PUBLIC FUND SELLING AGREEMENT
Exhibit 1.1
This Agreement made as of [INSERT DATE] by and among the
Fund(s) identified in Exhibits A and/or B to this Agreement (the “Funds”) and Xxxxxxxx &
Company, Inc., solely in its capacity as General Partner of the Fund(s), as applicable (“General
Partner”), and
, a
corporation (the “Selling Agent”).
W I T N E S S E T H :
WHEREAS, the General Partner has caused the Fund(s) to be organized to engage in speculative
trading of commodity futures contracts, options thereon, and other commodity interests and to file
a registration statement on Form S-1 with the Securities and Exchange Commission (the “SEC”)
pursuant to the Securities Act of 1933 (the “Securities Act”) and the rules and regulations adopted
by the SEC thereunder, as amended to the date hereof (the “Rules”); the term “Final Amendment”
means the amendment to such applicable registration statement which has been submitted by the
Fund(s) to the SEC to permit such applicable registration statement to become effective; the date
on which the applicable registration statement becomes effective being hereinafter referred to as
the “Effective Date”; the term “Registration Statement” means such applicable registration
statement in the form in which it becomes effective; the term “Prospectus” means the applicable
prospectus included in the Registration Statement (and each subsequent Registration Statement),
substantially in the form, heretofore submitted to, and not reasonably objected to by, the Selling
Agent, or the General Partner; and the term “preliminary prospectus” means any applicable
preliminary prospectus (as described in Rule 433 under the Securities Act) included at any time in
the applicable registration statement prior to its becoming effective with the SEC.
WHEREAS, the Fund(s) propose(s) to issue and sell to the public its interests (“Units”) as
described in the Prospectus; and
WHEREAS, the Selling Agent desires to assist in the sale of the Units upon the terms and in
reliance upon the representations, warranties and covenants set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Offering of Units
(a) Appointment
Subject to the terms and conditions set forth in this Agreement, the applicable fund or funds
hereby appoints the Selling Agent on a non-exclusive basis as its selling agent to offer and sell
Units (designated on Exhibits A and B of this Agreement) on a best efforts basis, without any firm
commitment on the part of the Selling Agent to purchase any Units.
The ‘‘Initial Offering Period’’ will be the period commencing on the date of the
Prospectus and continuing for the period described in the Prospectus, unless all of the
registered Units have previously been subscribed for, the General Partner has sooner terminated
the Initial Offering Period, or the General Partner has extended the Initial Offering Period for
an additional period. During the Initial Offering Period, the Selling Agent will offer Units for
sale at an initial closing (the ‘‘Initial Closing’’), which will be held at a period
soon after the end of the Initial Offering Period. However, the General Partner may at its
discretion hold such Initial Closing at any time during the Initial Offering Period. The Initial
Closing shall not take place unless subscriptions have been accepted for the amount of units
stated in the Prospectus. If the minimum number of Units is not sold during the Initial Offering
Period, the offering of Units shall terminate, and all subscription amounts (together with any
interest earned thereon) shall be refunded to subscribers, as described in the Prospectus. Units
which remain unsold following the Initial Closing shall be offered for sale in the continuing
offering (the ‘‘Continuing Offering ’’). During the Continuing Offering Period, the
Fund(s) may continue to offer Units at the month-end Net Asset Value per Unit as of the last
business day of the month (or such period as may be set forth in the Prospectus) during which
subscriptions are received by the General Partner. Such Continuing Offering Period shall
terminate at any time as determined by the General Partner.
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.
No selling commissions will be charged with respect to the sale of Units.
Public Fund — Selling Agreement (6/10)
The Fund(s) hereby authorize(s) the Selling Agent to distribute the Prospectus and any
amendments or supplements thereto in accordance with the terms of this Agreement.
b) Compensation
In consideration of the Selling Agent soliciting and obtaining purchasers of the Units and
providing ongoing services, the Selling Agent shall receive commissions and fees as described in
the applicable Prospectus and Exhibits, subject to the requirements therein. The details and
requirements of Exhibits A and/or B are incorporated herein, as applicable.
2. Undertaking of Selling Agent
The Selling Agent will use reasonable___efforts to find eligible persons to purchase
Units on the terms stated herein and in the Prospectus and any amendments or supplements thereto.
In connection with the offer and sale of the Units, the Selling Agent represents, warrants and
agrees that it will comply fully with all applicable laws and the rules of the CFTC, NFA, FINRA
(including NASD Conduct Rules and Notice to Members 84-7), the SEC, the securities or Blue Sky
administrators of the several states and various other jurisdictions and any other applicable
regulatory body. It is understood that the Selling Agent has no commitment with regard to the
offer or sale of the Units other than to use reasonable efforts as described above. All payments
for subscriptions by subscribers shall be made as provided in the Prospectus. Notwithstanding any
other provision of this Agreement, the General Partner shall have sole discretion to accept or
reject any subscription for Units, in whole or in part.
3. Blue Sky Filings
The Fund(s) agree(s) to prepare, execute, file and amend, as necessary, all applications for
registration of the Units and of itself as a dealer in securities, consents to service of process,
reports of sale of Units and similar Blue Sky qualification, registration and exemption documents
and to take such other actions which may be necessary or advisable, in the opinion of the General
Partner or its counsel, in order to qualify the Units for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States of America as the General Partner may
reasonably request; provided, that in no event shall the Fund(s) be obligated to (i) take any
action which would subject it to service of process in suits, other than those arising out of the
offering or sale of the Units, or taxes in any jurisdiction where it is not now so subject or (ii)
offer in any jurisdiction that would require a change any term in the Registration Statement, as
the same may be supplemented or amended.
The Selling Agent is responsible for compliance with all applicable laws, rules and
regulations with respect to its acting as such in connection with sales of Units in any
jurisdiction.
