Exhibit 1.01
SELLING AGENT AGREEMENT
_______________, 2002
Quadriga Asset Management, Inc.
180 North LaSalle Street
Suite #2416
Chicago, Illinois 60601
Ladies and Gentlemen:
Quadriga Superfund, L.P., a Delaware limited partnership issuing Series A
and Series B units (the "Company"), whose general partner is Quadriga Capital
Management, Inc. ("QCM"), hereby confirms its agreement with Quadriga Asset
Management, Inc. ("QAM", "Agent" or "you"), as follows:
Introductory
The Company is offering (the "Offering") for sale of its newly issued
units of business trust (the "Units"). It is acknowledged that QCM may, in its
sole discretion, regardless of any priorities or preferences, accept or reject
subscriptions in whole or in part in the Offering and terminate the Offering at
any time. Once made, subscriptions are irrevocable provided that a subscriber
may revoke his subscription within 10 business days prior to the applicable
Closing (defined below), whichever comes first, by the subscriber delivering
written notice to QCM.
The term "Initial Offering Period" is the period commencing on the date
of the Prospectus and ending on April 30, 2003 (unless extended by QCM upon
amendment of the Registration Statement (defined below)) or such earlier date as
QCM has accepted subscriptions for at least $2,000,000 in either Series. During
the Initial Offering Period, Agent will offer Units for sale at an "Initial
Closing" at a price equal to $1,000 per Unit, which Initial Closing will not
take place unless QCM has accepted subscriptions for at least 2,000 Units in any
single Series. If the minimum number of Units is not sold during the Initial
Offering Period, the Offering will terminate and all subscription amounts
(together with any interest earned thereon) will be refunded to subscribers, as
described in the Prospectus.
Units which remain unsold following the Initial Closing will be offered
for sale in a continuing offering (the "Continuing Offering") at monthly
closings ("Monthly Closings;" the Initial Closing or any Monthly Closing, each a
"Closing") to be held on the last day of each month at a price per Unit equal to
100% of the Net Asset Value, as defined in the Company's restated trust
agreement (the "Trust Agreement"), as of the close of business on the date of
such Monthly Closing.
The minimum initial subscription for an investor is $5,000. Once an
investor has been admitted to the Company, there is no minimum for additional
subscriptions, except that they must be in multiples of $1,000.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-1 containing a prospectus
relating to the Offering for the registration of the Units under the Securities
Act of 1933, as amended (the "1933 Act"). The Registration Statement, as amended
and as declared effective by the Commission, is hereinafter referred to as the
"Registration Statement." The prospectus on file with the Commission at the time
the Registration Statement initially becomes effective is hereinafter called the
"Prospectus," except that if the Company files a Prospectus pursuant to Rule 424
of the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") which differs from the Prospectus on file at the time the
Registration Statement initially becomes effective, or if the Company files an
amendment to the Registration Statement subsequent to the time it initially
becomes effective and such amendment contains a Prospectus which differs from
the Prospectus on file at the time the Registration Statement initially becomes
effective, the term "Prospectus" refers to the Prospectus filed pursuant to Rule
424 or contained in such amendment to the Registration Statement from and after
the time said Prospectus is filed with or transmitted to the Commission for
filing.
Any terms not expressly defined herein have the same definition and
meaning as is set forth in the Prospectus.
SECTION 1. APPOINTMENT OF AGENT
Subject to the terms and conditions herein set forth, the Company
hereby appoints Quadriga Asset Management, Inc. as its exclusive marketing agent
to consult with and advise the Company, and, on a "best efforts" basis, to
assist the Company with the solicitations of subscriptions for Units in
connection with the Company's offering of the Units in the Offering. Agent will
offer and sell Units in compliance with the requirements set forth in the
Registration Statement, the Prospectus, the Subscription Agreement and this
Agreement.
On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth, Quadriga
Asset Management, Inc. accepts such appointment and agrees to consult with and
advise the Company as to matters relating to the Offering and agrees to use its
best efforts to solicit subscriptions for Units in accordance with this
Agreement; provided, however, that the Agent will not be responsible for
obtaining subscriptions for any specific number of Units, will not be required
to purchase any Units and will not be obligated to take any action which is
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inconsistent with any applicable law, regulation, decision or order or decree,
directive, agreements or memorandum of or with any court, regulatory body,
administrative agency, or other government body. Units will be offered by means
of Subscription Agreements and Subscription Agreement for Existing Investors or
Subscribers, substantially in the respective forms set forth as Exhibit C and D
to the Prospectus (each a "Subscription Agreement").
