1
EXHIBIT 10.4
MANAGEMENT AGREEMENT
AGREEMENT made as of the 24th day of August 1999 among XXXXX XXXXXX
FUTURES MANAGEMENT INC., a Delaware corporation ("SBFM"), XXXXXXX XXXXX BARNEY
DIVERSIFIED 2000 FUTURES FUND L.P., a New York limited partnership (the
"Partnership") and BEACON MANAGEMENT CORPORATION (USA), a Delaware corporation
(the "Advisor").
W I T N E S S E T H :
WHEREAS, SBFM is the general partner of Xxxxxxx Xxxxx Xxxxxx Diversified
2000 Futures Fund L.P. a limited partnership organized for the purpose of
speculative trading of commodity interests, including futures contracts, options
and forward contracts with the objective of achieving substantial capital
appreciation; and
WHEREAS, the Limited Partnership Agreement establishing the Partnership
(the "Limited Partnership Agreement") permits SBFM to delegate to one or more
commodity trading advisors SBFM's authority to make trading decisions for the
Partnership; and
WHEREAS, the Advisor is registered as a commodity trading advisor with
the Commodity Futures Trading Commission ("CFTC") and is a member of the
National Futures Association ("NFA"); and
WHEREAS, SBFM is registered as a commodity pool operator with the CFTC
and is a member of the NFA; and
WHEREAS, SBFM, the Partnership and the Advisor wish to enter into this
Agreement in order to set forth the terms and conditions upon which the Advisor
will render and implement advisory services in connection with the conduct by
the Partnership of its commodity trading activities during the term of this
Agreement;
NOW, THEREFORE, the parties agree as follows:
1. DUTIES OF THE ADVISOR. (a) Upon the commencement of trading operations
by the Partnership and for the period and on the terms and conditions of this
Agreement, the Advisor shall have sole authority and responsibility, as one of
the Partnership's agents and attorneys-in-fact, for directing the investment and
reinvestment of the assets and funds of the Partnership allocated to it by the
General Partner in commodity interests, including commodity futures contracts,
options and forward contracts. All such trading on behalf of the Partnership
2
shall be in accordance with the trading strategies and trading policies set
forth in the Prospectus and Disclosure Document to be dated on or about
September 1, 1999, as supplemented (the "Memorandum"), and as such trading
policies may be changed from time to time upon receipt by the Advisor of prior
written notice of such change and pursuant to the trading strategy selected by
SBFM to be utilized by the Advisor in managing the Partnership's assets. SBFM
has initially selected the Advisor's Meka Program to manage the Partnership's
assets allocated to it. Any open positions or other investments at the time of
receipt of such notice of a change in trading policy shall not be deemed to
violate the changed policy and shall be closed or sold in the ordinary course of
trading. The Advisor may not deviate from the trading policies set forth in the
Prospectus without the prior written consent of the Partnership given by SBFM.
The Advisor makes no representation or warranty that the trading to be directed
by it for the Partnership will be profitable or will not incur losses.
(b) SBFM acknowledges receipt of the Advisor's Disclosure Document dated
February 1, 1999 as filed with the NFA and the CFTC. All trades made by the
Advisor for the account of the Partnership shall be made through such commodity
broker or brokers as SBFM shall direct, and the Advisor shall have no authority
or responsibility for selecting or supervising any such broker in connection
with the execution, clearance or confirmation of transactions for the
Partnership or for the negotiation of brokerage rates charged therefor. However,
the Advisor, with the prior written permission (by either original or fax copy)
of SBFM (such permission not to be unreasonably withheld), may direct all trades
in commodity futures and options to a futures commission merchant or independent
floor broker it chooses for execution with instructions to give-up the trades to
the broker designated by SBFM, provided that the futures commission merchant or
independent floor broker and any give-up or floor brokerage fees are approved in
advance by SBFM (such permission not to be unreasonably withheld). All give-up
or similar fees relating to the foregoing shall be paid by the Partnership after
all parties have executed the relevant give-up agreements (by either original or
fax copy). SBFM will cause the Partnership's commodity brokers to provide the
Advisor with copies of all confirmation, purchase and sale, monthly and similar
statements at the time such statements are available to SBFM.
