Grant Park Futures Fund Limited Partnership (An Illinois Limited Partnership) Units of Limited Partnership Interest AMENDED AND RESTATED SELLING AGREEMENT
EXHIBIT
1.1
Grant
Park
Futures Fund Limited Partnership
(An
Illinois Limited Partnership)
$1,150,000,000
Units
of Limited Partnership Interest
AMENDED
AND RESTATED SELLING AGREEMENT
[________],
2009
[NAME OF
SELLING FIRM]
[ADDRESS]
[ADDRESS]
Dear
Sir/Madam:
Dearborn Capital Management,
L.L.C., an Illinois limited liability company (the “General Partner”), serves as
the general partner of an Illinois limited partnership pursuant to the Revised
Uniform Limited Partnership Act of the State of Illinois (the “Illinois Act”) under the name
Grant Park Futures Fund Limited
Partnership (the “Fund”), for the purpose of
engaging in the speculative trading of futures contracts, forward contracts,
options on futures contracts, forward contracts and on commodities, security
futures contracts, spot contracts and other commodity interest contracts,
implementing the trading methods of the independent commodity trading advisors
engaged by the General Partner on behalf of the Fund. DCM Brokers,
LLC (“DCM”) has been appointed pursuant to the selling agreement by and among
DCM, the General Partner and the Fund as the principal selling agent of the Fund
(the “Lead Selling Agent”). Each of the General Partner, the Fund and
[NAME OF SELLING FIRM] (the “Selling Agent” and,
collectively with the Fund’s other selling agents, the “Selling Agents”) have
previously entered into a Selling Agreement, dated [DATE] (the “Original Selling Agreement”),
whereby the Selling Agent acts as a selling agent for the Fund. Other
Selling Agents have also previously entered into selling agreements with the
General Partner whereby such Selling Agents act as selling agents for the
Fund. Other Selling Agents may be selected, from time to time, by the
General Partner in its sole discretion.
Due to
certain changes to the structure of the Fund, including the creation of new
classes of beneficial interest in the Fund, the parties to the Original Selling
Agreement hereby agree to amend and restate such agreement to provide for such
changes and such additional updating and/or conforming changes required or
necessary since the date the Original Selling Agreement was entered
into.
The Fund
raises capital as herein provided by the continuous offer and sale of units of
limited partnership interest in the Fund (the “Units”), the purchasers of
which become limited partners (“Limited Partners”) of the
Fund. The Selling Agent hereby agrees to use its best efforts to
market the Units pursuant to the terms hereof. Accordingly, the
Selling Agent, the General Partner and the Fund, intending to be legally bound,
hereby agree as set forth below. This Amended and Restated Selling
Agreement shall be referred to herein as the “Agreement.”
Section 1. Representations and
Warranties of the General Partner. The General Partner
represents and warrants to the Selling Agent as of the date hereof, with such
representations and warranties to be restated and reaffirmed as of each Closing
Date (as defined in Section 2(e) hereof):
(a) The Fund
has provided to the Selling Agent, and filed with the Securities and Exchange
Commission (the “SEC”),
one or more registration statements on Form S-1 and any required pre- or
post-effective amendments or prospectus supplements thereto, relating to the
registration of the Units under the Securities Act of 1933, as amended (the
“1933 Act”) and the
rules and regulations of the SEC promulgated under the 1933 Act (the “SEC Regulations”), and has
filed one copy thereof with the National Futures Association (“NFA”) in accordance with NFA
Compliance Rule 2-13, the Commodity Exchange Act, as amended (the “Commodity Act”), and the rules
and regulations thereunder (the “CFTC
Regulations”). The registration statement as amended and
delivered to all parties hereto at the time it became or becomes effective
together with any registration statement filed to register additional Units
under the 1933 Act pursuant to Rule 462(b) under the 1933 Act, and the
prospectus and any prospectus supplement included therein are hereinafter called
the “Registration
Statement” and the “Prospectus,” respectively,
except that: (i) if the Fund files a subsequent post-effective
amendment to the registration statement, then the term “Registration Statement”
shall, from and after the declaration of the effectiveness of such
post-effective amendment, refer to the registration statement as amended by such
post-effective amendment thereto; and (ii) the term “Prospectus” shall
refer to the prospectus as most recently issued by the Fund pursuant to the SEC
Regulations, together with any current supplement or supplements
thereto.
No
reference to the Selling Agent may be made in the Registration Statement,
Prospectus or in any promotional materials or other marketing materials
(collectively, “Promotional
Materials”), that has not been approved by the Selling Agent, which
approval such Selling Agent may withhold in its sole and absolute
discretion. The Fund will cooperate with DCM Brokers LLC (“DCM”), as
appropriate, in causing to be filed all Promotional Material with The Financial
Industry Regulatory Authority (“FINRA”), and will not use any
such Promotional Material unless FINRA has stated in writing that it appears to
comply with all applicable standards. The Fund will file, or cause to
be filed, all Promotional Material in state jurisdictions as requested or
required by law, and will not use any such Promotional Material in any state
that has expressed any objection thereto (except pursuant to agreed-upon
modifications to the Promotional Material).
(b) The
certificate of limited partnership (the “Certificate of Limited
Partnership”) pursuant to which the Fund has been formed and the Third
Amended and Restated Limited Partnership Agreement (the “Limited Partnership
Agreement”) provide for the subscription for and sale of the Units of the
Fund; all action required to be taken by the General Partner and the Fund as a
condition to the sale of the Units to qualified subscribers therefor has been,
or prior to each Closing Date (as defined in Section 2(e) hereof) will have
been, taken; and, upon payment of the consideration therefor specified in all
accepted Subscription Agreements and Powers of Attorney, the form of which is
set forth as Appendix B to the Prospectus, the Units will constitute valid
units of limited partnership interest in the Fund as to which the subscribers
thereto will have limited personal liability to the extent provided for under
the Illinois Act and will be Limited Partners of the Fund entitled to all the
applicable benefits under the Limited Partnership Agreement and the Illinois
Act.
