1
EXHIBIT 10(t)
MANAGEMENT CONTRACT
THIS MANAGEMENT CONTRACT ("Agreement"), is made and entered into
effective as of the 8th day of November 1995, by and between The Futures
Dimension Fund, an Illinois limited partnership (the "Partnership"), Xxxxxxx
Asset Management, Inc., a Delaware corporation and Willowbridge Associates
Inc., a Delaware corporation (the "Trading Advisor").
W I T N E S S E T H:
WHEREAS, the purpose and business of the Partnership is to
seek capital appreciation by trading speculatively in futures contracts,
commodities and commodity options and forward contracts, and any other items
which are currently, or may later become, the subject of futures, forward or
options trading, and other related investments (sometimes hereinafter referred
to as "Contracts") on United States and non-United States exchanges and
markets; and
WHEREAS, the Partnership, through Xxxxxxx Asset Management,
Inc., its general partner (the "General Partner"), pursuant to the Limited
Partnership Agreement of the Partnership, is authorized to utilize the services
of professional trading advisors in connection with the trading activities of
the Partnership; and
WHEREAS, the Partnership has heretofore offered units of
limited partnership interest in the Partnership for sale to investors; and
WHEREAS, the Trading Advisor is engaged in the business of
making trading decisions on behalf of itself and others regarding the purchase
and sale of Contracts; and
WHEREAS, the Partnership and the Trading Advisor each desire
the Trading Advisor to make trading decisions for the Partnership with respect
to the assets of the Partnership allocated to be managed by the Trading Advisor
(the "Allocated Assets") on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual premises and
agreements set forth herein, the parties hereto do agree as follows:
2
1. DUTIES OF THE TRADING ADVISOR.
(a) The Partnership hereby appoints the Trading Advisor,
and the Trading Advisor hereby accepts appointment, as a trading advisor of the
Partnership in connection with the trading activities of the Partnership.
(b) Upon the Trading Advisor's commencing of trading
operations for the Partnership and for the period and on the terms and
conditions set forth in this Agreement, the Trading Advisor shall have sole
authority and responsibility, as the Partnership's agent and attorney-in-fact,
for trading the Allocated Assets in Contracts and in accordance with the
Trading Advisor's Select Investment Program utilizing the Argo Trading System
("Trading Approach"; which term, for purposes of this Agreement, shall include
trading approaches, systems, instructions, methods, models, strategies,
methodologies and formulas) as described in the Trading Advisor's Disclosure
Document dated June 30, 1995 (the "Disclosure Document"), subject to the
trading policies of the Partnership furnished to the Trading Advisor in writing
("Trading Policies"). The parties hereto acknowledge that the Trading Advisor
will trade Contracts for the Partnership independently of any other trading
advisor retained by the Partnership. For purposes of this Agreement, the term
"Contracts" shall not include securities and options thereon.
(c) Subject to receipt of adequate assurances of
confidentiality, the Trading Advisor agrees, upon request, to describe to the
General Partner its practices with respect to the leverage used by the Trading
Advisor in managing the Partnership's account relative to other accounts
managed by the Trading Advisor using the Trading Approach to enable the General
Partner to determine whether the "trading level" at which the Trading Advisor
is currently managing the Partnership's account is the level currently
designated in writing by the General Partner.
(d) The General Partner and the Partnership acknowledge
receipt of the Trading Advisor's Disclosure Document. The Trading Advisor
shall promptly furnish the Partnership with a copy of each amended,
supplemented or updated Disclosure Document of the Trading Advisor filed with
the Commodity Futures Trading Commission (the "CFTC") and the National Futures
Association ("NFA") upon acceptance thereof by the CFTC. Prior to the
commencement of trading on behalf of the Partnership, the Partnership shall
deliver to the Trading Advisor, and renew when necessary, a Commodity Trading
Authorization, in the form attached hereto as Exhibit 1, appointing the Trading
Advisor as the Partnership's agent and attorney-in-fact for such purpose.
Other than "give-up" agreements with executing brokers approved by the General
Partner, all trades for the account of the Partnership shall be made through
such
2
3
banks, brokers and dealers as the General Partner shall direct, and the Trading
Advisor shall have no authority or responsibility for selecting any such banks,
brokers or dealers in connection with the execution of transactions for the
Partnership or for the negotiation of commission rates charged therefor;
provided, however, that the General Partner shall notify the Trading Advisor of
any applicable changes in the commission rates charged by the Partnership's
banks, brokers and dealers with respect to transactions entered into with
respect to the Allocated Assets. The General Partner will cause the
Partnership's commodity broker to provide the Trading Advisor with copies of
all confirmation, purchase and sale, monthly and similar statements at the time
such statements are available to the General Partner.
(e) In the event the Trading Advisor and its principals
[as that term is defined in Regulation Section 4.10(e) promulgated by the CFTC
under the Commodity Exchange Act, as amended (the "Act")], shareholders,
partners, employees and affiliates or any person who controls the foregoing
(collectively, "Principals and Affiliates"), wish to use trading programs,
systems or strategies other than or in addition to the Trading Approach in
connection with its trading for the Partnership, either in whole or in part, it
may not do so unless the Trading Advisor gives the General Partner 15 days'
prior written notice of its intention to utilize such different trading
programs, systems or strategies and the General Partner consents thereto in
writing. Non-material changes in the Trading Approach may be instituted
without prior written approval.