4. Closing Date
Subject to the General Partner’s right to terminate the offering at any time and subject to
the conditions and requirements stated in the Prospectus and herein, there shall be a closing on
the last business day of each month (or such time period as may be set forth in the Prospectus)
during the Continuing Offering Period (the “Closing Date”), with respect to subscriptions received
during each period of the Continuing Offering Period. Such closing shall be held at the offices of
the General Partner (or other location as selected by the General Partner), and shall provide for
payment of the aggregate purchase price for the Units to the Fund(s) by release of funds from the
Escrow Account, and (ii) compliance with Section 9 hereof.
5. Reports for Selling Agent
The Fund(s) agree(s) that so long as any of the Units are outstanding, it will, at the
Fund(s)’ expense, deliver to the Selling Agent upon request all financial statements and other
periodic and special reports distributed generally to the fund investors or required to be
delivered to the fund investors or filed with the SEC or the CFTC under the fund formation
documents or any federal statute, rule or regulation relating to securities, commodities or
commodity futures.
6. Agreements of the Fund(s) and the General Partner
The Fund(s) and the General Partner jointly and severally agree as follows:
(a) Promptly to file amendments to such registration statement which have been submitted by
the Fund(s) to the SEC to permit such registration statement to become effective (Final Amendment)
and the Prospectus with the SEC, but not to file
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any amendment or supplement to the Registration Statement or Prospectus, except such as counsel for
the General Partner shall deem advisable in order to assure compliance with applicable laws.
(b) To advise the Selling Agent (i) when the Registration Statement has become effective, (ii)
of the issuance by the SEC, CFTC or any other federal or state regulatory body of any stop order
suspending the effectiveness of the Registration Statement under the Securities Act, the CFTC
registration or NFA membership of the General Partner as a commodity pool operator or the
registration of Units under the Blue Sky or securities laws of any state or other jurisdiction or
any order or decree enjoining the offering or the use of the then current Prospectus or of the
institution, or notice of the intended institution, of any action or proceeding for that purpose
and (iii) the receipt by the Fund(s) or any representative or attorney of the Fund(s) of any other
material communication from the SEC, CFTC, NFA or any Blue Sky or securities law administrator
relating to the Fund(s), the Registration Statement(s), any preliminary prospectus or the
Prospectus, as it may be amended or supplemented. The Fund(s) will make every reasonable effort to
prevent the issuance of any order suspending the effectiveness of the Registration Statement(s)
under the Securities Act or the registration of Units under the laws of the several states and
various other jurisdictions or enjoining the offering and, if any such order is issued, to obtain
as soon as possible the withdrawal thereof; provided, that in no event shall the Fund(s) be
obligated to (i) take any action which would subject it to service of process in suits, other than
those arising out of the offering or sale of the Units, or taxes in any jurisdiction where it is
not now so subject or (ii) change any term in the Registration Statement, as the same may be
amended or supplemented.
(c) To deliver to the Selling Agent, without charge, as many conformed copies of the
registration statement as originally filed and of the Registration Statement and each amendment or
supplement thereto (including all exhibits filed with, or incorporated by reference in, any such
document) as the Selling Agent may reasonably request.
(d) During the Continuing Offering Period to deliver, without charge, to the Selling Agent, at
such office or offices within the United States of America as the Selling Agent may reasonably
designate, as many copies of the Prospectus, as amended or supplemented, as the Selling Agent may
reasonably request.
7. Amendment of the Registration Statement and Prospectus
The Fund(s) agree(s), at the expense of the Fund(s), to amend the Registration Statement and
Prospectus or to supplement the Prospectus if, at any time after the Effective Date and prior to
each Closing, (i) such amendment or supplement is necessary to comply with the Securities Act, the
Commodity Exchange Act (the “Commodity Act”), the securities or Blue Sky laws of any jurisdiction
or the rules or regulations promulgated under such Acts or laws, is necessary to comply with any
NFA deficiency notices or is necessary to correct any material untrue statement in the Prospectus
or Registration Statement or to eliminate any material omission therein or any omission therein
which renders any of the statements therein materially misleading, or (ii) the Selling Agent
advises the Fund(s) that, in its opinion and that of its counsel, such amendment or supplement is
necessary to comply with such Acts or laws or the rules or regulations promulgated thereunder, to
comply with any such deficiency notice or to correct any such material untrue statement or to
eliminate any such omission. The General Partner agrees to notify the Fund(s), the Selling Agent
and the Selling Agent agrees to notify the General Partner and the Fund(s), immediately (y) upon
discovery of any untrue or misleading statements or omissions in the Prospectus or Registration
Statement concerning such party and (z) of the occurrence of any event or change in circumstances
which would result in there being any untrue or misleading statement or omission in the Prospectus
or Registration Statement, in each case relating to the General Partner or the Selling Agent
respectively. The representations, warranties and indemnifications of all parties hereto contained
herein relating to the Registration Statement and Prospectus shall attach to any such amendment or
supplement.
8. Representations and Warranties
(a) The General Partner, on behalf of the Fund(s), represents and warrants to the Selling
Agent that:
(i) The Funds are duly organized and validly existing as limited partnerships under the laws
of the State of Delaware, and have full power and authority under the applicable formation
documents to conduct its business to be conducted as described in the Registration Statement and
Prospectus and to issue, sell and deliver the Units.
(ii) The Units, when issued and sold pursuant to the terms hereof and of the Registration
Statement, Prospectus and Subscription Agreements, will be validly issued, fully paid and not
subject to further call or assessment.
(iii) Per the Limited Partnership Agreement, as amended, the General Partner shall act as
trading advisor to the fund. The Limited Partnership Agreement, , the Escrow Agreement and this
Agreement have each been duly and validly authorized, executed and delivered by the General Partner
on behalf of the Fund(s) and each is, assuming that it has been duly and validly authorized,
executed and delivered by the other parties thereto (other than the General Partner), a valid and
binding
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agreement of the Fund(s), except insofar as bankruptcy, moratorium or other similar laws may be
applicable and except that the exculpation, indemnification and contribution provisions of such
agreements may be limited by applicable law and enforcement of any specific terms or remedies may
be unavailable.
