EXHIBIT 1.2
ADDITIONAL SELLING AGENT AGREEMENT
GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
(AN ILLINOIS LIMITED PARTNERSHIP)
$200,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
DEARBORN CAPITAL MANAGEMENT, L.L.C.
General Partner and Commodity Pool Operator
DATED ____________, 2003
GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
ADDITIONAL SELLING AGENT AGREEMENT
TABLE OF CONTENTS
Page
----
Section 1. Representations and Warranties of the General Partner.............1
Section 2. Offering and Sale of Units........................................6
Section 3. Compliance with Rule 2810 and General Laws.......................10
Section 4. Blue Sky Survey..................................................13
Section 5. Covenants of the General Partner.................................13
Section 6. Payment of Expenses and Fees.....................................14
Section 7. Conditions of Closing............................................15
Section 8. Indemnification, Contribution and Exculpation....................18
Section 9. Status of Parties................................................20
Section 10. Representations, Warranties and Agreements to Survive Delivery...20
Section 11. Termination......................................................20
Section 12. Survival.........................................................20
Section 13. Notices and Authority to Act.....................................21
Section 14. Parties; Assignment..............................................21
Section 15. Governing Law....................................................21
Section 16. Consent to Jurisdiction..........................................21
Section 17. Counterparts.....................................................21
i
GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
(AN ILLINOIS LIMITED PARTNERSHIP)
$200,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
CLASS A UNITS: PREVAILING NET ASSET VALUE PER UNIT
CLASS B UNITS: INITIALLY $1,000 PER UNIT; THEREAFTER PREVAILING
NET ASSET VALUE PER UNIT
ADDITIONAL SELLING AGENT AGREEMENT
[DATE]
[ADDITIONAL SELLING AGENT NAME AND 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, swap 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. ______________,
____________ and ____________ have been appointed pursuant to the Selling
Agreement by and among each such person, the General Partner and the Fund as
principal selling agents for the Fund (collectively, the "PRINCIPAL SELLING
AGENTS"). Other selling agents (the "ADDITIONAL SELLING AGENTS") may be selected
by the General Partner in its sole discretion. You have been so selected by the
General Partner.
The Fund desires to raise capital as herein provided by the sale of
units of limited partnership interest in the Fund (the "UNITS"), the purchasers
of which will become limited partners ("LIMITED PARTNERS") of the Fund, and the
undersigned Additional Selling Agent hereby agrees to use its best efforts to
market the Units pursuant to the terms hereof. Accordingly, the undersigned
Additional Selling Agent, the General Partner and the Fund, intending to be
legally bound, hereby agree as set forth below. This Additional Selling Agent
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 Additional 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 Additional Selling Agent, and filed
with the Securities and Exchange Commission (the "SEC"), a registration
statement on Form S-1 (No. 333-104317), as initially filed with the SEC on
April 4, 2003 and an amendment or amendments thereto, for the registration
of the Units under the Securities Act of 1933, as amended (the "1933 ACT"),
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 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 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 rules and regulations of
the SEC promulgated under the 1933 Act (the "SEC REGULATIONS"), together
with any current supplement or supplements thereto.
The General Partner agrees to suspend the offering immediately and
inform the Additional Selling Agent if the General Partner has any reason
to believe that it may be necessary or advisable to amend the Registration
Statement or supplement the Prospectus.
No reference to the Additional Selling Agent may be made in the
Registration Statement, Prospectus or in any promotional materials or other
marketing materials, including "Tombstone Ads" or other communications
qualifying under Rule 134 of the SEC Regulations (collectively,
"PROMOTIONAL MATERIAL"), that has not been approved by the Additional
Selling Agent, which approval the Additional Selling Agent may withhold in
its sole and absolute discretion. The Fund will cooperate with the
Principal Selling Agents in causing to be filed, all Promotional Material
with the National Association of Securities Dealers, Inc. (the "NASD"), and
will not use any such Promotional Material unless the NASD has stated in
writing that it appears to comply with all applicable standards or the
requirement for such a statement has been waived by the Principal Selling
Agents. 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 the Initial Closing Date (as
defined in Section 2(e) hereof) will have been, taken; and, upon payment of
the consideration
2
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.
(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 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 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 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 the Initial Closing Date and each Closing Date thereafter
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
Additional Selling Agent by or on behalf of the Additional 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
3
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 Additional Selling Agent has not been informed by
the General Partner.