(f) The Trading Advisor agrees to make all material
disclosures to the Partnership regarding itself and its Principals and
Affiliates, their trading performance and general trading methods, their
accounts (but not the identities of customers) and otherwise as are required in
the reasonable judgment of the General Partner or the Partnership to be made in
any filings required by any governmental body or by any applicable law,
regulation, rule or order; provided, that, the General Partner and the
Partnership shall not distribute any Disclosure Notice relating to the
appointment of the Trading Advisor as a commodity trading advisor of the
Partnership or other description of the Trading Advisor, its Principals and
Affiliates or its or their trading performance without the prior written
consent of the Trading Advisor. Within three business days following receipt of
such description, the Trading Advisor shall provide the General Partner in
writing, any changes thereto and shall review and approve such changes prior to
its distribution. The Trading Advisor shall review and provide any revised
description within two business days. Failure to respond to any revised
description of the Trading Advisor within three business days shall constitute
the Trading Advisor's consent to such distribution. Nothing contained in this
Agreement shall be construed or deemed to require the Trading Advisor to
disclose the identity of customers or any confidential or proprietary details
of its trading strategies.
(g) The Trading Advisor understands and agrees that the
General Partner intends to designate other trading advisors and to
3
4
apportion from time to time to such other trading advisors the management of
such portion of the Partnership's assets as the General Partner shall determine
in its absolute discretion. The designation of other trading advisors and
apportionment and reapportionment of a portion of the Partnership's assets to
such trading advisors shall neither terminate this Agreement nor modify in any
regard the respective rights and obligations of the parties hereto; provided,
however, the Trading Advisor may terminate this Agreement in the event that the
Allocated Assets total less than U.S. $180,000.
(h) The General Partner shall have the right to make
additions to, or withdrawals from, the Allocated Assets (including any
"notional" funds comprising part of the Allocated Assets) at any time upon two
days' written notice to the Trading Advisor. The General Partner agrees that
the Trading Advisor may refuse any additional allocation of funds for any
reason. The General Partner, in its sole discretion, may at any time upon two
days' written notice to the Trading Advisor, remove all assets from the
management of the Trading Advisor and may require the Trading Advisor to
liquidate existing positions.
(i) Upon receipt of written instructions from the General
Partner, the Trading Advisor shall immediately cease its trading activities
with respect to the Allocated Assets, close out all existing positions in an
orderly manner and not initiate any new positions unless otherwise instructed
by the General Partner or the Partnership.
(j) The Trading Advisor shall review on a daily basis the
positions held by the Allocated Assets and shall immediately notify the General
Partner of any errors committed by the Trading Advisor or of any trade not
executed in accordance with the Trading Advisor's instructions.
2. OTHER ACCOUNTS AND ACTIVITIES OF THE TRADING ADVISOR.
(a) The services provided by the Trading Advisor
hereunder are not to be deemed exclusive. Subject to the terms of this
Agreement, the Trading Advisor and its Principals and Affiliates shall be free
to trade for their own accounts and to advise other persons and manage other
accounts during the term of this Agreement and to use the same or different
degrees of leverage, information, computer programs and trading strategies or
formulas which they obtain, produce or utilize in the performance of services
for the Partnership. However, the Trading Advisor represents, warrants and
agrees that the rendering of such consulting, advisory and management services
to others will not require any material change in the Trading Approach and will
not materially adversely affect the capacity of the Trading Advisor to continue
to render services to the Partnership of the quality and nature contemplated by
this Agreement.
(b) If, at any time during the term of this Agreement,
the Trading Advisor is required to aggregate the Partnership's
4
5
Contract positions with the positions of any other person or entity for
purposes of applying CFTC- or exchange-imposed position limits, the Trading
Advisor agrees that it will promptly notify the General Partner if the
Partnership's positions are included in an aggregate amount which equals or
exceeds ninety-five percent (95%) of the applicable limit. The Trading Advisor
agrees that, if its trading recommendations are altered because of the
application of any position limit, it will not modify the trading instructions
with respect to the Partnership's account in such manner as to affect the
Partnership substantially disproportionately as compared with the Trading
Advisor's other accounts. The Trading Advisor presently believes and
represents that existing speculative position limits will not materially
adversely affect its ability to manage the Partnership's account given the
potential size of the Partnership's account and the Trading Advisor's and its
Principals' and Affiliates' current accounts and all proposed accounts for
which they have contracted to act as trading advisor. The Trading Advisor
further represents, warrants and agrees that under no circumstances will it
knowingly or deliberately favor any client or account managed by it over any
other client or account, it being acknowledged, however, that different trading
strategies, methods or degrees of leverage may be utilized and that accounts
may have different trading policies, different inflows or outflows of equity,
commence trading at different times, different fee structures, different
portfolios, different fiscal years and other differences, and that such
differences may cause divergent trading results. The Partnership and the
General Partner acknowledge, however, that if the Allocated Assets are less
than U.S.$1,000,000, the Trading Advisor may not be able to trade the full Argo
Trading System for the Partnership. As a result, the Partnership's trading
performance may be different from the other accounts traded pursuant to the
Argo Trading System.