(c) The initial allocation of the Partnership's assets to the Advisor
will be made to the Advisor's Meka Program. In the event the Advisor wishes to
use a trading system or methodology other than or in addition to the system
or methodology outlined in the Prospectus in connection with its trading for
the Partnership, either in whole or in part, it may not do so unless the
Advisor gives SBFM prior written notice of its intention to utilize such
different trading system or methodology and SBFM consents thereto in writing
which consent
-2-
3
shall not be unreasonably withheld. In addition, the Advisor will provide five
days' prior written notice to SBFM of any change in the trading system or
methodology to be utilized for the Partnership which the Advisor deems material.
If the Advisor deems such change in system or methodology or in markets traded
to be material, the changed system or methodology or markets traded will not be
utilized for the Partnership without the prior written consent of SBFM which
consent shall not be unreasonably withheld. In addition, the Advisor will notify
SBFM of any changes to the trading system or methodology that would require a
change in the description of the trading strategy or methods described in the
Prospectus. Further, the Advisor will provide the Partnership with a current
list of all commodity interests to be traded for the Partnership's account. The
Advisor also agrees to provide SBFM, on a monthly basis, with a written report
of the assets under the Advisor's management in an agreed upon format together
with all other matters deemed by the Advisor to be material changes to its
business not previously reported to SBFM. The Advisor further agrees that it
will convert foreign currency balances (not required to margin positions
denominated in a foreign currency) to U.S. dollars no less frequently than
monthly. U.S. dollar equivalents in individual foreign currencies of more than
$100,000 will be converted to U.S. dollars within one business day after such
funds are no longer needed to margin foreign positions.
(d) The Advisor agrees to make all material disclosures to the
Partnership regarding itself and its principals as defined in Part 4 of the
CFTC's regulations ("principals"), shareholders, directors, officers and
employees, their trading performance and general trading methods, its customer
accounts (but not the identities of or identifying information with respect to
its customers) and otherwise as are required in the reasonable judgment of SBFM
to be made in any filings required by Federal or state law or NFA rule or order.
Notwithstanding Sections 1(d) and 4(d) of this Agreement, the Advisor is not
required to disclose the actual trading results of proprietary accounts of the
Advisor or its principals. The Partnership and SBFM acknowledge that the trading
advice to be provided by the Advisor is a property right belonging to the
Advisor and that they will keep all such advice confidential, and agree that
such advice shall not be disclosed to third parties without the prior written
consent of the Advisor. Nothing in this Agreement shall require the Advisor to
disclose the non-public details of its strategies.
(e) The Advisor understands and agrees that SBFM may designate other
trading advisors for the Partnership and apportion or reapportion to such other
trading advisors the management of an amount of Net Assets (as defined in
Section 3(b) hereof) as it shall determine in its absolute discretion. The
designation of other trading advisors and the apportionment or reapportionment
of Net Assets to any such trading advisors pursuant to this Section 1 shall
neither terminate this Agreement
-3-
4
nor modify in any regard the respective rights and obligations of the parties
hereunder.
(f) SBFM may, from time to time, in its absolute discretion, select
additional trading advisors and reapportion funds among the trading advisors for
the Partnership as it deems appropriate. SBFM shall use its best efforts to make
reapportionments, if any, as of the first day of a month. The Advisor agrees
that it may be called upon at any time promptly to liquidate positions in SBFM's
sole discretion so that SBFM may reallocate the Partnership's assets, meet
margin calls on the Partnership's account, fund redemptions, or for any other
reason, except that SBFM will not require the liquidation of specific positions
by the Advisor. SBFM will use its best efforts to give two days' prior notice to
the Advisor of any reallocations or liquidations and to require such
reallocations or liquidations only at month end.