The parties agree that Units may be sold by the Agent or by other
broker-dealers appointed by the Agent (each an "Additional Selling Agent"),
provided that each such other broker-dealer executes a Selected Additional
Selling Agent Agreement in the form attached hereto as Exhibit A. The Selling
Agent and each Additional Selling Agent will notify the Company of the identity
of the registered representative of the Agent or Additional Selling Agent, as
the case may be, credited with the sale of each Unit (such registered
representative being referred to as the "Responsible Broker" and such Unit being
referred to as a "Credited Unit").
The Selling Agent and each Additional Selling Agent will agree
diligently to make inquiries of each prospective purchaser of Units concerning
the suitability of such an investment for such person and to retain in its
records and make available to the Company for a period of a least six years,
information establishing that an investment in Units is suitable for each
purchaser of Units solicited by them.
SECTION 2. COMPENSATION OF THE SELLING AGENT, ADDITIONAL SELLING AGENTS AND
RESPONSIBLE BROKERS
As compensation for the Agent's services under this Agreement or an
Additional Selling Agent's services under an Additional Selling Agent Agreement,
the Company will pay to the Agent or such Additional Selling Agent, as the case
may be, a sales commission of up to 4% of the purchase price of each Unit sold
by the Agent or such Additional Selling Agent. Such compensation will be paid
promptly following the applicable Closing for such Unit.
As additional compensation to each Responsible Broker, the Company will
pay the Responsible Broker a trailing commission with respect to each Credited
Unit equal to 4% of the Net Asset Value of a Unit (the "Trailing Commission").
The Trailing Commission will be based on the Net Asset Value of a Unit as of the
last day of each year, commencing December 31, 2003; provided that:
(a) no Trailing Commission will be paid with respect to any Credited
Unit that has been outstanding for less than one full year;
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(b) if a Credited Unit is redeemed during a subsequent year, the
Trailing Commission with respect to such Credited Unit will be prorated based on
the portion of the year during which such Credited Unit was outstanding; and
(c) to be eligible to receive the Trailing Commission, the Responsible
Broker must, at the date of payment, be a registered representative of a
broker-dealer that is registered with the Commission and is a member of the
National Association of Securities Dealers, Inc. (the "NASD") or be an
associated person of a futures commission merchant registered with the Commodity
Futures Trading Commission (the "CFTC") (such requirements being referred to as
the "Eligibility Requirements").
The Trailing Commission, if any, payable to a Responsible Broker will
be paid within 45 days following the close of each year.
Once you or an Additional Selling Agent sell Units to a particular
investor, you or such Additional Selling Agent will be entitled to a sales
commission on any Units subsequently purchased by that investor, and such units
will be deemed Credited Units of the Responsible Broker, for which he will be
entitled to a Trailing Commission so long as he satisfies the Eligibility
Requirements.
The appointment of the Agent hereunder will terminate upon completion
or termination of the Offering.
SECTION 3. CLOSING DATES, RELEASE OF FUNDS
(a) The Initial Closing, if any, for the acceptance of subscriptions
for Units of Currency is currently scheduled to be held on or before December
31, 2002. Monthly Closings in the Continuing Offering for Units will be held as
of the last day of each month.
(b) Subject to its right to reject any subscription in its sole
discretion in whole or in part at any time prior to acceptance, the QCM, on
behalf of the Company, will accept subscriptions for Units properly made and
cause proper entry to be made in the Unit register to be maintained by the QCM.
No certificate evidencing Units will be issued to any subscriber; rather, Agent
will deliver confirmations in its customary form to subscribers whose
subscriptions have been accepted by the QCM at each Closing.
(c) At each Closing, the delivery, receipt, and acceptance of
subscriptions for Units will be subject to the terms and conditions set forth in
this Agreement, including payment of the full subscription price for Units and
delivery of a properly completed Subscription Agreement by each subscriber.