(c) The Partnership and the General Partner acknowledge
and agree that the Trading Advisor and/or its Principals and Affiliates
presently act and that they may continue to act as advisors for other accounts
managed by them and may continue to receive compensation with respect to
services for such accounts in amounts which may be more or less than the
amounts received from the Partnership. The Trading Advisor agrees that in the
management of such other accounts by it and its Principals and Affiliates, it
will act in good faith to seek to achieve an equitable treatment of all
accounts under management including the Partnership's account with respect to,
among other things, priorities of order entry and position limits.
(d) The Trading Advisor agrees that it shall make such
information available to the General Partner respecting the performance of the
Partnership's account as compared to the performance of all other accounts
managed by the Trading Advisor and its Principals and Affiliates as shall be
reasonably requested by the General Partner or the Partnership. The Trading
Advisor shall not be required to disclose the identity of its clients or the
performance of proprietary accounts.
5
6
3. ALLOCATION OF ASSETS TO THE TRADING ADVISOR. The
Trading Advisor's Allocated Assets initially shall be a total of approximately
U.S. $2,300,000 of which U.S. $0 is notional funding.
4. FEES.
(a) Commencing with the commencement of trading by the
Trading Advisor for the Partnership, the Partnership agrees to pay to the
Trading Advisor as follows:
(i) Management Fee. A monthly management fee equal to
0.166% of the Net Asset Value of the Allocated Assets as of the close of
business on the last business day of each calendar month (an approximate 2%
annual rate). The definition of the term "Net Asset Value" is set forth in
Section 4 of the Partnership's Limited Partnership Agreement which is attached
as Exhibit 2, hereto.
(ii) For purposes of calculating the management fee, Net
Asset Value of the Allocated Assets shall be determined before reduction for
the management fees or incentive fees, if any, accrued or payable with respect
to the Allocated Assets as of such month-end, and before giving effect to any
distributions, redemptions or reallocations paid or payable at such month-end.
In the event that (A) the Trading Advisor commences trading as of any day other
than the first day of a calendar month, (B) this Agreement is terminated as of
any date other than the last day of a calendar month, or (C) the Partnership
reallocates assets to or from the Trading Advisor as of any day other than the
first or last day of any calendar month, the amount of the management fee shall
be prorated on the basis of the number of business days during such month that
the Allocated Assets (as adjusted in the case of reallocation of assets) were
traded by the Trading Advisor as compared to the total number of business days
in such calendar month. To the extent that the Partnership instructs the
Trading Advisor to trade the Allocated Assets at a "nominal account size" in
excess of the actual assets comprising Allocated Assets, the Trading Advisor's
management fee shall be calculated based upon the "nominal account size" of the
Allocated Assets.
(iii) Incentive Fee. A quarterly incentive fee equal to
20% of any New Trading Profits (as defined below) achieved during each fiscal
quarter. New Trading Profits during a quarter shall mean the sum of (A) the
net of any profits and losses realized on trades closed out during the period,
plus or minus (B) the change in the net of any unrealized profits and losses on
trades which remained open as of the end of the period (net of accrued
brokerage commissions and other allocated expenses) from the net of any
unrealized profits and losses on trades initiated by the Trading Advisor which
remained open as of the end of the immediately preceding period (net of accrued
brokerage commissions and other allocated expenses), (C) any Trading Advisor
management fees paid or accrued through the end of the period, and (D) the
Trading Advisor's carryforward loss (as hereinafter defined) from
6
7
the immediately preceding period. If the sum of subparagraphs (A)
through (D) for any period is negative, such amount shall be the Trading
Advisor's carryforward loss for the next period. For purposes of calculating
incentive fees, interest income earned on the Allocated Assets will be
disregarded. In the event of a withdrawal from the Allocated Assets at a time
when the Trading Advisor has a carryforward loss in effect, the amount thereof
shall be reduced by an amount determined by multiplying the carryforward loss
by a fraction, the numerator of which shall be the amount of the withdrawal and
the denominator of which shall be the Net Asset Value of the Allocated Assets
immediately prior to giving effect to the withdrawal. In the event that an
addition is made to the Allocated Assets subsequent to a reduction in the
Trading Advisor's carryforward loss by reason of a withdrawal, the Trading
Advisor's carryforward loss shall be increased by or created in an amount (up
to the aggregate amount of prior carryforward loss reductions) determined by
multiplying the aggregate amount of prior carryforward loss reductions by a
fraction, the numerator of which shall be the amount of the addition and the
denominator of which shall be the sum of the previous withdrawals which
resulted in carryforward loss reductions. The incentive fee charged to the
Partnership with respect to the Allocated Assets will be dependent upon the
performance of the Trading Advisor and will not be affected by the performance
of any other trading advisor appointed by the Partnership or the Partnership as
a whole. The initial incentive period shall commence on the date the Trading
Advisor commences trading activity for the Partnership and shall end at the
immediate following quarter-end (even though such period may not be a full
quarter). Subsequent incentive periods shall commence on the first day of the
next succeeding fiscal quarter and end on the last day of such fiscal quarter.