(iv) The Funds have all federal and state governmental and regulatory approvals and licenses,
and are maintaining on a current basis all filings and registrations with federal and state
governmental and regulatory agencies, required to conduct its business to be conducted, all as
described in the Registration Statement and Prospectus.
(v) On the Effective Date and the date on which the Prospectus is first filed with the SEC
pursuant to Rule 424(b), the Registration Statement and the Prospectus (or when any post-effective
amendment to the Registration Statement becomes effective or any supplement to the Prospectus is
filed with the SEC, the Registration Statement, as amended, and the Prospectus, as amended or
supplemented) will comply fully in all material respects with the requirements of the Securities
Act and the Rules and the Commodity Act and the published rules of the CFTC thereunder, and will
accurately describe the proposed operation of the Fund(s); and each of the Registration Statement,
as it may be amended, the Prospectus, as it may be amended or supplemented, or any promotional
brochure or other marketing materials prepared, or approved in writing, by the General Partner
(collectively, “Promotional Material”) promulgated under the Securities Act, will not include an
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 (in the case of the Prospectus, as it
may be amended or supplemented, in the light of the circumstances under which such statements were
made).
(b) The General Partner represents and warrants to the Fund(s) and the Selling Agent that:
(i) It is a corporation duly organized and validly existing in good standing under the laws of
the State of Maryland has full corporate power to performs its obligations and enter into the
transactions described in the Registration Statement and Prospectus, as the same may be amended or
supplemented. All the present principals of the General Partner are identified as such in the
Registration Statement and Prospectus.
(ii) It has all federal and state governmental and regulatory, and to the best of its
knowledge, commodity exchange licenses and approvals, and is maintaining on a current basis all
filings and registrations with federal and state governmental and regulatory agencies, required to
act as described in the Registration Statement and Prospectus (including, without limitation,
registration as a commodity pool operator under the Commodity Act and membership as a commodity
pool operator in NFA), and the performance of such actions will not violate or result in a breach
of any provision of the Articles of Incorporation, by-laws or any agreement, instrument, order, law
or regulation binding upon it.
(iii) The formation documents and this Agreement have each been duly and validly authorized,
executed and delivered on behalf of the General Partner and each is, assuming that it has been duly
and validly authorized, executed and delivered by the other parties thereto (other than the
Fund(s)), a valid and binding agreement of the General Partner except insofar as bankruptcy,
moratorium or other similar laws may be applicable, and except that the exculpation,
indemnification and contribution provisions of such agreements may be limited by applicable law and
enforcement of any specific terms or remedies may be unavailable.
(iv) All references to the General Partner and its principals in the Registration Statement
and the Prospectus are accurate and complete in all material respects, set forth in all material
respects the information required to be disclosed to prospective investors under the Commodity Act
and the rules and regulations thereunder and, as to the General Partner and its principals, the
Registration Statement and Prospectus do not contain any misleading or untrue statement of a
material fact or omit to state a material fact which is required to be stated therein or necessary
to make the statements therein not misleading (in the case of the Prospectus, in the light of the
circumstances under which such statements were made).
(v) The balance sheet of the General Partner and the notes thereto included in the
Registration Statement present fairly the financial position of the General Partner as of the date
thereof, in conformity or (in the case of any unaudited balance sheet) in substantial conformity
with generally accepted accounting principles. Since the date of the most recent such balance
sheet, there have been no changes in the financial condition of the General Partner, other than
changes which, in the aggregate, are not materially adverse or which are disclosed in the
Prospectus, and since such date there have been no changes in the business of the General Partner
which are material in the context of the offering of the Units.
(c) The Selling Agent represents and warrants to the Fund(s) and the General Partner that:
(i) The Selling Agent is a corporation duly organized and validly existing and in good
standing under the laws of the state of its incorporation, is a member in good standing of 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
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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 the failure to be duly qualified would
materially adversely affect the Selling Agent’s ability to perform its obligations hereunder.
(ii) The Selling Agent is in good standing and in compliance with all applicable broker-dealer
registration requirements in the places where the Units will be sold by the Selling Agent.
(iii) Any use or distribution of the Registration Statement, the Prospectus or any related
preliminary prospectus by the Selling Agent will comply with the terms and conditions set forth in
the Prospectus and with the Securities Act, the Securities Exchange Act of 1934, as amended, all
applicable securities and Blue Sky laws of the states in which the Selling Agent intends to sell
Units, the rules and regulations promulgated under all such Acts and all such laws, and all
applicable rules and regulations of FINRA and all other self-regulatory organizations. In
particular, and not by way of limitation, the Selling Agent represents and warrants that it is
aware of FINRA Rule 2310 and that it will comply fully with all the terms thereof in connection
with the offer and sale of the Units. The Selling Agent agrees not to recommend either the
purchase or redemption of Units to any subscriber unless the Selling Agent shall have reasonable
grounds to believe, on the basis of information obtained from the subscriber concerning, among
other things, the subscriber’s investment objectives, other investments, financial situation and
needs, that the subscriber is or will be in a financial position appropriate to enable the
subscriber to realize to a significant extent the benefits of the Fund(s), including tax benefits
described in the Registration Statement and the Prospectus; the subscriber has a fair market net
worth sufficient to sustain the risks inherent in participating in the Fund(s), including loss of
investment and lack of liquidity; and the Units are otherwise a suitable investment for the
subscriber. The Selling Agent agrees to maintain files of information disclosing the basis upon
which the Selling Agent determined that the suitability requirements of FINRA Rule 2310 were met as
to each subscriber (the basis for determining suitability may include the Subscription Agreements
and other certificates submitted by subscribers). The Selling Agent shall fully comply with FINRA
Rule 2310. The Selling Agent represents and warrants that it has a reasonable basis for believing
that all the representations made by the subscriber in the Subscription Agreement, including the
legal authority to enter into the Subscription Agreement and the legal authority of the individual
executing the Subscription Agreement are true and correct. The Selling Agent further represents
and warrants that it has, among other things, examined the Registration Statement and Prospectus
and obtained such additional information from the General Partner regarding the information set
forth thereunder as the Selling Agent has deemed necessary or appropriate to determine whether the
Registration Statement and Prospectus adequately and accurately disclose all material facts
relating to an investment in the Fund(s) and provide an adequate basis to subscribers for
evaluating an investment in the Units. In connection with making the representations and
warranties set forth in this paragraph, the Selling Agent has not relied on inquiries made by or on
behalf of any other parties.
