Exhibit No. 1.02
[QUADRIGA LOGO]
"DRAFT" ADDITIONAL SELLING AGENT AGREEMENT
Made on _______________, 2002 between:
QUADRIGA ASSET MANAGEMENT INC.
551 FIFTH AVENUE
SUITE 1502
NEW YORK, NY 10176
(sometimes hereinafter called "QAM")
and
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(sometimes hereinafter called the "Additional Selling Agent")
Whereas:
A. Quadriga Capital Management, Inc. is an International Business Company
("QCM") registered on the 11th day of November, 1999 pursuant to CAP
152 of the 1990 Revised Laws of Grenada Company No. 1102 of 1999 -
2046, and is the general partner of Quadriga Superfund, L.P., Series A
and Series B (the "Company").
B. Quadriga Asset Management, Inc. is a registered Broker/Dealer and NASD
Member and has been appointed by the "company" as exclusive marketing
agent to assist the "company" with the solicitation of subscriptions
for "units" "as hereinafter defined" in the "Company".
C. The "Additional Selling Agent" is a Broker/Dealer and NASD member and
is organized in accordance with the laws of the state or country of
its formation.
D. "Units" means units or other participation rights in the Issuer which
are expressly announced to the Additional Selling Agent as covered by
this Agreement.
Now in consideration of the mutual promises and agreements herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is hereby agreed as follows:
1. APPOINTMENT OF THE ADDITIONAL SELLING AGENT
1.1 QAM hereby invites the Additional Selling Agent to participate as an
additional selling agent on a non-exclusive, non transferable and
non-assignable basis to offer for sale Units. The Additional Selling
Agent hereby accepts such invitation and agrees to participate in such
offer for sale on the terms and conditions set out in this Agreement.
1.2 The Additional Selling Agent warrants that it has obtained all
necessary licenses and authorizations of all applicable authorities to
engage in the activities covered by this Agreement and the Additional
Selling Agent shall immediately inform QAM in writing if at any time
such license or authorization expires or is withdrawn. Without
limiting the foregoing, Additional Selling Agent represents and
warrants that it is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended and is a member in good standing of
the National Association of Securities Dealers, Inc. The Additional
Selling Agent acknowledges its understanding that it is not entitled
to any compensation hereunder for any period during which it has been
suspended or expelled from membership in the NASD. The intermediary
further acknowledges that it shall not be permitted to receive
trailing commission payments from the Company unless intermediary is
registered with the CFTC and is a member in good standing of the NFA.
The intermediary shall cause any sales persons receiving such trailing
commissions to have a valid NASD Series 3 or Series 31 license at the
time of receipt thereof.
1.3 The Additional Selling Agent agrees to offer, sell and distribute
Units in the above-described public offering only in such states or
territories where it is permitted to offer, sell and distribute Units.
1.4 The Company reserves the right to cancel or refuse or terminate, in
whole or in part, any instruction or application to subscribe for
Units or contract for purchase of any Units. The Additional Selling
Agent agrees that no commission will be due or owing to the Additional
Selling Agent on any transactions which are refused or cancelled.
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1.5 The Additional Selling Agent shall perform the services hereunder as
an independent contractor and not as an employee of the Company or
QAM. Nothing in the Agreement shall constitute or is deemed to
constitute a partnership, joint venture, agency, trust, formal
business organization, separate legal entity or other association of
any kind between the parties hereto. The Additional Selling Agent
shall have no authority to bind or act on behalf of the Company or
QAM. Except as specifically provided by this Agreement, Additional
Selling Agent shall not act or represent or hold itself out as having
authority to act as agent or partner of the Company or QAM, or in any
way bind or commit the Company or QAM to any obligations. Any such act
will create a separate liability in Additional Selling Agent to any
and all third parties affected as a consequence. The rights, duties,
obligations and liabilities of the parties shall be several and not
joint or collective and each party shall be responsible individually
only for its obligations described by this Agreement.