In the event this Agreement is terminated as of any date which is not the end
of an incentive period, an incentive fee will be paid by the Partnership, if
earned, with respect to the Allocated Assets as though such termination date
were the last day of the incentive period. For purposes of calculating the
first incentive fee, the Trading Advisor hereby agrees that it shall assume an
initial carryforward loss (constituting a portion of the Partnership's current
overall carryforward loss) equal to $287,500; which carryforward loss shall not
exceed 12.5% of the Allocated Assets hereunder.
(b) Payment of Fees. The management fees and incentive
fees due to the Trading Advisor shall be paid by the Partnership within thirty
(30) days of the end of the calendar period to which they relate. The
Partnership expressly agrees that any such fees due the Trading Advisor shall
survive the termination or other expiration of this Agreement.
5. TRADING ADVISOR INDEPENDENT. The Trading Advisor
shall for all purposes herein be deemed to be an independent contractor to the
Partnership and the General Partner and shall, except as otherwise expressly
provided herein, have no authority to act for or represent the Partnership or
the General Partner in any way or otherwise be deemed a sponsor of the
Partnership or an
7
8
agent, joint venturer or partner of the Partnership, the General
Partner or of any other trading advisor retained by the Partnership.
6. BROKER.
(a) The Trading Advisor agrees to enter all Contract
orders through E.D. & F. Man International Inc. ("Man"), or such other brokers
and forward contract dealers as may be designated, from time to time, in
writing by the Partnership. The Partnership must consent in writing to the use
of other floor brokers who will give up such trades to Man in accordance with
exchange rules and the give-up procedures established by the Partnership from
time to time. The Trading Advisor shall be responsible for any errors
committed by any executing broker who gives-up to Man on behalf of the
Partnership. In placing trades for the Partnership's account, the Trading
Advisor agrees that it shall use its standard procedures for allocating orders
among the Trading Advisor's various accounts and not knowingly favor any other
such account over the Partnership's account.
(b) All forward contract and other trades for the
Partnership will be executed through the forward trading and other facilities
of such affiliates of Man or other entities as the Partnership may designate in
writing from time to time.
7. STANDARD OF LIABILITY; INDEMNIFICATIONS.
(a) Standard of Liability. Neither the Trading Advisor
nor any of its Principals and Affiliates shall be liable to the Partnership,
the General Partner or any of their respective successors or assigns under this
Agreement except by reason of (i) acts or omissions to act which constitute bad
faith, negligence or misconduct or (ii) a material breach of any of the
representations, warranties, covenants or agreements of the Trading Advisor set
forth in this Agreement; it being understood that Contract transactions made by
the Trading Advisor on behalf of the Partnership shall be for the account of
the Partnership and the risk of the Partnership. The General Partner
acknowledges that the Trading Advisor makes no guarantee of profits or of
protection against losses.
(b) Indemnity. (i) The Partnership agrees to indemnify
and hold harmless the Trading Advisor and each of its Principals and Affiliates
from and against any and all losses, claims, damages, liabilities, costs and
expenses (including, without limitation, attorneys' and accountants' fees and
disbursements), judgments and amounts paid in settlement (collectively,
"Losses") to which an indemnified person may become subject arising out of this
Agreement, the transactions contemplated hereby or the fact the Trading Advisor
is or was a trading advisor to the Partnership, unless any such Losses arise
out of, relate to, or are based upon the Trading Advisor's failure to meet the
standard of liability applicable to it under SECTION 7(a).
8
9
(ii) The Trading Advisor agrees to indemnify and hold
harmless the Partnership, the General Partner and each of their respective
Principals and Affiliates from and against any and all Losses to which they may
become subject, if any such Losses arise out of, relate to, or are based upon
the Trading Advisor's failure to meet the standard of liability applicable to
it under SECTION 7(a).
(c) Promptly after receipt by a party to be indemnified
under SECTION 7(b), above, of any notice of the commencement of any action or
proceeding, such indemnified party shall, if a claim in respect thereof is to
be made against the indemnified party under such subsection, notify the
indemnifying party in writing of the commencement thereof, but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. The
requirement that an indemnifying party be given written notice of the
commencement of any action shall be deemed to be satisfied if such indemnifying
party shall have actual knowledge thereof or shall have been given written
notice of the commencement of any action or proceeding within a reasonable time
after the commencement thereof. If any such action shall be brought against
any indemnified party and the indemnified party notifies the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, to assume the defense
thereof with counsel satisfactory to such indemnified party, and shall have the
right to negotiate and consent to a settlement thereof, provided that the
indemnified party shall have consented to the settlement. After notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ counsel to represent it,
if, in the indemnified party's reasonable judgment, it is advisable for such
party to be represented by separate counsel, in which event the fees and
expenses of such separate counsel shall be borne by the indemnified party. No
indemnifying party shall be liable for any settlement of any such action
effected without its consent, but if any such action or proceeding is settled
with the consent of any indemnifying party or if there be a final judgment for
the plaintiff in any such action or proceeding (of which an indemnifying party
shall have been notified), such indemnifying party shall indemnify and hold
harmless each indemnified party from and against any Losses incurred or
suffered by reason of such settlement or judgment.
