As Filed with the Securities and Exchange Commission on October 8, 2004
Registration No. __________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRIVIEW GLOBAL FUND, LLC
(Exact name of registrant as specified in its charter)
6221 Delaware 20-1689686
(Primary SIC Number) (State of organization) (IRS EIN)
5916 N. 300 West
Fremont, Indiana 46737
Telephone: (260) 833-1306
(address and telephone number of registrant's principal executive offices)
Mr. Michael Pacult
5916 N. 300 West
Fremont, Indiana 46737
Telephone: (260) 833-1306; Facsimile (260) 833-4411
(Name, address and telephone number of agent for service of process)
Copies to:
William S. Scott, Esquire
The Scott Law Firm, P. A.
940 Northeast 79th Street, Suite A
Miami, FL 33138
Telephone (305) 754-3603; Facsimile (305) 754-2668
wscott@wscottlaw.com
If any of the securities being offered on the Form are to be offered on a
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check
the following box: X
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. 0
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. 0
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. 0
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. 0
<Table>
<Caption>
TITLE OF EACH CLASS OF AMOUNT BEING MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
SECURITIES BEING REGISTERED REGISTERED PRICE PER UNIT OFFERING PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
Units of MEMBERSHIP Interest 50,000 $1,000 $50,000,000 $6,335
- ------------------------------------------------------------------------------------------------------------------------
</Table>
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Commission acting
pursuant to said section 8(a), may determine.
*******************************************************************************
Part I - Disclosure Document
TriView Global Fund, LLC
$900,000 (900 Units) Minimum / $50,000,000 (50,000 Units)
Maximum in Units of Membership interest
To Be Sold at $1,000 per Unit
The Offering
The Fund is a registered commodity pool which employs independent commodity
trading advisors to engage in the speculative trade of futures, options on
futures, and forward contracts.
Two managing members, TriView Capital Management, Inc. and Mr. Michael
Pacult, have the authority to manage the Fund. We refer to them collectively
as "the managing member." The managing member is authorized by the LLC
Operating Agreement to use its sole judgment to employ, establish the terms
of employment, and terminate commodity trading advisors and futures
commission merchants.
This is a best efforts offering. The underwriters are not required to sell
any specific number or dollar amount of securities but will use their best
efforts to sell the securities offered. The initial offering price has been
set by the managing member at $1,000 per membership interest. After the sale
of the minimum, the price will be the month-end net asset value of the Fund
divided by the number of outstanding membership interests.
All subscriptions received will be placed in an depository account maintained
by the managing member at Star Financial Bank, Angola, IN until the minimum,
$900,000 is sold. Neither the managing member nor its affiliates may
purchase membership interests to meet the minimum. If the minimum is not
sold by the termination of the offering, which will be one year from the date
of this prospectus or at the discretion of the managing member pursuant to
the LLC Operating Agreement, whichever occurs first, the managing member will
return your original investment promptly after the offering is terminated,
together with any interest accrued and without deduction for any fees, costs
or other charges. The managing member has sole and absolute discretion to
terminate the offering for any reason, including if the minimum is reached.
However, that is unlikely because the managing member would not recover the
expenses advanced and it would suffer the loss of the opportunity to manage
the Fund.
You must purchase at least $25,000 in membership interests, though the
managing member may reduce this to no less than $5,000. You have the right
to rescind your subscription for five days after it is submitted.
The Risks - These securities are highly speculative. Before you decide
whether to invest, read this entire prospectus carefully and consider risks
below and the complete description of "Risks you face" beginning on page 6.
* The Fund business is the speculative trading in futures, commodity options
and unregulated currency contracts selected by registered commodity trading
advisors.
* You could lose all or a substantial amount of your investment in the Fund.
* The Fund is new and has no operating history.
* Trading profits and interest income must be generated to offset
substantial expenses. To receive your investment back after one year, the
Fund must generate a return of 7.67% should we sell the minimum and 5.16%
should we sell the maximum.
Transfer of your membership interests will be restricted and subject to
managing member approval. No public market for the membership interests
exists and none is expected to develop.
* Although you will not receive distributions, you must pay annual Federal
and State income taxes on your share of any profits earned, if any.
* We must pay the following fees: 0.276% annual management fee on our net
assets to the traders; 5% annual fixed brokerage commissions and 4.283%
incentive fee on new net profits to the corporate managing member; 22.717%
incentive fee on new net profits to the traders; and, annual accounting and
legal fees of $23,000.
This Fund will not make distributions. To receive a return on your
investment, you must use our redemption procedure, which is subject to
restrictions.
* The managing member and affiliates have conflicts of interest with regard
to the management of this Fund including, but not limited to, the individual
managing member is the sole principal of the corporate managing member and a
50% owner of the principal selling agent.
* Commodity trading is highly leveraged. A small change in the market price
of a contract can produce adverse consequences to the value of the Fund.
Investors are required to make representations and warranties relating to
their suitability in connection with this investment. Each investor is
encouraged to discuss the investment with his/her individual financial, legal
and tax adviser.
These securities have not been approved or disapproved by the Securities and
Exchange Commission, or any State securities commission or agency, nor have
any of them confirmed or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal offense. The
Fund is not a registered mutual fund under the Investment Company Act of
1940.
This prospectus is in two parts: a disclosure document and a statement of
additional information. These parts are bound together, and both contain
important information.
THE COMMODITY FUTURES TRADING COMMISSION HAS NOT PASSED UPON THE MERITS OF
PARTICIPATING IN THIS POOL NOR HAS THE COMMISSION PASSED ON THE ADEQUACY OR
ACCURACY OF THIS DISCLOSURE DOCUMENT.
Price to Public Sales Commissions (1) Proceeds to Fund
Per Membership Unit $1,000 $0 $1,000
Total Minimum $900,000 $0 $900,000
Total Maximum $50,000,000 $0 $50,000,000
(1) The selling agents will receive an annual continuing service fee of up
to 4% of the value of the membership interests sold by them.
FUTURES INVESTMENT COMPANY
5916 N. 300 West, P. O. Box C - Fremont, Indiana 46737 - (260) 833-1306
Best Efforts Principal Selling Agent
October ____, 2004
Commodity Futures Trading Commission
Risk Disclosure Statement
YOU SHOULD CAREFULLY CONSIDER WHETHER YOUR FINANCIAL CONDITION PERMITS YOU TO
PARTICIPATE IN A COMMODITY POOL. IN SO DOING, YOU SHOULD BE AWARE THAT
FUTURES AND OPTIONS TRADING CAN QUICKLY LEAD TO LARGE LOSSES AS WELL AS
GAINS. SUCH TRADING LOSSES CAN SHARPLY REDUCE THE NET ASSET VALUE OF THE
POOL AND CONSEQUENTLY THE VALUE OF YOUR INTEREST IN THE POOL. IN ADDITION,
RESTRICTIONS ON REDEMPTIONS MAY AFFECT YOUR ABILITY TO WITHDRAW YOUR
PARTICIPATION IN THE POOL.
FURTHER, COMMODITY POOLS MAY BE SUBJECT TO SUBSTANTIAL CHARGES FOR
MANAGEMENT, AND ADVISORY AND BROKERAGE FEES. IT MAY BE NECESSARY FOR THOSE
POOLS THAT ARE SUBJECT TO THESE CHARGES TO MAKE SUBSTANTIAL TRADING PROFITS
TO AVOID DEPLETION OR EXHAUSTION OF THEIR ASSETS. THIS DISCLOSURE DOCUMENT
CONTAINS A COMPLETE DESCRIPTION OF EACH EXPENSE TO BE CHARGED THIS POOL AT
PAGE 6 AND A STATEMENT OF THE PERCENTAGE RETURN NECESSARY TO BREAK EVEN, THAT
IS, TO RECOVER THE AMOUNT OF YOUR INITIAL INVESTMENT, AT PAGE 14.
THIS BRIEF STATEMENT CANNOT DISCLOSE ALL THE RISKS AND OTHER FACTORS
NECESSARY TO EVALUATE YOUR PARTICIPATION IN THIS COMMODITY POOL. THEREFORE,
BEFORE YOU DECIDE TO PARTICIPATE IN THIS COMMODITY POOL, YOU SHOULD CAREFULLY
STUDY THIS DISCLOSURE DOCUMENT, INCLUDING A DESCRIPTION OF THE PRINCIPAL RISK
FACTORS OF THIS INVESTMENT, AT PAGE 6.
YOU SHOULD ALSO BE AWARE THAT THIS COMMODITY POOL MAY TRADE FOREIGN FUTURES
OR OPTIONS CONTRACTS. TRANSACTIONS ON MARKETS LOCATED OUTSIDE THE UNITED
STATES, INCLUDING MARKETS FORMALLY LINKED TO A UNITED STATES MARKET, MAY BE
SUBJECT TO REGULATIONS THAT OFFER DIFFERENT OR DIMINISHED PROTECTION TO THE
POOL AND ITS PARTICIPANTS. FURTHER, UNITED STATES REGULATORY AUTHORITIES MAY
BE UNABLE TO COMPEL THE ENFORCEMENT OF THE RULES OF REGULATORY AUTHORITIES OR
MARKETS IN NON-UNITED STATES JURISDICTIONS WHERE TRANSACTIONS FOR THE POOL
MAY BE EFFECTED.
- ------------------------------------
This prospectus does not include all of the information or exhibits in the
Fund's registration statement. You can read and copy the entire registration
statement at the public reference facilities maintained by the Securities and
Exchange Commission in Washington, D.C.
The Fund files monthly, quarterly and annual reports with the SEC. You can
read and copy these reports at the sec public reference facilities in
Chicago, New York or Washington, D.C. please call the SEC at (800) SEC-0300
for further information.
The Fund's filings are posted at the SEC website at http://www.sec.gov.
Suitability Standards
You should only invest a limited amount of the risk portion of your total
portfolio and should not invest more than you can afford to lose.
To invest the minimum $25,000 in this Fund, you must have either:
* a net worth of at least $150,000, exclusive of home, furnishings and
automobiles, or
* an annual gross income of at least $45,000 and a net worth, similarly
calculated of at least $45,000.
Residents of the following States must meet the specific requirements set
forth below. Net worth, is in all cases, to be calculated exclusive of home,
furnishings and automobiles. You may not invest more than 10% of your net
worth, exclusive of home, furnishings and automobiles, in the Fund. No
entity, including ERISA plans, should invest more than 10% of its liquid net
worth (readily marketable securities) in the Fund.
1. Alaska-Net worth of at least $225,000 or a net worth of at least
$60,000 and annual taxable income of at least $60,000.
2. Arizona-Net worth of at least $225,000 or a net worth of at least
$60,000 and annual taxable income of at least $60,000.
3. California-Net worth of at least $225,000 or a net worth of at least
$60,000 and annual taxable income of at least $60,000.
4. Iowa-Net worth of at least $225,000 or a net worth of at least
$60,000 and an annual taxable income of at least $60,000. Minimum purchase
for individual retirement accounts and employee benefit plans in Iowa is
$3,500.
5. Maine-Net worth of at least $200,000 or a net worth of at least
$50,000 and an annual taxable income of at least $50,000.
6. Massachusetts-Net worth of at least $225,000 or a net worth of at
least $60,000 and annual taxable income of at least $60,000.
7. Michigan-Net worth of at least $225,000 or a net worth of at least
$60,000 and taxable income during the preceding year of at least $60,000.
8. Minnesota-Minnesota investors are deemed not to (i) represent that
they are legally competent to execute the Subscription Agreement and Power of
Attorney and (ii) make the representation in respect of risk tolerance in the
Subscription Agreement.
9. Mississippi-Net worth of at least $225,000 or a net worth of at least
$60,000 and annual taxable income of at least $60,000.
10. Missouri-Net worth of at least $225,000 or a net worth of at least
$60,000 and annual taxable income of at least $60,000.
11. Nebraska-Net worth of at least $225,000 or a net worth of at least
$60,000 and annual taxable income of at least $60,000.
12. New Hampshire-Net worth of at least $250,000 or a net worth of at
least $125,000 and an annual taxable income of at least $50,000.
13. North Carolina-Net worth of at least $225,000 or a net worth of at
least $60,000 and annual taxable income of at least $60,000.
14. Pennsylvania-Net worth of at least $175,000 or a net worth of at
least $100,000 and an annual income of at least $50,000.
15. South Carolina-Net worth of at least $100,000 or a net income in the
preceding year some portion of which was subject to maximum federal and State
income tax.
16. South Dakota-Net worth of at least $225,000 or a net worth of at
least $60,000 and annual taxable income of at least $60,000.
17. Tennessee-Net worth of at least $250,000 or a net worth of at least
$65,000 and annual taxable income of at least $65,000.
18. Texas-Net worth of at least $225,000 or a net worth of at least
$60,000 and annual taxable income of at least $60,000.
In the case of sales to fiduciary accounts, the net worth and income
standards may be met by the beneficiary, the fiduciary account, or, if the
donor or grantor is the fiduciary, by the donor or grantor who supplies the
funds to purchase the membership interests.
The foregoing suitability standards are regulatory minimums only. Merely
because you meet such requirements does not necessarily mean that a high
risk, speculative and illiquid investment such as one in the Fund is, in
fact, suitable for you.
Table of Contents
Commodity Futures Trading Commission i
Risk Disclosure Statement i
Suitability Standards ii
Table of Contents iii
Summary of the Offering 1
The Fund 1
Description of Securities Offered for Sale 1
Plan For Sale of Membership interests 1
Subscription Procedure 1
Will You Benefit From An Investment In The Fund? 1
Business Objectives 2
Summary Risk Factors 2
Charges To The Fund 2
Use Of Proceeds 4
Selection Of Commodity Trading Advisors And Allocation Of Equity 4
Federal Income Tax Aspects 4
Redemptions 4
Diagram of Fund Structure & Commissions TriView Global Fund, LLC 5
The Risks You Face 6
The corporate managing member of this Fund has no experience. 6
We must pay substantial fees, charges and expenses regardless of
profitability which must be recovered before you can receive a return on
your investment. 6
You may not transfer your membership interests and must rely on our
redemption procedures to receive your investment back. 6
Your right of redemption is limited. 6
The Fund depends upon Mr. Pacult, and his absence could cause the Fund to
cease operations. 6
Managing member and commodity trading advisors will serve other businesses
and may not have adequate time to devote to the Fund. 7
There are conflicts of interest in the Fund structure that may limit our
profits. 7
You will be taxed on profits though you will not receive distributions. 7
You will have to pay taxes on profits in a current year which may be lost
in future years. 7
If the managing member selects new trading advisors, they may not be as
profitable as those replaced and the new advisors will not be responsible
for recouping any previous losses. 7
The managing member may change the commodity trading advisors and their
allocation of equity to or among advisors without prior notice to you. 7
You will not participate in management and may not contest the business
decisions of the managing member. 7
Commodity futures trading is speculative and highly risky. 7
As a result of leverage, small changes in the price of the Fund's
positions may result in major losses. 8
The managing member does not control the trading advisors or their methods
and may not be able to prevent large losses. 8
Illiquid markets could make it impossible for the Fund's advisors to
realize profits or limit losses. 8
Changes in trading equity may adversely affect Fund performance. 8
Failure of commodity brokers or banks could result in loss of assets. 8
When trading in foreign exchanges, if the creditworthiness of the other
parties or the foreign currency is not maintained, we may lose the entire
value of our positions in those markets. 9
Option trading is highly risky and requires less equity to secure a trade,
thus providing greater potential for loss. 9
If the price of a contract changes dramatically, we may not be able to
exit the position without sustaining substantial loss due to government
imposed price limits or market illiquidity. 9
We may not be able to compete with others with greater resources which
could cause loss of Fund investment. 9
Resignation of Mr. Pacult as a managing member and subsequent failure of
TriView Capital to maintain its net worth may cause suspension of
trading or taxation as a corporation. 9
The offering of units has not been subject to independent review. 10
You will not have the protections provided by the Investment Company Act
of 1940. 10
Investment in this Fund may subject you to the inconvenience of an IRS
audit. 10
Managing member may settle IRS claim without your approval, whether or
not it is in your best interest. 10
You may be subject to back taxes and penalties. 10
The managing member may cause riskier trading by raising the incentive
fee to 27% without prior notice to you. 10
Conflicts Of Interest 10
Managing member, the commodity trading advisors, the introducing broker,
the futures commission merchant, the selling agents and their principals
may preferentially trade for themselves and others. 11
Possible retention of voting control by the managing member may limit
your ability to control issues. 11
Fund fees may be higher than they would be if they were negotiated. 11
Managing member's spouse will receive continuing compensation for
membership interests sold. 11
Managing member may select trading advisor to capitalize on its incentive
fee 11
Commodity trading advisors may engage in high risk trading to generate
fees. 11
Mr. Pacult has sole control over the time he will allocate to the
management of the Fund. 11
No Resolution Of Conflicts Procedures 12
Interests Of Named Experts And Counsel 12
Management's Discussion And Analysis 12
The Fund 12
The Managing members 12
Experience 12
Authority 13
Analysis of Critical Accounting Policies 13
Fund Books and Records 13
The Commodity Trading Advisors 13
Executive Compensation 13
The Advisory Contracts 13
Business Objective And Expenses 14
Explanatory Notes: 14
Securities Offered 15
You, the Investor: 15
Your subscription agreement and check: 15
Management's Discussion 15
Description of Intended Operations 15
Risk Control 16
Trading Risks 16
Fiduciary Responsibility and Remedies 16
Indemnification 17
Provisions of LLC Operating Agreement 17
Provisions of Law 17
Provisions of Federal and State Securities Laws 17
Provisions of the Securities Act of 1933 and NASAA Guidelines 17
Provisions of the Clearing Agreement 17
Other Indemnification Provisions 18
Relationship With The Futures Commission Merchant, the Introducing
Broker And The Managing member 18
Brokerage Commissions are Competitive 18
Relationship With The Commodity Trading Advisors 18
The Commodity Trading Advisors Will Trade For Other Accounts 18
Non-Disclosure Of The Commodity Trading Advisors' Methods 18
Charges To The Fund 18
Compensation Of Managing member 18
Compensation Of The Commodity Trading Advisor 19
Restrictions on Management Fees 19
Compensation of Futures Commission Merchant and Introducing Broker 20
Compensation of Selling Agents 20
Miscellaneous Fees To Futures Commission Merchant 20
Rights of Managing member 20
Other Expenses 20
Charges To The Fund 20
Potential Advantages 21
Equity Management 21
Investment Diversification 22
Limited Liability 22
Administrative Convenience 22
Access To The Commodity Trading Advisors 22
Use Of Proceeds 22
Determination Of The Offering Price 23
The Managing member 23
Identification 23
Michael Pacult 23
No Ownership In Commodity Trading Advisors And Futures Commission
Merchant 24
Trading By The Managing Member 24
No Prior Performance of this Fund and Regulatory Notice 24
Trading Management 24
No Affiliation With Commodity Trading Advisors 24
Rights of the Managing Member With Respect To Commodity Trading Advisor
Selection And Allocation Of Equity 24
Performance of Other Funds Managed by the Managing member 25
Performance Record Of Bromwell Financial Fund, Limited Partnership 25
Performance Record Of Atlas Futures Fund, Limited Fund 25
The Commodity Trading Advisors 26
Forecast Trading Group, LLC 26
Business Background 26
Trading Program 27
Performance History 27
Forecast Trading Group, LLC - The Forecast Portfolio 27
NuWave Investment Corp 28
Business Background 28
Trading Program 28
Performance History 30
NuWave Investment Corp - Combined Portfolio 30
Adobe Asset Management, LLC 30
Business Background 30
Trading Program 31
MONTHLY/ANNUAL RATES OF RETURN *** 32
The Futures Commission Merchant 32
The Introducing Broker 33
Federal Income Tax Aspects 33
Scope Of Tax Presentation 33
No Legal Opinion As To Certain Material Tax Aspects 33
Fund Tax Status 34
No IRS Ruling 34
Tax Opinion 34
Passive Loss And Unrelated Business Income Taxes Rules 35
Basis Loss Limitation 35
At-Risk Limitation 35
Income And Losses From Passive Activities 35
Allocation Of Profits And Losses 35
Taxation Of Futures And Forward Transactions 36
Section 988 Foreign Currency Transactions 36
Capital Gain And Loss Provisions 37
Business For Profit 37
Self-Employment Income And Tax 37
Alternative Minimum Tax 37
Interest Related To Tax Exempt Obligations 37
Not A Tax Shelter 37
Taxation Of Foreign Members 37
Fund Entity-Audit Provisions-Penalties 38
Employee Benefit, Retirement Plans And IRA's 38
The LLC Operating Agreement 38
Formation Of The Fund 38
Units of Membership interests 39
Management Of Fund Affairs 39
General Prohibitions 39
Additional Offerings 39
Fund Accounting, Reports, And Distributions 39
Federal Tax Allocations 40
Transfer Of Membership interests Only With Consent Of The Managing
member 40
Termination Of The Fund 40
Meetings 40
Redemptions 41
Plan For Sale Of Membership Interests 41
No NASD Limitation on Sales Commissions 41
No Sales to Discretionary Accounts 41
The Selling Agent 41
Depository Agreement 41
Subscription Procedure 42
Subscription Amounts 42
Revocation and Acceptance of Subscription 42
Investor Suitability 42
Investor Warranties 42
Legal Matters 43
Litigation And Claims 43
Legal Opinion 43
Experts 43
Additional Information 43
Table of Contents 45
APPENDIX I
Commodity Terms And Definitions
State Regulatory Glossary
Financial Statements
A. TriView Global Fund, LLC
Audited Financial Statements for the Period October 1, 2004 to October 7,
2004
B. TriView Capital Management, Inc.
Audited Financial Statements for the Period October 1, 2004 to October 7,
2004
[The balance of this page has been intentionally left blank.]
Summary of the Offering
This summary is to assist your understanding of the offer. To be certain you
have a full understanding of the risks of this investment, you must carefully
review the entire document, including the exhibits.
The Fund
TriView Global Fund, LLC:
* is a Delaware limited liability company organized on October 1, 2004
* maintains its main business office at 5916 N. 300 West, P. O. Box C,
Fremont, Indiana 46737, (260) 833-1306 with duplicate copies of its financial
records kept with Michael J. Liccar & Co., Certified Public Accountants, 53
West Jackson Boulevard, Suite 1250, Chicago, Illinois 60604, (312) 922-6600
* is operated pursuant to a LLC Operating Agreement which is included as
Exhibit A
* is managed and controlled by TriView Capital Management, Inc., a Delaware
corporation, and Michael Pacult, who are collectively referred to as the
managing member.
The managing member employs independent professional trading managers called
commodity trading advisors to select trades for the Fund.
Description of Securities Offered for Sale
We are offering a minimum of $900,000 and a maximum of $50,000,000 in units
of membership interest at a value per unit that is initially established by
the managing member at $1,000. After we commence business, units will be
offered at the month end net asset value per membership interest, which
reflects trading profits, losses and expenses.
Plan For Sale of Membership interests
All sales will be made through broker dealers that will use their best
efforts, which means they will try, but not guarantee, to sell the membership
interests.
All subscriptions accepted by the managing member will be placed in an
depository account maintained at Star Financial Bank, Angola, IN until the
minimum, $900,000 is sold. Neither the managing member nor its affiliates
may purchase membership interests to meet the minimum. If the minimum is
sold, the depository account will be distributed into accounts in the name of
the Fund. Interest accrued on your subscription amount will be used to buy
additional membership interests for you. If the minimum is not sold after
one year from the date of this prospectus, the managing member has directed
the bank to return your original investment, with any interest accrued and
without any deduction for any expenses.
This offering will continue until the maximum of $50,000,000 is sold. The
managing member may terminate this offering at any time.
Subscription Procedure
To purchase membership interests, you must:
* complete and execute a subscription agreement (Exhibit D), and deliver
your executed subscription documents and check for your investment, which
should be made payable to "Star Bank for the acct. of TriView Fund"
* make representations and warranties in the Subscription Agreement related
to your suitability to purchase the membership interests.
* grant a Power of Attorney to the managing member to take all actions
necessary to admit you as a member to the Fund.
* pay for at least $25,000 in membership interests, though the managing
member may reduce this amount to not less than $5,000.
And you must have:
* the minimum net worth and income provided in the State of your residence,
if it is listed, at the front of this prospectus
* or, one of the following:
* * a minimum net worth, exclusive of your home, home furnishings and
automobiles, of $150,000, or
* * a minimum annual gross income of $45,000 and a minimum net worth of
$45,000, both exclusive of your home, home furnishings and automobiles.
These suitability standards are, in each case, regulatory minimums only, and
merely because you meet such standards do not mean that an investment in the
membership interests is suitable for you. You may not invest more than 10% of
your net worth, exclusive of home, furnishings and automobiles, in the Fund.
Will You Benefit From An Investment In The Fund?
You may benefit from an investment in the Fund if you want to diversify your
portfolio from traditional stock, bond and real estate investments and if you
have money available that you can afford to lose without adverse consequences
to your ability to support your family and your lifestyle. The purchase of
Fund membership interests presents the opportunity to invest in futures
markets which are typically not represented in most investors' portfolios and
which, through long or short positions, offer the opportunity to profit from
rising or falling markets.
However, if you cannot afford the risk of losing your entire investment in
this Fund, you should not purchase these membership interests.
Business Objectives
We are organized to be a commodity pool to engage in the speculative trading
of:
* futures and forward contracts, which are instruments designed to permit
producers to hedge or investors to speculate in various interest rates,
commodities, currencies, stock indices and other financial instruments
* options on futures and forward contracts, which give the purchaser the
right to acquire or sell a given contract at a specified time at a specified
price, and
* other financial instruments.
We cannot guarantee that we will meet our objectives or avoid substantial
losses.
Summary Risk Factors
Investment in the membership interests is speculative, illiquid, and highly
risky. You should purchase membership interests only if you can afford to
lose your entire investment. For a complete description of the risks of an
investment in the Fund, see the Risk Factors section beginning on page 6.
* Our business is the speculative trading in futures and forward contracts,
and options on those contracts, selected by registered commodity trading
advisors. This trading is highly leveraged and takes place in very volatile
markets. You could lose all or a substantial amount of your investment in
the Fund.
* The Fund has no operating history. Therefore, you have no performance
history of this Fund to serve as the basis for evaluating an investment in
the Fund. However, the track record of the commodity trading advisors
disclose the trading programs to be used for this Fund that give an
indication of future results; however, past results are no guarantee of
future results.
* This Fund pays substantial fixed management fees and commission costs.
There is no guarantee that you will receive a return on your investment. To
return an initial investment at $1,000.00 per unit of membership interest
after the first year of operation, we must earn a profit of 7.67%, or $76.74
per initial $1,000 membership interest should we sell the minimum and 5.16%
should we sell the maximum.
* Transfer of your membership interests will be restricted and there are
limitations on your right of redemption to surrender your membership
interests in return for their value. No public market for the membership
interests exists and none is expected to develop.
* This Fund will not make distributions. To receive a return on your
investment, you must use our redemption procedure. The redemption price will
be the net asset value of the membership interests you hold at the end of the
month in which you provide the managing member with no less than ten business
days prior written notice of your request to redeem.
* Although you will not receive distributions, you must pay Federal and
State income taxes on your share of the profits, if any, earned by this Fund
for the year in which they are earned.
* The managing member and affiliates have conflicts of interest with regard
to the management of this Fund. Specifically:
* * the managing member's fees and principal selling agent's continuing
service fees have not been negotiated at arm's length
* * the individual managing member is the sole principal of the corporate
managing member and an affiliate of the principal selling agent
* * the managing member, the commodity trading advisors and their
principals may preferentially trade for the own accounts or for others
* Commodity trading is highly leveraged. A small change in the market price
of a contract can produce adverse consequences to the value of the Fund.
* The managing member may at any time and it its sole discretion select and
allocate the Fund's assets to commodity trading advisors other than those
initially selected, and investors in the Fund must rely on the ability of the
managing member to select such other advisors.
* The incentive nature of the compensation to be paid to the corporate
managing member and the commodity trading advisors may encourage riskier or
more speculative positions than would otherwise be assumed.
* The Fund will not provide any benefit of diversification of your overall
portfolio unless it is profitable, and that may not occur.
Charges To The Fund
The Fund's charges are substantial and must be offset by trading gains and
interest income in order to avoid depletion of the Fund's assets.
Entity Nature of Service Amount of Compensation
The managing member
(TriView Capital Management, Inc. and Mr. Michael Pacult) Manages the
Fund; negotiates and pays trading costs; assumes credit risk of the Fund to
the futures commission merchant TriView Capital receives a fixed
brokerage commission of 5% to clear domestic trades plus actual commissions
charged for trades made on foreign exchanges and forward markets, if any, and
retains the difference between the 5% and the round turn commissions paid to
the futures commission merchant. [$1,250+]
TriView Capital receives a 4.283% incentive fee computed
quarterly on new net profits the Fund has produced through trading.
The commodity trading advisors
(Forecast Trading Group, LLC,
NuWave Investment Corp., and
Adobe Asset Management, LLC) Selects and enters trades for the Fund
0.276% annual management fee, paid monthly, of the equity assigned to it to
trade. [$69+]
22.717% quarterly incentive fee on new net profits it generates.
The futures commission merchant
(Man Financial Inc.)
Accepts trades from the advisor, clears the trades; hold the Fund's
trading equity The corporate managing member pays the futures commission
merchant the per round turn commissions.
The introducing broker
(Mt. Kemble Futures) Introduces the trades from the advisor to the
futures commission merchant Shares the round turn brokerage commissions
paid by the managing member to the futures commission merchant.
The selling agents
(Futures Investment Company, a National Association of Securities Dealers
registered broker/dealer, principal selling agent and additional selling
agents it appoints) Solicits and services investment in the Fund
After Fund has commenced trading, the Fund pays the selling agents up to a 4%
continuing service fee per year on the investment in the Fund, adjusted month
to month to reflect profit and loss, for so long as the investment remains in
the Fund. [$1,000+]
Lawyers, Accountants and Others
(The Scott Law Firm, P. A., Frank L. Sassetti & Co., Michael J. Liccar & Co.)
Initial and continuing legal, audit and accounting work $55,000 in
offering and organizational expenses and $25,000 in offering expenses per
$3,000,000 of new investment to be reimbursed by the Fund to the managing
member after the thirteenth month of operation. [$232+] During operation,
$23,000 in annual audit, accounting and legal costs ($18,000 and $5,000,
respectively). [$11.50+]
+ Each $25,000 investment pays this amount per year for this particular
charge. When the charge is not based on a percentage, but rather a fixed
amount, we have computed that expense upon an assumed net asset value of
$50,000,000.
Use Of Proceeds
After the thirteenth month of operation following the commencement of
business, the Fund will reimburse the managing member for all offering and
organizational expenses incurred up to the end of the twelfth month of
operation after the commencement of business. Such expenses are estimated to
be $55,000. Additional offering costs after the raise of the minimum are
estimated to be $25,000 for each $3,000,000 in face value of membership
interests sold. If the offering is continued after the first twelve months
of operation, additional offering expenses will be paid by the Fund as
incurred.
The managing member will initially apply all of the Fund assets toward
trading commodities and cash reserves.
Selection Of Commodity Trading Advisors And Allocation Of Equity
The managing member has selected three trading advisors to serve as commodity
trading advisor of the Fund. The trading advisors are solely responsible for
making trades, and neither the managing member nor you will have notice or
the opportunity to approve the trades made. The advisors are expected to
make short sales, with unlimited risk of loss, on behalf of the Fund. The
managing member, without prior notice to you, may terminate or add trading
advisors, or change the amount of equity allocated to any or all advisors.
Federal Income Tax Aspects
In the opinion of The Scott Law Firm, P.A., counsel to the managing member,
the Fund is classified as a Fund and will not be considered a publicly-traded
Fund taxable as a corporation for Federal income tax purposes. As such,
whether or not the Fund has distributed any cash to the members, each member
must report his or her allocable share of items of income, gain, loss and
deduction of the Fund and is individually liable for income tax on such
share. The Fund invests in futures and other commodity contracts, gain or
loss on which will, depending on the contracts traded, constitute a mixture
of:
* ordinary income or loss, and/or
* capital gain or loss.
Trading losses of the Fund, which will generally constitute capital losses,
may only be available to offset a limited amount of interest income allocated
to the members. Although the Fund treats the brokerage fees and performance
fees paid as ordinary expenses, such expenses may be subject to restrictions
on deductibility for Federal income tax purposes or be treated as non-
deductible, syndication costs by the Internal Revenue Service.
Redemptions
You may request the managing member to accept the surrender of your
membership interests for cash through our redemption procedures. The
managing member will try to comply with all redemption requests, but may not
be able to do so because of insufficient liquid assets or reserve for
contingent claims. See, The LLC Operating Agreement, Redemptions.
