EXHIBIT 1.2
AMENDMENT AGREEMENT
This amendment agreement (the "Agreement"), is made and entered into
effective as of the ___ day of _________, 2005, by and among THE FRONTIER FUND,
a statutory trust organized under Chapter 38 of Title 12 of the Delaware Code
(the "Trust"), EQUINOX FUND MANAGEMENT, LLC, a Delaware limited liability
company and the managing owner of the Trust (the "Managing Owner") and [
], a [
] (the "Selling Agent"). Capitalized and other defined terms used in this
Agreement and not otherwise expressly defined herein shall have the same
respective meanings as are set forth in the Selling Agent Agreement (as
hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Trust, the Managing Owner and the Selling Agent have
entered into a selling agent agreement dated as of
, 200
(the "Selling Agent Agreement"), pursuant to which the Selling Agent acts as
selling agent for the Trust on a "best efforts" basis; and
WHEREAS, Sub-Section 11(c) of the Selling Agent Agreement provides
that the Selling Agent Agreement may not be amended or modified except by the
prior written consent of all the parties to the Selling Agent Agreement; and
WHEREAS, the parties hereto desire to amend the Selling Agent
Agreement in certain respects.
NOW, THEREFORE, in consideration of the foregoing promises and the
mutual covenants herein contained and for other consideration given, the
receipt and sufficiency of which is hereby acknowledged and confirmed, the
parties hereto agree as follows:
1. The initial paragraph of the Selling Agent Agreement is hereby
amended by deleting the sentence after the words "and the Prospectus (as
hereinafter defined) included therein referred to below." and before the words
"The Units of each Series will be offered" and replacing such deleted text with
the following sentence:
"A maximum of $875,000,000 for the Balanced Series, $110,000,000 for
the Xxxxxx Series, $65,000,000 for the Beach Series, $300,000,000 for the
Xxxxxxxx/Xxxxxx Series, $23,000,000 for the C-View Currency Series and
$23,000,000 for the Xxxx Series will be offered and sold during the Initial
Offering Period for each Series, and thereafter during the Continuing Offering
Period for each Series as such terms are hereinafter defined."
2. Sub-Section 3(c) of the Selling Agent Agreement is hereby
amended by deleting the sentence following the words "to prepare their
subscriptions in proper form." and before the words "Proceeds will be
transferred to the escrow account" and replacing such deleted text with the
following sentence:
"The Selling Agent shall deposit the subscription proceeds from the
sale of Units in each Series (the "Proceeds") during the Initial Offering
Period in escrow accounts designated by the Series at U.S. Bank National
Association in Denver, Colorado (the "Escrow Agent"), for the separate benefit
of the Subscribers of each Series no later than noon of the first Business Day
following the receipt by the Selling Agent of such Proceeds."
3. Sub- Section 4(a) of the Selling Agent Agreement is hereby
amended by inserting the following new Sub-Sub-Sections 4(a)(3), 4(a)(4) and
4(a)(5) immediately following Sub-Sub-Section 4(a)(2):
"(3) The calculation of the initial service fee for incremental Unit
purchases is based on the aggregate amount of Units held by an investor at the
time of each Unit purchase (taking into account the right of accumulation).
For example, if an investor purchases $75,000 in Class 1 Units in one month,
the Selling Agent shall receive an initial service fee of 3.00% of the purchase
price of such Units. If such investor then purchases an additional $50,000 in
Class 1 Units three months later, the Selling Agent shall be paid an initial
service fee of 2.50% of the purchase price of such Units. If such investor
subsequently invests $500,000 in Class 1 Units, the Selling Agent shall be paid
an initial service fee of 1.25% of the purchase price of such Units.
(4) The initial service fee is calculated based upon the net asset
value of the aggregate amount of Units in Class 1 at the time of such purchase
and the service fee applicable thereof. The on-going service fee after the
initial 12 months of each purchase has expired is calculated based upon the net
asset value of the aggregate amount of Units in Class 1 at the end of such 12
month period(s).
(5) Using the above example (assuming no redemption of Units has
occurred), the initial service fee for the initial twelve months will be 3.00%
of the net asset value of the initial Unit purchase of $75,000; 2.50% of the
net asset value of the additional Unit purchase of $50,000; and 1.25% of the
net asset value of the additional Unit purchase of $500,000. One year from the
initial Unit purchase of $75,000, the on-going service fee will be 1.25% of the
net asset value of the Unit purchase of $75,000. One year after the second
Unit purchase of $50,000, the on-going service fee will be calculated at a rate
of 1.25% of the net asset value of the cumulative $125,000 investment.
Finally, one year after the third Unit purchase of $500,000, the on-going
service fee will be calculated at a rate of 1.25% of the net asset value of the
entire investment of $625,000."
4. Sub-Section 4(c) of the Selling Agent Agreement is hereby
amended by adding the words "reasonable and actual out-of-pocket" after the
words "except for the reimbursement of" and before the word "expenses."
5. Sub-Section 9(a) of the Selling Agent Agreement is hereby
modified by deleting the words "fraud, willful" after the words "which
constitute negligence," and before the words "misconduct or a breach."
6. Section 9 of the Selling Agent Agreement is hereby modified by
renumbering existing Sub-Section 9(g) as Sub-Section 9(i) and inserting the
following new Sub-Sections 9(g) and 9(h) immediately following Sub-Section
9(f):
"(g) Notwithstanding the provisions of this Section 9, the Selling
Agent shall not be indemnified for any losses, liabilities or expenses arising
from or out of an alleged violation of federal or state securities laws unless
(i) there has been a successful adjudication on the merits of each count
involving alleged securities law violations as to the particular indemnitee,
(ii) such claims have been dismissed with prejudice on the merits by a court of
competent jurisdiction as to the particular indemnitee or (iii) a court of
competent jurisdiction approves a settlement of the claims against a particular
indemnitee and finds that indemnification of the settlement and related costs
should be made.
(h) In any claim for indemnification for federal or state
securities law violations, the party seeking indemnification shall place before
the court the position of the Securities and Exchange Commission, the position
of the Tennessee Securities Division, the position of the Securities Division
of the Commonwealth of Massachusetts and the position of any other applicable
state securities division which requires disclosure with respect to the issue
of indemnification for securities law violations."
7. Except as expressly amended and modified hereby, the Selling
Agent Agreement shall remain in full force and effect.
8. 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. Signatures on this Agreement may be
communicated by facsimile transmission and shall be binding upon the parties so
transmitting their signatures. Counterparts with original signatures shall be
provided to the other parties following the applicable facsimile transmission;
provided, that the failure to provide the original counterpart shall have no
effect on the validity or the binding nature of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have made this Agreement
effective as of the date set forth above.
THE FRONTIER FUND
By: EQUINOX FUND MANAGEMENT, LLC
Its: Managing Owner
By:
Name:
Title:
EQUINOX FUND MANAGEMENT, LLC
By:
Name:
Title:
[NAME OF SELLING AGENT]
By:
Name:
Title:
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