self-regulatory, and exchange approvals, licenses, registrations, and
memberships, and have effected all filings with federal, state, and foreign
governmental regulators, self-regulatory organizations, and exchanges required
to conduct their business and to act as described in the Registration Statement
and the Prospectus, or required to perform their obligations under the Limited
Partnership Agreement, the Futures Account Agreement dated March 11, 2008 by and
between the Partnership and Newedge Financial, Inc. and this
Agreement. The General Partner is registered as a commodity pool
operator (“CPO”) and introducing
broker (“IB”)
under the CEAct and is a member of the NFA as a commodity pool operator and
introducing broker. The General Partner is also registered as a
broker-dealer and investment advisor with the SEC and is a member of
FINRA. The General Partner’s principals identified in the Prospectus
are all of the General Partner Principals.
(o) To
the extent required under CFTC Rules and applicable CFTC staff no-action
letters, the actual performance of all pools “operated” within the meaning of
the CEAct by the General Partner and the General Partner Principals as a CPO are
disclosed in the Prospectus. To the extent required under CFTC Rules and
applicable CFTC staff no-action letters, the actual performance of all pools
“operated” within the meaning of the CEAct by the Trading Advisor and the
Trading Advisor’s Principals as a CTA are disclosed in the
Prospectus.
2. Covenants of the Partnership
and the General Partner. The Partnership as to itself, and the
General Partner as to itself covenants and agrees as follows:
(a) The
Partnership will use its best efforts to cause the Registration Statement to
become effective as promptly as possible. The Partnership will
prepare and file with the SEC, CFTC, FINRA and NFA any amendments to the
Registration Statement, and any amendments and supplements to the Prospectus,
which the General Partner determines are necessary or advisable in connection
with the offering and sale of Units, and will use its best efforts to cause the
same to become effective as promptly as possible.
(b) If
the Partnership is advised or obtains knowledge thereof, the Partnership will
promptly advise the Selling Agent of any requests made by the SEC, CFTC, FINRA,
or NFA to amend the Registration Statement, to amend or supplement the
Prospectus, or for additional information, or of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement, of any
order by the SEC, CFTC, FINRA, or NFA preventing or suspending the use of the
Prospectus, or of the institution of any proceedings for any such purpose, and
will use its best efforts to prevent the issuance of any such order and, if any
such order is issued, to obtain the lifting thereof as promptly as
possible.
(c) If,
at any time after the effective date of the Registration Statement and any
amendment thereto, any event occurs involving the Partnership, the General
Partner, or any General Partner Principal, or of which the Partnership, the
General Partner, or any General Partner Principal is aware, as a result of which
the Registration Statement or the Prospectus, as then amended and supplemented,
would include any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein (and, with respect to the Prospectus, in light of the circumstances
under which they were made) not misleading, or if it becomes necessary or
desirable at any time to amend or supplement the Registration Statement or the
Prospectus to comply with the 1933 Act, the SEC Regulations, the CEAct, the CFTC
Rules, or the rules of the FINRA or the NFA, the Partnership will promptly
notify the Selling Agent thereof and will prepare and
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file with
the SEC, CFTC, FINRA, and NFA an amendment or supplement that will correct such
statement or omission or that will effect such compliance.
(d) The
Partnership will furnish to the Selling Agent copies of the Registration
Statement, the Prospectus, all amendments and supplements thereto, and all
annual reports delivered to Limited Partners, in each case as soon as available
and, in the case of the Prospectus, in such quantities as the Selling Agent may
reasonably request for delivery to it.
3. Appointment of the Selling
Agent.
(a) Subject
to the terms and conditions set forth in this Agreement, the Partnership hereby
appoints the Selling Agent on a non-exclusive basis as its selling agent to
offer and sell Units on a best efforts basis, without any firm commitment on the
part of the Selling Agent to purchase any Units. The Selling Agent
shall offer for sale up to an aggregate of 1,200,000 Units and such additional
Units as the General Partner may, in its discretion, register and offer for sale
from time to time (subject to the right of the General Partner in its discretion
to refuse accepting any subscriptions on behalf of the Partnership as provided
in Section 3(c)).