(d) Any indemnification required by this SECTION 7,
unless ordered or expressly permitted by a court, arbitrator, or administrative
forum, shall be made by the indemnifying party only upon a determination by
independent legal counsel in a written opinion that the conduct which is the
subject of the claim, demand,
9
10
lawsuit, action or proceeding with respect to which indemnification is
sought meets the applicable standard set forth in this SECTION 7.
8. THE TRADING ADVISOR'S REPRESENTATIONS AND WARRANTIES.
The Trading Advisor represents and warrants to the Partnership and the General
Partner as follows:
(a) The Trading Advisor is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has full power and authority to enter into and perform its
obligations under this Agreement and to conduct its business as described in
this Agreement and the Disclosure Notice, and the Trading Advisor is qualified
to conduct its business and is in good standing in every jurisdiction in which
the nature or conduct of its business requires such qualification and failure
to so qualify would have a materially adverse effect on its ability to comply
with, or perform its obligations under, this Agreement, it being understood
that any decision as to the jurisdiction or jurisdictions in which the Trading
Advisor shall conduct its business is within the sole discretion of the Trading
Advisor.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Trading Advisor and is a valid and binding
agreement of the Trading Advisor enforceable in accordance with its terms.
(c) The execution and delivery of this Agreement and the
performance of the obligations and the consummation of the transactions
contemplated in this Agreement and in the Disclosure Notice will not conflict
with, violate, breach or constitute a default under, any term or provision of
the Trading Advisor's certificate of incorporation, by-laws, or other charter
documents, or any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument to which the Trading Advisor or any of its Principals
and Affiliates is a party or by which any of them are bound, or to which any of
the property (including, but not limited to, its Trading Approach) or assets of
the Trading Advisor or its Principals and Affiliates are subject, or any order,
rule, law, statute, regulation, or other legal requirement applicable to the
Trading Advisor or any of its Principals or to the property or assets of the
Trading Advisor or its Principals and Affiliates of any court or any
governmental or administrative body or agency or panel or any regulatory or
self-regulatory organization or exchange having jurisdiction over the Trading
Advisor or any of its Principals and Affiliates.
(d) The Trading Advisor is registered as a commodity
trading advisor under the Act, its Principals are identified on the Trading
Advisor's most recent CFTC Form 7-R filed with the NFA pursuant to the Act or
on a CFTC Form 3-R filed subsequently, and it is a member of the NFA in such
capacity and such registration and membership has not expired or been revoked,
lapsed, suspended, terminated, or not renewed or limited or qualified in any
respect.
10
11
(e) The Trading Advisor is not bankrupt or insolvent.
(f) The Disclosure Document is complete and accurate in
all material respects, does not contain any misstatement of any material fact,
does not omit to state any material fact necessary to be stated therein in
order to make the statements made therein, in light of the circumstances under
which they are made, not misleading, and complies in all material respects with
the applicable requirements of the Act and the rules promulgated thereunder and
may be relied upon by the Partnership and the General Partner in preparing the
Disclosure Notice and allocating assets of the Partnership to the Trading
Advisor and there has not been, since the date of the Disclosure Document's
issuance, any material adverse change in the condition, financial or otherwise,
business or prospects of the Trading Advisor or any of its Principals and
Affiliates, whether or not arising in the ordinary course of business, or
relating to the historical performance and operations of the Trading Advisor,
except as disclosed in writing to the General Partner.
(g) The Trading Advisor and each Principal has complied
and will continue to comply in all material respects with all orders, rules,
laws, statutes, regulations or other legal requirements applicable to the
Trading Advisor or any of its Principals and Affiliates or to their respective
businesses, properties, or assets, including the Act and the rules promulgated
by the CFTC and the NFA, the violation of which would materially and adversely
affect its or their ability to comply with, and perform its or their
obligations under this Agreement, and there are no actions, suits, proceedings,
or notices of investigations or investigations pending or, to their knowledge,
threatened against the Trading Advisor, or any of its Principals or Affiliates,
by the NFA, the CFTC or any governmental, regulatory or self-regulatory agency
regarding noncompliance by the Trading Advisor or any of its Principals or
Affiliates with any law, statute, rule or regulation, or at law or in equity or
before or by any court, any federal, state, municipal or other governmental
department commission, board, bureau, agency, or instrumentality, or by any
regulatory or self-regulatory organization, or exchange, in which an adverse
decision would materially and adversely affect its or their ability to comply
with or to perform its or their obligations under this Agreement or that would
be required to be disclosed in the Disclosure Notice, which is not so
disclosed, would result in a material adverse change in the condition,
financial or otherwise, business or prospects of the Trading Advisor.
