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EXHIBIT
1.01
JWH GlobalAnalytics
Fund, L.P.
301 Yamato Road
Suite 2200
Boca Raton, Florida 33431
FORM OF SELLING
AGREEMENT
Dated as of
,
2006
JWH GlobalAnalytics
Fund, L.P. (the ‘‘ Partnership ’’),
a limited partnership organized pursuant to a certificate of
limited partnership filed on May 12, 2006 (the ‘‘
Certificate of Limited Partnership ’’) and a
limited partnership agreement dated as of
,
2006 (the ‘‘ Limited Partnership Agreement
’’) under the Delaware Revised Uniform Limited
Partnership Act (the ‘‘ DRULPA ’’),
proposes, subject to the terms and conditions set forth in this
Agreement, to offer, sell, and issue up to 2,500,000 units of
limited partnership interest in the Partnership (‘‘
Units ’’), in two series (‘‘
Standard Series Units ’’ and ‘‘
Advisory Series Units ’’, respectively, and
either, a ‘‘ Series ’’).
John W. Henry &
Company, Inc., a Florida corporation (‘‘ JWH
’’), is the sole general partner and trading advisor of
the Partnership (the ‘‘ General Partner
’’).
UBS Securities LLC, a
Delaware limited liability company (the ‘‘ Clearing
Broker ’’), acts as the clearing commodity broker
pursuant to a futures brokerage agreement between the Clearing
Broker and the Partnership, dated as of
,
2006 (the ‘‘ Futures Agreement
’’).
The undersigned (the
‘‘ Selling Agent ’’) will act as a
selling agent for the Partnership on a ‘‘best
efforts’’ basis, in accordance with the terms and
conditions of this Agreement.
Prior to the Initial
Closing, as defined below, subscriptions for Units will be held by
[ ],
as escrow agent (the ‘‘ Escrow Agent
’’), pursuant to an escrow agreement among the
Partnership, the Escrow Agent and the Selling Agent, dated as of
,
2006 (the ‘‘ Escrow Agreement
’’).
1.
Representations and Warranties of the General Partner and the
Partnership . The General Partner
represents and warrants to each of the other parties hereto as to
itself, and the Partnership represents and warrants to the Selling
Agent as to itself, with respect to the agreements to which it is a
party and with respect to the other applicable documents, as
follows:
(a) The
Partnership has provided to the Selling Agent, and filed with the
Securities and Exchange Commission (the ‘‘ SEC
’’) on
[ ],
2006, a registration statement on Form S-1 (SEC File No.
333- ),
for the registration of 2,500,000 Units, under the Securities Act
of 1933, as amended (the ‘‘ 1933 Act
’’), and the rules and regulations promulgated by the
SEC thereunder (the ‘‘ SEC Regulations
’’). Copies of such registration statement have also
been filed with: (i) NASD Regulation, Inc. (the ‘‘
NASD ’’) pursuant to its Conduct Rules; and
(ii) the National Futures Association (the ‘‘
NFA ’’) in accordance with NFA Compliance
Rule 2-13. The registration statement and the prospectus
included therein are hereinafter called the ‘‘
Registration Statement ’’ and the ‘‘
Prospectus ,’’ respectively, except that if the
Partnership files a post-effective amendment to its registration
statement, then the term ‘‘Registration
Statement’’ shall, from and after the filing of each
such amendment, refer to the Registration Statement, as amended by
such amendment, and the term ‘‘Prospectus’’
shall refer to the amended prospectus then on file with the SEC as
part of the Registration Statement; and if a prospectus as first
issued in compliance with the SEC Regulations shall differ from the
prospectus on file at the time the applicable Registration
Statement or any amendment thereto shall have become effective, the
term ‘‘Prospectus’’ shall refer to the
prospectus most recently so issued from and after the date on which
it shall have been issued, including any amendment or supplement
thereto. The Partnership will not file any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus unless the Selling Agent has received reasonable prior
notice of and a copy of such amendment or supplement and has not
reasonably objected thereto in writing within one business day of
receipt of such notice and copy.
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(b) The
Limited Partnership Agreement provides for the subscription for and
sale of the Units; 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 each
Closing (as defined in Section 3(b) hereof) will have been,
taken; and, upon payment of the consideration therefor specified in
each accepted Subscription Agreement and Power of Attorney, in the
form included in the Prospectus (the ‘‘ Subscription
Agreement ’’), the Units will constitute valid
limited partnership interests in the Partnership.