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(c) The Fund
is a limited partnership existing under the laws of the State of Illinois with
full power and authority to engage in the business to be conducted by it, as
described in the Registration Statement and Prospectus. The Fund is
qualified to do business in each jurisdiction in which such qualification is
necessary in order to protect the limited liability of Limited Partners and in
which the nature or conduct of its business as described in the Registration
Statement and Prospectus requires such qualification and the failure to be so
qualified would be reasonably likely to have a material adverse effect on the
results of operations, financial condition or business (“Material Adverse Effect”) of
the Fund.
(d) The
General Partner is, and will continue to be so long as it is the general partner
of the Fund, a limited liability company duly organized, existing and in good
standing under the laws of the State of Illinois and is in good standing and
qualified to do business in each jurisdiction in which the nature or conduct of
its business as described in the Registration Statement and Prospectus requires
such qualification and the failure to be so qualified would, in the aggregate,
be reasonably likely to have a Material Adverse Effect on the Fund or the
General Partner.
(e) Each of
the Fund and the General Partner has full limited partnership or limited
liability company power and authority, as the case may be, under applicable law
to perform its respective obligations under the Limited Partnership Agreement
and this Agreement, and to conduct its business as described in the Registration
Statement and Prospectus.
(f) When the
Registration Statement became or becomes effective under the 1933 Act and at all
times subsequent thereto up to and including each Closing Date, the Registration
Statement, Prospectus and Promotional Material complied and will comply in all
material respects with the requirements of the 1933 Act, the SEC Regulations,
the Commodity Act and the CFTC Regulations. Each of the Registration
Statement, the Prospectus and each item of Promotional Material as of each
Closing Date will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which such statements are made, not misleading; provided, however, that this
representation and warranty does not apply to statements made or omitted in
reliance upon, and in conformity with, written information furnished to the
General Partner with respect to the Selling Agent by or on behalf of the Selling
Agent, expressly for use in such Registration Statement, Prospectus or
Promotional Material.
(g) Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change in the
results of operations, financial condition or business of the General Partner or
the Fund, whether or not arising in the ordinary course of business, of which
the Selling Agent has not been informed by the General Partner.
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(h) Each of
the Limited Partnership Agreement and this Agreement has been duly and validly
authorized, executed and delivered by the General Partner (in the case of the
Limited Partnership Agreement) and by the Fund and the General Partner (in the
case of this Agreement). The Limited Partnership Agreement
constitutes a valid and binding obligation of the General Partner, enforceable
against the General Partner subject to the effects
of: (1) bankruptcy, insolvency, fraudulent transfer and
conveyance, reorganization, receivership, moratorium and other similar laws
(including judicially developed doctrines with respect to such laws) affecting
the rights and remedies at the time in effect affecting the enforceability of
creditors generally; (2) general principles of equity, whether applied by a
court of law or equity with respect to performance and enforcement of the
Limited Partnership Agreement and (3) any limitations under federal
securities laws and other applicable laws and considerations of public policy
that relate to indemnification and contribution.
(i) The
execution and delivery of the Limited Partnership Agreement and this Agreement
by the General Partner (in the case of the Limited Partnership Agreement) and by
the Fund and the General Partner (in the case of this Agreement), the incurrence
of the obligations set forth therein and herein and the consummation of the
transactions contemplated therein, herein and in the
Prospectus: (i) will not constitute a breach of, or default
under, any instrument or agreement by which the General Partner or the Fund, as
the case may be, or any of their properties or assets is bound, or any statute,
order, rule or regulation applicable to the General Partner or the Fund, as the
case may be, of any court or any governmental body or administrative agency
having jurisdiction over the General Partner or the Fund, as the case may be,
except as would not be reasonably likely to have a Material Adverse Effect on
the General Partner or the Fund; (ii) will not result in the creation or
imposition of any lien, charge or encumbrance on any property or assets of the
General Partner or the Fund, except as would not be reasonably likely to have a
Material Adverse Effect on the General Partner or the Fund; and (iii) will
not give any party a right to terminate its obligations or result in the
acceleration of any obligations under any material instrument or agreement by
which the General Partner or the Fund, as the case may be, or any of their
respective properties or assets is bound, except as would not, in the aggregate,
be reasonably likely to have a Material Adverse Effect on the General Partner or
the Fund.
(j) Except as
otherwise disclosed in the Registration Statement or the Prospectus, there is
not pending nor, to the General Partner’s knowledge, threatened any action, suit
or proceeding before or by any court or other governmental body to which the
General Partner or the Fund is a party, or to which any of the assets of the
General Partner or the Fund is subject, that would reasonably be expected to
have a Material Adverse Effect on the General Partner or the Fund or which is
required to be disclosed in the Registration Statement or Prospectus pursuant to
the Commodity Act, the CFTC Regulations, the 1933 Act or the SEC
Regulations.
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(k) No stop
order relating to the Registration Statement has been issued by any federal or
state securities commission, and no proceedings therefor are pending or, to the
knowledge of the General Partner, threatened.
(l) The
General Partner and each of its principals and employees have, and will continue
to have so long as it is the general partner of the Fund, all federal and state
governmental, regulatory, self-regulatory and commodity exchange approvals and
licenses, and the General Partner (either on behalf of itself or its principals
and employees) has effected all filings and registrations with federal and state
governmental, regulatory or self-regulatory agencies required to conduct its
business and to act as described in the Registration Statement and Prospectus or
required to perform its or their obligations as described under the Limited
Partnership Agreement, except as would not, in the aggregate, be reasonably
likely to have a Material Adverse Effect on the General Partner or the Fund
(including, without limitation: (i) registration as a commodity
pool operator under the Commodity Act; (ii) membership in the NFA as a
“commodity pool operator”; and (iii) registration as a “transfer agent”
with the SEC); and this Agreement and the performance of such obligations will
not contravene or result in a breach of: (1) any provision of
the General Partner’s limited liability company operating agreement; or
(2) any agreement, instrument, order, law or regulation binding upon the
General Partner or any of its employees or principals, except as would not, in
the aggregate, be reasonably likely to have a Material Adverse Effect on the
General Partner or the Fund.