(b) Units
shall be offered for sale in the Partnership’s continuing offering (the “Continuing
Offering”), at monthly closings to be held as of the last business day of
the month in which a subscription is accepted (each, a “Monthly Closing”).
Subscription Agreements and funds must be received by the Partnership on the
fifth business day (or the 6th
business day for personal checks) prior to the date of the first day of a month
at which the subscription is intended to be accepted by the Partnership. At the
first Monthly Closing at which Units of a Series are issued, Units of that
Series will be issued at a price equal to $100.00 per Unit, and, thereafter,
Units of that Series will be issued at a price per Unit equal to 100% of the net
asset value (as defined in the Limited Partnership Agreement) of that Series as
of the close of business on the date of the applicable Monthly
Closing. The minimum initial subscription shall be
$10,000. The minimum subscription for subscribers who already own
Units and desire to make an additional investment is $2,500. The
General Partner in its discretion may waive such minimum subscription
requirements. The number of Units received by a subscriber will be
rounded to the fourth decimal place.
(c) Notwithstanding
any provision to the contrary herein, the General Partner will have the sole
discretion to accept or reject any subscription for Units in whole or in part at
any time prior to acceptance.
(d) Except
as provided in Section 3(e) below, no selling commissions will be charged
upfront with respect to the sale of Units. The Partnership
understands, however, that the Selling Agent may compensate its employees from
upfront and ongoing payments made by the General Partner to the Selling Agent
with respect to sales of the Series A Units, or from investment advisory fees
charged by the Selling Agent to investors purchasing Series B Units, as
described in Section 3(e).
(e) As
sales compensation for the sale of Series A Units by the Selling Agent, the
General Partner shall pay the Selling Agent an upfront commission of 2% of the
aggregate subscription amount and 2% per year (paid monthly in arrears starting
the 13th month)
based upon month end net asset value (“NAV”) of outstanding
Series A Units, subject to the Fee Limit (as defined below in this Section 3)
(the “Selling Agent
Commission”). The General Partner shall pay the Selling Agent
a 0.15% annual servicing fee, paid monthly in arrears based on month end NAV of
the outstanding Series A Units sold by the Selling Agent, subject to the Fee
Limit (the “Series A
Servicing Fee”). The General Partner
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shall
also pay broker dealers who sell Series B Units a 0.60% annual servicing fee,
paid monthly in arrears based on month end NAV of the outstanding Series B
Units, subject to the Fee Limit (the “Series B Servicing
Fee”). However, if the Selling Agent’s customers investment in
the Partnership is held by a third party custodian, as part as an advisory
platform, which charges the Partnership a servicing fee, the Selling Agent
agrees that the ongoing sales commissions described herein shall no longer be
paid to the Selling Agent for Series B Units sold by the Selling
Agent. The Selling Agent shall not receive any compensation for the
sale of Series I Units. For other series of Units, the General
Partner shall pay the Selling Agent such amounts as are agreed to in advance in
writing by the parties. The General Partner shall determine in its
reasonable discretion whether the Selling Agent’s efforts resulted in the
investment into the Partnership being made and therefore whether any
compensation will be payable to the Selling Agent in accordance with the terms
hereof and will take into account, among other things, whether the Subscription
Agreement signed by the investor names the Selling Agent. The
Partnership is not obligated to accept the subscription of any investor and may
reject any investor in its sole and absolute discretion. Nothing
contained herein shall limit or waive the right of the Partnership to require
withdrawal or redemption, in whole or in part, of an investor in the
Partnership.
