EXHIBIT 1.2
ADDITIONAL SELLING AGENT AGREEMENT
GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
(AN ILLINOIS LIMITED PARTNERSHIP)
$200,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
DEARBORN CAPITAL MANAGEMENT, L.L.C.
General Partner and Commodity Pool Operator
DATED ____________, 2003
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GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
ADDITIONAL SELLING AGENT AGREEMENT
TABLE OF CONTENTS
Page
----
Section 1. Representations and
Warranties of the General Partner.............1
Section 2. Offering and Sale of
Units........................................6
Section 3. Compliance with Rule 2810
and General Laws.......................10
Section 4. Blue Sky
Survey..................................................13
Section 5. Covenants of the General
Partner.................................13
Section 6. Payment of Expenses and
Fees.....................................14
Section 7. Conditions of
Closing............................................15
Section 8. Indemnification,
Contribution and Exculpation....................18
Section 9. Status of
Parties................................................20
Section 10. Representations, Warranties and
Agreements to Survive Delivery...20
Section 11.
Termination......................................................20
Section 12.
Survival.........................................................20
Section 13. Notices and Authority to
Act.....................................21
Section 14. Parties;
Assignment..............................................21
Section 15. Governing
Law....................................................21
Section 16. Consent to
Jurisdiction..........................................21
Section 17.
Counterparts.....................................................21
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GRANT PARK FUTURES FUND LIMITED PARTNERSHIP
(AN ILLINOIS LIMITED PARTNERSHIP)
$200,000,000
UNITS OF LIMITED PARTNERSHIP INTEREST
CLASS A UNITS: PREVAILING NET ASSET VALUE PER UNIT
CLASS B UNITS: INITIALLY $1,000 PER UNIT; THEREAFTER PREVAILING
NET ASSET VALUE PER UNIT
ADDITIONAL SELLING AGENT AGREEMENT
[DATE]
[ADDITIONAL SELLING AGENT NAME AND
ADDRESS]
Dear Sir/Madam:
DEARBORN CAPITAL MANAGEMENT, L.L.C., an Illinois limited
liability
company (the "GENERAL PARTNER"), serves as
the general partner of an Illinois
limited partnership pursuant to the Revised
Uniform Limited Partnership Act of
the State of Illinois (the "ILLINOIS ACT")
under the name GRANT PARK FUTURES
FUND LIMITED PARTNERSHIP (the "FUND"), for
the purpose of engaging in the
speculative trading of futures contracts,
forward contracts, options on futures
contracts, forward contracts and on
commodities, security futures contracts,
spot contracts, swap contracts and other
commodity interest contracts,
implementing the trading methods of the
independent commodity trading advisors
engaged by the General Partner on behalf of
the Fund. ______________,
____________ and ____________ have been
appointed pursuant to the Selling
Agreement by and among each such person,
the General Partner and the Fund as
principal selling agents for the Fund
(collectively, the "PRINCIPAL SELLING
AGENTS"). Other selling agents (the
"ADDITIONAL SELLING AGENTS") may be selected
by the General Partner in its sole
discretion. You have been so selected by the
General Partner.
The Fund desires to raise capital as herein provided by the sale
of
units of limited partnership interest in
the Fund (the "UNITS"), the purchasers
of which will become limited partners
("LIMITED PARTNERS") of the Fund, and the
undersigned Additional Selling Agent hereby
agrees to use its best efforts to
market the Units pursuant to the terms
hereof. Accordingly, the undersigned
Additional Selling Agent, the General
Partner and the Fund, intending to be
legally bound, hereby agree as set forth
below. This Additional Selling Agent
Agreement shall be referred to herein as
the "AGREEMENT."
Section 1.
