ATLAS FUTURES FUND, LIMITED PARTNERSHIP
Best Efforts Selling
And Managing Dealer Agreement
THIS AGREEMENT dated this 1st day of February, 1998, by and between Atlas
Futures Fund, Limited Partnership, a Delaware Limited Partnership, (the "Fund"
or Partnership") of ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Ashley Capital
Management, Incorporated, its general partner, (the "General Partner"); and,
Futures Investment Company ("FIC" or "Managing Dealer") of ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and any other selling agents appointed by the General Partner
to serve as additional selling agents ("Additional Selling Agents" or
"Soliciting Dealer"), (FIC and Additional Selling Agents are collectively
referred to as "Sales Agents").
WITNESSETH:
WHEREAS, the Fund was organized under a limited partnership agreement (the
"Limited Partnership Agreement") and a Certificate of Limited Partnership filed
with the Delaware Secretary of State on January 12, 1998, to engage in
speculative trading of futures, options on futures and other commodity
interests described in the Fund's final approved Disclosure Document dated
February 1, 1998 (the "Disclosure Document" or "Prospectus"); and
WHEREAS, the Fund proposes to offer and sell up to $7,000,000 of limited
partnership interests (the "Units") as described in the Prospectus; and
WHEREAS, the Sales Agents desire to promote, solicit, and complete the sale
of the Units to customers identified by them upon the terms and in reliance
upon the representations, warranties and agreements set forth herein; and
WHEREAS, the General Partner desires to compensate the registered
representatives of FIC and the Additional Selling Agents who are also
associated persons, qualified to receive commodity commissions, by the payment
of a percentage of the round turn or fixed commodity commissions based upon a
percentage of equity in lieu of round turn commissions (hereinafter such
payments are called "Trailing Commissions") earned by the General Partner in
consideration of said registered representatives and associated persons
providing service to the Partnership and the investors sold by the Sales Agents
so long as said investors remain Partners in the Fund; and
WHEREAS, the President of the General Partner, individually, and FIC, as
Broker/Dealer, have entered into a separate Agreement to define their
activities related to the marketing and sale of securities and commodity
products by the President of the General Partner as a registered representative
of FIC.
NOW THEREFORE, the parties hereto, intending to be legally bound hereby and
in consideration of the mutual agreements, covenants, representations and
warranties contained herein, agree as follows:
I. Appointment of the Managing Dealer. The Partnership hereby engages the
Managing Dealer to sell Units and to select and recommend Soliciting Dealers to
serve on a non-exclusive, best efforts basis, to solicit and obtain
applications and orders for the purchase of Units in the Fund to investors who
meet the suitability standards established in the Prospectus and by applicable
law upon the terms described in the Prospectus as required by applicable law
and pursuant to this Agreement. The Managing Dealer and every Soliciting
Dealer, will be, at the time of appointment and continuously during the time
of their performance hereunder, members in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"), and will serve as
independent contractors to the Partnership for the purpose of soliciting
subscriptions for Units on a "best efforts" basis in accordance with the terms
and conditions set forth herein and in the Prospectus.
A. No Market to be Maintained. It is understood that neither the Managing
Dealer nor any Soliciting Dealer shall have any commitment or obligation to
sell the Units or provide a market for the Units, other than to use their
best efforts to attempt to sell such Units. The Partnership may, but is
not obligated, to engage other NASD-member firms to sell Units on terms
substantially the same as the terms hereof; provided, however, in certain
instances, the terms of such engagements with respect to compensation may
provide for the payment of commissions and other fees of less than the
amounts provided to the Managing Dealer.
B. Allocation of Units. The allocation of Units among the Managing Dealer
and any such other Soliciting Dealers shall, subject to the terms and
conditions herein set forth, be made by the Partnership, with approval of
the Managing Dealer, in their sole discretion. The Partnership reserves
the right to notify each Sales Agent by telegram or by other means of the
number of Units reserved for sale for each Sales Agent. Such Units will be
reserved for sale until the time specified in such notification. Sales of
any reserved Units after the time specified in the notification or any
requests for additional Units will be subject to rejection by the
Partnership, in whole or in part.