“Fee Limit” is the
total amount of Selling Agent Commissions, Series A Servicing Fee, Series B
Servicing Fee payments for sales conferences, and other Offering Expenses (but
excluding among other items, the production and printing of prospectuses and
associated envelopes, folders and printed pieces provided with the prospectuses,
as well as various legal and regulatory fees) paid by particular Series A, B or
I Units, as applicable, when it is equal to 10.00% of the original purchase
price paid by holders of those particular Units. The General Partner,
in its sole discretion and in good faith, shall determine when any individual
holdings in a Series of Units reaches its Fee Limit. When any Series
of Units sold by a Selling Agent reaches its Fee Limit at the end of any month,
or it is anticipated to reach the Fee Limit during the following month (prior to
month end), such Units shall be exchanged into Series C Units, (in exchange for
the originally purchased Series A, B or I Units), which do not pay any Selling
Agent Commissions or a Broker Dealer Servicing Fee. As a result, it
is possible for a subscriber to have its Series A, B or I Units exchanged for
Series C Units prior to reaching the Fee Limit. If a subscriber’s
Series A, B or I Units are exchanged for Series C Units prior to reaching the
Fee Limit, the General Partner and the Selling Agent shall not seek additional
fees from such subscriber.
Units may
be exchanged for lower fee cost Units (i.e. A Units into B Units or I Units, or
B Units into I Units) upon the written approval of both the Selling Agent and
General Partner, provided that no such approval shall be required with respect
to the conversion of a Unit which has reached or approached the Fee
Limit.
All sales
related compensation, as well as additional sales charges, if any, for Units
sold by the Selling Agent are subject to the requirements of any applicable
regulatory authority and no compensation shall be paid to Selling Agents which
is deemed by the General Partner to be in violation of any existing or future
regulatory or legal requirement.
If and to
the extent Units sold by the Selling Agent are redeemed or transferred by their
original owners, the Selling Agent, beginning in the month in which such
redemption or transfer occurs, shall no longer have any right to any
compensation with respect thereto. The compensation to the Selling Agent
hereunder shall be paid within twenty-one (21) days after the General Partner
receives these fees from the Partnership (without interest).
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If
investors who hold Units request in writing that they become clients of another
selling agent, (“transferee firm”) and
if that transferee firm has or enters into a selling or servicing agreement with
the Partnership, the Selling Agent agrees that the ongoing sales commissions
and/or Broker Dealer Servicing Fees described herein shall transfer to the
transferee firm as reasonably determined by the General Partner.
If
investors who hold Units request in writing that they become clients of a
registered advisor in a fee-based advisory program, and that they no longer be
associated with the Selling Agent, the Selling Agent agrees that the ongoing
sales commissions and/or Broker Dealer Servicing Fees shall cease.
If total
compensation to the Selling Agent is less than $100 per month, compensation will
be paid on a semi-annual basis, paid in July and January (without
interest).
(f) The
Selling Agent acknowledges that it shall have no rights with respect to any
redemption fees that are imposed on Limited Partners and payable to the General
Partner under the Limited Partnership Agreement.
4. Representations, Warranties
and Undertakings of Selling Agent.
(a) The
Selling Agent represents and warrants to each of the Partnership and the General
Partner, and the Selling Agent agrees, as follows:
(i) The
Selling Agent is a corporation, limited partnership, limited liability company,
or other organization duly organized and validly existing and in good standing
under the laws of the state of its organization, is a member in good standing of
the FINRA, and has full power and authority to act as selling agent in the
manner contemplated by this Agreement and as described in the Registration
Statement and the Prospectus. The Selling Agent is in good standing
and qualified to do business in each jurisdiction in which the nature or conduct
of its business requires such qualification and where the failure to be duly
qualified would materially adversely affect the Selling Agent’s ability to
perform its obligations hereunder.
(ii) The
Selling Agent and any employees or representatives of the Selling Agent who are
engaged in the offering or sale of Units are in good standing and in compliance
with all applicable broker-dealer registration or license requirements, or
registered principal or registered representative requirements in the places
where the Units will be offered or sold by the Selling Agent.
