EXHIBIT 1.1
SELLING AGREEMENT
S&P MANAGED FUTURES INDEX FUND, LP
(A DELAWARE LIMITED PARTNERSHIP)
$100,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
REFCOFUND HOLDINGS, LLC
GENERAL PARTNER
DATED __________, 2003
SELLING AGREEMENT
SELLING AGREEMENT
S&P MANAGED FUTURES INDEX FUND, LP
TABLE OF CONTENTS
PAGE
Section 1. Representations and Warranties of the General Partner 1
Section 2. Offering and Sale of ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇. Compliance with Rule 2810 and General Laws 8
Section 4. Blue Sky Survey. 11
Section 5. Covenants of the General Partner 11
Section 6. Payment of Expenses and Fees. 12
Section 7. Conditions of Closing. 13
Section 8. Indemnification, Contribution and Exculpation 17
Section 9. Status of Parties. 19
Section 10. Representations, Warranties and Agreements to Survive Delivery. 19
Section 11. Termination. 19
Section 12. Survival. 19
Section 13. Notices and Authority to Act. 19
Section 14. Parties; Assignment. 20
Section 15. Governing Law. 20
Section 16. Consent to Jurisdiction. 20
Section 17. Counterparts. 20
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S&P MANAGED FUTURES INDEX FUND, LP
(A DELAWARE LIMITED PARTNERSHIP)
$100,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
INITIALLY $1,000 PER UNIT;
THEREAFTER PREVAILING NET ASSET VALUE PER UNIT
SELLING AGREEMENT
______, 2003
Refco Securities, LLC
One World Financial Center
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
RefcoFund Holdings, LLC, a Delaware limited liability company (the "General
Partner"), has caused the formation, on May 13, 2003, of a limited partnership
pursuant to the Delaware Revised Uniform Limited Partnership Act (the "Delaware
Act") under the name S&P Managed Futures Index Fund, LP (the "Partnership"),
designed to seek returns that substantially track the Standard & Poor's Managed
Futures Index before expenses of the Partnership. Refco Securities, LLC (the
"Selling Agent") shall be the principal Selling Agent for the Partnership. Other
selling agents (the "Additional Selling Agents") may be selected by the General
Partner, with the consent of the Selling Agent, in accordance with the terms of
this Agreement and the Additional Selling Agent Agreement, attached as Exhibit A
hereto. This
Selling Agreement shall be referred to herein as the "Agreement".
The Partnership desires to raise capital as herein provided by the sale of
units of limited partnership interest in the Partnership (the "Units") which
will initially be issued in two classes (Class A and Class B), the purchasers of
which will become limited partners ("Limited Partners") of the Partnership, and
the Selling Agent hereby agrees to use its best efforts to market the Units
pursuant to the terms hereof. Accordingly, the Selling Agent, the General
Partner and the Partnership, intending to be legally bound, hereby agree as
follows.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE GENERAL PARTNER.
The General Partner represents and warrants to the Selling Agent as follows
-- such representations and warranties to be restated and reaffirmed as of each
Closing Time (as defined in Section 2(f) hereof):
(a) The Partnership has provided to the Selling Agent, and filed with
the Securities and Exchange Commission (the "SEC"), a registration statement on
Form S-1 (No. 333-107357), as initially filed with the SEC on July 25, 2003,
Amendment No. 1 as filed on ______, 2003, and any amendment or amendments
thereto, for the registration of the Units under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed one copy thereof with the National
Futures Association (the "NFA") in accordance with NFA Compliance Rule 2-13, the
Commodity Exchange Act, as amended (the "Commodity Act") and the rules and
regulations thereunder (the "CFTC Regulations"). The registration statement as
amended and delivered to all parties hereto at the time it becomes effective
together with any registration statement filed to register additional Units
under the 1933 Act pursuant to Rule 462(b) and the prospectus included therein
are hereinafter called the "Registration Statement" and the "Prospectus,"
respectively, except that: (i) if the Partnership files a subsequent
post-effective amendment to the registration statement, then the term
"Registration Statement" shall, from and after the declaration of the
effectiveness of such post-effective amendment, refer to the registration
statement as amended by such post-effective amendment thereto; and (ii) the term
"Prospectus" shall refer to the prospectus as most recently issued by the
Partnership pursuant to the rules and regulations of the SEC promulgated under
the 1933 Act (the "SEC Regulations"), together with any current supplement or
supplements thereto.
Except as required by law, the Partnership will not file any amendment to
the Registration Statement or any amendment and/or supplement to the Prospectus
that shall be reasonably objected to by the Selling Agent. The General Partner
agrees to suspend the offering immediately and inform the Selling Agent if the
General Partner has any reason to believe that it may be necessary or advisable
to amend the Registration Statement or supplement the Prospectus.
The Partnership will not utilize any promotional brochure or other
marketing materials, including "Tombstone Ads" or other communications
qualifying under Rule 134 of the SEC Regulations (collectively, "Promotional
Material"), that are reasonably objected to by the Selling Agent. No reference
to the Selling Agent may be made in the Registration Statement, Prospectus or in
any Promotional Material that has not been approved by the Selling Agent, which
approval the Selling Agent may withhold in its sole and absolute discretion. The
Partnership will cooperate with the Selling Agent in causing to be filed all
Promotional Material with the National Association of Securities Dealers, Inc.
(the "NASD"), and will not use any such Promotional Material unless the NASD has
stated in writing that it appears to comply with all applicable standards or the
requirement for such a statement has been waived by the Selling Agent. The
Partnership will file, or cause to be filed, all Promotional Material in state
jurisdictions as requested or required by law, and will not use any such
Promotional Material in any state which has expressed any objection thereto
(except pursuant to agreed-upon modifications to the Promotional Material).
All representations, warranties and indemnities set forth herein will be
deemed to be restated in their entirety as of each Closing Time (as defined in
Section 2(f) hereof).
(b) The certificate of limited partnership (the "Certificate of Limited
Partnership") pursuant to which the Partnership has been formed and the Limited
Partnership Agreement of the Partnership (the "Limited Partnership Agreement")
provide for the subscription for and sale of
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the Units of the Partnership; all action required to be taken by the General
Partner and the Partnership as a condition to the sale of the Units to qualified
subscribers therefor has been, or prior to the Initial Closing Time (as defined
in Section 2(f) hereof) will have been, taken; and, upon payment of the
consideration therefore specified in all accepted Subscription Agreements and
Powers of Attorney, the form of which is set forth as Appendix B to the
Prospectus, the Units will constitute valid units of limited partnership
interest in the Partnership as to which the subscribers thereto will have
limited personal liability to the extent provided in the Delaware Act and will
be Limited Partners of the Partnership entitled to all the applicable benefits
under the Limited Partnership Agreement and the Delaware Act.
(c) The Partnership is duly organized pursuant to the Delaware Act and
is validly existing and in good standing under the laws of the State of Delaware
with full power and authority to engage in the business to be conducted by it,
as described in the Registration Statement and the Prospectus. The Partnership
is in good standing and qualified to do business in each jurisdiction in which
such qualification is necessary in order to protect the limited liability of
Limited Partners and in which the nature or conduct of its business as described
in the Registration Statement and Prospectus requires such qualification and the
failure to be so qualified would have a material adverse effect ("Material
Adverse Effect") on the Partnership.
(d) The General Partner is, and will continue to be so long as it is the
general partner of the Partnership, a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is in good standing and qualified to do business in each jurisdiction in
which the nature or conduct of its business as described in the Registration
Statement and Prospectus requires such qualification and the failure to be so
qualified would have a Material Adverse Effect on the Partnership or the General
Partner's ability to perform its obligations hereunder.
(e) The Partnership and the General Partner each have full limited
partnership and limited liability company power and authority, as the case may
be, under applicable law to perform its respective obligations under the Limited
Partnership Agreement and this Agreement, and to conduct its business as
described in the Registration Statement and Prospectus.
(f) When the Registration Statement becomes effective under the 1933 Act
and at all times subsequent thereto up to and including each Closing Time, the
Registration Statement, Prospectus and Promotional Material will comply in all
material respects with the requirements of the 1933 Act, the SEC Regulations,
the Commodity Act and the CFTC Regulations and will be accurate and complete in
all material respects. Each of the Registration Statement, Prospectus and
Promotional Material as of the Initial Closing Time and each Closing Time
thereafter will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which such
statements are made, not misleading; provided however, that this representation
and warranty does not apply to statements made or omitted in reliance upon, and
in conformity with, written information furnished to the General Partner with
respect to the Selling Agent by or on behalf of the Selling Agent, expressly for
use in such Registration Statement, Prospectus or Promotional Material.
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(g) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the financial condition, business or prospects of the General
Partner or the Partnership of which the Selling Agent has not been informed by
the General Partner.
(h) Each of the Limited Partnership Agreement and this Agreement has
been duly and validly authorized, executed and delivered by the General Partner
(on behalf of the Partnership with respect to this Agreement) and by the General
Partner, and each constitutes a valid, binding and enforceable agreement of the
Partnership and the General Partner in accordance with its terms.
(i) The execution and delivery of the Limited Partnership Agreement and
this Agreement, the incurrence of the obligations set forth therein and herein
and the consummation of the transactions contemplated therein, herein and in the
Prospectus: (i) will not constitute a breach of, or default under, any
instrument or agreement by which the General Partner or the Partnership, as the
case may be, or any of their property or assets is bound, or any statute, order,
rule or regulation applicable to the General Partner or the Partnership, as the
case may be, of any court or any governmental body or administrative agency
having jurisdiction over the General Partner or the Partnership, as the case may
be, except as would not be reasonably likely to have a Material Adverse Effect
on the Partnership or the General Partner; (ii) will not result in the creation
or imposition of any lien, charge or encumbrance on any property or assets of
the General Partner or the Partnership, except as would not be reasonably likely
to have a Material Adverse Effect on the Partnership or the General Partner; and
(iii) will not give any party a right to terminate its obligations or result in
the acceleration of any obligations under any material instrument or agreement
by which the General Partner or the Partnership, as the case may be, or any of
their respective property or assets is bound, except as would not be reasonably
likely to have a Material Adverse Effect on the Partnership or the General
Partner.
(j) Except as otherwise disclosed in the Registration Statement or the
Prospectus, there is not pending nor, to the best of the General Partner's
knowledge, threatened any action, suit or proceeding before or by any court or
other governmental body to which the General Partner or the Partnership is a
party, or to which any of the assets of the General Partner or the Partnership
is subject, which would reasonably be expected to have a Material Adverse Effect
on the financial condition, business or prospects of the General Partner or the
Partnership or that is required to be disclosed in the Registration Statement or
Prospectus pursuant to the Commodity Act, the 1933 Act, the CFTC Regulations or
the SEC Regulations.
(k) No stop order relating to the Registration Statement has been issued
by any federal or state securities commission, and no proceedings therefor are
pending or, to the best knowledge of the General Partner, threatened.
(l) The General Partner and each of its principals and employees have,
and will continue to have so long as it is the general partner of the
Partnership, all federal and state governmental, regulatory, self-regulatory and
commodity exchange approvals and licenses, and the General Partner (either on
behalf of itself or its principals and employees) has effected all filings and
registrations with federal and state governmental, regulatory or self-regulatory
agencies required to conduct its business and to act as described in the
Registration Statement
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and Prospectus or required to perform its or their obligations as described
under the Limited Partnership Agreement except as would not be reasonably likely
to have a Material Adverse Effect on the Partnership or the General Partner
(including, without limitation: (i) registration as a commodity pool operator
under the Commodity Act and (ii) membership in the NFA as a "commodity pool
operator"); and this Agreement and the performance of such obligations will not
contravene or result in a breach of: (A) any provision of the General Partner's
organizational documents; or (B) any agreement, instrument, order, law or
regulation binding upon the General Partner or any of its employees or
principals, except as would not be reasonably likely to have a Material Adverse
Effect on the Partnership or the General Partner.
(m) The Partnership does not require any federal or state governmental,
regulatory, self-regulatory or commodity exchange approvals or licenses, and the
Partnership need not effect any filings or registrations with any federal or
state governmental agencies in order to conduct its business and to act as
contemplated by the Registration Statement and Prospectus and to issue and sell
the Units (other than filings under the 1933 Act, the Commodity Act and state
securities laws relating solely to the offering of the Units).
(n) The General Partner has the financial resources necessary to meet
its obligations to the Selling Agent hereunder.
(o) The actual performance of the other funds managed by the General
Partner is disclosed in the Prospectus as required by the rules under the
Commodity Act and of the NFA; all of the information regarding the actual
performance of other funds managed by the General Partner set forth in the
Prospectus is complete and accurate in all material respects and, except as
disclosed in the Prospectus, is in accordance and compliance with the disclosure
requirements under the Commodity Act and the CFTC Regulations as well as of the
NFA.