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Diagram of Fund Structure & Commissions
TriView Global Fund, LLC
Please see the previous table under Charges to the Fund for a description of
the parties and expenses.
The Risks You Face
Investment in the membership interests is speculative, illiquid, and highly
risky. You should purchase membership interests only if you can afford to
lose your entire investment. All of the following risks, except payment of
fixed expenses, are present without regard to the amount of membership
interests sold.
The corporate managing member of this Fund has no experience.
TriView Capital Management, Inc., the corporate managing member, has not
previously operated a commodity pool or engaged in any other business. Also,
the Fund has not yet commenced business and, therefore, has no performance
history.
We must pay substantial fees, charges and expenses regardless of
profitability which must be recovered before you can receive a return on your
investment.
We must pay our fees, charges and expenses before you will realize a profit.
They are:
* fixed brokerage commissions of 5% annually of the equity assigned to the
trading advisors to trade for domestic trades plus actual commissions charged
by the futures commission merchant for trades made on foreign exchanges and
forward markets, if any
* up to a 4% annual continuing service fee, payable monthly, to the selling
agents
* a management fee to the commodity trading advisors of 0.276% per year
* yearly expenses estimated at $23,000, of which $18,000 is paid for
accounting and audit services and $5,000 is paid for legal services
* variable operating expenses such as telephone, postage, and office
supplies, and
* extra-ordinary expenses such as claims and defense of claims from brokers,
members, and other parties.
The incentive fees of 4.283% to the managing member and 22.717% to the
commodity trading advisors are accrued monthly but paid on a quarterly basis.
The Fund may increase the combined incentive fees paid to the trading
advisors and managing member to 27% if the management fee is eliminated.
Conversely, the Fund may increase the management fees to the commodity
trading advisors and managing member to a total of 6% if the total incentive
fees are decreased to 15%. The Fund may be subject to substantial incentive
fees in the initial quarters of operation of the Fund that will not be
refunded, even if we experience subsequent losses that produce a net loss for
that year. See Charges to the Fund.
You may not transfer your membership interests and must rely on our
redemption procedures to receive your investment back.
You can assign or transfer your membership interests with the consent of the
managing member, which will be granted only in limited circumstances. See
The LLC Operating Agreement, Transfer Of Units Only With Consent Of The
Managing member and the LLC Operating Agreement (Exhibit A).
Therefore, you must rely on our redemption procedures to receive your initial
investment adjusted to reflect profits, payment of expenses, and losses. See
The LLC Operating Agreement, Redemptions.
Your right of redemption is limited.
Our redemption procedures provide:
* the redemption amount will be the net asset value of the membership
interests as calculated at the end of the month in which the redemption
request is received
* you must submit your redemption request in a form acceptable to the
managing member no less than 10 business days prior to the withdrawal date
* it must be approved by the managing member, and
* it may not be granted if we do not have enough liquid assets.
Subject to the foregoing limitations, the managing member intends to grant
all redemption requests received no less than ten days prior to the last
business day of the month and will use its best efforts to pay those requests
within twenty days after the last business day of the month in which the
redemption request was received. Intervening circumstances may prevent the
redemption of membership interests before they are significantly devalued.
See The LLC Operating Agreement, Exhibit A, Redemptions.
Further, substantial redemption requests could adversely affect us by:
* the liquidation of positions too rapidly or on unfavorable terms which
prevent us from satisfaction of all redemption requests, or
* the reduction of our available trading equity at a time when we have an
opportunity to earn substantial profit.
The Fund depends upon Mr. Pacult, and his absence could cause the Fund to
cease operations.
You will be relying entirely on the ability of the managing member to select
and monitor the commodity trading advisors selected for the Fund. Mr. Pacult
is the individual managing member and the sole director and officer of the
corporate managing member. If Mr. Pacult becomes unable to perform his
duties, the Fund could be required to cease operations and trading until a
replacement for him is found.
Managing member and commodity trading advisors will serve other businesses
and may not have adequate time to devote to the Fund.
The individual managing member currently manages other commodity pools and
both managing members expect to manage additional pools in the future. Such
other pools may also use this pool's managing member to negotiate better
terms for clearing and other services. The commodity trading advisors
currently manage other commodity accounts and may manage new accounts,
including personal accounts and other commodity pools. Although the
commodity trading advisors intend to use similar trading methods for all
accounts they manage, they may vary those methods slightly. Accordingly,
there is no guarantee that our trading results will be similar to or better
than the trading advisors' other accounts. Our business could be adversely
affected by the failure of either Mr. Pacult, who is the individual managing
member and also the sole director of the corporate managing member, or the
trading advisors to devote sufficient time to the Fund affairs. See Risk
Factors, Trading Management, and The Commodity Trading Advisors.
There are conflicts of interest in the Fund structure that may limit our
profits.
Before investing in this Fund, you must consider the actual and potential
conflicts of interest that exist in our structure and operation.
Specifically, Mr. Pacult is also a principal of Futures Investment Company,
the principal selling agent. Therefore, the managing member will probably
not replace Futures Investment Company as the principal selling agent because
it is paid a 4% annual continuing service fee on sales made by Shira Pacult,
the spouse of the individual managing member, and any other associated
persons it employs.
In addition, because the principal selling agent is affiliated with the
managing member, no independent due diligence of this offering will be
conducted in regard to interests it sells. The managing member retains a
portion of the 5% fixed annual fee for brokerage commissions and is paid a 3%
incentive fee and, therefore, is unlikely to resign. See Risk Factors,
Conflicts of Interest, and the LLC Operating Agreement (Exhibit A).
You will be taxed on profits though you will not receive distributions.
We do not intend to make cash distributions from profits. Regardless of
whether distributions are made, if we realize profits for a fiscal year, you
must report that income on your tax returns.
You will have to pay taxes on profits in a current year which may be lost in
future years.
We might sustain losses that offset our profits after the end of the year.
We do not intend to make distributions, so you must receive a redemption
pursuant to our redemption procedures to receive a return of your investment.
And, losses after any year-end could require you to pay taxes on any prior
year's income from principal. See Federal Income Tax Aspects and The LLC
Operating Agreement (Exhibit A).
If the managing member selects new trading advisors, they may not be as
profitable as those replaced and the new advisors will not be responsible for
recouping any previous losses.
We rely upon commodity trading advisors to generate profits pursuant to
Advisory Contracts and Powers of Attorney (Exhibits F-H). A trading advisor
may terminate its relationship with the Fund at any time. If this happens,
or if the trading advisor becomes unable to serve us for any other reason,
the managing member may select one or more alternate trading advisors. We
cannot guarantee that any alternate trading advisors will trade as profitably
as the original trading advisor, or that they will be retained on terms that
are as favorable. Also, any new trading advisors will not be obligated to
recoup losses, if any, incurred by the prior trading advisor before they are
paid incentive fees on new net profits they generates.
The managing member may change the commodity trading advisors and their
allocation of equity to or among advisors without prior notice to you.
Without prior notice to you, the managing member may change the commodity
trading advisors and the amount of equity to trade at any time, for any
reason.
You will not participate in management and may not contest the business
decisions of the managing member.
You may not manage or conduct our business in any way. If you did, you would
be deemed a managing member, which is not allowed by the LLC Operating
Agreement (Exhibit A). Accordingly, you are bound by the business decisions
of the managing member.
Commodity futures trading is speculative and highly risky.
Commodity futures, forward, and option contracts have a high risk of loss and
are highly volatile. Specifically:
* price movements are influenced by such unpredictable variables as: changes
in supply and demand; weather; agricultural trade, fiscal, monetary and
exchange control programs and policies of governments; national and
international political and economic events; and, changes in interest rates,
governments, exchanges, and other market authorities that intervene to
influence prices
* even if the analysis of the fundamental conditions by a commodity trading
advisor is correct, prices still may not react as predicted
* analysis by the use of a computer program to measure price, historical
price averages, momentum and other technical factors deemed important by a
commodity trading advisor may also fail to predict price direction
* it is possible for most of our open positions to be unprofitable at the
same time
* price changes may reach a limit upon which trading rules require a
suspension of trading for a specified period of time. It is possible for
these limits to be reached in the same direction for successive days. This
may prevent us from exiting a position, and when the market reopens, we could
suffer a substantial loss on the position
* losses are not limited to the margin allocated to hold the position and
may exceed the total equity in our account, and
* short positions, which have unlimited risk of loss, will be taken on our
behalf by the trading advisors.
As a result of leverage, small changes in the price of the Fund's positions
may result in major losses.
A small amount of money relative to the value of the contract traded, called
margin, must be deposited to place and hold a trade. The margin amount is
typically between 10% and 30% of the value of the contract traded. This
permits a large percentage gain or loss relative to the margin deposit. For
example, if at the time of purchase, 10% of the futures contract price is
deposited as margin, a 10% decrease in the position's value will cause a loss
of all the equity allocated to the trade, which could equal the entire value
of the account. The losses could be substantially more than the margin
deposited and the total value of the account. Also, the trading advisors are
solely responsible for its trades and will not be limited in the amount of
leverage they may employ.
The managing member does not control the trading advisors or their methods
and may not be able to prevent large losses.
The commodity trading advisors enter trades on our behalf directly with the
futures commission merchant. The managing member does not know the trades
before they are made, nor does it know the trading advisors' methods, the
number of contracts bought or sold, or the margin required. The trading
advisors will not notify the managing member of any modifications, additions
or deletions to their trading methods and money management principles. We
may suddenly suffer large losses before the managing member knows remedial
action must be taken.
Illiquid markets could make it impossible for the Fund's advisors to realize
profits or limit losses.
It is not always possible to execute a buy or sell order. Such lack of
liquidity can be caused by:
* a lack of interest in the contract caused by market conditions which
produce no persons willing to buy or sell, or
* the suspension of trading which may occur because the price limit for a
contract has been reached.
Most United States commodity exchanges limit price movement in a single
direction by rules referred to as price limits. Once these limits have been
reached, no trades may be executed at prices beyond the limits for a
specified amount of time, usually until the next trading day. However, given
sufficient price movement the following day, price limits may be imposed
again. Accordingly, price limits may be in effect for protracted time
periods. No trading may be made in the direction of the price movement while
the limit is in place. The frequency of the imposition of price limits or
the length of time they will be in effect cannot be predicted. This causes a
lack of liquidity and exposure to substantial losses. These losses could
exceed the total equity in our account.
Changes in trading equity may adversely affect Fund performance.
Commodity trading advisors often are unable to adjust to changes in the
amount of money they manage. This is because:
* the larger amount of equity under management requires larger trades to be
made, which may be more difficult to execute
* there are legal limits called position limits upon the number of positions
that may be taken on a particular commodity, and
* it may be more difficult to scale in positions, which is when a trading
advisor takes positions at different prices at different times and then
allocates those positions on a ratable basis when a change in its allocated
equity occurs.
See Appendix I for the full definitions of position limits and scale in
positions.
The commodity trading advisors will not limit the total equity it accepts and
may suffer losses that cause a withdrawal of the equity it manages. A
commodity trading advisor's rate of return tends to decrease as the amount of
equity under management increases.
Failure of commodity brokers or banks could result in loss of assets.
If the futures commission merchant or other entities with which our money is
on deposit becomes bankrupt, we might only recover some, if any, of the
equity in our account. The deposits in our bank accounts will be insured for
only $100,000 and payment on insured deposits may be delayed.
When trading in foreign exchanges, if the creditworthiness of the other
parties or the foreign currency is not maintained, we may lose the entire
value of our positions in those markets.
Trading commodities involves entering a contract, or option to contract, for
the delivery of goods or money at a future date. The value of the contract
or option depends directly upon the creditworthiness of the parties and the
value of the item traded. The managing member has the authority to grant
the right to the commodity trading advisors to trade commodities on United
States commodity exchanges, foreign commodity exchanges, the inter-bank
currency markets, the physical commodity cash markets and any other markets
the managing member, in its sole judgment, deems appropriate. The commodity
exchange contracts and options traded on United States exchanges are
guaranteed by the members' credit. Contracts and options upon foreign
commodity exchanges and the inter-bank currency markets are usually not
regulated by specific laws and are backed only by the parties to the
contracts. It is possible for a price movement or a devaluation of a
particular foreign currency to be large enough to destroy the
creditworthiness or value of
* the contracts and options issued by a particular party or government, or
* all of the contracts and options of an entire market.
In either of those situations, we could lose the entire value of a position
with little recourse to regain any of its value.
Option trading is highly risky and requires less equity to secure a trade,
thus providing greater potential for loss.
We expect to trade options, both puts and calls. After a position is taken,
a liquid market may not exist for any particular commodity option or at any
particular time. In an illiquid market, we may not be able to buy or sell to
offset, or liquidate, the positions we have taken.
Option trading allows us to trade with less equity on deposit. Accordingly,
the risk of loss of the entire account is great.
If the price of a contract changes dramatically, we may not be able to exit
the position without sustaining substantial loss due to government imposed
price limits or market illiquidity.
The Commodity Futures Trading Commission and the United States commodity
exchanges have established limits referred to as Speculative Position Limits
or Position Limits. These are different from the price limits described
before. They are limits on the maximum net long or net short futures or
options positions which any person or group of persons may own, hold, or
control in futures contracts. The positions taken among all commodity
accounts owned, controlled or managed by a trading advisor and its principals
are combined for position limit purposes. Thus, a trading advisor may not be
able to hold sufficient positions for us to maximize the return on a
particular trade because it may be taking similar positions for others.
We may not be able to compete with others with greater resources which could
cause loss of Fund investment.
Commodity futures trading is highly competitive. We compete with others who
may have
* greater experience
* more extensive information about developments affecting the futures
markets
* more sophisticated means of analyzing and interpreting the futures
markets, and
* greater financial resources.
Those with greater experience and financial resources have a better chance at
trading profitably. For instance, we will not maintain a warehouse to take
delivery of commodities and will not have a large capital base to allow us to
hold positions through bad times.
Resignation of Mr. Pacult as a managing member and subsequent failure of
TriView Capital to maintain its net worth may cause suspension of trading or
taxation as a corporation.
The North American Securities Administrators Association has established
guidelines for commodity pools structured as limited liability companies.
Those guidelines require that a sole corporate managing member maintain a net
worth during the offering period of either 5% of the offering amount but not
less than $50,000, up to a maximum of $1,000,000. TriView Capital presently
has insufficient capital to meet this guideline and, therefore, the loss of
Mr. Pacult as an individual managing member could result in the denial or
suspension of sales in States that apply the guidelines.
Any managing member wishing to voluntarily withdraw from the Fund must give
120 days prior written notice to the members. When the sole managing member
of a Fund is a corporation, the tax rules require conditions to be met to
allow the Fund to be taxed as a partnership and not as a corporation. To be
taxed as a partnership requires that two or more of the following tests be
met:
* decentralized management
* unlimited liability
* limited transferability of shares, and
* limited continuation of existence.
If the Fund were not taxed as a partnership, its income would be taxed at
corporate rates and would be distributed to you as dividends. The Fund has
an individual managing member and, therefore, these rules are not applicable.
If Mr. Pacult resigned or otherwise could not serve as a managing member, the
Fund is structured to satisfy the guidelines and, therefore, in the opinion
of tax counsel, would continue to be taxed as a partnership.
Our tax status has not been confirmed by an IRS ruling. No such ruling has
been or will be requested on our behalf. If we are taxed as a corporation
for Federal income tax purposes in any taxable year(s),
* our income or loss would not be passed through to you
* we would be taxed at corporate rates
* all or a portion of any distributions made to you would be taxed to you as
dividend income, and
* the amount of such distributions would not be deductible by us in
computing our taxable income.
See Federal Income Tax Aspects.
If Mr. Pacult resigns and TriView Capital becomes the sole managing member,
it will use its best efforts to satisfy the requirements necessary to permit
us to be taxed as a partnership.
The offering of units has not been subject to independent review.
Purchasing membership interests does not create an Individual Retirement
Account, commonly called an IRA, and the creation and administration of an
IRA are solely your responsibility. The assets of a retirement account
should be carefully diversified and you should only allocate high risk
capital to this Fund. If you invest a significant portion of your retirement
plan or IRA assets in this Fund, you could be exposing that portion to
significant loss. The managing member will not advise you in any manner on
an investment in this Fund, including matters of diversification, prudence
and liquidity. Accordingly, you must rely upon the experience of qualified
investment counsel you select.
You will not have the protections provided by the Investment Company Act of
1940.
Stock investment companies and investment advisors must be registered under
the Investment Company Act of 1940, as amended. Because the business of the
Fund, TriView Capital Management, Inc., Mr. Pacult and the commodity trading
advisors involves only the trade of commodities, none of them is required,
nor does any of them intend, to be registered under the Investment Company
Act of 1940 or any similar State law. Therefore, you are not protected by
any such legislation.
Investment in this Fund may subject you to the inconvenience of an IRS audit.
If our return is audited, the IRS may make adjustments to our reported items.
If an audit results in an adjustment, you may be:
* required to file amended returns
* subject to a separate IRS audit, and
* required to pay back taxes, plus penalty and interest.
Managing member may settle IRS claim without your approval, whether or not it
is in your best interest.
TriView Capital Management, Inc. is named tax matters partner. This grants
it the power to settle any IRS claim on your behalf if you hold 1% or less
interest in this Fund and do not timely object to the tax matters partner's
authority, after notice. Such settlement may not necessarily be in your best
interest. See Federal Income Tax Aspects.
You may be subject to back taxes and penalties.
The Fund tax counsel has delivered an opinion to the managing member that
this Fund, as presently operated by the managing member, will be taxed as a
partnership and not as a corporation. This opinion does not include the tax
treatment of expenses to prepare the prospectus and selling expenses because
they have to be allocated between expenses attendant to formation and
ordinary business expenses by the managing member. In addition, commodity
trading advisors' fees are combined with employee business expenses and other
expenses of producing income. The aggregate of such expenses is deductible
only if such amount exceeds 2% of the taxpayer's adjusted gross income. The
managing member believes that our intended operations will qualify as a trade
or business.
The managing member may cause riskier trading by raising the incentive fee to
27% without prior notice to you.
The managing member has reserved the right to raise, without prior notice to
you, the total incentive fee between the trading advisor and the managing
member to a maximum of 27% provided the total management fees charged by the
commodity trading advisors and managing member are 0%. If this occurs, the
trading advisors may engage in riskier trades, with the encouragement of the
managing member, because their fees would be tied exclusively to the
performance of the trading program.
Conflicts Of Interest
There are present and potential future conflicts of interest in our structure
and operation you should consider before you purchase membership interests.
The managing member will use this notice of conflicts as a defense against
any claim or other proceeding made against Mr. Pacult, TriView Capital
Management, Inc., the commodity trading advisors, the futures commission
merchant, the principal selling agent or any principal or affiliate, agent or
employee of any of them.
Managing member, the commodity trading advisors, the introducing broker, the
futures commission merchant, the selling agents and their principals may
preferentially trade for themselves and others.
Because the managing member, the commodity trading advisors, the introducing
broker, the futures commission merchant, the selling agents and their
principals and affiliates may trade for themselves and others, conflicts of
interest may exist or be created in the future. For example, if any of them
trade for their own account, you will not have access to their trading
records. They could take their positions prior to the entry of positions
they know will be placed for the Fund, although, they have stated they will
not do so.
Possible retention of voting control by the managing member may limit your
ability to control issues.
The managing member, its principal and its affiliates may purchase an
unlimited amount of membership interests. These persons include Mr. Pacult
as managing member and as a principal of Futures Investment Company, the
principal selling agent. It is possible that they could purchase enough
membership interests to retain voting control. They could then vote,
individually or as a block, to create a conflict with your best interests.
Such voting control may limit the members' ability to achieve a majority vote
on such issues as:
* amendment of the LLC Operating Agreement
* change in our basic investment policy
* dissolution of this Fund, or
* the sale or distribution of our assets.
However, neither managing member may vote, directly or indirectly, on the
issue of their removal.
Fund fees may be higher than they would be if they were negotiated.
The fixed annual brokerage commission of 5% of equity assigned to the trading
advisors to trade to the corporate managing member has not been negotiated at
arm's length. The managing member:
* accepts the credit risk of the Fund to the futures commission merchant
* maintains the day to day contact with the selling agents and the commodity
trading advisors
* reviews the daily positions and margin requirements of the Fund
* pays the futures commission merchant's charges
* pays the continuing service fees to the selling agents for communicating
with investors and maintaining investment in the Fund.
Mr. Pacult is the principal of the corporate managing member and a principal
and 50% owner of Futures Investment Company, the principal selling agent. He
has a conflict of interest because he receives compensation from the 5% fixed
brokerage commissions paid to the corporate managing member and the
continuing service fee paid to the principal selling agent, Futures
Investment Company. From the 5% fixed brokerage commissions paid to the
corporate managing member, the corporate managing member must pay round turn
brokerage commissions to the futures commission merchant, who in turn shares
them with the introducing broker. The corporate managing member will keep
any remaining portion of the 5%. The continuing service fee of up to 4% per
year is paid by the Fund to the selling agents for payment, as they
determine, to the associated persons who sold membership interests to the
other members and you. Mr. Pacult and his spouse, as associated persons,
will be paid a portion of the 4% paid to Futures Investment Company, the
principal selling agent, for interests they sell.
Managing member's spouse will receive continuing compensation for membership
interests sold.
Michael Pacult's spouse, Mrs. Shira Pacult, is a 50% owner and registered
representative of Futures Investment Company. As such, she will receive up
to a 4% annual continuing service fee for her work to retain investment in
the Fund through service of the membership interest she sells.
Managing member may select trading advisor to capitalize on its incentive fee
The corporate managing member receives a 4.283% incentive fee on new net
profits. It may select new trading advisors and accept an inordinately high
exposure to risk to attempt to achieve profits to be paid the incentive fee.
Commodity trading advisors may engage in high risk trading to generate fees.
As a general rule, the greater the risk assumed, the greater the potential
for profit. Because the commodity trading advisors receive 22.717% of our
new net profits, they might select trades that are too risky for us.
Mr. Pacult has sole control over the time he will allocate to the management
of the Fund.
Mr. Pacult is responsible for:
* managing this Fund and three other publicly traded Funds and
* performing other investor relations services as a principal and associated
person of Futures Investment Company.
Mr. Pacult has also reserved the right to trade for his own account and to
form and manage other commodity pools and ventures in the future. Mr. Pacult
is solely responsible for the allocation of his time to the management of
this Fund as well as the other projects he currently manages and will manage
in the future. Mr. Pacult manages his time, in part, by the delegation of
many of the tasks, such as trade selection and preparation of financial
reports and offering documentation, to independent commodity trading
advisors, accountants, and attorneys. Mr. Pacult believes he presently has
and will, in the future, have sufficient time to devote to the affairs of the
Fund.
No Resolution Of Conflicts Procedures
The managing member has not and will not establish formal procedures to
resolve potential conflicts of interest. These future potential conflicts
may adversely affect both you and us.
The previous risk factors and conflicts of interest are complete as of the
date of this prospectus, however, additional risks and conflicts may occur
which are not presently foreseen by the managing member. You may not
construe this prospectus as legal or tax advice. Before making an investment
in this Fund, you should read this entire prospectus, including the LLC
Operating Agreement (Exhibit A) and the subscription agreement. You should
also consult with your personal legal, tax, and other professional advisors.
See Investor Suitability.
Interests Of Named Experts And Counsel
The managing member has employed The Scott Law Firm, P.A., a Florida
professional corporation, to prepare this prospectus, provide tax advice and
opine upon the legality of issuing the membership interests. Neither the law
firm, its principal, any accountant, nor any other expert hired by the Fund
to give advice on the preparation of this offering document have been hired
on a contingent fee basis. Nor do any of them have any present or future
expectation of interest in the managing member, the selling agent, the
commodity trading advisors, the introducing broker or the futures commission
merchant.
Management's Discussion And Analysis
The Fund
TriView Global Fund, LLC is a Delaware limited liability company organized on
October 1, 2004, and maintains its main business office at 5916 N. 300 West,
P. O. Box C, Fremont, IN 46737, (260) 833-1306. It is in the process of
being qualified to be a commodity pool to engage in the speculative trading
of futures, commodity options and forward contracts on currencies, interest
rates, energy and agriculture products, metals, and stock indices.
Our business objective is to let our invested capital appreciate while
controlling losses; however, there can be no assurance that we will meet this
objective.
The Fund is managed by its managing members, TriView Capital Management,
Inc., a Delaware corporation, and Mr. Michael Pacult.
We do not have officers or employees, which is why there is no report of
executive compensation in this prospectus.
We operate pursuant to the terms of the LLC Operating Agreement attached as
Exhibit A, which grants full management control to the managing member
including, the right to employ independent trading managers called commodity
trading advisors.
Except for the LLC Operating Agreement, the Fund may not enter any contract
with the managing member or commodity trading advisors that is greater than
one year in duration. However, all such contracts may provide for automatic
annual renewal and be terminable at anytime without penalty upon sixty days,
or less, written notice by the either party to the contract.
The Managing members
The corporate managing member is TriView Capital Management, Inc., a Delaware
corporation incorporated on September 30, 2004. Its registration as a
commodity pool operator is in process and it maintains its main business
office at 5916 N. 300 West, P.O. Box C, Fremont, IN 46737, (260) 833-1306.
The individual managing member is Michael Pacult, who was registered as a
commodity pool operator on July 28, 2003 and maintains his main business
office at 5916 N. 300 West, P.O. Box C, Fremont, IN 46737, (260) 833-1306.
The individual and corporate managing members and the Fund will comply with
all applicable registration and other requirements under the Commodity
Exchange Act, as amended.
Experience
TriView Capital Management, Inc., the corporate managing member, has not
previously operated a commodity pool or engaged in any other business. Mr.
Pacult, the other managing member, is a shareholder and sole director of
Ashley Capital Management, Inc., the corporate general partner of Atlas
Futures Fund, Limited Partnership and is also its individual general partner.
Mr. Pacult is also the sole shareholder and director of Belmont Capital
Management, Inc., the corporate general partner of Bromwell Financial Fund,
Limited Partnership and is also its individual general partner. Mr. Pacult
is also the sole shareholder and director of White Oak Financial Services,
Inc., the corporate general partner of Providence Select Fund, Limited
Partnership and is also its individual general partner. The corporate
general partners of both Atlas and Bromwell are under Mr. Pacult's
supervision and guidance and have more than three years of experience as
sponsors of commodity pools. Providence has not yet commenced business. The
past performance of Atlas can be found at page 25, and the past performance
of Bromwell can be found at page 25.
Authority
Mr. Pacult is the sole shareholder, director, principal and officer of
TriView Capital Management, Inc. Although the signature of either TriView
Capital or Mr. Pacult, individually, may bind this Fund, Mr. Pacult is the
sole decision maker for this Fund. He also is the sole decision maker for
two other publicly traded commodity pools.
The managing member is authorized to take all actions necessary to manage the
affairs of the Fund. See Article II of the LLC Operating Agreement,
attached as Exhibit A.
Analysis of Critical Accounting Policies
The Fund's critical accounting policies are set forth in the financial
statements in this prospectus prepared in accordance with U.S. generally
accepted accounting principles, which require the use of certain accounting
policies that affect the amounts reported in these financial statements,
including the following: The contracts the Fund trades are accounted for on a
trade-date basis and marked to market on a daily basis. The difference
between their cost and market value is recorded as "change in unrealized
profit/loss" for open (unrealized) contracts, and recorded as "realized
profit/loss" when open positions are closed out; the sum of these amounts
constitutes the Fund's trading revenues. Earned interest income revenue, as
well as management fee, incentive fee, and brokerage fee expenses of the Fund
are recorded on an accrual basis. The managing member believes that all
relevant accounting assumptions and policies have been considered.
Fund Books and Records
Our books and records will be maintained for six years at 5916 N. 300 West,
P. O. Box C, Fremont, IN 46737. A duplicate set of the books will be
maintained by Michael J. Liccar & Co., Certified Public Accountants, 53
West Jackson Boulevard, Suite 1250, Chicago, Illinois 60604, (312) 922-6600.
Mr. Liccar keeps the Fund original books and prepares the IRS Form K-1s. You
may access our books and records related to the Fund and your account by
visiting either office at a mutually convenient time and you may have copies
made at a reasonable charge per page. The managing member serves as tax
matters partner for the Fund. The CPA firm of Frank L. Sassetti, & Co., 6611
West North Avenue, Oak Park, IL 60302 conducts our annual audit and the
annual audit of the corporate managing member, and prepares our tax returns.
The Commodity Trading Advisors
To conduct trading on our behalf, the managing member has initially selected
three independent commodity trading advisors. Without prior notice to you,
the managing member has sole discretion to employ additional trading
advisors, terminate any trading advisor, and change the amount of equity any
advisor may trade. However, the managing member will give you notice of any
change in trading advisors within seven days of such change. Such notice
will include a description of your right to redemption.
No change in trading advisors will constitute a material change to the LLC
Operating Agreement or the structure of our operation. All trading advisors
employed to trade for the Fund will be registered with the Commodity Futures
Trading Commission and will have at least three years of experience as a
trading advisor.
Executive Compensation
The corporate managing member, as an independent contractor, is compensated
to manage the pool. It receives a portion of the 5% fixed brokerage
commissions and a 4.283% incentive fee. Also, as a 50% owner of Futures
Investment Company, Mr. Pacult, one of the managing members, will receive a
portion of the up to 4% annual continuing service fee paid to Futures
Investment Company.
The Advisory Contracts
The managing member expects to assign 97% of our assets to trading by the
advisors. The authority granted to the trading advisors is expressed in the
advisory contracts and powers of attorney granted by the Fund to the trading
advisors, and the futures commission merchant. See Exhibits F-H.
These agreements provide the trading advisors with revocable powers of
attorney, which gives them sole authority to determine
* the markets to be traded
* the location of those markets
* the size of the position to be taken in each market, and
* the timing of entry and exit in a market.
The advisory contracts and powers of attorney may be terminated, at any time,
upon notice by either the Fund or a trading advisor to the other and to the
futures commission merchant.
Business Objective And Expenses
Our objective is to achieve the potentially high rates of return that are
possible through the speculative trading of futures, commodity options and
forward contracts. We do not expect to engage in any other business.
The managing member organized this Fund to be a commodity pool, as that term
is defined in the Commodity Exchange Act. It employs independent commodity
trading advisors to trade for us.
The managing member intends to allocate 97% of our net assets to the selected
trading advisors to conduct this trading. The trading advisors typically
allocates between 10% and 30% of the trading equity assigned to them as a
deposit, or margin, to secure the trading positions it selects. The right to
increase the amount of equity utilized for margin is solely at the discretion
of the commodity trading advisors and under certain market conditions, this
range could be substantially higher.
Although we do not expect to make distributions, you will nevertheless be
required to pay yearly Federal, State and local taxes upon income, if any,
earned by this Fund.
There can be no assurance that we will achieve our business objectives, be
able to pay the substantial commissions, fees and other costs to do business,
or avoid substantial trading losses. See Charges to the Fund.
Below is a chart explaining the expenses we expect to incur during the first
twelve months of trading. All interest income is paid to the Fund. The
chart below assumes the value of each unit of membership interest will remain
constant at $1,000 per membership interest during the first twelve months.
Expenses Per Unit of Membership interest
For The Next 12-Month Period Of Operations
Based Upon Minimum Based Upon Maximum
Units Sold Units Sold
Units (1) 900 Units ($900,000) 50,000 Units
($50,000,000)
Selling Price per Unit (2) $1,000.00 $1,000.00
Operating Expenses (3) 25.56 0.46
Continuing Compensation (4) 40.00 40.00
Trading Advisors' Management Fee (5) 2.68 2.68
Brokerage Commissions and Trading Fees (6) 48.50 48.50
Interest Income (7) (40.00) (40.00)
Trading Income Required to Redeem one Unit
at Initial Value at end of
period (8) and (9) $ 76.74 $ 51.64
Income as a % of Selling Price Per
Unit (10) 7.67% 5.16%
Explanatory Notes:
(1) Your investment will be held in a depository account and not used for
trading until a minimum of 900 units of membership interests for a total
equity to the Fund of $900,000 are sold. The Fund has currently registered on
a Form S-1, filed with the U.S. Securities and Exchange Commission, a maximum
of $50,000,000 of membership interests to be sold. The managing member may
register additional membership interests, from time to time.
(2) You will purchase membership interests at the Fund's initial unit value
established by the managing member of $1,000.
(3) The Fund will incur yearly operating expenses commencing after the
commencement of business of approximately $18,000 for accounting and $5,000
for legal.
(4) The Fund pays to the principal selling agent a continuing service fee of
4% annually paid from the date of the commencement of business at the rate of
1/3% per month on the total investment sold by that agent for so long as the
investment remains in the Fund.