(iii) The
Selling Agent will offer and sell Units in compliance with the requirements set
forth in the Registration Statement, the Prospectus, the Subscription Agreement,
and this Agreement. The Selling Agent will comply fully at all times
with all applicable federal, state, and foreign securities and commodities laws
(including, without limitation, the 1933 Act, the 1934 Act, the CEAct, and the
state securities (“Blue Sky”) laws of
the jurisdictions in which the Selling Agent solicits subscriptions), and all
requirements of the FINRA (particularly Conduct Rule 2810), the Board of
Governors of the Federal Reserve System, and the securities and commodities
exchanges and other governmental regulators and self-regulatory authorities and
organizations having jurisdiction over the Selling
Agent. Specifically: (A) the Selling Agent will not
permit the purchase of any Units by a customer account over which the Selling
Agent has discretionary authority without the prior written approval by the
customer owning such account; (B) in recommending to a subscriber the
purchase or redemption of Units, the Selling Agent shall take such measures as
are reasonably necessary to assure itself that its employees making such
recommendations (1) have informed such subscriber of all pertinent facts
relating to the
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liquidity
and marketability of the Units, and (2) have reasonable grounds to believe,
on the basis of information obtained from such subscriber concerning the
subscriber’s investment objectives, other investments, financial situation and
needs, and any other information known by such employees,
that: (a) such subscriber is or will be in a financial position
appropriate to enable the subscriber to realize to a significant extent the
benefits described in the Prospectus, (b) such subscriber has a fair market
net worth sufficient to sustain the risks inherent in the purchase of Units,
including loss of investment and lack of liquidity, and (c) the purchase of
Units is otherwise suitable for such subscriber; (C) the Selling Agent
shall take such measures as are reasonably necessary to assure itself that each
subscriber has received a Prospectus prior to the applicable Monthly Closing;
and (D) the Selling Agent will maintain all files containing information
disclosing the basis upon which the determination of suitability was reached for
each subscriber for a period of 6 years following the earlier of (1) when such
information was last replaced or updated or (2) when the account belonging to
such subscriber was closed.
(iv) The
Selling Agent will not distribute any information about the Partnership, the
General Partner, the General Partner Principals or the Units or make any
representations concerning the Partnership, General Partner, the General Partner
Principals or the Units, other than those in the Prospectus or in Sales
Literature provided by the Partnership or the General Partner.
(v) The
Selling Agent may offer or sell Units which are made available by the
Partnership for purchase and will only receive compensation for the offer and
sale of such Units in accordance with the provisions of Section 3(e) of this
Agreement, and will not charge or receive any other fees or commissions in
respect thereof.
(vi) The
Selling Agent will not remit any portion of any compensation received in
connection with the offer and sale of Units to any employee of the Selling Agent
unless such employee is legally qualified and permitted to receive such
compensation. In that regard, any employee of the Selling Agent who
receives such remittance must be in good standing with the FINRA as a registered
principal or representative of the Selling Agent, be registered or licensed as
an agent in the state or other jurisdiction where the investor to whom the Units
were sold resides, and be authorized under such registrations or licenses to
sell securities such as the Units.
(vii) This
Agreement has been duly and validly authorized, executed, and delivered by the
Selling Agent and constitutes a valid and binding agreement of the Selling
Agent, enforceable in accordance with its terms.
(viii) The
execution and delivery of this Agreement, the incurrence of the obligations set
forth herein, and the consummation of the transactions contemplated herein will
not violate, or constitute a breach of, or default under, any certificate,
articles, bylaws, agreement, or other instrument by which the Selling Agent is
bound or any law, order, rule or regulation applicable to the Selling Agent of
any court, governmental body, administrative agency, panel, or self-regulatory
organization having jurisdiction over the Selling Agent.
(b) The
Selling Agent agrees to use its best efforts to offer and sell Units on the
terms set forth in this Agreement, the Registration Statement, and the
Prospectus. It is understood that the Selling Agent has no commitment
to offer and sell Units or to purchase Units, other than to use its best efforts
to offer and sell Units.
(c) The
Selling Agent will make the public offering of Units at the offering prices and
on the other terms and conditions set forth in the Registration Statement, the
Prospectus, and this Agreement. The Selling Agent will offer and sell
Units only to persons who satisfy the suitability and/or
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minimum
investment requirements set forth in the Prospectus and the Subscription
Agreement and who, to the General Partner’s satisfaction, complete a
Subscription Agreement. The Selling Agent will conduct a thorough
review in accordance with the terms of this Agreement to assure the suitability
of each subscriber for Units and the accuracy and completeness of each
Subscription Agreement before forwarding it to the General Partner.