Representations and Warranties of the General Partner. The
General Partner represents and warrants to
the Additional Selling Agent as of
the date hereof, with such representations
and warranties to be restated and
reaffirmed as of each Closing Date (as
defined in Section 2(e) hereof):
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(a) The Fund has provided to the Additional Selling Agent, and
filed
with the
Securities and Exchange Commission (the "SEC"), a registration
statement on
Form S-1 (No. 333-104317), as initially filed with the SEC on
April 4, 2003
and an amendment or amendments thereto, for the registration
of the Units
under the Securities Act of 1933, as amended (the "1933 ACT"),
and has filed
one copy thereof with the National Futures Association
("NFA") in
accordance with NFA Compliance Rule 2-13, the Commodity
Exchange
Act, as amended (the
"COMMODITY ACT"), and the rules and regulations
thereunder (the
"CFTC Regulations"). The registration statement as amended
and delivered to
all parties hereto at the time it becomes effective
together with
any registration statement filed to register additional Units
under the 1933
Act pursuant to Rule 462(b) under the 1933 Act, and the
prospectus
included therein are hereinafter called the "REGISTRATION
STATEMENT" and
the "PROSPECTUS," respectively, except that: (i) if the Fund
files a
subsequent post-effective amendment to the registration
statement,
then the term
"Registration Statement" shall, from and after the
declaration of
the effectiveness of such post-effective amendment, refer to
the registration
statement as amended by such post-effective amendment
thereto; and
(ii) the term "Prospectus" shall refer to the prospectus as
most recently
issued by the Fund pursuant to the rules and regulations of
the SEC
promulgated under the 1933 Act (the "SEC REGULATIONS"),
together
with any current
supplement or supplements thereto.
The General Partner agrees to suspend the offering immediately
and
inform the
Additional Selling Agent if the General Partner has any reason
to believe that
it may be necessary or advisable to amend the Registration
Statement or
supplement the Prospectus.
No reference to the Additional Selling Agent may be made in the
Registration
Statement, Prospectus or in any promotional materials or other
marketing
materials, including "Tombstone Ads" or other communications
qualifying under
Rule 134 of the SEC Regulations (collectively,
"PROMOTIONAL
MATERIAL"), that has not been approved by the Additional
Selling Agent,
which approval the Additional Selling Agent may withhold in
its sole and
absolute discretion. The Fund will cooperate with the
Principal
Selling Agents in causing to be filed, all Promotional Material
with the
National Association of Securities Dealers, Inc. (the "NASD"),
and
will not use any
such Promotional Material unless the NASD has stated in
writing that it
appears to comply with all applicable standards or the
requirement for
such a statement has been waived by the Principal Selling
Agents. The Fund
will file, or cause to be filed, all Promotional Material
in state
jurisdictions as requested or required by law, and will not use
any such
Promotional Material in any state that has expressed any
objection
thereto (except
pursuant to agreed-upon modifications to the Promotional
Material).
(b) The certificate of limited partnership (the "CERTIFICATE OF
LIMITED
PARTNERSHIP") pursuant to which the Fund has been formed and
the
Third Amended
and Restated Limited Partnership Agreement (the "LIMITED
PARTNERSHIP
AGREEMENT") provide for the subscription for and sale of the
Units of the
Fund; all action required to be taken by the General Partner
and the Fund as
a condition to the sale of the Units to qualified
subscribers
therefor has been, or prior to the Initial Closing Date (as
defined in
Section 2(e) hereof) will have been, taken; and, upon payment
of
the
consideration
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therefor
specified in all accepted Subscription Agreements and Powers of
Attorney, the
form of which is set forth as Appendix B to the Prospectus,
the Units will
constitute valid units of limited partnership interest in
the Fund as to
which the subscribers thereto will have limited personal
liability to the
extent provided for under the Illinois Act and will be
Limited Partners
of the Fund entitled to all the applicable benefits under
the Limited
Partnership Agreement and the Illinois Act.
(c) The Fund is a limited partnership existing under the laws of
the
State of
Illinois with full power and authority to engage in the
business
to be conducted
by it, as described in the Registration Statement and
Prospectus. The
Fund is qualified to do business in each jurisdiction in
which such
qualification is necessary in order to protect the limited
liability of
Limited Partners and in which the nature or conduct of its
business as
described in the Registration Statement and Prospectus requires
such
qualification and the failure to be so qualified would be
reasonably
likely to have a
material adverse effect on the results of operations,
financial
condition or business ("MATERIAL ADVERSE EFFECT") of the Fund.
