Exhibit 10.1
CONFIDENTIAL TREATMENT
REQUESTED.
Confidential portions of this document have been redacted and have
been separately filed with the Commission.
INVESTMENT ADVISORY AGREEMENT AND
DISCRETIONARY TRADING AUTHORIZATION
BETWEEN WELTON INVESTMENT CORPORATION AND ADF TRADING COMPANY I,
LLC
DATED DECEMBER 1, 2008
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THIS AGREEMENT
FOR ADVISORY SERVICES is made and entered into this 1st day of
December, 2008, between WELTON INVESTMENT CORPORATION, hereinafter
referred to as the “Advisor,” and ADF Trading Company
I, LLC , hereinafter referred to as the
“Client.” IT IS MUTUALLY AGREED:
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1)
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This agreement
is for the GLOBAL DIRECTIONAL PORTFOLIO as described in the Welton
Global Directional Portfolio Account Document (“Account
Document”).
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2)
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The Client
acknowledges that the nominal trading size shall be [*] and the
amount of [*] shall be initially deposited with UBS, the Clearing
Broker, or legally committed through a Letter of Commitment. If the
account is to be partially-funded, the difference between the
nominal trading size and the actual funds committed to the account
shall be [*] in notional funds. The initial deposit, all subsequent
deposits to and withdrawals from the account, and all transactions
effected in the account shall be subject to this agreement. If the
Client owns more than one account that is managed by the Advisor,
each such account shall be subject to this agreement.
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3)
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The
account’s level of trading, risk, and management fees, if
any, will be based on total Account Equity. Account Equity shall be
defined as the account’s total assets less total liabilities
and includes any realized profits, losses, or income from
investment activity, and will include the sum of all cash, U.S.
Treasury bills, if any, at their cost, other interest-bearing
obligations, if any, at their cost, the capital committed and/or
promised but not actually deposited in the Client’s account,
and the current market value of all open positions less brokerage
commissions and transaction fees that would be payable with respect
to the closing of all open positions.
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4)
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The Client
authorizes the Advisor in accordance with the investment program as
described in the Account Document to cause, in the Advisor’s
complete discretion without prior consultation and notice to the
Client, domestic and foreign futures and options contracts
transactions, and/or cash currencies (foreign exchange) to be
bought, sold, or spread, and to buy and sell obligations of, or
guaranteed by, the United States for the account and sole risk of
the Client. The Client appoints the Advisor as its exclusive
attorney-in-fact for such purpose, with full power and authority to
act for the Client and on the Client’s behalf in directing
such trading and taking any other actions necessary or appropriate
to carry out such authority, except that the Advisor shall not have
any authority to withdraw any funds, securities or other property
from the account except as specifically authorized by the Client
for the payment of advisory fees from the account when due. The
Client will not trade this account and will not authorize any other
party to trade this account.
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5)
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The Advisor
shall have full authority to transmit orders directly to the
Clearing Broker or to an Executing Broker of the Advisor’s
choice and at the Advisor’s discretion, and the Clearing
Broker or Executing Broker is authorized to accept and execute all
such orders. The Client authorizes the Advisor, in the
Advisor’s discretion, to place orders for the Client’s
account with one or more brokers (Executing Broker) other than the
Clearing Broker and to use the Exchange for Physical (EFP)
mechanism when it is deemed by the Advisor to be advantageous. The
Client hereby appoints the Advisor as its attorney-in-fact to
execute on the Client’s behalf the Uniform Brokerage Service
Execution (Give-Up) Agreement or any other give-up agreement that
the Advisor, in its discretion, determines to be substantially
similar. The Client acknowledges that the Clearing Broker will bill
him for reasonable and customary “give-up” fees charged
by the Executing Broker. This power-of-attorney is a continuing
power and shall remain in full force and effect until terminated by
the Client in writing pursuant to Section 10 hereof, but any such
termination shall not effect any transaction initiated prior to the
receipt of such notice of termination.
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____________________
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* Confidential
material redacted and filed separately with the
Commission.
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6)
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The Advisor
shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Client in
any capacity other than as set forth herein.
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7)
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The Advisor
will manage the account pursuant to its trading and portfolio
management strategies, as selected by the Client and as described
in its Account Document and as may be modified from time to
time.
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8)
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The Client
represents and warrants to the Advisor that the Client is of legal
age to be bound by this contract; that the funds are invested for
speculation and that the amount of his investment in initial
account equity does not constitute funds required for daily living
or business expenses; that the Client has knowledge and experience
in financial and business matters and is aware of the various risks
involved in futures, options and foreign exchange trading,
including the possibility of a loss of a portion or in excess of
his investment; that the Advisor cannot give any assurances as to
the potential extent of the Client’s loss, and that the
Client is able to assume the risks of such an investment; that the
account will be for the Client’s interest only; that this
Agreement may be terminated at any time pursuant to Section 10
hereof; that the Client has received, read, and understands the
Advisor’s Account Document; that he, and not the Advisor, is
responsible for all margin deposits, brokerage commissions, and
other costs and expenses charged by the Clearing Broker and/or
Executing Broker; that the Client understands that neither the
Advisor nor anyone else can guarantee that the account will be
profitable; that the Client has entered into this Agreement solely
on the basis of information in the Account Document and has not
relied on any representations of the Clearing Broker or other
person not appearing in the Account Document; that to the extent
the Client is utilizing “Notional Funds,” the Client
understands the ramifications thereof, including the effects on
trading leverage and management fees to be paid.
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9)
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The Advisor and
its principals, employees and agents shall not be liable to the
Client for any actions of the Advisor if the Advisor acted in good
faith and in a manner reasonably believed to be in, or not opposed
to, the best interests of the Client and if such actions did not
constitute gross negligence or willful misconduct.
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The Client will
indemnify, hold harmless and defend the Advisor and its principals,
employees and agents from and against any liability, loss, cost or
expense (including attorneys’, accountants’ and
auditors’ fees) to which any of them may become subject: in
acting in accordance with or in enforcing this agreement; in
connection with any transaction for the Client’s account; as
a result of any failure of the Client to pay any fees due to the
Advisor or the Advisor’s investigating or defending any
liability, loss, cost or expense covered by this
indemnity.
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10)
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This Agreement
is a continuing one and shall remain in effect until terminated,
except that the Agreement shall automatically terminate upon
written notice to Advisor of the death, legal disability or
bankruptcy of the Client. Notice in such instance shall be deemed
given on the close of business on the day such notice is actually
received by the Advisor. Either party may otherwise terminate this
Agreement by giving the other party two business days prior written
notice.
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