(h) The Trading Advisor and each Principal has all
governmental, regulatory, self-regulatory and exchange licenses and approvals
and has effected all filings and registrations with all governmental,
regulatory and self-regulatory agencies required to conduct their respective
businesses and to act as described in the Disclosure Notice and to perform its
or their respective obligations under this Agreement.
11
12
(i) With respect to information contained in the
Disclosure Notice relating to the Trading Advisor specifically approved for use
in the Disclosure Notice by the Trading Advisor in writing, including, without
limitation, the tables and notes thereto, the Disclosure Notice does not
contain any untrue statement of material fact or omit to state therein a
material fact required to be stated therein or necessary to be stated therein
in order to prevent the statements made therein, in light of the circumstances
under which they are made, from being misleading. Within three business days
following receipt of the Disclosure Notice, the Trading Advisor shall provide
the General Partner in writing, any changes thereto and shall review and
approve such changes prior to its distribution. The Trading Advisor shall
review and provide any revised description within two business days. Failure to
respond to any revised description of the Trading Advisor within three business
days shall constitute the Trading Advisors consent to distribution of the
Disclosure Notice.
(j) In the placement of orders and the allocation of
executed trades for the Partnership and for the accounts of any other client,
the Trading Advisor shall utilize a fair and reasonable order entry system and
trade allocation system, which on an overall basis shall be no less favorable
to the Partnership than to any other account managed by the Trading Advisor.
(k) The Trading Advisor shall promptly notify the other
parties hereto of the commencement of any material suit, action or proceeding
involving it or its Principals and Affiliates, whether or not any such suit,
action or proceeding also involves any of the other parties hereto.
The foregoing representations and warranties shall be
continuing during the term of this Agreement and any renewal hereof and if at
any time any event shall occur which would make or tend to make any of the
foregoing not true or incomplete, the Trading Advisor shall promptly notify the
Partnership and the General Partner of the occurrence of such event.
9. THE PARTNERSHIP'S REPRESENTATIONS AND WARRANTIES.
The Partnership and the General Partner each represent and warrant to the
Trading Advisor as follows:
(a) The Partnership is duly organized, validly existing
and in good standing as a limited partnership under the laws of Illinois and
has full power and authority to perform its obligations under this Agreement
and to conduct its business and to act as described in the Disclosure Notice.
The Partnership is qualified to conduct its business and is in good standing in
every jurisdiction in which the nature or conduct of its business requires such
qualification and failure to so qualify would have a materially adverse effect
on its ability to comply with, or perform its obligations under, this
Agreement, it being understood that any decision as to the jurisdiction or
jurisdictions in which the
12
13
Partnership shall conduct its business is within the sole discretion of
the Partnership.
(b) This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Partnership and is a valid
and binding agreement of it enforceable in accordance with its terms.
(c) The Partnership has complied and will continue to
comply in all material respects with all orders, rules, laws, statutes,
regulations or other legal requirements applicable to it, to its business,
properties, and assets, including the Act and the rules promulgated by the CFTC
and the NFA, the violation of which would materially and adversely affect its
ability to comply with, and perform its obligations under this Agreement, and
there are no actions, suits, proceedings, or notices of investigations or
investigations pending or threatened against it, by the NFA, the CFTC or any
governmental, regulatory or self-regulatory agency regarding noncompliance by
it with any law, statute, rule or regulation, or at law or in equity or before
or by any court, any federal, state, municipal or other governmental
department, commission, board, bureau, agency, or instrumentality, or by any
regulatory or self-regulatory organization, or exchange, in which an adverse
decision would materially and adversely affect its ability to comply with or to
perform its obligations under this Agreement or that would be required to be
disclosed in the Disclosure Notice, which is not so disclosed, or would result
in a material adverse change in the condition, financial or otherwise, business
or prospects of the Partnership.
(d) The Partnership has all federal and state
governmental, regulatory, self-regulatory and exchange licenses and approvals
and has effected all filings and registrations with all federal and state
governmental and regulatory and self-regulatory agencies required to conduct
its business and to act as described in the Disclosure Notice and to perform
its obligations under this Agreement.
(e) Except with respect to information contained in the
Disclosure Notice relating to the Trading Advisor or any other advisor, the
Disclosure Notice does not contain any untrue statement of material fact or
omit to state therein a material fact required to be stated therein or
necessary to be stated therein in order to prevent the statements made therein,
in light of the circumstances under which they are made, from being misleading.
(f) The execution and delivery of this Agreement and the
performance of the obligations and the consummation of the transactions
contemplated in this Agreement and in the Disclosure Notice will not conflict
with, violate, breach or constitute a default under, any term or provision of
the Partnership's certificate of incorporation, or other charter documents, or
any indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument to which the Partnership is a party or by which it is bound, or to
which any of the property or assets of the
13
14
Partnership is subject, or any order, rule, law, statute, regulation,
or other legal requirement applicable to the Partnership or to the property or
assets of the Partnership of any court or any governmental or administrative
body or agency or panel or any regulatory or self-regulatory organization or
exchange having jurisdiction over the Partnership.