The Selling Agent agrees to inform all prospective purchasers of Units of all pertinent facts
relating to the liquidity and marketability of the Units as set forth in the Registration Statement
and Prospectus.
(iv) The Selling Agent understands and agrees that, pursuant to the Fund(s) and Xxxxxxxx’x
reliance upon the Selling Agent’s representations in subsection (iii), above, the Fund(s) and
Xxxxxxxx will not require, review or accept backup, legal documentation relating to subscriber(s),
including but not limited to trust agreements, partnership agreements, corporate authorizations or
other constituent documents, unless it may be required for anti-money laundering purposes, as
discussed below.
(v) The Selling Agent and its representatives have all required federal and state governmental
and regulatory approvals and licenses and have effected all filings and registrations with federal
and state governmental and regulatory agencies required to conduct its business and to perform
their obligations under this Agreement and to act as described in the Registration Statement and
the Prospectus. The performance of the obligations of the Selling Agent under this Agreement and
its acting as described in the Registration Statement and the Prospectus will not violate or result
in a breach of any provisions of its Articles of Incorporation or by-laws or any agreement,
instrument, order, law or regulation binding upon it.
(vi) The Selling Agent is aware of the requirements of the USA PATRIOT Act, the regulations
administered by the U.S. Department of Treasury’s Office of Foreign Assets Control, and other
applicable U.S. federal or non-U.S. anti-money laundering laws and regulations (collectively, the
“anti-money laundering/OFAC laws”). As a registered U.S. broker-dealer required to have in place a
Customer Identification Program as well as an anti-money laundering program meeting the
requirements of Section 352 of the USA PATRIOT Act, the Selling Agent has adopted and has in place
anti-money laundering policies and procedures reasonably designed to verify the identity of each
subscriber’s source of funds that is introduced by the Selling Agent. Such policies and procedures
are properly enforced and are consistent with the anti-money laundering/OFAC laws. The Selling
Agent has taken all reasonable steps to assure itself that, and represents that to the best of its
knowledge, subscribers introduced to the Fund(s) by the Selling Agent are not individuals, entities
or countries that may subject the Fund(s) or the General Partner to criminal or civil violations of
any anti-money laundering/OFAC laws. The Selling Agent understands that the Fund(s) and General
Partner are relying on the Selling Agent to perform anti-money laundering requirements with respect
to Units offered and agrees to promptly notify the Fund(s) and the General Partner with respect to
any subscriber introduced by the Selling Agent should
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the Selling Agent become aware that investment in the Fund(s) by such subscriber would cause a
change to the representations and warranties set forth herein. The Selling Agent agrees to provide
the AML Certification (attached as Exhibit C), or a form acceptable to the General Partner and the
Fund(s), upon execution of this Agreement and periodically thereafter.
(vii) During the Initial Offering Period, as defined in the Prospectus, the Selling Agent will
be required to forward subscription documents to the General Partner as soon as is reasonably
practicable following receipt of an acceptable subscription agreement from a subscriber for Units.
Subscription documents must be in proper form and the General Partner shall have the sole
responsibility for accepting or rejecting subscriptions. The Selling Agent shall deposit the
subscription proceeds in escrow accounts with PNC Bank, National Association (the “Escrow Agent”)
no later than noon of the next business day or by noon of the second business day after receipt of
the subscription by the General Partner. If the latter option is used, the subscription documents
must be forwarded to the General Partner by noon of the next business day after receipt of the
subscription proceeds. Proceeds will be transferred to the escrow accounts at the Escrow Agent by
check payable to the applicable Fund and/or Series from the Subscriber or via wire transfer and
will be held during the Initial Offering Period until the funds are turned over to the relevant
Fund(s) trading accounts or until the offering of the relevant Fund or Series is terminated.
(viii) During the Continuous Offering Period, as described in the applicable Prospectus,
the Selling Agent will be required to forward subscriptions to the General Partner as soon as is
reasonably practicable following receipt of an acceptable subscription agreement from a subscriber.
The General Partner will have the sole responsibility for determining whether subscriptions are
accepted.
(ix) This Agreement has been duly and validly authorized, executed and delivered on behalf of
the Selling Agent, and is, assuming that it has been duly and validly authorized, executed and
delivered by the other parties hereto (other than the Selling Agent), a valid and binding agreement
of the Selling Agent and enforceable in accordance with its terms.
9. Closing Requirements
The issue and sale of the Units and the release of the funds from the Escrow Account to the
Fund(s) shall be subject to the accuracy on and as of the Closing Date of, and compliance on each
Closing Date with, the representations and warranties of the General Partner and the Selling Agent
herein and the performance by the Fund(s), the General Partner and the Selling Agent of their
obligations hereunder.
The General Partner may terminate this Agreement at any time, in its discretion. In the event
of any such termination, all subscriptions received from prospective investors of the Fund(s), but
not yet accepted by the Fund shall promptly be returned to them as provided in the Prospectus.