C. Duties of Sales Agents. The Sales Agents agree to act, subject to a
$7,000,000 maximum upon total sales, including sales commissions, of Units
by the Fund by the General Partner and all Sales Agents or termination as
provided in this Agreement or the Prospectus, as the Sales Agents, to take
the following actions:
1. Comply With Offering Procedures. Managing Dealer agrees to take, and
agrees further to cause the Soliciting Dealers to take, those steps
deemed necessary or desirable by legal counsel to the Partnership to
comply with all laws and procedures applicable to the offering of Units
for sale in the jurisdictions selected by the Partnership and approved by
the Managing Dealer. The Partnership shall provide a legal opinion from
its counsel, in satisfactory form and substance to legal counsel for the
Managing Dealer, to advise the effective date of the Prospectus and to
otherwise support the registration of the securities for sale together
with a legal memorandum to identify the states and other jurisdictions,
if any, in which the securities may be sold (the "Blue Sky Survey").
Sales Agents shall offer the Units for sale in those jurisdictions listed
in said Blue Sky Survey and will use only the sales and advertising
literature specifically supplied and authorized by the General Partner.
Additional copies of the Prospectus will be supplied to Sales Agents in
reasonable quantities upon request. The Partnership will also provide
Sales Agents with reasonable quantities of supplemental literature, if
any, prepared by the Partnership in connection with the offering of the
Units.
2. Suitability Standards. Solicitation and other activities by the
Sales Agents shall be undertaken only in accordance with this Agreement,
the Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the applicable rules and regulations of the SEC, the Blue Sky
Survey and the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "NASD"), including, but not in any way
limited to, Sections 8, 24, 25 and 36 of Article III of the Rules of
Fair Practice. Each Sales Agent will procure information and
documentation from each subscriber solicited by their registered
representatives to demonstrate a reasonable basis to believe that the
sale of Units solicited by it were to a subscriber who, on the basis of
information obtained from the subscriber concerning his investment
objectives, other investments, financial situation and requirements, and
any other information known by the Sales Agent, after due inquiry, is or
will be: (i) in a financial position appropriate to realize to a
significant extent the benefits of the investment described in the
Prospectus; and, (ii) the subscriber has a fair market net worth
sufficient to sustain the risks inherent in the program, including loss
of investment and lack of liquidity which shall be either: (a) a minimum
annual gross income of $45,000 and a net worth (exclusive of home, home
furnishings and automobiles) of $45,000; or (b) a net worth (determined
with the foregoing exclusions) of $150,000; or (c) such other higher
gross income and/or net worth requirements of the state where such
investor resides; and, (iii) the Units are otherwise a suitable
investment for the subscriber. Each Sales Agent shall maintain records
disclosing the basis upon which they determined the suitability of any
persons who purchased Units for a period of six years.
3. Authorized Communication.
(a) Prospectus Review. Managing Dealer hereby affirms that it has
reviewed the draft Prospectus furnished to it and has formed a
reasonable basis to believe that all material facts related to the
Partnership, the offering, and the proposed operation of the
Partnership have been adequately and accurately disclosed and that
such facts are sufficient for it to provide prospective investors with
a basis for evaluating the merits of an investment in the Partnership.
In making the foregoing affirmation, Managing Dealer, for itself and
in the agreements it negotiates with the Soliciting Dealers, may make
reference to descriptions in the Prospectus, other than the
descriptions in the Summary, which are for convenience, only. Sales
Agents agree to maintain files to disclose and preserve the basis upon
which the determination of suitability for investment in the
Partnership was reached as to each subscriber solicited by it for a
period of not less than six years. The basis for determining
suitability may include the Subscription Agreement and Power of Attor-
ney and other certificates submitted by subscribers upon which the
Sales Agents and the Partnership may rely, absent actual knowledge of
or a reason to believe, any information contained in such documents is
inaccurate. Specifically, each Sales Agent has reviewed and will
cause its potential subscribers to review: (i) the Risk Disclosure
Statement; (ii) the items of compensation relating to the Fund set
forth under "Fees, Compensation And Expenses"; (iii) certain tax
aspects of an investment in the Fund set forth under "Summary of
Income Tax Consequences"; (iv) the financial condition and experience
of the General Partner set forth under "General Partner"; and, (v) the
risk factors relating to an investment in the Units set forth under
"Risk Factors".
(b) Each Sales Agent agrees to: (i) deliver to each person who
subscribes for the Units, a Prospectus, as then supplemented or
amended, no less than five days prior to the tender of his
subscription agreement (the "Subscription Agreement"); (ii) comply
promptly with the written request of any person for a copy of the
Prospectus during the period between the effective date of the
Prospectus and the later of the termination of the distribution of
the Units or the expiration of 90 days after the first date upon
which the Units were offered to the public; and, (iii) deliver in
accordance with applicable law or as prescribed by any state
securities administrator to any person a copy of any document
included within the Prospectus.
