Exhibit 1.02
ADDITIONAL SELLER AGREEMENT
________________
(Date)
Xxxx Xxxxxx Xxxxxxxx Inc.
Two World Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Xxxx Xxxxxx Spectrum Select L.P., Xxxxxx Xxxxxxx Xxxx
Xxxxxx Spectrum Technical L.P., Xxxxxx Xxxxxxx Xxxx Xxxxxx Spectrum Strategic
L.P., Xxxxxx Xxxxxxx Xxxx Xxxxxx Spectrum Global Balanced L.P., Xxxxxx Xxxxxxx
Xxxx Xxxxxx Spectrum Currency L.P., and Xxxxxx Xxxxxxx Xxxx Xxxxxx Spectrum
Commodity L.P. (collectively, the "Partnerships," and individually, a
"Partnership"), each a limited partnership organized under the Delaware Revised
Uniform Limited Partnership Act, are proposing concurrently to offer and sell,
and issue, up to 11,000,000, 33,000,000, 19,000,000, 11,000,000, 15,000,000, and
7,000,000 units of limited partnership interest (the "Units"), respectively, in
accordance with the terms and conditions set forth in the Amended and Restated
Selling Agreement, dated as of o (the "Selling Agreement"), among you, each of
the Partnerships, and Demeter Management Corporation, a Delaware corporation
which is the general partner of each of the Partnerships (the "General
Partner"), and in accordance with the effective registration statements on Form
S-1 listed in Schedule A attached hereto, including the exhibits and any
amendments thereto, as filed by the Partnerships with the Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "1933 Act"). Such registration statements, in the form in which they have
become effective under the 1933 Act, are herein referred to each individually as
a "Registration Statement," and collectively as the "Registration Statements,"
and the prospectus constituting a part of the last Registration Statement under
the 1933 Act in the form last filed
with the SEC pursuant to Rule 424 under the 1933 Act, together with any
supplements thereto, is herein referred to as the "Prospectus."
Pursuant to the Selling Agreement, you were appointed the selling
agent for the Units to use your best efforts to offer and sell Units and, in
that connection, you were authorized under the Selling Agreement to appoint,
with the written approval of the General Partner, as your agent to make offers
and sales of Units, certain securities brokers or dealers (each such broker or
dealer, an "Additional Seller"). All capitalized terms used herein shall have
the meanings ascribed to them in the Selling Agreement unless otherwise defined
herein or unless the context indicates otherwise.
On the basis of the terms, conditions, and agreements contained in
this Agreement, we agree with you as follows:
1. We agree to become an Additional Seller, to use our best efforts
to offer and sell the Units on the terms stated in this Agreement, the Selling
Agreement, the Registration Statements, and the Prospectus, and to comply with
the terms and conditions of this Agreement and the Selling Agreement in making
offers and sales of Units.
2. We, as an Additional Seller, represent and warrant to you, as
follows:
(a) We are a corporation, partnership, or other entity duly
organized, validly existing, and in good standing under the laws of the
jurisdiction indicated on the signature page hereof, and are qualified to do
business and are in good standing in each jurisdiction in which the nature or
conduct of our business requires such qualification and where the failure to be
so qualified could materially adversely affect our ability to perform our
obligations hereunder. We have full power and authority under applicable law to
conduct our business and perform our obligations under this Agreement.
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(b) We have all U.S. federal and state, and non-U.S. regulatory and
self-regulatory approvals, licenses, registrations, and memberships, and have
effected all filings with U.S. federal and state, and non-U.S. governmental
regulators and self-regulatory organizations required to conduct our business
and required to perform our obligations under this Agreement. Specifically, we
are either: (i) a broker or dealer who is (A) registered and in good standing as
such with the SEC under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and (B) registered or licensed and in good standing as such under
the respective securities laws of the 50 states, the District of Columbia, and
Puerto Rico, where such registration or licensing is required for us to
consummate offers and sales of Units as contemplated by this Agreement, and (C)
a member in good standing of the National Association of Securities Dealers,
Inc. (the "NASD"); or (ii) a non-U.S. broker or dealer not eligible for
membership in the NASD, in which case we agree: (A) to make no offers or sales
of Units within the United States, its territories or possessions, or areas
subject to its jurisdiction, or to persons who are citizens thereof or residents
therein, (B) that in making offers and sales of Units, we will comply with the
"Free-Riding and Withholding Interpretation" in IM-2110-1 to NASD Conduct Rule
2110, and NASD Conduct Rules 2730 and 2750, as if we were a member of the NASD,
and NASD Conduct Rule 2420 as it applies to a non-member non-U.S. broker or
dealer, (C) that we will not offer or sell any Units in any non-U.S.