(g) The Advisor will not be liable for trading losses in the
Partnership's account including losses caused by errors; provided, however, that
(i) the Advisor will be liable to the Partnership with respect to losses
incurred due solely and directly to errors committed or caused by it or any of
its principals or employees in communicating trading instructions or orders to
any broker on behalf of the Partnership and (ii) the Advisor will be liable to
the Partnership with respect to losses incurred due to errors committed or
caused by any executing broker (other than Xxxxxxx Xxxxx Barney Inc. or any of
its affiliates) selected by the Advisor (it also being understood that SBFM,
with the assistance of the Advisor, will first attempt to recover such losses
from the executing broker).
2. INDEPENDENCE OF THE ADVISOR. For all purposes herein, the Advisor
shall be deemed to be an independent contractor and, unless otherwise expressly
provided or authorized, shall have no authority to act for or represent the
Partnership in any way and shall not be deemed an agent, promoter or sponsor of
the Partnership, SBFM, or any other trading advisor. The Advisor shall not be
responsible to the Partnership, SBFM, any trading advisor or any limited
partners for any acts or omissions of any other trading advisor to the
Partnership.
3. COMPENSATION. (a) In consideration of and as compensation for all of
the services to be rendered by the Advisor to the Partnership under this
Agreement, the Partnership shall pay the Advisor (i) an incentive fee payable at
the end of each calendar year equal to 20% of New Trading Profits (as such term
is defined below) earned by the Advisor for the Partnership and (ii) a monthly
fee for professional management services equal to 1/6 of 1% (2% per year) of the
month-end Net Assets of the Partnership allocated to the Advisor.
(b) "Net Assets" shall have the meaning set forth in Paragraph 7(d)(1) of
the Limited Partnership Agreement to be
-4-
5
dated on or about August 27, 1999 and without regard to further amendments
thereto, provided that in determining the Net Assets of the Partnership on any
date, no adjustment shall be made to reflect any distributions, redemptions or
incentive fees payable as of the date of such determination.
(c) "New Trading Profits" shall mean the excess, if any, of Net Assets
managed by the Advisor at the end of the fiscal period over Net Assets managed
by the Advisor at the end of the fiscal period with the highest previous ending
level or Net Assets allocated to the Advisor at the date trading commences,
whichever is higher, and as further adjusted to eliminate the effect on Net
Assets resulting from new capital contributions, redemptions, reallocations or
capital distributions, if any, made during the fiscal period decreased by
interest or other income, not directly related to trading activity, earned on
the Partnership's assets during the fiscal period, whether the assets are held
separately or in margin accounts. Ongoing expenses will be attributed to the
Advisor based on the Advisor's proportionate share of Net Assets. Ongoing
expenses above will not include expenses of litigation not involving the
activities of the Advisor on behalf of the Partnership. For purposes of
calculating New Trading Profits, ongoing expenses will not include offering and
organizational expenses of the Partnership. The first incentive fee shall be
paid as of the end of the calendar year in which trading commences, which fee
shall be based on New Trading Profits earned from the commencement of trading
operations by the Partnership through the end of the calendar year. Interest
income earned, if any, will not be taken into account in computing New Trading
Profits earned by the Advisor. If Net Assets allocated to the Advisor are
reduced due to redemptions, distributions or reallocations (net of additions),
there will be a corresponding proportional reduction in the related loss
carryforward amount that must be recouped before the Advisor is eligible to
receive another incentive fee.
(d) Annual incentive fees and monthly management fees shall be paid
within twenty (20) business days following the end of the period, as the case
may be, for which such fee is payable. In the event of the termination of this
Agreement as of any date which shall not be the end of a fiscal year or a
calendar month, as the case may be, the annual incentive fee shall be computed
as if the effective date of termination were the last day of the then current
year and the monthly management fee shall be prorated to the effective date of
termination.