4. Subscriptions. During the Offering Period, the Sales Agents shall
cause the subscriber to deliver all qualification documentation,
subscriptions for Units, and checks for payment for Units shall be
delivered by the Sales Agents to the General Partner of the Fund for
review and acceptance.
(a) All checks shall be made payable to "First American State Bank-
Escrow Agent for Atlas Futures Fund, LP", (the "Escrow Agent") to be
deposited within 24 hours after receipt by Sales Agents to the Escrow
Account as described in the Prospectus or, after the termination of
the escrow, to "Atlas Futures Fund, Limited Partnership" for
investment in the Fund effective on the next admission date by the
General Partner following the sale of the Minimum or, will be returned
by the General Partner to the subscriber together with an explanation
to the subscriber, with a copy to the Managing Dealer and the
Soliciting Dealer, if applicable, of the reason for the refusal by the
General Partner to accept the subscription on behalf of the
Partnership. The Sales Agents may not accept cash for the sale of
Units. Checks not made payable as described in the Prospectus and
above will be returned to the subscriber.
D. Payments to Managing Dealer. The Managing Dealer will be paid a one time
sales commission of six percent ( 6%) of the gross subscriptions for all
Units sold by the Sales Agents at the time of acceptance of the sale by the
General Partner; provided, however, prior to the sale of the Minimum, checks
for the gross sales price, including commissions, shall be made payable and
deposited to Escrow as provided in the Prospectus. Upon the termination of
the Escrow Agreement, the Managing Dealer will receive a check from the
Escrow Agent in the amount of six percent (6%) of the gross subscriptions
for all Units sold to that point in time. Managing Dealer will be solely
responsible for negotiation of the amount, timing, and payment of the sales
commissions to the Soliciting Dealers. The Partnership and its General
Partner may not, under any circumstances, waive, modify, or otherwise adjust
the sales commission to be paid pursuant to the terms of this Agreement.
E. Payment of Trailing Commissions. The General Partner shall pay a portion
of the fixed commodity commission, after payment of expenses, as Trailing
Commissions to the Sales Agents, including the Affiliated Introducing Broker
of the General Partner, which are qualified to receive such commissions on
terms it shall negotiate with such Sales Agents. The term expenses means
the amounts paid by the General Partner for clearing charges and fees to the
FCM and other Clearing Brokers, the Cash FX Firm, if any, the Exchanges, and
the NFA. The method and the amount of such commissions or fees paid by the
General Partner to the Sales Agents shall be determined solely by
negotiations between the General Partner and the Sales Agents; provided,
however, no change shall be made to permit a retroactive adjustment to
Trailing Commissions previously paid. Any such adjustment in rate of
Trailing Commissions must have equal application to all Sales Agents. Such
fees and charges paid by the Fund to the General Partner are described in
detail in the Prospectus.
F. Continuing Service. In consideration of the payment of Trailing
Commissions related to the trade of commodities by the Partnership to the
employers of the associated persons who are Commodity Futures Trading
Commission registered or otherwise qualified to be paid Trailing
Commissions, such employers and associated persons agree to provide services
to the Fund, investors in the Fund, and the General Partner. Such services
shall include, but are not limited to, (i) preparation of projections of
methods to be used and costs to identify suitable investors to solicit to
buy Units; (ii) establish a promotion budget for delivery of information
regarding the Fund to the registered representatives of the Sales Agents;
(iii) inquiring of the General Partner of the Fund, from time to time, at
the request of an owner of Units to determine the net asset value of a Unit,
the commodity markets traded, the advisors utilized, the Fund performance,
and assisting, at the request of the General Partner, in the transfer and
Redemption of Units sold by the Sales Agents; (iv) provide training and
supervision of personnel to provide service to investors in the Fund; (v)
maintain and distribute current copies of Prospectuses and financial
reports; (vi) provide assistance and review in designing materials to send
to Partners and potential investors and developing methods of making such
materials accessible to Partners and potential investors; and, (vii)
generally, take those steps necessary and desirable to aid in the retention
of investment in the Partnership.
II. Partnership Support to the Sales Effort. The Partnership will provide
sales literature, memorandum, telephone consultations and any other reasonable
services to support the selling efforts of the Sales Agents.
A. Customer Support. The Partnership will provide copies of all
communications required to keep the investors sold by the Sales Agents
informed of the performance of the Partnership and required by law to be
distributed to the purchasers of Units sold by the Sales Agents, including,
but not limited to, the monthly and the annual audited financial statements
for the Partnership. In addition, the Partnership shall provide prompt and
professional courteous response to requests made for information and other
service made directly to the Partnership by investors sold by the Sales
Agents.