(d) The General Partner is, and will continue to be so long as it
is
the general
partner of the Fund, a limited liability company duly
organized,
existing and in good standing under the laws of the State of
Illinois and is
in good standing and qualified to do business in each
jurisdiction in
which the nature or conduct of its business as described in
the Registration
Statement and Prospectus requires such qualification and
the failure to
be so qualified would be reasonably likely to have a
Material Adverse
Effect on the Fund or the General Partner.
(e) Each of the Fund and the General Partner has full limited
partnership or
limited liability company power and authority, as the case
may be, under
applicable law to perform its respective obligations under
the Limited
Partnership Agreement and this Agreement, and to conduct its
business as
described in the Registration Statement and Prospectus.
(f) When the Registration Statement becomes effective under the
1933
Act and at all
times subsequent thereto up to and including each Closing
Date, the
Registration Statement, Prospectus and Promotional Material
will
comply in all
material respects with the requirements of the 1933 Act, the
SEC Regulations,
the Commodity Act and the CFTC Regulations. Each of the
Registration
Statement, the Prospectus and each item of Promotional
Material as of
the Initial Closing Date and each Closing Date thereafter
will not contain
any untrue statement of a material fact or omit to state a
material fact
necessary to make the statements therein, in the light of the
circumstances
under which such statements are made, not misleading;
provided,
however, that this representation and warranty does not apply
to
statements made
or omitted in reliance upon, and in conformity with,
written
information furnished to the General Partner with respect to
the
Additional
Selling Agent by or on behalf of the Additional Selling Agent,
expressly for
use in such Registration Statement, Prospectus or Promotional
Material.
(g) Since the respective dates as of which information is given in
the
Registration
Statement and the Prospectus, there has not been any material
adverse
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change in the
results of operations, financial condition or business of the
General Partner
or the Fund, whether or not arising in the ordinary course
of business, of
which the Additional Selling Agent has not been informed by
the General
Partner.
(h) Each of the Limited Partnership Agreement and this Agreement
has
been duly and validly authorized,
executed and delivered by the General
Partner (in the
case of the Limited Partnership Agreement) and by the Fund
and the General
Partner (in the case of this Agreement). The Limited
Partnership
Agreement constitutes a valid and binding obligation of the
General Partner
enforceable against the General Partner subject to the
effects of: (1)
bankruptcy, insolvency, fraudulent transfer and conveyance,
reorganization,
receivership, moratorium and other similar laws (including
judicially
developed doctrines with respect to such laws) affecting the
rights and
remedies at the time in effect affecting the enforceability of
creditors
generally; (2) general principles of equity, whether applied by
a
court of law or
equity with respect to performance and enforcement of the
Limited
Partnership Agreement and (3) any limitations under federal
securities laws
and other applicable laws and considerations of public
policy that
relate to indemnification and contribution.
(i) The execution and delivery of the Limited Partnership
Agreement
and this
Agreement, the incurrence of the obligations set forth therein
and
herein and the
consummation of the transactions contemplated therein,
herein and in
the Prospectus: (i) will not constitute a breach of, or
default under,
any instrument or agreement by which the General Partner or
the Fund, as the
case may be, or any of their properties or assets is
bound, or any statute, order, rule
or regulation applicable to the General
Partner or the
Fund, as the case may be, of any court or any governmental
body or
administrative agency having jurisdiction over the General
Partner
or the Fund, as
the case may be, except as would not be reasonably likely
to have a
Material Adverse Effect on the General Partner or the Fund;
(ii)
will not result
in the creation or imposition of any lien, charge or
encumbrance on
any property or assets of the General Partner or the Fund,
except as would
not be reasonably likely to have a Material Adverse Effect
on the General
Partner or the Fund; and (iii) will not give any party a
right to
terminate its obligations or result in the acceleration of any
obligations
under any material instrument or agreement by which the General
Partner or the
Fund, as the case may be, or any of their respective
properties or
assets is bound, except as would not, in the aggregate, be
reasonably
likely to have a Material Adverse Effect on the General Partner
or the Fund.