jurisdiction until we effect, at our cost and expense, any and all registration
or qualification filings with regard to the Units, the Partnerships or the
General Partner as may be required under the securities or other laws of such
jurisdiction (we will provide you, at our cost and expense, an opinion of
qualified counsel, satisfactory in form and substance to you, confirming that
any such filings have been properly effected, or that no such filings were
required, prior to the time a Subscription and Exchange Agreement and Power of
Attorney, in the form annexed to the Prospectus as Exhibit B (the "Subscription
Agreement"), is delivered by
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a resident of any non-U.S. jurisdiction), and (D) that because limited partners
in the Partnerships have a right of exchange (redemption of Units and purchase
of Units with the proceeds of the redemption) among the Partnerships, we will
maintain and update as necessary, at our cost and expense, any required
registration or qualification filings effected pursuant to the immediately
preceding clause (C) so long as any person resident in such non-U.S.
jurisdiction remains a Limited Partner.
(c) This Agreement has been duly and validly authorized, executed,
and delivered by us and constitutes our valid and binding agreement, enforceable
against us in accordance with its terms.
(d) 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, our certificate of incorporation or bylaws, partnership certificate or
agreement, or other organizational document, or any other agreement or
instrument by which we are bound or any order, law, rule, or regulation
applicable to us of any court, governmental body, administrative agency, panel,
or self-regulatory organization having jurisdiction over us.
3. It is understood and agreed that we shall not, without your prior
written approval, publish, circulate, distribute, or otherwise use any
advertisement or solicitation material relating to the Units, other than the
Prospectus and any other selling literature supplied by you to us expressly for
such purpose ("Selling Literature"). We understand and acknowledge that we are
not authorized by you, the General Partner, or any Partnership to make any
representations in connection with the offering of Units other than those
contained in the Prospectus. It is agreed that, upon our written request, you
shall provide us with copies of the Registration Statements.
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4. We will offer and sell Units only to persons who satisfy the
suitability and/or minimum investment requirements set forth in the Prospectus
and the Subscription Agreement (and as may be required by the law of any
non-U.S. jurisdiction in which we may offer Units) and who, to the General
Partner's satisfaction, complete a Subscription Agreement. We will conduct a
thorough review of the suitability of each subscriber for Units. We will forward
subscriptions to the General Partner's office at Two World Trade Center, 62nd
Floor, New York, New York 10048-0026 (or such other office as you may notify
us), no later than noon of the first business day following our receipt of an
acceptable Subscription Agreement from a subscriber for Units, by mail or
courier, so that the General Partner should receive such Subscription Agreement
at least five business days prior to the applicable Monthly Closing. We will
arrange for the opening of a customer account with you for each such subscriber
for the purpose of paying for subscriptions, crediting of interest thereon,
redemptions of Units, and receipt of any distributions thereon. We understand
that subsequent to its review of each Subscription Agreement, the General
Partner will notify us, and we shall notify each subscriber by the business day
following our receipt of notice from the General Partner, of the General
Partner's acceptance of all, a portion, or none of the subscriber's
subscription. We understand that the General Partner may reject subscriptions,
in whole or in part, for any reason, and we agree that we shall not be entitled
to commissions with respect to any rejected subscriptions. All payments for
subscriptions by subscribers shall be made as provided under the heading
"Subscription Procedure" in the Prospectus. You shall be responsible for the
deposit of subscription funds into the Escrow Account as described under the
heading "Plan of Distribution" in the Prospectus. You shall be responsible for
issuance and delivery of interim receipts to subscribers.
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5. We will offer and sell Units in compliance with the requirements
set forth in the Registration Statements, the Prospectus (particularly under the
captions "Summary -- Investment Requirements," "Plan of Distribution,"
"Subscription Procedure," and "Purchases by Employee Benefit Plans -- ERISA
Considerations"), the Subscription Agreement, the Selling Agreement, and this
Agreement. We will deliver a Prospectus to each subscriber to whom we sell Units
at least five (5) business days prior to the "Initial Closing", or "Monthly
Closing" (as defined in the Prospectus) at which the Units subscribed for will
be issued. We will comply fully at all times with all applicable U.S. federal
and state, and non-U.S. securities and commodities laws (including, without
limitation, the 1933 Act, the 1934 Act, the Commodity Exchange Act, as amended
(the "CEAct"), and the securities laws of the jurisdictions in which we solicit
subscriptions), and all applicable requirements of the NASD (including NASD
Conduct Rule 2810, particularly paragraphs (b)(2) and (3) thereof), the Board of
Governors of the Federal Reserve System, and all other securities and
commodities exchanges, governmental regulators and self-regulatory organizations
that have jurisdiction over us or over the offer and sale of Units by us.