B. Customers Protected. The Partnership and its affiliates agree, on a best
efforts basis, to not solicit or do business with any customer or any person
referred to the Partnership by the Sales Agents or by a person sold by the
Sales Agents. If such business is done, knowingly or unknowingly, all sales
commission payable as a result of sales to customers of Sales Agents or
persons referred by customers of Sales Agents will be paid to the Sales
Agents as provided in this Agreement for those Units sold to those accounts.
In the event of a common prospect, the Sales Agent which first obtains a
signed subscription from the customer receives the commission and the right
to future referrals from that customer. The documentation used by the
customer will identify the sales person and control the determination of who
made the sale and, whenever possible, the customer will not be involved in
the dispute. The Partnership will use its best efforts to keep the names of
the customers and prospects of the Sales Agents confidential.
III. Representations by All Parties. Each party hereto represents the
following to the other party to this Agreement.
Legal Compliance. The Parties hereto will use their best efforts to comply
fully with all applicable laws and the rules of the National Association of
Securities Dealers (the "NASD"), the Securities and Exchange Commission (the
"SEC"), and state securities administrators of the several states and various
other jurisdictions applicable to each of them in regard to their activities
under this Agreement which in any way effects the offer and sale of Units.
A. Authority to Act. Each party to this agreement represents to the others
that it is duly organized and validly existing under the laws of the state
of its formation, is a member in good standing of the self regulating
organizations, if any, which regulate the sale of Units, has all the
registrations, licenses and permits required to perform its duties
hereunder, and has the full power and authority to act in its capacity in
the manner contemplated by this Agreement and as described in the
Prospectus. This Agreement has been duly and validly authorized, executed
and delivered on behalf of each party hereto and is a valid and binding
agreement, enforceable in accordance with its terms. Each party has been
afforded the opportunity to be represented by legal counsel of its choice.
B. No Breach of Agreements. The entry of this Agreement will not cause a
default of any other agreement to which any party hereto is a party. No
party to this Agreement is in breach of any agreement to which it is a party
which will be material to its performance under this Agreement nor will any
party during the term of this Agreement be in contravention of or default
under any order, law or regulation binding upon it. The execution and
delivery of this Agreement, consummation of the transactions herein
contemplated and compliance with the terms hereof will not constitute or
result in a default under or contravene any provision by any party of the
limited partnership agreement or any other agreement, order, law or
regulation related to the Fund.
IV. Representations of the Partnership. The Partnership represents and
warrants to the Sales Agents that:
A. All Material Facts Disclosed. The Prospectus contains all material
statements and information required to be included therein by the Securities
Act of 1933 and the Commodity Exchange Act, and the securities laws of the
various states selected by the Partnership in which offers for the sale of
Units will be made, as those laws may be amended, from time to time, during
this offering and the rules and regulations promulgated thereunder; will
conform in all material respects with the requirements of such laws and the
rules and regulations thereunder; and, will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which such statements were made, not misleading;
provided, however, that this representation and warranty shall not apply,
with respect to the Sales Agents, to any statements or omissions in the
Prospectus, or any such amendment or supplement, which supplies the
information and which is in writing and furnished by the Partnership to the
Sales Agents prior to the sale in question.
B. The Units are Valid. The Units, when issued and sold pursuant to the
terms hereof and of the Prospectus, will be validly issued, fully paid and
not subject to call or assessment, and the Partnership will apply the net
proceeds received from the issuance and sale of the Units in the manner set
forth in the Prospectus.
C. Other Agreements Valid. The customer agreement with each clearing broker
and/or foreign exchange clearing firm (the "Brokerage Agreements") and the
Power of Attorney granted to the commodity trading advisor has, to the best
knowledge of the General Partner after due inquiry, been duly and validly
authorized, executed and delivered on behalf of the Fund and the other party
to the agreement, and each is a valid and binding agreement of the Fund in
accordance with its terms, except to the extent that the exculpation and
indemnification provisions of such agreements may be limited by applicable
law or this Agreement.
D. Necessary Authority. The Fund has all necessary governmental, regulatory
and commodity exchange approvals and licenses and has effected all filings
and registrations required to conduct its business and perform its
obligations as described in the Prospectus. The Fund will use its best
efforts to be and remain qualified to offer and sell the Units in those
jurisdictions in which the Units will be offered. The Fund is not and, upon
implementation or consummation of the transactions contemplated by this
Agreement and the limited partnership agreement, will not be an investment
company within the meaning of the Investment Company Act of 1940, as
amended.