(j) Except as otherwise disclosed in the Registration Statement or
the
Prospectus,
there is not pending nor, to the General Partner's knowledge,
threatened any
action, suit or proceeding before or by any court or other
governmental
body to which the General Partner or the Fund is a party, or
to which any of
the assets of the General Partner or the Fund is subject,
that would
reasonably be expected to have a Material Adverse Effect on the
General Partner
or the Fund or which is required to be disclosed in the
Registration
Statement or Prospectus pursuant to the Commodity Act, the
CFTC
Regulations, the 1933 Act or the SEC Regulations.
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(k) No stop order relating to the Registration Statement has
been
issued by any
federal or state securities commission, and no proceedings
therefor are
pending or, to the knowledge of the General Partner,
threatened.
(l) The General Partner and each of its principals and employees
have,
and will
continue to have so long as it is the general partner of the
Fund,
all federal and
state governmental, regulatory, self-regulatory and
commodity
exchange approvals and licenses, and the General Partner
(either
on behalf of
itself or its principals and employees) has effected all
filings and
registrations with federal and state governmental, regulatory
or
self-regulatory agencies required to conduct its business and to
act as
described in the
Registration Statement and Prospectus or required to
perform its or
their obligations as described under the Limited Partnership
Agreement,
except as would not be reasonably likely to have a Material
Adverse Effect
on the General Partner or the Fund (including, without
limitation: (i)
registration as a commodity pool operator under the
Commodity Act;
(ii) membership in the NFA as a "commodity pool operator";
and (iii)
registration as a "transfer agent" with the SEC); and this
Agreement and
the performance of such obligations will not contravene or
result in a
breach of: (1) any provision of the General Partner's limited
liability
company operating agreement; or (2) any agreement, instrument,
order, law or
regulation binding upon the General Partner or any of its
employees or
principals, except as would not be reasonably likely to have a
Material Adverse
Effect on the General Partner or the Fund.
(m) The Fund does not require any federal or state
governmental,
regulatory,
self-regulatory or commodity exchange approvals, licenses or
registrations
and the Fund need not effect any filings with any federal or
state
governmental agencies in order to conduct its business and to act
as
contemplated by
the Registration Statement and Prospectus and to issue and
sell the Units
(other than filings under the 1933 Act, the Commodity Act
and state
securities laws relating solely to the offering of the Units).
(n) The General Partner has the financial resources necessary to
meet
its obligations
relating to the payment of expenses and fees to the
Additional
Selling Agent pursuant to Section 6 hereunder.
(o) The actual performance of the Fund is disclosed in the
Prospectus
as required by
the Commodity Act, the CFTC Regulations and the rules of the
NFA (the "NFA
RULES"); all of the information regarding the actual
performance of
the Fund set forth in the Prospectus is complete and
accurate in all
material respects and, except as disclosed in the
Prospectus, is
in accordance and compliance with the disclosure
requirements of
the Commodity Act, the CFTC Regulations and the NFA Rules.
(p) The General Partner acknowledges that the Additional
Selling
Agent's customer
lists constitute proprietary data belonging to the
Additional
Selling Agent, and the General Partner agrees that it will not
disseminate or
use any confidential information regarding any such data,
except as
required by law or in connection with the operation of the
Fund.
Furthermore, the
General Partner agrees that it will not solicit any client
on the
Additional Selling Agent's customer lists (exclusive of any
such
person who is a
pre-existing client of the General Partner or an Existing
Limited Partner
(as defined in
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Section 2(a)),
except as requested by the Additional Selling Agent in
connection with
soliciting investments in the Fund.
(q) The accountants who certified the financial statements of
the
General Partner
and of the Fund included in the Registration Statement are,
with respect to
the General Partner and the Fund, independent public
accountants as
required by the 1933 Act and the SEC Regulations. These
financial
statements fairly present the financial condition of the
General
Partner and the
Fund as of the dates shown and the results of operations
and changes in
partners' capital of the Fund for the periods shown, and are
presented in
accordance with generally accepted accounting principles as
currently in
effect in the United States.
Section 2.