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(d) Upon the satisfaction of such terms and conditions, the aggregate
subscription price for Units will be paid and delivered to the Company at each
Closing.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Company and QCM represent and warrant to the Agent as follows:
(a) The Company intends to file the Registration Statement with the
Commission or before March 1, 2002. The Company also intends to file copies of
the Registration Statement with (i) the CFTC under the Commodity Exchange Act
(the "CEA") and the rules and regulations promulgated thereunder by the CFTC
(the "CFTC Rules"); (ii) NASD Regulation, Inc. ("NASD-R") pursuant to its
Conduct Rules; and (iii) the National Futures Association (the "NFA") in
accordance with NFA Compliance Rule 2-13. At the time the Registration Statement
becomes effective and at all times thereafter, including the Initial Closing and
each Monthly Closing, the Registration Statement shall comply in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations, the
CEA, the CFTC Rules, and the rules of NASD-R and NFA. The Registration Statement
and the Prospectus contain all statements and information required to be
included therein by the CEA and the CFTC Rules. The Registration Statement, the
Prospectus, and any Sales Information (as such terms are defined previously
herein or in Section 7 hereof) authorized by the Company for use in connection
with the Offering does not contain an 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, in light of the circumstances under which they were
made, not misleading, and, if applicable, at such later time as any Prospectus
was filed with or mailed to the Commission for filing, the Prospectus 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 light of the circumstances
under which they are made, not misleading, provided, however, that the
representations and warranties in this Section 4(a) will not apply to statements
in or omissions from such Registration Statement, Prospectus or any Sales
Information made in reliance upon and in conformity with information furnished
to the Company by the Agent expressly regarding the Agent for use in the
Prospectus or Sales Information, which information includes the disclosure
included in the Prospectus under the caption "THE SELLING AGENTS." The Sales
Information will comply with the 1933 Act, the 1973 Act Regulations, the CEA,
the CFTC Rules and the Rules of NASD-R and the NFA.
(b) The Trust Agreement provides for the subscription for and sale of
the Units; all action required to be taken by QCM and the Company as a condition
to the sale of the Units to qualified subscribers therefor has been, or prior to
each Closing will have been, taken; and, upon payment of the consideration
therefor specified in each accepted Subscription Agreement, the
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Units will constitute valid interests in the Company for which Units were
subscribed.
(c) The Company has been duly formed and is validly existing as a
business trust in good standing under the laws of the State of Delaware with
full power and authority to conduct its business as described in the Prospectus,
and has been duly qualified to do business under the laws of, and is in good
standing as such in, every jurisdiction where the conduct of its business
requires such qualification, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or the
business, operations or income of the Company (a "Material Adverse Effect").
(d) QCM is a corporation duly organized, validly existing, and in good
standing under the laws of Grenada, and is qualified to do business and is in
good standing as a foreign corporation under the laws of 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 QCM's
ability to perform its obligations hereunder or under the Trust Agreement or as
described in the Prospectus.
(e) Each of the Company and QCM has full power and authority, as
applicable, under applicable law, to conduct its business and perform its
respective obligations, as applicable, under this Agreement and all other
agreements referred to in the Prospectus or the Registration Statement to which
the Company or QCM is a party.
(f) QCM 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
Prospectus.
(g) The Company does not own, directly or indirectly, other than in the
ordinary course of its business, equity securities or any equity interest in any
business enterprises.
(h) KPMG LLP, the firm which have issued its reports on certain
financial statements included in the Registration Statement and the Prospectus,
are independent certified public accountants within the meaning of the Code of
Professional Conduct of the American Institute of Certified Public Accountants
and are independent accountants as required by the 1933 Act and the 1933 Act
Regulations.
(i) This Agreement, and all other agreements referred to in the
Prospectus or the Registration Statement to which the Company or QCM is a party
have each been duly and validly authorized, executed and delivered by QCM on
behalf of the Company and QCM, as applicable, and each constitutes a
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valid and binding agreement of the Company and QCM, as applicable, enforceable
against the Company and QCM, as applicable, in accordance with its terms except
to the extent limited by bankruptcy, reorganization, insolvency, moratorium and
other laws of general application relating to or affecting the enforcement of
creditors' rights and by general equitable principles and except as rights to
indemnity hereunder may be limited by applicable securities laws. The Company
has full power and lawful authority to issue and sell the Units to be sold by it
hereunder on the terms and conditions set forth herein, all necessary corporate
proceedings therefor have been duly and validly taken, and no consent, approval,
authorization or other order of any governmental authority is required in
connection with such authorization, execution and delivery or with the
authorization, issue and sale of the Units, except such as may be required under
the 1933 Act or state securities laws.
(j) The Units have been duly and validly authorized and, when issued
and delivered pursuant to this Agreement, will be duly and validly issued, fully
paid and nonassessable. The Units are not subject to preemptive rights of any
security holder of the Company.
(k) The consummation of the transactions herein contemplated and the
fulfillment of the terms of this Agreement, and all other agreements referred to
in the Prospectus or the Registration Statement to which the Company or QCM is a
party, to be performed by the Company and QCM, as applicable, will not conflict
in any material respect with or result in a material breach of any of the terms
or provisions of, or constitute a material default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company or QCM pursuant to the terms of any indenture,
mortgage, deed of Company, agreement for money borrowed or any other material
agreement or instrument to which the Company or QCM is a party, or by which the
Company or QCM may be bound, or to which any of the property or assets of the
Company or QCM are subject, nor will such action result in any violation of the
provisions of the charter or the bylaws, certificate of limited Company or
Company agreement, as applicable, of the Company or QCM, or any statute or any
order, rule or regulation applicable to the Company or QCM of any court or any
regulatory authority or other governmental body having jurisdiction over the
Company or QCM, assuming satisfaction by the Agent of the terms of this
Agreement and full compliance by the Agent and any other broker-dealers and
their associated persons with all applicable statutes, orders, rules, or
regulations in connection with the Offering.