V. Representations of the General Partner. The General Partner represents
and warrants to the Sales Agents that:
A. Government Authority. The General Partner has all governmental,
regulatory and other approvals and licenses and has effected all filings and
registrations including, without limitation, registration as a commodity
pool operator under the Commodity Exchange Act, as amended, and membership
in NFA, as a corporation under the laws of the State of Delaware, required
to conduct its business as described in the Prospectus or required to
perform its obligations as described therein or under the limited
partnership agreement, the power of attorney to the CTA, this Agreement and
the Brokerage Agreements, and covenants that it will use its best efforts to
maintain such approvals, licenses, filings, registrations, and memberships
in full force and effect.
B. Contracts and Information Complete. The limited partnership agreement,
the power of attorney, the Brokerage Agreements and this Agreement have each
been duly authorized, executed and delivered by the General Partner, and
each is intended to be a valid and binding agreement of the Partnership and
the General Partner in accordance with its terms. All references and
information concerning the General Partner in the Prospectus supplied by it
are accurate in all material respects and, as to it, the Prospectus does not
contain any misleading or untrue statement of a material fact or omit to
state a material fact which is required to be stated or which is necessary
to prevent the statements therein from being misleading.
C. Compliance with Partnership Requirements. The General Partner will
purchase or subscribe for the Units of General Partnership Interest required
of it as disclosed in the Prospectus and will have a net worth equal to or
in excess of the requirements stated therein upon the offering described in
the Prospectus and upon admission to the Fund of all limited partners who
purchase Units during this Offering Period
D. Fees and Costs Attendant to Partnership Offering. The Partnership will
pay, or cause to be paid, all costs and expenses associated with this
offering of the Partnership's Units, including (i) the preparation, printing
and filing of the Prospectus and all amendments and supplements thereto with
the appropriate Federal and state regulatory agencies and the self
regulatory agencies; (ii) the furnishing to the Sales Agents of copies of
the Prospectus and of other documents required to be furnished, including
costs of shipping and mailing; (iii) fees and disbursements of legal
counsel, accountants, and other experts in connection with the transactions
contemplated by this Agreement; and, (iv) any other organization, escrow,
and offering expenses of the Partnership associated with this Offering
Period. The General Partner may be reimbursed by the Fund to the extent of
any organization and offering expenses it has advanced. Each other party to
this Agreement shall bear all of its own expenses under this Agreement,
including fees and disbursements of its legal counsel, accountants and other
experts.
VI. Representations of the Sales Agents. The Sales Agents represent to the
Partnership and the General Partner as follows:
A. All Material Facts Disclosed. Sales Agents have disclosed all material
statements and information related to the Sales Agents required to be
disclosed to the General Partner by the Securities Act of 1933 and the
Commodity Exchange Act, and any corresponding applicable state law, as
amended, from time to time, and the rules and regulations promulgated
thereunder; and, (i) all information furnished to the Partnership or the
General Partner about the prospects and subscribers to the Partnership by
the Sales Agents will be, to the best of Sales Agents knowledge and belief,
complete, true and correct; and, (ii) all information furnished by the Sales
Agents to prospects and subscribers regarding the Partnership will also be
true and correct and will be in reliance upon and only the information
furnished in the Prospectus, amendments thereto or in writing intended by
the General Partner to be delivered to prospective investors.
B. Agreements Valid. The Sales Agents have the authority to enter into this
Agreement and all other agreements required to perform its obligations
hereunder.
C. Necessary Authority. The Sales Agents have all necessary governmental,
regulatory and other approvals and licenses and has effected all filings and
registrations required to conduct its business and perform its obligations
as described in the Prospectus and this Agreement. The Sales Agents will
use their best efforts to be and remain qualified to offer and sell the
Units in those jurisdictions in which the Partnership and the Sales Agents
agree the Units will be offered. Specifically, each Sales Agent represents
that it is a broker or dealer as defined in Section 3(a)(4) or 3(a)(5) of
the Securities Exchange Act of 1934 ("Exchange Act"); that it is registered
with the Securities and Exchange Commission pursuant to Section 15 of the
Exchange Act; that it is a member of the NASD; that its customers' accounts
are insured by the Securities Investors Protection Corporation ("SIPC");
and that, during the term of this Agreement, it will abide by all of the
rules and regulations of the NASD including, without limitation, the NASD
Rules of Fair Practice. Each Sales Agent agrees to notify the General
Partner immediately in the event of (1) the termination of its coverage by
the SIPC; (2) its expulsion or suspension from the NASD, or (3) its being
found to have violated any applicable Federal or state law, rule or
regulation arising out of its activities as a broker-dealer or in
connection with this Agreement, or which may otherwise affect in any
material way its ability to act in accordance with the terms of this
Agreement. Any Sales Agent's expulsion from the NASD will automatically
terminate this Agreement immediately without notice. Suspension of any
Sales Agent from the NASD for violation of any applicable Federal or state
law, rule or regulation will terminate this Agreement effective immediately
upon written notice by the General Partner of termination to Sales Agent.