(e) The provisions of this Paragraph 3 shall survive the termination of
this Agreement.
4. RIGHT TO ENGAGE IN OTHER ACTIVITIES. (a) The services provided by the
Advisor hereunder are not to be deemed exclusive. SBFM on its own behalf and on
behalf of the
-5-
6
Partnership acknowledges that, subject to the terms of this Agreement, the
Advisor and its officers, directors, employees and shareholder(s), may render
advisory, consulting and management services to other clients and accounts. The
Advisor and its officers, directors, employees and shareholder(s) shall be free
to trade for their own accounts and to advise other investors and manage other
commodity accounts during the term of this Agreement and to use the same
information, computer programs and trading strategies, programs or formulas
which they obtain, produce or utilize in the performance of services to SBFM for
the Partnership. However, the Advisor represents, warrants and agrees that it
believes the rendering of such consulting, advisory and management services to
other accounts and entities, to the best of its present knowledge, will not
require any material change in the Advisor's basic trading strategies and will
not affect the capacity of the Advisor to continue to render services to SBFM
for the Partnership of the quality and nature contemplated by this Agreement.
(b) If, at any time during the term of this Agreement, the Advisor is
required to aggregate the Partnership's commodity positions with the positions
of any other person for purposes of applying CFTC- or exchange-imposed
speculative position limits, the Advisor agrees that it will promptly notify
SBFM if the Partnership's positions are included in an aggregate amount which
exceeds the applicable speculative position limit. The Advisor agrees that, if
its trading recommendations are altered because of the application of any
speculative position limits, it will not modify the trading instructions with
respect to the Partnership's account in such manner as to affect the Partnership
substantially disproportionately as compared with the Advisor's other accounts.
The Advisor further represents, warrants and agrees that it will not knowingly
or deliberately favor any client or account managed by it over any other client
or account in any manner, it being acknowledged, however, that different trading
strategies or methods may be utilized for differing sizes of accounts, accounts
with different trading policies, accounts experiencing differing inflows or
outflows of equity, accounts which commence trading at different times, accounts
which have different portfolios or different fiscal years, accounts utilizing
different executing brokers and accounts with other differences, and that such
differences may cause divergent trading results.
(c) It is acknowledged that the Advisor and/or its officers, employees,
directors and shareholder(s) presently act, and it is agreed that they may
continue to act, as advisor for other accounts managed by them, and may continue
to receive compensation with respect to services for such accounts in amounts
which may be more or less than the amounts received from the Partnership.
(d) The Advisor agrees that it shall make such information available to
SBFM respecting the performance of the
-6-
7
Partnership's account as compared to the performance of other pool accounts
managed by the Advisor or its principals using the same strategy as shall be
reasonably requested by SBFM. The Advisor presently believes and represents that
existing speculative position limits will not materially adversely affect its
ability to manage the Partnership's account given the potential size of the
Partnership's account and the Advisor's and its principals' current accounts and
all proposed accounts for which they have contracted to act as trading manager.
5. TERM. (a) This Agreement shall continue in effect until June 30, 2000.
SBFM may, in its sole discretion, renew this Agreement for additional one-year
periods upon notice to the Advisor not less than 30 days prior to the expiration
of the previous period. At any time during the term of this Agreement, SBFM may
terminate this Agreement at any month-end upon 30 days' notice to the Advisor.