10. Indemnification
(a) The General Partner agrees to indemnify and hold harmless the Selling Agent and each
person, if any, who controls such person within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages, costs, expenses, liabilities, joint or several
(including any investigatory, legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), and actions to which
they, or any of them, may become subject under the Securities Act, the Securities Exchange Act of
1934, the Commodity Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages, costs, expenses, liabilities or actions arise
out of or are based upon any untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement, the Prospectus or any amendment of supplement thereto, or
Promotional Material, or the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case of (i) the
Prospectus, or any amendment or supplement thereto, in the light of the circumstances under which
such statements were made, or (ii) the Promotional Material, when taken together with the
Prospectus and in light of the circumstances under which such statements were made);
provided , however, that in no event shall the indemnification agreement contained in this
subsection (a) of Section 10 inure to the benefit of any of the indemnified parties (or any person
controlling any such party within the meaning of Section 15 of the Securities Act) on account of
any losses, claims, damages, costs, expenses and liabilities arising from the sale of the Units to
any person if such losses, claims, damages, costs, expenses, liabilities or actions arise out of or
are based upon, an untrue statement or omission in a preliminary prospectus or the Prospectus or a
supplement or amendment thereto, if a preliminary prospectus, the Prospectus, the Prospectus as
amended or supplemented or as further amended or supplemented, respectively, shall correct, prior
to the delivery to such person of his subscription, the untrue statement or omission which is the
basis of the loss, claim, damage, liability or action for which indemnification is sought and a
copy of a preliminary prospectus, the Prospectus or the Prospectus as amended or supplemented or as
further amended or supplemented, as the case may be, had not been sent or given to such indemnified
person at or prior to the receipt of the subscription. Provided, however that neither the Fund(s)
nor General Partner shall be liable to the party seeking
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indemnification in any case to the extent that any such loss, claim, damage or liability arises out
of, or is based upon any action or omission of the Selling Agent, including a breach of such
entity’s representations and warranties herein.
(b) The Selling Agent agrees to indemnify and hold harmless the Fund(s) and the General
Partner, as the case may be, and each person, if any, who controls the Fund(s) and the General
Partner, as the case may be, within the meaning of Section 15 of the Securities Act to the same
extent as the foregoing indemnity from the General Partner set forth in subsection (a) of this
Section 10 (and, in the case of the General Partner, for any indemnity paid by the General Partner
pursuant to subsection (a) of this Section 10), but only insofar as such losses, claims, damages,
costs, expenses, liabilities or actions arise out of or are based upon Selling Agent’s negligence,
misconduct or breach of Selling Agent’s representations and warranties herein.
(c) Each of the parties to this Agreement understands that the obligations of each party
subject to this Section 10 are separate and distinct. Notwithstanding any other provision of this
Section 10, the General Partner shall have no obligation to indemnify the Selling Agent for more
than the amount of proceeds resulting from the sale of Units by the Selling Agent during the
Continuing Offering Period plus the Selling Agent’s actual expenses incurred in connection with any
loss, claim, damage, charge or liability (including reasonable attorneys’ and accountants’ fees
incurred in defense thereof).
(d) Notwithstanding any other provision of this Agreement, indemnification of the General
Partner or its controlling persons by the Fund(s) shall be permitted only to the extent permitted
by the formation documents, as amended..
(e) Any party which proposes to assert the right to be indemnified under this Section 10 will,
promptly after receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim is to be made against an indemnified party under this Section
10, notify each such indemnifying party of the commencement of such action, suit or
proceeding but the omission to notify an indemnifying party shall not relieve such indemnifying
party from any liability which it may have to any indemnified party under this Section 10
except to the extent, and only to the extent, that such omission was prejudicial to the
indemnifying party. In no event shall any such omission relieve an indemnifying party of any
liability which it may have to an indemnified party otherwise than under this Section 10. In case
any such action, suit or proceeding shall be brought against any indemnified party, and such party
shall notify the indemnifying party of the commencement thereof; the indemnifying party shall be
entitled to participate therein, and, if it shall wish, individually or jointly with any other
indemnifying party, to assume (or have such other party assume) the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to
such indemnified party of its election (or the election of such other party) so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal
or other expenses, other than reasonable costs of investigation requested by the indemnifying party
(or such other party), subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ its counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment by counsel by such indemnified party has been authorized by the
indemnifying party (or such other indemnifying party as may have assumed the defense of the action
in question), (ii) the indemnified party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying party (or such other party) and the indemnified party
in the conduct of the defense of such action (in which case the indemnifying party (or such other
party) shall not have the right to direct the defense of such action on behalf of the indemnified
party) or (iii) the indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party (subject to possible reimbursement of the indemnifying party by
such other party). An indemnifying party shall not be liable for any settlement of any action or
claim effected without its written consent. In the case of (ii) above, the indemnifying party (or
the indemnifying parties, if an indemnified party shall have a claim for indemnification against
more than one indemnifying party) shall not be liable for the expenses of more than one separate
counsel for each of the following groups: (x) the Selling Agent and any person who controls the
Selling Agent within the meaning of Section 15 of the Securities Act; and (y) the Fund(s) and the
General Partner and any person who controls the Fund(s) and General Partner within the meaning of
Section 15 of the Securities Act.
(f) The exculpation provisions of the Advisory Agreement or the formation documents shall not
relieve the General Partner or its principals from any liability they may have or incur to the
Fund(s) under this Agreement.
(g) No indemnifying party, in the defense of any action, shall, without the written consent of
the indemnified party, consent to the entry of any judgment or enter into any settlement that does
not include as an unconditional term the giving by the claimant or plaintiff to the indemnified
party of a release from all liability in respect to such claim or litigation.
11. Fees and Expenses
Subject to reimbursement or partial reimbursement on an installment basis by the Fund(s), as
set forth in the Prospectus, the General Partner will pay all costs and expenses relating to (i)
the preparation, printing and filing with the SEC, CFTC and NFA of the Registration Statement and
(in certain cases) exhibits thereto, each preliminary prospectus, the Prospectus and all
Public Fund — Selling Agreement (6/10)
7
amendments and supplements to the Registration Statement and the Prospectus, (ii) the registration
or qualification of the Units for offer and sale under the securities or Blue Sky laws of the
various jurisdictions referred to in Section 3 hereof, including the fees and disbursements of
legal counsel in connection therewith and in connection with the preparation and printing of
preliminary or supplementary Blue Sky Surveys, (iii) the furnishing to the Selling Agents of copies
of each preliminary prospectus, the Prospectus, the Registration Statement and all amendments or
supplements thereto, and of such other documents required to be furnished to the Selling Agents,
including costs of shipping and mailing, (iv) the filing requirements of FINRA in connection with
its review of the terms and arrangements of the proposed financing, (v) the fees and disbursements
of the Escrow Agent, (vi) all fees and disbursements of the Funds’ accountants and auditors in
connection with the financial statements and the performance records contained in the Prospectus
and the preparation and delivery of any other documents to be prepared and delivered in connection
with the transactions contemplated hereby, (vii) the fees and disbursements of legal counsel in
connection with the organization of the Funds with the offering of the Units, and (viii) all other
organization and offering expenses relating to the Fund(s), including any expenses incurred in any
“roadshow” relating to the offering of the Units and the Selling Agents’ reasonable “due diligence”
expenses, within the guidelines established by FINRA Rule 2310. Each other party shall bear all of
its expenses under this Agreement, including fees and disbursements of its counsel.