(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, 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.
4
(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 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 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
Additional 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 acknowledges that the Additional Selling
Agent's customer lists constitute proprietary data belonging to the
Additional Selling Agent, and the General Partner agrees that it will not
disseminate or use any confidential information regarding any such data,
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
on the Additional Selling Agent's customer lists (exclusive of any such
person who is a pre-existing client of the General Partner or an Existing
Limited Partner (as defined in
5
Section 2(a)), except as requested by the Additional Selling Agent in
connection with soliciting investments in the Fund.
(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 Additional Selling Agent is hereby appointed as a
non-exclusive Additional Selling Agent for the Fund 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 Additional Selling Agent hereby
accepts such agency and agrees on the terms and conditions herein set forth
to use its best efforts to find acceptable subscribers for the Units,
provided that there is no minimum number of Units for which the Additional
Selling Agent agrees to find subscribers.
It is understood that the Additional 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 Additional Selling Agent,
that may be offered or sold during the term hereof. The agency of the
Additional 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 Additional Selling Agent acknowledges that the Units are divided
into separate Classes each of which is open for investment only by certain
subscribers as follows and as described in the Prospectus, or otherwise in
the General Partner's discretion. Class A Units are reserved for: (i)
current Limited Partners who purchased beneficial interests in the Fund
during the private offering of the Fund's interests ("EXISTING LIMITED
PARTNERS"); and (ii) new subscribers subscribing for the requisite minimum
subscription amount as described below. Class B Units are reserved for new
subscribers generally. The minimum initial subscription amount for Class A
Units for new subscribers is $200,000. The minimum initial subscription
amount for Class A Units for Existing Limited Partners is $15,000, except
for Existing Limited Partners that are employee benefit plans or individual
retirement accounts, for which the minimum initial subscription amount is
$5,000. The minimum additional subscription amount for Class A
6
Units for all Limited Partners is $15,000, except for Limited Partners that
are employee benefit plans or individual retirement accounts, for which the
minimum additional subscription amount is $5,000. The minimum initial
subscription amount for Class B Units is $10,000, except for subscribers
that are employee benefit plans or individual retirement accounts, for
which the minimum initial subscription amount is $5,000. The minimum
additional subscription amount for Class B Units for all Limited Partners
is $2,000. The foregoing minimum subscription requirements are subject to
any higher or different minimum subscription requirements that may be
imposed by certain state securities regulators, as may be set forth in the
Subscription Requirements attached as Appendix C to the Prospectus.
No upfront sales commission will be payable to the Additional Selling
Agent in connection with its sales of any Class A Units. With respect to
sales of Class B Units, the General Partner agrees to pay, from its own
funds, an upfront sales commission to the Additional Selling Agent equal to
3.5% of the Net Asset Value per Unit (as defined in the Limited Partnership
Agreement) of each Class B Unit sold by the Additional Selling Agent at
each Closing Date. The General Partner shall pay the upfront sales
commission with respect to any sale of Class B Units due to the Additional
Selling Agent within fifteen (15) business days of the applicable Closing
Date.
The Additional 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 Class B Units
to which such Registered Representatives are entitled pursuant to the
Additional Selling Agent's standard compensation procedures, as determined
by the Additional Selling Agent from time to time.
(b) The General Partner agrees to pay, from its own funds, ongoing
trailing commissions to the Additional Selling Agent with respect to its
sales of the Units as follows.
For ongoing services rendered to Limited Partners holding Class A
Units as described below in this subsection (b), the General Partner shall
pay the Additional Selling Agent ongoing trailing commissions in an amount
equal to ___% of the month-end Net Asset Value per Unit (a ___% annual
rate) of all Class A Units sold by the Additional Selling Agent 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 Additional 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 Additional Selling Agent responsible for the sale 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 begin to accrue with respect
to each Class A Unit as of the end of the first full month following the
Closing Date for the sale
7
of such Unit, and 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 shall
pay the Additional Selling Agent ongoing trailing commissions in an amount
equal to 0.292% of the month-end Net Asset Value per Unit (a 3.5% annual
rate) of all Class B Units sold by the Additional Selling Agent 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 Additional 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 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 begin to accrue with respect
to each Class B Unit as of the end of the thirteenth full month following
the Closing Date for the sale of such Unit, and shall continue only for as
long as such Class B Unit remains outstanding, regardless of the
termination of this Agreement for any reason.