At any time during the term of this Agreement, SBFM may elect to immediately
terminate this Agreement upon 30 days' notice to the Advisor if (i) the Net
Asset Value per Unit shall decline as of the close of business on any day to
$500 or less; (ii) the Net Assets allocated to the Advisor (adjusted for
redemptions, distributions, withdrawals or reallocations, if any) decline by 50%
or more as of the end of a trading day from such Net Assets' previous highest
value; (iii) limited partners owning at least 50% of the outstanding Units shall
vote to require SBFM to terminate this Agreement; (iv) the Advisor fails to
comply with the terms of this Agreement; (v) SBFM, in good faith, reasonably
determines that the performance of the Advisor has been such that SBFM's
fiduciary duties to the Partnership require SBFM to terminate this Agreement; or
(vi) SBFM reasonably believes that the application of speculative position
limits will substantially affect the performance of the Partnership. At any time
during the term of this Agreement, SBFM may elect immediately to terminate this
Agreement if (i) the Advisor merges, consolidates with another entity, sells a
substantial portion of its assets, or becomes bankrupt or insolvent, (ii) (ii)
Xxxxx X. Xxxxxxxxxx Xx. and Xxxx X. Xxxxxxxx die, become incapacitated, leave
the employ of the Advisor, cease to control the Advisor or are otherwise not
managing the trading programs or systems of the Advisor, or (iii) the Advisor's
registration as a commodity trading advisor with the CFTC or its membership in
the NFA or any other regulatory authority, is terminated or suspended. This
Agreement will immediately terminate upon dissolution of the Partnership or upon
cessation of trading prior to dissolution.
(b) The Advisor may terminate this Agreement by giving not less than 30
days' notice to SBFM (i) in the event that the trading policies of the
Partnership as set forth in the Prospectus are changed in such manner that the
Advisor reasonably believes will adversely affect the performance of its trading
strategies; (ii) if liquidations are ordered pursuant to Section 1(f) above;
(iii) after June 30, 2000; (iv) in the event that SBFM or Partnership fails to
comply with the terms of this
-7-
8
Agreement; or (v) if the Advisor makes a material change in its trading strategy
or methodology used for the Partnership and SBFM does not consent to such
change. The Advisor may immediately terminate this Agreement if SBFM's
registration as a commodity pool operator or its membership in the NFA is
terminated or suspended.
(c) Except as otherwise provided in this Agreement, any termination of
this Agreement in accordance with this Paragraph 5 or Paragraph 1(e) shall be
without penalty or liability to any party, except for any fees due to the
Advisor pursuant to Section 3 hereof.
6. INDEMNIFICATION. (a)(i) In any threatened, pending or completed
action, suit, or proceeding to which the Advisor was or is a party or is
threatened to be made a party arising out of or in connection with this
Agreement or the management of the Partnership's assets by the Advisor or the
offering and sale of units in the Partnership, SBFM shall, subject to
subparagraph (a)(iii) of this Paragraph 6, indemnify and hold harmless the
Advisor against any loss, liability, damage, cost, expense (including, without
limitation, attorneys' and accountants' fees), judgments and amounts paid in
settlement actually and reasonably incurred by it in connection with such
action, suit, or proceeding if the Advisor acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Partnership, and provided that its conduct did not constitute negligence,
intentional misconduct, or a breach of its fiduciary obligations to the
Partnership as a commodity trading advisor, unless and only to the extent that
the court or administrative forum in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, the Advisor is fairly and reasonably
entitled to indemnity for such expenses which such court or administrative forum
shall deem proper; and further provided that no indemnification shall be
available from the Partnership if such indemnification is prohibited by Section
16 of the Partnership Agreement. The termination of any action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a
presumption that the Advisor did not act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Partnership.
(ii) To the extent that the Advisor has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subparagraph (i) above, or in defense of any claim, issue or matter therein,
SBFM shall indemnify it against the expenses (including, without limitation,
attorneys' and accountants' fees) actually and reasonably incurred by it in
connection therewith.
(iii) Any indemnification under subparagraph (i) above, unless ordered by
a court or administrative forum, shall
-8-
9
be made by SBFM only as authorized in the specific case and only upon a
determination by independent legal counsel in a written opinion that such
indemnification is proper in the circumstances because the Advisor has met the
applicable standard of conduct set forth in subparagraph (i) above. Such
independent legal counsel shall be selected by SBFM in a timely manner, subject
to the Advisor's approval, which approval shall not be unreasonably withheld.