(c) The
Partnership is a limited partnership duly organized pursuant to the
Certificate of Limited Partnership, the Limited Partnership
Agreement, and the DRULPA, and is validly existing under the laws
of the State of Delaware with full power and authority to engage in
the trading of futures interests (as defined in the Prospectus) and
to engage in its other contemplated activities as described in the
Prospectus; the Partnership has received a certificate of authority
to do business in the State of Florida as provided by
Section 620.1902 of the Florida Revised Uniform Limited
Partnership Act of 2005 and is qualified to do business in each
jurisdiction in which the nature or conduct of its business
requires such qualification and where the failure to be so
qualified could materially adversely affect the Partnership’s
ability to perform its obligations hereunder or under its Limited
Partnership Agreement, the Futures Agreement, or the Escrow
Agreement, as applicable.
(d) The
General Partner is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Florida, and is
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the nature or conduct of
its business requires such qualification and where the failure to
be so qualified could materially adversely affect the General
Partner’s ability to perform its obligations hereunder or
under the Limited Partnership Agreement, or as described in the
Prospectus.
(e) Each of
the Partnership and the General Partner has full partnership or
corporate power and authority, as applicable, under applicable law
to conduct its business and perform its respective obligations, as
applicable, under the Limited Partnership Agreement, the Futures
Agreement, the Escrow Agreement, and this Agreement.
(f) When the
Registration Statement becomes effective under the 1933 Act and at
all times subsequent thereto up to and including each Closing, the
Registration Statement and the Prospectus will comply in all
material respects with the requirements of the 1933 Act, the SEC
Regulations, the Commodity Exchange Act, as amended (the
‘‘ CEAct ’’), the rules and
regulations adopted by the Commodity Futures Trading Commission
(the ‘‘ CFTC ’’) under the CEAct
(the ‘‘ CFTC Rules ’’), and the
rules of the NASD and the NFA. As of its effective date, the
Registration Statement 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 not
misleading. The Prospectus, as of its date of issue and as of each
Closing, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which such statements
were made, not misleading. Any supplemental sales literature
employed in offering the Units (‘‘ Sales
Literature ’’), when read in conjunction with the
Prospectus, as of its date of issue and as of each Closing, will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
light of the circumstances under which such statements were made,
not misleading. Any Sales Literature will comply with the 1933 Act,
the SEC Regulations, the CEAct, the CFTC Rules, and the rules of
the NASD and the NFA. This representation and warranty shall not,
however, apply to any statement or omission in the Registration
Statement, Prospectus, or Sales Literature relating to the Selling
Agent or made in reliance upon and in conformity with information
furnished by the Selling Agent.
(g) The
accountants who certified the financial statements filed with the
SEC as part of 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.
(h) The
financial statements filed as part of the Registration Statement
and those included in the Prospectus present fairly the financial
position of the Partnership and of the General Partner as
of
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the dates indicated;
and, to the best of their knowledge, said financial statements have
been prepared in conformity with generally accepted accounting
principles (as described therein).
(i) Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise
be stated in or contemplated by the Registration Statement and the
Prospectus, there has not been any material adverse change in the
condition, financial or otherwise, business or prospects of the
General Partner or the Partnership, whether or not arising in any
ordinary course of business.
(j) The
General Partner will have a net worth at each Closing sufficient in
amount and satisfactory in form to meet the net worth requirements
set forth in the Limited Partnership Agreement and will maintain
its minimum investment in Units of General Partnership Interest as
provided in the Limited Partnership Agreement.
(k) The
Limited Partnership Agreement and this Agreement have each been
duly and validly authorized, executed, and delivered by the General
Partner on behalf of the Partnership and the General Partner, and
each constitutes a valid and binding agreement of the Partnership
and of the General Partner, enforceable in accordance with its
terms. The Futures Agreement and the Escrow Agreement have each
been duly and validly authorized, executed, and delivered by the
General Partner on behalf of the Partnership, and each constitutes
a valid and binding agreement of the Partnership, enforceable in
accordance with its terms.