(p) The accountants who certified the financial statements of the
General Partner and of the Partnership included in the Registration Statement
are, with respect to the General Partner and the Partnership, independent public
accountants as required by the 1933 Act and the SEC Regulations. These financial
statements fairly present the financial condition of the General Partner and the
Partnership, as the case may be, as of the dates shown and are presented in
accordance with generally accepted accounting principles as currently in effect
in the United States.
SECTION 2. OFFERING AND SALE OF UNITS.
(a) The Selling Agent is hereby appointed as the principal Selling Agent
for the Partnership (although as described herein it is contemplated that
certain Additional Selling Agents may also market Units) during the term herein
specified for the purpose of finding acceptable subscribers for the Units
through a public offering of such Units. Subject to the performance by the
General Partner of its obligations hereunder and to the completeness and
accuracy in all material respects of the representations and warranties of the
General Partner contained herein, the Selling Agent hereby accepts such agency
and agrees on the terms and conditions herein set forth to use its best efforts
to find acceptable subscribers for the Units, provided that there is no minimum
number of Units for which the Selling Agent agrees to find subscribers.
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It is understood that the Selling Agent's agreement to use its best efforts
to find acceptable subscribers for the Units shall not prevent it from acting as
a selling agent or underwriter for the securities of other issuers, including
affiliates, which may be offered or sold during the term hereof. The agency of
the Selling Agent hereunder shall continue until the expiration or termination
of this Agreement as provided herein, including such additional period as may be
required to effect a final closing of the sale of the Units subscribed for
through the Selling Agent through the date of such termination. All
subscriptions are subject to acceptance or rejection, in whole or in part in the
General Partner's sole discretion, and no compensation shall be due hereunder in
respect of rejected subscriptions.
The Selling Agent acknowledges that the Units are divided into separate
classes each of which is open for investment only by certain subscribers as
described in the Prospectus. The Class B units may be offered only by qualified
broker-dealers that offer a wrap fee program and fee-only registered investment
advisers.
Each subscriber shall be required to submit a minimum subscription of at
least $10,000 ($3,000 for individual retirement accounts; $2,500 for existing
Limited Partners making additional investments), subject to the higher minimum
requirements imposed by certain state regulators as set forth in Exhibit B to
the Prospectus. Units shall be sold in fractions calculated to three decimal
places.
The General Partner agrees to pay, from its own funds, to the Selling Agent
an upfront selling commission of $30 per Class A Unit on each Class A Unit sold
by the Selling Agent at the Initial Closing (3% of the Net Asset Value per Class
A Unit on each Class A Unit sold by the Selling Agent at each Additional
Closing) each as defined in Section 2(f) hereof.
The Selling Agent agrees that it will promptly pass on to its Registered
Representatives that portion of the upfront selling commissions received from
the General Partner to which such Registered Representatives are entitled
pursuant to the Selling Agent's standard compensation procedures, as determined
by the Selling Agent from time to time.
(b) For ongoing services rendered to Limited Partners, the General
Partner shall pay the Selling Agent, provided the Selling Agent is and remains
registered with the CFTC as a "futures commission merchant" or "introducing
broker" and a member in good standing of the NFA in such capacity, ongoing
servicing fees in an amount equal to 0.167% (a 2% annual rate) of the month-end
Net Asset Value of all Class A Units sold by the Selling Agent remaining
outstanding as of the end of each month (including Class A Units redeemed as of
the end of such month). Such ongoing servicing fees shall begin to accrue with
respect to each Class A Unit only after the end of the twelfth full month after
the closing on the sale of such Class A Unit and shall continue only for as long
as such Class A Unit remains outstanding. The General Partner shall pay the
ongoing servicing fees due to the Selling Agent within fifteen (15) business
days of the end of each month.
Notwithstanding the foregoing, ongoing servicing fees shall be payable to
the Selling Agent only in respect of Class A Units sold by Registered
Representatives who are themselves registered with the CFTC and who have passed
either the Series 3 National Commodity Futures Examination or the Series 31
Futures Managed Funds Examination ("Qualified Registered
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Representatives"), and are contingent upon the provision by such Qualified
Registered Representatives of ongoing services in connection with the Class A
Units sold by such Qualified Registered Representatives, including: (i)
inquiring of the General Partner from time to time, at the request of a limited
partner, as to the Net Asset Value of a Class A Unit; (ii) inquiring of the
General Partner from time to time, at the request of a limited partner,
regarding the futures markets and the Partnership; (iii) assisting, at the
request of the General Partner, in the redemption of Class A Units; and (iv)
providing such other services to the limited partners as the General Partner
may, from time to time, reasonably request. The Selling Agent agrees to adopt
procedures to monitor the adequacy of the ongoing services provided by its
Qualified Registered Representatives.
The Selling Agent agrees to pass ongoing servicing fees on to its Qualified
Registered Representatives on an ongoing basis, pursuant to the Selling Agent's
standard compensation procedures, as determined by the Selling Agent from time
to time.
In the case of Class A Units with respect to which there is no Qualified
Registered Representative the General Partner will pay the Selling Agent
installment selling commissions at the same rate as in the case of ongoing
servicing fees, provided that, pursuant to applicable NASD policy, the total of
such installment selling commissions plus the upfront selling commission do not
exceed 10% of the initial subscription price of such Class A Units. The Selling
Agent agrees to adopt procedures to monitor the payment of upfront selling
commissions and installment selling commissions so as to ensure that they are in
compliance with NASD rules and policies.
The Selling Agent agrees to pass installment selling commissions on to its
Registered Representatives on an ongoing basis, pursuant to the Selling Agent's
standard compensation procedures, as determined by the Selling Agent from time
to time.
(c) The General Partner, with the consent of the Selling Agent, may
select Additional Selling Agents which are either: (i) broker-dealers who are
members in good standing of the NASD or (ii) foreign banks, brokers, dealers or
institutions ineligible for membership in a registered securities association
(within the meaning of Rule 2420 of the NASD's Conduct Rules) which agree that
they will make no sales of Units within the United States, its territories or
possessions or areas subject to its jurisdiction. Each such Additional Selling
Agent shall execute and deliver to the General Partner an Additional Selling
Agent Agreement in substantially the same form set forth in Exhibit A to this
Agreement.
(d) The General Partner will pay Additional Selling Agents upfront
selling commissions, ongoing servicing fees and installment selling commissions
as set forth above, or in such lesser amounts to which the General Partner and
each such Additional Selling Agents may agree.
(e) Ongoing servicing fees and installment selling commissions will be
paid at the end of each month on the basis of the Units outstanding during each
month during such month. Net Assets, for purposes of determining ongoing
servicing fees and installment selling commissions shall be calculated after
reduction of all expenses of the Partnership, including accrued and unpaid
expenses as set forth in the Partnership Agreement.
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A Selling Agent otherwise entitled to ongoing servicing fees will not be
entitled to receipt thereof for any month during any portion of which the
Registered Representative who is receiving compensation based upon such ongoing
servicing fees is at any time not properly registered with the CFTC or does not
provide the ongoing services described above.
(f) At the end of the Initial Offering Period specified on the cover of
the Prospectus, the General Partner shall notify the Selling Agent of the
initial closing of the Partnership (the "Initial Closing" and the date of such
closing, the "Initial Closing Time"), as well as of the aggregate number of
Units for which the General Partner has received acceptable subscriptions.
Following the Initial Closing Time, Units may continue to be sold as of the
first day of each calendar month (each such sale, an "Additional Closing" and
each such date a "Closing Time"), in the discretion of the Partnership.
(g) The Partnership shall not in any respect be responsible for any
upfront selling commissions, ongoing servicing fees or installment selling
commissions described herein. All such commissions are to be solely the
responsibility of the General Partner.
(h) Notwithstanding anything in this Section 2 to the contrary, the
Selling Agent shall not be entitled to any compensation hereunder in respect of
a sale to any subscriber if the General Partner determines that another
authorized selling agent of the Partnership is primarily responsible for or
should otherwise be credited with such sale. In making this determination, the
General Partner shall endeavor to act fairly. Any dispute regarding compensation
shall be conclusively resolved by the General Partner.
SECTION 3. COMPLIANCE WITH RULE 2810 AND GENERAL LAWS.
(a) The Selling Agent will use its best efforts to find eligible persons
to purchase the Units on the terms stated herein and in the Registration
Statement and Prospectus. It is understood that the Selling Agent has no
commitment with regard to the sale of the Units other than to use its best
efforts. In connection with the offer, sale and distribution of the Units, the
Selling Agent represents and warrants that it will comply fully with all
applicable laws and regulations, and the rules, policy statements and
interpretations of the NASD, the SEC, the CFTC, state securities administrators
and any other regulatory or self-regulatory body. In particular, and not by way
of limitation, the Selling Agent represents and warrants that it is familiar
with Rule 2810 of the NASD Conduct Rules and that it will comply fully with all
the terms thereof in connection with the offering and sale of the Units. The
Selling Agent will not execute any sales of Units from a discretionary account
over which it has control without prior written approval of the customer in
whose name such discretionary account is maintained.
(b) The Selling Agent agrees not to recommend the purchase of Units to
any subscriber unless the Selling Agent shall have reasonable grounds to
believe, on the basis of information obtained from the subscriber concerning,
among other things, the subscriber's investment objectives, other investments,
financial situation and needs, that: (i) (to the extent relevant for the
purposes of Rule 2810 and giving due consideration to the fact that the
Partnership is in no respects a "tax shelter") the subscriber is or will be in a
financial position appropriate to enable the subscriber to realize to a
significant extent the benefits of the Partnership, including the tax benefits
(if any) described in the Prospectus; (ii) the subscriber has
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a fair market net worth sufficient to sustain the risks inherent in
participating in the Partnership; (iii) the subscriber qualifies as an
acceptable subscriber on the basis set forth in the Prospectus, the Subscription
Agreement and Power of Attorney; (iv) acceptance of the subscriber's
subscription will not otherwise breach any laws, rules and regulations designed
to avoid money laundering applicable to either the Selling Agent, the General
Partner or the Partnership; and (v) the Units are otherwise a suitable
investment for the subscriber. The Selling Agent agrees to maintain such records
as are required by the applicable rules of the NASD and the state securities
commissions for purposes of determining investor suitability. In connection with
making the foregoing representations and warranties, the Selling Agent further
represents and warrants that it has, among other things, examined the Prospectus
including, without limitation, the sections identified below and has obtained
such additional information from the General Partner regarding the information
set forth thereunder as the Selling Agent has deemed necessary or appropriate to
determine whether the Prospectus adequately and accurately discloses all
material facts relating to an investment in the Partnership and provides an
adequate basis to subscribers for evaluating an investment in the Units:
"The Risks You Face"
"Investment Factors"
"Performance Information"
"The General Partner"
"The Sub-Investment Manager"
"Investment Program"
"Use of Proceeds"
"Charges"
"Redemptions; Net Asset Value"
"Conflicts of Interest"
"The Fund's Limited Partnership Agreement"
"Federal Income Tax Aspects"
"Pro Forma Aggregate Historical Returns of Index Constituents"
"The Futures and Forward Markets"
In connection with making the representations and warranties set forth in
this paragraph, the Selling Agent has not relied on inquiries made by or on
behalf of any other parties.
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The Selling Agent agrees to inform all prospective purchasers of Units of
all pertinent facts relating to the liquidity and marketability of the Units as
set forth in the Prospectus.
(c) All payments for subscriptions may be made by subscriber check
payable to "S&P Managed Futures Index Fund, LP" or wire transfer (for deposit
during the Initial Closing in the Partnership's escrow account maintained at
Fifth Third Bank, Cincinnati, Ohio, and following the Initial Closing for
deposit in the Partnership's bank account maintained at ___________) and
submitted, along with a completed Subscription Agreement and Power of Attorney,
to the Selling Agent. Such payments will be transmitted by Noon,
New York time,
on the business day (in the case of foreign dealers, as soon as practicable)
following receipt thereof in accordance with the procedures set forth in the
Prospectus and the Subscription Agreement and Power of Attorney. Alternatively,
payments for subscriptions may be made by wire transfer of funds pursuant to the
wire transfer instructions set forth in the Subscription Agreement.
(d) As an alternative to submitting subscription checks or making a wire
transfer, a subscriber may instead authorize the Selling Agent to debit the
subscriber's customer securities account maintained with the Selling Agent, as
may be permitted by the Selling Agent. Subscribers who do so must have their
subscription payments in their accounts on the date their subscription is
accepted -- subscribers to be notified of such date by the Selling Agent.