The Advisor will be deemed to have approved SBFM's selection unless the Advisor
notifies SBFM in writing, received by SBFM within five days of SBFM's
telecopying to the Advisor of the notice of SBFM's selection, that the Advisor
does not approve the selection.
(iv) In the event the Advisor is made a party to any claim, dispute or
litigation or otherwise incurs any loss or expense as a result of, or in
connection with, the Partnership's or SBFM's activities or claimed activities
unrelated to the Advisor, SBFM shall indemnify, defend and hold harmless the
Advisor against any loss, liability, damage, cost or expense (including, without
limitation, attorneys' and accountants' fees) incurred in connection therewith.
(v) As used in this Paragraph 6(a), the terms "Advisor" shall include the
Advisor, its principals, officers, directors, stockholders and employees and the
term "SBFM" shall include the Partnership.
(b)(i) The Advisor agrees to indemnify, defend and hold harmless SBFM,
the Partnership and their affiliates against any loss, liability, damage, cost
or expense (including, without limitation, attorneys' and accountants' fees),
judgments and amounts paid in settlement actually and reasonably incurred by
them (A) as a result of the material breach of any material representations and
warranties made by the Advisor in this Agreement, or (B) as a result of any act
or omission of the Advisor relating to the Partnership if there has been a final
judicial or regulatory determination or, in the event of a settlement of any
action or proceeding with the prior written consent of the Advisor, a written
opinion of an arbitrator pursuant to Paragraph 14 hereof, to the effect that
such acts or omissions violated the terms of this Agreement in any material
respect or involved negligence, bad faith, recklessness or intentional
misconduct on the part of the Advisor (except as otherwise provided in Section
1(g)).
(ii) In the event SBFM, the Partnership or any of their affiliates is
made a party to any claim, dispute or litigation or otherwise incurs any loss or
expense as a result of, or in connection with, the activities or claimed
activities of the Advisor or its principals, officers, directors, shareholder(s)
or employees unrelated to SBFM's or the Partnership's business, the Advisor
shall indemnify, defend and hold harmless SBFM, the Partnership or any of their
affiliates against any loss, liability, damage, cost or expense (including,
-9-
10
without limitation, attorneys' and accountants' fees) incurred in connection
therewith.
(c) In the event that a person entitled to indemnification under this
Paragraph 6 is made a party to an action, suit or proceeding alleging both
matters for which indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such person shall be indemnified only
for that portion of the loss, liability, damage, cost or expense incurred in
such action, suit or proceeding which relates to the matters for which
indemnification can be made.
(d) None of the indemnifications contained in this Paragraph 6 shall be
applicable with respect to default judgments, confessions of judgment or
settlements entered into by the party claiming indemnification without the prior
written consent, which shall not be unreasonably withheld, of the party
obligated to indemnify such party.
(e) The provisions of this Paragraph 6 shall survive the termination of
this Agreement.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) The Advisor represents and warrants that:
(i) All references to the Advisor and its principals in the Prospectus
are accurate in all material respects and as to them the Prospectus does not
contain any untrue statement of a material fact or omit to state a material fact
which is necessary to make the statements therein not misleading, except that
with respect to Table B in the Prospectus, this representation and warranty
extends only to the underlying data made available by the Advisor for the
preparation thereof and not to any hypothetical or pro forma adjustments.
Subject to such exception, all references to the Advisor and its principals in
the Prospectus will, after review and approval of such references by the Advisor
prior to the use of such Prospectus in connection with the offering of the
Partnership's units, be accurate in all material respects.
(ii) The information with respect to the Advisor set forth in the actual
performance tables in the Prospectus is based on all of the customer accounts
managed on a discretionary basis by the Advisor's principals and/or the Advisor
during the period covered by such tables and required to be disclosed therein.