(m) The Fund
does not require any federal or state governmental, regulatory, self-regulatory
or commodity exchange approvals, licenses or registrations and the Fund need not
effect any filings with any federal or state governmental agencies in order to
conduct its business and to act as contemplated by the Registration Statement
and Prospectus and to issue and sell the Units (other than filings under the
1933 Act, the Commodity Act and state securities laws relating solely to the
offering of the Units).
(n) The
General Partner has the financial resources necessary to meet its obligations
relating to the payment of expenses and fees to the Selling Agent pursuant to
Section 6 hereunder.
(o) The
actual performance of the Fund is disclosed in the Prospectus as required by the
Commodity Act, the CFTC Regulations and the rules of the NFA (the “NFA Rules”); all of the
information regarding the actual performance of the Fund set forth in the
Prospectus is complete and accurate in all material respects and, except as
disclosed in the Prospectus, is in accordance and compliance with the disclosure
requirements of the Commodity Act, the CFTC Regulations and the NFA
Rules.
(p) The
General Partner agrees that it will not disseminate or use any confidential
information relating to any subscriber in the Fund provided in any subscription
agreement or other documents delivered to the General Partner by any investor in
the Fund, except as required by law or in connection with the operation of the
Fund. Furthermore, the General Partner agrees that it will not
solicit any client of the Selling Agent (exclusive of any such person who is a
pre-existing client of the General Partner or an existing Limited Partner of the
Fund), except as requested by the Selling Agent in connection with soliciting
investments in the Fund.
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(q) The
accountants who certified the financial statements of the General Partner and of
the Fund included in the Registration Statement are, with respect to the General
Partner and the Fund, independent public accountants as required by the 1933 Act
and the SEC Regulations. These financial statements fairly present
the financial condition of the General Partner and the Fund as of the dates
shown and the results of operations and changes in partners’ capital of the Fund
for the periods shown, and are presented in accordance with generally accepted
accounting principles as currently in effect in the United States.
Section 2. Offering and Sale of
Units.
(a) The
Selling Agent is hereby appointed as a non-exclusive Selling Agent for the Fund
(although as described herein and in the Prospectus the Fund also engages other
various Selling Agents) during the term herein specified for the purpose of
finding acceptable subscribers for the Units through a public offering of such
Units. Subject to the performance by the General Partner of its
obligations hereunder and to the completeness and accuracy in all material
respects of the representations and warranties of the General Partner contained
herein, the Selling Agent hereby accepts such agency and agrees on the terms and
conditions set forth herein and subject to the provisions relating to the
compensation payable to the Selling Agent under the Agreement set forth in Appendix A
hereto, to use its best efforts to find acceptable subscribers for the Units,
provided that there is no minimum number of Units for which the Selling Agent
agrees to find subscribers.
It is
understood that the Selling Agent’s agreement to use its best efforts to find
acceptable subscribers for the Units shall not prevent it from acting as a
selling agent or underwriter for the securities of other issuers, including
affiliates of the Selling Agent, that may be offered or sold during the term
hereof. The agency of the Selling Agent hereunder shall continue
until the expiration or termination of this Agreement as provided herein,
including such additional period as may be required to effect a final closing of
the sale of the Units subscribed for through the date of such
termination. All subscriptions are subject to acceptance or
rejection, in whole or in part in the General Partner’s sole discretion, and no
compensation shall be due hereunder in respect of rejected
subscriptions.
The
parties hereto agree that the compensation payable to the Selling Agent pursuant
to this Agreement shall be as set forth in Appendix A
hereto. The Selling Agent acknowledges that the Units are divided
into separate Classes, certain of which are open for investment only by certain
subscribers as described in the Prospectus, or otherwise in the General
Partner’s discretion.
(b) The
Selling Agent acknowledges that the General Partner, in its sole discretion, may
select additional Selling Agents that are
either: (i) broker-dealers that are members in good standing of
FINRA; or (ii) foreign banks, brokers, dealers or institutions ineligible
for membership in a registered securities association (within the meaning of
Rule 2420 of FINRA’s Conduct Rules) that agree that they will make no sales
of Units within the United States, its territories or possessions or areas
subject to its jurisdiction.
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(c) The
General Partner will pay the Selling Agents upfront sales commissions and
ongoing trailing commissions as set forth in Appendix A
hereto, or in such lesser amounts to which the General Partner and each such
Selling Agent may agree.
(d) Units
will continue to be continuously sold as of close of business on the last
business day of each calendar month or on such date or dates as may be set forth
in the Prospectus (each such date a “Closing Date”), in the
discretion of the Fund.
(e) Notwithstanding
any other provision of this Agreement to the contrary, no upfront sales
commissions or ongoing trailing commissions shall be paid to the Selling Agent
on Units sold to the General Partner or any of its principals or
affiliates.
(f) The Fund
shall not in any respect be responsible for any upfront sales commissions or
ongoing trailing commissions described herein or in Appendix A
hereto. All such commissions are to be solely the responsibility of
the General Partner.
(g) Notwithstanding
anything in this Section 2 or Appendix A to
the contrary, the Selling Agent shall not be entitled to any compensation
hereunder in respect of a sale to any subscriber if the General Partner
determines that another authorized selling agent of the Fund is primarily
responsible for or should otherwise be credited with such sale. In
making this determination, the General Partner shall endeavor to act
fairly. Any dispute regarding compensation shall be conclusively
resolved by the General Partner.
Section 3. Compliance with Rule 2810
and General Laws.