D. Use of Discretionary Authority. Sales Agents will not make sales of
Units from a discretionary account over which it or any of its registered
representatives or the affiliates of any of them have control without prior
written approval of the customer in whose name such discretionary account is
maintained.
E. ERISA Assets.
1. Sales Agents understand that the Department of Labor views ERISA as
prohibiting fiduciaries of discretionary ERISA assets from receiving
administrative service fees or other compensation from funds in which
the fiduciary's discretionary ERISA assets are invested. To date, the
Department of Labor has not issued any exemptive order or advisory
opinion that would exempt fiduciaries from this interpretation. Without
specific authorization from the Department of Labor, fiduciaries should
carefully avoid investing discretionary assets in any fund pursuant to
an arrangement where the fiduciary is to be compensated by the fund for
such investment. Receipt of such compensation could violate ERISA
provisions against fiduciary self-dealing and conflict of interest and
could subject the fiduciary to substantial penalties.
2. No Sales Agent will perform or provide any duties which would cause
it to be a fiduciary under Section 4975 of the Internal Revenue Code, as
amended. For purposes of that Section, each Sales Agent understands that
any person who exercises any discretionary authority or discretionary
control with respect to any individual retirement account or its assets,
or who renders investment advice for a fee, or has any authority or
responsibility to do so, or has any discretionary authority or
discretionary responsibility in the administration of such an account,
is a fiduciary.
VII. Indemnification and Limits. The parties hereto agree to provide
indemnification upon the following terms and limits:
A. Indemnification from General Partner to Sales Agents. The General
Partner agrees to indemnify and hold harmless the Sales Agents and each
person, if any, who controls the Sales Agents within the meaning of Section
15 of the Securities Act, from and against any and all losses, claims,
damages, liabilities and expenses including, but not limited to, any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted to which, jointly or severally, they, or any of them, may become
subject as a result of any breach of fiduciary duty owed by the General
Partner to the Partnership or under the Securities Act of 1933, as amended,
the Securities Exchange Act of 1934, as amended, the Commodity Exchange Act,
as amended, any other Federal or state statutory or foreign law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses or actions with respect thereto arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus or any amendment or supplement
thereto, or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading; except insofar as any such untrue statement or
omission or alleged untrue statement or omission was made in the Prospectus,
or any amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Fund expressly for use therein
by the Sales Agent or any other independent third party; provided, however,
in no event shall the General Partner's agreement to indemnify contained
herein inure to the benefit of the Sales Agents or any person controlling
the Sales Agents on account of any losses, claims, damages, liabilities,
expenses or actions arising from the sale of Units to any person by the
Sales Agents if such losses, claims, damages, liabilities, expenses or
actions arise out of or are claimed to be based upon an untrue statement or
omission or alleged untrue statement or omission in a Prospectus if a
subsequent Prospectus or supplemental Prospectus shall correct, prior to the
delivery to the Sales Agents by such person of his subscription, the untrue
statement or omission or the alleged untrue statement or omission which is
the basis of the loss, claim, damage, liability, expense or action for which
indemnification is sought, or a copy of such subsequent Prospectus was not
sent or given to such person simultaneously with or prior to the receipt by
the Sales Agents of such person's subscription. In addition, this
indemnification will not apply to any claims asserted as a result of the
alleged misstatement of fact by any party other than the General Partner, or
any other authorized representative of the Partnership or which was properly
treated by (i) the Prospectus, as amended, from time to time, or (ii)
written material furnished by the General Partner on behalf of the
Partnership for the purpose of delivery to prospects or subscribers.
B. Indemnification from Sales Agents to Other Parties. The Sales Agents
agree to indemnify and hold harmless the General Partner, the Fund, and each
person, if any, who controls either of them within the meaning of Section 15
of the Securities Act, from and against any and all losses, claims, damages,
liabilities and expenses including, but not limited to, any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted to
which, jointly or severally, they, or any of them, may become subject under
the Securities Act of 1933, as amended, the Securities Exchange Act of 1934,
as amended, the Commodity Exchange Act, as amended, any other Federal or
state statutory or foreign law or regulation, at common law or otherwise,
insofar as the losses, claims, damages, liabilities or expenses indemnified
against arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which was made to a prospect or
subscriber to Units by the Sales Agents or either of them; provided,
however, that the obligation of the Sales Agents to indemnify the Fund or
the General Partner, or any person who controls them, hereunder shall be
limited to the total price of the Units sold by the Sales Agent; and,
provided, further, that the final award or court order specifically find the
Sales Agent was guilty of such misrepresentation.