Settlement of the payment for subscriptions will occur not later than three (3)
business days following notification by the General Partner to the Selling Agent
of the acceptance of a particular subscription and not later than the
termination of the offering of the Units. On each settlement date, subscribers'
customer securities accounts will be debited by the Selling Agent in the amount
of their subscriptions. The amount of the subscription payments so debited will
be transmitted by such Selling Agent directly to the Partnership's escrow
account (prior to the Initial Closing) and to the Partnership's bank account
(following the Initial Closing) in the form of a Selling Agent check or wire
transfer made payable to "S&P Managed Futures Index Fund, LP."
The Selling Agent and the General Partner may make such other arrangements
regarding the transmission of subscriptions as they may deem convenient or
appropriate; provided that any such arrangement must comply in all relevant
respects with SEC Regulations 10b-9 and 15c2-4.
(e) The Selling Agent represents and warrants that it will comply with
all applicable laws, regulations and NASD rules, policy statements and
interpretations in distributing the Units.
(f) The Selling Agent represents, warrants and covenants to the General
Partner and the Partnership that it and all of its personnel involved in the
activities contemplated hereunder have all governmental, regulatory and
self-regulatory registrations, approvals, memberships and licenses required to
perform its obligations under this Agreement and to receive compensation
therefore (including but not limited to registration as a broker-dealer with the
SEC, membership in the NASD, registration with the relevant regulatory authority
in each state in which the Selling Agent will solicit subscribers, registration
with the CFTC as a futures commission merchant or introducing broker and
membership in the NFA) and that it and such personnel will maintain all such
registrations, approvals, memberships and licenses during the term of this
Agreement and for such time as the Selling Agent and such personnel shall
receive compensation hereunder.
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(g) The Selling Agent represents, warrants and covenants that it: (i)
maintains anti-money laundering policies and procedures that comply with the
Bank Secrecy Act of 1970, as amended, and applicable federal anti-money
laundering regulations, including policies and procedures to verify the identity
of prospective subscribers ("AML Laws, Regulations and Policies"); (ii) complies
with AML Laws, Regulations and Policies; (iii) will promptly deliver to the
General Partner notice of any AML Laws, Regulations and Policies violation,
suspicious activity, suspicious activity investigation or filed Suspicious
Activity Report that relates to any prospective subscriber for Units; and (iv)
will cooperate with the General Partner and deliver information reasonably
requested by the General Partner concerning subscribers that purchased Units
sold by the Selling Agent necessary for the General Partner or the Partnership
to comply with AML Laws, Regulations and Policies.
SECTION 4. BLUE SKY SURVEY.
The General Partner agrees to cause Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel
to the General Partner, to prepare and deliver to the Selling Agent a Blue Sky
Survey which shall set forth the United States jurisdictions in which the Units
may be offered and sold. The General Partner agrees to use its best efforts to
qualify the Units under the securities or Blue Sky laws of the various state
jurisdictions listed in such Blue Sky Survey, and to maintain such qualification
during the term of the offering, provided that the General Partner reserves the
right to withdraw application for the Units' registration. It is understood and
agreed that the Selling Agent may rely, in connection with the offering and sale
of Units in any United States jurisdiction, on advice given by Mayer, Brown,
▇▇▇▇ & Maw LLP as to the legality of the offer or sale of the Units in such
jurisdiction.
SECTION 5. COVENANTS OF THE GENERAL PARTNER.
(a) The General Partner will not file any amendment to the Registration
Statement without giving the Selling Agent a reasonable period of time to review
such amendment prior to filing or to which the Selling Agent reasonably objects,
unless advised by counsel that doing so is required by law. The General Partner
will notify the Selling Agent promptly (i) when any amendment to the
Registration Statement shall have become effective or any supplement (not
including any monthly report) to the Prospectus is filed, (ii) of the receipt of
any further comments from the SEC, CFTC, NFA or any other federal or state
regulatory or self-regulatory body with respect to the Registration Statement,
(iii) of any request by the SEC, CFTC, NFA or any other federal or state
regulatory or self-regulatory body for any further amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information relating thereto, (iv) of any material criminal, civil or
administrative proceedings against or involving the General Partner or the
Partnership, (v) of the issuance by the SEC, CFTC, NFA or any other federal or
state regulatory or self-regulatory body of any order suspending the
effectiveness of the Registration Statement under the Securities Act, the
registration or NFA membership of the General Partner as a "commodity pool
operator," or the registration of the Units under the Blue Sky or securities
laws of any state or other jurisdiction or any order or decree enjoining the
offering or the use of the then current Prospectus or any Promotional Material
or of the institution, or notice of the intended institution, of any action or
proceeding for that purpose, or (vi) of any threatened action of the type
referred to in clauses (iii) through (v) of which the General Partner has been
notified. In the event any order of the type
11
referred to in clause (v) is issued, the General Partner agrees to use best
efforts to obtain a lifting or rescinding of such order at the earliest feasible
date.
(b) The General Partner will deliver to the Selling Agent as many
conformed copies of the Registration Statement as originally filed and each
amendment thereto as the Selling Agent may reasonably request.
(c) The General Partner will deliver to the Selling Agent as promptly as
practicable from time to time during the period when the Prospectus is required
to be delivered under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) and of the Promotional Material as the Selling Agent
may reasonably request for the purposes contemplated by the 1933 Act or the SEC
Regulations.
(d) The General Partner will deliver to the Selling Agent: (i) copies of
all "Blue Sky" and other state securities law clearances obtained by the
Partnership and (ii) copies of all monthly and annual reports, and of any other
communications, sent to the Limited Partners.
(e) During the period when the Prospectus is required to be delivered
pursuant to the 1933 Act, the General Partner and the Partnership will comply
with all requirements imposed upon them by the 1933 Act, the SEC Regulations,
the Commodity Act and the CFTC Regulations, as from time to time in force, so
far as necessary to permit the continuance of sales of the Units during such
period in accordance with the provisions hereof and as set forth in the
Prospectus.
(f) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of the General Partner or the Selling Agent, to amend or
supplement the Prospectus in order (i) to make the Prospectus not materially
misleading in the light of the circumstances existing at the time it is
delivered to a subscriber, or (ii) to conform with applicable CFTC or SEC
Regulations, the General Partner shall promptly prepare and file such
amendment(s) of or supplement(s) to the Prospective effecting the necessary
changes, and furnish to the Selling Agent, at the expense of the General
Partner, a reasonable number of copies of such amendment(s), or supplement(s).
Upon receipt by the Selling Agent of notice of any such event or any notice
pursuant to Section 5(a) above, the Selling Agent shall, at the request of the
General Partner, immediately discontinue the offering of Units until the filing
of the applicable amendment or supplement or lifting or rescinding of the
applicable order, as the case may be. No such amendment or supplement shall be
filed or used without the approval of the Selling Agent, which shall not be
unreasonably withheld, delayed or conditioned.
SECTION 6. PAYMENT OF EXPENSES AND FEES.
The General Partner will pay all expenses incident to the performance of
the obligations of the General Partner and the Partnership hereunder, including:
(i) the printing and delivery to the Selling Agent in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto, of
the Prospectus and any supplements or amendments thereto, and of any Promotional
Material; (ii) the reproduction of this Agreement and the printing and filing of
the Registration Statement and the Prospectus (and, in certain cases, the
exhibits thereto) with the SEC and NFA; (iii) the filing fees payable to the SEC
and the NASD; (iv) the qualification of the
12
Units under the securities or "Blue Sky" laws in the various jurisdictions,
including filing fees and the fees and disbursements of the General Partner's
counsel incurred in connection therewith; and (v) the services of Mayer, Brown,
▇▇▇▇ & Maw LLP and accountants for the General Partner and the Partnership.
The General Partner and the Selling Agent are each aware of the limitations
imposed by Rule 2810 of the NASD Conduct Rules on the aggregate compensation
which may be received by the Selling Agent in connection with the offering and
sale of the Units. The Selling Agent will in no event accept any payments from
the General Partner which, when added to the upfront selling commissions (not
including ongoing servicing fees paid with respect to Qualified Registered
Representatives) which the Selling Agent receives on each sale of a Class A Unit
by the Selling Agent, would exceed 10% of the gross proceeds of the Class A
Units sold to the public by the Selling Agent.
SECTION 7. CONDITIONS OF CLOSING.
The sale of the Units is subject to the accuracy of the representations and
warranties of the parties hereto, to the performance by such parties of their
respective obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective and at each
Closing Time no order suspending the effectiveness thereof shall have been
issued under the 1933 Act or proceeding therefor initiated or threatened by the
SEC, and the NFA shall have accepted the Prospectus as a Disclosure Document
pursuant to CFTC Regulations and NFA Rules without a finding of further
deficiencies.
(b) At the Initial Closing Time, Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel
to the General Partner, shall deliver its opinion, in form and substance
satisfactory to the parties here to, to the effect that:
(i) The Partnership is duly organized pursuant to the Delaware
Act and is validly existing and in good standing under the laws of the State of
Delaware with full power and authority to engage in the business to be conducted
by it, as described in the Registration Statement and the Prospectus. The
Partnership is in good standing and qualified to do business in each
jurisdiction in which such qualification is necessary in order to protect the
limited liability of Limited Partners and in which the nature or conduct of its
business as described in the Registration Statement and Prospectus requires such
qualification and the failure to be so qualified would have a Material Adverse
Effect on the Partnership.
(ii) The General Partner is duly organized, validly existing and
in good standing as a limited liability company under the laws of the State of
Delaware and is in good standing and qualified to do business in each other
jurisdiction in which the failure to so qualify would have a Material Adverse
Effect on the Partnership. The General Partner has full power and authority to
perform its obligations as described in the Registration Statement, the
Prospectus and herein, and all action required to be taken by the General
Partner and the Partnership as a condition to the subscription for and sale of
the Units to qualified subscribers therefore has been taken.
13
(iii) The General Partner (including the General Partner's
principals) and the Partnership each has all federal and state governmental and
all regulatory and self-regulatory approvals and licenses, and has received or
made all filings and registrations with federal and state governmental and all
regulatory and self-regulatory agencies necessary in order for the General
Partner and the Partnership, respectively, to conduct their respective
businesses as described in the Registration Statement and Prospectus, and, to
the best of their knowledge, none of such approvals, licenses or registrations
have been rescinded or revoked.
(iv) This Agreement has been duly authorized, executed and
delivered by or on behalf of the General Partner and the Partnership, and
assuming that such agreement is binding on the other parties hereto, this
Agreement constitutes a valid, binding and enforceable agreement of the General
Partner and the Partnership, in each case in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium or similar laws at the
time in effect affecting the enforceability generally of rights of creditors and
except as enforceability of indemnification provisions may be limited by
applicable law and the enforcement of any specific terms or remedies may be
unavailable.
(v) The execution and delivery of this Agreement and the Limited
Partnership Agreement, and the incurrence of the obligations herein, therein and
in the Prospectus set forth and the consummation of the transactions
contemplated herein, therein and in the Prospectus will not be in contravention
of any of the provisions of the General Partner's organizational documents and,
to the best of their knowledge, will not constitute a breach of, or default
under, any instrument by which the General Partner or the Partnership is bound
or any order, rule or regulation applicable to the General Partner or the
Partnership of any court or any governmental body or administrative agency
having jurisdiction over the General Partner or the Partnership.
(vi) To the best of their knowledge, there are no actions, claims
or proceedings pending or threatened in any court or before or by any
governmental or administrative agency or regulatory or self-regulatory body, nor
have there been any such suits, claims or proceedings within the last five
years, to which the General Partner (or any principal of the General Partner) or
the Partnership is or was a party, or to which any of their assets is or was
subject, which are required to be, but are not, disclosed in the Registration
Statement or Prospectus or which might reasonably be expected to result in any
material adverse change in the financial condition, business or prospects of the
General Partner or the Partnership.
(vii) No authorization, approval or consent of any governmental or
self-regulatory authority or agency is necessary in connection with the
subscription for and sale of the Units, except such as may be required under the
1933 Act, the Commodity Act, NFA compliance rules, NASD rules or applicable
securities or "Blue Sky" laws.
(viii) The information in the Prospectus under the caption "Federal
Income Tax Aspects," to the extent that such information constitutes matters of
law or legal conclusions, has been reviewed by them and is correct in all
material respects, insofar as it relates to the income tax consequences to the
Partnership and to the federal income tax consequences of an investment in the
Partnership by U.S. individual taxpayers.