(l) The
execution and delivery of the Limited Partnership Agreement, the
Futures Agreement, the Escrow Agreement, and this Agreement, the
incurrence of the obligations set forth in each of such agreements,
and the consummation of the transactions contemplated therein and
in the Registration Statement and the Prospectus, will not violate,
or constitute a breach of, or default under, the certificate of
incorporation or bylaws of the General Partner, the Certificate of
Limited Partnership or the Limited Partnership Agreement of the
Partnership, or any other agreement or instrument by which either
the General Partner or the Partnership, as the case may be, is
bound, or any law, order, rule, or regulation applicable to the
General Partner or the Partnership of any court, governmental body,
administrative agency, panel, or self-regulatory organization
having jurisdiction over the General Partner or the
Partnership.
(m) Except as
set forth in the Registration Statement or the Prospectus, there
has not been in the five years preceding the date of the Prospectus
and there is not pending or, to the best of the General
Partner’s knowledge, threatened, any action, suit, or
proceeding at law or in equity before or by any court, governmental
body, administrative agency, panel, or self-regulatory organization
to which the Partnership, the General Partner, or any of the
‘‘principals’’ of the General Partner, as
defined in CFTC Rule 4.10(e) (‘‘ General
Partner Principals ’’), is or was a party, or to
which any of the assets of the General Partner or the Partnership
is or was subject; and neither the General Partner nor any General
Partner Principal has received any notice of an investigation by
the SEC, CFTC, NASD, or NFA regarding non-compliance by the General
Partner, the General Partner Principals, or the Partnership with
the 1933 Act, the SEC Regulations, the Securities Exchange Act of
1934, as amended (the ‘‘ 1934 Act
’’), any other federal securities laws, rules or
regulations, the CEAct, the CFTC Rules, or the rules of the NASD or
the NFA, which action, suit, proceeding, or investigation resulted
or might reasonably be expected to result in any material adverse
change in the condition, financial or otherwise, business or
prospects of the General Partner or the Partnership, or which could
be material to an investor’s decision to invest in the
Partnership.
(n) The
General Partner and each ‘‘principal’’ of
the General Partner, as defined in CFTC Rule 3.1(a), have all
federal, state, and foreign governmental, regulatory,
self-regulatory, and exchange approvals, licenses, registrations,
and memberships, and have effected all filings with federal, state,
and foreign governmental regulators, self-regulatory organizations,
and exchanges required to conduct their business and to act as
described in the Registration Statement and the Prospectus, or
required to perform their obligations under the Limited Partnership
Agreement, the Futures Agreement, the Escrow Agreement, and this
Agreement. The General Partner is registered as a commodity pool
operator (‘‘ CPO ’’) and commodity
trading advisor (‘‘ CTA ’’) under
the CEAct and is a member of the
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NFA as a commodity pool
operator and commodity trading advisor. The General Partner’s
principals identified in the Prospectus are all of the General
Partner Principals.
(o) To the
extent required under CFTC Rules and applicable CFTC staff
no-action letters, the actual performance of all pools
‘‘operated’’ within the meaning of the
CEAct by the General Partner and the General Partner Principals as
a CPO, and all accounts managed by the General Partner and the
General Partner Principals as a CTA, is disclosed in the
Prospectus.
2.
Covenants of the Partnership and the General Partner .
The Partnership as to itself, and the
General Partner as to itself covenants and agrees as
follows:
(a) The
Partnership will use its best efforts to cause the Registration
Statement to become effective as promptly as possible. The
Partnership will prepare and file with the SEC, CFTC, NASD and NFA
any amendments to the Registration Statement, and any amendments
and supplements to the Prospectus, which the General Partner
determines are necessary or advisable in connection with the
offering and sale of Units, and will use its best efforts to cause
the same to become effective as promptly as possible.
(b) As soon
as the Partnership is advised or obtains knowledge thereof, the
Partnership will advise the Selling Agent of any requests made by
the SEC, CFTC, NASD, or NFA to amend the Registration Statement, to
amend or supplement the Prospectus, or for additional information,
or of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement, of any order by the
SEC, CFTC, NASD, or NFA preventing or suspending the use of the
Prospectus, or of the institution of any proceedings for any such
purpose, and will use its best efforts to prevent the issuance of
any such order and, if any such order is issued, to obtain the
lifting thereof as promptly as possible.