C. Sales Agents Responsible for Payment of Commissions. Provided the
General Partner properly pays the sales or Trailing Commissions to the
Managing Dealer or the Sales Agent which sold the Units, such Managing
Dealer or Sales Agent agrees to indemnify and hold harmless the Fund and the
General Partner from all claims, including attorney fees and costs, from any
person who asserts they are entitled to a portion of the Trailing
Commissions or are entitled to a portion of the Sales Commissions paid to
the Managing Dealer pursuant to a Soliciting Dealer Agreement with the
Partnership.
D. Limits upon Indemnification. The obligation to provide the above
described indemnification's are conditioned upon and subject to the
following limitations:
1. Provide Notice. As condition precedent to indemnification under this
Agreement, a party must, within ten days after receipt of information to
inform it of the existence of a potential claim or the commencement of
any action, suit or proceeding against it for which it will make a claim
for indemnification from another party under this Agreement, provide a
complete description of the claim and give notice to the indemnifying
party of all facts related to such claim including, but not limited to,
sending a copy of all papers served. The failure to provide such timely
notice shall be a waiver of indemnification under this Agreement but such
omission shall not be a waiver of any liability of any person under
common law or statute or any other basis other than under the
indemnification provisions of this Agreement. In case any such action,
suit or proceeding shall be brought against any indemnified party and it
shall have properly notified the indemnifying party of such claim, the
indemnifying party shall be entitled to participate in the defense of
such claim and, if it so elects, individually or jointly with any other
indemnifying party similarly notified, to assume the defense thereof with
counsel satisfactory to such indemnified party. After notice from the
indemnifying party to such indemnified party of its election to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, other than reasonable
costs of investigation requested by the indemnifying party, subsequently
incurred by such indemnified party in connection with the defense thereof
and shall not be responsible for the quality of the defense or the
outcome of the case.
2. Legal Counsel. The indemnified party shall have the right to employ
its own counsel in any such action in which the indemnifying party has so
assumed the defense, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized by the indemnifying
party, (ii) the indemnified party shall have reasonably concluded that
there may be a conflict of interest between the indemnifying party and
the indemnified party in the conduct of the defense of such action (in
which case the indemnifying party shall not have the right to direct the
defense of such action on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in each of which cases, the fees and expenses of
counsel shall be at the expense of the indemnifying party. An
indemnifying party shall not be liable for any settlement of any action
or claim effected without its consent. In the case of (ii) above, the
indemnifying party, or the indemnifying parties, if an indemnified party
shall have a claim for indemnification against more than one indemnifying
party, shall not be liable for the expenses of more than one separate
counsel for the General Partner and the Fund and any person who controls
them within the meaning of Section 15 of the Securities Act.
3. General Partner Liability Limitation. Any exculpation provisions of
the Limited Partnership Agreement shall not relieve the General Partner
from any liability it may have or incur to the Fund under this Agreement,
nor shall the General Partner be entitled to be indemnified by the Fund,
pursuant to any indemnification provisions contained in the Limited
Partnership Agreement or the Brokerage Agreements, against any loss,
liability, damage, cost or expense it may incur under this Agreement.
VIII. Termination. This Agreement may be terminated upon the following terms
and conditions:
A. Without Cause. This Agreement may be terminated without cause by any
party upon forty-five (45) days notice to the other parties.
B. With Cause. Any party may terminate this Agreement at anytime for cause
if the General Partner commits a breach of fiduciary duty owed to the Fund,
any domestic or international event, act or occurrence has materially
disrupted, or in the opinion of the General Partner will, in the immediate
future, materially disrupt the commodities markets; or, any party to this
Agreement breaches a material term of this Agreement including, but not
limited to, fails to cure any law or rule violation attendant to its right
to perform under this Agreement or makes any false statement or omission to
any prospect or subscriber of Units or required to be made under this
Agreement.
C. Payments after Termination. The Partnership will continue to pay Sales
Commissions and Trailing Commissions provided by this Agreement, after
termination of this Agreement, for any reason, for all Units sold by the
Sales Agents during the term of this Agreement; provided, however, to
receive trailing commissions, the Sales Agents must continue to service the
holders of Units after such termination. No such commissions, if any, shall
be paid until after the break of escrow as provided in the Prospectus for
the sale of Units in the Fund.