12. Electronic Document Delivery
The General Partner and the Fund(s) agree to accept delivery of subscription agreements,
transfer requests, redemption requests, and other documentation from the Selling Agent on the
following terms:
(a) Selling Agent represents that each electronic document image transmitted by the Selling
Agent is a true and accurate image of the hard copy original of that document;
(b) Selling Agent understands that the General Partner and the Fund(s) will rely on the
electronic document image from Selling Agent to the same extent as if the General Partner and
Fund(s) had received a hard copy original of the document;
(c) Selling Agent will maintain the hard copy original in its files as required by its own
document retention rules and procedures, but for a minimum of 30 days after each transaction,
during which time Selling Agent agrees to make the hard copy original to the General Partner and
Fund(s), if requested; and
(d) Selling Agent will deliver each electronic document image to the General Partner and the
Fund(s) in a legible and secure form (via a secure transmission medium) acceptable to the General
Partner and the Fund(s). Selling Agent understands that these electronic document images shall be
the General Partner and the Funds’ originals for books and records purposes.
13. Survival of Covenants; Captions; Successors and Assigns
The indemnification agreements contained in Section 10 hereof, the obligation to settle
accounts hereunder and the agreements, representations and warranties herein shall survive (a) the
issue and payment for the Units hereunder and (b) any investigation made by any party hereto or by
a controlling person of any party hereto, as “controlling person” is defined in Section 15 of the
Securities Act.
All captions used herein are for convenience of reference only, are not a portion of this
Agreement and are not to be used in construing or interpreting any aspect of this Agreement.
This Agreement has been and is made solely for the benefit of the Selling Agent, the Fund(s)
and the General Partner and their respective successors and assigns, and, to the extent expressed
herein, for the benefit of persons controlling any of the Selling Agent, the Fund(s) and the
General Partner and their respective successors and assigns within the meaning of Section 15 of the
Securities Act, and no other person, partnership, association or corporation shall acquire or have
any right under or by virtue of this Agreement. The term “successors and assigns” shall not
include any purchaser of Units merely because of such purchase.
14. Notices
Any notices under this Agreement shall be in writing (including telegraphic communication) or
by telephone, confirmed in writing, all such writings to be sent by first class mail, postage
prepaid, addressed to the recipient party at the address previously furnished in writing by such
party to each of the other parties hereto. Copies of all notices shall be sent to, Xxxxxxxx &
Company, Inc., 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, attn: Xxxxxx X. Xxxxx, General
Counsel, and Xxxxxxx X. Xxxxxxx, Chief Financial Officer.
Public Fund — Selling Agreement (6/10)
8
15. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original agreement, but all of which together shall constitute one and the same instrument.
16. Entire Agreement
This Agreement contains the entire understanding of the parties hereto with respect to the
subject matter contained herein.
17. Governing Law
This Agreement shall be deemed to be made under and construed in accordance with the law of
the State of Delaware, without regard to principles of conflicts of laws.
18. Confidentiality
The parties each acknowledge that certain information made available to the other party
hereunder may be deemed nonpublic, personal information under the Xxxxx-Xxxxx-Xxxxxx Act, other
federal or state privacy laws (as amended) and the rules and regulations promulgated thereunder
(collectively, the “Privacy Laws”). The parties hereby agree (a) not to disclose or use such
information except as required to carry out their respective duties under the Agreement or as
otherwise permitted by law in their ordinary course of business, (b) to establish and maintain
procedures reasonably designed to assure the security and privacy of all such information and (c)
to cooperate with each other and provide reasonable assistance in ensuring compliance with such
Privacy Laws to the extent applicable to either or both of the parties.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the day and
year first above written.
| XXXXXXXX & COMPANY, INC. | ||||||||||
By: |
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By: |
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| SELLING AGENT | ||||||||||
| By: | ||||||||||
| By: | ||||||||||
Selling Agent’s Legal Name and Address |
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Public Fund — Selling Agreement (6/10)
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ATTN.: |
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TAX I.D. NO.: |
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PHONE: |
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FAX: |
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Public Fund — Selling Agreement (6/10)
10
EXHIBIT A
XXXXXXXX STRATEGIC ALLOCATION FUND, L.P.
Fund Details
Xxxxxxxx & Company, Inc., as General Partner, caused the Xxxxxxxx Strategic Allocation Fund,
L.P. to be organized under a Limited Partnership Agreement dated May 11, 1993, as amended and
Certificate of Limited Partnership filed May 11, 1993.
Compensation
In consideration of the Selling Agent soliciting and obtaining purchasers of the Units,
Xxxxxxxx shall pay the Selling Agent a selling commission, 4% of the subscription amount of any
subscriptions accepted by Xxxxxxxx (as described in the Prospectus), subject to the possibility of
a payment of additional selling commissions as described below (and detailed in the Prospectus).
