Exhibit 1.01
SELLING AGREEMENT
THIS SELLING AGREEMENT made as of this ___ day of June, 2000, among TUDOR
FUND FOR EMPLOYEES L.P., a Delaware limited partnership (the "Partnership"),
SECOND MANAGEMENT LLC, a Delaware limited liability company (the "General
Partner"), and CARGILL INVESTOR SERVICES, INC., a Delaware corporation (the
"Selling Agent").
WITNESSETH
WHEREAS:
A. The Partnership wishes to issue and sell from time to time units of
limited partnership interest ("Units") and the Selling Agent is willing on a
non-exclusive and "best efforts" basis to assist in the sale of Units.
B. The Selling Agent acknowledges receipt of copies of the Limited
Partnership Agreement of the Partnership and of a Prospectus dated June __, 2000
(as supplemented, amended, or otherwise revised and in effect from time to time,
the "Prospectus") relating to the sale of Units.
C. In consideration of the services to be rendered by the Selling Agent
hereunder, the General Partner has agreed to compensate the Selling Agent as
provided herein.
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties hereto agree as follows:
1. Grant of Distributorship.
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(a) On the basis of the representations, warranties and covenants herein
contained, but subject to the terms and conditions herein set forth, the
Partnership hereby grants to the Selling Agent the non-exclusive right, during
the term of this Agreement, to sell Units as agent and on behalf of the
Partnership to individuals and entities (each a "Limited Partner") that meet the
eligibility requirements set forth under the caption "Plan of Distribution" in
the Prospectus in an offering of Units registered under the Securities Act of
1933 as amended (the "Securities Act") and under the securities laws of each
jurisdiction in which Units are offered and sold. Units will be sold at a
purchase price (the "Purchase Price") equal to the net asset value per Unit
determined in accordance with the Prospectus and the Limited Partnership
Agreement of the Partnership as in effect from time to time. The minimum
initial subscription by each new Limited Partner and the minimum subscription by
existing Limited Partners shall be $1,000. The General Partner may, at its sole
discretion and for any reason, reject any subscription for Units, in whole or in
part, or expel any Limited Partner subsequent to the sale of Units and may
suspend partially or entirely the sale of its Units.
(b) From time to time, prior to each Subscription Date (as defined in the
Prospectus), the Selling Agent will notify the General Partner in writing as to
the dollar amount for which the Selling Agent shall have received subscription
requests and the names of each prospective Limited Partner making such a
request. Not later than the close of business in New York on the business day
immediately prior to the relevant Subscription Date, the Selling Agent will
confirm the dollar amount subscribed for and forward to the General Partner by
facsimile copies of the relevant Subscription Agreements completed in full. The
General Partner will promptly notify the Selling Agent whether such subscription
requests have been accepted.
2. Manner of Sales. The Selling Agent, the Partnership and the General
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Partner hereby agree that:
(a) Neither the Selling Agent nor any person authorized by or acting on its
behalf will directly or indirectly offer to sell, offer for sale or sell the
Units by means of any form of general solicitation or general advertising and
neither the Selling Agent nor any such person will offer to sell, offer for sale
or sell the Units by means of any advertisement, article, notice or other
communication published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. The
Selling Agent will make offers to sell Units to, or solicit offers to subscribe
for Units from, only those persons that, in the reasonable belief of the Selling
Agent based upon representations and other information provided by such persons,
meet the eligibility requirements set forth under the caption "Plan of
Distribution" in the Prospectus.
(b) Unless otherwise agreed by the Selling Agent, the General Partner and
the Partnership, offers of Units will only be made by the Selling Agent by means
of the then-current Prospectus, the then-current form of Subscription Agreement,
the most recent audited annual financial statements, and such other documents as
may be agreed upon in writing from time to time by the Selling Agent, the
General Partner and the Partnership (collectively, the "Offering Materials"),
and no documents other than the Offering Materials will be provided to
prospective investors or used by the Selling Agent for purposes of communicating
with prospective investors with respect to the offering of the Units.