(a) It is
understood that the Selling Agent has no commitment with regard to the sale of
the Units other than to use its best efforts. In connection with the
offer, sale and distribution of the Units, the Selling Agent represents and
warrants that it will comply fully with all applicable laws and regulations, and
the rules, policy statements and interpretations of FINRA, the SEC, the CFTC,
state securities administrators and any other regulatory or self-regulatory
body. In particular, and not by way of limitation, the Selling Agent
represents and warrants that it is familiar with Rule 2810 and
Rule 2710 of FINRA’s Conduct Rules, including the limits on the receipt of
underwriter compensation set forth therein, and that it will comply fully with
all the terms thereof in connection with the offering and sale of the
Units. The Selling Agent will not execute any sales of Units from a
discretionary account over which it has control without prior written approval
of the customer in whose name such discretionary account is
maintained.
(b) The
Selling Agent agrees not to recommend the purchase 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: (i) (to the extent relevant for the purposes of
Rule 2810 and giving due consideration to the fact that the Fund is in no
respects a “tax shelter”) 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, including the tax benefits (if any) described in the
Prospectus; (ii) the subscriber has a fair market net worth sufficient to
sustain the risks inherent in participating in the Fund; (iii) the
subscriber qualifies as an acceptable subscriber on the basis set forth in the
Prospectus, the Subscription Agreement and Power of Attorney and the
Subscription Requirements; (iv) the subscriber is not a “Prohibited
Investor,” as such term is defined in the Subscription Requirements, and
acceptance of the subscriber’s subscription will not otherwise breach any laws,
rules and regulations designed to avoid money laundering applicable to either
the Selling Agent, the General Partner or the Fund; and (v) the Units are
otherwise a suitable investment for the subscriber. The Selling Agent
agrees to maintain such records as are required by the applicable rules of FINRA
and the state securities commissions for purposes of determining investor
suitability. In the case of such records related to Texas
subscribers, such records shall be maintained for no less than six (6) years
from the date such records are generated and, in the case of such records
related to all other subscribers, for the time periods otherwise required by
FINRA. In connection with making the foregoing representations and
warranties, the Selling Agent further represents and warrants that it has, among
other things, examined the 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
Prospectus adequately and accurately discloses all material facts relating to an
investment in the Fund and provides 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.
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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 Prospectus.
The
Selling Agent shall cause its Registered Representatives to certify in writing
that such Registered Representative has made the required determinations in each
Subscription Agreement and Power of Attorney submitted by the Registered
Representative in respect of a subscriber; provided, however, that such
determinations shall not be binding on the General Partner.
Each
party agrees that no subscription will be deemed final and binding on any new
subscriber until at least five (5) business days after the date the subscriber
receives the Prospectus as acknowledged by such subscriber’s execution and
submission of a subscription agreement. In connection therewith, the
Selling Agent agrees to indicate in each Subscription Agreement and Power of
Attorney submitted by a Registered Representative in respect of a subscriber the
date on which the Prospectus was delivered to that subscriber.
(c) All
payments for subscriptions may be made by subscriber check payable to “Grant
Park Futures Fund Limited Partnership - Subscription Account” or wire transfer
for deposit in accordance with the specific instructions set forth in Appendix B
hereto, and submitted, along with a completed Subscription Agreement and Power
of Attorney, to the Selling Agent at least five (5) business days prior to the
applicable Closing Date or at an earlier date if required by the Selling
Agent.
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(d) As an
alternative to submitting subscription checks or wire transfers, a subscriber
may instead authorize the Selling Agent to debit the subscriber’s customer
securities account maintained with the Selling Agent, as may be permitted by the
Selling Agent. Subscribers who do so must have their subscription
payments in their accounts on the date their subscription is accepted, with
subscribers to be notified of such date by the Selling
Agent. Settlement of the payment for subscriptions will occur not
later than three (3) business days following notification by the General Partner
to the Selling Agent of the acceptance of a particular
subscription. On each settlement date, subscribers’ customer
securities accounts will be debited by the Selling Agent in the amount of their
subscriptions. The amount of the subscription payments so debited
will be transmitted by the Selling Agent directly to the Fund’s account as set
forth in Appendix B in
the form of a Selling Agent check or wire transfer payable to the
Fund.
The
Selling Agent and the General Partner may make such other arrangements regarding
the transmission of subscriptions as they may deem convenient or appropriate,
provided that any such arrangement must comply in all relevant respects with SEC
Rule 15c2-4.
(e) The
Selling Agent represents, warrants and covenants to the General Partner and the
Fund that it and all of its personnel involved in the activities contemplated
hereunder have all governmental, regulatory and self-regulatory registrations,
approvals, memberships and licenses required to perform its obligations under
this Agreement and to receive compensation therefor (including but not limited
to registration as a broker-dealer with the SEC, membership in FINRA,
registration with the relevant regulatory authority in each state in which the
Selling Agent will solicit subscribers, registration with the CFTC as a futures
commission merchant or introducing broker and membership in the NFA) and that it
and such personnel will maintain all such registrations, approvals, memberships
and licenses during the term of this Agreement and for such time as the Selling
Agent and such personnel shall receive compensation
hereunder. Specifically but without limitation to the foregoing, the
Selling Agent represents, warrants and covenants as follows, as
applicable: (i) in the event that it is to engage in the offer
and sale of Units in the United States, it is registered as a broker-dealer with
the SEC, is a member in good standing of FINRA, is registered with the relevant
regulatory authority in each state in which it will solicit subscribers, is
registered with the CFTC as a futures commission merchant or introducing broker
and is a member in good standing of the NFA; or (ii) (a) it is a
foreign bank, broker, dealer or institution that has all registrations,
approvals, memberships and licenses required to engage in the offer and sale of
the Units in the non-U.S. jurisdictions in which it does business; and
(b) it will make no offers or sales of Units within the United States, its
territories or possessions or areas subject to U.S. jurisdiction.