14
(ix) The Registration Statement is effective under the 1933 Act
and no proceeding for a stop order is pending or, to the best of their
knowledge, threatened under Section 8 of the 1933 Act or any applicable state
"Blue Sky" laws.
(x) At the time the Registration Statement and any
post-effective amendment thereto became effective, the Registration Statement,
and at the time the Prospectus and any amendments or supplements thereto were
first issued, the Prospectus, complied as to form in all material respects with
the requirements of the 1933 Act, SEC Regulations, the Commodity Act, the CFTC
regulations and the rules of the NFA. Nothing has come to their attention that
would cause them to believe that (A) at the time that the Registration Statement
and any post-effective amendment thereto became effective, the Registration
Statement contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (B) the Prospectus as first issued or as
subsequently issued or at the Initial Closing Time contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that such counsel need express no
opinion or belief (A) as to the financial statements, notes thereto and other
financial or statistical data set forth in the Registration Statement and
Prospectus, (B) as to the performance data set forth in the Registration
Statement, or (C) the pro forma adjustments made to the actual performance data
set forth in the Registration Statement.
(xi) Assuming operation in accordance with the Prospectus, the
Partnership at a Closing Time will not be an "investment company" as that term
is defined in the Investment Company Act of 1940, as amended, and the General
Partner need not be registered as an "investment adviser" under the Investment
Advisers Act of 1940, as amended, in respect of its management of the
Partnership.
(xii) Such counsel shall state that it has participated in
conferences with officers and other representatives of the General Partner and
representatives of the independent public accountants for the General Partner
and the Partnership, at which conferences such counsel made inquiries of such
officers, representatives and accountants and discussed the contents of the
Registration Statement and the Prospectus, and no facts have come to the
attention of such counsel which cause them to believe that either the
Registration Statement or any amendment thereto, at the time such Registration
Statement or amendment became effective, or the Prospectus or any amendment or
supplement thereto, as of the date of such opinion contained any untrue
statement of a material fact or omitted to state a material fact stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and notes thereto
and other financial and statistical data or past performance information
included therein.)
(xiii) Such counsel shall also state that to the knowledge of such
counsel, based solely on its review of its litigation docket and an officer's
certificate from the General Partner: there are no legal or governmental
proceedings pending to which the Partnership or the General Partner is a party,
that are required to be described in the Registration Statement or the
15
Prospectus that are not so described; and to such counsel's knowledge no such
proceedings are threatened by governmental authorities or others.
(c) At each Closing Time, the General Partner shall deliver a
certificate to the effect that: (i) no order suspending the effectiveness of the
Registration Statement has been issued and no proceedings therefor have been
instituted or to the best of their knowledge upon due and diligent inquiry
threatened by the SEC, the CFTC or other regulatory or self-regulatory body;
(ii) the representations and warranties of the General Partner contained herein
are true and correct with the same effect as though expressly made at such
Closing Time and in respect of the Registration Statement as in effect at such
Closing Time; and (iii) the General Partner has performed all covenants and
agreements herein contained which are required to be performed on their part at
or prior to such Closing Time.
(d) At or prior to the Initial Closing Time, the Partnership shall have
received a capital contribution of the General Partner in the amount required by
the Limited Partnership Agreement and as described in the Prospectus.
(e) At the Initial Closing Time, executed copies of the Limited
Partnership Agreement, any Additional Selling Agent Agreements and this
Agreement shall be delivered to all parties.
(f) The parties hereto shall have been furnished with such additional
information, opinions and documents, including supporting documents relating to
parties described in the Prospectus and certificates signed by such parties with
regard to information relating to them and included in the Prospectus as they
may reasonably require for the purpose of enabling them to pass upon the sale of
the Units as herein contemplated and related proceedings, in order to evidence
the accuracy or completeness of any of the representations or warranties or the
fulfillment of any of the conditions herein contained; and all actions taken by
the parties hereto in connection with the sale of the Units as herein
contemplated shall be reasonably satisfactory in form and substance to Mayer,
Brown, ▇▇▇▇ & Maw LLP, counsel for the General Partner and to the counsel for
the Selling Agent.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement to be fulfilled prior to a
Closing Time, this Agreement and all obligations hereunder may be cancelled by
any party hereto by notifying the other parties hereto of such cancellation in
writing or by fax at any time at or prior to such Closing Time, and any such
cancellation or termination shall be without liability of any party to any other
party other than in respect of Units already sold and except as otherwise
provided in Sections 6 and 8 of this Agreement.
SECTION 8. INDEMNIFICATION, CONTRIBUTION AND EXCULPATION.
(a) The General Partner severally (and not the Partnership) agrees to
indemnify and hold harmless the Selling Agent and each person, if any, who
controls the Selling Agent within the meaning of Section 15 of the 1933 Act, as
follows:
16
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising from any breach of any representation or warranty of
the General Partner set forth herein or from any untrue statement of a material
fact or alleged untrue statement of a material fact contained in the
Registration Statement, in the Prospectus (or any amendment or supplement
thereto) or in the Promotional Material or any omission or alleged omission
therefrom of a material fact required to be stated therein or necessary in order
to make the statements therein not misleading or arising out of 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 therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by any governmental agency or
body commenced or threatened, or of any claim whatsoever, based upon any such
breach, untrue statement or omission or any such alleged untrue statement or
omission (any settlement to be subject to indemnity hereunder only if effected
with the written consent of the General Partner); and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel) reasonably incurred in investigating, preparing or
defending against litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such material breach, untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under clauses (i) or (ii) above;
PROVIDED, HOWEVER, that: (A) the General Partner will not be liable in any such
case to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration, Statement,
the Prospectus or the Promotional Material in reliance upon and in conformity
with written information furnished to the General Partner by or on behalf of the
Selling Agent specifically for inclusion therein; and (B) such indemnity with
respect to any Prospectus shall not inure to the benefit of the Selling Agent
(or any person controlling the Selling Agent) from whom the person asserting any
such loss, liability, claim, damage or expense purchased the Units that are the
subject thereof if such person did not receive a copy of the Prospectus, as
amended or supplemented, at or prior to the confirmation of the sale of such
Units to such person and any untrue statement or omission of a material fact
contained in any Prospectus was corrected in the Prospectus, as amended or
supplemented. This indemnity agreement will be in addition to any liability that
the General Partner may otherwise have.
(b) The Selling Agent agrees to indemnify and hold harmless the General
Partner, each of its managers and members, each of its officers who signs the
Registration Statement, and each person who controls the General Partner within
the meaning of Section 15 of the 1933 Act to the same extent as the foregoing
indemnities to the Selling Agent, but only with reference to the written
information relating to the Selling Agent furnished to the General Partner, by
or on behalf of the Selling Agent specifically for inclusion in the documents
referred to in the
17
indemnity set forth in subsection (a). This indemnity agreement will be in
addition to any liability which the Selling Agent may otherwise have.
(c) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to any otherwise indemnified party (or a controlling
person of the indemnified party) in respect of any loss, liability, claim,
damage or expense referred to herein, then the otherwise indemnifying person
shall, in lieu of indemnifying the otherwise indemnified party (or controlling
person) contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage or expense: (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the General
Partner on the one hand and the Selling Agent on the other from the offering of
the Units by the Selling Agent; or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the General Partner on the one hand and the Selling
Agent on the other with respect to the statements or omissions which resulted in
such loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations. In no event shall the aggregate contribution or
liability of the Selling Agent exceed the aggregate upfront selling commissions
and ongoing servicing fees paid to the Selling Agent hereunder. Relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the General Partner on the one hand or
the Selling Agent on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties agree that it would not be just and equitable
if contributions pursuant to this Section 8(c) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an otherwise indemnifying party (or controlling person) to the otherwise
indemnified party as a result of the loss, liability, claim, damage or expense
referred to above in this Section 8(c), shall be deemed to include, for purposes
of this Section 8(c), any legal or other expenses reasonably incurred by such
otherwise indemnified party in connection with investigating or defending any
such action or claim.
(d) In no case shall a party be liable under this indemnity and
contribution agreement with respect to any claim unless such party shall be
notified in writing of the nature of the claim within a reasonable time after
the assertion thereof, but failure to so notify such party shall not relieve the
such party from any liability which it may have otherwise than on account of
this indemnity and contribution agreement, unless such party has been prejudiced
by such failure. Such party shall be entitled to participate at its own expense
in the defense or, if it so elects within a reasonable time after receipt of
such notice, to assume the defense of any suit so brought, which defense shall
be conducted by counsel chosen by it and satisfactory to the indemnified party
(or party entitled to contribution hereunder) or parties, defendant or
defendants therein.
Each party agrees to notify the other party within a reasonable time of the
assertion of any claim in connection with the sale of the Units against it or
any of its officers or directors or any controlling person within the meaning of
Section 15 of the 1933 Act.
18
SECTION 9. STATUS OF PARTIES.
In marketing Units pursuant to this Agreement, the Selling Agent is acting
solely as an agent for the Partnership, and not as a principal. The Selling
Agent will use its best efforts to assist the Partnership in obtaining
performance by each purchaser solicited by the Selling Agent whose offer to
purchase Units from the Partnership has been accepted on behalf of the
Partnership, but the Selling Agent shall not have any liability to the
Partnership in the event that Subscription Agreements and Powers of Attorney are
improperly completed or any such purchase is not consummated for any reason.
Except as specifically provided herein, the Selling Agent shall in no respect be
deemed to be an agent of the Partnership.
SECTION 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or contained in certificates of any party hereto submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
made by, or on behalf of, the Selling Agent, the General Partner, the
Partnership, or any person who controls any of the foregoing, and shall survive
the Closing Times.
SECTION 11. TERMINATION.
In addition to any other termination rights set forth elsewhere in this
Agreement, each party shall have the right to terminate this Agreement: (i) at
any time upon no less than fifteen (15) business days' prior written notice to
the non-terminating party; or (ii) at any time upon written notice to the
non-terminating party in the event the non-terminating party breaches a material
representation, warranty or covenant of this Agreement.
SECTION 12. SURVIVAL.
Irrespective of the expiration or termination of this Agreement, Sections 2
(with respect to compensation payable for Units outstanding as of the date of
termination), 6 and 8 hereof shall survive, and all applicable provisions of
this Agreement with respect to outstanding Units.
SECTION 13. NOTICES AND AUTHORITY TO ACT.
All communications hereunder shall be in writing and, if sent to the
General Partner or the Partnership, shall be mailed, delivered or faxed and
confirmed to the General Partner at: RefcoFund Holdings, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile No. __________, Attention:
____________; with copies to Mayer, Brown, ▇▇▇▇ & Maw LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇. If sent to the Selling Agent, shall be mailed, delivered or faxed and
confirmed to it at Refco Securities, LLC, One World Financial Center, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: _______________ ,with
copies to ___________________________________, Attention:________________.
Notices shall be effective when actually received.
19
SECTION 14. PARTIES; ASSIGNMENT.
This Agreement shall inure to the benefit of and be binding upon the
Selling Agent, the Partnership, the General Partner and such parties' respective
successors and permitted assigns to the extent provided herein. This Agreement
and the conditions and provisions hereof are intended to be and are for the sole
and exclusive benefit of the parties hereto and their respective successors,
permitted assigns and controlling persons and parties indemnified hereunder, and
for the benefit of no other person, firm or corporation. No limited partners
shall be considered to be a successor or an assignee solely on the basis of such
purchase. No party may assign its rights or obligations under this Agreement to
any other person without the prior written consent of the other parties hereto.
SECTION 15. GOVERNING LAW.
This Agreement and the rights and obligations of the parties created hereby
shall be governed by the laws of the State of
New York.
SECTION 16. CONSENT TO JURISDICTION.
The parties hereto agree that any action or proceeding arising directly,
indirectly, or otherwise in connection with, out of, related to, or from this
Agreement, any breach hereof, or any transaction covered hereby, shall be
resolved, whether by arbitration or otherwise, within the City of
New York, and
State of
New York. Accordingly, the parties hereto consent and submit to the
jurisdiction of the federal and state courts and applicable arbitral body
located within the City of
New York, and State of
New York. The parties further
agree that any such action or proceeding brought by any party to enforce any
right, assert any claim, or obtain any relief whatsoever in connection with this
Agreement shall be brought by such party exclusively in the federal or state
courts, or if appropriate, before any applicable arbitral body, located within
the City of
New York, and State of
New York.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be an
original and both of which together shall be deemed one and the same instrument.
20
If the foregoing is in accordance with each party's understanding of their
agreement, each party is requested to sign and return to the General Partner and
the Partnership a counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement among them in accordance with its
terms.