(iii) The Advisor will be acting as a commodity trading advisor with
respect to the Partnership and not as a securities investment adviser and is
duly registered with the CFTC as a commodity trading advisor, is a member of the
NFA, and is in compliance with such other registration and licensing
requirements as shall be necessary to enable it to perform its
-10-
11
obligations hereunder, and agrees to maintain and renew such registrations and
licenses during the term of this Agreement.
(iv) The Advisor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has full power and
authority to enter into this Agreement and to provide the services required of
it hereunder.
(v) The Advisor will not, by acting as a commodity trading advisor to the
Partnership, breach or cause to be breached any undertaking, agreement,
contract, statute, rule or regulation to which it is a party or by which it is
bound which would materially limit or affect the performance of its duties under
this Agreement.
(vi) This Agreement has been duly and validly authorized, executed and
delivered by the Advisor and is a valid and binding agreement enforceable in
accordance with its terms.
(vii) At any time during the term of this Agreement that a prospectus
relating to the Units is required to be delivered in connection with the offer
and sale thereof, the Advisor agrees upon the request of SBFM to provide the
Partnership with such information as shall be necessary so that, as to the
Advisor and its principals, such prospectus is accurate.
(b) SBFM represents and warrants for itself and the Partnership that:
(i) The Prospectus (as from time to time amended or supplemented, which
amendment or supplement is approved by the Advisor as to descriptions of itself
and its actual performance) does not contain any untrue statement of a material
fact or omit to state a material fact which is necessary to make the statements
therein not misleading, except that the foregoing representation does not apply
to any statement or omission concerning the Advisor in the Prospectus, made in
reliance upon, and in conformity with, information furnished to SBFM by or on
behalf of the Advisor expressly for use in the Prospectus (it being understood
that the hypothetical and pro forma adjustments in Table B were not furnished by
the Advisor).
(ii) It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full corporate power
and authority to perform its obligations under this Agreement.
(iii) SBFM and the Partnership have the capacity and authority to enter
into this Agreement on behalf of the Partnership.
(iv) This Agreement has been duly and validly authorized, executed and
delivered on SBFM's and the
-11-
12
Partnership's behalf and is a valid and binding agreement of SBFM and the
Partnership enforceable in accordance with its terms.
(v) SBFM will not, by acting as General Partner to the Partnership and
the Partnership will not, breach or cause to be breached any undertaking,
agreement, contract, statute, rule or regulation to which it is a party or by
which it is bound which would materially limit or affect the performance of its
duties under this Agreement.
(vi) It is registered as a commodity pool operator and is a member of the
NFA, and it will maintain and renew such registration and membership during the
term of this Agreement.
(vii) The Partnership is a limited partnership duly organized and validly
existing under the laws of the State of New York and has full power and
authority to enter into this Agreement and to perform its obligations under this
Agreement.
(c) The parties represent that they are using their best efforts to take
(and will continue to take) any necessary steps to remedy potential problems
that could occur in their respective computer applications as a result of the
change in the year from 1999 to 2000, commonly referred to as Year 2000
problems.
8. COVENANTS OF THE ADVISOR, SBFM AND THE PARTNERSHIP.
(a) The Advisor agrees as follows:
(i) In connection with its activities on behalf of the Partnership, the
Advisor will comply with all applicable rules and regulations of the CFTC and/or
the commodity exchange on which any particular transaction is executed.
(ii) The Advisor will promptly notify SBFM of the commencement of any
material suit, action or proceeding involving it, whether or not any such suit,
action or proceeding also involves SBFM.
(iii) In the placement of orders for the Partnership's account and for
the accounts of any other client, the Advisor will utilize a pre-determined,
systematic, fair and reasonable order entry system, which shall, on an overall
basis, be no less favorable to the Partnership than to any other account managed
by the Advisor. The Advisor acknowledges its obligation to review the
Partnership's positions, prices and equity in the account managed by the Advisor
daily and within two business days to notify, in writing, the broker and SBFM
and the Partnership's brokers of (i) any error committed by the Advisor or its
principals or employees; (ii) any trade which the Advisor believes was not
executed in accordance with its instructions; and (iii) any discrepancy with a
value of $10,000 or more (due to differences in the positions, prices or equity
in the account)
-12-
13
between its records and the information reported on the account's daily and
monthly broker statements.