(c) Intentionally omitted.
(d) Neither the Selling Agent nor any person authorized by or acting on its
behalf will directly or indirectly offer to sell, offer for sale or sell the
Units in any manner that violates the laws or regulations of any applicable
jurisdiction. All services of the Selling Agent provided for by this Agreement
shall be performed in a manner consistent with the Prospectus and the Limited
Partnership Agreement of the Partnership
(e) The Selling Agent, and its employees and agents, shall hold in
strictest confidence any and all confidential information and materials provided
to the Selling Agent by the Partnership and the General Partner, except as may
otherwise be
required by applicable law or the rules and regulations of the Securities and
Exchange Commission, the National Association of Securities Dealers, Inc. (the
"NASD") or any other regulator having jurisdiction over the Selling Agent.
Neither the Selling Agent, nor any of its employees or agents, shall use any of
the same except for purposes contemplated by this Agreement.
(f) The Selling Agent will retain in its records and make available to the
Partnership, the General Partner, and their respective agents for a period of at
least six years from the date of a subscription all information provided to the
Selling Agent by each Limited Partner and leading the Selling Agent to believe
that the purchase of Units by such Limited Partner is within the permitted class
of investors under the requirements set forth herein.
(g) The General Partner will give the Selling Agent a copy of each "blue
sky" survey prepared on behalf of the Partnership. The Selling Agent shall not
solicit any investor in any jurisdiction in which the Units are not then
qualified for offering and sale unless there is an exemption from qualification
available in such jurisdiction. The General Partner may, but it not obligated
to, cause the Partnership to qualify the Units in any jurisdiction requested by
the Selling Agent.
3. Suspension of Sales. The Partnership reserves the right to suspend
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offerings in whole or in part and to refuse to accept any application for Units
at any time at the sole discretion of the General Partner.
4. Provision of Information.
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(a) The Partnership shall furnish to the Selling Agent copies of all
Offering Materials, financial statements and other papers prepared by the
Partnership in its normal course of business and intended for distribution to
investors which the Selling Agent may reasonably request for use in connection
with the sale of Units.
(b) The Selling Agent is not authorized by the General Partner or the
Partnership to give any information or to make any representations other than
those contained in the Offering Memorandum (as in effect on such date) or
contained in shareholder reports or other material that may be prepared by or on
behalf of the Partnership for the Selling Agent's use.
5. Representations and Warranties.
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(a) Each of the Partnership, the General Partner and the Selling Agent
represents and warrants that (i) it is duly organized and validly existing under
the laws of the jurisdiction of its formation, (ii) it has full power and
authority to conduct is business as currently conducted or as contemplated to be
conducted by this Agreement, and (iii) the execution, delivery and performance
of this Agreement has been duly authorized by all necessary action, and upon
execution and delivery hereof, this Agreement will be the valid, binding and
enforceable obligation of such party, except as enforceability may be limited by
bankruptcy, moratorium, insolvency, or other law or enactment now or hereafter
enacted and by legal and equitable restrictions on the availability of specific
performance and other equitable remedies.
(b) The Selling Agent represents and warrants that (i) it possesses and
will continue to maintain all government licenses, permits, certificates,
consents, orders, approvals, memberships in self-regulatory organizations and
other authorizations, if any, necessary with respect to its qualification to
offer Units for sale, or solicit offers to buy Units under the circumstances in
which such offerings or solicitations will be made in particular jurisdictions,
in each of the various jurisdictions in which the Selling Agent will be making
such offers and solicitations, (ii) it will only offer to sell, offer for sale
or sell, directly or indirectly, Units in compliance with applicable laws, and
(iii) it will not offer to sell, offer for sale or sell, directly or indirectly,
Units in any jurisdiction in which offers or sales of the Units are not
authorized or in a manner which may be deemed to result in a public offering of
Units.