Very truly yours,
S&P MANAGED FUTURES INDEX FUND, LP
By: RefcoFund Holdings, LLC, General Partner
By:
-------------------------------------
REFCO FUND HOLDINGS, LLC
By:
-------------------------------------
Confirmed and accepted as of the date first above written:
REFCO SECURITIES, LLC
By:
-----------------------------------------
Title:
--------------------------------------
21
EXHIBIT A
ADDITIONAL SELLING AGENT AGREEMENT
S&P MANAGED FUTURES INDEX, LP
(A DELAWARE LIMITED PARTNERSHIP)
$100,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
REFCOFUND HOLDINGS, LLC
GENERAL PARTNER
DATED ___, 2003
S&P MANAGED FUTURES INDEX FUND, LP
TABLE OF CONTENTS
PAGE
----
Section 1. Representations and Warranties of the General Partner. 1
Section 2. Offering and Sale of ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇. Compliance with Rule 2810 and General Laws 8
Section 4. Blue Sky Survey. 11
Section 5. Covenants of the General Partner 11
Section 6. Payment of Expenses and Fees. 12
Section 7. Conditions of Closing. 13
Section 8. Indemnification, Contribution and Exculpation. 16
Section 9. Status of Parties. 18
Section 10. Representations, Warranties And Agreements to Survive Delivery. 19
Section 11. Termination. 19
Section 12. Survival. 19
Section 13. Notices and Authority to Act. 19
Section 14. Parties; Assignment 19
Section 15. Governing Law. 20
Section 16. Consent to Jurisdiction. 20
Section 17. Counterparts 20
S&P MANAGED FUTURES INDEX FUND, LP
(A DELAWARE LIMITED PARTNERSHIP)
$100,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
INITIALLY $1,000 PER UNIT;
THEREAFTER PREVAILING NET ASSET VALUE PER UNIT
ADDITIONAL SELLING AGENT AGREEMENT
___, 2003
[ADDITIONAL SELLING AGENT]
___________________
___________________
___________________
Dear Sirs:
RefcoFund Holdings, LLC, a Delaware limited liability company (the "General
Partner"), has caused the formation, on May 13, 2003, of a limited partnership
pursuant to the Delaware Revised Uniform Limited Partnership Act (the "Delaware
Act") under the name, S&P Managed Futures Index Fund, LP (the "Partnership"),
designed to seek returns that substantially track the Standard & Poor's Managed
Futures Index before expenses of the Partnership. Refco Securities, LLC (the
"Principal Selling Agent") has been appointed pursuant to a
Selling Agreement by
and among itself, the General Partner and Partnership, as the principal Selling
Agent for the Partnership. Other selling agents (the "Additional Selling
Agents") may be selected by the General Partner, with the consent of the
Principal Selling Agent in accordance with the terms of the
Selling Agreement.
You have been so selected by the General Partner, and the Principal Selling
Agent has consented to such selection. We understand that you are willing to use
your best efforts to market the Partnership's units of limited partnership
interest ("Units"). This Additional Selling Agent Agreement shall be referred to
herein as the "Agreement".
Accordingly, the Additional Selling Agent, the General Partner and the
Partnership, intending to be legally bound, hereby agree as follows.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE GENERAL PARTNER.
The General Partner represents and warrants to the Additional Selling Agent
as follows -- such representations and warranties to be restated and reaffirmed
as of each Closing Time (as defined in Section 2(e) hereof):
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(a) The Partnership has provided to the Selling Agent, and filed with
the Securities and Exchange Commission (the "SEC"), a registration statement on
Form S-1 (No. 333-107357), as initially filed with the SEC on July 25, 2003,
Amendment No. 1 as filed on ______, 2003, and any amendment or amendments
thereto, for the registration of the Units under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed one copy thereof with the National
Futures Association (the "NFA") in accordance with NFA Compliance Rule 2-13, the
Commodity Exchange Act, as amended (the "Commodity Act") and the rules and
regulations thereunder (the CFTC Regulations"). The registration statement as
amended and delivered to all parties hereto at the time it becomes effective
together with any registration statement filed to register additional Units
under the 1933 Act pursuant to Rule 462(b) and the prospectus included therein
are hereinafter called the "Registration Statement" and the "Prospectus,"
respectively, except that (i) if the Partnership files a subsequent
post-effective amendment to the registration statement, then the term
"Registration Statement" shall, from and after the declaration of the
effectiveness of such post-effective amendment, refer to the registration
statement as amended by such post-effective amendment thereto, and the term
"Prospectus" shall refer to the prospectus as most recently issued by the
Partnership pursuant to the rules and regulations of the SEC promulgated under
the 1933 Act (the "SEC Regulations"), together with any current supplement or
supplements thereto.
The General Partner agrees to suspend the offering immediately and inform
the Additional Selling Agent if the General Partner has any reason to believe
that it may be necessary or advisable to amend the Registration Statement or
supplement the Prospectus.
No reference to the Additional Selling Agent may be made in the
Registration Statement, Prospectus or in any promotional brochure or other
marketing materials (collectively, "Promotional Material") including "Tombstone
Ads" or other communications qualifying under Rule 134 of the SEC Regulations,
which has not been approved in writing by the Additional Selling Agent, which
approval the Additional Selling Agent may withhold in its sole and absolute
discretion. The Partnership will cooperate with the Selling Agent in causing to
be filed all Promotional Material with the National Association of Securities
Dealers, Inc. (the "NASD"), and will not use any such Promotional Material
unless the NASD has stated in writing that it appears to comply with all
applicable standards or the requirement for such a statement has been waived by
the Additional Selling Agent. The Partnership will file, or cause to be filed,
all Promotional Material in state jurisdictions as requested or required by law,
and will not use any such Promotional Material in any state which has expressed
any objection thereto (except pursuant to agreed-upon modifications to the
Promotional Material).
All representations, warranties and indemnities set forth herein will be
deemed to be restated in their entirety as of each Closing Time (as defined in
Section 2(e) hereof).
(b) The certificate of limited partnership (the "Certificate of Limited
Partnership") pursuant to which the Partnership has been formed and the Limited
Partnership Agreement of the Partnership (the "Limited Partnership Agreement")
provide for the subscription for and sale of the Units of the Partnership; all
action required to be taken by the General Partner and the Partnership as a
condition to the sale of the Units to qualified subscribers therefor has been,
or prior to the Initial Closing Time (as defined in Section 2 hereof) will have
been, taken; and, upon payment of the consideration therefor specified in all
accepted Subscription Agreements and
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Powers of Attorney, the form of which is set forth as Appendix B to the
Prospectus, the Units will constitute valid units of limited partnership
interest in the Partnership as to which the subscribers thereto will have
limited personal liability to the extent provided in the Delaware Act and will
be Limited Partners of the Partnership entitled to all the applicable benefits
under the Limited Partnership Agreement and the Delaware Act.
(c) The Partnership is duly organized pursuant to the Delaware Act and
is validly existing and in good standing under the laws of the State of Delaware
with full power and authority to engage in the business to be conducted by it,
as described in the Registration Statement and the Prospectus. The Partnership
is in good standing and qualified to do business in each jurisdiction in which
such qualification is necessary in order to protect the limited liability of
Limited Partners and in which the nature or conduct of its business as described
in the Registration Statement and Prospectus requires such qualification and the
failure to be so qualified would have a material adverse effect ("Material
Adverse Effect") on the Partnership.
(d) The General Partner is, and will continue to be so long as it is the
general partner of the Partnership, a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is in good standing and qualified to do business in each jurisdiction in
which the nature or conduct of its business as described in the Registration
Statement and Prospectus requires such qualification and the failure to be so
qualified would have a Material Adverse Effect on the Partnership or the General
Partner's ability to perform its obligations hereunder.
(e) The Partnership and the General Partner each have full limited
partnership and limited liability company power and authority, as the case may
be, under applicable law to perform its respective obligations under the Limited
Partnership Agreement, and this Agreement, and to conduct its business as
described in the Registration Statement and Prospectus.
(f) When the Registration Statement becomes effective under the 1933 Act
and at all times subsequent thereto up to and including each Closing Time, the
Registration Statement, Prospectus and Promotional Material will comply in all
material respects with the requirements of the 1933 Act, the SEC Regulations,
the Commodity Act and the CFTC Regulations and will be accurate and complete in
all material respects. Each of the Registration Statement, Prospectus and
Promotional Material as of the Initial Closing Time and each Closing Time
thereafter will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which such
statements are made, not misleading; provided however, that this representation
and warranty does not apply to statements made or omitted in reliance upon, and
in conformity with, written information furnished to the General Partner with
respect to the Additional Selling Agent by or on behalf of the Additional
Selling Agent, expressly for use in such Registration Statement, Prospectus or
Promotional Material.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not have been any material
adverse change in the financial condition, business or prospects of the General
Partner or the Partnership of which the Additional Selling Agent has not been
informed by the General Partner.
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(h) Each of the Limited Partnership Agreement and this Agreement has
been duly and validly authorized, executed and delivered by the General Partner
(on behalf of the Partnership with respect to this Agreement) and by the General
Partner, and each constitutes a valid, binding and enforceable agreement of the
Partnership and the General Partner in accordance with its terms.
(i) The execution and delivery of the Limited Partnership Agreement and
this Agreement, the incurrence of the obligations set forth therein and herein
and the consummation of the transactions contemplated therein, herein and in the
Prospectus: (i) will not constitute a breach of, or default under, any
instrument or agreement by which the General Partner or the Partnership, as the
case may be, or any of their property or assets is bound, or any statute, order,
rule or regulation applicable to the General Partner or the Partnership, as the
case may be, except as would not be reasonably likely to have a Material Adverse
Effect on the Partnership or the General Partner; (ii) will not result in the
creation or imposition of any lien, charge or encumbrance on any property or
assets of the General Partner or the Partnership, except as would not be
reasonably likely to have a Material Adverse Effect on the Partnership or the
General Partner; and (iii) will not give any party a right to terminate its
obligations or result in the acceleration of any obligations under any material
instrument or agreement by which the General Partner or the Partnership, as the
case may be, or any of their respective property or assets is bound, except as
would not be reasonably likely to have a Material Adverse Effect on the
Partnership or the General Partner.
(j) Except as otherwise disclosed in the Registration Statement or the
Prospectus, there is not pending nor, to the best of the General Partner's
knowledge, threatened any action, suit or proceeding before or by any court or
other governmental body to which the General Partner or the Partnership is a
party, or to which any of the assets of the General Partner or the Partnership
is subject, which would reasonably be expected to have a Material Adverse Effect
on the financial condition, business or prospects of the General Partner or the
Partnership or which is required to be disclosed in the Registration Statement
or Prospectus pursuant to the Commodity Act, the 1933 Act, the CFTC Regulations
or the SEC Regulations.
(k) No stop order relating to the Registration Statement has been issued
by any federal or state securities commission, and no proceedings therefor are
pending or, to the best knowledge of the General Partner, threatened.
(l) The General Partner and each of its principals and employees have,
and will continue to have so long as it is the general partner of the
Partnership, all federal and state governmental, regulatory, self-regulatory and
commodity exchange approvals and licenses, and the General Partner (either on
behalf of itself or its principals and employees) has effected all filings and
registrations with federal and state governmental, regulatory or self-regulatory
agencies required to conduct its business and to act as described in the
Registration Statement and Prospectus or required to perform its or their
obligations as described under the Limited Partnership Agreement except as would
not be reasonably likely to have a Material Adverse Effect on the Partnership or
the General Partner (including, without limitation: (i) registration as a
commodity pool operator under the Commodity Act and (ii) membership in the NFA
as a "commodity pool operator"); and this Agreement and the performance of such
obligations will not contravene or result in a breach of: (A) any provision of
the General Partner's organizational
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documents; or (B) any agreement, instrument, order, law or regulation binding
upon the General Partner or any of its employees or principals, except as would
not be reasonably likely to have a Material Adverse Effect on the Partnership or
the General Partner.
(m) The Partnership does not require any federal or state governmental,
regulatory, self-regulatory or commodity exchange approvals or licenses, and the
Partnership need not effect any filings or registrations with any federal or
state governmental agencies in order to conduct its business and to act as
contemplated by the Registration Statement and Prospectus and to issue and sell
the Units (other than filings under the 1933 Act, the Commodity Act and state
securities laws relating solely to the offering of the Units).
(n) The General Partner has the financial resources necessary to meet
its obligations to the Additional Selling Agent hereunder.