6. Specifically, if we are a member of the NASD, (a) we will not
permit the purchase of any Units by a customer account over which we have
discretionary authority without the prior written approval by the customer
owning such account; (b) we confirm that we have reasonable grounds to believe
that all material facts are adequately and accurately disclosed in the
Prospectus, which provides a basis for evaluating the Partnerships; (c) we
confirm that in determining the adequacy of disclosed facts pursuant to clause
(b), we have obtained information on material facts relating to: (i) items of
compensation, (ii) tax aspects, (iii) financial stability and experience of the
General Partner, and (iv) the Partnerships' conflicts and risk factors; (d) we
will take such measures as are reasonably necessary to assure ourselves that (i)
our registered
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principals and representatives have informed each subscriber of all pertinent
facts relating to the liquidity and marketability of the Units, and (ii) in
recommending the purchase or redemption of Units, or the exchange of Units in
one Partnership for Units in another Partnership, as described under "Exchange
Privilege" in the Prospectus (an "Exchange"), our registered principals and
representatives have reasonable grounds to believe, on the basis of information
obtained from each subscriber concerning his investment objectives, other
investments, financial situation and needs, and any other information known by
such registered principal or representative, that: (A) such subscriber is or
will be in a financial position appropriate to enable him 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; and (e) it is
understood that the General Partner will maintain in its files, located c/o Xxxx
Xxxxxx Xxxxxxxx Inc., Two Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, each
subscriber's Subscription Agreement for not less than six years, and we will
maintain, at our respective branch offices, any other documents disclosing the
basis upon which the determination of suitability was reached for each such
subscriber.
7. Promptly after each closing, you shall pay to us for each Unit
subscribed, accepted, and paid for through our efforts, a commission of ___% of
the Net Asset Value of each such Unit as of the closing as of which the Unit is
issued. Your determination of the amount payable to us, if any, shall be
conclusive. In addition, if we are legally qualified or permitted to receive
additional compensation, as provided in Section 5(h) of the Selling Agreement,
you agree to pay to us, as additional compensation, an amount equal to _____% of
the monthly brokerage fees received by you from each Partnership and
attributable to the outstanding Units sold by us. Such additional compensation
shall be in consideration of and is contingent upon our
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agreement (which we hereby undertake to perform) to provide additional services
in connection with Units sold by us, including: (a) inquiring of the General
Partner from time to time, at the request of a Limited Partner, as to the Net
Asset Value of a Unit; (b) inquiring of the General Partner, at the request of a
Limited Partner, as to the futures markets and the activities of the
Partnerships; (c) responding to questions of Limited Partners from time to time
with respect to monthly account statements, annual reports, financial
statements, and annual tax information furnished periodically to Limited
Partners; (d) providing advice to Limited Partners from time to time as to when
and whether to make additional investments or to redeem or Exchange Units; (e)
assisting Limited Partners in the redemption or Exchange of Units; and (f)
providing such other services as Limited Partners from time to time may
reasonably request. We understand and agree that no portion of such additional
compensation may be paid to our employees unless such employees meet the
qualifications set forth in Section 5(g) of the Selling Agreement and have
actually performed the above services for the Limited Partners holding Units
sold by us. Acceptance of compensation hereunder shall constitute a
representation by us that we have complied with all of the provisions of this
Paragraph 7 and this Agreement, and that we shall comply with the provisions of
this Paragraph 7 so long as we shall continue to receive any additional
compensation hereunder as specified in this Paragraph 7. We shall not be
entitled to a commission in any case in which it is determined by you or the
General Partner that the solicitation by us was made in violation of the
securities or commodities laws of any applicable jurisdiction. It is understood
that any compensation payable to us hereunder is payable solely from your funds,
and neither any Partnership, the General Partner, any subscriber, nor any
Limited Partner shall be liable or responsible therefor.
8. This Agreement shall terminate upon the termination of the
offering pursuant to the Selling Agreement and may be terminated by either party
upon ten (10) days'
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prior written notice to the other. Upon termination of this Agreement, all
authorizations, rights and obligations hereunder shall cease, except (a) the
indemnities set forth in Paragraph 10 hereof, (b) the obligations to settle
accounts hereunder, (c) our obligations under Paragraph 2(b)(ii)(D) and
Paragraph 9 hereof, and (d) your agreement to provide additional compensation
and our obligations in connection therewith set forth in Paragraph 7 hereof.