(c) The General Partner and the Partnership represent and warrant that at
the time of any solicitation of Units, the Offering Materials will not contain
an untrue statement of a material fact, or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information with respect
to the Selling Agent furnished to the General Partner or the Partnership by the
Selling Agent in connection with the Offering Materials.
6. Indemnification.
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(a) The General Partner agrees to indemnify and hold harmless the Selling
Agent and each person, if any who controls the Selling Agent within the meaning
of the Securities Act, (collectively, the "Indemnified Selling Agent Parties")
against any losses, claims, damages or liabilities, joint or several, to which
the Selling Agent or such controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
(A) the Offering Materials furnished to the Selling Agent for use in selling the
Units or (B) any blue sky application or other document executed by the
Partnership specifically for that purpose or based upon written information
furnished by the Partnership filed in any state or other jurisdiction in order
to qualify any or all of the
Units under the securities laws thereof (any such application, document or
information being hereinafter called a "Blue Sky Application"), or (ii) the
omission or alleged omission to state in the Offering Materials or in any Blue
Sky Application a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and will reimburse each Indemnified Selling Agent
Party for any legal or other expenses reasonably incurred by such Indemnified
Selling Agent Party in connection with investigating or defending any such
claim, liability or action; provided, however, that the General Partner will not
be liable in any case to the extent that such loss, claim, damage or liability
arises out of or is based upon an untrue statement or omission or alleged
omission made in reliance upon and in conformity with written information
furnished to the Partnership by the Selling Agent specifically for use with
reference to the Selling Agent in the preparation of any such Blue Sky
Application of Offering Materials. This indemnity agreement will be in addition
to any liability which the General Partner may otherwise have.
(b) The Partnership agrees to indemnify and hold harmless each Indemnified
Selling Agent Party in the manner and to the extent provided in paragraph (a)
above; provided, however, that no such indemnification by the Partnership of the
Indemnified Selling Agent Party shall be permitted under this Agreement for any
losses, liabilities or expenses arising from or out of an alleged violation of
federal or state securities laws unless (i) there has been a successful
adjudication on the merits of each claim involving alleged Federal or state
securities laws violations by the Indemnified Selling Agent Party; (ii) such
claims against the Indemnified Selling Agent Party have been dismissed with
prejudice on the merits by a court of competent jurisdiction; or (iii) a court
of competent jurisdiction approves a settlement of the claims against the
Indemnified Selling Agent.
(c) The Selling Agent agrees to indemnify and hold harmless the General
Partner, the Partnership and each person, if any who controls the General
Partner or the Partnership within the meaning of the Securities Act,
(collectively, the "Indemnified Partnership Parties") against any losses,
claims, damages or liabilities, joint or several, to which the General Partner,
the Partnership or such controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise or are based upon the actions
or inactions of the Selling Agent in connection with its performance of its
duties hereunder, and will reimburse each Indemnified Partnership Party for any
legal or other expenses reasonably incurred by such Indemnified Partnership
Party in connection with investigating or defending any such claim, liability or
action; provided, however, that the Selling Agent shall have no liability for
statements contained in the Offering Materials or any other document unless such
statements were based upon information supplied by the Selling Agent. This
indemnity agreement will be in addition to any liability which the Selling Agent
may otherwise have.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 6,
notify in writing the indemnifying party of the commencement thereof; and the
omission so to notify the
indemnifying party will relieve it from any liability under this Section 6 as to
the particular item for which indemnification is then being sought, but not from
any other liability which it may have.
7. Compensation.
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(a) The General Partner and the Selling Agent agree that, in consideration
of the Selling Agent performing its duties under this Agreement, the General
Partner will pay the Selling Agent an annual fee of $10,000.
(b) Acceptance by the Selling Agent of the compensation provided for herein
will constitute a representation by the Selling Agent that it has complied with
all of the provisions of this Agreement and that it will continue to comply with
the provisions of this Agreement for so long as it continues to receive any such
compensation.