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(f) The
Selling Agent represents, warrants and covenants that
it: (i) maintains anti-money laundering policies and procedures
that comply with the Bank Secrecy Act of 1970, as amended, the U.S. Patriot Act
of 2001 and applicable federal anti-money laundering regulations, including
policies and procedures to verify the identity of prospective subscribers
(“AML Laws, Regulations and
Policies”); (ii) complies with AML Laws, Regulations and Policies;
(iii) will promptly deliver to the General Partner, to the extent permitted
by applicable law, notice of any AML Laws, Regulations and Policies violation,
suspicious activity, suspicious activity investigation or filed Suspicious
Activity Report that relates to any prospective subscriber for Units; and
(iv) will cooperate with the General Partner and deliver information
reasonably requested by the General Partner concerning subscribers that
purchased Units sold by the Selling Agent necessary for the General Partner or
the Fund to comply with AML Laws, Regulations and Policies.
Section 4. Blue
Sky. The General Partner agrees to use its best efforts to
qualify the Units under the securities or Blue Sky laws of the various state
jurisdictions, and to maintain such qualification during the term of the
offering, provided that the General Partner reserves the right to withdraw such
registration at any time in its sole discretion.
Section 5. Covenants of the General
Partner.
(a) The
General Partner will notify the Selling Agent promptly: (i) when
any amendment or post-effective amendment to the Registration Statement shall
have become effective or any supplement (not including any monthly report) to
the Prospectus is filed; (ii) of the receipt of any further comments from
the SEC, CFTC, NFA or any other federal or state regulatory or self-regulatory
body with respect to the Registration Statement or any post-effective amendment
thereto; (iii) of any request by the SEC, CFTC, NFA or any other federal or
state regulatory or self-regulatory body for any further amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information relating thereto; (iv) of any material criminal,
civil or administrative proceedings against or involving the General Partner or
the Fund; (v) of the issuance by the SEC, CFTC, NFA or any other federal or
state regulatory or self-regulatory body, as applicable, of any order suspending
the effectiveness of the Registration Statement under the 1933 Act, the
registration or NFA membership of the General Partner as a “commodity pool
operator,” or the registration of the 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 any Promotional Material
or of the institution of any action or proceeding for any such purpose; or
(vi) of any threatened action of the type referred to in clauses (iii)
through (v) of which the General Partner has been notified. In the
event any order of the type referred to in clause (v) is issued, the
General Partner agrees to use best efforts to obtain a lifting or rescinding of
such order at the earliest feasible date.
(b) The
General Partner will deliver to the Selling Agent, as promptly as practicable
from time to time during the period when the Prospectus is required to be
delivered under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) and of the Promotional Material as the Selling Agent
may reasonably request for the purposes contemplated by the 1933 Act or the SEC
Regulations.
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(c) The
General Partner will deliver to the Selling Agent copies of all monthly and
annual reports, and of any other communications, sent to the Limited Partners,
and, upon request, copies of all “Blue Sky” and other state securities law
clearances obtained by the Fund.
(d) During
the period when the Prospectus is required to be delivered pursuant to the 1933
Act, the General Partner and the Fund will comply with all requirements imposed
upon them by the 1933 Act, the SEC Regulations, the Commodity Act and the CFTC
Regulations, as from time to time in force, so far as necessary to permit the
continuance of sales of the Units during such period in accordance with the
provisions hereof and as set forth in the Prospectus.
(e) If any
event shall occur as a result of which it is necessary, in the reasonable
opinion of the General Partner or any of the Selling Agents, to amend or
supplement the Prospectus in order to make the Prospectus not materially
misleading in the light of the circumstances existing at the time it is
delivered to a subscriber, or to conform with applicable CFTC Regulations or SEC
Regulations, the General Partner shall promptly prepare and file such
amendment(s) of or supplement(s) to the Prospectus effecting the necessary
changes, and furnish to the Selling Agent, at the expense of the General
Partner, a reasonable number of copies of such amendment(s) or
supplement(s). Upon receipt by the Selling Agent of notice of any
such event or any notice pursuant to Section 5(a) above, the Selling Agent
shall, at the request of the General Partner, immediately discontinue the
offering of Units until the filing of the applicable amendment or supplement or
lifting or rescinding of the applicable order, as the case may be.
Section 6. Payment of Expenses and
Fees. The General Partner, on behalf of the Fund as part of
the Fund’s organizational and offering expenses, will pay all expenses incident
to the performance of the obligations of the General Partner and the Fund
hereunder, including: (i) the printing and delivery to the
Selling Agent in quantities as hereinabove stated of copies of the Prospectus
and any supplements or amendments thereto, and of any Promotional Material;
(ii) the reproduction of this Agreement and the printing and filing of the
Registration Statement and the Prospectus (and, in certain cases, the exhibits
thereto) with the SEC and NFA; (iii) the payment of filing fees to the SEC
and FINRA; and (iv) the qualification of the Units under the securities or
“Blue Sky” laws in the various jurisdictions, including the payment of filing
fees and the fees and disbursements of the General Partner’s counsel incurred in
connection therewith.
Section 7. Indemnification,
Contribution and Exculpation.
(a) The
General Partner (not the Fund) agrees to indemnify and hold harmless the Selling
Agent and each person, if any, who controls the Selling Agent within the meaning
of Section 15 of the 1933 Act, as follows:
11
(i) against
any and all loss, liability, claim, damage and expense whatsoever arising from
any untrue statement of a material fact or alleged untrue statement of a
material fact contained in the Registration Statement, in the Prospectus (or any
amendment or supplement thereto) or in the Promotional Material or any omission
or alleged omission therefrom of a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever to the extent
of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body commenced or
threatened, or of any claim whatsoever, based upon any such untrue statement or
omission or any such alleged untrue statement or omission; provided, however, that any
settlement shall be subject to indemnity hereunder only if effected with the
prior written consent of the General Partner; and
(iii) against
any and all expense whatsoever (including the reasonable fees and disbursements
of counsel) reasonably incurred in investigating, preparing or defending against
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever, based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under clause (i) or (ii)
above;
provided, however,
that: (1) the General Partner will not be liable in any such
case to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
the Prospectus or the Promotional Material in reliance upon and in conformity
with written information furnished to the General Partner by or on behalf of the
Selling Agent specifically for inclusion therein; and (2) such indemnity
with respect to any Prospectus shall not inure to the benefit of the Selling
Agent (or any person controlling the Selling Agent) from whom the person
asserting any such loss, liability, claim, damage or expense purchased the Units
that are the subject thereof if the Selling Agent was responsible for delivering
a Prospectus to such person and such person did not receive a copy of the
Prospectus, as amended or supplemented, at or prior to the confirmation of the
sale of such Units to such person and any untrue statement or omission of a
material fact contained in any Prospectus was corrected in the Prospectus, as
amended or supplemented. This indemnity agreement will be in addition
to any liability that the General Partner may otherwise have.