2. DUTIES OF THE ADDITIONAL SELLING AGENT
2.1 The Additional Selling Agent:
(a) shall not make any representation other than as set out in the sales
documents, offering memorandum, prospectus or similar documents issued
by the Company or give or make any warranty on behalf of the Company
or QAM;
(b) shall observe the terms and conditions relating to the promotion of
the Company and to the issuance and sale of the Units whether
contained in the sales documentation issued by the Issuer or in any
directions of QAM provided to the Additional Selling Agent, or imposed
by law or regulations having the force of law in any country or
territory in which the Additional Selling Agent is promoting the Units
or in which any investor or potential investor in the Units is a
resident or of which such investor is a citizen or national and, in
particular, but without limitation, the Additional Selling Agent shall
not promote the Units or procure or seek to procure subscriptions for
the Units from any person (whether an individual, firm or corporation)
who is not eligible by reason of nationality or otherwise, to invest
in the Units,
(c) Acknowledges its responsibility under applicable law to make every
reasonable effort to determine that the purchase of "Units" is a
suitable and appropriate investment for each person to whom
"Additional Selling
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Agent" introduces "Units", based on information provided by such
person.
2.2 In connection with its activities under this Agreement, the Additional
Selling Agent shall use only such sales documents and/or promotional
brochures as have been approved by the Company or QAM. QAM shall
obtain approval for such sales documents to the extent legally
required by the supervisory authority in any relevant jurisdiction
prior to their use. The Additional Selling Agent shall not circulate
any prospectus which has been withdrawn or supplemented.
2.3 The Additional Selling Agent shall have no authority to accept
applications for Units on behalf of the Company and shall in no
circumstances have any power to enter into a transaction on behalf or
in any other way to bind the Company or QAM.
2.4 The Additional Selling Agent warrants to observe the conduct of
business rules applicable in any state or territory in which the
Additional Selling Agent is promoting the Units or - if applicable -
in which any investor or potential investor in the Units is resident
or of which such investor is a citizen or national. It is the
Additional Selling Agent's duty to inform investors and potential
investors in a reasonable manner about the Units and about the risks
of investing in them, and to observe the terms and conditions relating
to the sale and distribution of Units imposed by law or regulations
having the force of law in any applicable state or territory.
2.5 Additional Selling Agent's use of any of trademarks, trade names or
logos of the Company or QAM shall be in a form and manner agreed to by
QAM and in compliance with any applicable country-of-origin labeling
requirements. Additional Selling Agent's use of any trademarks, trade
names or logos of the Company or QAM shall be restricted to and
coextensive with the performance of all of Additional Selling Agent's
duties under this Agreement, shall cease immediately in the event this
Agreement is terminated, and shall not be construed as conferring upon
Additional Selling Agent any right or interest in or to such
trademarks, trade names, or logos or to any registration thereof.
2.6 Additional Selling Agent shall submit all advertising copy, including
but not limited to sales brochures, newspaper and yellow page
advertisements, radio and television commercials, internet-based web
material, to QAM for approval, in QAM's sole discretion, prior to
using the same in commerce.
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3. DUTIES OF QAM
QAM shall support the Additional Selling Agent concerning the offering and
distribution of the Units by providing the Additional Selling Agent with such
sales documents and promotional brochures as have been approved by the Company
or QAM, including copies of the prospectus and any amendments and supplements
thereto, without charge, and providing the Additional Selling Agent with such
current information or modifications regarding the Company or the distribution
of Units as is necessary to promote the Units.
4. TERRITORY
The Additional Selling Agent is not authorized to directly or indirectly
promote, offer, sell, distribute or deliver any of the Units in states or
territories except those identified to the Additional Selling Agent by the
Company or QAM.
5. COMPENSATION
The remuneration payable to the Additional Selling Agent on transactions in
Units is set out in the attached Schedule I. All fees shall be paid monthly in
arrears no later than the 20th calendar day of such month according to Schedule
I based on the net asset value of Units which the Additional Selling Agent is
credited as having sold.
6. PREVENTION OF MONEY LAUNDERING
6.1 The Additional Selling Agent shall use due diligence to learn the
essential facts relative to every person or entity for whom orders for
the purchase of Units are effected and shall follow procedures that
are at least equivalent to those required by the USA Patriot Act and
regulations adopted thereunder on prevention of the use of the
financial system for the purposes of money laundering as amended from
time to time. In the event that QAM requires information or is
required by any competent authority to provide information as to the
identity of investors or in the event that any form of money
laundering is suspected, the Additional Selling Agent agrees to make a
full disclosure of such information to QAM and/or all appropriate
authorities. Where the Additional Selling Agent is a resident in a
country which is a member of the Financial Action Task Force, such
disclosure shall be made to the extent provided by local law. The
Additional Selling Agent will retain the evidence of verification of
identity and records of all transactions for at least five years
following
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the ending of the relationship with any person for whom orders for the
subscription of Units have been affected.