The General Partner shall pay the ongoing trailing commissions due to
the Additional Selling Agent within fifteen (15) business days of the end
of each applicable calendar month.
Notwithstanding the foregoing, ongoing trailing commissions shall be
payable to the Additional Selling Agent only in respect of Units sold 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 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
Additional Selling Agent agrees to adopt procedures to monitor the adequacy
of the ongoing services provided by Registered Representatives.
The Additional Selling Agent agrees to pass ongoing trailing
commissions on to their Registered Representatives, pursuant to the
Additional Selling Agent's standard compensation procedures, as determined
by the Additional Selling Agent from time to time.
8
(c) In the case of Class A Units acquired by Existing Limited Partners
in exchange for their limited partnership interests in the Fund previously
sold by the Additional Selling Agent on a private placement basis, the
Additional Selling Agent will not receive any upfront sales commissions for
the Units at the Initial Closing of such Units. However, if the Additional
Selling Agent is receiving ongoing trailing commissions in respect of such
privately placed limited partnership interests it will continue to receive
such ongoing trailing commissions with respect to the Class A Units
exchanged therefor; provided, however, that as of the Initial Closing, such
ongoing trailing commissions shall be paid in accordance with subsection
(b) above (subject to Rule 2810 of the NASD Conduct Rules in respect of
aggregate compensation which may be received by the Additional Selling
Agent).
(d) Ongoing trailing commissions will be paid at the end of each
calendar month on the basis of the Units outstanding during each month
during such month. Net Asset Value per Unit, for purposes 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 Additional Selling Agent, although otherwise entitled to ongoing
trailing commissions 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 in subsection (b) above.
(e) The General Partner shall notify the Additional Selling Agent of
the initial closing of the sale of Units (the "INITIAL CLOSING" and the
date of such closing, the "INITIAL CLOSING DATE"), as well as of the
aggregate number of Units for which the General Partner has received
acceptable subscriptions. Thereafter, Units may continue to be sold as of
close of business on the last business day of each calendar month (each
such date or the Initial Closing Date, a "CLOSING DATE"), in the discretion
of the Fund.
(f) Notwithstanding any other provision of this Agreement to the
contrary, no upfront sales commissions or ongoing trailing commissions
shall be paid to the Additional Selling Agent on Units sold to the General
Partner or any of its principals or affiliates.
(g) The Fund shall not in any respect be responsible for any upfront
sales commissions or ongoing trailing commissions described herein. All
such commissions are to be solely the responsibility of the General
Partner.
(h) Notwithstanding anything in this Section 2 to the contrary, the
Additional 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.
9
Section 3. Compliance with Rule 2810 and General Laws.
(a) It is understood that the Additional 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 Additional Selling Agent represents and warrants that it will comply
fully with all applicable laws and regulations, and the rules, policy
statements and interpretations of the NASD, the SEC, the CFTC, state
securities administrators and any other regulatory or self-regulatory body.
In particular, and not by way of limitation, the Additional Selling Agent
represents and warrants that it is familiar with Rule 2810 of the NASD
Conduct Rules and that it will comply fully with all the terms thereof in
connection with the offering and sale of the Units. The Additional 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 Additional Selling Agent agrees not to recommend the purchase
of Units to any subscriber unless the Additional 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
Additional Selling Agent, the General Partner or the Fund; and (v) the
Units are otherwise a suitable investment for the subscriber. The
Additional Selling Agent agrees to maintain such records as are required by
the applicable rules of the NASD 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 the NASD. In connection with making the foregoing
representations and warranties, the Additional Selling Agent further
represents and warrants that it has, among other things, examined the
Prospectus including, without limitation, the sections listed below and
obtained such additional information from the General Partner regarding the
information set forth thereunder as the Additional 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:
10
"Risk Factors"
"Performance of the Fund"
"The General Partner"
"Use of Proceeds"
"Fees and Expenses"
"Limited Partnership Agreement - Redemptions,
Distributions and Transfers"
"U. S. Federal Income Tax Consequences"
"The Commodity Interest Markets"
"Supplemental Performance Information"
In connection with making the representations and warranties set forth in
this paragraph, the Additional Selling Agent has not relied on inquiries
made by or on behalf of any other parties.
