PUBLIC FUND SERVICE AGREEMENT
Exhibit 1.2
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 “Service Provider”).
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 Service
Provider, 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 Service Provider has agreed to provide various services to certain investors of
the Fund(s);
NOW, THEREFORE, the parties hereto agree as follows:
1. Services to be Provided:
Service Provider shall provide the following services to the owners of the Units (designated
on Exhibits A and B of this Agreement) as to which the services will be provided: (a) inquiring of
the General Partner at the request of the a Fund investor as to the Net Asset Value of a Unit; (b)
inquiring of the General Partner from time to time, at the request of a Fund investor, regarding
the commodities markets and the Fund(s) performance; (c) assisting, as requested, in the redemption
of Units owned by the Fund investors; (d) providing such other services to the Fund investors as
are, from time to time, reasonably requested; and (e) informing by letter all of the Fund investors
to whom services will be provided the identity of the Service Provider, the services available and
the means of accessing such services. The Service Provider also will use its best efforts to ensure
that any of its associated person to whom compensation is passed on pursuant to this section will
cooperate in providing the services specified in clauses (a) through (e) above for so long as such
associated person continues in the employment of the Service Provider.
The Fund(s) hereby authorize(s) the Service Provider to distribute the Prospectus and any
amendments or supplements thereto in accordance with the terms of this Agreement.
2. Compensation
In consideration of the provision by the Service Provider of the services specified in Section
1 above, the General Partner will pay the Service Provider compensation 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.
3. Undertaking of Service Provider
The Service Provider will provide the services set forth in Section 1 above. In doing so, the
Service Provider 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), the SEC, the securities or
Blue Sky administrators of the several states and various other jurisdictions and any other
applicable regulatory body.
Public Fund – Service Agreement (3/10)
4. 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 Service Provider 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.
5. 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”). 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 or redemption price for the Units to the Fund(s) in
compliance with Section 9 hereof.
6. Reports for Service Provider
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 Service Provider 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.
7.
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 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 Service Provider (i) 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 (ii) 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 Service Provider, 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 Service Provider may reasonably request.
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(d) During the Continuing Offering Period to deliver, without charge, to the Service
Provider, at such office or offices within the United States of America as the Service Provider may
reasonably designate, as many copies of the Prospectus, as amended or supplemented, as the Service
Provider may reasonably request.
8. 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 Service Provider
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 Service
Provider and the Service Provider 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
Service Provider 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.
9. Representations and Warranties
(a) The General Partner, on behalf of the Fund(s), represents and warrants to the Service
Provider 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 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).
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(b) The General Partner represents and warrants to the Fund(s) and the Service Provider
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 Service Provider represents and warrants to the Fund(s) and the General Partner that:
(i) The Service Provider 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 Service Provider in the manner contemplated by this
Agreement and as described in the Registration Statement and the Prospectus. The Service Provider
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 Service Provider’s ability to perform its obligations hereunder.
(ii) The Service Provider is in good standing and in compliance with all applicable
broker-dealer registration requirements in the places where the Units will be serviced by the
Service Provider.
(iii) Any use or distribution of the Registration Statement, the Prospectus or any related
preliminary prospectus by the Service Provider 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, 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 Service Provider 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 service of the
Units. The Service Provider represents and warrants that it has a reasonable basis for believing
that all the representations made by the subscriber in any documents provided to the Fund(s),
including the legal authority to enter into the document and the legal authority of the individual
executing the document are true and correct.
(iv) The Service Provider understands and agrees that, pursuant to the Fund(s) and Xxxxxxxx’x
reliance upon the Service Provider’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,
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corporate authorizations or other constituent documents, unless it may be required for anti-money laundering purposes, as
discussed below.
(v) The Service Provider 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 Service
Provider 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 Service Provider 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 Service Provider has adopted and has in
place anti-money laundering policies and procedures reasonably designed to guard against money
laundering activities set out in such program. Such policies and procedures are properly enforced
and are consistent with the anti-money laundering/OFAC laws. The Service Provider has taken all
reasonable steps to assure itself that, and represents that to the best of its knowledge, Fund
investors serviced by Service Provider 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 Service Provider understands that the Fund(s) and General Partner are
relying on the Service Provider to perform anti-money laundering requirements with respect to Units
serviced and agrees to promptly notify the Fund(s) and the General Partner with respect to any Fund
investor serviced by Servicer Provider should the Service Provider become aware that investment in
the Fund(s) by such Fund investor would cause a change to the representations and warranties set
forth herein. The Service Provider 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) This Agreement has been duly and validly authorized, executed and delivered on behalf of
the Service Provider, and is, assuming that it has been duly and validly authorized, executed and
delivered by the other parties hereto (other than the Service Provider), a valid and binding
agreement of the Service Provider and enforceable in accordance with its terms.
10. Closing Requirements
The sale of the Units and the release of the funds 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 Service Provider herein and the performance by the
Fund(s), the General Partner and the Service Provider of their obligations hereunder.
The General Partner may terminate this Agreement at any time, in its discretion.
11. Indemnification
(a) The General Partner agrees to indemnify and hold harmless the Service Provider 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 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; 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 any such loss, claim, damage or
liability arises out of, or is based upon any action or omission of the Service Provider, including
a breach of such entity’s representations and warranties herein.
(b) The Service Provider 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
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this Section 10), but only insofar as such losses, claims, damages,
costs, expenses, liabilities or actions arise out of or are based upon Service Provider’s
negligence, misconduct or breach of Service Provider’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 Service Provider for more
than the amount of proceeds resulting from the service of Units by the Service Provider during the
Continuing Offering Period plus the Service Provider’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 Service Provider and any person who controls the
Service Provider 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.