(c) If, at
any time after the effective date of the Registration Statement and
any amendment thereto, any event occurs involving the Partnership,
the General Partner, or any General Partner Principal, or of which
the Partnership, the General Partner, or any General Partner
Principal is aware, as a result of which the Registration Statement
or the Prospectus, as then amended and supplemented, would include
any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make
the statements therein (and, with respect to the Prospectus, in
light of the circumstances under which they were made) not
misleading, or if it becomes necessary or desirable at any time to
amend or supplement the Registration Statement or the Prospectus to
comply with the 1933 Act, the SEC Regulations, the CEAct, the CFTC
Rules, or the rules of the NASD or the NFA, the Partnership will
promptly notify the Selling Agent thereof and will prepare and file
with the SEC, CFTC, NASD, and NFA an amendment or supplement that
will correct such statement or omission or that will effect such
compliance.
(d) The
Partnership will furnish to the Selling Agent copies of the
Registration Statement, the Prospectus, all amendments and
supplements thereto, and all annual and monthly financial
statements and reports delivered to Limited Partners, in each case
as soon as available and, in the case of the Prospectus, in such
quantities as the Selling Agent may reasonably request for delivery
to it.
3.
Appointment of the Selling Agent .
(a) Subject
to the terms and conditions set forth in this Agreement, the
Partnership hereby appoints the Selling Agent on a non-exclusive
basis as its selling agent to offer and sell Standard Series Units
and/or Advisory Series Units (as indicated by check mark on the
signature page of this Agreement) on a best efforts basis, without
any firm commitment on the part of the Selling Agent to purchase
any Units. The Selling Agent shall offer for sale up to 2,500,000
Units and such additional Units as the General Partner may, in its
discretion, register and offer for sale from time to
time.
(b) The
‘‘ Initial Offering Period ’’ will
be the period commencing on the date of the Prospectus and
continuing for 90 days thereafter, unless all of the registered
Units have previously been subscribed for, the General Partner has
sooner terminated the Initial Offering Period, or the General
Partner has extended the Initial Offering Period for up to an
additional 90 days. During the Initial Offering Period, the Selling
Agent will offer Units for sale at an initial closing (the
‘‘ Initial Closing ’’),
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which will be held
within 10 business days following the end of the Initial Offering
Period. However, the General Partner may at its discretion hold
such Initial Closing at any time during the Initial Offering
Period. The Initial Closing shall not take place unless
subscriptions have been accepted for at least 200,000 Units. If the
minimum number of Units is not sold during the Initial Offering
Period, the offering of Units shall terminate, and all subscription
amounts (together with any interest earned thereon) shall be
refunded to subscribers, as described in the Prospectus. Units
which remain unsold following the Initial Closing shall be offered
for sale in the Partnership’s continuing offering (the
‘‘ Continuing Offering ’’), at
monthly closings to be held as of the first business day of each
month (each, a ‘‘ Monthly Closing
’’, and together with the Initial Closing, a
‘‘ Closing ’’). At the first Closing
at which Units of a Series are issued, Units of that Series will be
issued at a price equal to $100.00 per Unit, and, thereafter, Units
of that Series will be issued at a price per Unit equal to 100% of
the ‘‘ Net Asset Value per Unit ’’
(as defined in the Limited Partnership Agreement) of that Series as
of the close of business on the last day of the month preceding the
applicable Monthly Closing. The minimum initial subscription shall
be $10,000, except that subscribers who are trustees or custodians
of eligible employee benefit plans and individual retirement
accounts may make a $2,000 minimum initial investment. The minimum
subscription for subscribers who already own Units and desire to
make an additional investment is $2,000. The number of Units
received by a subscriber will be rounded to the fourth decimal
place.
(c) Notwithstanding
any provision to the contrary herein, the General Partner will have
the sole discretion to accept or reject any subscription for Units
in whole or in part at any time prior to acceptance.
(d) No
selling commissions will be charged with respect to the sale of
Units. The Partnership understands, however, that the Selling Agent
may compensate its employees from upfront and ongoing payments made
by the General Partner to the Selling Agent with respect to sales
of Standard Series Units, or from ‘‘wrap
fees’’ charged by the Selling Agent to investors
purchasing Advisory Series Units, as described in
Section 3(e).