(5) The commodity trading advisors are paid a monthly management fee of
0.276% of the trading equity allocated to them on deposit in the futures
commission merchant account, calculated as of the close of business of the
last trading day during the previous month. For purposes of this
calculation, we assume that 97% of our assets will be deposited allocated to
trading, with a 3% reserve retained by the Fund.
(6) Brokerage commissions and domestic trading fees are fixed by the managing
member at 5/12% monthly, 5% annually, of our assets on deposit with the
futures commission merchant plus actual commissions for trades made on
foreign exchanges or forward markets, if any. For purposes of this
calculation, we assume that 97% of our assets will be deposited allocated to
trading, with a 3% reserve retained by the Fund.
(7) We earn interest through investment of approximately 80% of available
funds in T-notes. Based on current rates, interest income is estimated to be
4% annually. All interest income will be paid to the Fund.
(8) This computation assumes there will be no claims or other extra-ordinary
expenses.
(9) There is no redemption fee. You will be permitted to withdraw your
subscriptions for five days after submission to the managing member for
acceptance.
(10) The break-even numbers in the above tables are our best estimates only.
All offering and organizational expenses incurred until the end of the first
twelve months of operation after the commencement of business will be paid by
the managing member and reimbursed by the Fund after the thirteenth month of
operation after the commencement of business. Such expenses are estimated to
be $.
The amount of income the trading advisors must generate for the Fund to break
even is not sufficient to cause them or the managing member to be paid an
incentive fee.
Securities Offered
We, TriView Global Fund, LLC will offer and sell membership interests in this
Fund at the initial price of $1,000. After the sale of the minimum and
commencement of business, the membership interests will be sold at the month
end net asset value per membership interest of the Fund. See Determination
Of The Offering Price.
You, the Investor:
* will have:
* * pro rata rights to profit and losses which will vary with your
investment amount
* * the right to vote on Fund matters such as the replacement of the
managing member. See The LLC Operating Agreement attached as Exhibit A.
* will not be responsible for our debts in excess of your investment amount;
unless:
* * we become insolvent; and
* * you receive distributions which represent a return on your
investment, in which, under certain circumstances, you would have to return
to us to pay our debts, or
* * you acquire any interest in the corporate managing member, TriView
Capital Management, Inc., or
* * you manage this Fund
See Plan For Sale of Membership interests and Subscription Requirements.
Your subscription agreement and check:
* must be approved by the managing member before you will become a member
and will be either rejected within five business days of receipt or accepted
at the sale of the minimum or on the close of business on the last day of the
month in which your subscription was received.
* becomes irrevocable and may not be withdrawn after five days after
submission; unless, a longer statutory withdrawal period applies to you, and
* will be deposited and held until you are admitted into the Fund in a
segregated depository account.
There cannot be any assurance that the minimum membership interests will be
sold. The managing member is authorized, in its sole discretion, to
terminate this or any future offering of membership interests.
Management's Discussion
This is the initial offering of our membership interests. We:
* may conduct future offerings after the close of this offering
* raise money only through offerings, such as this one, and do not intend to
borrow any money
* must pay expenses to qualify and sell our membership interests, such as
fees for the preparation of this prospectus, sales literature, and web site
promotion, as well as other expenses
* allocate all our net assets to trading and other investments, except those
assets used to pay operating expenses and reserves for redemptions and
contingencies, and
* conduct all our business through the managing member.
Description of Intended Operations
The managing member has selected Man Financial Inc. as an unaffiliated
futures commission merchant and Mt. Kemble Futures to serve as its
introducing broker. When the Fund commences business, the managing member
will deposit its funds to the futures commission merchant to hold as security
for the trades selected by the commodity trading advisors. The futures
commission merchant has been directed to send the managing member, before the
open of business each day, a computer or fax report that describes
* the positions held
* the margin allocated, and
* the profit or loss on the positions from the date the positions were taken
Risk Control
The managing member reviews the daily transmissions provided by the futures
commission merchant and makes appropriate adjustments to the allocation of
trading equity. Based upon the amount of available trading equity, the
trading advisors have sole discretion to:
* make specific trades,
* determine the number of positions taken, and
* decide the timing of entry and departure from each trade made.
The managing member uses its best efforts to monitor the daily value of the
Fund, which it calculates from the daily information provided by the futures
commission merchant, and will make such information available to members upon
request. However, the accountant calculates the Fund's net asset value per
investor unit after the close of business on the last day of each month. If
the net asset value per unit falls to less than 50% of the greater of
* the original $1000 selling price less commissions and other charges, or
* such higher value earned through trading,
then the managing member will:
* immediately suspend all trading
* provide you with immediate notice of the reduction in net unit value, and
* give you the opportunity, for 15 days after the date of such notice, to
redeem your membership interests according to the provisions of the LLC
Operating Agreement.
No trading shall commence until after the lapse of such fifteen-day period.
See Exhibit A attached.
Trading Risks
Most United States commodity exchanges limit daily fluctuations in commodity
futures contracts prices by regulations referred to as daily price
fluctuation limits or daily limits. Once the price of a futures contract has
reached the daily limit for that day, positions in that contract can neither
be taken nor liquidated. Commodity futures prices have occasionally moved
the daily limit for several consecutive days with little or no trading.
Such an occurrence could prevent us from promptly liquidating unfavorable
positions and subject us to substantial losses. These losses could exceed
the margin initially required to make the trade. In addition, even if
commodity futures prices have not moved the daily limit, we may not be able
to execute futures trades at favorable prices. This may be caused by light
trading in such contracts or by a sudden and substantial price move in a
futures or forward contract. These limitations on liquidity are inherent in
our proposed commodity futures trading operations. Otherwise, our assets are
expected to be highly liquid.
Except for payment of offering and other expenses, the managing member is
unaware of any anticipated:
* known demands, commitments or required capital expenditures,
* material trends, favorable or unfavorable, which will affect our capital
resources, or
* trends or uncertainties that will have a material effect on operations.
Each United States commodity exchange, with the approval of the Commodity
Futures Trading Commission and the futures commission merchant, establishes
minimum margin requirements for each traded contract. The futures commission
merchant will require the margin assigned to each account to be on deposit
before a trade will be accepted. The futures commission merchant may
increase the margin requirements above these minimums for any or all
contracts for its customers. Because we generally use a small percentage of
assets for margin, we
do not believe that any increase in margin requirements
will materially affect our proposed operations. However, it is possible for
an increase in margins applicable to the trades the advisors select for us to
force us to liquidate positions because we cannot meet the additional margin
requirements.
Management cannot predict whether the value of our membership interests will
increase or decrease. Inflation is not projected to be a significant factor
in our operations, except to the extent inflation influences futures prices.
Fiduciary Responsibility and Remedies
You have legal rights under Delaware law and applicable Federal and State
securities laws. In all dealings affecting this Fund, the managing member
has a fiduciary responsibility to you and all other members to exercise good
faith and fairness. No contract shall permit the managing member to contract
away its fiduciary obligation under common law. The LLC Operating Agreement
conforms with the LLC Act for the State of Delaware in regard to the
definition of the fiduciary duties of the managing member.
If the managing member acts in good faith and exercises its best judgment, it
will not be liable merely because we lost money or otherwise did not meet our
business objectives. Additionally, there are substantial and inherent
conflicts of interest in the Fund's structure which are inconsistent with the
managing members' fiduciary duties. The managing member intends to raise the
disclosures made in this prospectus and the representations you make in the
subscription agreement as a defense in any proceeding brought which seeks
relief based on the existence of such conflicts of interest. See Conflicts
of Interest.
In the event that you form the belief that the managing member has violated
its fiduciary duty, you may seek relief individually or on behalf of the Fund
under applicable laws, including the laws of Delaware and the Federal
commodity laws, to recover damages from or require an accounting by the
managing member. You also have the right, subject to applicable contractual,
procedural and jurisdictional requirements, to bring Fund class actions in
Federal court to enforce your rights and the rights of the other members
under the Federal and State securities laws and the rules and regulations
under those laws. Losses suffered by you as a result of a breach of the
securities laws related to sale of your investment to you may be recovered
from the managing member should the breach of those laws been caused by the
managing member. The responsibility of a managing member to you and other
members is a changing area of the law. If you have questions concerning the
responsibilities of the managing member, you should consult your legal
counsel. The performance of the managing member for the operation of the
Fund and its fiduciary duty are governed by the LLC Operating Agreement
attached as Exhibit A.
Indemnification
Provisions of LLC Operating Agreement
The LLC Operating Agreement protects the managing member from being
responsible or accountable for any act or omission, for which you, other
members or the Fund itself may claim it is liable, provided that the managing
member determined such act or omission was within the scope of its authority
and in the best interest of this Fund, and such action or failure to act does
not constitute misconduct or a breach of the Federal or State securities laws
related to the sale of membership interests.
Specifically, if the managing member has acted within the scope of its
authority and is being assessed a demand, claim or lawsuit by a member or
other entity, the Fund will defend, indemnify and hold the managing member
harmless from and against any loss, liability, damage, cost or expense,
including attorneys' and accountants' fees and expenses incurred in defense
of any demands, claims or lawsuits which were actually and reasonably
incurred and arising from any act, omission, activity or conduct undertaken
by or on behalf of the Fund.
Provisions of Law
According to applicable law, indemnification of the managing member is
payable only if the managing member determined, in good faith, that the act,
omission or conduct that gave rise to the claim for indemnification was in
the best interest of the Fund and the act, omission or activity that was the
basis for such loss, liability, damage, cost or expense was not the result of
negligence or misconduct and such liability or loss was not the result of
negligence or misconduct by the managing member, and such indemnification or
agreement to hold harmless is recoverable only out of the assets of the Fund
and not from the members, individually.
Provisions of Federal and State Securities Laws
This offering is made pursuant to Federal and State securities laws. If any
indemnification of the managing member arises out of an alleged violation of
such laws, it is subject to the following legal conditions.
Those conditions require that no indemnification may be made in respect of
any losses, liabilities or expenses arising from or out of an alleged
violation of Federal or State securities laws unless: there has been a
successful adjudication on the merits of each count involving alleged
securities law violations as to the managing member or other particular
indemnitee, or such claim has been dismissed with prejudice on the merits by
a court of competent jurisdiction as to the managing member or other
particular indemnitee, or a court of competent jurisdiction approves a
settlement of the claims against the managing member or other agent of the
Fund and finds that indemnification of the settlement and related costs
should be made, provided, before seeking such approval, the managing member
or other indemnitee must apprise the court of the position held by regulatory
agencies against such indemnification. These agencies are the Securities and
Exchange Commission and the securities administrator of the State or States
in which the plaintiffs claim they were offered or sold membership interests.
Provisions of the Securities Act of 1933 and NASAA Guidelines
The Securities and Exchange Commission and the various State administrators
believe that indemnification for liabilities arising under the Securities Act
of 1933 are unenforceable because such indemnification is against public
policy as expressed in the Securities Act of 1933 and the North American
Securities Administrators Association, Inc. commodity pool guidelines.
Provisions of the Clearing Agreement
We clear trades through a futures commission merchant, Man Financial, Inc.
According to the clearing agreement that governs these trades, we must
indemnify it for any reasonable outside and in-house attorney's fees incurred
by it arising from any failure to perform our duties under the clearing
agreement.
Other Indemnification Provisions
The managing member has indemnified the selling agent, Futures Investment
Company, and expects to indemnify any other selling agents it selects that
there are no misstatements or omissions of material facts in this prospectus.
Relationship With The Futures Commission Merchant, the Introducing Broker And
The Managing member
As the corporate managing member, TriView Capital supervises the relationship
with the futures commission merchant and introducing broker, including
* the negotiation of the round turn commission rates incurred through
trading via the commodity trading advisors, and
* review of the daily reports.
The Managing Member has engaged Man Financial Inc to act as the futures
commission merchant to open and close the trades selected by the trading
advisors for the Fund account. It has engaged Mt. Kemble Futures to
introduce the trades to Man Financial Inc.
Brokerage Commissions are Competitive
The managing member believes a fixed percentage brokerage commission for
domestic trades of 5% annually on the equity assigned to the trading advisor
plus actual costs for foreign markets, if any, are competitive. The managing
member has the right to select any substitute or additional selling agents,
introducing brokers or futures commission merchants at any time, for any
reason. However, neither the corporate managing member, nor Mr. Pacult
acting as a managing member, is likely to dismiss the current principal
selling agent because of its affiliation with Mr. Pacult.
Either managing member or any other commodity pool operated by them may
obtain commission rates to clear trades that are more favorable to their
accounts than the brokerage commissions the managing member charges us.
Relationship With The Commodity Trading Advisors
The Commodity Trading Advisors Will Trade For Other Accounts
The commodity trading advisors will trade for their own accounts and for
others on a discretionary basis. They may use trading methods, policies and
strategies for others that differ from those used for us. Consequently, such
accounts may have different trading results from ours.
Because a trading advisor trades for itself and others, it is possible for it
to take positions ahead of or opposite to the positions taken for us. This
would present a potential conflict of interest. See Appendix I for Taking
Positions Ahead of the Fund.
Pursuant to Commodity Futures Trading Commission Regulation 421.03, the
trading advisors will use the average price system for those futures and
options contracts where its use is authorized, when:
* trades taken on behalf of both the Fund and the trading advisor's other
accounts are identical, and
* the prices of such trades are different.
See Appendix I for the definition of Average Price System.
The commodity trading advisors have also informed the managing member that
when the average price system is not available, trades will be filled in
order based on the numerical account numbers, with the lowest price allocated
to the lowest account number and in numerical matching sequence, thereafter.
Non-Disclosure Of The Commodity Trading Advisors' Methods
We have provided a general description of the commodity trading advisors'
methods and strategies under The Commodity Trading Advisors, Description of
Trading Program. However, the specific details of their trading methods are
proprietary and complex in nature and will not be disclosed to us or you. No
notice will be given to you of any changes the trading advisors may make in
their trading methods. See Risk Factors, No Notice of Trades or Trading
Method.
Charges To The Fund
As an investor in this Fund, you will pay your pro rata share of the cost of
our formation and operation. These charges are described in narrative form
and in the chart that follows this narrative. In this prospectus, we have
disclosed all compensation, fees, profits and other benefits, including
reimbursement of out-of-pocket expenses, which the managing member and its
affiliates will earn in connection with this offering. Some of these charges
were not negotiated at arm's length, but rather were determined by the
managing member.
Compensation Of Managing member
We pay the corporate managing member, TriView Capital Management, Inc., fixed
brokerage commissions of 5% annually from which it must pay the futures
commission merchant the cost of the domestic trades entered by the commodity
trading advisors. Actual commissions will be charged to the Fund by the
futures commission merchant for trades made on foreign exchanges and forward
markets, if any. TriView Capital retains the difference between the 5%, if
any, and the clearing costs and fees paid to the futures commission merchant.
The Fund pays the managing member an incentive fee equal to 4.283% of the new
net profit produced by the Fund.
The managing member does not intend to charge a management fee, but has
reserved the right to charge a management fee of up to 6% per year, at its
sole discretion, provided the incentive fee is appropriately reduced. See
Charges to the Fund, Restrictions on Management Fees.
Compensation Of The Commodity Trading Advisor
The commodity trading advisors will be allocated equity to trade from funds
that will be deposited in an account with the futures commission merchant.
The trading advisors are allocated equity through a Fund account maintained
at Man Financial Inc. Each month, we deduct from the Fund's account managed
by two of the trading advisors a certain percentage computed upon the close
of business on the last trading day of the previous month and pay it directly
to the trading advisors as management fees. See the table below for
allocation among the trading advisors. The managing member has reserved the
right to change this fee at its sole discretion. See Charges to the Fund,
Restrictions on Management Fees.
The Fund pays all three commodity trading advisors incentive fees equal to
22.717% of the new net profit they produce, computed independently for each.
It would be possible for one advisor to earn an incentive fee while the Fund
as a whole lost money because of the poor trading performance of another
advisor.
CTA Allocated Equity
Breakdown (%) (% of Minimum) Management Fee Incentive Fee
Cash Reserve N/A 3.000% N/A N/A
TriView Capital N/A N/A 0.000% 4.283%
All CTAs N/A 97.000% 0.276% 22.165%
NuWave 29.000% 28.130% 0.500% 20.000%
Forecast 14.000% 13.580% 1.000% 20.000%
Adobe 57.000% 55.290% 0.000% 25.000%
Total 100.000% 100.000% 0.276% 26.447%
New net profit:
* is calculated to determine how much a trading advisor has increased our
net assets through trading alone
* is based upon the net value of the equity assigned to the trading advisor
to trade
* is calculated monthly but paid quarterly
* only occurs when any losses in previous quarters have been offset by new
profits regardless of whether:
* * the managing member has changed the trading advisor's compensation,
or
* * the Fund and trading advisor have entered a new contract
* is adjusted to eliminate the effects of:
* * any new subscriptions for membership interests
* * redemptions by members
* * interest income paid by the futures commission merchant, and
* * any other income earned on our assets that are not related to trading
activity, regardless of whether such assets are held separately or in a
margin account.
The following hypothetical table illustrates the quarterly incentive fee that
would be earned by the trading advisors, assuming they all make identical
percentage return profits, and the managing member based on the new net
income, as calculated above.
Qtr Net Income CTAs (22.717%) MM (4.283%)
1 $ 1,000 $ 227.17 $ 42.83
2 (200) 0.00 0.00
3 1,000 181.74 34.26
4 500 113.59 21.42
Restrictions on Management Fees
It is possible that some of the States in which we wish to sell membership
interests will require that we apply the North American Securities
Administrators Association Guidelines for commodity pools. These guidelines
provide that:
* the total management fees, including that of the managing member and the
commodity trading advisors, may not exceed 6% of our net assets, and
* incentive fees based upon profits earned may not exceed 15% of new net
profits.
As permitted by the guidelines, without prior notice to you, the managing
member has reserved the right to raise the current total incentive fee to a
maximum of 27%, provided the total management fees are correspondingly
lowered to 0%. However, the managing member will notify you of any change in
fees within seven business days. If the management fees and incentive fees
were raised in a manner not in accordance with these guidelines, we could not
offer or sell this Fund's interests to residents of States that apply these
guidelines to this offering.
Compensation of Futures Commission Merchant and Introducing Broker
The Fund pays the corporate managing member annual fixed brokerage
commissions of 5%, paid at 5/12% monthly, to cover all domestic clearing
costs, including the pit brokerage fees, National Futures Association fees,
and exchange fees, plus actual commissions charged to trade on foreign
exchanges and forward markets, if any. The managing member is responsible
for all payments to the futures commission merchant and retains the
difference between the 5% brokerage commission paid to it by the Fund and the
payments it makes to the futures commission merchant for domestic trades.
The futures commission merchant shares the round turn brokerage commissions
with the introducing broker and is responsible for all payments to the
introducing broker.
Compensation of Selling Agents
The Fund pays a monthly continuing service fee to the selling agents who are
qualified to provide services to us and you. The continuing service fees are
up to 4% per year paid monthly at the rate of up to 1/3% of the value of the
membership interests in the Fund at the close of business on the last day of
each month.
The recipients of the continuing service fee are responsible for maintaining
investment in this Fund. This must be done to:
* spread the potential risk of losses over a large number of investors to
protect our ability to continue in business, and
* allow the long-term trading strategies of the commodity trading advisors
to be profitable so additional investments can be solicited.
The Fund pays continuing service fees to the persons responsible for selling
the membership interests to:
* maintain continuous contact with the members to whom they sold interests
in the Fund
* review of the monthly statement to be aware of the Fund results to discuss
with the investors
* explain changes in trading advisors and results from operations
* answer questions regarding the Fund, and
* work to retain investment in the Fund.
Miscellaneous Fees To Futures Commission Merchant
We will reimburse the futures commission merchant for all delivery,
insurance, storage or other charges incidental to trading and paid to third
parties. The managing member has instructed the trading advisors to avoid
these charges and, therefore, no significant charges of this nature are
anticipated.
Rights of Managing member
Without prior notification to you, the managing member has reserved the right
to:
* add a managing member management fee
* increase or lower the incentive fee
* change the futures commission merchant
* change the commodity trading advisors
* change the introducing broker
* have the Fund pay a round turn brokerage commission as opposed to a fixed
percentage, at any time, with or without a change in circumstances;
provided, however, such brokerage commissions cannot exceed 80% of the
published retail rate, excluding pit brokerage fees, and the futures
commission merchant shall not provide research or other soft dollar value to
the managing member
Other Expenses
We must pay legal and accounting fees, as well as other expenses and claims.
For each year of normal operations, we must pay yearly legal, audit and
accounting costs of approximately $23,000, which includes $18,000 for
accounting and audit and $5,000 for legal services. We must also pay
customary and routine administrative expenses, and other direct expenses.
In addition, we will reimburse the managing member for direct expenses, such
as the cost to prepare and file periodic amendments and restatements of the
registration statement, prospectus, and financial statements. Also
reimbursable are web site promotion used in connection with the solicitation
and sale of membership interests, together with audit fees, delivery charges,
statement preparation and mailing costs, telephone toll charges, and postage.
Charges To The Fund
The following table includes all charges to the Fund.
Entity Form of Compensation Amount of Compensation
Managing member
(TriView Capital Management, Inc. and Michael Pacult) Fixed Brokerage
Commission TriView Capital receives 5% annually to clear domestic trades
plus actual commissions charged for trades made on foreign exchanges and
forward markets, if any, and retains the difference between the 5% and the
round turn commissions paid to the futures commission merchant. [$1,250+]
Incentive Fee TriView Capital receives a 3% incentive fee computed
quarterly on new net profits the Fund has produced through trading
Selling Agents
(Futures Investment Company, a National Association of Securities Dealers
registered broker/dealer, principal selling agent and additional selling
agents it appoints) Continuing Service Fee The Fund pays the
selling agents up to a 4% annual continuing service fee, charged monthly
after Fund business has commenced, adjusted month to month to reflect profit
and loss, for so long as the investment remains in the Fund. [$1,000+]
Futures Commission Merchant
(Man Financial Inc) Round-turn commissions The corporate managing
member pays the futures commission merchant its round turn brokerage
commissions.
Reimbursement of delivery, insurance, storage and any other charges
incidental to trading and paid to third parties Reimbursement by the
Fund of actual payments to third parties in connection with Fund trading
Introducing Broker
(Mt. Kemble Futures) Round-turn commissions The futures commission
merchant pays the introducing broker a portion of the round turn brokerage
commissions paid by the managing member.
Commodity Trading Advisor
(Meyer Capital Management, Inc.) Fixed Management Fee 0.276% annual
management fee, paid monthly, of the trading equity assigned to it to trade.
[$69+]
Incentive Fee 22.717% of the quarterly new net profits it
generates
Third Parties
(The Scott Law Firm, P.A., Frank L. Sassetti & Co., & Michael J. Liccar &
Co., CPA) Legal, accounting, audit and other actual expenses necessary
to the operation of the Fund, and all claims and other extraordinary expenses
of the Fund. Claims and other costs cannot be estimated and will be paid or
reserved as incurred. $55,000 in offering and organizational expenses
and $25,000 in offering expenses per $3,000,000 of new investment to be
reimbursed by the Fund to the managing member after the thirteenth month of
operation. [$232+] During operation, $23,000 in annual audit and accounting
and legal costs ($18,000 and $5,000, respectively). [$11.50+]
+ Each $25,000 investment pays this amount per year for this particular
charge. When the charge is not based on a percentage, but rather a fixed
amount, we have computed that expense upon an assumed net asset value of
$50,000,000.
Potential Advantages
Commodity trading is speculative and involves a high degree of risk. See
Risk Factors. However, your investment in this Fund will offer the following
potential advantages:
Equity Management
We offer the opportunity for you to:
* place equity with registered commodity trading advisors who have
demonstrated an ability to trade profitably in the judgment of the managing
member, and
* have that equity allocated to the trading advisors in a manner that is
intended by the managing member to optimize future profit potential.
Mr. Pacult has over twenty-three years of experience in selecting commodity
trading advisors to manage individual investor accounts and describing to
investors how managed futures accounts work.
We expect this experience to benefit us in the quality of trading advisors
selected and in the explanation to prospective investors of our operation and
the attendant risks of investment.
Investment Diversification
If you are not prepared to spend substantial time trading various commodity
contracts or options, you may participate in these markets through a $25,000
investment in the Fund, thereby obtaining diversification from other
investments you may have in stocks, bonds and real estate.
Limited Liability
In the opinion of our legal counsel, you will not be subject to margin calls
and cannot lose more than your original investment amount plus, in the event
of bankruptcy, distributed profits made within 90 days, provided:
* the Fund's structure is maintained by the managing member, and
* no member participates in any phase of our management other than to vote
as a member pursuant to the terms of the LLC Operating Agreement.
See the LLC Operating Agreement (Exhibit A).
Administrative Convenience
We are structured to provide you with services that alleviate the
administrative details involved in trading commodities contracts directly,
including:
* providing monthly and annual financial reports showing, among other
things:
* * the value of each unit of membership interest
* * trading profits or losses, and
* * expenses; and
* preparing all tax information relating to your investment in this Fund.
Access To The Commodity Trading Advisors
The commodity trading advisors selected by the managing member require
minimum account sizes substantially greater than the $25,000 minimum
investment required by us. Accordingly, you have access to three trading
advisors for a smaller investment than is available from any single trading
advisor.
Use Of Proceeds
After the thirteenth month of operation following the commencement of
business, the Fund will reimburse the managing member for all offering and
organizational expenses incurred up to the end of the twelfth month of
operation after the commencement of business. Such expenses are estimated to
be $55,000. Additional offering costs after the raise of the minimum are
estimated to be $25,000 for each $3,000,000 in face value of membership
interests sold. If the offering is continued after the first twelve months
of operation, additional offering expenses will be paid by the Fund as
incurred.
The managing member will initially apply all of the Fund assets toward
trading commodities and cash reserves.
At the end of each month, the management, brokerage commission and continuing
service fees identified under Charges to the Fund are paid by the Fund.
Incentive fees are paid at the end of each quarter.
The managing member has sole authority to determine the percentage of our
assets that will be:
* held on deposit with the futures commission merchant
* used for other investments, and
* held in bank accounts to pay current obligations and as reserves.
The managing member expects to deposit substantially all of our net assets
with the futures commission merchant for trading by the trading advisors.
However, approximately 3% of the previous month's net assets will be retained
in our bank accounts to pay expenses and redemptions.
We use only cash and cash equivalents, such as United States Treasury Bills,
to satisfy margin requirements. All entities that will hold or trade our
assets will be based in the United States and will be subject to United
States regulations.
The managing member believes that 10% to 30% of our assets will normally be
committed as margin for commodity futures contracts. However, from time to
time, the percentage of assets committed as margin may be substantially more,
or less, than such range. All interest income is used for the Fund's
benefit. To estimate interest income earned upon our deposits, the managing
member has assumed that we will receive 4% interest on our deposits at the
futures commission merchant.
The futures commission merchant, government agency or commodity exchange
could increase margins applicable to us to hold trading positions at any
time. And, margin is merely a security deposit and has no bearing on the
profit or loss potential for any positions taken.
Determination Of The Offering Price
The managing member initially established the number of units to be offered
at fifty million dollars ($50,000,000) with the minimum number that must be
sold to raise the minimum and commence business at nine hundred thousand
dollars ($900,000), and set the value of each unit of membership interest for
sale at one thousand dollars ($l,000). Upon the raise of the minimum and the
commencement of trading, we will offer membership interests at their net unit
value, or the price per unit equal to our net assets, after payment and
accrual for all expenses and reserves, divided by the number of outstanding
units of membership interests. This amount is calculated after the close of
business on the last business day of the month in which the managing member
accepts a duly executed subscription agreement and payment from a future
member. Such future member will be admitted as a member on the open of
business on the first day of business of the following month.
The Managing member
Identification
Two managing members, TriView Capital Management, Inc. and Mr. Michael
Pacult, manage us. See Management's Discussion and Analysis of Financial
Condition, The Managing members.
The purpose of a corporate managing member is to provide continuous Fund
operations in the unlikely event that the individual managing member is
unable to perform. The corporate managing member receives the incentive fee
to preserve the fee structure of the Fund independent of an individual. The
presence of an individual managing member satisfies the net worth requirement
of a managing member under the Federal tax laws and North American Securities
Administrators Association guidelines applicable to a sponsor of a commodity
pool.
Audited financial statements for TriView Capital for the period ended October
7, 2004 are included in this prospectus. Mr. Pacult's net worth consists
primarily of real estate that is not readily marketable. However, it is
sufficient to maintain compliance with the North American Securities
Administrators Association guidelines for commodity pools. This will allow
the membership interests to be sold in States that apply those guidelines.
Also, see Experts.
You will not acquire or otherwise have any interest in TriView Capital, the
corporate managing member, or any entity other than Triview Global, by
purchasing the membership interests offered by this prospectus.
Michael Pacult
Mr. Pacult, age 59, is:
* one of the managing members
* the sole shareholder, director, principal, and officer of the corporate
managing member, TriView Capital, and
* a principal, officer, director and 50% shareholder of Futures Investment
Company, the principal selling agent. Mr. Pacult's spouse, Shira is also a
principal and holds the other 50% and sells various managed investment,
including futures, products.
Mr. Pacult grew up in Detroit, MI and went to high school at Howe Military
School in Howe, IN. In 1969 he received a B.A. Degree from the University of
California, Berkeley, where he majored in English and in Zoology. Prior to
moving to Chicago in 1980 to become involved in the futures industry, he was
a part owner and Senior Vice President of a California real estate
development company.
In 1983, Mr. Pacult and his spouse, Shira Del Pacult, as 50% owners,
established Futures Investment Company, an Illinois corporation, to sell
futures investments managed by independent commodity trading advisors to
retail clients. From inception to present, Mr. Pacult has been a director
and president of Futures Investment Company. It serves as the principal
selling agent of membership interests and maintains clearing agreements with
Man Financial Inc, Refco, Inc., and Vision Limited Fund.
In addition to the membership interests offered pursuant to this prospectus,
Futures Investment Company offers for sale, on a best efforts basis,
securities of other issuers and engages in other broker-dealer activities.
Commencing in August 2003 to present, Mr. Pacult has also been the sole
owner, director and president of Belmont Capital Management, Inc., the
commodity pool operator of Bromwell Financial Fund, LP; and from August,
2003, to present, he has been the sole owner, director and president of
Ashley Capital Management, Inc., the commodity pool operator of Atlas Futures
Fund, LP; and, since inception to present, he has been the sole owner,
director and president of White Oak Financial Services, Inc., the commodity
pool operator of Providence Select Fund, LP; and, since April 2003 to
present, he has been the sole owner, director and president of TriView
Capital, the commodity pool operator and managing member of the Fund. Mr.
Pacult also serves as the individual managing member of the Fund and the
above named commodity pools, Bromwell Financial Fund, LP, Atlas Futures Fund,
LP and Providence Select Fund, LP, which has not yet commenced business.
His duties as a director and officer of the above named corporations and as a
managing member of those Funds are to make all of the decisions and supervise
all of the actions they take.
No Ownership In Commodity Trading Advisors And Futures Commission Merchant
Neither Mr. Pacult, nor any of his affiliates, has any ownership in the
commodity trading advisors, the introducing broker or the futures commission
merchant. Mrs. Shira Del Pacult, Mr. Pacult's spouse, will have no ownership
or role in the management of the Fund or TriView Capital Management, Inc.
However, she is a 50% owner, associated person, and officer in Futures
Investment Company, a National Association of Securities Dealers broker
dealer and National Futures Association introducing broker in which Mr.
Pacult owns the other 50%. Mrs. Pacult, as a representative of Futures
Investment Company, is expected to sell membership interests in the Fund.
Trading By The Managing Member
TriView Capital Management, Inc. and Mr. Pacult, may, from time to time,
trade commodity interests for their own accounts. The results and other
records of any such trading activities will not be made available to you.
Neither managing member will knowingly take positions ahead of identical
positions taken by the Fund.
No Prior Performance of this Fund and Regulatory Notice
We have not begun trading and do not have any performance history. However,
Mr. Pacult has extensive experience in the futures industry and presently
serves as the sole director and officer of the corporate managing member and
as the individual managing member of two other publicly traded commodity
pools.
The regulations of the Commodity Futures Trading Commission and the National
Futures Association prohibit any representation by a person registered with
the Commodity Futures Trading Commission or by any member of the National
Futures Association, respectively, that such registration or membership in
any respect indicates that the Commodity Futures Trading Commission or the
National Futures Association, as the case may be, has approved or endorsed
such person or such person's trading programs or objectives. The
registrations and memberships described in this prospectus must not be
considered as constituting any such approval or endorsement. Likewise, no
commodity or securities exchange, nor the Securities and Exchange Commission,
nor any other regulatory agency has given or will give any such approval or
endorsement.