6.2 QAM reserves the right to seek and the Additional Selling Agent agrees
to supply to the Company and QAM and/or any designated representative
of them, without undue delay, such documentation as it may request in
order to satisfy itself as to the essential facts relative to the
Additional Selling Agent and any suspected or potential money
laundering. If the Additional Selling Agent fails to supply such
documentation as requested by the Company or QAM, each Issuer and/or
representative of them within a reasonable period of time, this
Agreement may be terminated at the sole discretion of QAM immediately
in writing in accordance with clause 7 .2 (except to the extent that
QAM will not be required to give written notice of such termination).
In the event that the Company, QAM, and/or any representative of them
is required by any competent authority to provide information as to
the identity of the Additional Selling Agent or in the event that
money laundering is suspected, the Additional Selling Agent agrees to
make a full disclosure of all relevant information to the Company,
QAM, and/or all appropriate authorities.
6.3 The Additional Selling Agent warrants and agrees to indemnify the
Company and QAM and hold the Company and QAM harmless from and against
all liabilities, losses, damages, claims and expenses, including
attorneys' and other legal fees, in connection with the foregoing
warranty.
7. TERMINATION
7.1 QAM may terminate or suspend this Agreement immediately if any
licenses or approvals required of the Additional Selling Agent are
suspended, expire or are revoked or if the Additional Selling Agent is
otherwise unable to perform its duties hereunder, or if any finding of
wrongdoing or breach of any laws or regulations is made against it or
if the intermediary breaches any term or conditions of this agreement.
7.2 Either Party may terminate this agreement without cause upon 30 days
written notice given to the other party.
7.3 If this Agreement is terminated pursuant to Article 7.1, then
Additional Selling Agent shall not be entitled to any commissions, or
any other remuneration, subsequent to the first to occur of the
suspension, expiration or revocation of any licenses or approvals
required of the Additional Selling Agent, or the date that Additional
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Selling Agent is otherwise unable to perform its duties hereunder, or
the date of any wrongdoing or breach of any laws or regulations or
this agreement by Additional Selling Agent, or the date of termination
hereof.
8. INDEMNIFICATION
8.1 QCM agrees to indemnify and hold harmless the Additional Selling Agent
and each person, if any, who controls such person within the meaning
of Section 15 of the Securities Act against any and all losses,
claims, damages, costs, expenses, liabilities, joint or several
(including any investigatory, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted), and actions to which they,
or any of them, may become subject under the Securities Act, the
Securities Exchange Act of 1934, the Commodity Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages, costs, expenses, liabilities or
actions arise out of or are based upon any untrue statement of a
material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment of
supplement thereto, or the omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Prospectus, of any
amendment or supplement thereto, in the light of the circumstances
under which such statements were made); provided, however, that in
-------- no event shall the indemnification agreement contained in
this subsection 8.1 of Section 8 inure to the benefit of any of the
indemnified parties (or any person controlling any such party within
the meaning of Section 15 of the Securities Act) on account of any
losses, claims, damages, costs, expenses and liabilities arising from
the sale of the Units to any person if such losses, claims, damages,
costs, expenses, liabilities or actions arise out of or are based
upon, an untrue statement or omission in a preliminary prospectus or
the Prospectus or a supplement or amendment thereto, if a preliminary
prospectus, the Prospectus, the Prospectus as amended or supplemented
or as further amended or supplemented, respectively, shall correct,
prior to the delivery to such person of his subscription, the untrue
statement or omission which is the basis of the loss, claim, damage,
liability or action for which indemnification is sought and a copy of
a preliminary prospectus, the Prospectus or the Prospectus as amended
or supplemented or as further amended or supplemented, as the case may
be, had not been sent or given to such indemnified person at or prior
to the receipt of the subscription.
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8.2 The Additional Selling Agent agrees to indemnify and hold harmless the
Partnership and QCM, as the case may be, and each person, if any, who
controls the Partnership or as the case may be, within the meaning of
Section 15 of the Securities Act to the same extent as the foregoing
indemnity from QCM set forth in subsection 8.1 of this Section 8 (and,
in the case of QCM, for any indemnity paid by QCM pursuant to
subsection 8.1 of this Section 8, but only insofar as such losses,
claims, damages, costs, expenses, liabilities or actions arise out of
or are based upon a breach of any agreement, covenant, representation
or warranty set forth in this Agreement by the Additional Selling
Agent.