(o) The actual performance of the other funds managed by the General
Partner is disclosed in the Prospectus as required by the rules under the
Commodity Act and of the NFA; all of the information regarding the actual
performance of other funds managed by the General Partner set forth in the
Prospectus is complete and accurate in all material respects and, except as
disclosed in the Prospectus, is in accordance and compliance with the disclosure
requirements under the Commodity Act and the CFTC Regulations as well as of the
NFA.
(p) The accountants who certified the financial statements of the
General Partner and of the Partnership included in the Registration Statement
are, with respect to the General Partner and the Partnership, independent public
accountants as required by the 1933 Act and the SEC Regulations. These financial
statements fairly present the financial condition of the General Partner and the
Partnership, as the case may be, as of the dates shown and are presented in
accordance with generally accepted accounting principles as currently in effect
in the United States.
SECTION 2. OFFERING AND SALE OF UNITS.
(a) The Additional Selling Agent is hereby appointed as a non-exclusive
Additional Selling Agent for the Partnership during the term herein specified
for the purpose of finding acceptable subscribers for the Units through a public
offering of such Units. Subject to the performance by the General Partner of its
obligations hereunder and to the completeness and accuracy in all material
respects of the representations and warranties of the General Partner contained
herein, the Additional Selling Agent hereby accepts such agency and agrees on
the terms and conditions herein set forth to use its best efforts to find
acceptable subscribers for the Units, provided that there is no minimum number
of Units for which the Selling Agent agrees to find subscribers.
It is understood that the Additional Selling Agent's agreement to use its
best efforts to find acceptable subscribers for the Units shall not prevent it
from acting as a selling agent or underwriter for the securities of other
issuers, including affiliates, which may be offered or sold during the term
hereof. The agency of the Additional Selling Agent hereunder shall continue
until the expiration or termination of this Agreement, as provided herein,
including such additional period as may be required to effect a final closing of
the sale of the Units subscribed
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for through the Additional Selling Agent through the date of termination. All
subscriptions are subject to acceptance or rejection, in whole or in part in the
General Partner's sole discretion, and no compensation shall be due hereunder in
respect of rejected subscriptions.
The Additional Selling Agent acknowledges that the Units are divided into
separate classes each of which is open for investment only by certain
subscribers as described in the Prospectus. The Class B units may be offered
only by qualified broker-dealers that offer a wrap fee program and fee-only
registered investment advisers.
Each subscriber shall be required to submit a minimum subscription of at
least $10,000 ($3,000 for individual retirement accounts; $2,500 for existing
Limited Partners making additional investments), subject to the higher minimum
requirements imposed by certain state regulators as set forth in Exhibit B to
the Prospectus. Units shall be sold in fractions calculated to three decimal
places.
The General Partner agrees to pay, from its own funds, to the Additional
Selling Agent an upfront selling commission of $30 per Class A Unit on each
Class A Unit sold by the Additional Selling Agent at the Initial Closing (3% of
the Net Asset Value per Class A Unit on each Class A Unit sold by the Additional
Selling Agent at each Additional Closing) each as defined in Section 2(f)
hereof.
The Additional Selling Agent agrees that it will promptly pass on to its
Registered Representatives that portion of the upfront selling commissions
received from the General Partner to which such Registered Representatives are
entitled pursuant to the Additional Selling Agent's standard compensation
procedures, as determined by the Additional Selling Agent from time to time.
(b) For ongoing services rendered to Limited Partners, the General
Partner shall pay the Additional Selling Agent, provided the Additional Selling
Agent is and remains registered with the CFTC as a "futures commission merchant"
or "introducing broker" and a member in good standing of the NFA in such
capacity, ongoing servicing fees in an amount equal to 0.167% (a 2% annual rate)
of the month-end Net Asset Value of all Class A Units sold by the Additional
Selling Agent remaining outstanding as of the end of each month (including Class
A Units redeemed as of the end of such month). Such ongoing servicing fees shall
begin to accrue with respect to each Class A Unit only after the end of the
twelfth full month after the closing on the sale of such Class A Unit and shall
continue only for as long as such Class A Unit remains outstanding. The
General Partner shall pay the ongoing servicing fees due to the Additional
Selling Agent within fifteen (15) business days of the end of each month.
Notwithstanding the foregoing, ongoing servicing fees shall be payable to
the Additional Selling Agent only in respect of Class A Units sold by
Registered Representatives who are themselves registered with the CFTC and who
have passed either the Series 3 National Commodity Futures Examination or the
Series 31 Futures Managed Funds Examination ("Qualified Registered
Representatives"), and are contingent upon the provision by such Qualified
Registered Representatives of ongoing services in connection with the Class A
Units sold by such Qualified Registered Representatives, including: (i)
inquiring of the General Partner from time to time, at the request of a limited
partner, as to the Net Asset Value
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of a Class A Unit; (ii) inquiring of the General Partner from time to
time, at the request of a limited partner, regarding the futures markets and the
Partnership; (iii) assisting, at the request of the General Partner, in the
redemption of Class A Units; and (iv) providing such other services to the
limited partners as the General Partner may, from time to time, reasonably
request. The Additional Selling Agent agrees to adopt procedures to monitor the
adequacy of the ongoing services provided by its Qualified Registered
Representatives.
The Additional Selling Agent agrees to pass ongoing servicing fees on to
its Qualified Registered Representatives on an ongoing basis, pursuant to the
Additional Selling Agent's standard compensation procedures, as determined by
the Additional Selling Agent from time to time.
In the case of Class A Units with respect to which there is no
Qualified Registered Representative the General Partner will pay the Additional
Selling Agent installment selling commissions at the same rate as in the case of
ongoing servicing fees, provided that, pursuant to applicable NASD policy, the
total of such installment selling commissions plus the upfront selling
commission do not exceed 10% of the initial subscription price of such
Class A Units. The Additional Selling Agent agrees to adopt procedures
to monitor the payment of upfront selling commissions and installment selling
commissions so as to ensure that they are in compliance with NASD rules and
policies.
The Additional Selling Agent agrees to pass installment selling commissions
on to its Registered Representatives on an ongoing basis, pursuant to the
Additional Selling Agent's standard compensation procedures, as determined by
the Additional Selling Agent from time to time.
(c) The Additional Selling Agent must be either (i) a broker-dealer who
is a member in good standing of the NASD, or (ii) a foreign bank, broker, dealer
or institution ineligible for membership in a registered securities association
(within the meaning of Rule 2420 of the NASD's Conduct Rules) and agree that it
will make no sales of Units within the United States, its territories or
possessions or areas subject to its jurisdiction.
(d) Ongoing servicing fees and installment selling commissions will be
paid at the end of each month on the basis of the Units outstanding during each
month during such month. Net Assets, for purposes of determining ongoing
servicing fees and installment selling commissions, shall be calculated after
reduction of all expenses of the Partnership, including accrued and unpaid
expenses as set forth in the Partnership Agreement.
The Additional Selling Agent (unless it is a foreign dealer), although
otherwise entitled to ongoing servicing fees, will not be entitled to receipt
thereof for any month during any portion of which the Registered Representative
who is receiving compensation based upon such ongoing servicing fees is at any
time not properly registered with the CFTC or does not provide the ongoing
services described above.
(e) At the end of the Initial Offering Period specified on the cover of
the Prospectus, the General Partner shall notify the Additional Selling Agent of
the initial closing of the Partnership (the "Initial Closing" and the date of
such closing, the "Initial Closing Time"), as
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well as of the aggregate number of Units for which the General Partner has
received acceptable subscriptions. Following the Initial Closing Time, Units may
continue to be sold as of the first day of each calendar month (each such sale,
an "Additional Closing" and each such date a "Closing Time"), in the discretion
of the Partnership.
(f) The Partnership shall not in any respect be responsible for any
upfront selling commissions, ongoing servicing fees or installment selling
commissions described herein. All such commissions are to be solely the
responsibility of the General Partner.
(g) Notwithstanding anything in this Section 2 to the contrary, the
Additional Selling Agent shall not be entitled to any compensation hereunder in
respect of a sale to any subscriber if the General Partner determines that
another authorized selling agent of the Partnership is primarily responsible for
or should otherwise be credited with such sale. In making this determination,
the General Partner shall endeavor to act fairly. Any dispute regarding
compensation shall be conclusively resolved by the General Partner.
SECTION 3. COMPLIANCE WITH RULE 2810 AND GENERAL LAWS.
(a) The Additional Selling Agent will use its best efforts to find
eligible persons to purchase the Units on the terms stated herein and in the
Registration Statement and Prospectus. It is understood that the Additional
Selling Agent has no commitment with regard to the sale of the Units other than
to use its best efforts. In connection with the offer, sale and distribution of
the Units, the Additional Selling Agent represents and warrants that it will
comply fully with all applicable laws and regulations, and the rules, policy
statements and interpretations of the NASD, the SEC, the CFTC, state securities
administrators and any other regulatory or self-regulatory body. In particular,
and not by way of limitation, the Additional Selling Agent represents and
warrants that it is familiar with Rule 2810 of the NASD Conduct Rules and that
it will comply fully with all the terms thereof in connection with the offering
and sale of the Units. The Additional Selling Agent will not execute any sales
of Units from a discretionary account over which it has control without prior
written approval of the customer in whose name such discretionary account is
maintained.
(b) The Additional Selling Agent agrees not to recommend the purchase of
Units to any subscriber unless the Additional Selling Agent shall have
reasonable grounds to believe, on the basis of information obtained from the
subscriber concerning, among other things, the subscriber's investment
objectives, other investments, financial situation and needs, that: (i) (to the
extent relevant for the purposes of Rule 2810 and giving due consideration to
the fact that the Partnership is in no respects a "tax shelter") the subscriber
is or will be in a financial position appropriate to enable the subscriber to
realize to a significant extent the benefits of the Partnership, including the
tax benefits (if any) described in the Prospectus; (ii) the subscriber has a
fair market net worth sufficient to sustain the risks inherent in participating
in the Partnership; (iii) the subscriber qualifies as an acceptable subscriber
on the basis set forth in the Prospectus, the Subscription Agreement and Power
of Attorney; (iv) acceptance of the subscriber's subscription will not otherwise
breach any laws, rules and regulations designed to avoid money laundering
applicable to either the Additional Selling Agent, the General Partner or the
Partnership; and (v) the Units are otherwise a suitable investment for the
subscriber. The Additional Selling Agent agrees to maintain such records as are
required by the applicable rules
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of the NASD and the state securities commissions for purposes of determining
investor suitability. In connection with making the foregoing representations
and warranties, the Additional Selling Agent further represents and warrants
that it has, among other things, examined the Prospectus including, without
limitation, the sections identified below and has obtained such additional
information from the General Partner regarding the information set forth
thereunder as the Additional Selling Agent has deemed necessary or appropriate
to determine whether the Prospectus adequately and accurately discloses all
material facts relating to an investment in the Partnership and provides an
adequate basis to subscribers for evaluating an investment in the Units:
"The Risks You Face"
"Investment Factors"
"Performance Information"
"The General Partner"
"The Sub-Investment Manager"
"Investment Program"
"Use of Proceeds"
"Charges"
"Redemptions; Net Asset Value"
"Conflicts of Interest"
"The Fund's Limited Partnership Agreement"
"Federal Income Tax Aspects"
"Pro Forma Aggregate Historical Returns of Index Constituents"
"The Futures and Forward Markets"
In connection with making the representations and warranties set forth in
this paragraph, the Selling Agent has not relied on inquiries made by or on
behalf of any other parties.
The Selling Agent agrees to inform all prospective purchasers of Units of
all pertinent facts relating to the liquidity and marketability of the Units as
set forth in the Prospectus.
(c) All payments for subscriptions may be made by subscriber check
payable to "S&P Managed Futures Index Fund, LP" or wire transfer (for deposit
during the Initial Closing in the Partnership's escrow account maintained at
Fifth Third Bank, Cincinnati, Ohio, and following the Initial Closing for
deposit in the Partnership's bank account maintained at ___________), and
submitted, along with a completed Subscription Agreement and Power of
9
Attorney, to the Additional Selling Agent. Such payments will be transmitted by
Noon,
New York time, on the business day (in the case of foreign dealers, as
soon as practicable) following receipt thereof in accordance with the procedures
set forth in the Prospectus and the Subscription Agreement and Power of
Attorney. Alternatively, payments for subscriptions may be made by wire transfer
of funds pursuant to the wire transfer instructions set forth in the
Subscription Agreement.
(d) As an alternative to submitting subscription checks or making a wire
transfer, a subscriber may instead authorize the Additional Selling Agent to
debit the subscriber's customer securities account maintained with the
Additional Selling Agent, as may be permitted by the Additional Selling Agent.