(l) The financial statements of the Company and QCM, together with the
related notes thereto, set forth in the Registration Statement and the
Prospectus, fairly present the financial position and results of operations of
the Company and QCM on the basis stated in the Registration Statement, at the
respective dates and for the respective periods to which they apply. Such
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statements and related notes are accurate, complete and correct, comply as to
form in all material respects with all applicable accounting requirements,
including the 1933 Act Regulations, have been prepared in accordance with
generally accepted accounting principles ("GAAP"), which were consistently
applied throughout the periods involved, except as otherwise disclosed therein.
Since the date of the statements of financial condition included in the
Registration Statement, except as contemplated in the Prospectus, no events have
occurred that have had a Material Adverse Effect. The summaries of such
financial statements and other financial, statistical and pro forma information
and related notes set forth in the Registration Statement and the Prospectus are
(i) accurate and correct and fairly present the information purported to be
shown thereby at the dates and for the periods indicated on a basis consistent
with the audited financial statements of the Company and QCM and (ii) in
compliance in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(m) Except as disclosed in the Registration Statement and Prospectus,
there is not now pending or, to the knowledge of QCM, threatened, any action,
suit or proceeding, before or by any court, governmental agency or body or
self-regulatory organization to which QCM, any "principals" of QCM, as defined
in CFTC Rule 4.10(e) ("QCM Principals") or the Company is a party, which might
result in a Material Adverse Effect, nor is QCM aware of any facts which would
form the basis for the assertion of any material claim or liability that are not
disclosed in the Registration Statement and Prospectus, and neither QCM nor any
QCM Principal has received any notice of an investigation by the Commission, the
CFTC, NASD-R or the NFA regarding noncompliance by QCM, the QCM Principals or
the Company with the 1933 Act, the 1933 Act Regulations, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), any other federal securities laws,
rules or regulations, the CEA, the CFTC Rules, or the rules of NASD-R 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 QCM or of the
Company, or which could be material to an investor's decision to invest in any
of the Company.
(n) QCM and each "principal" of QCM, 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 this Agreement and all other
agreements referred to in the Prospectus or the Registration Statement to which
the Company or QCM is a party. QCM is registered as a commodity pool operator
under the CEA and is a member in good standing of the NFA. QCM's principals
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identified in the Prospectus are all of QCM's 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 CEA by QCM and of QCM's Principals is disclosed in the
Prospectus.
(p) The Company and QCM have filed all necessary federal, state, local
and foreign income and franchise tax returns and have paid, or are contesting in
good faith, all taxes shown as due thereon; and QCM has no knowledge of any tax
deficiency which has been or might be asserted against the Company or QCM, which
would result in a Material Adverse Effect.
(q) All contracts and other documents of the Company or QCM which are,
under the 1933 Act Regulations, required to be filed as exhibits to the
Registration Statement have been so filed.
(r) The conduct of the businesses of the Company and QCM is in
compliance in all respects with applicable federal, state, local and foreign
laws and regulations, except where the failure to be in compliance would not
have a Material Adverse Effect. The Company and QCM are in possession of all
necessary licenses, permits, consents, certificates, orders, and other
governmental authorizations currently required for the conduct of their
respective businesses, except where failure to obtain such licenses, permits,
consents, certificates, orders or other governmental authorizations would not
have a Material Adverse Effect, and all such licenses, permits, consents,
certificates, orders and other governmental authorizations are in full force and
effect and neither the Company nor QCM has received any notice of proceedings
related to the revocation or modification thereof, and the Company and QCM are
in all material respects complying therewith; the expiration of any such
licenses, permits, consents, certificates, orders and other governmental
authorizations would not materially affect their operations; and none of the
activities or businesses of the Company or QCM is in violation of, or causes the
Company or QCM to violate, any material law, rule, regulation or order of the
United States, any state, county or locality, or any agency or body of the
United States or of any state, county or locality.
(s) Neither the Company nor QCM is in violation, breach or default of
or under its charter or bylaws, certificate of limited Company or limited
Company agreement, as applicable, or any material bond, debenture, note or other
evidence of indebtedness or any material contract, agency agreement, indenture,
mortgage, loan agreement, lease, joint venture or other material agreement or
instrument to which the Company or QCM is a party or by which it or any of its
properties may be bound, or is in material violation of any federal, foreign,
state or local law, order, rule, regulation, writ, injunction or decree of any
government, governmental instrumentality or court, which violation would
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have a Material Adverse Effect.