Offering and Sale of Units.
(a) The Additional Selling Agent is hereby appointed as a
non-exclusive
Additional Selling Agent for the Fund during the term herein
specified for
the purpose of finding acceptable subscribers for the Units
through a public
offering of such Units. Subject to the performance by the
General Partner
of its obligations hereunder and to the completeness and
accuracy in all
material respects of the representations and warranties of
the General
Partner contained herein, the Additional Selling Agent hereby
accepts such
agency and agrees on the terms and conditions herein set forth
to use its best
efforts to find acceptable subscribers for the Units,
provided that
there is no minimum number of Units for which the Additional
Selling Agent
agrees to find subscribers.
It is understood that the Additional Selling Agent's agreement to
use
its best efforts
to find acceptable subscribers for the Units shall not
prevent it from
acting as a selling agent or underwriter for the securities
of other
issuers, including affiliates of the Additional Selling Agent,
that may be
offered or sold during the term hereof. The agency of the
Additional
Selling Agent hereunder shall continue until the expiration or
termination of
this Agreement as provided herein, including such additional
period as may be
required to effect a final closing of the sale of the
Units subscribed
for through the date of such termination. All
subscriptions
are subject to acceptance or rejection, in whole or in part
in the General
Partner's sole discretion, and no compensation shall be due
hereunder in
respect of rejected subscriptions.
The Additional Selling Agent acknowledges that the Units are
divided
into separate
Classes each of which is open for investment only by certain
subscribers as
follows and as described in the Prospectus, or otherwise in
the General
Partner's discretion. Class A Units are reserved for: (i)
current Limited
Partners who purchased beneficial interests in the Fund
during the
private offering of the Fund's interests ("EXISTING LIMITED
PARTNERS"); and
(ii) new subscribers subscribing for the requisite minimum
subscription
amount as described below. Class B Units are reserved for new
subscribers
generally. The minimum initial subscription amount for Class A
Units for new
subscribers is $200,000. The minimum initial subscription
amount for Class
A Units for Existing Limited Partners is $15,000, except
for Existing
Limited Partners that are employee benefit plans or individual
retirement
accounts, for which the minimum initial subscription amount is
$5,000. The
minimum additional subscription amount for Class A
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Units for all
Limited Partners is $15,000, except for Limited Partners that
are employee
benefit plans or individual retirement accounts, for which the
minimum
additional subscription amount is $5,000. The minimum initial
subscription
amount for Class B Units is $10,000, except for subscribers
that are
employee benefit plans or individual retirement accounts, for
which the
minimum initial subscription amount is $5,000. The minimum
additional
subscription amount for Class B Units for all Limited Partners
is $2,000. The
foregoing minimum subscription requirements are subject to
any higher or
different minimum subscription requirements that may be
imposed by
certain state securities regulators, as may be set forth in the
Subscription
Requirements attached as Appendix C to the Prospectus.
No upfront sales commission will be payable to the Additional
Selling
Agent in
connection with its sales of any Class A Units. With respect to
sales of Class B
Units, the General Partner agrees to pay, from its own
funds, an
upfront sales commission to the Additional Selling Agent equal
to
3.5% of the Net
Asset Value per Unit (as defined in the Limited Partnership
Agreement) of
each Class B Unit sold by the Additional Selling Agent at
each Closing
Date. The General Partner shall pay the upfront sales
commission with
respect to any sale of Class B Units due to the Additional
Selling Agent
within fifteen (15) business days of the applicable Closing
Date.
The Additional Selling Agent agrees that it will promptly pass on
to
its Registered
Representatives that portion of the upfront sales
commissions
received from the General Partner for its sale of Class B Units
to which such
Registered Representatives are entitled pursuant to the
Additional
Selling Agent's standard compensation procedures, as determined
by the
Additional Selling Agent from time to time.
(b) The General Partner agrees to pay, from its own funds,
ongoing
trailing
commissions to the Additional Selling Agent with respect to its
sales of the
Units as follows.