Trading Management
No Affiliation With Commodity Trading Advisors
The trading advisors are not affiliated with either managing member.
Additionally, the managing member will not serve as a trading advisor or
select any other trading advisors to trade that are affiliated with either
managing member. See The Commodity Trading Advisors for a summary of the
trading advisors' performance information.
Rights of the Managing Member With Respect To Commodity Trading Advisor
Selection And Allocation Of Equity
The managing member believes that a trading advisor should be retained on a
medium to long-term basis and should be allowed to implement fully its
trading strategy. However, the managing member may, in its sole discretion
and without notice to you:
* terminate any current or future trading advisor
* select additional trading advisors, or
* change the allocation of equity to any trading advisor.
The managing member periodically reviews our performance to determine if a
current trading advisor should be changed or if others should be added. In
doing so, the managing member may use computer generated correlation analysis
or other types of automated review procedures to evaluate trading advisors.
If a trading advisor is replaced, the new trading advisor will receive
incentive fees independent of the previous trading advisor's performance.
As the managing member receives an incentive fee and may engage more than one
trading advisor, the following may possibly occur:
* we may pay an incentive fee to one trading advisor which is trading
profitably while the other trading advisor produces losses which cause us to
be unprofitable overall
* the managing member may receive an incentive fee because the Fund is
profitable overall, though one or more trading advisors are trading at a loss
* as the trading advisors trade independently, they may compete for similar
positions or take positions opposite each other, which may limit our
profitability.
Performance of Other Funds Managed by the Managing member
Within the last ten years, the individual managing member of the Fund,
Michael Pacult, has managed two other commodity pools, both of which are
publicly offered and currently in operation: Atlas Futures Fund, LP and
Bromwell Financial Fund, LP. The Fund's corporate managing member, TriView
Capital Management, Inc., has not managed any other commodity pools. As of
August, 2003, Mr. Pacult became an individual managing member and sole
principal of the corporate managing member of both Atlas and Bromwell. As of
June 30, 2004, the total amount of money raised for both pools is $10,529,697
and the total number of investors in both pools is 221. In November, 2003,
Mr. Pacult replaced the two trading advisors for Bromwell because they were
unprofitable. As of June, 2004, the new trading advisor, Fall River Capital,
LLC has not been profitable. Atlas, however, has been profitable since
inception.
Performance Record Of Bromwell Financial Fund, Limited Partnership
Mr. Pacult serves as an individual general partner and as the principal of a
corporate general partner, Belmont Capital Management, Inc., both of which
manage another commodity pool called Bromwell Financial Fund, Limited
Partnership. Bromwell was declared effective by the Securities and Exchange
Commission on March 16, 2000 and commenced business on July 11, 2000. Fall
River Capital, LLC selects and enters trades for Bromwell.
Bromwell pays various expenses in relation its operation including:
* a monthly management fee of 1/12%, or 1% annually, to its trading advisor
* a quarterly incentive fee to the trading advisor of 20% on new net profits
it generates
* a quarterly incentive fee of 5% to the corporate general partner on all
new net profits of the partnership
* a monthly brokerage commission of 1/3%, or 4% annually, to the corporate
general partner
* a monthly continuing service fee to the selling agents of 1/3%, or 4%
annually, adjusted month to month to reflect profit and loss, for so long as
the investment remains in the partnership.
The following capsule shows the past performance of Bromwell Financial Fund,
LP for the period from inception of trading in July 2000 through August 31,
2004. Past Performance Is Not Necessarily Indicative Of Future Results.
You will receive no interest in Bromwell Financial Fund or any other entity
except Triview Global by your purchase of membership interests in Triview
Global Fund, LLC offered by this supplement to prospectus.
Bromwell Financial Fund, Limited Partnership
Percentage Rate of Return
(Computed on a compounded monthly basis)
2004 (Jan-Aug) 2003 2002 2001 2000 (Jul - Dec)
(16.79) (9.27) (4.82) (1.84) (2.71)
Name of Pool: Bromwell Financial Fund, LP
How Offered: Publicly offered pursuant to Form S-1 Registration Statement
Name of Commodity Trading Advisor: Fall River Capital, LLC
Principal Protected: No
Date of Inception of trading: July, 2000
Aggregate Gross Capital Subscriptions: $2,216,388
Net Asset Value of the pool: $643,144 on total units outstanding: 937
Net Asset Value Per Unit: $686
Largest Monthly Draw-Down**: 4-01/16.49%
Worst Peak-to-Valley Draw-Down***: 9-02 to 9-04/38.93%
* Rate of Return is computed by dividing net performance by beginning net
asset value for the period. For those months when additions or withdrawals
exceed ten percent of beginning net assets, the Time-Weighting of Additions
and Withdrawals method is used to compute rates of return.
** "Draw-down" is defined by applicable CFTC regulations to mean losses
experienced by an account over the specified period.
*** Worst Peak-to-Valley Draw-Down means the greatest cumulative percentage
decline in month-end net asset value due to losses sustained by a pool,
account or trading program during any period in which the initial month-end
net asset value is not equaled or exceeded by a subsequent month-end net
asset value.
Performance Record Of Atlas Futures Fund, Limited Fund
Mr. Pacult serves as an individual general partner and as the principal of a
corporate general partner, Ashley Capital Management, Inc., both of which
manage another commodity pool called Atlas Futures Fund, Limited Partnership.
Atlas Futures Fund, LP was declared effective by the Securities and Exchange
Commission on September 3, 1999. It commenced trading on October 15, 1999.
Clarke Capital Management, Inc selects and enters trades for Atlas Futures
Fund, Limited Partnership.
Atlas Futures Fund pays various expenses in relation its operation including:
* a quarterly incentive fee of 25% on all new net profits to its trading
advisor
* a monthly brokerage commission of 7/12%, or 7% annually, to its corporate
general partner.
The following capsule shows the past performance of Atlas Futures Fund, LP
for the period from inception of trading in October 1999 through August 31,
2004. Past Performance Is Not Necessarily Indicative Of Future Results.
You will receive no interest in Atlas Futures Fund or any other entity except
Triview Global by your purchase of membership interests in Triview Global
Fund, LLC offered by this prospectus.
Atlas Futures Fund, Limited Partnership
Percentage Rate of Return
(Computed on a compounded monthly basis)
2004 (Jan-Aug) 2003 2002 2001 2000 1999 (Oct-Dec)
35.23 33.47 10.97 (5.70) 31.76 (4.88)
Name of Pool: Atlas Futures Fund, LP
How Offered: Publicly offered pursuant to Form S-1 Registration Statement
Name of Commodity Trading Advisor: Clarke Capital Management, Inc.
Principal Protected: No
Date of Inception of trading: October, 1999
Aggregate Gross Capital Subscriptions: $8,423,309
Net Asset Value of the pool: $9,315,580 on total units outstanding: 4,217
Net Asset Value Per Unit: $2,209
Largest Monthly Draw-Down**: 10-02/12.94%
Worst Peak-to-Valley Draw-Down***: 9-02 to 11-02/17.86%
* Rate of Return is computed by dividing net performance by beginning net
asset value for the period. For those months when additions or withdrawals
exceed ten percent of beginning net assets, the Time-Weighting of Additions
and Withdrawals method is used to compute rates of return.
** "Draw-down" is defined by applicable CFTC regulations to mean losses
experienced by an account over the specified period.
*** Worst Peak-to-Valley Draw-Down means the greatest cumulative percentage
decline in month-end net asset value due to losses sustained by a pool,
account or trading program during any period in which the initial month-end
net asset value is not equaled or exceeded by a subsequent month-end net
asset value.
The Commodity Trading Advisors
Forecast Trading Group, LLC
Forecast was established under the laws of the State of New Jersey in June
2001. Forecast is registered as a commodity trading advisor with the
Commodity Futures Trading Commission ("CFTC") and is a member of the National
Futures Association in such capacity effective July 2001, NFA I.D. Number
0314282. Forecast's principal office, and the site where its books and
records are maintained, is located at 62 Hampshire Hill Road, Upper Saddle
River, New Jersey 07458, Telephone: (201) 327-7087, Telefax: (201) 327-9408,
E-mail: ForecastTrading@aol.com
Business Background
James R. Brunn, is the Managing Director of Forecast Trading Group, LLC. Mr.
Brunn is responsible for all trading decisions for Forecast. In addition,
Mr. Brunn is a registered Principal and Associated Person of James Brunn
Associates, Inc. since November 1996. Mr. Brunn's career has spanned over 20
years in senior management and trading positions with international banking
institutions. In the positions he held, Mr. Brunn was responsible for the
supervision and risk management oversight of other traders employed at the
banks.
At Banque Francaise du Commerce Exterieur (October 1994 to December 1996),
Mr. Brunn functioned as a market maker in the major currencies, in
addition to strategic trading. As Chief Dealer for Credit Industriel et
Commercial, a French banking corp. (April 1992 to May 1993) and as a
proprietary trader at Standard Chartered Bank (June 1993 to August 1994), Mr.
Brunn worked on an exotic currency desk and he helped to establish a European
Monetary System (EMS) trading desk. He also developed the guidelines used by
the bank for strategic position taking.
Mr. Brunn was the Chief Dealer at Royal Bank of Scotland from April 1989 to
April 1992. His responsibilities included strategic positioning for the bank
and the development of risk management oversight.
Mr. Brunn was the Chief Dealer of Foreign Exchange from May 1985 to April
1989 at Banque Arab International Investments. He was responsible for
Strategic trading decisions for the banks proprietary account and the spot
trading of major US dollar positions. His responsibilities included the
development and implementation of programs to hedge currency risk assumed by
the bank's money market operations.
Mr. Brunn served as Senior Foreign Exchange Dealer at Lloyds Bank Plc. (Oct.
1978 to May 1985) where he established the EMS trading desk. In that
position, he was also responsible for the spot and forward books of numerous
European and commonwealth currencies. While at Lloyds, he spent time on the
floor of the New York Futures Exchange, as a registered floor broker.
Affiliated Weather Research Professionals. Forecast currently subscribes to
the weather forecasting services of both Messrs. Charles Notis and James
Roemer, each of who are top U.S. meteorologists. Charles Notis (of Freese
Notis Weather) and James Roemer (Weatherrisk Institute Inc.) received
national recognition for being two of the first meteorologists to forecast
the major grain drought of 1988. Mr. Notis and Mr. Roemer each have over 2
25 years experience forecasting for Fortune 500 grain and energy companies in
the U.S. In addition, Mr. Roemer was the top rated CTA in the U.S. from
1988-1991 before he decided to stop managing money in 1994 and focus
exclusively on weather consulting.
Trading Program
Forecast relies primarily on fundamental analysis with the support of
technical analysis. The trading methodologies employed by Forecast are based
on programs analyzing weather maps and crop reports, which are proprietary in
nature and are also dependant upon the proprietary meteorological models of
its affiliated research providers. It 3 should be noted that commodity
trading strategies based merely upon seasonality or other generally
anticipated cyclical effects have not been shown to provide consistent
profits, and are as likely to lead to random losses over time. Forecast
therefore does not advise its clients to invest in energy and agricultural
commodities based upon seasonal weather patterns. However, it is a
widely-held and traditionally supported belief of the commodity industry
that unanticipated changes in weather patterns, such as exceptionally hot,
cold or dry regional weather conditions often expressed in governmental or
private forecasts, can be an important factor in determining the price of
such commodities as crude oil, heating oil, corn, soybeans, wheat, orange
juice, coffee, cotton, and others (see Graphic A below.) Additionally,
during the past 7-10 years, such weather changes have become extremely
important in the price of natural gas (see Graphics B and C.) Forecast
believes that access to the most accurate weather forecasts available
combined with timely and academically sound analysis and interpretation of
that information, provides key competitive advantages relative to other
market participants.
Performance History
Forecast Trading Group, LLC - The Forecast Portfolio
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS. A purchase
of membership interests pursuant to this offering does not include any
interest in this program.
Forecast Trading Group, LLC - The Forecast Portfolio
Percentage Rate of Return
(Computed on a compounded monthly basis)
2004 2003 2002 2001 2000 1999
January 3.53 3.51 5.17 8.30 (6.47)
February 4.49 2.83 1.17 (5.50) (2.89)
March 5.10 (5.92) (1.16) (2.31) 29.98
April (2.94) (1.11) 2.21 10.50
May 6.35 1.39 (5.66) 14.76
June 3.11 5.96 16.28 35.90
July 10.71 17.80 27.28 12.01
August 0.67 2.01 (1.71) 1.77
September 0.34 (3.94) (0.98) (11.28)
October (0.21) 4.28 (2.42) (1.14)
November (5.69) 7.64 3.87 47.08
December (3.32) (0.92) 2.41 18.05 4.11
Year-to-Date 15.41 8.45 43.43 44.12 251.27 4.11
Name of Commodity Trading Advisor: Forecast Trading Group, LLC
Name of the Trading Program: The Forecast Portfolio
Date of Commencement of Trading by Advisor: December, 1999
Date of Commencement of Program Trading: December, 1999
Number of Accounts in Trading Program: 13
Total Assets Under Management: $18,137,544
Actual Funds of: $1,637,544
Total Assets Traded Pursuant to Program: $18,137,544
Actual Funds of: $1,637,544
Largest Monthly Draw-down**: 09-2000 / 11.28%
Worst Peak to Valley Draw-down***: 8-2000 to 10-2000 / 12.29%
* Monthly Rate of Return is calculated by dividing net performance by
beginning net asset value. The monthly rates are then compounded to arrive
at the annual rate of return.
** Worst Monthly Percentage Draw-down is the largest monthly loss experienced
by the program in any calendar month expressed as a percentage of the total
equity in the account and includes the month and year of such draw-down.
*** Worst Peak to Valley Draw-down is the greatest cumulative percentage
decline in month end net asset value of the program due to losses sustained
by an account during any period in which the initial month-end net asset
value of an account is not equaled or exceeded by a subsequent month-end net
asset value of the account and includes the time period in which it occurred.
NuWave Investment Corp
The Trading Advisor has been registered with the Commodity Futures Trading
Commission ("CFTC") as a commodity trading advisor since February 24, 1993
and as a commodity pool operator since June 14, 2004. The Trading Advisor is
a member of the National Futures Association in such capacities effective
March 1993. The Trading Advisor operates its principal office at 1099 Mount
Kemble Avenue, Morristown, New Jersey 07960, Telephone: (973) 425-9192, Fax:
(973) 425-9190, E-mail: info@NuWavecorp.com.
Business Background
Troy W. Buckner is a principal of the Trading Advisor. Mr. Buckner is a 17
year industry veteran who began his career at Salomon Brothers, Inc. as a
derivatives and program trading specialist in 1986. In 1989 Mr. Buckner left
Salomon Brothers to focus his full attention on the design and implementation
of sophisticated trading models for use in the futures and equity markets.
After five years of full time position trading based on his proprietary
methodologies, Mr. Buckner joined Classic Capital as a principal with
responsibility for the design and execution of both futures and U.S. equity
investment models. In 1995 Hyman Beck & Company hired Mr. Buckner as a
principal to develop and manage systematic, short-term investment strategies
capable of trading the world's liquid futures and currency markets. His
extensive research into innovative, non-correlated investment programs is
complemented by years of trading experience and an in-depth understanding of
market theory. As of March 2003 Mr. Buckner is listed as a principal and AP
of Mt. Kemble Futures, a registered IB set up to service the needs of
potential NuWave Investment Corp. clients in need of a clearing relationship.
Mr. Buckner graduated Magna Cum Laude from the University of Delaware in 1984
with a double major (finance/accounting) and a minor (economics) before
earning his M.B.A from the University of Chicago in 1986. John S. Ryan is a
principal of the Trading Advisor. Mr. Ryan began his career in 1998 at IBM,
where he designed corporate networks in New York City. Specializing in
systems and communications, he implemented custom solutions for top NYC law
firms and universities. After five years at IBM, Mr. Ryan was recruited by
recently formed Hyman Beck & Company to head their technology effort. At
Hyman Beck he held the titles of Principal and Director of Technology and was
credited with helping build the infrastructure that was critical to their
success. In addition to his technology role, Mr. Ryan was a member of Hyman
Beck's research team, where his programming and quantitative skills were
utilized in designing new trading systems. At the time of his departure, he
was integrally involved with the establishment of Hyman Beck's electronic
trading presence. Mr. Ryan earned his B.B.A degree in Computer Information
Systems from Bernard Baruch College, City University of New York.
Trading Program
The Combined Portfolio The Combined Portfolio evolved from the intent of the
principals of the Trading Advisor to achieve a more stable, lower volatility
return enhanced by diversification not only across different markets, but
across trading styles as well. The Trading Advisor believes, based on its
research to date, that the performance of each of its three programs, Alpha,
Pattern Recognition and Beta, exhibit a substantial degree of non-correlation
with one another as well as with other traditional strategies in any
investment arena. Combining the three programs in one portfolio provides
prospective investors with both enhanced diversification and expected cost
savings. It is common for the Alpha, Pattern Recognition or Beta programs to
hold opposite positions in any given market. Because positions for these
programs are netted within a single account, clients save needless
transactions costs that occur if these programs were managed by separate
advisors. Similarly, incentive fees are netted for the three trading programs
that comprise the Combined Portfolio. This prevents an incentive fee payment
to the Trading Advisor unless the net performance across programs warrants.
In the future, other programs and/or products may be included in the Combined
Portfolio in varying degrees. Client accounts participating in the Combined
Portfolio may thus be leveraged in a manor that reflects the addition of an
additional program. Allocation and leverage decisions are made by the Trading
Advisor with the aid of certain research studies, and combined experience, in
an effort to minimize risk and maximize profit opportunities.
Alpha Program The Alpha Program is a technical and systematic trading program
designed to provide broadly diversified, low correlation returns from a
trading style considerably different than that which is typical of the
managed futures industry. Portfolio composition includes a broad and diverse
group of domestic and international futures and currency markets. Nearly 65%
of market exposure is derived from international stock, bond and currency
markets. The remaining 35% includes various commodity markets. Alpha
positions itself to take advantage of significant longer term price moves,
often before it has become clear to market participants that such a movement
in price is underway. The program employs a series of proprietary algorithms
that highlight trading opportunities that may be with, or against, the
current trend. The result is a strategy with the ability to trade in varying
market conditions, multiple time frames, and in any liquid market. The
benefits are obvious. There is the potential for more consistent, low
correlation returns and the opportunity to manage larger pools of assets due
to the offbeat nature of trade selection, entry, and exit. History has shown
that managers of non-correlated futures portfolios are forced to trade the
very short-term. This fact typically limits asset growth significantly. The
Alpha Program, as it is applied here, generally trades the longer term time
frame. As a result, low correlations and more consistent returns are possible
from approximately 800 round turns per $million, per year versus the 2000-
4000 round turns typical of short-term traders. This program is offered only
as a component of the Combined Portfolio.
Pattern Recognition Program The Pattern Recognition Program is a unique,
systematic program that trades the world's 35 most liquid futures markets
while generating results that are designed to have little correlation with
other investment styles. Nearly 65% of market exposure is derived from
international stock, bond and currency markets. The remaining 35% includes
various commodity markets. The trading strategy is based upon the assumption
that markets exhibit a degree of repetitive price action that can be
identified throughout history. Factors responsible for such repetition may
include fundamental factors (economic cycles, interest rates, weather and
seasonality etc.) and human factors (fear, greed and other emotions). The
Trading Manager's experience suggests that all successful traders rely on
some form of pattern recognition, although the information they analyze to
discern repetitive price tendencies may differ. Consider discretionary
traders as an example. Their historical knowledge and experience allow them
to analyze many kinds of information that give clues to future market
direction. They study current fundamental data, economic trends, technical
factors, etc. that collectively form the current pattern of events. This
current pattern of events is evaluated in the context of history in order to
form an opinion of the likely effect on prices. Trend-followers are another
good example of pattern recognizers. They attempt to identify the "trend"
pattern in its beginning and ending stages in order to capture repetitive
profit opportunities in various markets. It is arguable that all successful
traders benefit from repetitive patterns to market price movement. If this
were not true, then it would be difficult to explain how successful traders
continue to be profitable over the long run. The Pattern Recognition Program
analyzes current price patterns in the context of history, emphasizing those
occasions where there is statistical, evidence supporting the probability
that prices will move in a particular direction. The Trading Manager believes
that markets are, in general, very efficient and that price movement is to a
large extent random. These facts do not prevent the identification of
repetitive profit opportunities, however, they merely underscore the
difficulty associated with capturing these opportunities with reasonable
consistency. With a rigorous, probabilistic methodology that identifies
repetitive historical tendencies, the Trading Manager attempts to benefit
from a modest but consistent edge and solid risk control. This program is
offered only as a component of the Combined Portfolio.
Beta Program The Beta Program is a technical and systematic trading program
designed to provide broadly diversified, low correlation returns from a
short-term trading style considerably different than that which is typical of
the managed futures industry. Incorporating a broad and diverse group of
domestic and international futures and currency markets in its trading mix,
nearly 65% of market exposure is derived from international stock, bond, and
currency markets. The remaining 35% includes various commodity markets.
Designed to take advantage of short-term volatility and the more random
nature of short-term price movements, Beta will trade with 9-day average
holding periods. It has been designed to complement the Alpha and Pattern
Recognition programs that currently make up the Combined Portfolio and will
not be offered separately. Correlation between the Beta Program and the other
two Combined components will be approximately 0.1. History has shown that
managers of non-correlated futures portfolios are forced to trade the very
short-term, with round-turns of 2000-4000 per/$million per/year. This fact
typically limits asset growth significantly. The Beta Program generates only
1000 round-turns per/$million per/year and is unique in its ability to
complement both short and long term investment styles, while maintaining
significant asset capacity.
Electronic Futures Portfolio The Electronic Futures Portfolio is based upon
NuWave Investment Corp.'s fully automated, state-of-the-art trading program.
Focusing only on those futures contracts that exist and trade in a purely
electronic fashion, the portfolio's returns are generated through the
identification of short-term price dislocations. All trading is 100%
automated, allowing a rapid style of trading that would not be possible
without the aid of sophisticated computer programming. While presently
focused on domestic stock index contracts, NuWave expects to broaden trading
in this program to include several worldwide futures contracts with a
particular focus on financial futures.
Performance History
NuWave Investment Corp - Combined Portfolio
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS. A purchase
of membership interests pursuant to this offering does not include any
interest in this program.
NuWave Investment Corp - Combined Portfolio
Percentage Rate of Return
(Computed on a compounded monthly basis)
2004 2003 2002 2001
January 2.23 4.68 (1.11)
February 2.40 5.26 (1.36)
March (0.41) (3.02) (2.81)
April (2.12) (1.50) (1.81)
May (0.08) 1.11 0.75
June 1.01 (1.04) 3.82 1.03
July 0.26 4.09 0.45
August 2.24 2.20 0.48
September (1.79) 4.66 -0.58
October 4.15 (1.43) 0
November 1.00 (4.34) -0.1
December 0.63 7.53 1.48
Year-to-Date 2.99 12.25 9.94 2.76
Name of Commodity Trading Advisor: NuWave Investment Corp
Name of the Trading Program: Combined Portfolio
Date of Commencement of Trading by Advisor: May 2001
Date of Commencement of Program Trading: June 2001
Number of Accounts in Trading Program: 16
Total Assets Under Management: $ 105,866,237
Total Assets Traded Pursuant to Program: $ 67,455,990
Largest Monthly Draw-down**: 11-02 / 4.34%
Worst Peak to Valley Draw-down***: 10-02 to 11-02 / 5.70%
* Monthly Rate of Return is calculated by dividing net performance by
beginning net asset value. The monthly rates are then compounded to arrive
at the annual rate of return.
** Worst Monthly Percentage Draw-down is the largest monthly loss experienced
by the program in any calendar month expressed as a percentage of the total
equity in the account and includes the month and year of such draw-down.
*** Worst Peak to Valley Draw-down is the greatest cumulative percentage
decline in month end net asset value of the program due to losses sustained
by an account during any period in which the initial month-end net asset
value of an account is not equaled or exceeded by a subsequent month-end net
asset value of the account and includes the time period in which it occurred.
Adobe Asset Management, LLC
Adobe Asset Management, L.L.C. (ADOBE or the Advisor) was established on July
23, 1999. The only principal of ADOBE is Jaesun Park. ADOBE's office is
located at 18156 E. Alamo Dr., Aurora, Colorado 80015. The main business
telephone number is 303-617-7443. All the books and records pertaining to
the business of the Advisor will be maintained at the above-mentioned
address. ADOBE became registered with the Commodity Futures Trading
Commission (CFTC) as a Commodity Trading Advisor (CTA) on February 23, 1999.
It became a member of the National Futures Association (NFA) on August 19,
1999.
Business Background
Mr. Jaesun Park has been the sole officer of ADOBE since its formation. He
will have primary responsibilities for directing trading for ADOBE's
customers. Past performance is disclosed on page 7-8. His trading in the
futures markets began in 1986 and he has engaged in trading futures, options,
and related markets for more than ten years. Mr. Park is currently a
professor of Operations Research, College of Business and Public
Administration, at the University of North Dakota. Mr. Park has been with
the university since he graduated from Northwestern University (Evanston,
Illinois) in 1985 with a Ph.D. in Managerial Economics and Decision Sciences.
There have been no material administrative, civil or criminal proceedings
against ADOBE or its principal. Mr. Park may trade futures and related
contracts for his own accounts. Trading records for all proprietary trading
and any written policies related thereto will not be available for review by
ADOBE's clients, due to their confidential nature. A conflict of interest
exists if proprietary trades are in the same markets and at the same time,
using the same futures commission merchant (FCM) used by customer accounts.
To the extent that executions are bundled and then allocated among accounts
held at the FCM, a particular account may receive less favorable execution
than other accounts. It is ADOBE's policy to objectively monitor and
allocate trade executions that afford each account the same likelihood of
receiving favorable or unfavorable executions over time.
A potential conflict also may occur when the Advisor or its principal trades
his proprietary accounts more aggressively, take positions in proprietary
accounts which are opposite, or ahead of, the position taken in customer
accounts. These conflicts may occur because of the experimental nature of
trading in the proprietary accounts.
Trading Program
All ADOBE clients participate in the Financial Futures Discretionary Program
(FFDP) and/or 5xFFDP, both directed by Mr. Jaesun Park. 5xFFDP trades five
times the quantity traded in FFDP with the same amount of equity. See
"Principal Risk Factors - Additional Risk Factors for 5xFFDP" for further
information regarding 5xFFDP.
ADOBE's objective is to provide its clients with consistent returns while
maintaining low volatility by participating in financial futures, options,
and related markets. There is, however, no assurance that such objective will
be achieved.
FFDP ( and 5xFFDP) is operated and directed based on the Advisor's
experienced view of the markets. His experience, judgment, observations, and
analysis are the sole foundation of FFDP. Mr. Park has been trading futures
and options for more than ten years. His trading approach evolves
dramatically towards a shorter-term frame because of his emphasis on
consistency and low volatility.
The Advisor's trading program attempts to detect and exploit short-term price
changes while maintaining an intensive concentration on risk management. The
Advisor "listens" to the markets to see if he can observe something about
what/how market participants are doing. (Some exemplary questions the
Advisor addresses in relation to well-being of market participants may
include; Are they surprised at the breaking news? Do they have to liquidate
positions because of the news? What do they expect from the upcoming
economic data release? What'll move their mind? Do they already discount
the news and are ready to play against the news? Do they recognize the
inter-market discrepancy? Do they form a strong consensus? ) In addition,
the Advisor watches many popular technical analyses to help him read the mind
of system traders. The Advisor utilizes technical analysis to pick up
unusual behavior of market participants. The Advisor keeps up with
fundamentals to provide a backdrop in his trading decisions. (He does not,
however, trade simply on fundamentals.) Combining all information that the
Advisor encounters, he is looking for a clue to potential price changes.
Once the Advisor reaches a trading idea, he waits for a low-risk entry point
in which potential reward is significantly larger than unwanted stop loss.
When a position is initiated, a predetermined stop (x-dollars away from the
entry point) is conceived. The position size on a trade is a function of the
magnitude of the stop and the stop is determined by looking at price actions.
The Advisor tries very hard not to risk more than 0.5 percent of nominal
account size (defined on page 7) on any single trading idea within FFDP (2.5
percent within 5xFFDP).
His trading methods can be described as discretionary, event driven,
technical with a fundamental backdrop, market neutral, and non-directional.
FFDP trades financial futures including currencies, debts, and stock indices,
options, and related contracts. Trading is active with approximately 1,000-
2,000 contracts for FFDP (5000-10,000 contracts for 5xFFDP) traded per
million dollars, per year. However, average margin to equity is 3% for FFDP
( 15% for 5xFFDP). The margin to equity ratio is the ratio of the exchange
minimum initial margin necessary to carry futures positions in the account to
the total equity of the account. Variations in equity to margin ratios are
influenced by the exchanges, while the Advisor's evaluation of various
risks determines the position sizes for the program.
The trading programs to be followed by the Advisor do not assure successful
trading. Investment decisions made in accordance with this strategy will be
based on an assessment of available facts. However, because of the large
quantity of facts at hand, the number of available facts that may be
overlooked and the variables that may shift, any investment decision must, in
the final analysis, be based on the judgment of the Advisor.
The above description is of necessity general and is not intended to be
exhaustive. Consequently, clients will not be able to determine the full
details of these programs, or whether the program is being followed. The
advisor has the right to modify its trading programs or to use trading
methods other than those described above, all without prior notice to its
clients.
ADOBE ASSET MGMT. LLC
Capsule Customer Performance Information for FFDP
Period 1/00 to 08/04
Inception of Trading by Jaesun Park Jan. 2000
Inception of trading in Offered Program Jan. 2000
# of Customer Accounts Currently Traded Pursuant to the Program 21
# of Customer Accounts Currently Traded by Jaesun Park 24
Actual Assets Traded Pursuant to the Offered Program (08/04) $ 2,373,000
Total customer actual assets under management by the CTA (08/04) $ 2,516,658
Nominal Assets Traded Pursuant to the Offered Program (08/04) $ 63,874.231
Total customer Nominal assets under Management by the CTA (08/04) $
65,517,889
Largest monthly draw-down** (1.33%) November 2000
Worst peak to valley draw-down** (2.64%) June 2001 - Oct, 2001
# of profitable accounts that have opened and closed since Jan 2000 4
Range of returns experienced by profitable accounts 0.92% to5.57%
# of losing accounts that have opened and closed since Jan 2000 8
Range of returns experienced by losing accounts -0.14% to -8.74%
MONTHLY/ANNUAL RATES OF RETURN **Year
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Y-T-D
2000
1.16 0.62 0.00 1.39 1.91 1.64 0.63 0.08 1.50 0.77 -1.33 0.50 9.21
2001
0.88 0.74 -0.94 0.67 0.22 0.73 -0.03 -1.02 -1.26 -0.34 0.27 0.13 0.00
2002
1.00 0.07 -0.02 0.28 0.95 0.39 0.35 1.03 -0.11 0.11 0.48 -0.04 4.57
2003
0.03 0.83 0.76 0.42 -0.21 1.22 -0.49 0.38 0.61 -0.36 0.47 -0.22 3.49
2004
- -0.40 0.29 0.25 0.15 -0.17 0.23 -0.04 0.01 0.32
** Draw-Down and peak to valley mean losses experienced by the composite
over a specified period. Largest draw-down relates to one period and peak
to valley relates to a period of time from point A to point B.
*** Rate of Return is calculated by taking the net performance divided by
the time-weighted equity of all accounts. Y-T-D Return is calculated by
taking the ending $1,000 Index minus the previous year's ending $1,000 index
divided by the previous year's ending $1,000 index. This index shows how a
theoretical $1,000 investment, if left untouched, would have appreciated
(depreciated) during each annual period in the performance table.
The Futures Commission Merchant
The managing member has selected an unaffiliated futures commission merchant,
Man Financial Inc, 717 Fifth Avenue, 9th Floor, New York, New York 10022-
8101, (212) 589-6200. It holds, supervises and controls approximately 97% of
our equity, that which is used for trading by the commodity trading advisors.
Man is a registered futures commission merchant and commodity pool operator
pursuant to the Commodity Exchange Act, as amended, and is a member of the
National Futures Association in such capacities. As required by law, the
managing member will provide notice to you within 21 days of any change in
futures commission merchant.
At any given time, the futures commission merchant is involved in numerous
legal actions and administrative proceedings, which in the aggregate, are
not, as of the date of this prospectus, expected to have a material effect
upon its condition, financial or otherwise, or to the services it will render
to the Fund.
The futures commission merchant acts only as a clearing broker for the Fund
and, as such, is paid commissions for executing and clearing trades. It has
not passed upon the adequacy or accuracy of this prospectus. The futures
commission merchant will not act in any supervisory capacity with respect to
the managing member nor participate in the management of the managing member
or the Fund. Therefore, prospective investors should not rely on the futures
commission merchant's agreements to clear trades for the Fund or for any
other reason related to it in deciding whether or not to purchase interests
in the Fund.
