EXHIBIT 1.1
SELLING 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
SELLING 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..................................................12
Section 5. Covenants of the General
Partner.................................13
Section 6. Payment of Expenses and
Fees.....................................14
Section 7. Conditions of
Closing............................................14
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.....................................20
Section 14. Parties;
Assignment..............................................21
Section 15. Governing
Law....................................................21
Section 16. Consent to
Jurisdiction..........................................21
Section 17.
Counterparts.....................................................21
Exhibit A -- Form of Additional Selling
Agent Agreement
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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
SELLING AGREEMENT
[DATE]
[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. [SELLING
AGENT] (the "SELLING AGENT") shall be a
principal selling agent for the Fund.
____________ and ____________ also will
serve as principal selling agents for the
Fund (the Selling Agent, collectively
with the other principal selling agents,
the "PRINCIPAL SELLING AGENTS"). Other
selling agents (the "ADDITIONAL SELLING
AGENTS") may be selected by the General
Partner in its sole discretion,
substantially in accordance with the terms of
the Form of Additional Selling Agent
Agreement, attached as Exhibit A hereto.
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
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
Fund, intending to be legally bound, hereby
agree as set forth below. This
Selling 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 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(g) hereof):
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(a) The Fund has provided to the Selling Agent, and filed with
the
Securities and
Exchange Commission (the "SEC"), a registration statement on
Form S-1 (No.
333-104317), 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.
Except as required by law, the Fund 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 Fund will not utilize any promotional brochures 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 such Selling Agent may withhold in its sole
and absolute
discretion. The Fund 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 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
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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(g) hereof) will have been, taken;
and, upon
payment of the consideration 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, in the aggregate, 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
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 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 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 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 that 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.
4
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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 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 Selling Agent's
customer
lists constitute
proprietary data belonging to the 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 Selling Agent's customer
lists (exclusive
of any such person who is a pre-existing client of the
General
5
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Partner or an
Existing Limited Partner (as defined in Section 2(a)), except
as requested by
the 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 Selling Agent is hereby appointed as a Principal Selling
Agent
for the Fund
(although as described herein the Fund will engage the other
Principal
Selling Agents and it is contemplated that various Additional
Selling Agents
also may 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.
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 of the Selling Agent, that 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
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
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
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benefit plans or
individual retirement accounts, for which the minimum
initial
subscription amount is $5,000. The minimum additional
subscription
amount for Class
A 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 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 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 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 Selling Agent within fifteen (15) business
days of the
applicable Closing Date.
The 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 Selling
Agent's standard
compensation procedures, as determined by the Selling
Agent from time
to time.
(b) The General Partner agrees to pay, from its own funds,
ongoing
trailing
commissions to the 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 Selling
Agent ongoing trailing commissions in an amount equal to
.1875% of the
month-end Net Asset Value per Unit (a 2.25% annual rate) of
all Class A
Units sold by the 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
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 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 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 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
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 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
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 Selling
Agent agrees to
adopt procedures to monitor the adequacy of the ongoing
services
provided by Registered Representatives.
The Selling Agent agrees to pass ongoing trailing commissions on
to
their Registered
Representatives, pursuant to the Selling Agent's standard
compensation
procedures, as determined by the Selling Agent from time to
time.
(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
Selling Agent on a private placement basis, the Selling Agent
will not receive
any upfront sales commissions for the Units at the Initial
Closing of such
Units. However, if the Selling Agent is receiving ongoing
trailing
commissions in respect of such privately placed
8
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limited
partnership interests it will continue to receive such ongoing
trailing
commissions with respect to the Class A Units exchanged
therefor;
provided,
however, that as of the Initial Closing, such ongoing trailing
commissions
shall be paid in accordance with subsection (b) above (subject
to Rule 2810 of
the