(d) Subscription
Agreements, payment and all required documentation must be received by the
General Partner from the Selling Agent at least five business days (or 6
business days for subscriptions with personal checks) prior to the date of the
first day of a month at which the subscription is intended to be accepted by the
Partnership. The General Partner will notify the Selling Agent and
the investor by the last business day of the month in which their complete
Subscription Agreement (including payment and all required
documentation) has been received by the General Partner of its acceptance or
rejection of the subscription.
(e) All
funds from subscriptions received by the Selling Agent during the Continuing
Offering will be promptly deposited by the Selling Agent in the Bank Account as
described below. A subscriber whose Subscription Agreement is
received by the Selling Agent and whose subscription is not immediately rejected
by the Selling Agent must pay the full subscription amount by check or by means
of available funds in the subscriber’s customer account with the Selling Agent
by the first business day following the date that the subscriber’s Subscription
Agreement is received by the Selling Agent, and the Selling Agent will transfer
such subscription funds, by check from the subscriber or by wire transfer from
the subscriber’s account, to a bank account, currently maintained at Bank of
America (the “Bank
Account”), within 2 business days of receipt of such subscription funds
by the Selling Agent, but in no event less the 5th
business day (or the 6th
business day for personal checks) prior to the date of the first day of a month
at which the subscription is intended to be accepted by the
Partnership. All checks received from the Selling Agent from
subscribers shall be made payable to “Aspect Global Diversified Fund
LP”. The Selling Agent will notify the General Partner of the
subscription amount deposited in the Bank Account on behalf of each subscriber
for Units and the name, residence address, and social security or taxpayer
identification number of each such subscriber.
(f) The
Selling Agent shall promptly upon receipt deliver to the General Partner all
completed Subscription Agreements of investors solicited by the Selling Agent
and any documents relating to such subscription for final approval by the
General Partner.
(g) All
subscriptions received and accepted by the General Partner will, upon the
satisfaction at each Monthly Closing of the conditions set forth in Sections 7
and 8 hereof, be delivered to the Partnership at each Monthly
Closing. Any interest earned during the Continuing Offering Period on
a subscriber’s subscription funds on subscriptions accepted by the General
Partner will be applied to the purchase of additional Units for such
subscriber. Any interest earned on a subscriber’s subscription funds
on subscriptions rejected by the General Partner, together with any subscription
amount rejected by the General Partner, will be promptly returned to the Selling
Agent or to the investor, depending upon from where we received the payment,
either by check payable to the subscriber for prompt transmittal by the Selling
Agent to the subscriber (if the subscription was paid with the subscriber’s
check), or by wire transfer for prompt credit to the subscriber’s customer
account with the Selling Agent (if the subscription was paid by wire transfer
from the subscriber’s customer account with the Selling Agent).
(h) Any
amounts credited to a subscriber’s customer account with the Selling Agent for a
returned subscription and/or for interest earned will be immediately available
for withdrawal from
9
such
account. In the event a subscriber’s customer account with the
Selling Agent has been closed, any subscription returned and/or interest earned
will be paid by check directly to the investor.
(i) The
Selling Agent represents, warrants and covenants that it: (i)
maintains anti-money laundering policies and procedures that comply with all
applicable anti-money laundering laws and regulations, including the USA PATRIOT
Act; (ii) collects and maintains all documentation and other evidence reasonably
related to determining the identity and sources of funding of each person who
submits a Subscription Agreement to the Selling Agent, as required by any
applicable anti-money laundering laws or regulations to which the Selling Agent
is subject; (iii) complies with all applicable anti-money laundering laws,
regulations, policies and procedures; (iv) will promptly deliver to the General
Partner, to the extent permitted by applicable law, notice of any violation of
applicable anti-money laundering laws, regulations and policies that relates to
each person who submits a Subscription Agreement to the Selling Agent; and (v)
will cooperate with the General Partner and deliver information reasonably
requested by the General Partner concerning each person who purchased Units sold
by the Selling Agent necessary for the General Partner to comply with all
applicable anti-money laundering laws, regulations and policies.