(b) The
Selling Agent agrees to indemnify and hold harmless the General Partner, each of
its members, each of its officers who signs the Registration Statement, and each
person who controls the General Partner within the meaning of Section 15 of
the 1933 Act to the same extent as the foregoing indemnities to the Selling
Agent, but only with reference to written information relating to the Selling
Agent furnished to the General Partner, by or on behalf of the Selling Agent
specifically for inclusion in the documents referred to in the indemnity set
forth in subsection (a). This indemnity agreement will be in
addition to any liability that the Selling Agent may otherwise
have.
12
(c) If the
indemnification provided for in this Section 7 shall for any reason be
unavailable to any otherwise indemnified person in respect of any loss,
liability, claim, damage or expense referred to herein, then the otherwise
indemnifying party shall, in lieu of indemnifying the otherwise indemnified
person contribute to the amount paid or payable by such otherwise indemnified
person as a result of such loss, liability, claim, damage or
expense: (1) in such proportion as shall be appropriate to
reflect the relative benefits received by the General Partner on the one hand
and the Selling Agent on the other from the offering of the Units by the Selling
Agent; or (2) if the allocation provided by clause (1) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (1) above but also the
relative fault of the General Partner on the one hand and the Selling Agent on
the other with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations. In no event shall the aggregate
contribution or liability of the Selling Agent exceed the aggregate upfront
sales commissions and ongoing trailing commissions paid to the Selling Agent
hereunder. Relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the General
Partner on the one hand or the Selling Agent on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties agree that
it would not be just and equitable if contributions pursuant to this
subsection (c) were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
otherwise indemnifying party to the otherwise indemnified person as a result of
the loss, liability, claim, damage or expense referred to above in this
subsection (c) shall be deemed to include, for purposes of this
subsection (c), any legal or other expenses reasonably incurred by such
otherwise indemnified person in connection with investigating or defending any
such action or claim.
(d) In no
case shall a party be liable under this indemnity and contribution agreement
with respect to any claim unless such party shall be notified in writing of the
nature of the claim within a reasonable time after the assertion thereof, but
failure to so notify such party shall not relieve such party from any liability
which it may have otherwise than on account of this indemnity and contribution
agreement, unless such party has been prejudiced by such
failure. Such party shall be entitled to participate at its own
expense in the defense or, if it so elects within a reasonable time after
receipt of such notice, to assume the defense of any suit so brought, which
defense shall be conducted by counsel chosen by it and satisfactory to the
indemnified person (or person entitled to contribution hereunder) or parties,
defendant or defendants therein.
Each
party agrees to notify the other party within a reasonable time of the assertion
of any claim in connection with the sale of the Units against it or any of its
officers or directors or any controlling persons within the meaning of
Section 15 of the 1933 Act.
13
Section 8. Status of
Parties. In marketing Units pursuant to this Agreement, the
Selling Agent is acting solely as an agent for the Fund, and not as a
principal. The Selling Agent will use its best efforts to assist the
Fund in obtaining performance by each purchaser solicited by the Selling Agent
whose offer to purchase Units from the Fund has been accepted on behalf of the
Fund, but the Selling Agent shall not have any liability to the Fund in the
event that Subscription Agreements and Powers of Attorney are improperly
completed or any such purchase is not consummated for any
reason. Except as specifically provided herein, the Selling Agent
shall in no respect be deemed to be an agent of the Fund.
Section 9. Representations, Warranties
and Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement or contained in
certificates of any party hereto submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by,
or on behalf of, the Selling Agent, the General Partner, the Fund, or any person
who controls any of the foregoing, and shall survive the Closing
Dates.
Section 10. Termination. In
addition to any other termination rights set forth elsewhere in this Agreement,
each party shall have the right to terminate this
Agreement: (i) at any time upon no less than fifteen (15)
business days’ prior written notice to the non-terminating party; or
(ii) at any time upon written notice to the non-terminating party in the
event the non-terminating party breaches a material representation, warranty or
covenant of this Agreement.
Section 11. Survival. Section 2
and Appendix A
(with respect to compensation payable for Units outstanding as of the date of
termination) and Sections 6, 7, 12, 13, 14 and 15 hereof shall survive the
termination of this Agreement for any reason.
Section 12. Notices and Authority to
Act. All communications hereunder shall be in writing and, if
sent to the General Partner or the Fund, shall be mailed, delivered or faxed and
confirmed to the General Partner at: Dearborn Capital Management,
L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
facsimile: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; with copies
to: ▇▇▇▇▇▇ Price P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Ms. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ King and, if sent to the Selling
Agent, shall be mailed, delivered or faxed and confirmed to it at [SELLING AGENT
NAME & ADDRESS], Attention: [NAME], with copies to
[NAME & ADDRESS], Attention: [NAME]. Notices
shall be effective when actually received.