(t) The Company and QCM will make and keep accurate books and records
reflecting their respective assets and maintain internal accounting controls
which provide reasonable assurance that (i) transactions are executed with
management's authorization; (ii) transactions are recorded as necessary to
permit preparation of the Company's consolidated financial statements and to
maintain accountability for the assets of the Company and QCM; (iii) access to
the assets of the Company and QCM is permitted only in accordance with
management's authorization; and (iv) the reported accountability of the assets
of the Company and QCM is compared with existing assets at reasonable intervals.
(u) The Company knows of no outstanding claims for finder's,
origination or underwriting fees with respect to the sale of the Units except as
contemplated herein.
(v) All material transactions between the Company or QCM and the
officers, directors, partners or shareholders who beneficially own more than 5%
of any class of the Company's voting securities required to be disclosed under
the rules of the Commission, have been accurately disclosed in the Registration
Statement and the Prospectus, and, except as noted therein, the terms of each
such transaction are fair to the Company and no less favorable to the Company
than the terms that could have been obtained from unrelated parties.
(w) The Company will not take, directly or indirectly, any action (and
does not know of any action taken by its directors, officers, shareholders or
others) designed to or which has constituted or which might reasonably be
expected to cause or result in, under the 1934 Act, stabilization or
manipulation of the price of any security of the Company to facilitate, the sale
or resale of the Units.
Any certificate signed by an officer of QCM and delivered to the Agent
or its counsel that refers to this Agreement will be deemed to be a
representation and warranty by QCM to the Agent as to the matters covered
thereby with the same effect as if such representation and warranty were set
forth herein.
SECTION 5. COVENANTS OF THE COMPANY
The Company and QCM hereby covenant with the Agent as follows:
(a) The Company will not, at any time before or after the Registration
Statement, including any supplement filed pursuant to Rule 424 under the 1933
Act, is declared effective by the Commission file any amendment to such
Registration Statement without so notifying the Agent and without providing the
Agent a reasonable opportunity to review such amendment.
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(b) The Company will immediately upon receipt of any information
concerning the events listed below notify the Agent and promptly confirm the
notice in writing:
(i) of the receipt of any comments from the Commission, or any
other governmental entity having authority with respect to the transactions
contemplated by this Agreement;
(ii) any requests by the Commission or any other governmental
entity having authority for any amendment or supplement to the Registration
Statement or for additional information;
(iii) of the issuance by the Commission or any other
governmental entity having authority of any order or other action suspending the
Offering or the use of the Registration Statement or the Prospectus;
(iv) the issuance by the Commission or any state authority
having jurisdiction of any stop order suspending the effectiveness of the
Registration Statement or of the initiation or threat of initiation or threat of
any proceedings for that purpose; or
(v) of the occurrence of any event mentioned in paragraph (g)
below.
The Company will make every reasonable effort to prevent the issuance
by the Commission or any state authority having jurisdiction of any such order
and, if any such order at any time is issued, to obtain the lifting thereof at
the earliest possible time.
(c) The Company will give the Agent notice of its intention to file,
and reasonable time to review prior to filing, any amendment or supplement to
the Registration Statement or the Prospectus.
(d) The Company has delivered or will deliver to the Agent and to its
counsel two complete conformed copies (including all exhibits) of the
Registration Statement, as originally filed and each amendment thereto.
(e) The Company will furnish to the Agent, without charge, from time to
time during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of such Prospectus (as amended
or supplemented) as the Agent may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable rules
and regulations of the Commission thereunder. The Company authorizes the Agent
to use the Prospectus (as amended or supplemented, if
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amended or supplemented) for any lawful manner in connection with the sale of
the Units by the Agent.
(f) The Company will comply in all material respects with the 1933 Act
Regulations, the 1934 Act and the rules and regulations of the Commission
promulgated under the 1934 Act (the "1934 Act Regulations"), and all other
applicable laws (including state Blue Sky laws) to be complied with prior to,
at, and subsequent to each Closing. During the periods prior to each Closing and
when the Prospectus is required to be delivered, the Company will comply in all
material respects, at its own expense, with all requirements imposed upon it by
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, in each case as from time to time in force, in accordance with the
provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to
the Units is required to be delivered (including the period after the Initial
Closing and prior to each Monthly Closing), any event relating to or affecting
the Company occurs, as a result of which it is necessary or appropriate, in the
reasonable good faith opinion of the Agent's counsel, to amend or supplement the
Registration Statement or Prospectus in order to make the Registration Statement
or Prospectus not misleading in light of the circumstances existing at the time
it is delivered to a purchaser, the Company will, at its expense, forthwith
prepare, file with the Commission and furnish to the Agent a reasonable number
of copies of an amendment or amendments of, or a supplement or supplements to,
the Registration Statement or Prospectus (in form and substance satisfactory to
the Agent and its counsel after a reasonable time for review) which will amend
or supplement the Registration Statement or Prospectus so that as amended or
supplemented it 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
light of the circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading. For the purpose of this Agreement, the Company will
timely furnish to the Agent such information with respect to itself as the Agent
may from time to time reasonably request.