5. Blue Sky
Filings. The Partnership
will use its best efforts to qualify Units for offer and sale under the Blue Sky
laws of such jurisdictions as the Selling Agent may reasonably request, to make
applications, file documents, and furnish information as may be reasonably
required for that purpose, and to comply with such laws so as to permit the
continuance of sales and dealings in such jurisdictions for as long as may be
necessary to complete the offer and sale of Units; provided, however, that neither
the Partnership nor the General Partner will be required to qualify as or be
subject to taxation as a foreign partnership or corporation or to execute a
general consent to service of process in any jurisdiction, nor shall the
Partnership be obligated to qualify Units for offer or sale in any jurisdiction
where the General Partner, in its sole discretion, deems the conditions for such
qualification to be unreasonable, unduly burdensome, or excessively
expensive. The Partnership further agrees that its counsel will
prepare and deliver to the Selling Agent Blue Sky Surveys which will set forth,
for the Selling Agent’s guidance, in what manner, at what time, in what amounts,
and by whom Units may be offered and sold in jurisdictions requested by the
Selling Agent as provided above.
6. Closings.
(a) Monthly
Closings in the Continuing Offering will be held as of the last business day of
each month in which a subscription is accepted.
(b) Subject
to its right to reject any subscription in its sole discretion in whole or in
part at any time prior to acceptance, the General Partner, on behalf of the
Partnership, will accept subscriptions for Units properly made and cause proper
entry to be made in the Unit register to be maintained by the General
Partner. No certificate evidencing Units shall be issued to any
subscriber; rather, the Selling Agent will deliver confirmations in its
customary form to subscribers whose subscriptions have been accepted by the
General Partner at each Monthly Closing.
(c) At
each Monthly Closing, the delivery, receipt, and acceptance of subscriptions for
Units will be subject to the terms and conditions set forth in this Agreement,
including the following: (i) payment of the full subscription
price for Units and delivery of a properly completed Subscription Agreement by
each subscriber; and (ii) compliance with Section 7
hereof. Upon satisfaction of such terms and conditions, the aggregate
subscription price for Units will be paid and delivered to the
10
Partnership
at each Monthly Closing in accordance with the Registration Statement and
applicable Subscription Agreement.
7. Conditions of the Selling
Agent’s Obligations.
(a) The
Selling Agent’s obligations to proceed with the offering and sale of Units and
each Monthly Closing will be subject to: (i) the accuracy of the
representations and warranties by the Partnership and the General Partner in
this Agreement as of the date hereof and as of the date of such Closing as if
such representations and warranties had been made on and as of the date thereof;
(ii) the performance by the Partnership and the General Partner of their
respective covenants and agreements herein; and (iii) the additional
conditions precedent set forth below.
(b) Except
as indicated below, at each Monthly Closing, the additional conditions precedent
are as follows:
(i) The
Registration Statement will have become effective. No stop order
suspending the effectiveness of the Registration Statement will have been issued
and no proceedings for that purpose will have been instituted or be pending or,
to the knowledge of the Partnership or the Selling Agent, be contemplated or
threatened by the SEC. No order preventing or suspending the use of
the Prospectus will have been issued and no proceedings for that purpose will
have been instituted or be pending or, to the knowledge of the Partnership or
the Selling Agent, be contemplated or threatened by the SEC, CFTC, FINRA, or
NFA. Any requests of the SEC, CFTC, FINRA, or NFA for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) will have been complied with to the Selling Agent’s
satisfaction.
(ii) The
Selling Agent will not have advised the Partnership or the General Partner that,
in its reasonable opinion, the Registration Statement or the Prospectus contains
any untrue statement of a material fact or any omission to state a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they were
made) not misleading.
(iii) All
agreements of the Partnership or General Partner contemplated herein or in the
Registration Statement or the Prospectus shall have been duly executed and
delivered.