The Introducing Broker
The Fund trading account was introduced to Man Financial Inc as futures
commission merchant by Mt. Kemble Futures LLC, 1099 Mt Kemble Ave, Morristown
NJ 07960, (973) 425-9194. Mt. Kemble shares in the round turn brokerage
commission paid by the Fund to the futures commission merchant for trades
entered by the commodity trading advisors.
Federal Income Tax Aspects
Scope Of Tax Presentation
This presentation is based on:
* the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder which were in effect as of the effective
date of this prospectus and
* the express intent of the managing member to:
* * operate the Fund as authorized and limited by the LLC Operating
Agreement, and
* * cause us to invest only our equity capital and not to borrow money to
operate the Fund, and
* the belief by the managing member that no less than ninety percent of the
income generated by us will be from interest income and the trade of
commodities.
Any change in the Internal Revenue Code or deviation from the above
intentions of operation could alter this presentation and also have adverse
tax consequences on this Fund and you. For instance, if we were taxed as a
corporation, we would pay tax and you would have to pay a second tax. In
addition, if we were taxed as a corporation, none of the deductions for
expenses would pass through to your tax return.
Any adjustment made to our return by our auditors or the IRS will flow
through to your return and could result in a separate audit of your
individual return. If the IRS audits us or you, significant factual
questions may arise which, if challenged by the IRS, might only be resolved
at considerable legal and accounting expense. We will report our income for
tax and book purposes under the accrual method of accounting and our tax year
will be the calendar year. During taxable years in which little or no profit
is generated from trading activities, you may still have interest income that
will be taxed to you as ordinary income.
Subject to the above scope of presentation and assumption, following is the
opinion of The Scott Law Firm, P.A. that summarizes the material Federal
income tax consequences to individual investors in the Fund.
This discussion is not intended as a substitute for careful planning by you
after you consider your tax circumstances; particularly, since the income tax
consequences of an investment in the Fund will not be the same for all
taxpayers. Accordingly, you are urged to consult your tax advisors with
specific reference to your tax situation.
All matters upon which we have obtained an opinion of tax counsel are
discussed under the caption Tax Opinion below. Said opinion is based and
conditioned upon factual representations made by the managing member on
behalf of the Fund and assumptions that those facts will be applicable to the
Fund continuously during its operation.
No Legal Opinion As To Certain Material Tax Aspects
We will not request a legal opinion in regard to any State income tax issue.
In addition, our tax counsel cannot opine upon:
* any matter that concerns the tax consequences to any specific member of
investment in the Fund based on that member's tax circumstances,
* any Federal income tax issue that involves a determination by the IRS of
the facts related to our operation, or
* any other matter that may be subject to IRS interpretation or adjustment
upon audit.
For an example of an item that could be subject to determination by the IRS,
commodity trading advisor fees are aggregated with employee business expenses
and other expenses of producing income, and the aggregate of such expenses is
deductible only to the extent such amount exceeds 2% of the your adjusted
gross income. The Federal income tax deductibility of these expenses depends
upon factual determinations related to our operation by the managing member.
Fund Tax Status
The Internal Revenue Code, at Section 7701, and the regulations promulgated
thereunder, provides the criteria used cannot be present if a company is to
be taxed as a partnership and not as a corporation. A company must have two
or more of the following characteristics:
* decentralized management
* unlimited liability of the members
* limited transferability of membership interests, and
* limited continuation of existence.
The LLC Operating Agreement obligates the managing member to operate the Fund
in a manner so that it will be taxed as a partnership and not as a
corporation.
If we were taxed as a corporation:
* we would pay taxes at the corporate rates upon our income and gains
* items of deduction and losses would be deductible only by us and not by
you
* tax credits would be available only to us and not to you, and
* all or a part of any distributions we make to you could be taxable as
dividend income and would not be deductible by us in computing our taxable
income.
This would substantially increase the total amount of taxes paid on your
investment income and potentially limit your expense deductions.
Historically, the right of redemption, similar to your right to redeem your
membership interests, renders a pool, such as ours, to be deemed a publicly
traded partnership, taxed as a corporation. However, the Revenue Act of 1987
provides an exception. The exception requires 90% or more of our gross
income to be derived from interest and the trade of commodities. Provided
the principal activity of the Fund is buying and selling commodities, income
may include interest, dividends, and income from the trade or holding of
futures, options or forward contracts on commodities. The managing member
intends to limit the principal business activity and sources of income so
that this exception will apply to us. In addition, the managing member has
placed restrictions upon the right of redemption. See The LLC Operating
Agreement, Redemptions and Exhibit A, Right of Redemption.
No IRS Ruling
We have not applied for a ruling from the Internal Revenue Service regarding
our status as a partnership or with regard to any other tax aspect, nor do we
intend to seek a ruling. In the absence of a ruling, there can be no
assurance that the IRS will not attempt to take a position adverse to the
Fund and the opinions expressed in this prospectus.
Tax Opinion
The managing member believes, in reliance upon opinion of legal counsel, that
this prospectus accurately summarizes all material Federal tax matters
related to the Fund. In the opinion of The Scott Law Firm, P.A., tax counsel
to the Fund, based upon the facts stated in the certificate of intended
operation of the Fund supplied by the managing member, believes:
* we will be treated as a partnership for Federal income tax purposes;
* the allocations of profits and losses made when members redeem their
membership interests will be upheld for Federal income tax purposes;
* based upon our contemplated trading activities, the IRS will consider us
as conducting a trade or business; and, as a result, the ordinary and
necessary business expenses we incur while conducting our commodity futures
trading business will not be subject to limitation under Section 67 or
Section 68 of the Internal Revenue Code;
* the profit share will be respected as a distributive share of our income
allocable to the Fund; and
* the contracts we trade, as described in this prospectus, will satisfy the
commodities trading safe harbor as described in section 864(b) of the
Internal Revenue Code.
Such opinion is based on the Internal Revenue Code as of the effective date
of this prospectus and a review of the LLC Operating Agreement, and is
conditioned upon the following representations of facts by the managing
member:
* at all times, we will be operated in accordance with the Delaware LLC Act
and the LLC Operating Agreement attached hereto as Exhibit A
* for our first two years of operation, the aggregate deductions claimed by
the members as their distributive shares of our net losses will not exceed
the equity capital invested in the Fund
* no creditor who makes us a loan, including margin accounts, will have or
acquire, as a result of making the loan, any direct or indirect interest in
our capital, profits or property, other than as a secured creditor
* the managing member will at all times actively direct the affairs of the
Fund
* the managing member:
* * will possess substantial assets, exclusive of its interest in us or
any other limited liability company, which can be reached by our general
creditors within the meaning of Treasury Regulation Section 301.7701 2(d)(2)
or
* * will otherwise comply with the Federal tax code with respect to
managing member requirements imposed upon sole corporate managing members of
limited liability companies
* interests in the Fund:
* * will be transferable or redeemed only upon approval of the managing
member
* * will not be traded on an established securities market, and
* * will not be readily tradable on a secondary market or the substantial
equivalent thereof
* we will not be registered under the Investment Advisor's Act of 1940; and
* over 90% of our earned income will be qualifying income as that term is
defined in the Revenue Act of 1987.
The Scott Law Firm, P.A. is not able to opine upon the tax treatment of
expenses because that determination depends upon questions of fact to be
resolved by the managing member on behalf of the Fund.
In addition, commodity trading advisor fees are aggregated with employee
business expenses and other expenses of producing income, and the aggregate
of such expenses is deductible only to the extent such amount exceeds 2% of
your adjusted gross income. It is the managing member's position that our
intended operations will qualify as a trade or business. If this position is
sustained, the brokerage commissions and performance fees will be deductible
as ordinary and necessary business expenses. Syndication costs to organize
the Fund and offering expenses are subject to limitations upon deduction
imposed by the Internal Revenue Code.
Any change in the representations of the managing member or the operative
facts will prevent you and us from relying upon the legal opinion from The
Scott Law Firm, P.A.
Passive Loss And Unrelated Business Income Taxes Rules
In addition to the imposition of a corporate level tax on publicly traded
limited liability companies, special rules apply to limited liability
companies in regard to the application of the passive loss and unrelated
business income tax rules. In Notice 88-75 issued on June 17, 1988, the IRS
provided guidance as to limited liability company operation. The managing
member intends to use its best efforts to cause us to comply with the
applicable provisions of these guidelines. In the event our expenses were
deemed not to qualify as deductions from trading profits, your total taxes
would increase while your distributions would remain the same.
Basis Loss Limitation
Generally, the basis of your interest in the Fund for tax purposes is equal
to the cost
* decreased, but not below zero, by your share of any Fund losses and
distributions, and
* increased by your share of any Fund income.
You may not deduct losses in excess of the adjusted basis for your interest
in the Fund at the end of the Fund year in which such losses occurred.
However, you may carry forward any excess to such time, if ever, as the basis
for the interest in the Fund is sufficient to absorb the loss. Upon the sale
or liquidation of your interest in the Fund, you will recognize a gain or
loss for Federal income tax purposes equal to the difference between the
amount you realize in the transaction and the basis for your interest in the
Fund at the time of such sale. For individuals, capital losses would offset
capital gains on a dollar for dollar basis, with any excess capital losses
subject to a $3,000 annual limitation. Accordingly, it is possible for you
to sustain a loss from our operation that will not be allowed as a deduction
for tax purposes or will be limited to a $3,000 annual limitation.
At-Risk Limitation
If you borrow money to invest in the Fund, there are at risk limitations that
will apply to you. Section 465 of the Internal Revenue Code provides that
the amount of any loss allowable for any year to be included in your personal
tax return is limited to the amount paid for the membership interests, or tax
basis, of the amount at risk. Losses already claimed may be subject to
recapture if the amount at risk is reduced as a result of:
* cash distributions from the activity
* deduction of losses from the activity
* changes in the status of indebtedness from recourse to non-recourse
* the commencement of a guarantee, or
* other events that affect your risk of loss.
You should consider the at risk provisions in arranging debt financing for
purchasing a membership interest.
Income And Losses From Passive Activities
Internal Revenue Code Section 469 limits the deductibility of what are called
passive losses from business activities in which the taxpayer does not
materially participate. Under temporary Treasury regulations,
* the trading of personal property, such as futures contracts, will not be
treated as a passive activity,
* Fund gains allocable to you will not be available to offset passive losses
from sources outside the Fund, and
* Fund losses will not be subject to limitation under the passive loss
rules.
Allocation Of Profits And Losses
The allocation of profits, losses, deductions and credits contained in the
LLC Operating Agreement will be recognized for tax purposes only if the
allocations have substantial economic effect. While the managing member
believes that the LLC Operating Agreement either meets the requirements or
satisfies a substitute capital account equivalency test, the LLC Operating
Agreement does not meet a third requirement, that a member must make a
capital contribution to the Fund equal to any deficit in its capital account.
Accordingly, under the regulations and the LLC Operating Agreement, losses
would not be allocable to you in excess of your capital contribution plus
properly allocated profits less any prior distributions. The managing member
intends to allocate income and losses in accordance with the LLC Operating
Agreement that it believes complies with applicable Internal Revenue Code
Section 704. However, no assurances can be given that the IRS will not
attempt to change any allocation that is made among members admitted on
different dates, which could adversely affect the amount of taxable income to
one member as opposed to another member.
Taxation Of Futures And Forward Transactions
The commodity trading advisors selected to trade for us are expected to trade
primarily in contracts that are treated under Section 1256 of the Code. 1256
Contracts are any:
* regulated futures contract
* foreign currency contract
* non-equity option, or
* dealer equity option.
A regulated futures contract is a futures contract:
* if it is traded on or subject to the rules of:
* * a national securities exchange which is registered with the
Securities and Exchange Commission,
* * a domestic board of trade designated as a contract market by the
Commodity Futures Trading Commission or any other board of trade, exchange or
other market designated by the Secretary of Treasury, and
* which is marked-to-market to determine the amount of margin that must be
deposited or may be withdrawn. Marked-to-market means that the position is
taken in the account on day one at that price. Each day the position is
held, it is valued for account purposes at the price of the contract on the
close of that day.
A foreign currency contract is negotiated between banks and accepted for
trade among banks and private investors. The Fund is expected to purchase
or sell these contracts to speculate on the value of foreign currency as
contrasted with the U. S. dollar. These contracts are exempt from the
Commodity Exchange Act and are excluded from marked-to-market treatment.
A non-equity option means an option which is treated on a qualified board or
exchange and the value of which is not determined directly or indirectly by
reference to any stock, group of stocks, or stock index unless there is in
effect a designation by the Commodity Futures Trading Commission of a
contract market for a contract bond or such group of stocks or stock index.
A dealer equity option means, with respect to an options dealer, only a
listed option which is an equity option, is purchased or granted by such
options dealer in the normal course of his activity of dealing in options,
and is listed on the qualified board or exchange on which such options dealer
is registered.
All Section 1256 contracts will be marked-to-market upon the closing of every
contract, including closing by taking an offsetting position or by making or
taking delivery, by exercise or being exercised, by assignment or being
assigned; or by lapse or otherwise. Also, all open Section 1256 contracts
held by us at our fiscal year-end will be treated as sold for their fair
market value on the last business day of such taxable year. This will result
in all unrealized gains and losses being recognized for Federal income tax
purposes for the taxable year. As a consequence, you may have tax liability
relating to unrealized Fund profits in open positions at year-end. Sixty
percent of any gain or loss from a Section 1256 contract will be treated as
long-term capital gain or loss, and 40% as short-term capital gain or loss,
regardless of the actual holding period of the individual contracts. The
character of a your distributive share of profits or losses of the Fund from
Section 1256 contracts will thus be 60% long-term capital gain or loss and
40% short-term capital gain or loss. Your distributive share of such gain or
loss for a taxable year will be combined with your other items of capital
gain or loss for such year in computing your Federal income tax liability.
The Internal Revenue Code contains rules designed to eliminate the tax
benefits flowing to high-income taxpayers from the graduated tax rate
schedule and from the personal and dependency exemptions. The effect of
these rules is to tax a portion of a high-income taxpayer's income at a
marginal tax rate of 35%. Most long-term capital gains after May 6, 2003 are
subject to a maximum tax rate of 15%. A member, other than a corporation,
estate or trust, may elect to carry-back any net Section 1256 contract losses
to each of the three preceding years. The marked-to-market rules do not
apply to interests in personal property of a nature that are actively traded
other than Section 1256 contracts.
Section 988 Foreign Currency Transactions
A Section 988 transaction is defined as the entering or acquiring of any
forward contract, futures contract, option or similar financial instrument if
the amount to be received or to be paid by reason of a transaction is
denominated in a nonfunctional currency or is determined by reference to one
or more nonfunctional currencies. If the Section 988 transaction results in
a gain or loss, it is considered to be a foreign currency gain or loss to the
extent it does not exceed gain or loss realized by reason of changes in
exchange rates.
Capital Gain And Loss Provisions
If short-term capital gains exceed long-term capital losses, the net capital
gain will be taxed at the same rates as ordinary income. Subject to an
annual limitation of $3,000, you may deduct the excess of capital losses over
capital gains against ordinary income. Excess capital losses that are not
used to reduce ordinary income in a particular taxable year may be carried
forward to, and treated as capital losses incurred in, future years.
Business For Profit
Internal Revenue Code Section 183 sets forth the general rule that no
deduction is allowable to an individual for an activity not engaged in for
profit. These are activities other than those constituting a trade or
business or engaged in for the production or collection of income or for the
management, conservation, or maintenance of property held for the production
of income. The determination of whether an activity is engaged in for profit
is based on all facts and circumstances, and no single factor is
determinative. The managing member believes that by employing independent
commodity trading advisors with strong track records of production of
profits, it is more likely than not, that our activity will be considered an
activity engaged for profit.
Self-Employment Income And Tax
Section 1402 of the Internal Revenue Code provides that an individual's net
earnings from self-employment shall not include the distributive share of
income or loss from any trade or business carried on by a limited liability
company of which he is a member. Therefore, you should not consider that the
ordinary income from the Fund constitutes net earnings from self-employment
for purposes of either the Social Security Act or the Internal Revenue Code.
Alternative Minimum Tax
The alternative minimum tax for individuals is imposed on certain high income
persons as a method of collection of tax although income may to sheltered or
otherwise not subject to tax. Alternative minimum taxable income consists of
income deemed taxable without regard to availability of deductions or tax
preferences provided by the tax law. Alternative minimum taxable income may
not be offset by certain deductions, including (in certain circumstances)
interest incurred to purchase or carry interests in a limited liability
company such as this Fund. Taxpayers subject to the alternative minimum tax
could be required to make estimated payments. The extent to which the
alternative minimum tax will be imposed or estimated payments required will
depend on the overall tax situation of each member at the end of each taxable
year and, therefore, this question should be referred to your tax advisor.
Interest Related To Tax Exempt Obligations
Section 265(a)(2) of the Internal Revenue Code will disallow any deduction
for interest on indebtedness of a taxpayer incurred or continued to purchase
or carry obligations the interest on which is wholly exempt from tax. The
IRS announced in Revenue Procedure 72-18 that the proscribed purpose would be
deemed to exist with respect to indebtedness incurred to finance a portfolio
investment. The Revenue Procedure further states that a membership interest
will be regarded as a portfolio investment, unless rebutted by other
evidence. Therefore, if you own tax-exempt obligations, the IRS might take
the position that any interest expense incurred by you to purchase or carry
membership interests should be viewed as incurred by you to continue carrying
tax exempt obligations, and that you should not be allowed to deduct all or a
portion of the interest on any such loans.
Not A Tax Shelter
In the opinion of tax counsel, we do not constitute a tax shelter, as defined
in Internal Revenue Code Section 6111(c), since the managing member intends
to operate the Fund so that the tax shelter ratio will not exceed two-to-one
at the close of any of the first five years. Accordingly, the managing
member has not registered us as a tax shelter with the IRS.
Taxation Of Foreign Members
An investment in the Fund should not, by itself, cause a foreign member to be
engaged in a trade or business within the United States. A foreign person is
subject to a 30% withholding tax, unless reduced or exempted by treaty, on
United States source income that is not effectively connected with the
conduct of a United States trade or business. The person having control over
the payment of such income must withhold this tax.
Because we have permitted the trading advisor to trade foreign currency and
other contracts on foreign exchanges or derivative transactions such as
energy or interest rate swaps or forwards, based on current law it is
uncertain whether entering into foreign and derivative transactions may cause
us, and therefore any foreign members, to be treated as engaged in a trade or
business within the United States. However, the Treasury has issued proposed
regulations which, if finalized in their current form, would provide that
foreign members should not be deemed to be engaged in a United States trade
or business solely by virtue of an investment as a member in the Fund even if
the Fund enters into foreign exchange trades of currency and derivative
transactions. These regulations are proposed to be effective for taxable
years beginning 30 days after the date final regulations are published in the
Federal Register. We may elect to apply the final regulations retroactively
once they are finalized. The Scott Law Firm, P. A. has not opined on the
issues related to the withholding by us from distributions to foreign
investors as the determination of how the treat this issue will be resolved
at the end of each taxable year or upon receipt of a redemption request.
Accordingly, we may be required to withhold tax on items of such income that
are included in the distributive share of a foreign member, whether or not
the income was actually distributed. If we are required to withhold tax on
such income of a foreign member, the managing member may pay such tax out of
the redemption of membership interests by the foreign member.
Fund Entity-Audit Provisions-Penalties
The Internal Revenue Code provides that the tax treatment of items of Fund
income, gain, loss, deduction and credit will be determined at the Fund level
in a single proceeding. The LLC Operating Agreement has appointed TriView
Capital Management, Inc. as the tax matters partner to settle any issue
involving any member with less than a 1% profits interest unless such a
member, upon notice, properly elects not to give such authority to the tax
matters partner. The tax matters partner may seek judicial review for any
adjustment to Fund income, but there will be only one such action for
judicial review to which all members will be bound. The Internal Revenue
Code provides that a member must report a Fund item consistently with its
treatment on the Fund return, unless the member specifically identifies the
inconsistency or can show that its treatment of the Fund item on its return
is consistent with a schedule furnished to the member by the Fund. Failure
to comply with this requirement may result in penalties for underpayment of
tax and could result in an extended statute of limitations. The statute of
limitations for adjustment of tax with respect to Fund items will generally
be three years from the date of filing the Fund return.
Internal Revenue Code Section 6662 imposes a penalty for a substantial
understatement of income tax equal to 20% of the amount of any underpayment
attributable to that understatement. Understatement is defined as the excess
of the correct amount of tax required to be shown on the return over the
amount of tax that is actually shown on the return. A substantial
understatement exists for any taxable year if the amount of the
understatement for the taxable year exceeds the greater of:
* 10% of the correct tax, or
* $5,000, or $10,000, in the case of a corporation other than an S
corporation or a personal holding company.
Employee Benefit, Retirement Plans And IRA's
The Employee Retirement Income Security Act of 1974 governs:
* employee benefit plans, such as:
* * a qualified pension, profit-sharing or stock bonus plan, or
* * a qualified health and welfare plan; and
* individual retirement accounts, commonly called IRAs.
You may not purchase membership interests with the assets of a plan if we,
the managing member, the selling agent, the introducing broker, the futures
commission merchant, or any of their affiliates, agents or employees:
* has investment discretion over such plan,
* gives investment advice with respect to such plan assets, for a fee, or
* is an employer maintaining or contributing to such plan.
Before you invest in us through one of these qualified plans, you should
consult your own legal and financial advisors, and the fiduciary of your plan
should take into account the facts and circumstances of your plan, and
consider applicable fiduciary standards under the above act.
Acceptance of subscriptions on behalf of employee benefit plans is not a
representation by the managing member or any other party that this investment
meets all legal requirements or is appropriate with respect to investments by
any particular plan. The person with investment discretion should consult
the attorney for the plan as to the propriety of an investment in this Fund.
The LLC Operating Agreement
This prospectus explains all material terms of the LLC Operating Agreement;
however, you are urged to read the entire agreement. See Exhibit A.
Formation Of The Fund
Our Certificate of Formation is dated and was filed on October 1, 2004
pursuant to the Delaware LLC Act.
You are not liable for our losses, debts and obligations beyond your
investment amount and your share of any of our undistributed assets, so long
as you do not take part in the management of the business of the Fund or
transact any business for the Fund.
According to the LLC Operating Agreement, this Fund will not terminate or
dissolve upon any member's death, incompetence, withdrawal, insolvency,
bankruptcy, termination, liquidation, dissolution or other legal incapacity.
Also, the LLC Operating Agreement allows successor representatives of such
member to redeem their membership interests, but third party creditors and
trustees may not anticipate distributions or seek redemption without
permission of both the successor representative and the managing member.
Units of Membership interests
The amount of membership interests you hold will determine your percentage
interest in our net assets. The percentage interest will be calculated from
time to time by dividing the number of units of membership interests you hold
by the aggregate number of outstanding units of membership interests.
Management Of Fund Affairs
Only the managing member may manage this Fund. All of the decisions will be
in the sole judgment of the managing member without any obligation to provide
you with advance notice of the decisions to be made. You will not take part
in the business or affairs of the Fund nor will you have any voice in its or
the managing member's management or operations.
You and the other members have a right to vote and a majority of those
members who hold outstanding membership interests must give prior written
approval of any material change in either the LLC Operating Agreement or the
Fund structure.
Without the members' approval, the managing member may:
* change the management and incentive fees within the limits described by
this prospectus
* change or add or delete trading advisors,
* change or add or delete introducing brokers
* change or add or delete futures commission merchants,
* change the commissions
* redeem and return a member account
* change the commodity contracts traded,
* change the diversification of our assets among the various types of or in
the positions held in commodity markets, or
* change or add legal counsel, experts, and tax matters partner to the Fund.
To the extent the law permits, such members who hold a majority of the
membership interests may vote to amend any term in the LLC Operating
Agreement and, if necessary, the Certificate of Formation without the
agreement of the managing member. This includes removing the managing member
and electing a new managing member.
The managing member may not make trades on our behalf. Independent commodity
trading advisors selected by the managing member must do the trading.
General Prohibitions
Except for the security posted for commodity trades made in the Fund accounts
on normal margin terms with the clearing broker, we may not borrow from or
loan money or any other assets to any person. However, this shall not apply
to the incurrence of debt to a member or an affiliate with respect to:
* the offering of membership interests for sale
* registration, or
* initiation and maintenance of our trading positions.
We may not permit rebates or give-ups to be received by the managing member
or any of its affiliates. Nor may we permit the managing member or any of
its affiliates to engage in reciprocal business arrangements that would
circumvent the foregoing prohibition. However, an affiliate or the managing
member may provide goods or services, including brokerage, at a competitive
cost to us.
The managing member or its affiliates are not required to advance or loan
funds to the Fund. If the managing member makes any advance or loan to the
Fund, it will not receive interest in excess of its interest costs, nor will
it receive interest in excess of the amounts that would be charged the Fund
by unrelated banks on comparable loans for the same purpose. The managing
member shall not receive points or other financing charges or fees regardless
of the amount.
Additional Offerings
The managing member has sole discretion to:
* end this or any future offering of membership interests
* register additional membership interests, and
* make additional public or private offerings of membership interests.
You will not have any preemptive, preferential or other rights with respect
to the issuance or sale of any additional membership interests. We have not
limited the amount of capital contributions or the maximum amount of
membership interests that may be issued, offered or sold.
Fund Accounting, Reports, And Distributions
You will have a capital account, and its initial balance will be the amount
you paid for your membership interests. The net assets of this Fund will be
determined monthly, and any change from the previous month will be passed on
to your account in the ratio that your account bears to all accounts.
The managing member has sole discretion to make distributions from profits or
net assets. You will receive a monthly report containing:
* the net unit value as of the end of both the current and previous month
* the percentage change in net unit value between the two months
* the amount of distributions during the month
* the brokerage commissions, other fees, administrative expenses, and
reserves for claims and other extra-ordinary expenses incurred or accrued by
us during the month, and
* any other information required by the rules of the Commodity Futures
Trading Commission.
You or your duly authorized representative may inspect our books and records
and any records related to your account, provided:
* you give adequate notice
* you do so at a reasonable time, and
* you make copies at your expense.
Federal Tax Allocations
At the end of each fiscal year, the Fund, under the supervision of the
managing member and the financial experts selected, will allocate our capital
gain or loss and ordinary income or loss, fees and expenses among the members
in accordance with the relationship of each capital account to all capital
accounts. You must include your share of such items in your personal income
tax return.
Transfer Of Membership interests Only With Consent Of The Managing member
Once admitted to this Fund and registered on the Fund records as the owner of
membership interests, you may:
* receive all distributions, allocations of losses and withdrawals, and
reductions of capital contributions
* vote on any matters submitted to the members for voting, and
* exercise all rights granted to members pursuant to the LLC Operating
Agreement and pursuant to Delaware law.
You may transfer your membership interests only with the written consent of
the managing member. The managing member may not approve the transfer if it:
* is not made for all of your membership interests or, if you are not
assigning all of your membership interests, you will not retain more than
five units of membership interests
* will violate any applicable laws or governmental rules or regulations,
including without limitation:
* * any applicable Federal or State securities laws, or
* * the Delaware limited liability company laws
* will jeopardize our ability to be taxed as a Fund and not as a
corporation, or
* will affect characterizations or treatment of income or loss.
Termination Of The Fund
This Fund will terminate:
* by election of the managing member, in its sole discretion, to terminate
and dissolve this Fund
* upon the dissolution, death, resignation, withdrawal, bankruptcy or
insolvency of the managing member, unless the members unanimously elect to
carry on the business and a new managing member has been substituted
* if it does not pay its annual franchise fee and file its annual report
with the State of Delaware, which will cause it to be dissolved under
Delaware law
* upon any event which makes the continued existence of the Fund unlawful,
or
* upon the unanimous vote of the Members.
Meetings
We are not required to hold regular meetings, however, members may call
meetings to vote on certain issues, including:
* amendment of the LLC Operating Agreement; provided, however, any amendment
which modifies the compensation or distributions to the managing member or
which affects the duties of the managing member requires its consent
* removal of the managing member and election of a new managing member
* cancellation of any contract for services with the managing member,
without penalty, upon 60 days written notice; provided, however, the maximum
period of any contract between the managing member and the Fund is one year;
and, provided further, should any amendment to this LLC Operating Agreement
attempt to modify the compensation or distributions to which the managing
member is entitled or which affects the duties of the managing member, such
amendment will become effective only upon the consent of the managing member.
* the right to approve, prior to sale, the sale or distribution, outside the
ordinary course of business, of all or substantially all of the assets of the
Fund.
* dissolution of the Fund.
* change of any of the Fund's basic investment policies or in the structure
of the Fund.
See Management of Fund Affairs.
The managing member must receive in person or by certified mail a written
request with a check to cover the cost of sending notice of the meeting to
all members. One or more members who collectively own 10% or more of the
outstanding membership interests must sign the written request. The managing
member then has 15 days to call the meeting
Redemptions
Redemption allows you to receive your share of the net assets of this Fund.
The managing member must receive written request, in form acceptable to it,
no less than ten business days prior to the last day immediately preceding
the desired effective date of redemption. The effective date of redemption
must be the last day of the then current or a future month. The redemption
price will be the net asset value of the membership interests on the
effective date of redemption, which will be the last day of each month for
all redemption requests received and approved for payment by the managing
member no later than ten business days prior to that date. If you wish to
withdraw your redemption request, the managing member must receive written
notice of such withdrawal request prior to the last business day of the month
in which such request was submitted to be considered.
The managing member will try its best to comply with the redemption request
within twenty days following the effective date. However, you should be
aware that the managing member may be unable to timely comply with the
request for the sole reason that there is not enough cash. This may be
because the trading advisors cannot liquidate the positions they have taken,
or because there are contingent claims on Fund assets. Redemption requests
will be handled in the order in which they are received, with preference
given to requests received from members, as opposed to a managing member or
one of its affiliates. If redemption requests received from members exceed
funds available, redemptions will be allocated on a first come first serve
basis or prorated as the managing member determines.
If the managing member notifies you in writing, it may declare additional
redemption dates or cause the Fund to redeem fractions of units of membership
interests.
You will not be charged a redemption fee.
Plan For Sale Of Membership Interests
No NASD Limitation on Sales Commissions
This offering is made in compliance with an exemption to Rule 2810 granted in
the discretion of the staff of the National Association of Securities
Dealers.
No Sales to Discretionary Accounts
There will be no sales to discretionary accounts without the prior specific
written approval of the customer.
The Selling Agent
We are offering and selling the membership interests through Futures
Investment Company, an Illinois corporation incorporated on December 6, 1983,
its address is 5916 N. 300 West, P.O. Box C, Fremont, Indiana 46737. It was
registered as a fully disclosed broker/dealer registered with the National
Association of Securities Dealers on July 24, 1997 and has been appointed the
principal selling agent. It may, with the consent of the managing member,
also select other broker dealers to sell membership interests. All
membership interests will be sold on a best efforts basis, which means the
selling agents will try, but not guarantee, to sell the membership interests.
Currently, Futures Investment Company principally offers securities and
interests in futures. It has and will continue to participate in offerings
of other commodity pools sponsored by the managing member or other persons or
entities in competition with us.
Mr. Michael Pacult and his spouse, Mrs. Pacult, own Futures Investment
Company. Mr. and Mrs. Pacult are also registered with the National Futures
Association as associated persons and with the National Association of
Securities Dealers, Inc. as registered representatives of Futures Investment
Company. In those capacities, they earn commissions and continuing service
fees on the membership interests they sell and service.
Although we are offering a maximum of $50,000,000 in membership interests
pursuant to this registration statement, the LLC Operating Agreement
authorizes the managing member to determine the amount of membership
interests to be sold. If the Fund is to sell any membership interests in
excess of the $50,000,000, such membership interests must also be registered
with the Securities and Exchange Commission or sold by private offering
pursuant to applicable exemption from registration.
Depository Agreement
All subscriptions accepted by the managing member will be placed in an
account maintained at Star Financial Bank, Angola, IN until the minimum,
$900,000 in face amount of membership interests are sold. If the minimum is
sold, the account will be delivered to the Fund. Interest accrued on your
subscription amount will be used to buy additional membership interests for
you. If the minimum is not sold after twelve months from the date of this
prospectus, the managing member has directed the bank to directly return your
original subscription amount, plus accrued interest, without deduction for
any expenses and fees.
After the sale of the minimum, this offering will continue until the maximum
of $50,000,000 in face amount of membership interests is sold. The managing
member may terminate this offering at any time.