Section 13. Parties;
Assignment. This Agreement shall inure to the benefit of and
be binding upon the Selling Agent, the Fund, the General Partner and such
parties’ respective successors and permitted assigns to the extent provided
herein. This Agreement and the conditions and provisions hereof are
intended to be and are for the sole and exclusive benefit of the parties hereto
and their respective successors, permitted assigns and controlling persons and
parties indemnified hereunder, and for the benefit of no other person, firm or
corporation. No purchaser of a Unit shall be considered to be a
successor or an assignee solely on the basis of such purchase. No
party may assign its rights or obligations under this Agreement to any other
person without the prior written consent of the other parties
hereto.
14
Section 14. Governing
Law. This Agreement and the rights and obligations of the
parties created hereby shall be governed by the laws of the State of
Illinois.
Section 15. Consent to
Jurisdiction. The parties hereto agree that any action or
proceeding arising directly, indirectly, or otherwise in connection with, out
of, related to, or from this Agreement, any breach hereof, or any transaction
covered hereby, shall be resolved, whether by arbitration or otherwise, within
the City of Chicago. Accordingly, the parties hereto consent and
submit to the jurisdiction of the federal and state courts and applicable
arbitral body located within the City of Chicago. The parties further
agree that any such action or proceeding brought by any party to enforce any
right, assert any claim, or obtain any relief whatsoever in connection with this
Agreement shall be brought by such party exclusively in the federal or state
courts, or if appropriate, before any applicable arbitral body, located within
the City of Chicago.
The
General Partner and the Fund each agree that, at the request of the Selling
Agent, they will submit any action or proceeding referred to in this
Section 15 to NFA arbitration in the City of Chicago, and agree to execute
and deliver to the Selling Agent the Selling Agent’s standard form of
arbitration agreement, as required by NFA Rules.
Section 16. Counterparts. This
Agreement may be executed in counterparts, each of which shall be an original
and all of which together shall be deemed one and the same
instrument.
15
If the
foregoing is in accordance with your understanding of their agreement, you are
requested to sign and return to the General Partner and the Fund a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement among the parties in accordance with its terms.
Very truly yours,
|
GRANT
PARK FUTURES FUND
LIMITED
PARTNERSHIP
By:
Dearborn Capital Management, L.L.C.,
General Partner
By:_________________________________
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, President
|
|
|
DEARBORN
CAPITAL MANAGEMENT,
L.L.C.
By:
Dearborn Capital Management, Ltd.,its
Managing Member
By:_________________________________
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, President
|
|
|
Confirmed
and accepted as of the date first above written:
[NAME
OF SELLING AGENT]
By:
______________________________
Title: _____________________________
By:
______________________________
Title: _____________________________
|
16
APPENDIX
A
to
Amended
and Restated Selling Agreement
Dated
as of [DATE]
Each of
the General Partner, the Fund and the Selling Agent hereby acknowledge and agree
that the compensation payable to the Selling Agent pursuant to the Agreement
shall be as follows:
(a) Legacy 1 and GAM 1 Class
Units. A Selling Agent who sells Legacy 1 Class and/or GAM 1
Class units will not be entitled to and will not receive any upfront, ongoing or
other fees (including any administrative fee) or commissions as a result of the
sale of such units.
(b) Legacy 2 Class
Units. Beginning with the first month after the subscription
proceeds of a Legacy 2 Class unit have been invested in the Fund, a Selling
Agent who sells Legacy 2 Class units will receive an administrative and/or
servicing fee of up to 25 basis points (0.25%) of the month-end net asset value
of the unit, paid on a monthly basis, in order to compensate it for ongoing
administrative and other support services provided to the Limited Partner.
However, in no event will the total underwriting compensation per Legacy 2 Class
Unit exceed 9% of the subscription proceeds of the unit (plus 0.5% in connection
with reimbursable due diligence expenses). This ongoing compensation
will continue as long as the Legacy 2 Class Unit remains
outstanding.
GAM 2 Class
Units. Beginning with the first month after the subscription
proceeds of a GAM 2 Class Unit have been invested in the Fund, a Selling Agent
who sells GAM 2 Class Units will receive an administrative and/or servicing fee
of up to 25 basis points (0.25%) of the month-end net asset value of such Unit,
paid on a monthly basis, in order to compensate it for ongoing administrative
and other support services provided to the Limited Partner. However,
in no event will the total underwriting compensation per GAM 2 Class Unit exceed
9% of the subscription proceeds of such Unit (plus 0.5% in connection with
reimbursable due diligence expenses). This ongoing compensation will
continue as long as the GAM 2 Class Unit remains outstanding.
GAM 3 Class
Units. A Selling Agent who sells GAM 3 Class Units receives
for each such Unit sold sales compensation as follows: The General
Partner will pay the Selling Agent an upfront sales commission between 1.75% and
2.0% of the purchase price per GAM 3 Class Unit at the time that each GAM 3
Class Unit is sold and, in some cases, may pay an administrative and/or
servicing fee of up to 0.25% of the purchase price per GAM 3 Class Unit at the
time that each such unit is sold. Beginning with the thirteenth month
after the subscription proceeds of a GAM 3 Class Unit are invested in the Fund,
in return for ongoing services provided to the Limited Partners, the Selling
Agent who sold such Unit will also receive ongoing compensation, calculated and
payable monthly at an annual rate of up to 2.0% of the month-end net asset value
of the Unit, and may also receive an administrative and/or servicing fee at an
annual rate of up to 0.25% of the month-end net asset value of the Unit,
provided that the total underwriting compensation per GAM 3 Class Unit does not
exceed 9% of the subscription proceeds of the Unit (plus 0.5% in connection with
reimbursable due diligence expenses). This ongoing compensation will
continue as long as the GAM 3 Class Unit remains outstanding.
A-1
The
General Partner shall pay the ongoing trailing commissions due to the Selling
Agent within fifteen (15) business days of the Closing Date. The
Selling Agent agrees that it will promptly pass on to its Registered
Representatives that portion of the upfront sales commissions received from the
General Partner for its sale of Legacy 2 Class Units, GAM 2 Class Units and GAM
3 Class Units to which such Registered Representatives are entitled pursuant to
the Selling Agent’s standard compensation procedures, as determined by the
Selling Agent from time to time.