(h) If required, the Company will take all necessary actions, in
cooperation with you, to qualify or register the Units for offering and sale by
the Company under the applicable securities or Blue Sky laws of each
jurisdiction as you may reasonably designate, provided, however, that the
Company will not be obligated to qualify to do business in any jurisdiction in
which it is not so qualified. In each jurisdiction where any of the Units has
been qualified or registered as above provided, the Company will make and file
such statements and reports in each fiscal period as are or may be required by
the laws of such jurisdictions.
(i) During the period which the Units are registered under the 1934
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Act or for the three years from the final Closing, whichever period is greater,
the Company will furnish to its unitholders as soon as practicable after the end
of each fiscal year an annual report (including a consolidated statement of
financial condition and consolidated statements of income or operations, changes
in shareholders' equity and cash flows of the Company and QCM as at the end of
and for such year, certified by independent public accountants in accordance
with Regulation S-X under the 1933 Act).
(j) The Company will use the net proceeds from the sale of the Units in
the manner set forth in the Prospectus under the caption "Use of Proceeds."
(k) Other than as permitted by the 1933 Act, the 1933 Act Regulations
and the laws of any state in which the Units are qualified for sale, the Company
will not distribute any Prospectus, offering circular or other offering material
in connection with the offer and sale of Units.
(l) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earning statement (in form complying with the provisions of
Rule 158 of the regulations promulgated under the 1933 Act) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the effective date (as defined in such Rule 158)
of the Registration Statement.
(m) The Company will file, if required, with the Commission such
reports on Form SR as may be required pursuant to Rule 463 under the 1933 Act.
(n) The Company will register the Units under Section 12(g) of the 1934
Act prior to execution of the Public Offering Acknowledgment and will not
deregister the Units for a period of at least three years thereafter, unless
such registration is no longer required.
(o) The Company will take such actions and furnish such information as
are reasonably requested by the Agent in order for the Agent to ensure
compliance with the "Interpretation With Respect to Free Riding and Withholding"
of NASD-R.
(p) Prior to each Closing, the Company will conduct its business in
compliance in all material respects with all applicable federal and state laws,
rules, regulations, decisions, directives and orders including, without
limitation, all decisions, directives and orders of the NFA, the CFTC and
NASD-R.
(q) The Company will not, prior to each Closing, incur any liability or
obligation, direct or contingent, or enter into any material transactions, other
than in the ordinary course of business, except as contemplated by the
Prospectus.
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(r) The representations and warranties made in this Agreement will be
true and correct as of the date hereof and as of each Closing.
SECTION 6. PAYMENT OF EXPENSES
The Company agrees to pay or cause to be paid and reimburse the party
making payment for all expenses incident to the performance of the obligations
of the Company under this Agreement, including, without limitation, the
following: (i) the fees and disbursements of the Company's counsel, accountants
and other advisors; (ii) the qualification of the Units under all applicable
securities or Blue Sky laws, including filing fees and the fees and
disbursements of counsel in connection therewith and in connection with the
preparation of a Blue Sky memorandum; (iii) the printing and delivery to the
Agent in such quantities as the Agent reasonably request of copies of the
Registration Statement and the Prospectus, as amended or supplemented and all
other documents in connection with this Agreement; (iv) filing fees incurred in
connection with the review of the Offering by the Commission, CFTC and by
NASD-R.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless the Agent and any
Additional Selling Agent, its respective officers, directors, agents, servants
and employees and each person, if any, who controls the Agent within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and
all loss, liability, claim, damage or expense whatsoever (including but not
limited to settlement expenses), joint or several, that any indemnified party
may suffer or to which any indemnified party may become subject under all
applicable federal and state laws or otherwise, and to promptly reimburse any
indemnified party upon written demand for any expenses (including fees and
disbursements of counsel) incurred by such indemnified party in connection with
investigating, preparing or defending any actions, proceedings or claims
(whether commenced or threatened) to the extent such losses, claims, damages,
liabilities or actions: (i) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in (a) the Registration
Statement (or any amendment or supplement thereto), the Prospectus (or any
amendment or supplement thereto), (b) any application or other instrument or
document of the Company or based upon written information supplied by the
Company or their representatives filed in any state or jurisdiction to register
or qualify any or all of the Units under the securities laws thereof
(collectively, the "Blue Sky Application"), or (c) any application or other
document, advertisement, oral statement, or communication ("Sales Information")
prepared, made or executed by or, with its consent, on behalf of the Company, or
based upon
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written or oral information furnished by, or with its consent, on behalf of the
Company, in connection with or in contemplation of the transactions contemplated
by this Agreement; (ii) arise out of or are based upon the omission or alleged
omission to state in any of the foregoing documents or information a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; or
(iii) arise from any theory of liability whatsoever relating to or arising from
or based upon the Registration Statement (or any amendment or supplement
thereto), preliminary or final Prospectus (or any amendment or supplement
thereto), Blue Sky Application or Sales Information or other documentation
distributed in connection with the Offering; provided, however, that no
indemnification is required under this paragraph (a) to the extent such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statements or alleged untrue statements in, or material omission or
alleged material omission from, the Registration Statement (or any amendment or
supplement thereto), Prospectus or Sales Information made in reliance upon and
in conformity with information furnished to the Company by the Agent regarding
QAM expressly for use in the Prospectus, which information consists of the
disclosure included in the Prospectus contained in the first paragraph under the
caption "TERMS OF THE OFFERING - General."