After the sale of the minimum, new members will be admitted to the Fund on
the first business day of the month following the month in which their
subscription documents were accepted. Until they are admitted to the Fund
and assigned membership interests, all cash and subscription documents will
be held in a segregated depository account. No funds, while held in such
account, will be available to pay debts or claims of the Fund or the managing
member.
Cash from subscriptions held in the depository account will be invested in
short-term investments that meet applicable regulatory requirements. These
include United States Treasury Bills or other comparable interest-bearing
instruments that are expected to be liquid, substantially risk-less
instruments, with correspondingly low yields.
There cannot be any assurance that the minimum membership interests will be
sold. The managing member is authorized, in its sole discretion, to
terminate this or any future offering of membership interests without notice.
Subscription Procedure
To purchase membership interests, you must:
* complete and execute a suitability questionnaire and a subscription
agreement (Exhibit D), and
* deliver the executed subscription documents and check to the sales agent.
You should make out the check to "Star Bank for the acct. of TriView Fund".
Your check will then be deposited to the depository account within 24 hours
of receipt.
Under no circumstances should you:
* make payment in cash, or
* make any checks payable to the Fund, the managing member the selling agent
or any of their registered representatives or affiliates.
Subscription Amounts
You must purchase at least $25,000 in membership interests; however, the
managing member may at its sole discretion reduce this to not less than the
regulatory minimum of $5,000. You may make additional investments above
$25,000 in $1,000 increments, but you may not invest more than 10% of your
net worth in the Fund. If you have not provided collectible funds, whether
in the form of a bad check or draft, or otherwise, any membership interests
recorded in our books in your favor shall be cancelled.
Revocation and Acceptance of Subscription
Once you have purchased membership interests, you may revoke your
subscription within five business days after you send it to us, or longer, if
there are Federal or State securities laws which allow you to do so. After
the lapse of five business days from submission, your subscription will be
irrevocable and, thereafter, you must redeem pursuant to the terms of the LLC
Operating Agreement. The membership interests offered to you are subject to
prior sale. The managing member has sole discretion to reject any
subscription, in whole or in part, within five days. If your subscription is
accepted, the managing member will admit you as a member and send you written
confirmation to disclose the number of membership interests purchased within
20 days of the close of business for the month in which you were admitted as
a member.
Investor Suitability
See Suitability Standards on page ii of this prospectus.
Investor Warranties
When you execute and deliver your Subscription Agreement and Power of
Attorney, you are making representations and warranties to the managing
member, the introducing broker, the futures commission merchant and the
selling agent including, but not limited to:
(a) you are of legal age to execute the Subscription Agreement and Power of
Attorney and are legally competent to do so;
(b) you acknowledge that you have received the prospectus, including the LLC
Operating Agreement, prior to subscribing for membership interests;
(c) all information you have given to the managing member or that is set
forth in the Subscription Agreement and Power of Attorney submitted by you is
correct and complete as of the date of submission. Also, if there are any
changes in such information prior to acceptance of your subscription, you
will immediately furnish the revised or corrected information to the managing
member
(d) unless (e) or (f) below apply to you, your subscription is made with your
own funds for your own account and not as trustee, custodian or nominee for
another.
(e) the subscription, if made as custodian for a minor, is a gift you have
made to the minor and is not made with the minor's funds; or, if not a gift,
the representations as to net worth and annual income apply only to such
minor.
(f) if you are subscribing in a representative capacity:
* you have full power and authority to purchase the membership interests and
enter and be bound by the Subscription Agreement and Power of Attorney on
behalf of the entity for which you are purchasing the membership interests,
and
* such entity has full right and power to purchase the membership
interests and enter and be bound by the Subscription Agreement and Power of
Attorney and become a member pursuant to the LLC Operating Agreement attached
as Exhibit A.
The managing member, the introducing broker, the futures commission merchant
and the selling agent may rely upon any of the above representations and
warranties as a defense to any claim made against it.
Legal Matters
Litigation And Claims
Within the past 5 years of the date of this prospectus, there have been no
material administrative, civil or criminal actions against either managing
member, the commodity trading advisors, the futures commission merchant, the
introducing broker, the selling agent, or any principal or affiliate of any
of them. This includes any actions pending, on appeal, concluded,
threatened, or otherwise known to them.
Legal Opinion
The Scott Law Firm, P.A., 940 Northeast 79th Street, Suite A, Miami, FL
33138, wscott@wscottlaw.com, is special securities counsel to advise the Fund
and the managing member with respect to:
* the offering of membership interests
* the preparation of this prospectus
* the legality of the membership interests offered, and
* the classification of the Fund as a partnership for tax purposes.
From time to time, the Fund will also advise the Fund regarding the
maintenance of the Fund's tax status, the legality of any subsequent offers,
and the legality of any transfers by members. The managing member may add,
delete, and change legal counsel to the Fund at any time for any reason. The
managing member has granted the Firm the right to employ other law firms to
help in matters that relate to the sale of membership interests or our
operation
The Firm will not give you or any persons affiliated with you legal advice.
You should seek investment, legal, and tax advice from your own legal counsel
and other professionals of your choice.
Experts
The managing member has employed financial experts to perform services for
the Fund. These experts currently are:
Frank L. Sassetti, & Co., 6611 West North Avenue, Oak Park, IL 60302 is our
accounting and auditing expert, and is responsible for auditing the books and
records of both the Fund and TriView Capital Management, Inc. Frank L.
Sassetti & Co. has audited the financial statements in this prospectus and
prepares our tax returns.
Michael J. Liccar & Co., Certified Public Accountants, 53 West Jackson
Boulevard, Suite 1250, Chicago, Illinois 60604, (312) 922-6600 is another
accounting expert who:
* has established our original books and records
* handles the journal entries and
* prepares the monthly and annual financial statements and statements of
account.
* prepares our K-1s.
The corporate managing member serves as our tax member. The managing member
is required by the rules and regulations of the Commodity Futures Trading
Commission to send you unaudited monthly account statements and annual
financial statements audited by an independent certified public accountant.
The managing member may add, delete and change the experts selected experts
to perform services for the Fund at any time for any reason.
We will send you the unaudited monthly account statements as soon as
practicable after the end of each month, and will send you the audited annual
financial statements within 90 days after the end of each calendar year.
Additional Information
By our managing member, we have filed a registration statement on Form S-1
with the Securities and Exchange Commission under the Securities Act of 1933
to allow us to issue and sell our membership interests.
This prospectus does not contain all of the information in the Form S-1
filing, for example, the Selling Agreement and the futures commission
merchant's Customer Agreements that established the Fund accounts. The
descriptions in this prospectus of these exhibits are summaries. For further
information regarding the Fund and the membership interests offered, you may
inspect and copy, without charge, our complete filings, including this
prospectus, the exhibits and periodic reports, at the public reference
facilities of the Securities and Exchange Commission at 450 Fifth Street, NW,
Washington, D.C. 20549.
Also, the Securities and Exchange Commission offices will send you copies of
all or any part of this filing by mail, upon payment of the prescribed rates.
This prospectus and other electronic filings made through the Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system are publicly available
through the Commission's Internet site, http://www.sec.gov.
In addition, our books and records will be maintained for six years at the
office of the corporate managing member TriView Capital Management, Inc.,
5916 N. 300 west, P.O. Box C, Fremont, IN 46737, (260) 833-1306, with a
duplicate set maintained at the offices of Michael J. Liccar & Co., Certified
Public Accountants, 53 West Jackson Boulevard, Suite 1250, Chicago, Illinois
60604, (312) 922-6600.
You are invited to review any materials available to the managing member
relating to:
* this Fund
* our operations
* this offering
* the commodity experience and trading history of:
* * the commodity trading advisors
* * the managing member
* * the introducing broker
* * the futures commission merchant, and
* * their respective officers, directors and affiliates
* the Advisory Agreements between us and the commodity trading advisors
* the Customer Agreement between us and the futures commission merchant
* the commodity trading advisors' disclosure document
* the forms filed with the National Futures Association for any registered
entity or person related to this Fund, and
* any other matters relating to the laws applicable to this offering or this
Fund.
The officer and staff of the managing member will answer all reasonable
inquiries you may have. All the above materials will be made available at
any mutually convenient location at any reasonable hour after reasonable
prior notice.
The managing member will allow you to obtain any additional information from
third parties necessary to verify any representations or information in this
prospectus and its exhibits, assuming the managing member possesses such
information or has a right to acquire it with reasonable effort and expense.
However, your review is limited by the proprietary and confidential nature of
the commodity trading advisors' trading systems and by the confidentiality of
personal information relating to other investors.
[The balance of this page has been intentionally left blank.]
*****************************************************************************
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
FOR THE PERIOD OCTOBER 1, 2004
(DATE OF INCEPTION) TO OCTOBER 7, 2004
FRANK L. SASSETTI & CO.
CERTIFIED PUBLIC ACCOUNTANTS
To The Shareholders
Triview Global Fund, LLC
Fremont, Indiana
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have audited the accompanying balance
sheet of TRIVIEW GLOBAL FUND, LLC (a development stage company) as of October
7, 2004, and the related statements of operations, members equity and cash
flows for the initial period October 4, 2004 (date of incorporation) through
October 7, 2004. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with
auditing standards of the Public Company Accounting Oversight Board (United
States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatements. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements
referred to above present fairly, in all material respects, the financial
position of TRIVIEW GLOBAL FUND as of October 7, 2004, and the results of
its operations and its cash flows for the initial period October 1, 2004
through October 7, 2004, in conformity with accounting principles generally
accepted in the United States.
/s/ Frank L. Sassetti & Co.
October 8, 2004
Oak Park, Illinois
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
BALANCE SHEET
October 7, 2004
ASSETS
Cash $ 2,000
Reimbursable syndication costs (Note 1) 20,000
Total Assets $ 22,000
LIABILITIES AND MEMBERS' EQUITY
Liabilities -
Due to affiliate (Note 2) $ 20,000
Members' Capital -
Members (1 unit)
Initial capital contribution 1,000
Managing Members (1 unit)
Initial capital contribution 1,000
Total Members' Capital 2,000
Total Liabilites and Members' Equity $ 22,000
The accompanying notes are an integral part of the financial statements.
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
STATEMENT OF OPERATIONS
October 1, 2004 (INCEPTION)
To October 7, 2004
REVENUES $ -
Total Revenues -
EXPENSES -
Total Expenses -
NET LOSS $ -
NET LOSS -
Member unit $ -
Managing Member unit $ -
The accompanying notes are an integral part of the financial statements.
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
STATEMENT OF MEMBERS' EQUITY
October 1, 2004 (INCEPTION)
To October 7, 2004
Total
Members Managing Members Members' Equity
Amount Units Amount Units Amount Units
Initial member
contributions $1,000 1 $1,000 1 $2,000 2
Net gain/loss
Oct 1, 2004
to Oct 7, 2004 - - -
Balance -
Oct 7, 2004 $1,000 1 $1,000 1 $2,000 2
Value per unit at
Oct 7, 2004 $1,000.00
Total membership
units at
Oct 7, 2004 2
The accompanying notes are an integral part of the financial statements.
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
STATEMENT OF CASH FLOWS
October 1, 2004 (INCEPTION)
To October 7, 2004
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ -
Adjustments to reconcile net loss to net
cash used in operating activities- -
Net Cash Used In Operating Activities -
CASH FLOWS FROM FINANCING ACTIVITIES
Initial member contributions 2,000
NET INCREASE IN CASH 2,000
CASH -
Beginning of period -
End of period $ 2,000
The accompanying notes are an integral part of the financial statements.
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 7, 2004
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
Triview Global Fund, LLC (the Company or Fund) was
formed on October 4, 2004 under the laws of the State of Delaware. The Fund
expects to engage in high risk, speculative and hedge trading of futures and
forward contracts, options on futures and forward contracts, and other
instruments selected by the commodity trading advisors (CTA's). However, the
Fund will not commence business until at least $900,000 worth of units of
membership interests (the Units) are sold. The maximum offering is
$50,000,000. Triview Capital Management, Inc. and Michael Pacult are the
Managing Members and commodity pool operators (CPO's) of the Fund. The
initial CTAs are expected to be Forecast Trading Group, LLC, NuWave
Investment Corp, and Adobe Asset Management, LLC, which will have the
authority to trade as much of the Fund's equity as is allocated to it by the
Managing Member. The selling agent is Futures Investment Company (FIC), which
is controlled by Michael Pacult and his wife.
The Company is in the development stage and its
efforts through October 7, 2004 have been principally devoted to
organizational activities.
Regulation - The Fund is a registrant applicant with the Securities and
Exchange Commission (SEC) pursuant to the Securities and Exchange Act of 1934
(the Act). The Fund will be subject to the regulations of the SEC and the
reporting requirements of the Act. The Fund will also be subject to the
regulations of the Commodities Futures Trading Commission (CFTC), an agency
of the U.S. government which regulates most aspects of the commodity futures
industry, the rules of the National Futures Association (NFA) and the
requirements of various commodity exchanges where the Fund executes
transactions. Additionally, the Fund will be subject to the requirements of
futures commission merchants and interbank market makers through which the
Fund trades.
Offering Expenses and Organizational Costs - Contingent upon the sale
of at least $900,000 of Units, offering costs of approximately $55,000 will
be paid from the gross proceeds contributed and charged to the Members'
capital accounts after the thirteenth month of operation of the Fund.
Subject to the above contingency and deferral of payment, organizational
costs are charged to expense as incurred. Through October 7, 2004,
approximately $20,000 in offering costs have been paid by an affiliate.
Registration Costs - Costs incurred for the initial filings with SEC,
CFTC, NFA and the states where the offering is expected to be made are
accumulated, deferred for thirteen months and charged against the Fund.
Recurring registration costs, if any, will be charged to expense as incurred;
provided however, the managing member has the right, but not the obligation,
to defer the charges for those costs to the Fund for thirteen months from the
date they are incurred.
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 7, 2004
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Revenue Recognition - Forward contracts, futures and other investments
are recorded on the trade date and will be reflected in the statement of
operations at the difference between the original contract amount and the
market value on the last business day of the reporting period.
Market value of forward contracts, futures and
other investments is based upon exchange or other applicable closing
quotations related to the specific positions.
Use of Accounting Estimates - The preparation of financial statements
in conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements and reported amounts of revenues and
expenses during the reporting period. Actual results could differ from these
estimates.
Income Taxes - The Fund is not required to provide a provision for
income taxes. Income tax attributes that arise from its operations are passed
directly to the individual Members. The Fund may be subject to state and
local taxes in jurisdictions in which it operates.
Statement of Cash Flows - For purposes of the Statement of Cash Flows,
the Fund will consider only money market funds to be cash equivalents. Net
cash provided by operating activities includes no cash payments for interest
or income taxes as of October 7, 2004.
2. MANAGING MEMBER DUTIES
The responsibilities of the Managing Member, in
addition to directing the trading and investment activity of the Fund,
including suspending all trading, includes executing and filing all necessary
legal documents, statements and certificates of the Fund, retaining
independent public accountants to audit the Fund, employing attorneys to
represent the Fund, reviewing the brokerage commission rates to determine
reasonableness, maintaining the tax status of the Fund as a limited
partnership, maintaining a current list of the names, addresses and numbers
of units owned by each Member and taking such other actions as deemed
necessary or desirable to manage the business of the Company.
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 7, 2004
2. MANAGING MEMBER DUTIES (CONTINUED)
The Corporate Managing Member has contributed $1,000
in cash for deposit to the capital of the Fund for a non-trading Managing
Membership interest in the Company. The Corporate Managing Member and all
other Managing Members' combined contribution to the Managing Member account
in the Fund will, at all times, be equal to or greater than one percent (1%)
of all capital contributions, including the Managing Membership accounts, to
the Fund or at such other level as may be required by law.
If the net unit value of the Company falls to less
than 50% of the greater of the original $1,000 selling price, less
commissions and other charges or such higher value earned through trading,
then the Managing Member will immediately suspend all trading, provide all
Members with notice of the reduction in net unit value and give all Members
the opportunity, for fifteen days after such notice, to redeem Units. No
trading shall commence until after the lapse of such fifteen day period.
3. THE LLC OPERATING AGREEMENT
The LLC Operating Agreement provides, among other
things, that-
Capital Account - A capital account shall be established for each
Member. The initial balance of each Member's capital account shall be the
amount of the initial contributions to the Company.
Monthly Allocations - Any increase or decrease in the Company's net
asset value as of the end of a month shall be credited or charged to the
capital account of each Member in the ratio that the balance of each account
bears to the total balance of all accounts.
Any distribution from profits or Members' capital
will be made solely at the discretion of the Managing Member.
Federal Income Tax Allocations - As of the end of each fiscal year, the
Company's realized capital gain or loss and ordinary income or loss shall be
allocated among the Members, after having given effect to the fees and
expenses of the Fund.
Subscriptions - Investors must submit subscription agreements and funds
at least five business days prior to month end. Subscriptions must be
accepted or rejected by the Managing Member within five business days. The
investor also has five business days to withdraw his subscription. Funds are
deposited into an interest bearing depository account and will be transferred
to the Fund's account on the first business day of the month after the
subscription is accepted. Interest earned on the funds while on deposit at
the depository will accrue to the account of the investor.
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 7, 2004
3. THE LLC OPERATING AGREEMENT (CONTINUED)
Redemptions - A Member may request any or all of his investment be
redeemed at the net asset value as of the end of a month. The written request
must be received by the Managing Member no less than ten business days prior
to a month end. Redemptions will generally be paid within twenty days of the
effective month end. However, in various circumstances due to liquidity, etc.
the Managing Member may be unable to comply with the request on a timely
basis. There are no fees for redemption.
4. FEES
The Fund will be charged the following fees on a monthly basis as of
the commencement of trading.
A monthly management fee of 0.5% (annual rate) and 1% (annual rate)
will be paid to the two CTAs, Nuwave and Forecast, respectively, of the
equity allocated to them to trade. No management fee will be paid to Adobe.
The Fund will pay the Corporate Managing Member a fixed brokerage
commission of 5%, from which the Corporate Managing Member will pay the round
turn commissions to the introducing broker and the futures commission
merchant.
A quarterly incentive fee of 20%, 20% & 25% of "new trading profits"
will be paid to the three CTAs, Nuwave, Forecast and Adobe, respectively, and
a 5% quarterly incentive fee will be paid to the Corporate Managing Member.
"New trading profits" includes all income earned by a CTA and expense
allocated to his activity. In the event that trading produces a loss for a
CTA, no incentive fees will be paid and all losses will be carried over to
the following months until profits from trading exceed the loss. It is
possible for one CTA to be paid an incentive fee during a quarter or a year
when the Fund experienced a loss.
After the Fund commences trading, the Fund will pay the selling agent
who sold the units a 4% continuing service fee during each year the
investment is in the Fund.
The Managing Member has reserved the right to change the management fee
and the incentive fee at its sole discretion. The total incentive fees may be
increased to 27% if the management fee is eliminated. The Fund may also
increase the management fees paid to the CTA's and Managing Member to 6% if
the total incentive fees are decreased to 15%.
TRIVIEW GLOBAL FUND, LLC
(A Development Stage Enterprise)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 7, 2004
5. RELATED PARTY TRANSACTIONS
The sole shareholder of the Corporate Managing Member has made an
initial Member capital contribution in the Fund of $1,000. He is also a joint
owner of FIC, which has temporarily funded the syndication costs incurred by
the Fund to date. Management does not believe that a variable interest
entity relationship exists between FIC, the Corporate Managing Member and the
Fund.
Financial Accounting Standards Board
Interpretation No. 45, Guarantor's Accounting and Disclosure Requirements for
Guarantees, Including Indirect Guarantees of Indebtedness of Others,
identifies certain disclosures to be made by a guarantor in its financial
statements about its obligations under certain guarantees that it has issued.
In the normal course of business, the Fund has provided general
indemnifications to the Managing Member, its CTA and others when they act, in
good faith, in the best interests of the Fund. The Fund is unable to develop
an estimate for future payments resulting from hypothetical claims, but
expects the risk of having to make any payments under these indemnifications
to be remote.
6. CONCENTRATIONS
The Fund will maintain all of its subscription deposits with a
commercial financial institution. In the event of the financial institution's
insolvency, recovery of Fund deposits may be limited to account insurance or
other protection afforded deposits.
*****************************************************************************
TRIVIEW CAPITAL MANAGEMENT, INC.
FINANCIAL STATEMENTS
THE PERIOD SEPTEMBER 30, 2004 (DATE OF INCORPORATION)
TO OCTOBER 7, 2004
FRANK L. SASSETTI & CO.
CERTIFIED PUBLIC ACCOUNTANTS
To: The Shareholders
Triview Capital Management, Inc.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have audited the accompanying balance
sheet of TRIVIEW CAPITAL MANAGEMENT, INC. as of October 7, 2004, and the
related statements of operations and cash flows for the initial period
September 30, 2004 (date of incorporation) through October 7, 2004. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based
on our audit.
We conducted our audit in accordance with the
auditing standards of the Public Company Accounting Oversight Board (United
States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatements. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements
referred to above present fairly, in all material respects, the financial
position of TRIVIEW CAPITAL MANAGEMENT, INC. as of October 7, 2004, and the
results of its operations and its cash flows for the initial period September
30, 2004 through October 7, 2004, in conformity with accounting principles
generally accepted in the United States.
/s/ Frank L. Sassetti & Co.
October 8, 2004
Oak Park, Illinois
TRIVIEW CAPITAL MANAGEMENT, INC.
BALANCE SHEET
OCTOBER 7, 2004
ASSETS
CURRENT ASSETS
Cash $ 2,000
Due from Triview Global Fund 20,000
Investment in Triview Global Fund 1,000
$ 23,000
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES
Advances from stockholders $ 22,000
STOCKHOLDERS' EQUITY
Capital stock 1,000
Total Liabilities and Stockholders' Equity $ 23,000
Purchasers of Units in the Fund will not acquire or otherwise
have any interest in this Company.
The accompanying notes are an integral part of the financial statements.
TRIVIEW CAPITAL MANAGEMENT, INC.
STATEMENTS OF INCOME AND RETAINED EARNINGS
THE PERIOD SEPTEMBER 30, 2004 (DATE OF INCORPORATION)
TO OCTOBER 7, 2004
REVENUES $ -
EXPENSES
Total Expenses -
NET PROFIT/LOSS -
ACCUMULATED GAIN/DEFICIT
Beginning of period -
End of period $ -
Purchasers of Units in the Fund will not acquire or otherwise
have any interest in this Company.
The accompanying notes are an integral part of the financial statements.
TRIVIEW CAPITAL MANAGEMENT, INC.
STATEMENTS OF CASH FLOWS
THE PERIOD SEPTEMBER 30, 2004 (DATE OF INCORPORATION)
TO OCTOBER 7, 2004
CASH FLOWS FROM OPERATING ACTIVITIES
Net gain/loss $ -
Adjustments to reconcile net gain/(loss) to net cash
provided by operating activities -
Changes in operating assets and liabilities -
(Increase) in prepaid expenses (20,000)
Net Cash Used in Operating Activities (20,000)
CASH FLOWS FROM INVESTING ACTIVITIES
Investment in limited liability company (1,000)
Net Cash Used In Investing Activities (1,000)
CASH FLOWS FROM FINANCING ACTIVITIES
Sale of capital stock 1,000
Advance from stockholders 22,000
Net Cash Provided by Financing Activities 23,000
NET INCREASE IN CASH 2,000
Cash at beginning of period -
Cash at end of period $ 2,000
Purchasers of Units in the Fund will not acquire or otherwise
have any interest in this Company.
The accompanying notes are an integral part of the financial statements.
TRIVIEW CAPITAL MANAGEMENT, INC.
NOTES TO FINANCIAL STATEMENTS
THE PERIOD SEPTEMBER 30, 2004 (DATE OF INCORPORATION)
TO OCTOBER 7, 2004
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
TriView Capital Management, Inc. (the Company) was formed primarily to
act as managing member of the TriView Global Fund, LLC (the Fund).
The responsibilities of the Managing Member, in addition to the
selection of trading advisors and other investment activity of the Fund,
include executing and filing all necessary legal documents, statements and
certificates of the Fund, retaining independent public accountants to audit
the Fund, employing attorneys to represent the Fund, reviewing the
brokerage commission rates to determine reasonableness, maintaining the tax
status of the Fund as a limited partnership, maintaining a current list of
the names, addresses and number of units owned by each Member and taking
such other actions as deemed necessary or desirable to manage the business of
the Fund.
Revenue Recognition - After the commencement of trading by the Fund,
the Company will earn fixed brokerage commissions (from which it will pay
commissions to the introducing broker) and incentive fees on "new trading
profits".
Use of Accounting Estimates - The preparation of financial statements
in conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements and reported amounts of revenues and
expenses during the reporting period. Actual results could differ from these
estimates.
Principle of Consolidation - The Company is currently a 50% member in
the Fund. However, this substantial ownership interest is expected to be
temporary since the Fund intends to solicit over $1,000,000 in membership
interests which will reduce the Company's investment to a fractional
ownership interest. In addition, to date, the Fund has no revenue and has
incurred no expenses. Considering the temporary nature of this substantial
ownership interest, the financial records of the Fund and the Company have
not been consolidated.
Statement of Cash Flows - Net cash provided by operating activities
includes no cash payments for interest nor income taxes for the initial
period from September 30, 2004 through October 7, 2004.
Purchasers of Units in the Fund will not acquire or otherwise
have any interest in this Company.
TRIVIEW CAPITAL MANAGEMENT, INC.
NOTES TO FINANCIAL STATEMENTS
THE PERIOD SEPTEMBER 30, 2004 (DATE OF INCORPORATION)
TO OCTOBER 7, 2004
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Income tax status- For Federal income tax purposes, the Company elected
S-Corporation status and therefore pays no Federal income taxes, since income
or losses are passed through to the respective shareholders.
2. CORPORATE AFFILIATIONS
The Company's majority shareholder has made an initial member capital
contribution in the Fund of $1,000. He is also a joint owner of Futures
Investment Company, which is the selling agent for the Fund.
The Company purchased an interest as the managing member in the Fund
with an initial investment of $1,000 representing a 50% membership interest
in the Fund. The investment is accounted for under the equity method.
The Company, in its capacity as managing member, has been incurring the
organization and offering costs of Triview Global Fund, LLC, which total an
estimated $45,000 as of October 7, 2004. This receivable is not
collateralized and bears no interest. The Company has agreed to defer
reimbursement of all organization and offering expenses until after the
thirteenth month following the break of escrow which has been defined as the
contribution of at least $900,000 by prospective members to the Fund.
Purchasers of Units in the Fund will not acquire or otherwise
have any interest in this Company.
*****************************************************************************
Part II
Statement of Additional Information
TriView Global Fund, LLC
This Statement of Additional Information is the second part of a two-part
document and should be read in conjunction with Part I of TriView Global
Fund, LLC's disclosure document dated October ____, 2004, both of which are
combined in this single prospectus.
Table of Contents
Appendix I - Commodity Terms And Definitions; State Regulatory
Glossary
Appendix II - Privacy Statement
Exhibit A - LLC Operating Agreement
Exhibit B - Request For Redemption
Exhibit C - Suitability Information
Exhibit D - Subscription Agreement And Power Of Attorney
Exhibit E - Depository Agreement
Exhibit F - Investment Advisory Contract - Forecast Trading Group,
LLC
Exhibit G - Investment Advisory Contract - NuWave Investment Corp
Exhibit H - Investment Advisory Contract - Forecast Trading Group,
LLC
The date of this Statement of Additional Information is October ____, 2004
*******************************************************************************
APPENDIX I
Commodity Terms And Definitions
Identification of the parties and knowledge of various terms and concepts
relating to trading in futures and forward contracts and this offering are
necessary for a potential investor to identify the risks of investment in the
Fund.
1256 Contract. See Taxation - Section 1256 Contract.
Additional Sellers. See definition of Selling Agent.
Associated Persons. The persons registered pursuant to the Commodity
Exchange Act with the futures commission merchant, the introducing broker,
the selling agent, additional sellers, or the introducing broker who are
eligible to service the Fund, the members and to receive continuing service
fees.
Average Price System. The method approved by the Commodity Futures Trading
Commission to permit the commodity trading advisor to place positions sold or
purchased in a block to the numerous accounts managed by the advisor. See
The Commodity Trading Advisor in the main body of the prospectus.
Best Efforts. The term to describe that the party is liable only in the
event they intentionally fail or are grossly negligent in the performance of
the task described.
Broker. See definitions of Futures Commission Merchant and Introducing
Broker.
Capital means cash invested in the Fund by any member and placed at risk for
the business of the Fund.
Commodity Futures trading Commission (CFTC). Commodity Futures Trading
Commission, Three Lafayette Centre,
1155 21st Street, NW, Washington, D.C., 20581. An independent regulatory
commission of the United States government empowered to regulate commodity
futures transactions under the Commodity Exchange Act.
Commodity. Goods, wares, merchandise, produce, currencies, and stock indices
that are traded on and off United States and foreign commercial exchanges.
Traded commodities on U. S. Exchanges are sold according to uniform
established grade standards, in convenient predetermined lots and quantities
such as bushels, pounds or bales, are fungible and, with a few exceptions,
are storable over periods of time.
Commodity Broker. See definitions of Futures Commission Merchant and
Introducing Broker.
Commodity Exchange Act. The statute providing the regulatory scheme for
trading in commodity futures and options contracts in the United States under
the administration of the Commodity Futures Trading Commission which will
provide the opportunity for reparations and other redress for claims.
Commodity Pool Operator (CPO). TriView Capital Management, Inc., 5916 N. 300
West, P. O. Box C, Fremont, IN 46737, (260) 833-1306; and, Mr. Michael
Pacult, 5916 N. 300 West, P.O. Box C, Fremont, IN 46737. A person that
raises capital through the sale of interests in an investment trust, Fund,
corporation, syndicate or similar form of enterprise, and uses that capital
to invest either entirely or partially in futures contracts.
Commodity Trading Advisor (CTA). A person or entity that renders advice
about commodities or about the trading of commodities, as part of a regular
business, for profit. Particularly, those who will be responsible for the
analysis and placement of trades for the Fund.
Continuing Service Fee. A percentage of the Capital of the Fund paid to the
selling agents who will pay their individual associated persons who work for
them who have either sold the membership interests to the members or are
providing services to the managing member or the other members. The Fund
will pay these fees to the principal selling agent, Futures Investment
Company, which will pay a share these fees to Mr. Pacult and his spouse on
Units they sold.
Daily Price Limit. The maximum permitted movement in a single direction
(imposed by an exchange and approved by the CFTC) in the price of a
commodity futures contract for a given commodity that can occur on a
commodity exchange on a given day in relation to the previous day's
settlement price, which is subject to change, from time to time, by the
exchange (with CFTC approval).
Depository Agent and Depository Account. A segregated account held in the
name of the corporate managing member at Star Financial Bank, 2004 N. Wayne
St., Angola, IN 46703 that will hold all the subscription proceeds until such
time as either the minimum is sold, the subscription is accepted or the
offering is terminated and all subscriptions returned by the Bank directly to
the subscriber without deduction for any expenses or fees.
Exchange for Physicals (EFP). A practice whereby positions in futures
contracts may be initiated or liquidated by first executing the transaction
in the appropriate cash market and then arbitraging the position into the
futures market (simultaneously buying the cash position and selling the
futures position, or vice versa).
Fixed Brokerage Commission. The percentage of equity charged to clear the
domestic round turn trades entered for the Fund account at the futures
commission merchant. Actual commissions are charged to the Fund by the
futures commission merchant for trades made on foreign exchanges and forward
markets, if any. The entity charging the fixed commission takes the risk
that the number of trades entered will not exceed the costs on a round turn
basis in exchange for the retention in the difference between the round turn
costs and the percentage charged. The percentage is usually expressed at an
annual rate but paid monthly.
Form K-1. The section of the Federal Income Tax Return filed by the Fund
which identifies the amount of investment in the Fund, the gains and losses
for the tax year, and the amount of such gains and losses reportable by a
member on the member's tax return.
Fully Committed Position. Each commodity trading advisor has an objective
percentage of equity to be placed at risk. In addition, the CFTC places
limits upon the number of positions a single commodity trading advisor may
have in commodities. When either the objective percentage of equity is
placed at risk or the commodity trading advisor reaches the limit in number
of positions, the account or accounts have a fully committed position.
Futures Commission Merchant (FCM). The person that solicits or accepts
orders for the purchase or sale of any commodity for future delivery subject
to the rules of any contract market and in connection with such solicitation
or acceptance of orders, accepts money or other assets to margin, guarantee,
or secure any trades or contracts that result from such orders for a
commission. The corporate managing member is responsible for the negotiation
and payment of the commission to the futures commission merchant.