12. 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, the Prospectus and all amendments and supplements to the
Registration Statement and the Prospectus, (ii) the furnishing to the Service Providers of copies
of the Prospectus, the Registration Statement and all amendments or supplements thereto, and of
such other documents required to be furnished to the Service Providers, including costs of shipping
and mailing, (iii) the filing requirements of FINRA in connection with its review of the terms and
arrangements of the proposed financing, (iv) the fees and disbursements of the Escrow Agent, (v)
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, (vi) the fees and disbursements of legal counsel in connection with the
organization of the Funds with the
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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 Service Providers’ 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.
13. Electronic Document Delivery
The General Partner and the Fund(s) agree to accept delivery of transfer requests, redemption
requests, and other documentation from the Service Provider on the following terms:
(a) Service Provider represents that each electronic document image transmitted by the Service
Provider is a true and accurate image of the hard copy original of that document;
(b) Service Provider understands that the General Partner and the Fund(s) will rely on the
electronic document image from Service Provider to the same extent as if the General Partner and
Fund(s) had received a hard copy original of the document;
(c) Service Provider 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 Service Provider agrees to make the hard copy original to the General Partner and
Fund(s), if requested; and
(d) Service Provider 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). Service Provider understands that these electronic document images
shall be the General Partner and the Funds’ originals for books and records purposes.
14. 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 Service Provider, 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 Service Provider, 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.
15. 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.
16. 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.
17. Entire Agreement
This Agreement contains the entire understanding of the parties hereto with respect to the
subject matter contained herein.
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18. 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.
19. 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. |
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| By: | ||||
| By: | ||||
| SERVICE PROVIDER |
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| By: | ||||
| (Sign Name) | ||||
| By: | ||||
| (Print Name) | ||||
| Service Provider’s Legal Name and Address | ||||||||
ATTN.: |
||||||||
| TAX I.D. NO.: | ||||||||
PHONE: |
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FAX: |
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Public Fund – Service Agreement (3/10)
8
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 provision by the Service Provider of the services specified in Section
1 above, Xxxxxxxx shall pay the Service Provider 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 Service Provider 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 Fund investors to which the registered representative
sold shall also become clients of the transferee firm, the Service Provider 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), Service Providers 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 Fund investors 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 Service Provider 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 Service Provider may pay such compensation to its registered
representatives pursuant to the Service Provider’s own compensation policies. If any such
registered representative shall transfer employment to another FINRA registered firm, and the Fund
investors to which the registered representative sold shall also become clients of the transferee
firm, the Service Provider 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 Service Provider or its affiliate of additional
services in connection with the purchased Units serviced by the Service Provider, including; (w)
inquiring of Xxxxxxxx from time to time, at the request of an owner of Units, 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,
regarding the commodities markets and the Fund(s); (y) assisting, at the request of Xxxxxxxx, in
the redemption of Units; and (z) providing such other services to the owners of Units as Xxxxxxxx
may, from time to time, reasonably request. The Service Provider 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 Service
Public Fund – Service Agreement (3/10)
9
Provider. The Service Provider 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 Service Provider has agreed to act as non-exclusive service provider
of the following Units:
Xxxxxxxx Strategic Allocation Fund, X.X.
XXXXXXXX STRATEGIC ALLOCATION FUND, L.P.
| By: | XXXXXXXX & COMPANY, INC. | |||
| ITS GENERAL PARTNER | ||||
| By: | ||||
| By: | ||||
| SERVICE PROVIDER |
||||
| By: | ||||
| (Sign Name) | ||||
| By: | ||||
| (Print Name) | ||||
Public Fund – Service Agreement (3/10)
10
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) |
||
Class D (USD) (no upfront, trail or custody fee) |
Compensation
In consideration of the Service Provider providing various services to purchasers of the
Units, Xxxxxxxx Global Trend Fund, L.P. (“Xxxxxxxx Global Trend Fund”) shall pay the Service
Provider additional selling commissions as described below.
Xxxxxxxx Global Trend Fund will pay to the Service Provider 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 Service Provider may pay such compensation to its registered representatives pursuant
to the Service Provider’s own compensation policies. If any such registered representative shall
transfer employment to another FINRA registered firm, and the Fund investors to which the
registered representative sold shall also become clients of the transferee firm, the Service
Provider 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 Service Provider or its affiliate of
additional services in connection with the Units serviced by the Service Provider, including; (w)
inquiring of Xxxxxxxx from time to time, at the request of an owner of Units, 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,
regarding the commodities markets and the Fund; (y) assisting, at the request of Xxxxxxxx, in the
redemption of Units; and (z) providing such other services to the owners of Units as Xxxxxxxx may,
from time to time, reasonably request. The Service Provider 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 Service Provider.
Xxxxxxxx Global Trend Fund will pay to the Service Provider 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.
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.
Public Fund – Service Agreement (3/10)
11
Designation of Units
By initialing below, the Service Provider has agreed to act, as non-exclusive service
provider, 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 | ||||
| By: | ||||
| By: | ||||
| SERVICE PROVIDER |
||||
| By: | ||||
| (Sign Name) | ||||
| By: | ||||
| (Print Name) | ||||
Public Fund – Service Agreement (3/10)
12
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: | ||||||
TITLE: |
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DATE: |
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Public Fund – Service Agreement (3/10)
13