8. Indemnification.
(a) The
Partnership will indemnify and hold the Selling Agent harmless against any and
all loss, liability, claim, damage and expense (including reasonable attorneys’
and accountants’ fees and including the costs of investigating any event)
arising out of or based upon (i) a material breach by the Partnership of any
warranty, representation, covenant or agreement in this Agreement; (ii) any
material violation of any applicable law by the Partnership; (iii) Partnership’s
negligence, misconduct or bad faith with regard to its obligations under this
Agreement; (iv) actions of the Partnership, its employees and agents relating to
any misrepresentation by Partnership to Selling Agent relating to the processing
of purchase and redemption orders with respect to Units and the servicing of
customer accounts; or (v) any unauthorized verbal or written representations
made by the Partnership or any agent or affiliate of the Partnership or the
General Partner regarding the Partnership, the Units or the General
Partner.
(b) The
General Partner will indemnify and hold the Selling Agent harmless against
11
any
and all loss, liability, claim, damage and expense (including reasonable
attorneys’ and accountants’ fees and including the costs of investigating any
event) arising out of or based upon (i) a material breach by the General Partner
of any warranty, representation, covenant or agreement in this Agreement; (ii)
any material violation of any applicable law by the General Partner; (iii) the
General Partner’s negligence, misconduct or bad faith with regard to its
obligations under this Agreement; (iv) actions of the General Partner, its
employees and agents relating to any misrepresentation by General Partner to
Selling Agent relating to the processing of purchase and redemption orders with
respect to Units and the servicing of customer accounts; or (v) any unauthorized
verbal or written representations made by the General Partner or any agent or
affiliate of the General Partner regarding the Partnership, the Units or the
General Partner.
(c) The
Selling Agent will indemnify and hold the Partnership and the General Partner
harmless against any and all loss, liability, claim, damage and expense
whatsoever (including reasonable attorneys’ and accountants’ fees) arising out
of or based upon (i) a material breach by the Selling Agent of any warranty,
representation, covenant or agreement in this Agreement; (ii) any material
violation of any applicable law by the Selling Agent or its agents; (iii)
Selling Agent’s negligence, misconduct or bad faith with regard to its
obligations under this Agreement; (iv) actions of the Selling Agent, its
employees and agents relating to any misrepresentation by Selling Agent to the
Partnership or the General Partner relating to the processing of purchase and
redemption orders with respect to Units and the servicing of customer accounts;
or (v) any unauthorized verbal or written representations made by the Selling
Agent or any agent or affiliate of Selling Agent regarding the General Partner
and/or the Partnership.
(d) Promptly
after receipt by an indemnified party under Section 8(a), 8(b) or 8(c) of notice
of the commencement of an action or claim to which either such Section may
apply, the indemnified party shall notify the indemnifying party in writing of
the commencement of such action or claim. The failure so to notify the
indemnifying party shall not relieve the indemnifying party of any liability
that the indemnifying party may have to the indemnified party under either such
Section, except to the extent such failure shall have materially prejudiced the
indemnifying party.
(e) In
case any such action or claim shall be brought against an indemnified party and
the indemnified party shall notify the indemnifying party of the commencement of
such action or claim, the indemnifying party shall be entitled to participate in
such action or claim and, to the extent that the indemnifying party may desire,
to assume the defense of such action or claim at its own expense with counsel
selected by the indemnifying party and approved by the indemnified
party. After notice from the indemnifying party to the indemnified
party of the indemnifying party's election so to assume the defense of such
action or claim, the indemnifying party shall not be liable to the indemnified
party under either such Section for any legal, accounting, and other expenses
subsequently incurred by the indemnified party in connection with the defense of
such action or claim other than reasonable costs of investigation.
(f) Notwithstanding
any provision of this Section 8 to the contrary, if in any action or claim as to
which indemnity is or may be available, an indemnified party shall reasonably
determine that its interests are or may be adverse, in whole or in part, to the
interests of the indemnifying party or that there may be legal defenses
available to the indemnified party that are or may be different from, in
addition to, or inconsistent with the defenses available to the indemnifying
party, the indemnified party may retain its own counsel in connection with such
action or claim and shall be indemnified by the indemnifying party for any
legal, accounting and other expenses reasonably incurred by or on behalf of it
in connection with investigating or defending such action or claim.