Subscribers who do so must have their subscription payments in their accounts on
the date their subscription is accepted -- subscribers to be notified of such
date by the Additional Selling Agent. Settlement of the payment for
subscriptions will occur not later than three (3) business days following
notification by the General Partner to the Additional Selling Agent of the
acceptance of a particular subscription and not later than the termination of
the offering of the Units. On each settlement date, subscribers' customer
securities accounts will be debited by the Additional Selling Agent in the
amount of their subscriptions. The amount of the subscription payments so
debited will be transmitted by such Additional Selling Agent directly to the
Partnership's escrow account (prior to the Initial Closing) and to the
Partnership's bank account (following the Initial Closing) in the form of a
Additional Selling Agent check or wire transfer made payable to "S&P Managed
Futures Index Fund, LP."
The Additional Selling Agent and the General Partner may make such other
arrangements regarding the transmission of subscriptions as they may deem
convenient or appropriate; provided that any such arrangement must comply in all
relevant respects with SEC Regulations 10b-9 and 15c2-4.
(e) The Additional Selling Agent represents and warrants that it will
comply with all applicable laws, regulations and NASD rules, policy statements
and interpretations in distributing the Units.
(f) The Selling Agent represents, warrants and covenants to the General
Partner and the Partnership that it and all of its personnel involved in the
activities contemplated hereunder have all governmental, regulatory and
self-regulatory registrations, approvals, memberships and licenses required to
perform its obligations under this Agreement and to receive compensation
therefor (including but not limited to registration as a broker-dealer with the
SEC, membership in the NASD, registration with the relevant regulatory authority
in each state in which the Selling Agent will solicit subscribers, registration
with the CFTC as a futures commission merchant or introducing broker and
membership in the NFA) and that it and such personnel will maintain all such
registrations, approvals, memberships and licenses during the term of this
Agreement and for such time as the Selling Agent and such personnel shall
receive compensation hereunder.
(g) The Selling Agent represents, warrants and covenants that it: (i)
maintains anti-money laundering policies and procedures that comply with the
Bank Secrecy Act of 1970, as amended, and applicable federal anti-money
laundering regulations, including policies and procedures to verify the identity
of prospective subscribers ("AML Laws, Regulations and Policies"); (ii) complies
with AML Laws, Regulations and Policies; (iii) will promptly deliver to
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the General Partner notice of any AML Laws, Regulations and Policies violation,
suspicious activity, suspicious activity investigation or filed Suspicious
Activity Report that relates to any prospective subscriber for Units; and (iv)
will cooperate with the General Partner and deliver information reasonably
requested by the General Partner concerning subscribers that purchased Units
sold by the Selling Agent necessary for the General Partner or the Partnership
to comply with AML Laws, Regulations and Policies.
SECTION 4. BLUE SKY SURVEY.
The General Partner agrees to cause Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel
to the General Partner, to prepare and deliver to the Additional Selling Agent a
Blue Sky Survey which shall set forth the United States jurisdictions in which
the Units may be offered and sold. The General Partner agrees to use its best
efforts to qualify the Units under the securities or Blue Sky laws of the
various state jurisdictions listed in such Blue Sky Survey, and to maintain such
qualification during the term of the offering, provided that the General Partner
reserves the right to withdraw application for the Units' registration. It is
understood and agreed that the Additional Selling Agent may rely, in connection
with the offering and sale of Units in any United States jurisdiction, on advice
given by Mayer, Brown, ▇▇▇▇ & Maw LLP as to the legality of the offer or sale of
the Units in such jurisdiction.
SECTION 5. COVENANTS OF THE GENERAL PARTNER.
(a) The General Partner will notify the Additional Selling Agent
immediately and confirm such notification in writing (i) when any amendment to
the Registration Statement shall have become effective or any supplement (not
including any monthly report) to the Prospectus is filed, (ii) of the receipt of
any further comments from the SEC, CFTC, NFA or any other federal or state
regulatory or self-regulatory body with respect to the Registration Statement,
(iii) of any request by the SEC, CFTC, NFA or any other federal or state
regulatory or self-regulatory body for any further amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information relating thereto, (iv) of any material criminal, civil or
administrative proceedings against or involving the General Partner or the
Partnership, (v) of the issuance by the SEC, CFTC, NFA or any other federal or
state regulatory or self-regulatory body of any order suspending the
effectiveness of the Registration Statement under the Securities Act, the
registration or NFA membership of the General Partner as a "commodity pool
operator," or the registration of the Units under the Blue Sky or securities
laws of any state or other jurisdiction or any order or decree enjoining the
offering or the use of the then current Prospectus or any Promotional Material
or of the institution, or notice of the intended institution, of any action or
proceeding for that purpose, or (vi) of any threatened action of the type
referred to in clauses (iii) through (v) of which the General Partner has been
notified. In the event any order of the type referred to in clause (v) is
issued, the General Partner agrees to use best efforts to obtain a lifting or
rescinding of such order at the earliest feasible date.
(b) The General Partner will deliver to the Additional Selling Agent as
many conformed copies of the Registration Statement as originally filed and each
amendment thereto as the Additional Selling Agent may reasonably request.
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(c) The General Partner will deliver to the Additional Selling Agent as
promptly as practicable from time to time during the period when the Prospectus
is required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as amended or supplemented) and of the Promotional Material as the
Additional Selling Agent may reasonably request for the purposes contemplated by
the 1933 Act or the SEC Regulations.
(d) During the period when the Prospectus is required to be delivered
pursuant to the 1933 Act, the General Partner and the Partnership will comply
with all requirements imposed upon them by the 1933 Act, the SEC Regulations,
the Commodity Act and the CFTC Regulations, as from time to time in force, so
far as necessary to permit the continuance of sales of the Units during such
period in accordance with the provisions hereof and as set forth in the
Prospectus.
(e) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of the General Partner or the Principal Additional Agent,
to amend or supplement the Prospectus in order (i) to make the Prospectus not
materially misleading in the light of the circumstances existing at the time it
is delivered to a subscriber, or (ii) to conform with applicable CFTC or SEC
Regulations, the General Partner shall promptly prepare and file such
amendment(s) of or supplement(s) to the Prospective effecting the necessary
changes, and furnish to the Additional Selling Agent, at the expense of the
General Partner, a reasonable number of copies of such amendment(s), or
supplement(s). Upon receipt by the Additional Selling Agent of notice of any
such event or any notice pursuant to Section 5(a) above, the Additional Selling
Agent shall, at the request of the General Partner, immediately discontinue the
offering of Units until the filing of the applicable amendment or supplement or
lifting or rescinding of the applicable order, as the case may be. No such
amendment or supplement shall be filed or used without the approval of the
Additional Selling Agent, which shall not be unreasonably withheld, delayed or
conditioned.
SECTION 6. PAYMENT OF EXPENSES AND FEES.
The General Partner will pay all expenses incident to the performance of
the obligations of the General Partner and the Partnership hereunder, including:
(i) the printing and delivery to the Additional Selling Agent in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto, of the Prospectus and any supplements or amendments thereto, and of any
Promotional Materials; (ii) the reproduction of this Agreement and the printing
and filing of the Registration Statement and the Prospectus (and, in certain
cases, the exhibits thereto) with the SEC and NFA; (iii) the filing fees payable
to the SEC and the NASD; (iv) the qualification of the Units under the
securities or "Blue Sky" laws in the various jurisdictions, including filing
fees and the fees and disbursements of the General Partner's counsel incurred in
connection therewith; and (v) the services of Mayer, Brown, ▇▇▇▇ & Maw LLP and
accountants for the General Partner and the Partnership.
The General Partner and the Additional Selling Agent are each aware of the
limitations imposed by Rule 2810 of the NASD Conduct Rules on the aggregate
compensation which may be received by the Additional Selling Agent in connection
with the offering and sale of the Units. The Additional Selling Agent will in no
event accept any payments from the General Partner which, when added to the
upfront selling commissions (not including ongoing servicing fees paid
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with respect to Qualified Registered Representatives) which the Additional
Selling Agent receives on each sale of a Class A Unit by the Additional
Selling Agent, would exceed 10% of the gross proceeds of the Class A
Units sold to the public by the Additional Selling Agent.
SECTION 7. CONDITIONS OF CLOSING.
The sale of the Units is subject to the accuracy of the representations and
warranties of the parties hereto, to the performance by such parties of their
respective obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective and at each
Closing Time no order suspending the effectiveness thereof shall have been
issued under the 1933 Act or proceeding therefor initiated or threatened by the
SEC, and the NFA shall have accepted the Prospectus as a Disclosure Document
pursuant to CFTC Regulations and NFA Rules without a finding of further
deficiencies.
(b) At the Initial Closing Time, Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel
to the General Partner, shall deliver its opinion, in form and substance
satisfactory to the parties here to, to the effect that:
(i) The Partnership is duly organized pursuant to the Delaware
Act and is validly existing and in good standing under the laws of the State of
Delaware with full power and authority to engage in the business to be conducted
by it, as described in the Registration Statement and the Prospectus. The
Partnership is in good standing and qualified to do business in each
jurisdiction in which such qualification is necessary in order to protect the
limited liability of Limited Partners and in which the nature or conduct of its
business as described in the Registration Statement and Prospectus requires such
qualification and the failure to be so qualified would have a material adverse
effect ("Material Adverse Effect") on the Partnership.
(ii) The General Partner is duly organized, validly existing and
in good standing as a limited liability company under the laws of the State of
Delaware and is in good standing and qualified to do business in each other
jurisdiction in which the failure to so qualify would have a Material Adverse
Effect on the Partnership. The General Partner has full power and authority to
perform its obligations as described in the Registration Statement, the
Prospectus and herein, and all action required to be taken by the General
Partner and the Partnership as a condition to the subscription for and sale of
the Units to qualified subscribers therefore has been taken.
(iii) The General Partner (including the General Partner's
principals) and the Partnership each has all federal and state governmental and
all regulatory and self-regulatory approvals and licenses, and has received or
made all filings and registrations with federal and state governmental and all
regulatory and self-regulatory agencies necessary in order for the General
Partner and the Partnership, respectively, to conduct their respective
businesses as described in the Registration Statement and Prospectus, and, to
the best of their knowledge, none of such approvals, licenses or registrations
have been rescinded or revoked.
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(iv) This Agreement has been duly authorized, executed and
delivered by or on behalf of the General Partner and the Partnership, and
assuming that such agreement is binding on the other parties hereto, this
Agreement constitutes a valid, binding and enforceable agreement of the General
Partner and the Partnership, in each case in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium or similar laws at the
time in effect affecting the enforceability generally of rights of creditors and
except as enforceability of indemnification provisions may be limited by
applicable law and the enforcement of any specific terms or remedies may be
unavailable.
(v) The execution and delivery of this Agreement and the Limited
Partnership Agreement, and the incurrence of the obligations herein, therein and
in the Prospectus set forth and the consummation of the transactions
contemplated herein, therein and in the Prospectus will not be in contravention
of any of the provisions of the General Partner's organizational documents and,
to the best of their knowledge, will not constitute a breach of, or default
under, any instrument by which the General Partner or the Partnership is bound
or any order, rule or regulation applicable to the General Partner or the
Partnership of any court or any governmental body or administrative agency
having jurisdiction over the General Partner or the Partnership.
(vi) To the best of their knowledge, there are no actions, claims
or proceedings pending or threatened in any court or before or by any
governmental or administrative agency or regulatory or self-regulatory body, nor
have there been any such suits, claims or proceedings within the last five
years, to which the General Partner (or any principal of the General Partner) or
the Partnership is or was a party, or to which any of their assets is or was
subject, which are required to be, but are not, disclosed in the Registration
Statement or Prospectus or which might reasonably be expected to result in any
material adverse change in the financial condition, business or prospects of the
General Partner or the Partnership.
(vii) No authorization, approval or consent of any governmental or
self-regulatory authority or agency is necessary in connection with the
subscription for and sale of the Units, except such as may be required under the
1933 Act, the Commodity Act, NFA compliance rules, NASD rules or applicable
securities or "Blue Sky" laws.
(viii) The information in the Prospectus under the caption "Federal
Income Tax Aspects," to the extent that such information constitutes matters of
law or legal conclusions, has been reviewed by them and is correct in all
material respects, insofar as it relates to the income tax consequences to the
Partnership and to the federal income tax consequences of an investment in the
Partnership by U.S. individual taxpayers.
(ix) The Registration Statement is effective under the 1933 Act
and no proceeding for a stop order is pending or, to the best of their
knowledge, threatened under Section 8 of the 1933 Act or any applicable state
"Blue Sky" laws.