With respect to any Units (or dollar amount of Units) registered for sale to the public
pursuant to a Registration Statement filed with the SEC any time before December 1, 2004 (including
any Post-Effective Amendment thereto before December 1, 2008), in consideration of the provision by
the Selling Agent of the additional services specified below in this subsection (b) Xxxxxxxx will
pay to the Selling Agent (provided it represents that it is registered with the CFTC as a futures
commission merchant or introducing broker and is a member in good standing of the NFA in such
capacity) ongoing payments of a percentage(as described in the Prospectus) per annum of Net Asset
Value (determined as of the last day of the immediately preceding month) of Units outstanding at
the end of such month serviced by the Selling Agent. The Selling Agent may pay such compensation
to its registered representatives who are registered as associated persons with the CFTC and have
passed the National Commodity Futures Examination (Series 3) or the Futures Managed Funds
Examination (Series 31). If any such registered representative shall transfer employment to
another CFTC/NFA registered firm, and the limited partners to which the registered representative
sold shall also become clients of the transferee firm, the Selling Agent agrees to transfer its
ongoing compensation to the transferee firm.
With respect to any Units (or dollar amount of Units) registered for sale to the public
pursuant to a Registration Statement filed with the SEC any time before December 1, 2004 (including
any Post-Effective Amendment thereto before December 1, 2008), Selling Agents and registered
representatives who are not registered with the CFTC as described above may receive additional
selling commissions from Xxxxxxxx, paid on the same basis as the ongoing payments, provided that
the total of such additional selling commissions plus the initial selling commission and per Unit
organization and offering costs properly deemed to constitute costs allocable to the Selling
Agents, such as a selling brochure, seminar costs and travel expenses, and all other costs or
expenses that paid to any party constitute “Underwriting Compensation” within the meaning of FIRNA
Rule 2310 do not exceed 10% of such Units’ initial sale price. Any such ongoing payments or
additional selling commissions will be paid by Xxxxxxxx and not by the Fund(s), but may be deemed
to constitute underwriting compensation. If any such registered representative shall transfer
employment to another FINRA registered firm, and the limited partners to which the registered
representative sold shall also become clients of the transferee firm, the Selling Agent agrees to
transfer its ongoing compensation to the transferee firm.
With respect to any Units (or dollar amount of Units) registered for sale to the public
pursuant to a Registration Statement filed with the SEC any time after December 1, 2008, Xxxxxxxx
will pay to the Selling Agent additional selling commission a per annum percentage (as described in
the Prospectus) of Net Asset Value (determined as of the last day of the immediately preceding
month) of Units outstanding at the end of such month, commencing at the beginning of the thirteenth
full month after the sale of the Units, provided, however, that the total of such additional
selling commissions plus the initial selling commission do not exceed 9.0% of such Units’ initial
sale price and further provided that the total of all amounts paid to any party that constitute
“Underwriting Compensation” within the meaning of FINRA Rule 2310 do not exceed 10% of such Units’
initial sale price. The Selling Agent may pay such compensation to its registered representatives
pursuant to the Selling Agent’s own compensation policies. If any such registered representative
shall transfer employment to another FINRA registered firm, and the limited partners to which the
registered representative sold shall also become clients of the transferee firm, the Selling Agent
agrees to transfer its additional selling commissions with respect thereto to the transferee firm.
The ongoing compensation specified above in this subsection (b) shall be in consideration of
and is contingent upon the provision by the Selling Agent or its affiliate of additional services
in connection with the Units sold by the Selling Agent, including; (w) inquiring of Xxxxxxxx from
time to time, at the request of an owner of Units sold by it, as to the Net Asset Value of a Unit;
(x) inquiring of Xxxxxxxx from time to time, at the request of an owner of Units sold by it,
regarding the commodities markets and the Fund(s); (y) assisting, at the request of Xxxxxxxx, in
the redemption of Units sold by it; and (z) providing such other services to the owners of Units
sold by it as Xxxxxxxx may, from time to time, reasonably request. The Selling Agent also will use
its best efforts to insure that any of its registered representatives to whom compensation is
passed on pursuant to this subsection (b) will cooperate in
Public Fund — Selling Agreement (6/10)
11
providing the services specified in clauses (w) through (z) above for as long as such
representative continues in the employment of the Selling Agent. The Selling Agent shall forfeit
its rights hereunder to receive any ongoing compensation relating to the additional services for
the entirety of any month during which it is not duly registered with the CFTC as a futures
commission merchant or introducing broker and a member in good standing of NFA.
Designation of Units
By initialing below, the Selling Agent has agreed to assist, as non-exclusive selling agent,
in the offer and sale of the following Units:
Xxxxxxxx Strategic Allocation Fund, X.X.
XXXXXXXX STRATEGIC ALLOCATION FUND, L.P.
| By: | XXXXXXXX & COMPANY, INC. ITS GENERAL PARTNER |
By: |
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By: |
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| SELLING AGENT | ||||||||||
| By: | ||||||||||
| By: | ||||||||||
| (Print Name) | ||||||||||
Public Fund — Selling Agreement (6/10)
12
EXHIBIT B
XXXXXXXX GLOBAL TREND FUND, L.P.
Fund and Series Details
Xxxxxxxx & Company, Inc., as General Partner, caused the Xxxxxxxx Global Trend Fund, L.P. to
be organized under the Amended Limited Partnership Agreement dated January 1, 2010 and Amended
Certificate of Limited Partnership filed January 21, 2010.
The Fund is currently comprised of two series: the Global Trend Series (USD) and the Global
Trend Series (GLD). Each series is comprised of classes with various fee structures, as described
in detail in the Prospectus and in the Compensation section, below.
Global Trend Series (USD)
|
Global Trend Series (GLD) | |
Class A (USD) (2% upfront / 2% trail / 0.25% custody fee)
|
Class A (GLD) (2% upfront / 2% trail / 0.25% custody fee) | |
Class B (USD) (2% upfront / 2% trail)
|
Class B (GLD) (0.25% custody fee) | |
Class C (USD) (0.25% custody fee) |
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Class D (USD) (no upfront, trail or custody fee) |
Compensation
In consideration of the Selling Agent soliciting and obtaining purchasers of the Units,
Xxxxxxxx Global Trend Fund, L.P. (“Xxxxxxxx Global Trend Fund”) shall pay the Selling Agent a
selling commission of 2% of the subscription amount of any subscriptions for Class A (USD), Class B
(USD) and Class A (GLD) Units accepted by the Fund, subject to the possibility of a payment of
additional selling commissions as described below.