The Additional 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 Additional 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. In connection therewith,
the Additional 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 the Fund's account maintained at
▇▇▇▇▇▇ Bank & Trust (wire transfer instructions: Account No. 274-9513, ABA
#▇▇▇▇▇▇▇▇▇), and submitted, along with a completed Subscription Agreement
and Power of Attorney, to the Additional Selling Agent at least five (5)
business days prior to the applicable Closing Date or at an earlier date if
required by the Additional Selling Agent.
(d) As an alternative to submitting subscription checks or wire
transfers, a subscriber may instead authorize the Additional Selling Agent
to debit the subscriber's customer securities account maintained with the
Additional Selling Agent, as may be permitted by the Additional 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 Additional Selling Agent. Settlement of the
payment for subscriptions will occur not later than three (3) business days
following
11
notification by the General Partner to the Additional Selling Agent of the
acceptance of a particular subscription. On each settlement date,
subscribers' customer securities accounts will be debited by the Additional
Selling Agent in the amount of their subscriptions. The amount of the
subscription payments so debited will be transmitted by the Additional
Selling Agent directly to the Fund's account maintained at ▇▇▇▇▇▇ Bank &
Trust in the form of an Additional Selling Agent check or wire transfer
payable to the Fund.
The Additional 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 Regulations 10b-9 and 15c2-4.
(e) The Additional 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 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 Additional Selling Agent and such
personnel shall receive compensation hereunder. Specifically but without
limitation to the foregoing, the Additional 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
the NASD, 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.
(f) The Additional 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, 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 Additional Selling Agent
necessary for the General Partner or the Fund to comply with AML Laws,
Regulations and Policies.
12
Section 4. Blue Sky Survey. The General Partner agrees to cause ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel to the General Partner, to prepare and deliver to
the Additional Selling Agent, a Blue Sky Survey that shall set forth the United
States jurisdictions in which the Units may be offered and sold. 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 application for the Units' registration. It is
understood and agreed that the Additional Selling Agent may rely, in connection
with the offering and sale of Units in any United States jurisdiction, on advice
given by ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as to the legality of the offer or sale of
the Units in such jurisdiction.
Section 5. Covenants of the General Partner.
(a) The General Partner will notify the Additional Selling Agent
promptly: (i) when any 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; (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 Additional Selling Agent
as many conformed copies of the Registration Statement as originally filed
and of each amendment thereto, together with exhibits, as the Additional
Selling Agent may reasonably request.
(c) The General Partner will deliver to the Additional 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 Additional Selling Agent may reasonably request
for the purposes contemplated by the 1933 Act or the SEC Regulations.
13
(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 Additional 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 Additional Selling Agent
of notice of any such event or any notice pursuant to Section 5(a) above,
the Additional 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 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
Additional Selling Agent in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto, 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 the NASD; (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;
and (v) the services of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and accountants for the
General Partner and the Fund.
The General Partner and the Additional Selling Agent are each aware of the
limitations imposed by Rule 2810 of the NASD Conduct Rules on the aggregate
compensation that may be received by the Additional Selling Agent in connection
with the offering and sale of the Units. The General Partner acknowledges and
agrees that it will not make, and the Additional 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 (not including ongoing
trailing commissions) that the Additional Selling Agent receives on each sale of
a Unit, would exceed 10% of the gross proceeds of the Units sold to the public.
14
Section 7. Conditions of Closing. The sale of the Units is subject to the
accuracy of the representations and warranties of the parties hereto, to the
performance by such parties of their respective obligations hereunder and to the
following further conditions:
(a) The Registration Statement shall have become effective and at each
Closing Date no order suspending the effectiveness thereof shall have been
issued under the 1933 Act or proceeding therefor initiated or threatened by
the SEC, and the NFA shall have accepted the Prospectus as a Disclosure
Document pursuant to CFTC Regulations and NFA Rules without a finding of
further deficiencies.
(b) At or prior to the Initial Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ counsel to the General Partner, shall deliver its opinion, in form
and substance satisfactory to the parties hereto, to the effect that:
(i) The Fund is a limited partnership existing under the laws of
the State of Illinois with full partnership authority to conduct the
business in which it engages as described in the Registration
Statement, the Prospectus and herein.
(ii) The General Partner is a limited liability company existing
and in good standing under the laws of the State of Illinois. The
General Partner has limited liability company authority to perform its
obligations as described in the Registration Statement, the Prospectus
and herein.