(x) At the time the Registration Statement and any
post-effective amendment thereto became effective, the Registration Statement,
and at the time the Prospectus and any amendments or supplements thereto were
first issued, the Prospectus, complied as to form in all material respects with
the requirements of the 1933 Act, SEC Regulations, the
14
Commodity Act, the CFTC regulations and the rules of the NFA. Nothing has come
to their attention that would cause them to believe that (a) at the time that
the Registration Statement and any post-effective amendment thereto became
effective, the Registration Statement contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (b) the
Prospectus as first issued or as subsequently issued or at the Initial Closing
Time contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that such counsel need express no opinion or belief (A) as to the financial
statements, notes thereto and other financial or statistical data set forth in
the Registration Statement and Prospectus, (B) as to the performance data set
forth in the Registration Statement, or (C) the pro forma adjustments made to
the actual performance data set forth in the Registration Statement.
(xi) Assuming operation in accordance with the Prospectus, the
Partnership at a Closing Time will not be an "investment company" as that term
is defined in the Investment Company Act of 1940, as amended, and the General
Partner need not be registered as an "investment adviser" under the Investment
Advisers Act of 1940, as amended, in respect of its management of the
Partnership.
(xii) Such counsel shall state that it has participated in
conferences with officers and other representatives of the General Partner and
representatives of the independent public accountants for the General Partner
and the Partnership, at which conferences such counsel made inquiries of such
officers, representatives and accountants and discussed the contents of the
Registration Statement and the Prospectus, and no facts have come to the
attention of such counsel which cause them to believe that either the
Registration Statement or any amendment thereto, at the time such Registration
Statement or amendment became effective, or the Prospectus or any amendment or
supplement thereto, as of the date of such opinion contained any untrue
statement of a material fact or omitted to state a material fact stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and notes thereto
and other financial and statistical data or past performance information
included therein.)
(xiii) Such counsel shall also state that to the knowledge of such
counsel, based solely on its review of its litigation docket and an officer's
certificate from the General Partner: there are no legal or governmental
proceedings pending to which the Partnership or the General Partner is a party,
that are required to be described in the Registration Statement or the
Prospectus that are not so described; and to such counsel's knowledge no such
proceedings are threatened by governmental authorities or others.
(c) At each Closing Time, the General Partner shall deliver a
certificate to the effect that: (i) no order suspending the effectiveness of the
Registration Statement has been issued and no proceedings therefor have been
instituted or to the best of their knowledge upon due and diligent inquiry
threatened by the SEC, the CFTC or other regulatory or self-regulatory body;
(ii) the representations and warranties of the General Partner contained herein
are true and correct with the same effect as though expressly made at such
Closing Time and in respect of the
15
Registration Statement as in effect at such Closing Time; and (iii) the General
Partner has performed all covenants and agreements herein contained which are
required to be performed on their part at or prior to such Closing Time.
(d) At or prior to the Initial Closing Time, the Partnership shall have
received a capital contribution of the General Partner in the amount required by
the Limited Partnership Agreement and as described in the Prospectus.
(e) At the Initial Closing Time, executed copies of the Limited
Partnership Agreement and this Agreement shall be delivered to all parties.
(f) The parties hereto shall have been furnished with such additional
information, opinions and documents, including supporting documents relating to
parties described in the Prospectus and certificates signed by such parties with
regard to information relating to them and included in the Prospectus as they
may reasonably require for the purpose of enabling them to pass upon the sale of
the Units as herein contemplated and related proceedings, in order to evidence
the accuracy or completeness of any of the representations or warranties or the
fulfillment of any of the conditions herein contained; and all actions taken by
the parties hereto in connection with the sale of the Units as herein
contemplated shall be reasonably satisfactory in form and substance to Mayer,
Brown, ▇▇▇▇ & Maw LLP, counsel for the General Partner.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement to be fulfilled prior to a
Closing Time, this Agreement and all obligations hereunder may be cancelled by
any party hereto by notifying the other parties hereto of such cancellation in
writing or by fax at any time at or prior to such Closing Time, and any such
cancellation or termination shall be without liability of any party to any other
party other than in respect of Units already sold and except as otherwise
provided in Sections 6 and 8 of this Agreement.
SECTION 8. INDEMNIFICATION, CONTRIBUTION AND EXCULPATION.
(a) The General Partner severally (and not the Partnership) agrees to
indemnify and hold harmless the Additional Selling Agent and each person, if
any, who controls the Additional Selling Agent within the meaning of Section 15
of the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising from any breach of any representation or warranty of
the General Partner set forth herein or from any untrue statement of a material
fact or alleged untrue statement of a material fact contained in the
Registration Statement, in the Prospectus (or any amendment or supplement
thereto) or in the Promotional Material or any omission or alleged omission
therefrom of a material fact required to be stated therein or necessary in order
to make the statements therein not misleading or arising out of 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 therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
16
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by any governmental agency or
body commenced or threatened, or of any claim whatsoever based upon any such
breach, untrue statement or omission or any such alleged untrue statement or
omission (any settlement to be subject to indemnity hereunder only if effected
with the written consent of the General Partner); and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel) reasonably incurred in investigating, preparing or
defending against litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such material breach, untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under clauses (i) or (ii) above;
PROVIDED, HOWEVER, that (1) the General Partner will not be liable in any such
case to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration, Statement,
the Prospectus or the Promotional Material in reliance upon and in conformity
with written information furnished to the General Partner by or on behalf of the
Additional Selling Agent specifically for inclusion therein; and (2) such
indemnity with respect to any Prospectus shall not inure to the benefit of the
Additional Selling Agent (or any person controlling the Additional Selling
Agent) from whom the person asserting any such loss, liability, claim, damage or
expense purchased the Units that are the subject thereof if such person did not
receive a copy of the Prospectus, as amended or supplemented, at or prior to the
confirmation of the sale of such Units to such person and any untrue statement
or omission of a material fact contained in any Prospectus was corrected in the
Prospectus, as amended or supplemented. This indemnity agreement will be in
addition to any liability that the General Partner may otherwise have.
(b) The Additional Selling Agent agrees to indemnify and hold harmless
the General Partner, each of its managers and members, each of its officers who
signs the Registration Statement, and each person who controls the General
Partner within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnities to the Additional Selling Agent, but only with
reference to the written information relating to the Additional Selling Agent
furnished to the General Partner, by or on behalf of the Additional Selling
Agent specifically for inclusion in the documents referred to in the indemnity
set forth in subsection (a). This indemnity agreement will be in addition to any
liability which the Additional Selling Agent may otherwise have.
(c) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to any otherwise indemnified party (or a controlling
person of the indemnified party) in respect of any loss, liability, claim,
damage or expense referred to herein, then the otherwise indemnifying person
shall, in lieu of indemnifying the otherwise indemnified party (or controlling
person) contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage or expense, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the General
Partner on the one hand and the Additional Selling Agent on the other from the
offering of the Units by the Additional Selling
17
Agent or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the General Partner on the one hand and the Additional Selling Agent on the
other with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. In no event shall the aggregate contribution or liability of the
Additional Selling Agent exceed the aggregate upfront selling commissions and
ongoing servicing fees paid to the Additional Selling Agent hereunder. Relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the General Partner on the one hand or
the Additional Selling Agent on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties agree that it would not be just and
equitable if contributions pursuant to this Section 8(c) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an otherwise indemnifying party (or controlling person) to the
otherwise indemnified party as a result of the loss, liability, claim, damage or
expense referred to above in this Section 8(c), shall be deemed to include, for
purposes of this Section 8(c), any legal or other expenses reasonably incurred
by such otherwise indemnified party in connection with investigating or
defending any such action or claim.
(d) In no case shall a party be liable under this indemnity and
contribution agreement with respect to any claim unless such party shall be
notified in writing of the nature of the claim within a reasonable time after
the assertion thereof, but failure to so notify such party shall not relieve the
such party from any liability which it may have otherwise than on account of
this indemnity and contribution agreement, unless such party has been prejudiced
by such failure. Such party shall be entitled to participate at its own expense
in the defense or, if it so elects within a reasonable time after receipt of
such notice, to assume the defense of any suit so brought, which defense shall
be conducted by counsel chosen by it and satisfactory to the indemnified party
(or party entitled to contribution hereunder) or parties, defendant or
defendants therein.
Each party agrees to notify the other party within a reasonable time of the
assertion of any claim in connection with the sale of the Units against it or
any of its officers or directors or any controlling person within the meaning of
Section 15 of the 1933 Act.
SECTION 9. STATUS OF PARTIES.
In marketing Units pursuant to this Agreement, the Additional Selling Agent
is acting solely as an agent for the Partnership, and not as a principal. The
Additional Selling Agent will use its best efforts to assist the Partnership in
obtaining performance by each purchaser solicited by the Additional Selling
Agent whose offer to purchase Units from the Partnership has been accepted on
behalf of the Partnership, but the Additional Selling Agent shall not have any
liability to the Partnership in the event that Subscription Agreements and
Powers of Attorney are improperly completed or any such purchase is not
consummated for any reason. Except as specifically provided herein, the
Additional Selling Agent shall in no respect be deemed to be an agent of the
Partnership.
18
SECTION 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or contained in certificates of any party hereto submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
made by, or on behalf of, the Additional Selling Agent, the General Partner, the
Partnership, or any person who controls any of the foregoing, and shall survive
the Closing Times.
SECTION 11. TERMINATION.
In addition to any other termination rights set forth elsewhere in this
Agreement, each party shall have the right to terminate this Agreement: (i) at
any time upon no less than fifteen (15) business days' prior written notice to
the non-terminating party; or (ii) at any time upon written notice to the
non-terminating party in the event the non-terminating party breaches a material
representation, warranty or covenant of this Agreement.
SECTION 12. SURVIVAL.
Irrespective of the expiration or termination of this Agreement, Sections 2
(with respect to compensation payable for Units outstanding as of the date of
termination), 6 and 8 hereof shall survive, and all applicable provisions of
this Agreement with respect to outstanding Units.
SECTION 13. NOTICES AND AUTHORITY TO ACT.
All communications hereunder shall be in writing and, if sent to the
General Partner or the Partnership, shall be mailed, delivered or faxed and
confirmed to the General Partner at: RefcoFund Holdings, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile No. __________, Attention:
____________; with copies to Mayer, Brown, ▇▇▇▇ & Maw LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇. If sent to the Additional Selling Agent, shall be mailed, delivered or
telecopied and confirmed to it at _____________________, Attention:
_____________, with copies to __________________________________, Attention:
_______________. Notices shall be effective when actually received.
SECTION 14. PARTIES; ASSIGNMENT.
This Agreement shall inure to the benefit of and be binding upon the
Additional Selling Agent, the Partnership, the General Partner and such parties'
respective successors and permitted assigns to the extent provided herein. This
Agreement and the conditions and provisions hereof are intended to be and are
for the sole and exclusive benefit of the parties hereto and their respective
successors, permitted assigns and controlling persons and parties indemnified
hereunder, and for the benefit of no other person, firm or corporation. No
limited partner shall be considered to be a successor or an assignee solely on
the basis of such purchase. No party may assign its rights or obligations under
this Agreement to any other person without the prior written consent of the
other parties hereto.
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SECTION 15. GOVERNING LAW.
This Agreement and the rights and obligations of the parties created hereby
shall be governed by the laws of the State of
New York.
SECTION 16. CONSENT TO JURISDICTION.
The parties hereto agree that any action or proceeding arising directly,
indirectly, or otherwise in connection with, out of, related to, or from this
Agreement, any breach hereof, or any transaction covered hereby, shall be
resolved, whether by arbitration or otherwise, within the City of New York, and
State of New York. Accordingly, the parties hereto consent and submit to the
jurisdiction of the federal and state courts and applicable arbitral body
located within the City of New York, and State of New York. The parties further
agree that any such action or proceeding brought by any party to enforce any
right, assert any claim, or obtain any relief whatsoever in connection with this
Agreement shall be brought by such party exclusively in the federal or state
courts, or if appropriate, before any applicable arbitral body, located within
the City of New York, and State of New York.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be an
original and both of which together shall be deemed one and the same instrument.
If the foregoing is in accordance with each party's understanding of their
agreement, each party is requested to sign and return to the General Partner and
the Partnership a counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement among them in accordance with its
terms.
Very truly yours,
S&P MANAGED FUTURES INDEX FUND, LP
By: RefcoFund Holdings, LLC, General Partner
By:
-------------------------------------
REFCO FUND HOLDINGS, LLC
By:
-------------------------------------
Confirmed and accepted as of the date first above written:
[ADDITIONAL SELLING AGENT]
By:
-----------------------------------------
Title:
--------------------------------------
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