Futures Contract. A contract providing for (1) the delivery or receipt at a
future date of a specified amount and grade of a traded Commodity at a
specified price and delivery point, or (2) cash settlement of the change in
the value of the contract. The terms of these contracts are standardized for
each commodity traded on each exchange and vary only with respect to price
and delivery months. A futures contract should be distinguished from the
actual physical commodity, which is termed a cash commodity. Trading in
futures contracts involves trading in contracts for future delivery of
commodities and not the buying and selling of particular physical lots of
commodities. A contract to buy or sell may be satisfied either by making or
taking delivery of the commodity and payment or acceptance of the entire
purchase price therefore, or by offsetting the contractual obligation with a
countervailing contract on the same exchange prior to delivery.
Futures Investment Company. The principal selling agent, 5916 N. 300 West,
P.O. Box C, Fremont, IN 46737 Mr. Michael Pacult, one of the managing members
and the principal of TriView Capital Management, Inc., the other managing
member, is a 50% shareholder and one of the principals of Futures Investment
Company. His spouse holds the other 50% and is also a principal.
Gross Profits. The income or loss from all sources, including interest
income and profit and loss from non-trading activities, if any.
Initial Closing. When the minimum offering amount has been raised and funds
from the depository account are released to the Fund for commencement of
trading.
Introducing Broker (IB). Mt. Kemble Futures, 1099 Mt Kemble Ave, Morristown
NJ 07960. An entity that shares the brokerage commissions and is responsible
for introducing trades to the futures commission merchant.
Managing Member. TriView Capital Management, Inc., 5916 N. 300 West, P. O.
Box C, Fremont, IN 46737, (260) 833-1306; and, Mr. Michael Pacult, 5916 N.
300 West, P.O. Box C, Fremont, IN 46737. They manage the fund.
Member. Persons who have invested and admitted as Members without management
authority pursuant to the Fund agreement.
Margin. A good faith deposit with a broker to assure fulfillment of the
terms of a futures contract. Does not limit or define the amount of the risk
or loss.
Margin Call. A demand for additional monies to hold positions taken to
maintain a customer's account in compliance with the requirements of a
particular commodity exchange or a futures commission merchant.
Minimum Offering/Maximum Offering. The Minimum is the amount required to be
invested before trading will commence, and the Maximum is the amount the
managing member establishes as the amount that will terminate this offering.
The managing member my elect to register additional membership interests or
terminate the offering at anytime.
National Association of Securities Dealers (NASD). The self-regulatory
organization responsible for the legal and fair operation of broker dealers,
such as the selling agent and such other matters within the authority granted
to it by the SEC pursuant to the Securities Act of 1933..
National Futures Association (NFA). The self regulatory organization that is
responsible for the legal and fair operation of commodity pool operators,
such as the managing member of the Fund, commodity trading advisors, such as
the trader for the Fund, introducing brokers, such as the introducing broker
for the Fund, for futures commission merchants, such as the clearing broker
of the Fund, and such other matters within the authority granted to it by the
CFTC pursuant to the Commodity Exchange Act.
Net Assets or Net Asset Value means the total assets, including all cash and
cash equivalents (valued at cost plus accrued interest and earned discount),
less total liabilities, of the Fund (each determined on the basis of
generally accepted accounting principles, consistently applied under the
accrual method of accounting or as required by applicable laws, regulations
and rules including those of any authorized self regulatory organization).
See Exhibit A, The LLC Operating Agreement.
Net Unit Value. The net assets of the Fund divided by the total number of
units of membership interests outstanding.
Net Gains. The net profit from all sources.
New Net Profit. The amount of income earned from trading, less the trading
losses and brokerage commissions and fees paid to clear the trades which are
incurred or accrued during the then current accounting period. See Charges
to the Fund.
Net Worth. The excess of total assets over total liabilities as determined
by generally accepted accounting principles. Net worth for a prospective
investor shall be exclusive of home, home furnishings and automobiles.
North American Securities Administrators Association, Inc. (NASAA). The
association of securities administrators of the fifty United States that
establish guidelines and procedures for the review of the sale of securities
within their State. NASAA has established guidelines for the review of
commodity pools, such as the Fund.
Offering Expenses. The expenses required to register units with the
Securities and Exchange Commission, including the preparation of the Form S-1
and the filing with various State securities agencies and the printing of a
Prospectus. North American Securities Administrator Association Guidelines
for Commodity Pools define offering and organizational expenses to include
selling commissions and redemption fees as well; and, for purposes of
limitation, the total expenses cannot exceed 15% of capital raised pursuant
to the offering. The offering expenses do not include the first year's
accounting, legal and other operating costs.
Option Contract. An option contract gives the purchaser the right (as
opposed to the obligation) to acquire (call) or sell (put) a given quantity
of a commodity or a futures contract for a specified period of time at a
specified price to the seller of the option contract. The seller has
unlimited risk of loss while the loss to a buyer of an option is limited to
the amount paid (premium) for the option.
Organizational Expenses. The costs to form the Fund and qualify it to do
business, which were $5,000, that will be repaid by the Fund to the managing
member after the commencement of business.
Members. All managing members and all members in the Fund.
Fund or Limited Liability Company or Commodity Pool or Pool or Fund. The
TriView Global Fund, LLC, evidenced by Exhibit A to this Prospectus, 5916 N.
300 West, P. O. Box C, Fremont, IN 46737, (260) 833-1306.
Position Limits. The Commodity Futures Trading Commission has established
maximum positions that can be taken in some, but not in all commodity
markets, to prevent the corner or control of the price or supply of those
commodities. These maximums are is called position limits.
Principal. Mr. Michael Pacult, one of the managing members and the principal
of the corporate managing member. Mr. Pacult is also a principal of the
principal selling agent, Futures Investment Company.
Round-turn Trade. The initial purchase or sale of a futures or forward
contract and the subsequent offsetting sale or purchase of such contract.
Round-turn Commission. The brokerage cost for the open and close of a trade
in a single contract defined by the exchange or other entity as to contract
size and duration of position.
Redemption. The right of a member to tender its membership interests to the
Fund for surrender at the net unit value. See the LLC Operating Agreement
attached as Exhibit A.
Scale in Positions. In some situations, the positions desired to be taken on
behalf of the Fund and other accounts under management will be too large to
be executed at one time. The trading advisor intends to take positions at
different prices, at different times and allocate those positions on a
ratable basis in accordance with rules established by the Commodity Futures
Trading Commission. This procedure is defined as to scale in positions. The
same definition and rules apply when the trading advisor elects to exit a
position.
Securities and Exchange Commission (SEC). The United States regulatory
authority that supervises the sale of securities, including the Units to be
sold to the public by the Fund.
Selling Agent. The National Association of Securities Dealers member broker
dealer, Futures Investment Company, 5916 N. 300 West, P.O. Box C, Fremont, IN
46737, and any other selling agents selected by it and the managing member to
offer the membership interests for sale. See Plan of Distribution.
Taxation - Section 1256 Contract is defined to mean: (1) any regulated
futures contract (RFC); (2) any foreign currency contract; (3) any non-equity
option; and (4) any dealer equity option.
The term RFC means a futures contract whether it is traded on or subject to
the rules of a national securities exchange which is registered with the
Securities and Exchange Commission, a domestic board of trade designated as a
contract market by the Commodity Futures Trading Commission or any other
board of trade, exchange or other market designated by the Secretary of
Treasury (a qualified board of exchange) and which is marked-to-market to
determine the amount of margin which must be deposited or may be withdrawn.
A "foreign currency contract" is a contract which requires delivery of, or
the settlement of, which depends upon the value of foreign currency which is
currency in which positions are also entered at arm's length at a price
determined by reference to the price in the interbank market. (The Secretary
of Treasury is authorized to issue regulations excluding certain currency
forward contracts from marked-to-market treatment.) A non-equity option means
an option which is treated on a qualified board or exchange and the value of
which is not determined directly or indirectly by reference to any stock (or
group of stocks) or stock index unless there is in effect a designation by
the Commodity Futures Trading Commission of a contract market for a contract
bond or such group of stocks or stock index. A dealer equity option means,
with respect to an options dealer, only a listed option which is an equity
option, is purchased or granted by such options dealer in the normal course
of his activity of dealing in options, and is listed on the qualified board
or exchange on which such options dealer is registered. See Federal Income
Tax Aspects.
Trading Advisor. See Commodity Trading Advisor.
Taking Positions Ahead of the Fund. The allocation of trades by other than
legally accepted methods by the commodity trading advisor or other trader
which favors parties who took the position unfairly.
Trading Matrix. The dollar value used by a commodity trading advisor to
define the number of positions to be taken by the accounts under management.
Some commodity trading advisors have different trading matrices for different
sized accounts. For example, they may trade all accounts over one million in
size differently than accounts under one million.
Unit. The term used to describe the initial $1,000 value and subsequent Net
Asset Value of general and member interests of the Fund.
Unrealized Profit Or Loss. The profit or loss that would be realized on an
open position if it were closed at the current settlement price or the most
recent appropriate quotation as supplied by the broker or bank through which
the transaction is effected.
Underwriter. This term is not applicable to this offering. All sales of
membership interests will be on a best efforts basis. The price of the units
will not be guaranteed, supported or underwritten in any way. See Selling
Agent.
State Regulatory Glossary
The following definitions are supplied by the State securities
administrators responsible for the review of public futures fund (commodity
pool) offerings made to residents of their respective States. They belong to
the North American Securities Administrators Association, Inc. that publish
"Guidelines for the Registration of Commodity Pool Programs", such as the
Fund, which contain these definitions. The following definitions are from
the Guidelines; however, the managing member has made additions to, but no
deletions from, some of these definitions to make them more relevant to the
consideration of an investment in the Fund.
Administrator-The official or agency administering the security laws of
a State. This will usually be the State of residence of the Fund or the
domicile of the broker or brokerage firm which makes the offer or the
residence of the potential investor.
Advisor-Any person who, for any consideration, engages in the business
of advising others, either directly or indirectly, as to the value, purchase,
or sale of commodity contracts or commodity options. This definition applies
to the commodity trading advisors and, when it provides such advice, to the
managing member.
Affiliate-An Affiliate of a Person means: (a) any Person directly or
indirectly owning, controlling or holding with power to vote 10% or more of
the outstanding voting securities of such Person; (b) any Person 10% or more
of whose outstanding voting securities are directly or indirectly owned,
controlled or held with power to vote, by such Person; (c) any Person,
directly or indirectly, controlling, controlled by, or under common control
of such Person; (d) any officer, director or member of such Person; or (e) if
such Person is an officer, director or member, any Person for which such
Person acts in any such capacity. See "Conflicts". This applies to the fact
that Mr. Michael Pacult one of the managing members, is the sole shareholder
and principal of the other managing member and also owns 50% of the
outstanding voting shares and is a principal in the affiliated selling agent.
Capital Contributions-The total investment in a Program by a
Participant or by all Participants, as the case may be. The purchase price
for the membership interests.
Commodity Broker-Any Person who engages in the business of effecting
transactions in commodity contracts for the account of others or for his own
account. See Futures Commission Merchant and Introducing Broker.
Commodity Contract-A contract or option thereon providing for the
delivery or receipt at a future date of a specified amount and grade of a
traded commodity at a specified price and delivery point.
Cross Reference Sheet-A compilation of the Guideline sections,
referenced to the page of the prospectus, Program agreement, or other
exhibits, and justification of any deviation from the Guidelines. This sheet
is used by the State Administrator to review this prospectus.
Net Assets-The total assets, less total liabilities, of the Program
determined on the basis of generally accepted accounting principles. Net
Assets shall include any unrealized profits or losses on open positions, and
any fee or expense including Net Asset fees accruing to the Program.
Net Asset Value Per Program Interest-The Net Assets divided by the
number of Program Interests outstanding.
Net Worth-The excess of total assets over total liabilities are
determined by generally accepted accounting principles. Net Worth shall be
determined exclusive of home, home furnishings and automobiles.
New Trading Profits-The excess, if any, of Net Assets at the end of the
period over Net Assets at the end of the highest previous period or Net
Assets at the date trading commences, whichever is higher, and as further
adjusted to eliminate the effect on Net Assets resulting from new Capital
Contributions, redemptions, or capital distributions, if any, made during the
period decreased by interest or other income, not directly related to trading
activity, earned on Program assets during the period, whether the assets are
held separately or in a margin account. See New Net Profit.
Organizational and Offering Expenses-All expenses incurred by the
Program in connection with and in preparing a Program for registration and
subsequently offering and distributing it to the public, including, but not
limited to, total underwriting and brokerage discounts and commissions
(including fees of the underwriter's attorneys), expenses for printing,
engraving, mailing, salaries of employees while engaged in sales activity,
charges of transfer agents, registrars, trustees, escrow holders,
depositories, experts, expenses of qualification of the sale of its Program
Interest under Federal and State law, including taxes and fees, accountants'
and attorneys' fees.
Participant-The holder of a Program Interest. A Member in the Fund.
Person-Any natural Person, Fund, corporation, association or other
legal entity.
Pit Brokerage Fee-Pit Brokerage Fee shall include floor brokerage,
clearing fees, National Futures Association fees, and exchange fees. The
managing member will pay these fees from the fixed brokerage commissions.
Program-A limited Fund, joint venture, corporation, trust or other
entity formed and operated for the purpose of investing in Commodity
Contracts. The Fund.
Program Broker-A Commodity Broker that effects trades in Commodity
Contracts for the account of a Program. See the Futures Commission Merchant
and Introducing Broker.
Program Interest-A membership interest or other security representing
ownership in a program. The units in the Fund. See Exhibit A, the LLC
Operating Agreement.
Pyramiding-A method of using all or a part of an unrealized profit in a
Commodity Contract position to provide margin for any additional Commodity
Contracts of the same or related commodities.
Sponsor-Any Person directly or indirectly instrumental in organizing a
Program or any Person who will manage or participate in the management of a
Program, including a Commodity Broker who pays any portion of the
Organizational Expenses of the Program, and the managing member(s) and any
other Person who regularly performs or selects the Persons who perform
services for the Program. Sponsor does not include wholly independent third
parties such as attorneys, accountants, and underwriters whose only
compensation is for professional services rendered in connection with the
offering of the membership interests. The term Sponsor shall be deemed to
include its Affiliates.
Valuation Date-The date as of which the Net Assets of the Program are
determined. For the Fund, this will be after the close of business on the
last business day of each month.
Valuation Period-A regular period of time between Valuation Dates. For
the Fund, this will be the close of business for each calendar month and each
calendar year.
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APPENDIX II
PRIVACY STATEMENT
TRIVIEW GLOBAL FUND, LLC
5916 N. 300 WEST
Fremont, Indiana 46737
Telephone: (260) 833-1306
TriView Global Fund, LLC, is committed to safeguarding the confidential
information of its members. We hold all personal information provided to us
in the strictest confidence. These records include all personal information
that we collect from you. We have never disclosed information to
nonaffiliated third parties, except to our selling agents or as directed by
you or required by law and we do not anticipate any change in these
procedures in the future. If we were to change this disclosure policy, we
would not take such action without your written permission.
A full statement of our privacy policy with respect to personal information
about you is as follows:
* We limit employee and independent contractor representatives of ours
access to information in your file to only to those persons who have a
business or professional reason for knowing.
* We limit the delivery of your information to only those nonaffiliated
parties who directly service your account such as selling agents, trustees
and clearing brokers or as directed by you or as required by law. As
examples, Federal regulations permit us to share a limited amount of
information about you with a clearing brokerage firm in order to execute
securities transactions on your behalf and we have implied permission from
you to discuss your financial situation with our selling agents and your
accountant or other professional.
* We use our best efforts to maintain a secure office and computer
environment to ensure that your information is not placed at unreasonable
risk.
* The categories of nonpublic personal information that we collect from a
prospect, member, client and independent third parties depend upon the scope
of the client engagement. It will include information about your personal
finances, information about your health to the extent that it is needed for
the planning process, information about transactions between you and third
parties, and information from consumer reporting agencies.
* For unaffiliated third parties that require access to your personal
information, including financial service companies, consultants, and
auditors, we also require strict confidentiality in our agreements with them
and expect them to keep this information private. Federal and State
regulators also may review firm records as permitted under law.
* We do not provide your personally identifiable information to mailing
list vendors or solicitors for any purpose.
* Personally identifiable information about you will be maintained during
the time you are a member or client, and for the required time thereafter
that such records are required to be maintained by Federal and State
securities laws. After this required period of record retention, all such
information is expected to be destroyed.
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EXHIBIT A TO TRIVIEW GLOBAL FUND DISCLOSURE DOCUMENT
TRIVIEW GLOBAL FUND, LLC
a Delaware Limited Liability Company
OPERATING AGREEMENT
THIS OPERATING AGREEMENT is made and entered into as of the 1st day of
October, 2004, by and among Triview Capital Management, Inc., a Delaware
corporation (the "Corporate Managing Member"), Michael P. Pacult (the
"Individual Managing Member") (collectively the Corporate Managing Member and
the Individual Managing Member are called the "Managing Member"), Michael P.
Pacult (the "Initial Member"), and each other party who shall execute this
Agreement, whether in counterpart, by separate instrument, by grant of a
power of attorney, or otherwise, as members (collectively "Members") to
govern the operation of Triview Global Fund, LLC (the "Company")
RECITALS:
WHEREAS, the Company was formed as a Delaware limited liability company by
the filing of the Certificate of Formation by the Managing Member and Initial
Member;
NOW THEREFORE, the parties hereto agree as follows:
1. Certain Defined Terms
(a) "Disclosure Document": The Disclosure Document, Prospectus, S-1
Registration Statement, and any other form filed with any regulatory agency
relating to the Offering.
(b) "Managing Member": Triview Capital Management, Inc. and Michael P.
Pacult, individually.
(c) "Member": Any bona fide purchaser of Units for value who has been
accepted by the Managing Member, as provided in Paragraph 6 hereof, as a
Member, who takes no active role in the management of the Fund.
(d) "Net Asset Fee Net Asset Value": The Fund's net asset value as of the end
of each month (without deduction for the management fee then being calculated
or for any fees, including incentive fees or payables then accrued or
payable, to the Managing Member) increased by the amount of distributions or
redemptions from the Fund in the month for which the management fee is being
calculated.
(e) "Net Asset Value": The Fund's total assets less total liabilities,
determined according to the following principles, and where no principle
governs, then on the basis of generally accepted accounting principles,
consistently applied:
(1) Net Asset Value shall include any unrealized profit or loss on open
commodity positions (including forward contracts and options on futures
contracts).
(2) All open commodity positions shall be valued at their then market value
which means the settlement price as determined by the exchange on which the
transaction is effected or the most recent appropriate quotation as supplied
by the Clearing Broker or banks through which the transaction is effected.
If there are no trades on the date of the calculation due to operation of
daily price fluctuation limits or due to a closing of the exchange on which
the transaction is executed, the contract shall be valued at the nominal
settlement price as determined by the exchange.
(3) Brokerage commissions on open positions shall be accrued one-half (on a
round-turn basis) as a liability of the Fund in the month in which such
positions are initiated and one-half in the month in which such positions are
closed. Incentive allocations payable to the Managing Member on New Net
Profit, as defined herein, shall be accrued monthly for purposes of
calculating net asset value only.
(f) "Net Asset Value per Unit": Net asset value per Unit means the net asset
value of the Fund's Account divided by the number of units of membership
(including Managing Member) interests then outstanding.
(g) "New Net Profit": New Net Profit (for the purpose of calculating the
monthly incentive allocation to be paid to the Managing Member and the CTAs)
means the excess (if any) of (a) the Fund's net asset value as of the end of
the month, not reduced by the current incentive allocation then being
calculated or management fees over (b) the highest value of the Fund's net
asset value as of the close of business on the last business day of any
previous calendar month (or the commencement of trading if higher), after
reduction for incentive allocations, paid or payable as of such date. New Net
Profit is adjusted for redemptions and distributions since the previous
month-end as of which New Net Profit existed (or the commencement of trading,
as the case may be).
(h) "Offering": The offering of Units in the Fund described in the Disclosure
Document to which a copy of this Agreement is attached as an exhibit.
(i) "Fund": Triview Global Fund, LLC, the limited liability company created
by this Agreement.
(j) "Unit(s)": Membership interests in the Fund, as more fully explained in
Paragraph 6(b) of this Agreement and, in addition (where the context so
requires), the Managing Member's interests in the Fund on a Unit-equivalent
basis.
(k) "Undefined Terms": Certain terms not defined herein are used with the
respective meanings set forth in the Disclosure Document.
2. Formation and Name.
The parties hereby form a limited liability company under the laws and in
accordance with the Limited Liability Company Act of the state of Delaware
(the "Act"). The name of the limited liability company is Triview Global
Fund, LLC. The Managing Member may, without the approval of the Members,
change the name of the Company. The Managing Member shall execute and file a
Certificate of Formation in accordance with the provisions of the Act and
execute, file and record those amendments and other documents as are or
become necessary or advisable in connection with the operation of the Fund,
as it determines. Each Member undertakes to furnish to the Managing Member,
if the Managing Member so requests, a power of attorney which may be filed in
such jurisdictions as the Managing Member may deem appropriate with the
Certificate of Formation and any amendments and any additional information as
is required from the Managing Member to complete any documents, including the
Certificate of Formation, amendments and assumed name certificates, and to
execute and cooperate in the filing, recording and publishing of those
documents at the request of the Managing Member. The Managing Member shall
not be required to deliver the Certificate of Formation or a certificate of
ownership to each Member.
3. Principal Office.
The address of the principal office of the Fund shall be 5916 N. 300 West,
Fremont, IN 46737, or such other place as the Managing Member may designate
from time to time.
4. Business.
The Fund will invest in speculative transactions involving commodity
interests, which include commodity futures and forward contracts and other
interests in commodities (including without limitation option contracts on
futures, and cash commodities and foreign currencies). The objective of the
Fund's business is appreciation of its assets through trading in such
instruments.
5. Term, Special Redemption, Dissolution and Fiscal Year.
(a) Term. The term of the Fund shall end upon the first to occur of the
following: (1) receipt by the Managing Member of an election to dissolve the
Fund at a specified time by a majority of the Members, notice of which is
sent by registered mail to the Managing Member not less than 90 days prior to
the effective date of dissolution; (2) withdrawal, insolvency, bankruptcy,
legal disability or dissolution of both the Corporate and Individual Managing
Member (unless the Fund is continued pursuant to Paragraph 20(c)); (3)
termination of the Fund pursuant to Paragraphs 14 or 17; (4) any event which
shall make it unlawful for the existence of the Fund to be continued or which
requires termination of the Fund.
(b) Special Redemption. As of the close of business of the last day of any
month, should there be a decline in the net asset value per Unit to less than
50% of the initial net asset value per Unit on the date the Fund commenced
trading operations the following will occur: (i) trading in the Fund will be
suspended and all open positions will be closed; (ii) the CTA Advisory
Agreements will be terminated; (iii) with the exception of the Managing
Member, the capital accounts of all existing Fund Members will be redeemed
(following the procedures for redemption defined in this document); (iv)
following the redemption of Fund Member accounts, the Managing Member may, at
its discretion, enter Advisory Agreements with different CTAs, and new
subscriptions may be accepted into the Fund.
(c) Dissolution. Upon the occurrence of an event causing the dissolution of
the Fund, the Fund shall be dissolved and terminated. Upon dissolution, the
Fund will conduct no further business, but will engage only in such
activities as are necessary for the winding up of its affairs and the
distribution of its assets. Upon dissolution, the Fund's open positions will
be closed out in an orderly manner. Dissolution, payment of creditors and of
expenses incurred in the liquidation of the Fund and distribution of the Fund
assets shall be effected as soon as practicable in accordance with the Act,
and the Managing Member and Members (and any assignees) shall share in the
assets of the Fund, if any, pro-rata in accordance with their respective
capital account balances, less any amount owing by such parties (or their
respective assignees) to the Fund.
(d) Fiscal Year. The fiscal year of the Fund shall begin on January 1 of
each year and end on December 31; provided, however, that the first fiscal
year of the Fund shall commence on the date its Certificate of Formation is
filed with the Secretary of State of Delaware and shall end on December 31 of
such year.
6. Capital Contributions; Units of Limited Liability Company Interest.
(a) Capital Contributions. The Corporate Managing Member and Individual
Managing Member have each contributed $1,000 in cash to the capital of the
Fund in order to form the Fund. Upon (i) the admission of Members to the
Fund and (ii) the withdrawal of the Individual Managing Member, which may be
done with 120 days' advance notice to the Members, the Corporate Managing
Member shall maintain an aggregate investment in the Fund equal to the
greater of $25,000 or 1% of the positive capital account balances of all the
Members. The Corporate Managing Member will maintain this required minimum
investment as long as it is the sole Managing Member of the Fund. The
Managing Member may withdraw any interest it may have as a Managing Member in
excess of this requirement and may redeem any portion of its interest as of
the then current month-end on the same terms as any Member, provided that no
reduction will reduce the Managing Member's interest below the minimum
required contribution to the Fund as described above.
(b) Units of Membership Interest. Each Managing Member has contributed $1,000
in cash to the capital of the Fund in order to form the Fund. Interests in
the Fund shall be one class consisting of fifty thousand (50,000) Units of
Limited Liability Company Interests ("Units" or, individually, a "Unit") of
initial value of one thousand dollars $1,000 each. Fractional Units shall be
rounded to the nearest ten-thousandth of a Unit for all purposes of this
Agreement. The Managing Member shall, on behalf of the Fund and in
accordance with the Disclosure Document of the Fund, issue and sell Units to
other qualified persons (including the Managing Member and their
shareholders, directors, officers and employees) pursuant to the Offering.
The Managing Member and its affiliates may purchase additional Units.
The Units are being sold pursuant to the Disclosure Document. The Managing
Member may in the future offer additional Units for sale, and may offer other
classes of Units having different terms.
Each person who subscribes for Units ("Subscriber") shall become a Member in
the Fund at such time as he has: (i) subscribed and had his subscription
accepted by the Managing Member for at least the minimum investment; (ii)
contributed to the capital of the Fund for each Unit for which he has
subscribed; and (iii) become a party to this Agreement by executing and
delivering to the Managing Member such documents as the Managing Member shall
require. Upon the acceptance of a Member, the Initial Member shall withdraw
from the Fund and his initial capital contribution shall be refunded. After
the raise of $900,000 (the "Minimum"), business shall commence and all
proceeds from subscriptions shall then be available for the trading
activities of the Fund and for such other proper Fund purposes as the
Managing Member shall determine. The Managing Member may in its sole
discretion, terminate the offering of Units at any time.
All Units are subscribed for upon receipt by the Managing Member of the
Subscriber's completed and properly executed Subscription Agreement and Power
of Attorney (in the form attached to the Disclosure Document as Exhibit D)
and a check or draft or other good funds of the Subscriber in the full amount
of the Subscriber's subscription; provided however, no Unit(s) will be issued
to a Subscriber until collection in full of the funds represented by the
check or draft. Notwithstanding anything contained in this Agreement to the
contrary, the Managing Member, in its discretion, may reject any subscription
for Units in whole or in part. Each Subscriber agrees to reimburse the Fund
for any expenses or losses incurred in connection with any cancellation of
Units issued to him.
7. Power of Managing Member in Connection with the Offering.
The Managing Member shall have sole and complete discretion to determine the
terms and conditions of the Offering, and the Managing Member is authorized
and directed to do, or cause to be done, all things which it deems necessary,
desirable or appropriate in connection therewith, including, but not limited
to, the execution and filing of all such documents as may be necessary to
comply with the Securities Act of 1933, as amended, and all rules issued
thereunder and to qualify Units for sale under the securities laws of any of
the States of the United States and with any other regulatory agencies and
organizations.
8. Allocation of Profits and Losses.
(a) Maintenance of Capital Accounts. The Fund shall maintain a capital
account for each Member which shall consist of such Member's initial capital
contributions increased by (i) additional capital contributions, and (ii)
such Member's share of profits allocated pursuant to this Paragraph 8, and
decreased by (iii) distributions to each such Member, and (iv) his share of
losses allocated pursuant to this Paragraph 8. The foregoing provision is
intended to comply with Treasury Regulation Section 1.704-1(b) and shall be
interpreted and applied in a manner consistent therewith.
(b) Allocation of Profit and Loss for Federal Income Tax Purposes. As of the
end of each fiscal year, the Fund's income and expense and capital gain or
loss from trading shall be allocated to the Managing Member in an amount
equal to the greater of the Managing Member's percentage interest in the Fund
as determined by its contribution to the Fund or 1% and the balance shall be
allocated to the Members as a class. The profit and loss so allocated to the
Members shall be allocated among them pursuant to the following subparagraphs
for federal income tax purposes. Allocations shall be pro-rata from short-
term capital gain or loss and long-term capital gain or loss and operating
income or loss realized and recognized by the Fund.
(1) Items of ordinary income, such as expense, such as fees, commissions and
administrative expenses, shall be allocated pro-rata among the Members based
on their respective capital accounts as of the end of each month in which the
items of ordinary income and expense accrue.
(2) Capital gain or loss from the Fund trading activities shall be allocated
as follows:
(A) Each capital account shall be increased by the amount of income allocated
to the Member or his assignee pursuant to subparagraph (b)(1) above and
subparagraph (4) below.
(B) Each capital account shall be decreased by the amount of expense or loss
allocated to the Member or his assignee pursuant to subparagraph (b)(1) above
and subparagraph (6) below and by the amount of any distribution received by
the Member or his assignee with respect to the Unit, other than on redemption
of Units.
(C) When a Unit is redeemed, the capital account maintained for such
redeeming Member shall be decreased by the redemption amount.
(3) Capital gain shall be allocated first to each Member who has redeemed a
Unit during the fiscal year up to any excess of the amount received upon
redemption of the Unit over the amount in his capital account attributable to
the redeemed Unit.
(4) Capital gain remaining after the allocation in subparagraph (3) shall be
allocated among all Members in the ratio that each Member's capital account
bears to all Members' capital accounts.
(5) Capital loss shall be allocated first to each Member who has redeemed a
Unit during a fiscal year up to any excess of the amount in his capital
account attributable to the redeemed Unit over the amount received upon
redemption of the Unit.
(6) Capital loss remaining after the allocation in subparagraph (5) shall be
allocated among all Members in the ratio that each Member's capital account
bears to all Members' capital accounts.
(7) Any gain or loss required to be taken into account in accordance with
Section 1256 of the Internal Revenue Code of 1986, as amended (the "Code"),
shall be considered a realized capital gain or loss for purposes of this
Paragraph 8(b). The allocations of capital gain described above shall be
pro-rata between short and long-term capital gain.
(8) The tax allocations prescribed by this Paragraph 8(b) shall be made to
each holder of a Unit, whether or not the holder is a substituted Member.
(9) The foregoing provisions are intended to comply with Treasury Regulation
Section 1.704-1(b) and shall be interpreted and applied in a manner
consistent with such regulation.
(c) Qualified Income Offset. Notwithstanding any other provision in this
Agreement, in the event at the end of any Fund taxable year any Member's
capital account is adjusted for, or such Member is allocated, or there is
distributed to such Member any item described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) in an amount not reasonably expected to
occur at the end of such year, and such treatment creates a deficit balance
in such Member's account, then without regard to any other provision of this
Agreement, such Member shall be allocated all items of income and gain of the
Fund for such year and for all subsequent taxable years of the Fund until
such deficit balance has been eliminated. In the event that any such
unexpected adjustments, allocations or distributions create a deficit balance
in the capital accounts of more than one Member in any Fund taxable year, all
items of income and gain of the Fund for such taxable year and all subsequent
years shall be allocated among all such Members in proportion to their
respective deficit capital account balances until such deficit balances have
been eliminated.
(d) Code Section 754 Election. In case of a transfer (as defined in
Paragraph 14(a)) of all or part of any Member's interest in the Fund, the
Managing Member may but shall not be required to elect, in a timely manner,
pursuant to Section 754 of the Internal Revenue Code of 1986, as amended (the
"Code") and pursuant to corresponding provisions of the applicable state and
local tax laws, to adjust the basis of the assets of the Fund pursuant to
Sections 734 and 743 of the Code.
(e) Expenses. The Managing Member shall advance all organizational and
offering expenses. The Fund shall bear all of its operating liabilities,
costs and expenses. Appropriate reserves may be created, accrued and charged
against net asset value for contingent liabilities, if any, as of the date
any contingent liability becomes known to the Managing Member. Any reserves
shall reduce the net asset value per Unit for all purposes, including
redemption.
(f) Limited Liability of Members. Each Unit, when purchased in accordance
with this Agreement, shall be fully paid and non-assessable. Any provisions
of this Agreement to the contrary notwithstanding, no Member shall be liable
for Fund obligations in excess of the capital contributed by him plus his
share of profits remaining in the Fund, if any, and any other amounts he may
be liable for pursuant to the Act.