9. We authorize you to deduct from any compensation that we may
receive under Paragraph 7 all transfer taxes, if any, paid by you for our
account with respect to sales of Units made through our efforts. We agree to pay
our proportionate share of any amount asserted against and discharged by you and
the other Additional Sellers, or any of them, based on the claim that you and
the Additional Sellers constitute an association, unincorporated business, or
other separate entity, including any expense incurred in defending against such
claim.
10. (a) We agree to indemnify, hold harmless, and defend you, the
General Partner, each Partnership, each Trading Advisor, and any other Commodity
Broker for a Partnership against any loss, claim, damage, liability, cost, and
expense, joint or several (including attorneys' and accountants' fees and
expenses reasonably incurred in investigating or defending any demands, claims,
or lawsuits), to which you or any indemnified party may become subject under the
1933 Act, the 1934 Act, the CEAct, the securities law of any jurisdiction, or
otherwise (including in connection with the settlement of claims approved in
advance by us and in connection with any administrative proceedings), in respect
of the offer or sale of Units, insofar as such loss, claim, damage, liability,
cost, or expense arises out of, or is based upon a breach by us of any
representation, warranty, or agreement in this Agreement, or the failure by us
to perform any covenant made by us herein. The indemnity agreement in this
subparagraph (a) shall be in addition to any liability that we may otherwise
have and will extend, upon the same terms and conditions, to each person, if
any, who would be deemed a controlling
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person (within the meaning of Section 15 of the 0000 Xxx) of you, the General
Partner, any Partnership, any Trading Advisor, or any other Commodity Broker.
(b) Promptly after receipt by an indemnified party under
subparagraph (a) above of notice of the commencement of any action, claim, or
proceeding to which such subparagraph may apply, the indemnified party shall
notify the indemnifying party in writing of the commencement thereof if a claim
in respect thereof is to be made against the indemnifying party thereunder; but
the omission so to notify the indemnifying party shall not relieve the
indemnifying party from any liability which the indemnifying party may have to
the indemnified party otherwise than under such subparagraph, except to the
extent that such omission has materially prejudiced the indemnifying party. If
any action, claim, or proceeding is brought against an indemnified party and the
indemnified party notifies the indemnifying party of the commencement thereof as
provided above, the indemnifying party shall be entitled to participate therein
and, to the extent that the indemnifying party desires, to assume the defense
thereof with counsel selected by the indemnifying party and approved by the
indemnified party, such approval not to be unreasonably withheld. After notice
from the indemnifying party to the indemnified party of the indemnifying party's
election so to assume the defense thereof as provided above, the indemnifying
party shall not be liable to the indemnified party under subparagraph (a) for
any legal and other expenses subsequently incurred by the indemnified party in
connection with the defense thereof, other than reasonable costs of
investigation.
(c) Notwithstanding subparagraph (b), if, in any action, claim, or
proceeding as to which indemnification is or may be available under subparagraph
(a) above, an indemnified party reasonably determines that its interests are or
may be adverse, in whole or in part, to the indemnifying party's interests or
that there may be legal defenses available to the indemnified party which are
inconsistent with the defenses available to the indemnifying party, the
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indemnified party may retain its own counsel in connection with such action,
claim, or proceeding, and shall be indemnified by the indemnifying party for any
legal and other expenses reasonably incurred in connection with investigating or
defending such action, claim, or proceeding.
(d) In no event will an indemnifying party under this Agreement be
liable for the fees and expenses of more than one counsel for any one
indemnified party in connection with any one action, claim, or proceeding or in
connection with separate but similar or related actions, claims, or proceedings
in the same jurisdiction arising out of the same general allegations. The
indemnifying party will not be liable for any settlement of any action, claim,
or proceeding effected without the indemnifying party's express written consent,
but if any action, claim, or proceeding is settled with the indemnifying party's
express written consent or if there is a final judgment for the plaintiff in any
such action, claim, or proceeding, the indemnifying party shall indemnify,
defend, and hold harmless an indemnified party as provided in subparagraph (a)
above.
11. We agree that under no circumstances shall we engage in any
activities hereunder in any jurisdiction unless (a) the Units have been
registered or qualified for sale under the securities laws thereof, and (b) we
may lawfully so engage in such activities therein.