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(g) Neither
party may consent to entry of any judgment or enter into any settlement that
imposes any obligation (including the payment of money), nor liability on the
other party, unless the other party consents thereto in writing or such judgment
or settlement includes an unqualified release for the other party.
(h) Notwithstanding
Sections 8(a) through 8(c) above, no party hereunder will be indemnified for
violations of federal or state securities laws, or any other intentional or
criminal wrongdoing.
Each of the parties to this Agreement
understands that the obligations of each party pursuant to
this Section are separate and distinct.
The indemnities set forth in this
Section 8 shall survive the termination of this Agreement and are in addition to
any other obligations or liabilities the parties hereto may have.
9. Termination. Each
of the parties shall have the right to terminate this Agreement at any time by
giving written notice of such termination to the other parties. The
General Partner may at any time withdraw the Registration Statement or otherwise
terminate the Partnership’s application for registration of Units with the SEC
or any state under that state’s Blue Sky law.
10. Survival. The
respective indemnities, agreements, obligations, representations, warranties,
and other statements of the parties hereto set forth in this Agreement or in any
certificates delivered pursuant hereto will remain in full force and effect
(regardless of any investigation or any statement as to the results thereof made
by, or on behalf of, the Selling Agent, the Partnership, the General Partner or
any officer, director, controlling person, or agent of any of the foregoing) and
will survive the delivery of and payment for Units and the termination or
expiration of this Agreement, and each Monthly Closing.
11. Notices. All
notices required or desired to be given under this Agreement must be in writing
and will be effective when given personally on the date delivered or, when given
by mail, on the date of receipt, addressed as follows (or to such other address
as the party entitled to notice hereafter designates in accordance with the
terms hereof):
if to the
Partnership or the General Partner:
c/o
Steben & Company, Inc.
0000
Xxxxxxx Xxxx
Xxxxx
000
Xxxxxxxxx,
Xxxxxxxx 00000
|
|
Attn:
|
Xxxxxxx
Xxxxxx, President
|
|
|
Xxxxx
Xxxxxxxxx, General Counsel
|
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if to the
Selling Agent:
_______________________
_______________________
_______________________
_______________________
_______________________
|
|
Attn:
|
_________________
|
|
|
_________________
|
12. Successors. This
Agreement will be binding upon and inure solely to the benefit of the Selling
Agent, the Partnership and the General Partner (and to the extent provided in
Section 8 hereof, the “affiliates” of the Partnership, the General Partner,
the Selling Agent, and the respective heirs, executors, administrators,
successors, and assigns of such persons), and no other person will acquire or
have any rights under or by virtue of this Agreement. No purchaser of
Units will be deemed to be a successor or assign to any party hereto merely by
reason of such purchase.
13. Assignment;
Amendment. This Agreement may not be assigned by any party
hereto without the prior express written consent of all other
parties. This Agreement may not be amended except by the express
written consent of all parties hereto.
14. Governing Law;
Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws. If any action or proceeding shall be brought by
a party to this Agreement to enforce any right or remedy under this Agreement,
each party hereto hereby consents and will submit to the jurisdiction of the
courts of the State of New York or any federal court sitting in the County, City
and State of New York. Any action or proceeding brought by any party
to this Agreement 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 courts of the State of New York or any federal court sitting
in the County, City and State of New York.
15. Severability. In
the event that any provisions of this Agreement are invalid or conflict with
applicable law, the other provisions of this Agreement shall remain in full
force and effect to the maximum extent permitted under applicable
law.
16. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.
[SIGNATURE
PAGE FOLLOWS]
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If the
foregoing Agreement is satisfactory to you, please so indicate by signing at the
place provided below.
| By: |
Xxxxxx
& Company, Inc., General Partner
|
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|
|
By:
|
|||
| Name: | ||||
| Title: | ||||
| Date: | ||||
|
Xxxxxx
& Company, Inc.,
General
Partner
|
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|
|
By:
|
|||
| Name: | ||||
| Title: | ||||
| Date: | ||||
| Name of Selling Agent | |||
|
By:
|
|||
| Name: | |||
| Title: | |||
| Date: | |||
15