For ongoing services rendered to Limited Partners holding Class
A
Units as
described below in this subsection (b), the General Partner
shall
pay the
Additional Selling Agent ongoing trailing commissions in an
amount
equal to ___% of
the month-end Net Asset Value per Unit (a ___% annual
rate) of all
Class A Units sold by the Additional Selling Agent that remain
outstanding as
of the end of each month (including Units redeemed as of the
end of such
month), provided that the total underwriting compensation per
Class A Unit
will not exceed 10% of the subscription proceeds of the unit
unless the
Additional Selling Agent remains registered with the CFTC as a
futures
commission merchant or introducing broker and remains a member
in
good standing of
the NFA in such capacity, and the registered
representative
of the Additional Selling Agent responsible for the sale is
registered with
the CFTC, is a member of the NFA and has either passed the
Series 3 or
Series 31 examination or was "grandfathered" as an associated
person of the
selling agent.
Such ongoing trailing commissions shall begin to accrue with
respect
to each Class A
Unit as of the end of the first full month following the
Closing Date for
the sale
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of such Unit,
and shall continue only for as long as such Class A Unit
remains
outstanding, regardless of the termination of this Agreement
for
any reason.
For ongoing services rendered to Limited Partners holding Class
B
Units as
described below in this subsection (b), the General Partner
shall
pay the
Additional Selling Agent ongoing trailing commissions in an
amount
equal to 0.292%
of the month-end Net Asset Value per Unit (a 3.5% annual
rate) of all
Class B Units sold by the Additional Selling Agent that remain
outstanding as
of the end of each month (including Units redeemed as of the
end of such
month), provided that the total underwriting compensation per
Class B Unit
will not exceed 10% of the subscription proceeds of the unit
unless the
Additional Selling Agent remains registered with the CFTC as a
futures
commission merchant or introducing broker and remains a member
in
good standing of
the NFA in such capacity and the registered representative
of the Selling
Agent responsible for the sale is registered with the CFTC,
is a member of the NFA and has
either passed the Series 3 or Series 31
examination or
was "grandfathered" as an associated person of the selling
agent.
Such ongoing trailing commissions shall begin to accrue with
respect
to each Class B
Unit as of the end of the thirteenth full month following
the Closing Date
for the sale of such Unit, and shall continue only for as
long as such
Class B Unit remains outstanding, regardless of the
termination of
this Agreement for any reason.
The General Partner shall pay the ongoing trailing commissions due
to
the Additional
Selling Agent within fifteen (15) business days of the end
of each
applicable calendar month.
Notwithstanding the foregoing, ongoing trailing commissions shall
be
payable to the
Additional Selling Agent only in respect of Units sold by
Registered
Representatives who are themselves registered with the CFTC and
who have passed
either the Series 3 National Commodity Futures Examination
or the Series 31
Futures Managed Funds Examination, and are contingent upon
the provision by
such Registered Representatives of ongoing services in
connection with
the Units sold by such Registered Representatives,
including: (i)
inquiring of the General Partner from time to time, at the
request of an
owner of Units, as to the Net Asset Value per Unit; (ii)
inquiring of the
General Partner from time to time, at the request of an
owner of Units,
regarding the commodity interest markets and the Fund;
(iii) assisting,
at the request of the General Partner, in the redemption
of Units; and
(iv) providing such other services to the owners of Units as
the General
Partner may, from time to time, reasonably request. The
Additional
Selling Agent agrees to adopt procedures to monitor the
adequacy
of the ongoing
services provided by Registered Representatives.
The Additional Selling Agent agrees to pass ongoing trailing
commissions on
to their Registered Representatives, pursuant to the
Additional
Selling Agent's standard compensation procedures, as determined
by the
Additional Selling Agent from time to time.
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(c) In the case
of Class A Units acquired by Existing Limited Partners
in exchange for
their limited partnership interests in the Fund previously
sold by the
Additional Selling Agent on a private placement basis, the
Additional
Selling Agent will not receive any upfront sales commissions
for
the Units at the
Initial Closing of such Units. However, if the Additional
Selling Agent is
receiving ongoing trailing commissions in respect of such
privately placed
limited partnership interests it will continue to receive
such ongoing
trailing commissions with respect to the