(iii) This Agreement has been duly authorized, executed and
delivered by the Fund and the General Partner and the performance by
the Fund and the General Partner of the transactions contemplated
herein and set forth in the Prospectus will not, to the knowledge of
such counsel, result in a breach or violation of any of the terms or
provisions of or constitute a default under (i) any material
contracts, indentures, deeds of trust, loan agreements, notes, leases
or other agreements as listed on an exhibit to such opinion (the
"MATERIAL CONTRACTS"), (ii) the General Partner's certificate of
formation or limited liability company operating agreement, (iii) any
laws or administrative rules or regulations normally applicable to
transactions of the type contemplated hereby or in the Prospectus, or
(iv) any order, writ, injunction or decree known to such counsel of
any court or any governmental body or administrative agency having
jurisdiction over the General Partner or the Fund.
(iv) The Limited Partnership Agreement has been duly authorized,
executed and delivered by the General Partner and 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
15
considerations of public policy that relate to indemnification and
contribution. The execution and delivery of the Limited Partnership
Agreement, and the incurrence of the obligations therein and the
consummation of the transactions contemplated therein will not result
in a breach or violation of any of the terms or provisions of or
constitute a default under (i) any Material Contracts, (ii) the
General Partner's certificate of formation or limited liability
company operating agreement, (iii) any laws or administrative rules or
regulations normally applicable to transactions of the type
contemplated thereby, or (iv) any order, writ, injunction or decree
known to such counsel of any court or any governmental body or
administrative agency having jurisdiction over the General Partner or
the Fund.
(v) No filing, order, authorization, approval or consent of any
court, governmental or self-regulatory agency or body is necessary in
connection with the subscription for and sale of the Units, except
such as may be required under the 1933 Act, the Commodity Act, the NFA
Rules, NASD rules and applicable state securities or "Blue Sky" laws.
(vi) Assuming that all action required to be taken by the General
Partner and the Fund as a condition to the subscription for and sale
of the Units to qualified subscribers therefor has been taken, and,
upon payment of the consideration therefor specified in the accepted
Subscription Agreements and Powers of Attorney and satisfaction of all
applicable subscription requirements by such subscribers, the Units
will constitute valid units of limited partnership interest in the
Fund, and each subscriber who purchases Units will become a Limited
Partner with limited personal liability to the extent provided for
under the Illinois Act.
(vii) The information in the Prospectus under the caption "U.S.
Federal Income Tax Consequences," to the extent that such information
constitutes matters of law or legal conclusions, has been reviewed by
such counsel and is correct in all material respects, insofar as it
relates to the income tax consequences to the Fund and to the federal
income tax consequences of an investment in the Fund by U.S.
individual taxpayers.
(viii) The Registration Statement is effective under the 1933 Act
and, to the knowledge of such counsel, no proceeding for a stop order
is pending or threatened under Section 8(d) or Section 8(e) of the
1933 Act or any applicable state "Blue Sky" laws.
(ix) At the time the Registration Statement became effective, the
Registration Statement, and at the time the Prospectus and any
amendments or supplements thereto were first issued, the Prospectus
(other than the financial statements and notes thereto and other
financial and statistical data or past performance information
included therein, as to which such counsel need render no opinion),
complied as to form in all material respects with the requirements of
16
the 1933 Act, SEC Regulations, the Commodity Act, the CFTC Regulations
and the NFA Rules.
(x) Assuming operation in accordance with the Prospectus, the
Fund will not be an "investment company" or a company "controlled" by
an "investment company" as those terms are defined in the Investment
Company Act of 1940, and the General Partner need not be registered as
an "investment adviser" under the Investment Advisers Act of 1940 in
respect of its management of the Fund.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the General Partner and
representatives of the independent public accountants for the General
Partner and the Fund, at which conferences such counsel made inquiries of
such officers, representatives and accountants and discussed the contents
of the Registration Statement and the Prospectus, and no facts have come to
the attention of such counsel that cause them to believe that either the
Registration Statement, at the time such Registration Statement became
effective, or the Prospectus or any amendment or supplement thereto, as of
the date of such opinion contained any untrue statement of a material fact
or omitted to state a material fact stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and notes thereto and
other financial and statistical data or past performance information
included therein).