(e) In the
case of Advisory Series Units, such Units shall be sold by the
Selling Agent exclusively to investors who represent that the
Selling Agent is directly compensated by such investors for
services relating to such investors’ portfolios or accounts
pursuant to ‘‘wrap account’’ or similar
arrangements. The General Partner will make no upfront or ongoing
payments to the Selling Agent with regard to Advisory Series Units,
nor will the investors purchasing such Advisory Series Units be
charged a monthly service fee, as described below. In the case of
Standard Series Units sold by the Selling Agent, the General
Partner will prepay an upfront service fee to the Selling Agent
equal to two percent (2.0%) of the Net Asset Value per Standard
Series Unit as of the applicable Closing for each Standard Series
Unit sold by the Selling Agent and issued at such Closing.
Following the Closing at which Standard Series Units are issued to
an investor, the Standard Series Units will be charged a monthly
service fee at a two percent (2.0%) annual rate (0.1667% monthly)
of the Net Asset Value per Unit as of the last day of each month.
For the first 12 months following the Closing at which Standard
Series Units are issued to an investor, the General Partner will
retain the monthly service fee to reimburse the General Partner for
the upfront service fee paid by the General Partner to the Selling
Agent. Commencing with the 13 th month following the
Closing at which Standard Series Units are issued to an investor
purchasing such Standard Series Units through the Selling Agent,
the service fee shall be paid by the Partnership to the General
Partner, and in turn paid by the General Partner to the Selling
Agent for certain ongoing services to such investors, as described
in Section 3(g). Notwithstanding the foregoing, the aggregate
of all service fees paid to the Selling Agent with regard to any
Standard Series Unit shall not exceed ten percent (10.0%) of the
initial purchase price paid by the investor for such Standard
Series Unit; accordingly, no additional service fees shall be
payable to the Selling Agent with regard to any Standard Series
Unit following payment of the maximum aggregate fees payable with
respect thereto under NASD Conduct Rule 2810. At such time as the
maximum service fees under NASD Conduct Rule 2810 have been paid
with respect to a Standard Series Unit, the Standard Series Unit
will convert into an equivalent dollar amount of Advisory
Series
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Units (rounded to the
fourth decimal place) based upon the Net Asset Value per Unit of
the Standard Series Units and Advisory Series Units at the time of
conversion. Thereafter, no service fee will be charged to such
Unit(s).
(f) Notwithstanding
the foregoing, the General Partner will not pay any such service
fees to the Selling Agent, and the Selling Agent shall not remit
any portion of such service fees to any employee, if the Selling
Agent or such employee is not legally qualified or permitted to
receive such compensation. In that regard: (i) the Selling Agent
shall be a securities broker or dealer registered as such with the
SEC under Section 15 of the 1934 Act, a member in good
standing of the NASD, and registered or licensed as a broker or
dealer in the state or other jurisdiction where the investor to
whom the Standard Series Units were sold resides; and (ii) any
employee of the Selling Agent to whom any portion of the service
fee may be paid shall be in good standing with the NASD as a
registered principal or representative of the Selling Agent, and
registered or licensed as an agent or salesperson of the Selling
Agent in the state or other jurisdiction where the investor to whom
the Standard Series Units were sold resides, and authorized under
such registrations or licenses to sell securities such as the
Standard Series Units.
(g) The
ongoing services that the Selling Agent and its employees shall
provide on an ongoing basis to Limited Partners in consideration of
the service fee and until their Units are redeemed (notwithstanding
that a service fee may no longer be payable to the Selling Agent
with regard to a Limited Partner’s Units because the limit on
such fee described in Section 3(e) may have been reached) will
include, but not be limited to: (i) inquiring of the General
Partner from time to time, at the request of Limited Partners, as
to the Net Asset Value of a Unit; (ii) inquiring of the
General Partner from time to time, at the request of Limited
Partners, as to the futures markets and the activities of the
Partnership; (iii) responding to questions of Limited Partners
from time to time with respect to monthly account statements,
annual reports, financial statements, and annual tax information
furnished periodically to Limited Partners; (iv) providing
advice to Limited Partners from time to time as to when and whether
to make additional investments or to redeem Units;
(v) assisting Limited Partners from time to time in the
redemption of Units; and (vi) providing such other services as
Limited Partners from time to time may reasonably
request.