8.3 Each of the parties to this Agreement understands that the obligations
of each party subject to this Section 8 are separate and distinct.
Notwithstanding any other provision of this Section 8, QCM (i) shall
have no obligation to indemnify the Additional Selling Agent for more
than the amount of proceeds resulting from the sale of Units by the
Additional Selling Agent during the Continuing Offering Period plus
the Additional Selling Agent's actual expenses incurred in connection
with any loss, claim, damage, charge or liability (including
reasonable attorneys' and accountants' fees incurred in defense
thereof) and (ii) any obligation of QCM to indemnify the Additional
Selling Agent shall be adjusted to reflect the relative responsibility
of the Additional Selling Agent (if any) for the circumstances giving
rise to the losses, claims, damages, costs, expenses, liabilities or
actions for which indemnification is sought.
8.4 Notwithstanding any other provision of this Agreement, indemnification
of QCM or its controlling persons by the Partnership shall be
permitted only to the extent permitted by the Agreement of Limited
Partnership, as amended.
8.5 Any party which proposes to assert the right to be indemnified under
this Section 8 will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of
which a claim is to be made against an indemnified party under this
Section 8, notify each such indemnifying party of the commencement of
such action, suit or proceeding but the omission to notify an
indemnifying party shall not relieve such indemnifying party from any
liability which it may have to any indemnified party under this
Section 8 except to the extent, and only to the extent, that such
omission was prejudicial to the indemnifying party. In no event shall
any such omission relieve an indemnifying party of any liability which
it may have to an indemnified party otherwise than under this Section
8. In case any such action, suit or proceeding shall be brought
against any
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indemnified party, and such party shall notify the indemnifying party
of the commencement thereof; the indemnifying party shall be entitled
to participate therein, and, if it shall wish, individually or jointly
with any other indemnifying party, to assume (or have such other party
assume) the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party
to such indemnified party of its election (or the election of such
other party) so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party for any legal or other
expenses, other than reasonable costs of investigation requested by
the indemnifying party (or such other party), subsequently incurred by
such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment by counsel
by such indemnified party has been authorized by the indemnifying
party (or such other indemnifying party as may have assumed the
defense of the action in questions), (ii) the indemnified party shall
have reasonably concluded that there may be a conflict interest
between the indemnifying party (or such other party) and the
indemnified party in the conduct of the defense of such action (in
which case the indemnifying party (or such other party) shall not have
the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact
have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel shall be at the expense
of the indemnifying party (subject to possible reimbursement of the
indemnifying party by such other party). An indemnifying party shall
not be liable for any settlement of any action or claim effected
without its consent. In the case of (ii) above, the indemnifying party
(or the indemnifying parties, if an indemnified party shall have a
claim for indemnification against more than one indemnifying party)
shall not be liable for the expenses of more than one separate counsel
for each of the following groups: (x) the Additional Selling Agent and
any person who controls the Additional Selling Agent within the
meaning of Section 15 of the Securities Act, and (y) the Partnership
and QCM and any person who controls the Partnership and within the
meaning of Section 15 of the Securities Act.
9. MISCELLANEOUS
9.1 This Agreement embodies the entire understanding between the parties
hereto in respect of the subject matter hereof and no modification or
amendment of any provision of this Agreement shall
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be effective unless the same shall be reduced to writing and signed by
the parties hereto.
9.2 The illegality, invalidity or enforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision
9.3 In case that single terms of this Agreement are or become inoperative
or impracticable, the rest of this Agreement shall remain unaffected
thereby. To the extent practicable, any invalid or inoperative terms
will be replaced by valid and operative terms which are closest to the
real purpose of the invalid or inoperative terms.
9.4 All controversies resulting from this contract, including the question
of its valid realization and its pre-effects and consequences,
exclusively lie in the jurisdiction of the competent court of New
York, and the parties agree that New York law, applied without regard
to conflict of laws principles, shall be solely applicable to the
interpretation and enforcement of this Agreement.
9.5 This Agreement is deemed to have been drafted jointly by the parties,
and any uncertainty or ambiguity shall not be construed for or against
either party as an attribution of drafting to either party.