(iv) The Advisor will demonstrate to SBFM's satisfaction its ability to
bear its responsibilities arising under this Agreement, by causing the
Promissory Note attached hereto as Rider A to be executed.
(b) SBFM agrees for itself and the Partnership that:
(i) SBFM and the Partnership will comply with all applicable laws, rules
and regulations including those of the CFTC and/or the commodity exchange on
which any particular transaction is executed.
(ii) SBFM will promptly notify the Advisor of the commencement of any
material suit, action or proceeding involving it or the Partnership, whether or
not such suit, action or proceeding also involves the Advisor.
9. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof.
10. ASSIGNMENT. This Agreement may not be assigned by any party without
the express written consent of the other parties.
11. AMENDMENT. This Agreement may not be amended except by the written
consent of the parties.
12. NOTICES. All notices, demands or requests required to be made or
delivered under this Agreement shall be in writing and delivered personally, by
facsimile or by registered or certified mail or expedited courier, return
receipt requested, postage prepaid, to the addresses below or to such other
addresses as may be designated by the party entitled to receive the same by
notice similarly given:
If to SBFM:
Xxxxx Xxxxxx Futures Management Inc.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
If to the Advisor:
Beacon Management Corporation (USA)
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx Xx.
-00-
00
00. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
14. ARBITRATION. The parties agree that any dispute or controversy
arising out of or relating to this Agreement or the interpretation thereof,
shall be settled by arbitration in accordance with the rules, then in effect, of
the National Futures Association or, if the National Futures Association shall
refuse jurisdiction, then in accordance with the rules, then in effect, of the
American Arbitration Association; provided, however, that the power of the
arbitrator shall be limited to interpreting this Agreement as written and the
arbitrator shall state in writing his reasons for his award. Judgment upon any
award made by the arbitrator may be entered in any court of competent
jurisdiction.
15. NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries
to this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of
the undersigned as of the day and year first above written.
XXXXX XXXXXX FUTURES
MANAGEMENT INC.
By /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
President and Director
XXXXXXX XXXXX XXXXXX
DIVERSIFIED 2000 FUTURES FUND L. P.
By: Xxxxx Xxxxxx
Futures Management Inc.
(General Partner)
By /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
President and Director
BEACON MANAGEMENT CORPORATION (USA)
By /s/ Xxxxx X. Xxxxxxxxxx Xx.
----------------------------------
Name: Xxxxx X. Xxxxxxxxxx Xx.
Title: Chairman
-14-
15
RIDER A
PROMISSORY NOTE
Princeton, New Jersey
Date: August 24, 1999
FOR VALUE RECEIVED, the undersigned, Xxxxx X. Xxxxxxxxxx Xx. and Xxxx X.
Xxxxxxxx, each promise to pay on demand, to the order of XXXXXXX XXXXX BARNEY
DIVERSIFIED 2000 FUTURES FUND L.P. (the "Fund") or Xxxxx Xxxxxx Futures
Management Inc. ("SBFM") as the Fund or SBFM shall elect, the sum of Two Hundred
Thousand Dollars ($200,000). This note shall be callable by the Fund or SBFM
only if and to the extent that Beacon Management Corporation (USA) ("Beacon"), a
Delaware corporation, does not have sufficient assets to fulfill Beacon's
obligations associated with the Management Agreement dated August 24, 1999 among
SBFM, the Fund and Beacon.
/s/ Xxxxx X. Xxxxxxxxxx Xx. /s/ Xxxx X. Xxxxxxxx
--------------------------- -----------------------
Xxxxx X. Xxxxxxxxxx Xx. Xxxx X. Xxxxxxxx
-15-