(b) The Agent agrees to indemnify and hold harmless the Company, its
directors, officers, agents, servants and employees, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act, against any and all loss, liability, claim,
damage or expense whatsoever (including but not limited to settlement expenses),
joint or several, that the Company or any of them may suffer or to which the
Company or any of them may become subject under all applicable federal and state
laws or otherwise, and to promptly reimburse the Company and any such persons
upon written demand for any expenses (including fees and disbursements of
counsel) incurred by the Company or any of them in connection with
investigating, preparing or defending any actions, proceedings or claims
(whether commenced or threatened) to the extent such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto) or the Prospectus (or any
amendment or supplement thereto), the Sales Information, or arise out of or are
based upon the omission or alleged omission to state in any of the foregoing
documents a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that your obligations under this Section 7(b)
will exist only if, and only to the extent, that such untrue statement or
alleged untrue statement was made in, or such material fact or alleged material
fact was omitted from the Registration Statement (or any amendment or supplement
thereto) or the Prospectus (or any amendment or supplement thereto) or the Sales
Information
15
in reliance upon and in conformity with information furnished to the Company by
the Agent regarding Atrium Securities expressly for use in the Prospectus, which
information consists of the disclosure included in the Prospectus contained in
the first paragraph under the caption "TERMS OF THE OFFERING - General."
(c) Each indemnified party must give prompt written notice to each
indemnifying party of any action, proceeding, claim (whether commenced or
threatened), or suit instituted against it in respect of which indemnity may be
sought hereunder. No indemnification will be available to any party who fails to
give notice as provided in this Section 7(c) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice, but otherwise the omission so
to notify the indemnifying party will not relieve it from any liability that it
may have to an indemnified party under this Section 7. An indemnifying party may
participate at its own expense in the defense of such action. In addition, if it
so elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified parties that are defendants in such action, and such indemnified
parties will not be liable for any fees and expenses of such counsel for the
indemnified parties incurred thereafter in connection with such action,
proceeding or claim, other than reasonable costs of investigation. In any
action, proceeding or claim, the indemnified party will have the right to retain
its own counsel, but the fees and disbursements of such counsel will be at its
own expense unless (i) the parties to any such action, proceeding or claim
include both the indemnifying party and the indemnified party and (ii)
representation of both parties by the same counsel reasonably would be deemed
inappropriate due to actual or potential conflicting interests between them. In
no event will the indemnifying parties be liable for the fees and expenses of
more than one separate firm of attorneys (other than any special counsel that
said firm may retain) for each indemnified party in connection with any one
action, proceeding or claim or separate but similar or related actions,
proceedings or claims in the same jurisdiction arising out of the same general
allegations or circumstances.