(c) Ongoing Compensation Paid to Selling
Agents Who Previously Sold Class A and Class B
Units.
The
Selling Agent acknowledges that subsequent to [March 1], 2009, no additional
Class A Units or Class B Units of the Fund will be offered or
sold.
Subsequent
to [March 1], 2009, with respect to existing Class A and Class B Units
of the Fund as of such date, the General Partner agrees to pay, from its own
funds, ongoing trailing commissions to the Selling Agent with respect to such
outstanding Units as follows:
For
ongoing services rendered to Limited Partners holding Class A Units as
described below in this subsection (b), the General Partner may pay the
Selling Agent ongoing trailing commissions at an annual rate ranging between
2.0% and 2.25% of the month-end Net Asset Value per Unit of all Class A
Units previously sold by the Selling Agent prior to [March 1], 2009 that remain
outstanding as of the end of each month (including Units redeemed as of the end
of such month), provided that the total underwriting compensation per
Class A Unit will not exceed 10% of the subscription proceeds of the unit
unless the Selling Agent remains registered with the CFTC as a futures
commission merchant or introducing broker and remains a member in good standing
of the NFA in such capacity, and the registered representative of the Selling
Agent responsible for the sale and named on the account is registered with the
CFTC, is a member of the NFA and has either passed the Series 3 or
Series 31 examination or was “grandfathered” as an associated person of the
Selling Agent.
Such
ongoing trailing commissions shall continue only for as long as such
Class A Unit remains outstanding, regardless of the termination of this
Agreement for any reason.
For
ongoing services rendered to Limited Partners holding Class B Units as
described below in this subsection (b), the General Partner may pay the
Selling Agent ongoing trailing commissions at an annual rate of up to 3.5% of
the month-end Net Asset Value per Unit of all Class B Units previously sold
by the Selling Agent prior to [March 1], 2009 that remain outstanding as of
the end of each month (including Units redeemed as of the end of such month),
provided that the total underwriting compensation per Class B Unit will not
exceed 10% of the subscription proceeds of the unit unless the Selling Agent
remains registered with the CFTC as a futures commission merchant or introducing
broker and remains a member in good standing of the NFA in such capacity and the
registered representative of the Selling Agent responsible for the sale and
named on the account is registered with the CFTC, is a member of the NFA and has
either passed the Series 3 or Series 31 examination or was
“grandfathered” as an associated person of the Selling Agent.
A-2
Such
ongoing trailing commissions shall continue only for as long as such
Class B Unit remains outstanding, regardless of the termination of this
Agreement for any reason.
Notwithstanding
the foregoing, ongoing trailing commissions in excess of 10% of the subscription
proceeds of the Unit shall be payable to the Selling Agent only in respect of
Class A and Class B Units previously sold prior to [March 1], 2009 by
Registered Representatives who are themselves registered with the CFTC and who
have passed either the Series 3 National Commodity Futures Examination or
the Series 31 Futures Managed Funds Examination, and are contingent upon
the provision by such Registered Representatives of ongoing services in
connection with the Units previously sold by such Registered Representatives,
including: (i) inquiring of the General Partner from time to
time, at the request of an owner of Units, as to the Net Asset Value per Unit;
(ii) inquiring of the General Partner from time to time, at the request of
an owner of Units, regarding the commodity interest markets and the Fund;
(iii) assisting, at the request of the General Partner, in the redemption
of Units; and (iv) providing such other services to the owners of Units as
the General Partner may, from time to time, reasonably request. The
Selling Agent agrees to adopt procedures to monitor the adequacy of the ongoing
services provided by Registered Representatives. The Selling Agent,
although otherwise entitled to ongoing trailing commissions in excess of 10% of
the subscription proceeds with respect to Class A and Class B Units,
will not be entitled to receipt thereof for any month during any portion of
which the Registered Representative who is receiving compensation based upon
such ongoing trailing commissions is at any time not properly registered with
the CFTC or does not provide the ongoing services described above.
(d) Trail Commissions
Generally.
The
General Partner shall pay the ongoing trailing commissions due to the Selling
Agent within fifteen (15) business days of the Closing Date on the basis of the
Units outstanding on such date. Net Asset Value, for purpose of
determining ongoing trailing commissions, shall be calculated after reduction of
all expenses of the Fund, including accrued and unpaid expenses, as set forth in
the Limited Partnership Agreement. The Selling Agent agrees to pass
ongoing trailing commissions on to their Registered Representatives, pursuant to
the Selling Agent’s standard compensation procedures, as determined by the
Selling Agent from time to time.
A-3
The
General Partner and the Selling Agent are each aware of the limitations imposed
by Rule 2810 of the FINRA Conduct Rules on the aggregate compensation that may
be received by the Selling Agent in connection with the offering and sale of the
Units. The General Partner agrees that it will not make, and the
Selling Agent acknowledges and agrees that it will in no event accept, any
payments from the General Partner which, when added to the upfront sales
commissions (including ongoing
trailing commissions paid with respect to Units other than Class A and
Class B Units) that the Selling Agent receives on each sale of a Unit,
would exceed 10% of the gross proceeds of the Units sold to the
public.
▇-▇
▇▇▇▇▇▇▇▇
▇
to
Amended
and Restated Selling Agreement
Dated
as of [DATE]
All
payments for subscriptions may be made by subscriber check payable to “Grant
Park Futures Fund Limited Partnership - Subscription Account” or wire transfer
for deposit in the Fund’s account maintained at Lake Forest Bank &
Trust Company, Account No. 0000379735, ABA # ▇▇▇▇▇▇▇▇▇, and submitted,
along with a completed Subscription Agreement and Power of Attorney, to the
Selling Agent at least five (5) business days prior to the applicable Closing
Date or at an earlier date if required by the Selling Agent.
B-1