(g) The General Partner is registered as a commodity pool
operator under the Act, its Principals are identified on the General Partner's
most recent CFTC Form 7-R filed with the NFA pursuant to the Act or on a CFTC
Form 3-R filed subsequently, and is a member of the NFA in such capacity and
such registration and membership has not expired or been revoked, lapsed,
suspended, terminated, or not renewed or limited or qualified in any respect.
(h) The General Partner and each Principal has all
federal and state governmental, regulatory, self-regulatory and exchange
licenses and approvals and has effected all filings and registrations with all
federal and state governmental and regulatory and self-regulatory agencies
required to conduct its business and to act as described in the Disclosure
Notice and to perform its obligations under this Agreement.
(i) The General Partner shall promptly notify the other
parties hereto of the commencement of any material suit, action or proceeding
involving it or its Principals and Affiliates, whether or not any such suit,
action or proceeding also involves any of the other parties hereto.
The foregoing representations and warranties shall be
continuing during the term of this Agreement and any renewal hereof and if at
any time any event shall occur which would make or tend to make any of the
foregoing not true or incomplete, the General Partner will promptly notify the
Trading Advisor thereof.
10. TERM AND TERMINATION.
(a) Unless terminated earlier as provided below, the term
of this Agreement shall be until the end of the twelfth full calendar month
after the Trading Advisor commences trading activity and is automatically
renewable thereafter for successive one-year periods unless (i) the Partnership
terminates this Agreement during the initial one-year term thereof by giving
thirty days' prior written notice to the Trading Advisor, or (ii) either the
Trading Advisor or the Partnership terminates the Agreement at the end of the
initial one-year term or at any time thereafter by giving thirty days' prior
written notice to such other party. The parties shall use best efforts to
terminate this Agreement at month-end.
(b) Notwithstanding paragraph (a) of this Section 10,
this Agreement may be terminated by the Partnership immediately upon written
notice to the Trading Advisor if (i) the Trading Advisor, if other than a
natural person, merges, consolidates with or sells a substantial portion of its
assets to any individual or entity, or there is a material adverse change
relating to the
14
15
Trading Advisor or a material adverse change in control, organizational
structure, financial condition, regulatory compliance or key personnel of the
Trading Advisor, (ii) any of the Trading Advisor's registrations under the Act
are suspended, terminated, lapsed or not renewed, (iii) the Trading Advisor's
membership in the NFA is suspended, terminated, lapsed or not renewed, (iv) the
Trading Advisor otherwise becomes unable to serve as a trading advisor to the
full extent contemplated by this Agreement, (v) the Trading Advisor materially
breaches any of its representations, warranties, covenants or agreements
contained in this Agreement, or (vi) the General Partner determines doing so is
in the best interests of the Partnership.
(c) Notwithstanding paragraph (a) of this Section 10,
this Agreement may be terminated by the Trading Advisor immediately upon
written notice to the Partnership if (i) the General Partner, if other than a
natural person, merges, consolidates with or sells a substantial portion of its
assets to any individual or entity, or there is a material adverse change
relating to the General Partner or a material adverse change in control,
organizational structure, financial condition, regulatory compliance or key
personnel of the General Partner, (ii) any of the General Partner's
registrations under the Act are suspended, terminated, lapsed or not renewed,
(iii) the General Partner's membership in the NFA is suspended, terminated,
lapsed or not renewed, (iv) the General Partner otherwise becomes unable to
serve as general partner of the Partnership to the full extent contemplated by
this Agreement, (v) the General Partner materially breaches any of its
representations, warranties, covenants or agreements contained in this
Agreement, (vii) the Allocated Assets total less than U.S.$180,000, (vii) the
Trading Advisor's license agreement with Caxton Corporation is terminated, or
(viii) the Trading Advisor determines doing so is in the best interests of the
Partnership.
11. NOTICES. Except as otherwise provided herein, all
notices, demands or requests required to be made or delivered under this
Agreement shall be effective only if in writing and delivered personally or by
facsimile or mail, postage prepaid (airmail if the addressee is in another
country), to the respective addresses below or to such other addresses as may
be designated by the party entitled to receive the same by notice similarly
given and shall be deemed given by the party required to provide notice when
received by the party to whom notice is required to be given.
If to the Partnership or the General Partner to:
Xxxxxxx Asset Management, Inc.
One Financial Plaza
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, President
Fax No.: 000-000-0000
15
16
If to the Trading Advisor to:
Willowbridge Associates Inc.
000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Vice President
Fax No.: 000-000-0000
12. ASSIGNMENT. No party hereto may transfer, sell,
encumber, appoint agents or assign any of its rights or obligations hereunder
in whole or in part without the express written consent of each of the other
parties hereto.
13. AMENDMENT; MODIFICATION. This Agreement may not be
amended or modified, nor any of the provisions hereof waived, except by the
written consent of all of the parties hereto.
14. COMPLETE AGREEMENT. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject hereof
and supersedes all prior agreements written or oral, and no other agreement,
verbal or otherwise, shall be binding as between the parties hereto unless in
writing and signed by the party against whom enforcement is sought.