(h) The
Selling Agent and the General Partner acknowledge that:
(i) the Partnership shall have no liability to the Selling
Agent or any employee of the Selling Agent with regard to any
service fee described above; and (ii) the General Partner will
be paid any and all redemption fees imposed on Limited Partners in
accordance with Section 10(b) of the Limited Partnership
Agreement.
4.
Representations, Warranties and Undertakings of Selling
Agent .
(a) The
Selling Agent represents and warrants to the Partnership and the
General Partner and agrees as follows:
(i) The
Selling Agent is a corporation, limited partnership, limited
liability company, or other organization duly organized and validly
existing and in good standing under the laws of the state of its
organization, is a member in good standing of the NASD, and has
full power and authority to act as selling agent in the manner
contemplated by this Agreement and as described in the Registration
Statement and the Prospectus. The Selling Agent is in good standing
and qualified to do business in each jurisdiction in which the
nature or conduct of its business requires such qualification and
where the failure to be duly qualified would materially adversely
affect the Selling Agent’s ability to perform its obligations
hereunder.
(ii) The
Selling Agent and any employees or representatives of the Selling
Agent who are engaged in the offering or sale of Units are in good
standing and in compliance with all applicable broker-dealer
registration or license requirements, or registered principal or
registered representative requirements in the places where the
Units will be offered or sold by the Selling Agent.
(iii) The
Selling Agent will offer and sell Units in compliance with the
requirements set forth in the Registration Statement, the
Prospectus (particularly under the captions ‘‘Summary
– The Offering,’’ ‘‘Plan of
Distribution,’’ ‘‘Subscription
Procedure,’’ and ‘‘Certain ERISA
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Considerations’’), the
Subscription Agreement, and this Agreement. The Selling Agent will
comply fully at all times with all applicable federal, state, and
foreign securities and commodities laws (including, without
limitation, the 1933 Act, the 1934 Act, the CEAct, and the state
securities (‘‘Blue Sky’’) laws of the
jurisdictions in which the Selling Agent solicits subscriptions),
and all requirements of the NASD (particularly Conduct Rule 2810),
the Board of Governors of the Federal Reserve System, and the
securities and commodities exchanges and other governmental
regulators and self-regulatory authorities and organizations having
jurisdiction over the Selling Agent. Specifically: (A) the
Selling Agent will not permit the purchase of any Units by a
customer account over which the Selling Agent has discretionary
authority without the prior written approval by the customer owning
such account; (B) the Selling Agent confirms that it has
reasonable grounds to believe that all material facts are
adequately and accurately disclosed in the Prospectus, which
provides a basis for evaluating the Partnership; (C) the
Selling Agent confirms that in determining the adequacy of
disclosed facts pursuant to clause (B), it has obtained information
on material facts relating to: (1) items of compensation,
(2) tax aspects, (3) financial stability and experience
of the General Partner, and (4) the Partnership’s
conflicts and risk factors; (D) in recommending to a
subscriber the purchase or redemption of Units, the Selling Agent
shall take such measures as are reasonably necessary to assure
itself that its employees making such recommendations (1) have
informed such subscriber of all pertinent facts relating to the
liquidity and marketability of the Units, and (2) have
reasonable grounds to believe, on the basis of information obtained
from such subscriber concerning the subscriber’s investment
objectives, other investments, financial situation and needs, and
any other information known by such employees, that: (a) such
subscriber is or will be in a financial position appropriate to
enable the subscriber to realize to a significant extent the
benefits described in the Prospectus, (b) such subscriber has
a fair market net worth sufficient to sustain the risks inherent in
the purchase of Units, including loss of investment and lack of
liquidity, and (c) the purchase of Units is otherwise suitable
for such subscriber; (E) the Selling Agent shall take such
measures as are reasonably necessary to assure itself that each
subscriber has received a Prospectus at least five business days
prior to the applicable Closing; and (F) the Selling Agent
will maintain all files containing information disclosing the basis
upon which the determination of suitability was reached for each
subscriber for a period of 6 years following the earlier of (1)
when such information was last replaced or updated or (2) when the
account belonging to such subscriber was closed.
(iv) The
Selling Agent will not distribute any information about the
Partnership, the General Partner, or the Units or make any
representations concerning the Partnership, Gene