8. Confidentiality. Each party, including its respective employees and
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agents, shall treat as confidential all information of all other parties,
including, without limitation, the Offering Materials, provided that the parties
may disclose the Offering Materials to third parties in connection with the
offer to sell, offer for sale, or sale, of Units as contemplated by this
Agreement and the Offering Memorandum. Notwithstanding the above, no party
shall have liability to the others with regard to disclosure of any information
that (i) was generally known and available in the public domain at the time it
was disclosed or becomes generally known or available through no fault of the
disclosing party, (ii) is disclosed with the prior written approval of the party
that such information relates to, (iii) becomes known to the disclosing party
from a source other than the party that such information relates to without
breach of this Agreement and otherwise not in violation of such party's rights,
or (iv) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided that the disclosing
party shall provide prompt advance notice thereof sufficient to enable the party
that such information relates to seek a protective order otherwise prevent such
disclosure.
9. Representations, Warranties, Compensation Arrangements and Indemnities
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to Survive Delivery. The representations, warranties and indemnities of the
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Partnership, the General Partner and the Selling Agent set forth in or made
pursuant to this Agreement will survive (i) the delivery of and payment for the
Units; and (ii) the termination of this Agreement.
10. Term; Amendment.
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(a) This Agreement shall be in effect through December 31, 2000.
Thereafter this Agreement shall be renewed automatically for successive one year
terms unless any of the parties hereto shall have notified the other of its
desire not to renew this Agreement by notice given not less than 30 days prior
to the original or any extended expiration date hereof.
(b) This Agreement may not be amended except by written agreement between
the parties hereto.
11. Notices. All communications under this Agreement must be in writing
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and must be sent (i) by telecopy if the sender on the same day sends a
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confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), (ii) by registered or certified mail with return receipt
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requested (postage prepaid), or (iii) by a recognized overnight delivery service
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(with charges prepaid). Communications under this Section 11 will be deemed
given only when actually received. All communications shall be addressed as
follows, or to such other address as may be provided in writing:
if to Selling Agent:
Cargill Investor Services, Inc.
One World Financial Center, Tower A
200 Liberty Street
New York, New York 10281
Fax: (212) 978-2343
Tel: (212) 978-2323
Attn: John D. Carlin
if to the Partnership or the General Partner:
Second Management LLC
One Liberty Plaza, 51st Floor
New York, NY 10006
Fax: (212) 385-2761
Tel: (212) 602-6725
Attn: Louise M. Zarrilli
with copies to:
Tudor Investment Corporation
One Liberty Plaza, 51st Floor
New York, NY 10006
Fax: (212) 406-3282
Tel: (212) 602-6704
Attn: General Counsel
12. Parties. This Agreement shall inure to the sole and exclusive benefit
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of, and be binding upon, the parties hereto and their respective successors. No
party hereto shall be entitled to assign or delegate its respective rights or
obligations hereunder without the written consent of the other party hereto.
13. Governing Law. This Agreement shall be governed by the laws of the
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State of New York without regard to the conflict of law principles thereof.
14. Jurisdiction. With respect to any suit, action, or proceeding
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relating to or arising out of this Agreement, each party irrevocably submits to
the exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan. Each party hereby
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) relating to or arising out of
this Agreement.
15. Headings. The paragraph headings used in this Agreement are included
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herein for convenience of reference only, and shall not constitute a part of
this Agreement for any other purpose or in any way affect the construction of
this Agreement.
16. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed to be an original, and all such counterparts shall
together constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in their respective names and behalves the day and year first above
written.
TUDOR FUND FOR EMPLOYEES L.P.
By: Tudor Investment Corporation,
General Partner
By:
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Name: Mark Pickard
Title: Managing Director
SECOND MANAGEMENT LLC
By:
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Name: Louise M. Zarrilli
Title: Managing Director
CARGILL INVESTOR SERVICES, INC.
By:
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Name: John D. Carlin
Title: Senior Vice President