15. SUCCESSORS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and permitted
assigns. No other person other than the persons indemnified under SECTION 7
hereof for matters relating to that Section shall have any right or obligation
under this Agreement.
16. HEADINGS. Headings to sections herein are for the
convenience of the parties only, and are not intended to be a part of or to
affect the meanings or interpretation of this Agreement.
17. GOVERNING LAW: CONSENT TO JURISDICTION. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Illinois without giving effect to principles of conflicts of laws.
18. 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
shall be determined by arbitration, to be held in the City of Chicago, State of
Illinois unless otherwise agreed to by the parties hereto, and in accordance
with the rules then obtaining of the NFA, or if no such rules are then in
effect or if jurisdiction is declined, then the rules then obtaining of the
American Arbitration Association; provided, however, that (a) the arbitrator(s)
shall be knowledgeable in industry standards and practices and the matters
giving rise to the dispute, (b) the arbitrator(s) shall not have the power and
authority to award punitive damages, (c) the authority of the arbitrator(s)
shall be limited to construing and enforcing the terms and conditions of
16
17
this Agreement as expressly set forth herein, and (d) the arbitrator(s)
shall state the reasons for their award and their legal and factual conclusions
underlying 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.
19. CONSENT TO JURISDICTION. Each party hereto expressly
and irrevocably agrees (a) that it waives any objection, and specifically
consents, to venue in the United States federal or state courts located in the
City of Chicago, State of Illinois, United States of America, so that any
action at law or in equity may be brought and maintained in any such court, and
(b) that service of process in any such action may be effected against such
party by certified or registered mail or in any other manner permitted by
applicable United States Federal Rules of Civil Procedure or Rules of the
Courts of the State of Illinois. In addition, each party hereto expressly and
irrevocably waives, in respect of any action brought in any United States
federal or state court located in the City of Chicago, State of Illinois or any
resulting judgment, any objection, and hereby specifically consents, to the
jurisdiction of any such court, and agrees not to seek to change the situs of
such action or to assert that any other court in any such action is a more
suitable forum for the hearing and adjudication of any claim or dispute raised
in such action.
20. SURVIVAL. The indemnity provisions of this Agreement
shall survive the termination or expiration of this Agreement with respect to
any matter existing prior to such termination or expiration; the payment
obligations under this Agreement shall continue until satisfied; and the other
provisions of the Agreement shall survive the termination of this Agreement
with respect to any matter arising while this Agreement was in effect.
21. WAIVER OF BREACH. The waiver by a party of a breach
of any provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by a party. The failure of a party to insist
upon strict adherence to any provision of this Agreement shall not constitute a
waiver or thereafter deprive such party of the right to insist upon a strict
adherence.
22. 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.
23. CONFIDENTIALITY. Nothing in this Agreement shall
require the Trading Advisor to disclose the details of its trading systems,
methods, models, strategies and formulas. The General Partner and the
Partnership acknowledge that the trading systems, methods, models, strategies
and formulas of the Trading Advisor are the sole and exclusive property of the
Trading Advisor. The General Partner and the Partnership further agree that it
will keep
17
18
confidential and will not disseminate information regarding such
systems, methods, models, strategies and formulas to any person; provided,
however, such restrictions shall not apply to information which (a) is or
becomes generally available to the public other than as a result of disclosure
by the General Partner or the Partnership, (b) was available to the General
Partner or the Partnership on a non-confidential basis prior to its disclosure
by the Trading Advisor, or (c) becomes available to the General Partner or the
Partnership on a non-confidential basis from a person other than the Trading
Advisor, unless such information was specifically provided to the General
Partner or the Partnership on a confidential basis.
18
19
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first above written.
THE FUTURES DIMENSION FUND
By: Xxxxxxx Asset Management, Inc.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
President
XXXXXXX ASSET MANAGEMENT, INC.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
President
WILLOWBRIDGE ASSOCIATES INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
Vice President
19
20
EXHIBIT 1
November 7, 1995
Willowbridge Associates Inc.
000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Re: Commodity Trading Authorization
Ladies and Gentlemen:
The Futures Dimension Fund, an Illinois limited partnership
(the "Partnership"), does hereby make, constitute, and appoint you as its
Attorney-in-Fact to purchase and sell futures contracts, commodities and
commodity options and forward and spot contracts, and any other items which are
currently, or may later become, the subject of futures, forward, spot or
options trading, and other related investments on domestic and international
exchanges and markets, through E.D. & F. Man International Inc., or such other
brokers and forward or spot contract dealers as may be designated, from time to
time, in writing by the Partnership, as brokers, in accordance with the
Management Contract between us dated November 8, 1995.
Very truly yours,
The Futures Dimension Fund
By: Xxxxxxx Asset Management, Inc.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
President
21
ACKNOWLEDGMENT OF RECEIPT
OF DISCLOSURE DOCUMENT
The undersigned hereby acknowledges receipt of Willowbridge Associates
Inc.'s Disclosure Document dated June 30, 1995.
The Futures Dimension Fund
By: Xxxxxxx Asset Management, Inc.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
President