9.6 This Agreement may be executed in any one or more counterparts, each
of which shall constitute an original, no other counterpart needing to
be produced, and all of which, when taken together, shall constitute
but one and the same instrument. If this Agreement is signed and
transmitted by facsimile machine or electronic mail, the signature of
any party on such agreement transmitted by facsimile or electronic
mail shall be considered, and have the same force and effect, as an
original document.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
FOR QUADRIGA ASSET MANAGEMENT INC.:
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George Fountas (President)
Date:
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FOR THE ADDITIONAL SELLING AGENT:
- --------------------------- -----------------------------
Date:
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SCHEDULE I
REMUNERATION
Made on _______________, 2002 between:
QUADRIGA ASSET MANAGEMENT INC.
551 FIFTH AVENUE
SUITE 1502
NEW YORK, NY 10176
(sometimes hereinafter called "QAM")
and
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----------------------------
(sometimes hereinafter called the "Additional Selling Agent")
1. In consideration of the Additional Selling Agent soliciting and
obtaining purchasers of the Units, QAM shall pay the Additional
Selling Agent a selling commission as specified below subject to the
possibility of a payment of additional selling commissions as
described herein.
In consideration of the provision by the Additional Selling Agent of
the additional services specified below in the next succeeding
paragraph, QAM will pay to the Additional Selling Agent (provided it
represents that it is registered with the CFTC as a futures commission
merchant or introducing broker and is a member in good standing of the
NFA in such capacity) ongoing payments serviced by the Additional
Selling Agent. Such ongoing compensation shall commence at the
beginning of the thirteenth full month after the sale of the Units.
The Additional Selling Agent may pay such compensation to its
registered representatives who are registered as associated persons
with the CFTC and have passed the National Commodity Futures
Examination (Series 3) or the Futures Managed Funds
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Examination (Series 31). If any such registered representative shall
transfer employment to another CFTC/NFA registered firm, and the
limited partners to which he sold shall also become clients of the
transferee firm, the Additional Selling Agent agrees to transfer its
ongoing compensation to the transferee firm.
The ongoing compensation specified above shall be in consideration of
and is contingent upon the provision by the Additional Selling Agent
or its affiliates of additional services in connection with the Units
sold by the Additional Selling Agent, including: (w) inquiring of QCM
from time to time, at the request of an owner of Units sold by it, as
to the Net Asset Value of a Unit; (x) inquiring of QCM from time to
time, at the request of an owner of Units sold be it, regarding the
commodities markets and the Partnership; (y) assisting, at the request
of QCM, in the redemption of Units sold by it; and (z) providing such
other services to the owners of the Units sold by it as QCM may, from
time to time, reasonably request. The Additional Selling Agent also
will use its best efforts to insure that any of its registered
representatives to whom compensation is passed on will cooperate in
providing the services specified in clauses (w) through (z) above for
as long as such representative continues in the employment of the
Additional Selling Agent. The Additional Selling Agent shall forfeit
its rights hereunder to receive any ongoing compensation relating to
the additional services for the entirety of any month during which it
is not duly registered with the CFTC as a futures commission merchant
or introducing broker and a member in good standing of NFA.
Additional Selling Agents and registered representatives who are not
registered with the CFTC as described above may receive additional
selling commissions from QAM, paid on the same basis as the ongoing
payments, provided that the total of such additional selling
commissions plus the initial selling commission and per Unit
organization and offering costs properly deemed to constitute costs
allocable to the Additional Selling Agents, such as a selling
brochure, seminar costs and travel expenses do not exceed 10% of such
Units' initial sale price. Any such ongoing payments or additional
selling commission will be paid by QAM and not by the Company, but may
be deemed to constitute underwriting compensation. If any such
registered representative shall transfer employment to another NASD
registered firm, and the limited partners to which he sold shall also
become clients of the transferee firm, the Additional Selling Agent
agrees to transfer its ongoing compensation to the transferee firm.
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1.1 The Company will pay to the Additional Selling Agent a sales
commission according to the appropriate Matrix below, based on the net
asset value at the end of the immediately preceding month of Units
which the Additional Selling Agent is credited as having sold (without
regard to such net asset value for any prior period):
1.1.a Standard Compensation Matrix:
1.1.b Alternate Compensation Matrix:
Upon termination of the Additional Selling Agent Agreement pursuant to
the terms of Section 7.2 thereof, the following matrix supersedes the
provisions of 1.1.a hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
FOR QUADRIGA ASSET MANAGEMENT INC.:
- ----------------------------- -----------------------------
George Fountas (President)
Date:
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FOR THE ADDITIONAL SELLING AGENT:
- ----------------------------- -----------------------------
Date:
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