SECTION 8. CONTRIBUTION
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 7 is due in
accordance with its terms but is for any reason held by a court to be
unavailable from the Company or the Agent, the Company or the Agent will
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting any contribution received by the Company or the
Agent from persons other than the
16
other party thereto, who may also be liable for contribution) to the party
entitled to indemnification in such proportion so that the Agent is responsible
for that portion represented by the percentage that the fees paid to the Agent
pursuant to Section 1 of this Agreement (not including expenses) bears to the
gross proceeds received by the Company from the sale of the Units in the
Offering and the Company will be responsible for the balance. If, however, the
allocation provided above is not permitted by applicable law, then each
indemnifying party will contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Agent on the other in connection with the statements or omissions which
resulted in such losses, claims, damage or liabilities (or actions, proceedings
or claims in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Agent on the other will be deemed to be in the same proportion as the
total gross proceeds from the Offering (before deducting expenses) received by
the Company bears to the total fees (not including expenses) received by the
Agent. The relative fault will be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
other omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Agent on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Agent agree that it would not be just and equitable if contribution pursuant
to this Section 8 were determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to above in this Section 8. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions, proceedings or claims in respect thereof referred to above in this
Section 8 will be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action, proceeding or claim. It is expressly agreed that the Agent will
not be liable for any loss, liability, claim, damage or expense or be required
to contribute any amount which in the aggregate exceeds the amount paid to the
Agent under the Agreement. It is understood that the above-stated limitation on
the Agent's liability is essential to the Agent and that the Agent would not
have entered into this Agreement if such limitation had not been agreed to by
the parties to this Agreement. No person found guilty of any fraudulent
misrepresentation (within the meaning of Section 11 (f) of the 1933 Act) will be
entitled to contribution from any person who was not also found guilty of such
fraudulent misrepresentation. The obligations of the Company and the Agent under
this Section 8 and under Section 7 hereof will be in addition to any liability
which the Company and the Agent may otherwise have. For purposes of this Section
8, each of the Agent's officers and directors and each person, if any, who
controls the Agent within the meaning of the 1933 Act and the 1934 Act will have
the same rights to contribution as each officer and director of the Company and
17
each person, if any, who controls the Company within the meaning of the 1933 Act
and the 1934 Act, and each officer and director of the Agent or the Company,
will have the same rights to contribution as the Agent or the Company,
respectively. Any party entitled to contribution, promptly after receipt of
notice of commencement of any action, suit, claim or proceeding against such
party in respect of which a claim for contribution may be made against another
party under this Section 8, will notify such party from whom contribution may be
sought. No person will be entitled to contribution hereunder who fails to give
notice as provided in this Section 8 if the party to whom notice was not given
was unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but otherwise the omission so to
notify the party from whom contribution is sought will not relieve it from any
liability that it may have to a party seeking contribution under this Section 8.
SECTION 9. TERMINATION
(a) In the event the Company elects not to accept any subscriptions for
Units in the Offering, this Agreement will terminate upon refund by the Company
to each person who has ordered any of the Units the full amount which it may
have received from such persons and no party to this Agreement will have any
obligation to the other hereunder, except for the Company's obligations under
Sections 1, 6, 7 and 8 hereof.
(b) In the event that at least 1,000 Units are not sold by the end of
the Initial Offering Period, this Agreement will terminate and any such
termination will be without liability of any party to any other party except as
otherwise provided in Sections 1, 6, 7 and 8 hereof.
SECTION 10. SURVIVAL
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Agent, as set forth in this Agreement,
will remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the Agent or any of
its officers or directors or any person controlling the Agent, or the Company or
any officer, director or person controlling the Company, and will survive
termination of the Agreement and the receipt or delivery of any payment for the
Units.
SECTION 11. MISCELLANEOUS
Notices hereunder, except as otherwise provided herein, must be given
in writing or by telegraph, addressed (a) to the Agent at 180 North LaSalle
Street, Suite #2416, Chicago, Illinois 60601 (Attention: President) with a copy
and (b) to the Company at Le Marquis Complex, Unit 5, P.O. Box 1479, Grand Anse,
St.
18
George's, Grenada, West Indies (Attention: President), with a copy (which will
not constitute notice) to Henderson & Lyman, 175 West Jackson Blvd., Suite 240,
Chicago, Illinois 60604 (Attention: Douglas E. Arend, Esq.).
This Agreement is made solely for the benefit of and will be binding
upon the parties hereto and their respective successors and the controlling
persons, directors and officers referred to in Section 7 hereof and no other
person will have any right or obligations hereunder. The term "successor" does
not include any purchaser of any of the Units.
This Agreement will be governed by and construed in accordance with the
laws of the State of Illinois.
This Agreement may be signed in various counterparts which together
will constitute one agreement.
If the foregoing correctly sets forth the arrangement among the Company
and the Agent, please indicate acceptance thereof in the space provided below
for that purpose, whereupon this letter and your acceptance will constitute a
binding agreement.
Very truly yours,
QUADRIGA SUPERFUND
By: Quadriga Capital Management,
Inc., its Managing Owner
By: _______________________________
Christian Baha
Chairman
Accepted as of the date first above written.
QUADRIGA ASSET MANAGEMENT, INC.
By: _____________________________
George Fountas, President
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