Such counsel shall also state that to the knowledge of such counsel,
based solely on its review of its litigation docket and an officer's
certificate from the General Partner: (1) there are no legal or
governmental proceedings pending to which the Fund or the General Partner
is a party, that are required to be described in the Registration Statement
or the Prospectus that are not so described; and to such counsel's
knowledge no such proceedings are threatened by governmental authorities or
others.
(c) At or prior to the Initial Closing Date, the Fund shall have
received a capital contribution of the General Partner in the amount
required by its Limited Partnership Agreement and as described in the
Prospectus.
(d) At or prior to the Initial Closing Date, executed copies of the
Limited Partnership Agreement and this Agreement shall be delivered to the
parties hereto.
(e) The parties hereto shall have been furnished with such additional
information, opinions and documents, including supporting documents
relating to parties described in the Prospectus and certificates signed by
such parties with regard to information relating to them and included in
the Prospectus as they may reasonably require for the purpose of enabling
them to pass upon the sale of the Units as herein contemplated and related
proceedings, in order to evidence the accuracy or completeness of any of
the representations or warranties or the fulfillment of any of the
conditions herein contained; and all actions taken by the parties hereto in
connection with the sale of the Units as herein contemplated shall be
reasonably satisfactory in form and substance to
17
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the General Partner, and to the
Selling Agent.
(f) If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as required by this Agreement to be fulfilled
prior to a Closing Date, this Agreement and all obligations hereunder may
be cancelled by any party hereto by notifying the other parties hereto of
such cancellation in writing or by facsimile at any time at or prior to
such Closing Date, and any such cancellation or termination shall be
without liability of any party to any other party other than in respect of
Units already sold and except as otherwise provided in Sections 6 and 8 of
this Agreement.
Section 8. Indemnification, Contribution and Exculpation.
(a) The General Partner severally (not the Fund) agrees to indemnify
and hold harmless the Additional Selling Agent and each person, if any, who
controls the Additional Selling Agent within the meaning of Section 15 of
the 1933 Act, as follows:
(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 Additional Selling Agent specifically for inclusion
therein;
18
and (2) such indemnity with respect to any Prospectus shall not inure to
the benefit of the Additional Selling Agent (or any person controlling the
Additional 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 Additional 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 which the General Partner
may otherwise have.
(b) The Additional 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 Additional Selling Agent, but only with
reference to written information relating to the Additional Selling Agent
furnished to the General Partner, by or on behalf of the Additional 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 Additional Selling Agent may otherwise
have.
(c) If the indemnification provided for in this Section 8 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 Additional Selling Agent on the other from the offering of the
Units by the Additional 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 Additional 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 Additional
Selling Agent exceed the aggregate upfront sales commissions and ongoing
trailing commissions paid to the Additional 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 Additional 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
19
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.
Section 9. Status of Parties. In marketing Units pursuant to this
Agreement, the Additional Selling Agent is acting solely as an agent for the
Fund, and not as a principal. The Additional Selling Agent will use its best
efforts to assist the Fund in obtaining performance by each purchaser solicited
by the Additional Selling Agent whose offer to purchase Units from the Fund has
been accepted on behalf of the Fund, but the Additional 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
Additional Selling Agent shall in no respect be deemed to be an agent of the
Fund.
Section 10. 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 Additional Selling Agent, the General Partner, the
Fund, or any person who controls any of the foregoing, and shall survive the
Closing Dates.
Section 11. 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 12. Survival. Section 2 (with respect to compensation payable for
Units outstanding as of the date of termination) and Sections 6, 8, 13, 14, 15
and 16 hereof shall survive the termination of this Agreement for any reason.
20
Section 13. 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: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇ ▇. ▇▇▇▇ and, if sent to the Additional Selling Agent,
shall be mailed, delivered or faxed and confirmed to it at
_______________________________________, Attention: _______________, with copies
to _____________________________________, Attention: _______________. Notices
shall be effective when actually received.
Section 14. Parties; Assignment. This Agreement shall inure to the benefit
of and be binding upon the Additional 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.
Section 15. 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 16. 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
Additional Selling Agent, they will submit any action or proceeding referred to
in this Section 16 to NFA arbitration in the City of Chicago, and agree to
execute and deliver to the Additional Selling Agent the Additional Selling
Agent's standard form of arbitration agreement, as required by NFA Rules.
Section 17. 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.
21
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:
[ADDITIONAL SELLING AGENT]
By: ______________________
Title: ___________________
22