Xxxxxxxx Global Trend Fund will pay to the Selling Agent additional selling commissions of 2% per
annum of Net Asset Value (determined as of the last day of the immediately preceding month) of
Class A (USD), Class B (USD) and Class A (GLD) Units outstanding at the end of such month,
commencing at the beginning of the thirteenth full month after the sale of the Units, provided,
however, that the total of such additional selling commissions plus the initial selling commission
per Unit do not exceed 8.0% of the gross offering proceeds of Class A (USD) and Class A (GLD)
Units, respectively, and 9.0% of the gross offering proceeds of Class B (USD) Units and further
provided that the total of all amounts paid to any party that constitute “Underwriting
Compensation” within the meaning of FINRA Rule 2310 do not exceed 10% of such Units’ initial sale
price. The Selling Agent may pay such compensation to its registered representatives pursuant to
the Selling Agent’s own compensation policies. If any such registered representative shall
transfer employment to another FINRA registered firm, and the limited partners to which the
registered representative sold shall also become clients of the transferee firm, the Selling Agent
agrees to transfer its additional selling commissions with respect thereto to the transferee firm.
The ongoing compensation specified above in this subsection (b) shall be in consideration of and is
contingent upon the provision by the Selling Agent or its affiliate of additional services in
connection with the Units sold by the Selling Agent, including; (w) inquiring of Xxxxxxxx from time
to time, at the request of an owner of Units sold by it, as to the Net Asset Value of a Unit; (x)
inquiring of Xxxxxxxx from time to time, at the request of an owner of Units sold by it, regarding
the commodities markets and the Fund; (y) assisting, at the request of Xxxxxxxx, in the redemption
of Units sold by it; and (z) providing such other services to the owners of Units sold by it as
Xxxxxxxx may, from time to time, reasonably request. The Selling Agent also will use its best
efforts to insure that any of its registered representatives to whom compensation is passed on
pursuant to this subsection (b) will cooperate in providing the services specified in clauses (w)
through (z) above for as long as such representative continues in the employment of the Selling
Agent.
Xxxxxxxx Global Trend Fund will pay to the Selling Agent a custodial fee of .25% Class A
(USD), Class C (USD), Class A (GLD) and Class B (GLD) Units’ month-end net asset value per annum,
provided, however that the total of such custodial fees per Unit do not exceed 1.0% of the gross
offering proceeds of Class A (USD) and Class A (GLD) Units, respectively, and 6% of the gross
offering proceeds of Class C (USD) and Class B (GLD) Units, respectively, and further provided that
the total of all amounts paid to any party that constitute “Underwriting Compensation” within the
meaning of FINRA Rule 2310 do not exceed 10% of such Units’ initial sale price.
Once total Underwriting Compensation paid on any Class A (USD) Unit, Class B (USD) Unit, Class
C (USD) Unit, Class D (USD) Unit, Class A (GLD) Unit or Class B (GLD) Unit reaches 10% of the gross
offering proceeds, the Class A (USD) Unit, Class B (USD) Unit, Class C (USD) Unit or Class D (USD)
Unit will automatically be re-designated as Class E (USD) Units, and the Class A (GLD) Unit or
Class B (GLD) Unit will automatically be re-designated as Class C (GLD) Units.
Public Fund — Selling Agreement (6/10)
13
Xxxxxxxx Global Trend Fund will not pay any compensation to the Selling Agents on Class D
(USD), Class E (USD) and Class C (GLD) Units.
Designation of Units
By initialing below, the Selling Agent has agreed to assist, as non-exclusive selling agent,
in the offer and sale of the following series of Units:
Xxxxxxxx Global Trend Fund, L.P. Class A (USD)
Xxxxxxxx Global Trend Fund, L.P. Class B (USD)
Xxxxxxxx Global Trend Fund, L.P. Class C (USD)
Xxxxxxxx Global Trend Fund, L.P. Class D (USD)
Xxxxxxxx Global Trend Fund, L.P. Class A (GLD)
Xxxxxxxx Global Trend Fund, L.P. Class B (GLD)
| XXXXXXXX GLOBAL TREND FUND, L.P. | ||||||||||
By:
|
XXXXXXXX & COMPANY, INC. ITS GENERAL PARTNER |
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By: |
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By: |
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| SELLING AGENT | ||||||||||
| By: | ||||||||||
| By: | ||||||||||
Public Fund — Selling Agreement (6/10)
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EXHIBIT C
ANTI-MONEY LAUNDERING CERTIFICATION
FIRM NAME:
ADDRESS:
On behalf of , (the “Firm”), the undersigned representative,
who is responsible for the Firm’s
anti-money laundering compliance, represents and warrants that:
The Firm has established, maintains and will continue to maintain an anti-money laundering program
and/or procedures in accordance with all applicable laws, rules and regulations of its own
jurisdiction including, where applicable, the Bank Secrecy Act, as amended by the Title III of the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (the “PATRIOT Act”).
The Firm has an established customer identification program consistent with section 326 of the
PATRIOT Act and including identification of politically exposed persons. The Firm’s program is
also in accordance with Executive Orders administered by the U.S. Department of the Treasury’s
Office of Foreign Assets Control (“OFAC”), including the List of Specially Designated Nationals and
Blocked Persons administered by OFAC, as such list may be amended from time to time.
The Firm applies, and will continue to apply, its anti-money laundering program and/or procedures
to all customers and will take appropriate steps to ensure that all required relevant documentation
is retained, including those involving customer identification, for five years after the date on
which the individual withdraws the investment.
The Firm further represents that it will adopt appropriate policies, procedures and internal
controls to be fully compliant with any additional laws, rules or regulations to which it may
become subject.
NAME: |
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SIGNATURE: |
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TITLE: |
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DATE: |
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Public Fund — Selling Agreement (6/10)
15