12. We acknowledge receipt of copies of the Selling Agreement, the
Prospectus, and any Selling Literature provided to us pursuant to Paragraph 3
hereof, and confirm that in executing this Agreement we have relied thereon and
upon no other representations whatsoever, either written or oral. We hereby
confirm: (a) that we have examined the Selling Agreement, the Prospectus and any
such Selling Literature, and we are familiar with the terms of the Units and
other terms of the offering; (b) that the information, if any, relating to us
which has been furnished by us or on our behalf expressly for use in
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connection with the Registration Statements, the Prospectus, and any Selling
Literature does not contain an 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 the case of the Prospectus and any Selling Literature, in
light of the circumstances under which such statements were made) not
misleading; (c) that we are willing to accept the responsibilities of an
Additional Seller under the 1933 Act and the CEAct; and (d) that we are willing
to proceed with the offering of Units in the manner contemplated. Further, we
understand that you may approve of or object to any further amendments to the
Registration Statements, the filing of one or more additional registration
statements and amendments thereto, or amendments or supplements to the
Prospectus and any Selling Literature, without our consent or approval. With
respect to the Selling Agreement, we understand that you may in your discretion
exercise any right of cancellation or termination and consent to such other
changes in the Selling Agreement as you may approve without our consent or
approval. You agree that you will: (i) notify us of any such amendment to the
Registration Statements, any additional registration statement and any amendment
thereto, and shall provide a copy of same to us upon our written request; (ii)
notify us of any amendment or supplement to the Prospectus or any Selling
Literature, and cause a copy of same to be furnished to us; and (iii) notify us
of any material change in the Selling Agreement.
13. We agree that you shall be under no liability (except for your
own lack of good faith and for obligations expressly assumed by you hereunder)
to us in respect of any matters connected herewith or action taken by you
pursuant hereto for, or in respect of, the form of or the statements contained
in the Registration Statements, any additional registration statement, the
Prospectus, any Selling Literature, or any amendment or supplement to any of the
foregoing documents; the qualification of the Units for sale under the laws of
any jurisdiction; or any matter in connection with any of the foregoing;
provided, however, that nothing in this
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Paragraph 13 shall be deemed to relieve you from any liability imposed by the
1933 Act.
14. Nothing contained herein shall constitute us as partners with
you or with other Additional Sellers, and the obligations of ourselves and of
all other Additional Sellers are several and not joint.
15. Any notice from you to us at the address set forth below shall
be deemed to have been duly given if mailed, telexed, telegraphed, telecopied,
or telephoned and subsequently confirmed in writing to us.
16. This Agreement shall be construed in accordance with the
internal laws of the State of New York, without regard to principles of
conflicts of laws.
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Your acceptance of this Agreement and approval hereof shall be
indicated below, whereupon this Agreement shall constitute a binding agreement
between us.
Very truly yours,
_______________________________________
Print or Type Name of Additional Seller
By:____________________________________
(Signature of Authorized Signatory)
Name:_______________________________
Title:______________________________
Address:
_______________________________________
_______________________________________
Attention:_____________________________
Telephone No.:_________________________
Telex No.:_____________________________
Telecopier No.:________________________
Type of Organization (Corporation,
Partnership or Other Entity):__________
_______________________________________
State or Other Jurisdiction Where
Organized:_____________________________
Accepted as of ______________:
Xxxx Xxxxxx Xxxxxxxx Inc.
By:_______________________________
(Signature of Authorized Officer)
Name:_____________________________
Title:____________________________
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Schedule A to Additional Seller Agreement
No. of Units
SEC File No. Effective Date Partnership Registered
------------ -------------- ----------- ----------
33-80146 9/15/94 Global Balanced 2,000,000*
33-80146 9/15/94 Strategic 4,000,000*
33-80146 9/15/94 Technical 4,000,000*
333-00494 1/31/96 Global Balanced 5,000,000
333-00494 1/31/96 Strategic 6,000,000
333-00494 1/31/96 Technical 9,000,000
333-3222 4/30/96 Global Balanced 1,000,000
333-3222 4/30/96 Strategic 2,500,000
333-3222 4/30/96 Technical 5,000,000
333-47831 5/11/98 Technical 5,000,000
333-47829 5/11/98 Select 1,500,000
333-68779 7/21/99 Technical 10,000,000
333-68773 1/21/99 Select 5,000,000
333-o o Select 4,500,000
333-o o Strategic 6,500,000
333-o o Global Balanced 3,000,000
333-o o Currency 15,000,000
333-o o Commodity 7,000,000
----------
* Units allocated after SEC effectiveness.