IX. General Provisions. The following general terms are to apply to this
Agreement.
A. Reference to Prospectus. The Sales Agents acknowledge receipt of a copy
of the draft Prospectus referred to above and, subject to the delivery by
the General Partner of all marked copies, revisions, Amendments and Addenda
thereto, all filings made to the Securities and Exchange Commission,
together with an opinion from counsel for the Partnership that they are
complete and that the Units are available for sale in the states identified
in the Blue Sky Survey (which shall not be an opinion of counsel), the Sales
Agents will distribute the offering in accordance with the instructions of
the Partnership. Terms with the first letter capitalized which are not
defined is this Agreement are defined in the Prospectus.
B. Survival of Representations. The representations contained in this
Agreement made by any party shall survive the issue, sale and payment for
the Units hereunder and the termination of this Agreement as to all Units
which remain in the Partnership. The fact a party may conduct a due
diligence review to determine the accuracy of one or all of the
representations made in this agreement shall not be deemed a waiver or apply
estoppel or otherwise legally affect such representation should at some
later time any such representation be proved untrue.
C. Independent Contractors. The parties hereto, subject to the procedures
established by the Partnership to preserve the legality of the offering and
to assure that all persons solicited will be pre-qualified as suitable to
become investors in the Partnership, shall be free to exercise their
independent judgment as to the performance of their obligations under this
agreement. The parties hereto shall be free to devote whatever time they
choose to any other business of their choice. The Sales Agents are
independent from the General Partner and the Partnership; the relationship
of the Sales Agents with the General Partner and the Partnership are as
independent contractors. The parties agree that in each transaction in the
Units of the Fund and with regard to any services rendered pursuant to this
Agreement: (a) each Sales Agent is acting as agent for the subscriber; (b)
each transaction is initiated solely upon the order of the subscriber; (c)
as between each Sales Agent and its customer, the customer will have full
beneficial ownership of all Units of the Fund; (d) each transaction shall
be for the account of the subscriber and not for the Sales Agent's account;
and (e) each transaction shall be without recourse to Sales Agent provided
that Sales Agent acts in accordance with the terms of this Agreement.
Neither the Managing Dealer nor any other Sales Agent shall have any
authority in any transaction to act as agent for the General Partner or as
agent for the Fund.
D. Successors and Assigns. This Agreement has been and is made solely for
the benefit of the parties hereto to the extent expressed herein, for the
benefit of persons controlling any of such parties hereto and the respective
successors and assigns of such controlling persons, and no other person
shall acquire or have any right under or by virtue of this Agreement. There
may be no assignment of this Agreement.
E. Notices. Any notices under this Agreement shall be given or confirmed in
writing and sent registered or certified mail, postage prepaid, addressed as
to such person at the address in the caption of this Agreement or to such
other address as changed from time to time by either party hereto by written
notice to the other.
F. Entire Agreement. This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter contained herein.
G. Arbitration. Any controversy or disagreement between the parties to this
Agreement shall be determined by binding arbitration in the City of Ft.
Lauderdale, State of Florida, by a single arbitrator knowledgeable in the
securities or commodities business in accordance with the rules and
regulations as promulgated by the American Arbitration Association and
judgment on any award so made may be entered in any court having
jurisdiction. In the event a party is required to retain legal counsel to
enforce or defend its rights under this Agreement, the loser of any such
dispute agrees to pay all costs including all reasonable attorney fees and
court costs, attendant to the protection of its rights hereunder.
Specifically, and not by way of limitation to the foregoing, should either
party lose an arbitration claim and subsequently file a court action, such
losing party shall pay the legal fees and costs of the party defending the
attempted avoidance of the arbitration award.
H. Applicable Law and Severability. This Agreement shall be governed by the
laws of the State of Florida. If any of the provisions of this Agreement
are held unlawful, void or unenforceable, such event shall not affect the
enforceability of the remaining provisions.
I. Captions. All captions used herein are for convenience only, are not a
portion of this Agreement and are not to be used in construing or
interpreting any aspect of this Agreement.
J. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Fund, the General Partner, and the Sales Agent have
executed this Agreement on the day and year first above written.
Atlas Futures Fund, Limited Partnership Ashley Capital Management, Inc.
By: Ashley Capital Management, Inc.
Its General Partner
By: ___________________________ By: __________________________
Shira Del ▇▇▇▇▇▇ ▇▇▇▇▇ Del ▇▇▇▇▇▇
President President
Futures Investment Company
By: ___________________________
Shira Del ▇▇▇▇▇▇
President