(g) Return of Members' Capital Contributions. Except to the extent that a
Member shall have the right to withdraw capital in accordance with the terms
of this Agreement, no Member shall have any right to demand the return of his
Capital Contribution or any profits added thereto, except upon dissolution
and termination of the Fund. In no event shall a Member be entitled to
demand or receive property other than cash.
9. Compensation to the Managing Member and the Commodity Trading Advisor.
(a) The Managing Member shall receive as compensation an incentive fee
allocation of the New Net Profit for each calendar quarter, payable on or
before the 30th day of the end of a calendar quarter. The Managing Member
shall determine this fee.
(b) The Fund shall pay to the CTAs, an annual net asset fee of the month-end
net assets of the equity they trade for the Fund (prior to accruals for such
fees). The Fund shall also pay to the CTAs an incentive fee of the New Net
Profit for each calendar quarter, payable on or before the 30th day of the
end of a calendar quarter. The Managing Member may negotiate and determine
the fees to the CTAs individually.
10. Other Fees.
(a) Brokerage Commissions . The Fund shall pay a brokerage fee fixed at the
rate of 5% per annum of the month-end net assets of the Fund (prior to
accruals for such fees) to the Fund's clearing broker(s) as commissions and
costs for each transaction executed. FCM brokerage fees will not exceed the
industry-wide limitation of 14% annually of the average net assets of the
Fund.
(b) Continuing Service Fees. Approximately 4% per annum of the month-
end net assets of the Fund (monthly) will be paid as a continuing service
fees (also known as trail commissions) to selling agents that are qualified
to receive such commissions, who will perform ongoing services to members of
the Fund.
11. Management of the Fund.
The Managing Member, to the exclusion of all Members, shall determine the
policies of and conduct the business of the Fund. The Managing Member shall
take such actions and enter into such contracts and agreements on behalf of
the Fund as it deems necessary, including, among other things, but not
limited to, the prosecution, defense and settlement of any claim, lawsuit or
arbitration in which the Fund is involved, the power to enter into contracts
with third parties for trading advisory services and brokerage services
(which brokerage services may be performed by entities affiliated with the
Managing Member but only at rates that at least match the lowest rates which
might otherwise be available to the Fund) and with respect to:
(a) Retaining or replacing any futures commission merchant or introducing
broker to act as the Fund's broker, and materially revising the terms or
conditions upon which any futures commission merchant, or introducing broker,
shall be retained;
(b) Appointing any person, including any person affiliated with the Managing
Member, to act as a clearing broker, introducing broker, or otherwise to act
on behalf of the Fund in connection with its transactions in commodity
interests;
(c) Settling claims against the Fund;
(d) Retaining attorneys, accountants and management consultants to assist in
the organization and operation of the Fund. Notwithstanding anything to the
contrary, the Managing Member shall not be able to contract out the fiduciary
obligation owed to Fund Members.
No Member shall be entitled to any salary, draw or other compensation from
the Fund on account of his investment in the Fund. The Managing Member shall
have sole discretion in determining what distributions of profits and income,
if any, shall be made to the Members (subject to the allocation provisions of
this Agreement), shall execute various documents on behalf of the Fund and
the Members pursuant to powers of attorney and shall supervise the
liquidation of the Fund if any event causing termination of the Fund occurs.
In the event the Managing Member has been removed or becomes insolvent or
bankrupt, the majority in interest of the Members may propose and approve of,
by a majority vote, a representative to supervise the liquidation of the
Fund. In order to facilitate the foregoing, each Member shall execute a
special power of attorney as described in Paragraph 16.
The Managing Member may cause the Fund to directly buy, sell, hold or
otherwise acquire or dispose of commodity interests, including futures
contracts and options traded on exchanges or otherwise, arbitrage positions,
repurchase agreements and other assets. The Managing Member, on behalf of
the Fund, is authorized to enter Advisory Agreements with independent CTAs so
they may, on behalf of the Fund, buy, sell, hold or otherwise acquire or
dispose of commodity interests, including futures contracts and options
traded on exchanges or otherwise, arbitrage positions, repurchase agreements
and other assets. The Managing Member may engage, and compensate on behalf
of the Fund from funds of the Fund, persons, firms or corporations, including
the Managing Member and any affiliated person or entity, as in its sole
judgment it shall deem advisable for the conduct and operation of the
business of the Fund. Any net asset fees paid will not exceed 6% of such net
assets annually. The Managing Member is specifically authorized to enter into
a clearing agreement, and any other agreement which the Managing Member deems
necessary or advisable, and each Member consents to the terms of those
agreements (including, in particular, the fees set forth therein).
The Managing Member may subdivide or combine the Units in its discretion,
provided that no subdivision or combination shall affect the aggregate net
asset value of any Member's interest in the Fund.
The Managing Member has a fiduciary responsibility with respect to
safekeeping of the Fund's assets regardless of whether those assets are in
its immediate possession. The Managing Member may keep portions or all of the
Fund's assets on deposit with the Fund's commodity or clearing brokers, the
entities with which it trades in the forward markets, or any financial
institution. The Managing Member shall not permit another to employ those
assets in any manner other than for the exclusive benefit of the Fund.
The Managing Member shall exercise good faith in carrying out its duties and
exercising its powers in regard to, or behalf of, the Fund, and shall devote
such time and efforts to the furtherance of the business of the Fund as it,
in its sole discretion, deems reasonably necessary and appropriate.
No Member, other than the Managing Member, its agents or affiliates, shall
take part in the management, control, administration or the business of the
Fund or transact any business for the Fund, and no Member shall have power to
sign for or bind the Fund.
The Managing Member shall keep and retain, at the principal office of the
Fund, such books and records relating to the business of the Fund as are
required by the Act, by state securities administrators and the Commodity
Exchange Act, as amended, and the rules and regulations promulgated
thereunder.
The Managing Member may engage in other business activities and shall not be
required to refrain from any other activity nor forego any profits, fees or
other compensation from any such activity, including any activity as a
futures commission merchant, commodity broker, a commodity pool operator or a
commodity trading advisor of additional commodity pools organized to trade in
security or commodity interests.
The Managing Member will not allow loans to be made by the Fund to the
Managing Member or any related person; will not receive any rebates or
giveups nor participate in any reciprocal business arrangements; will not
allow any interest entered into by the Fund to exceed a term of one year; and
will not allow the Fund to engage in using all or a part of an unrealized
profit in a commodity contract position to provide a margin for any
additional commodity contracts of the same or related commodities.
With exception to the fees described herein, the Managing Member will not
utilize Fund funds as compensating balances for its benefit.
12. Trading Policies and Limitations.
The Fund shall be subject to the following trading policies and limitations
set forth in the Disclosure Document. The Fund will conform in all respects
to the rules, regulations and guidelines of the commodity exchanges on which
its trades are executed.
13. Audits and Reports to Members; Fund Records.
The Fund's books shall be audited annually by an independent certified public
accountant. The Managing Member shall, on behalf of the Fund, send to each
person who was a Member at any time during the fiscal year then ended (i)
within 90 days after the close of each fiscal year, certified financial
statements (including a balance sheet and statement of income) of the Fund
for the fiscal year then ended and (ii) within 75 days after the close of
each fiscal year, such tax information as is necessary for a Member to
complete his federal income tax return. The Managing Member, on behalf of
the Fund, shall also send to each Member any other annual and monthly
information which the CFTC may by regulation require. The Managing Member
shall be responsible for and shall cause the preparation of monthly and
annual reports to Members. The Managing Member is authorized to expend Fund
funds and to utilize the services of employees of the Managing Member, or any
of its affiliates, to provide the foregoing information and to notify the
Members of other information as the Managing Member may deem appropriate.
Proper books of account and records relating to the Fund's business shall be
made and kept by the Managing Member at its office as required by state
securities administrators and by the Commodity Exchange Act and the rules and
regulations promulgated thereunder, including balance sheets as of the end of
the Fund's fiscal year and statements of income, members equity and cash
flows for the year end; a statement showing total fees, compensation;
brokerage commissions and expenses paid by the Fund, segregated by type and
stated both in aggregate dollar terms and as a percentage of net assets; the
average round turn rate for the fiscal year shall be computed within the
scope of the annual audit; and a calculation of the net assets of the fund
daily, as well as the net asset value per unit. The Managing Member shall
also maintain a current list of the full name and last known address of each
Member, separately identifying the Managing Member and the Members in
alphabetical order, and setting forth the amount of cash and a description
and statement of the agreed value of any property or other services
contributed by each Member and which each Member has agreed to contribute in
the future, and the date on which each became a Member. Members or their
duly authorized representatives may inspect, copy or receive by mail (upon
payment of reasonable reproduction costs and mailing costs) such books and
records during normal business hours at the principal office of the Managing
Member provided that the Member gives the Managing Member reasonable notice
and represents, in writing, that the list will not be used for commercial
purposes. The Managing Member will preserve all Fund records for at least
six (6) years.
14. Assignability of Units; Redemption of Units; Suspension of Trading in
Certain Events; Automatic Termination of the Fund.
(a) Assignability of Units. As used in this Agreement, the term "assignment"
or "assign" shall include any assignment, transfer, mortgage, pledge, gift or
hypothecation.
(1) General Restrictions on Transferability. Units held by a Member may be
assigned only as permitted by law and by the provisions of this Paragraph
14(a). Neither the Fund nor the Members shall be bound by any assignment,
nor shall the Fund recognize any assignee as a Unit holder for any purpose,
until a counterpart of the instrument of assignment, executed and
acknowledged by the parties thereto, is delivered to the Fund.
(2) Permissible Transfers. Subject to Paragraph 14(a)(1) above, no Unit
holder shall assign all or any part of his Units, whether voluntarily or by
operation of law, or at judicial sale or otherwise, to any person; except
that a Unit holder may assign (but may not substitute the assignee as a
substituted Member in his place) all or a portion of his Units to any person
or entity upon written notice to the Managing Member provided that the
Managing Member, in its discretion, consents to such transfer. The Managing
Member shall withhold such consent only if, in the opinion of counsel
designated by the Managing Member, such transfer would more likely than not
result in the termination of the Fund (within the meaning of Section 708(b)
of the Code) or the termination of its status as a partnership thus causing
it to be taxable as a corporation (within the meaning of Section 7704 of the
Code).
(3) Substitution of Members. No assignee of all or part of the Units of any
Member shall have the right to become a substituted Member except in
conformity with the Act and without affecting the limited liability of
Members and unless and until:
(A) his assignor has stated such intention in the instrument of assignment;
(B) the assignee has executed a counterpart of this Agreement or an
instrument reasonably satisfactory to the Managing Member accepting and
adopting the terms and provisions of this Agreement and has authorized the
Managing Member to act as such assignee's attorneys-in-fact;
(C) in the case of an assignee or transferee who is not otherwise a Member,
the Managing Member determines that the assignment complies with the laws of
the State of Delaware and is in conformity with the provisions of this
Agreement; and,
(D) the Managing Member consents in writing (which consent is in its sole and
absolute discretion) to such person becoming a substituted Member. The
Managing Member shall withhold such consent only if, in the opinion of
counsel designated by the Managing Member, such substitution would more
likely than not result in the termination of the Fund (within the meaning of
Section 708(b) of the Code) or the termination of its status as a partnership
thus causing it to be taxable as a corporation (within the meaning of Section
7704 of the Code).
(4) No transfer may be made where, after the transfer, either the transferee
or the transferor holds less than the minimum number of units equivalent to
an initial minimum purchase, except for transfers by gift, inheritance,
intrafamily transfers, family dissolutions, and transfers to affiliates.
Any necessary amendments to this Agreement or to the Certificate of Formation
reflecting the substitution of Members shall be filed promptly in the Office
of the Secretary of State of the State of Delaware or in any other office
appropriate for such filing pursuant to the Act. The written notice required
by this Paragraph 14 shall specify the name and address of the assignee and
the date of assignment and shall include a statement by the assignee that he
agrees to give the above described written notice to the Managing Member upon
any subsequent assignment. If the Managing Member withholds consent, an
assignee shall not become a substitute Member and shall not have any of the
rights of a Member, except that the assignee shall be entitled to receive
that share of capital or profits and shall have the right of redemption to
which his assignor would otherwise have been entitled. An assigning Member
shall remain liable to the Fund as provided in the Act regardless of whether
his assignee becomes a substituted Member. No assignment, transfer or
disposition of Units shall be effective against the Fund or the Managing
Member until the first day of the month succeeding the month in which the
Managing Member receives notice of such assignment, transfer or disposition.
The Managing Member may, in its discretion, waive receipt of the above
described notice or waive any defect therein.
(b) Redemption of Units. A Member may request in writing ("Request for
Redemption") to withdraw from the Fund part or all of his capital
contribution and undistributed profits. Any such withdrawal is herein
referred to as a "Redemption."
All Requests for Redemption must specify the name and address of the
redeeming Member and the amount of Units sought to be redeemed. The
effective date of Redemption (the "Redemption Date") shall be the close of
business on the last business day of the then current month; provided that
the Managing Member shall be in receipt of the written request on or before
the day prior to the close of business of the last business day of the then
current month. Each member shall be notified within 10 days after the second
to last business day of the month if their interests have been redeemed.
Payment shall be made to the Member requesting Redemption within twenty (20)
days following the Redemption Date. If the Managing Member has not been in
receipt of a Request for Redemption prior the close of business on or before
the day prior to the last business day of the then current month, the
Redemption Date for such Unit or Units may, in the Managing Member's
discretion, be the close of business on the last business day of the
immediately following month. Any Request for Redemption shall be mailed or
delivered to the office of the Managing Member. A Request for Redemption may
be revoked prior to the Redemption Date by signed written instruction to the
Managing Member. The Managing Member may also, in its discretion, declare
additional Redemption dates for some or all of the Units. Each member shall
be notified within 10 days after the second to last business day of the month
if their interests have been redeemed. Redemption of any Unit will be based
on the net asset value per Unit, calculated as of the close of business (as
determined by the Managing Member) on the Redemption Date. The Fund's
positions in security and commodity interests will be liquidated to the
extent necessary to effect redemptions.
There will be no redemption fee.
Upon the Managing Member's reasonable conclusion, based on applicable
regulations or controlling precedent, that the Fund's assets are "plan
assets" as defined by the Department of Labor or otherwise, the Fund may call
Units owned by IRAs or certain other qualified retirement plans at the net
asset value per Unit of Units so held as of the close of business on the date
of the call.
In addition to the limits and conditions as set forth above, the right to
obtain Redemption shall be contingent upon the Fund's having property
sufficient to discharge its liabilities on the date of Redemption. If the
Managing Member determines that permitting the number of Redemptions sought
would be detrimental to the tax status of the Fund, it may restrict the
number of Redemptions to be permitted, and shall select by lot so many
Redemptions as will not, in its sole discretion, impair the Fund's tax
status. Under special circumstances, including, but not limited to, the
inability to liquidate positions in security or commodity interests as of or
following the Redemption Date, default or delay in payments due to the Fund
from commodity brokers, banks or other persons, the Fund may in turn delay
payment to persons requesting Redemption of Units of the proportionate part
of net asset value represented by the sums that are the subject to such
default or delay. In addition, if, in the Managing Member's sole discretion,
it determines Redemptions would impair the Fund's ability to meet its
objectives, the Managing Member may temporarily suspend the amount of Units
to be redeemed in any month.
(c) Automatic Termination of the Fund. The Fund will automatically
terminate, as herein provided, if its net asset value per Unit declines to
less than 50% of the initial net asset value per Unit, as of the last
business day of any month, on the date the Fund commenced trading operations.
Such termination shall occur within a reasonable period of time following the
date the valuation of the net asset value per Unit, as of the last business
day of the month, is made. The Members shall be notified of such termination
within seven business days from the date the valuation of the net asset value
per Unit, as of the last business day of the month, is made. Upon
termination, the Fund's open positions will be closed out in an orderly
manner.
15. Admission of Additional Members.
Pursuant to Paragraph 14, the Managing Member may consent to and admit any
assignee of Units as a substituted Member or may admit additional Members
pursuant to Paragraph 6.
Additional or substitute Managing Members may be admitted to the Fund
pursuant to Paragraph 20(c). Upon the admission of any substitute or
additional Managing Member or Managing Members, this Agreement shall be
amended (and each Member consents to such amendment) so that the provisions
of this Agreement shall apply to such Managing Member or Managing Members in
the same manner as now applicable to the Managing Member, to the extent
practicable.
16. Special Power of Attorney.
Each Member, in connection with his investment in the Fund, understands that
by executing this Agreement, whether in counterpart, by separate instrument
or otherwise, he irrevocably constitutes and appoints the Managing Member
with full power of substitution, as its true and lawful attorneys-in-fact,
with full power and authority in its name, place and stead, to admit
additional Members to the Fund, to file, prosecute, defend, settle or
compromise any litigation, claims or arbitrations on behalf of the Fund and
to execute, acknowledge, swear to and deliver (as may be appropriate): (i)
all certificates, conveyances and other instruments (including but not
limited to articles of organization in various jurisdictions, this Agreement
and any amendments hereto, agreements with third parties necessary to carry
out the Fund's business, authorized amendments to each of the foregoing and a
certificate or certificates of assumed name or of doing business under a
fictitious business name) which the Managing Member deems appropriate and in
accordance with the terms of this Agreement (including without limitation, to
reflect the admission of new Members) or advisable to qualify or continue the
Fund as a limited liability company in the jurisdictions in which the Fund
may conduct business or which may be required to be filed by the Fund or the
Member under the laws of any jurisdiction; (ii) all instruments which the
Managing Member deems appropriate to reflect a reorganization or refiling of
the Fund in a different jurisdiction, provided that such reorganization or
refiling does not result in a material change in the rights of the Members;
and (iii) all conveyances and other instruments which the Managing Member
deems appropriate to reflect the dissolution and termination of the Fund.
Each Member understands that the foregoing grant of authority is a special
power of attorney coupled with an interest, is irrevocable, and shall survive
the dissolution of a Member. Each Member agrees to be bound by any
representation made by the Managing Member and by any successor thereto,
acting in good faith pursuant to such Power of Attorney, and each Member
hereby waives any and all defenses which may be available to contest, negate
or disaffirm the action of the Managing Member, and any successor thereto,
taken in good faith under such Power of Attorney. In addition to this Power
of Attorney, each Member agrees to execute a special Power of Attorney on a
document separate from this Agreement. The form of Power of Attorney to be
executed is included in the Subscription Agreement and Power of Attorney
attached to the Memorandum. In the event of any conflict between this
Agreement and any instruments filed by such attorney pursuant to the Power of
Attorney granted in this Paragraph 16, this Agreement shall control.
17. Withdrawal of a Managing Member and/or Member.
The Fund shall be dissolved and terminated upon the withdrawal, dissolution,
admitted or court decreed insolvency or the removal of both the Corporate and
Individual Managing Member unless the Fund is continued pursuant to the terms
of Paragraph 20(c). In addition, either Managing Member may withdraw from
the Fund at any time upon 120 days prior written notice by first class mail,
postage prepaid, to each Member. If both Managing Members withdraw and a
majority of the remaining Members elect to continue the Fund, the withdrawing
Managing Members shall pay all expenses incurred as a result of their
withdrawal.
A Member will cease to be a Member upon redemption or assignment of all of
such Member's Units. The withdrawal, insolvency or dissolution of a Member
shall not terminate or dissolve the Fund, and a Member, or its representative
shall have no right to withdraw or demand an accounting of the value of the
Member's interest in the Fund except as provided in Paragraph 14. Each Member
(and any assignee of a Member's interest) waives on behalf of itself and its
successors the furnishing of any inventory, accounting or appraisal of the
assets of the Fund and any right to an audit.
18. Indemnification.
(a) By the Fund. The Managing Member, and any affiliates of the Managing
Member engaged in the performance of services on behalf of the Fund, shall be
indemnified for any liability, loss or expense (including attorney's fees,
judgments and amounts paid in settlement) suffered by the Managing Member or
such affiliates and shall have no liability to the Fund or to any Member for
liability or loss suffered by the Fund which arises out of any action or
inaction of the Managing Member or such affiliates if (1) the Managing Member
has determined, in good faith, that such course of conduct was in the best
interests of the Fund and (2) such liability or loss was not the result of
negligence, misconduct or the breach of its fiduciary obligations to the
members by the Managing Member or such affiliates.
Notwithstanding the foregoing, the Managing Member, and any affiliate engaged
in the performance of services on behalf of the Fund, shall not be
indemnified for any liability imposed by judgment, and costs associated
therewith, including attorney's fees, arising from or out of a violation of
state or federal securities laws or rules; provided, however, the Managing
Member and its affiliates shall be indemnified for settlement and related
expenses of lawsuits alleging securities law violations, and for expenses
incurred in successfully defending such lawsuits, provided that a court
either (1) approves the settlement and finds that indemnification of the
settlement and related costs should be made, or (2) approves indemnification
of litigation costs if a successful defense is made, provided, however, that
the Managing Member must apprise the court of the positions of the Securities
and Exchange Commission and other appropriate state securities administrators
with respect to indemnification for securities laws violations before seeking
court approval for indemnification.
Any amounts payable to the Managing Member or its affiliates pursuant to the
foregoing are recoverable only out of the assets of the Fund and not from the
Members. The Fund shall not incur the cost of that portion of liability
insurance which insures the Managing Member and its affiliates for any
liability as to which the Managing Member and its affiliates are prohibited
from being indemnified.
Except with respect to lawsuits involving alleged securities law violations,
any indemnification, unless ordered or expressly permitted by a court, shall
be made by the Fund only upon a determination by independent legal counsel in
a written opinion that the conduct which is the subject matter of a claim,
demand or lawsuit with respect to which indemnification is sought meets the
applicable standard set forth in this Paragraph 18.
Fund funds may be paid to the Managing Member and its affiliates for legal
expenses and other costs incurred as a result of legal action initiated
against the Managing Member or its affiliates are permissible if the
following conditions are satisfied: (1) the legal action relates to the
performance of duties or services by the Managing Member or its affiliates on
behalf of the Fund; (2) the legal action is initiated by a third party who is
not a holder of a Fund interest; (3) the Managing Member or its affiliates
undertake to repay the advanced funds, together with the applicable legal
rate of interest thereon, to the Fund in cases in which they would not be
entitled to indemnification.
The Fund may also indemnify and hold harmless any clearing broker, or other
party with which it does business to the extent their conduct does not
constitute misconduct, negligence, an act or omission due to bad faith, or
failure to act in good faith in the reasonable belief that their actions were
in, or not opposed to, the best interests of the Fund and in accordance with
the Trading Policies and the trading strategies as described in the
Disclosure Document.
(b) By the Members. In the event the Fund is made a party to any claim,
dispute or litigation or otherwise incurs any loss or expense as a result of
or in connection with any Member's (or assignee's) actions unrelated to the
Fund's business, the Member (or assignees, cumulatively) shall indemnify and
reimburse the Fund for all loss and expense incurred, including reasonable
attorney's fees.
In the event the Fund advances funds on behalf of the Managing Member, and
the Managing Member is not entitled to indemnification, the Managing Member
will repay the funds together with applicable legal interest.
19. Designation of Tax Matters Partner.
The Corporate Managing Member is hereby designated as Tax Matters Partner
(pursuant to Code Section 6231(a)(7)). In the event that the Corporate
Managing Member assigns, transfers or conveys its entire interest in the Fund
or resigns or withdraws as a Managing Member pursuant to this Agreement, the
successor Managing Member will be designated Tax Matters Partner. The
Corporate Managing Member, in its sole discretion, will have the power to
appoint any other Member Tax Matters Partner; provided, however, that no
appointment will have the effect of causing the Fund to be classified for
Federal income tax purposes as an association taxable as a corporation or
will have the effect of causing the Fund to be classified as a general
partnership under the laws of Delaware or any jurisdiction in which the Fund
is conducting business. The Fund hereby indemnifies and holds harmless the
Corporate Managing Member from and against any claim, loss, expense,
liability, action or, damage resulting from its acting, or its failure to
take any action, as the Tax Matters Partner, provided that any such action or
failure to act is not due to the fraud, negligence, breach of fiduciary duty,
bad faith or misconduct of the Corporate Managing Member.
(a) Notice. The Tax Matters Partner will notify all Members of the
commencement of any Fund tax audit and of a financial Fund administrative
adjustment, if any, within 14 days of its receipt of such notices from the
Internal Revenue Service (the "Service").
(b) Members Audit Waiver. The Members hereby waive any right to negotiate or
enter into a settlement agreement with the Service in any Fund tax audit
proceeding. All such negotiations will be conducted solely by the Tax
Matters Partner. Any settlement agreement between the Service and a Member,
regarding an adjustment of any Fund item, will be null and void unless such
Member has obtained the prior written consent of the Tax Matters Partner.
(c) Audit Expenses. All expenses incurred by the Tax Matters Partner in
participating in any Fund tax audit or contesting any adjustment proposed by
the Service will be borne by the Fund.
(d) Members Petition Waivers. The Members hereby waive any rights to file a
petition for a readjustment of Fund items pursuant to Code Section 6226,
unless the Tax Matters Partner, in its sole discretion, does not file such a
petition within 90 days of its receipt of a notice of a final Fund
administrative adjustment and unless such petition is filed in the
appropriate Federal District Court in the State of Delaware.
20. Amendments; Meetings.
(a) Amendments with Consent of the Managing Member. If at any time during
the term of the Fund the Managing Member deems it necessary or desirable to
amend this Operating Agreement, it may proceed to do so, provided that the
amendment shall be effective only if embodied in an instrument signed by the
Managing Member and by Members owning more than 70% of the Units then owned
by the Members and if made in accordance with and to the extent permissible
under the Act. The approval of the Members may be obtained by the Managing
Member by means of a written notice to the Members requiring each Member to
respond to the Managing Member in the negative by a specified time or to be
deemed to have approved of the proposed amendment if such negative response
is not received by such specified time. Any supplemental or amendatory
agreement shall be adhered to and have the same effect from and after its
effective date as if the same had originally been embodied in and formed a
part of this Agreement; provided, however, that no supplemental or amendatory
agreement shall, without the consent of all Members, change or alter this
Paragraph 20, extend the term of the Fund, reduce the capital account of any
Member or modify the percentage of profits, losses or distributions to which
any Member is entitled. In addition, reduction of the capital account of any
assignee or modifications of the percentage of profits, losses or
distributions to which an assignee is entitled shall not be affected by
amendment or supplement to this Agreement without the assignee's consent. No
meeting procedure or specified notice period is required in the case of
amendments made with the consent of the Managing Member; it being agreed and
understood that mere receipt of an adequate number of unrevoked consents (or
negative approvals, as provided above) are sufficient. The Managing Member
may amend this Agreement without the consent of the Members in order to:
(i) clarify any inaccuracy, ambiguity or reconcile any inconsistency
(including any inconsistency between this Agreement and the Disclosure
Document);
(ii) add to the representations, duties or obligations of the Managing Member
or surrender any right or power of the Managing Member for the benefit of the
Members;
(iii) delete or add any provision of this Agreement required to be deleted or
added by the staff of the Securities and Exchange Commission or other federal
agency or any state securities official or similar official or in order to
opt to be governed by any amendment or successor statute to the Act;
(iv) change the name of the Fund or the location of the principal place of
business of the Fund;
(v) change this Agreement in any manner that is appropriate or necessary to
qualify or maintain the qualification of the Fund as a limited liability
company in which the Members have limited liability under the laws of any
state or that is appropriate or necessary to ensure that the Fund will not be
treated as an association taxable as a corporation for federal income tax
purposes;
(vi) change this Agreement in any manner that does not adversely affect the
Members in any material respect or that is required or contemplated by other
provisions of this Agreement;
(vii) make any amendment that is appropriate or necessary, in the opinion of
the Managing Member, to conform this Agreement to any requirement of law or
to prevent the Fund or the Managing Member or its directors or officers from
in any manner being subjected to the provisions of the Investment Company Act
of 1940, as amended, the Investment Advisors Act of 1940, as amended, or
"plan asset" regulations adopted under the Employee Retirement Income
Security Act of 1974, as amended, regardless of whether substantially similar
to plan asset regulations currently applied or proposed by the United States
Department of Labor;
(viii) make any other amendment similar to the foregoing; provided, that no
such amendment will be adverse to the interests of the Members;
(ix) amend this Agreement to effect the interest of the allocations proposed
herein to the maximum extent possible in the event of a change in the
Internal Revenue Code or the interpretations thereof affecting such
allocations; or
(x) make any amendment necessary so that Fund income not be deemed to
constitute "unrelated business taxable income" under the Internal Revenue
Code.
(b) Meetings. Upon receipt of a written request, signed by Members owning at
least 10% of the Units then owned by Members, that a meeting of the Fund be
called to consider any matter which the Members may vote upon pursuant to
this Agreement, the Managing Member shall, by written notice to each Member
of record mailed within fifteen (15) days after receipt by the Managing
Member of such request, call a meeting of the Fund. The meeting shall be
held at least thirty (30) but not more than sixty (60) days after the mailing
of the notice, and the notice shall specify the date of, a reasonable place
and time for, and the purposes of the meeting.
(c) Amendments and Actions without Consent of the Managing Member. At any
meeting called by the Managing Member or pursuant to Paragraph 20(b), upon
the affirmative vote (which may be in person or by proxy) of the majority of
the units then owned by the Members, the following actions may be taken,
irrespective of whether the Managing Member concurs:
(i) this Agreement may be amended in accordance with and only to the extent
permissible under the Act;
(ii) the Fund may be dissolved;
(iii) the Managing Member may be removed and replaced;
(iv) a new Managing Member or Managing Members may (to the extent permitted
by the Act) be elected if the Managing Member ceases to be a Managing Member;
(v) the sale of all or substantially all of the assets of the Fund may be
approved; and
(vi) any contracts with the Managing Member or any of its affiliates may be
terminated on sixty (60) days notice without penalty. If the Managing Member
is removed or withdraws from the Fund, its interest shall be valued on a
Unit-equivalent basis and immediately redeemed.
In the event of a removal or withdrawal of the Managing Member and there is
no remaining Managing Member, the Members may unanimously agree in writing to
continue the business of the Fund and appoint one or more Managing Members
within 90 days of such withdrawal.
(d) In the event the Fund is required to comply with Regulation 14A under the
Security Exchange Act of 1934 (the proxy rules) or any successor regulation,
the foregoing time periods specified in this Paragraph 20 may be altered by
the Managing Member so as not to conflict therewith.
21. Governing Law.
The validity and construction of this Agreement shall be determined and
governed by the laws of the State of Delaware, without regard to conflict of
laws principles. This Agreement is intended to qualify Members for limited
liability as provided for under Delaware law, and all of the provisions of
this Agreement shall be construed in the light of such intention.
22. Miscellaneous.
(a) Priority Among Members. No Member shall be entitled to any priority or
preference over any other Member in regard to the affairs of the Fund, except
to the extent that this Agreement may be deemed to establish a priority or
preference.
(b) Notices. All notices under this Agreement shall be in writing and,
except as set forth in the following sentence, shall be effective upon
personal delivery, or if sent by first class mail, postage prepaid addressed
to the last known address of the party to whom the notice is to be given,
upon the deposit of the notice in the United States mail. Requests for
Redemption and notice of assignment of Units or any interest therein shall be
effective upon receipt by the Managing Member.
(c) Binding Effect. This Agreement shall inure to and be binding upon all of
the parties, their successors and assigns, custodians, heirs and personal
representatives. For purposes of determining the rights of any Member or
assignee, the Fund and the Managing Member may rely upon the Fund records as
to who are Members and assignees and all Members and assignees agree that
their rights shall be determined and that they shall be bound thereby,
including all rights which they may have under Paragraphs 14 to 20 hereof.
(d) Captions. Captions in no way define, limit, extend or describe the scope
of this Agreement nor the effect of any of its provisions.
(e) Invalidity or Unenforceability. If any provision of this Agreement, or
the application of such provision to any person or circumstance, shall be
held invalid or unenforceable, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those to
which it is held invalid or unenforceable, shall not be affected thereby.
(f) Code or Treasury Regulations. Each and every time reference is made in
this Agreement to a section of the Code or Treasury Regulations, such
reference shall be deemed to apply to such section of the Code or Treasury
Regulations as in effect on the date hereof or as the same may be amended
from time to time.
(g) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which shall constitute
one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement, as of the day
and year first above written, in multiple counterparts, which when taken
together, shall constitute one and the same instrument.
Corporate Managing Member &
Commodity Pool Operator: Initial Member:
TRIVIEW CAPITAL MANAGEMENT, INC.
____________________________ ________________________
Michael P. Pacult Michael P. Pacult
President
TRIVIEW GLOBAL FUND, LLC TRIVIEW GLOBAL FUND, LLC
By: TRIVIEW CAPITAL MANAGEMENT, INC.
Corporate Managing Member
By: ________________________ ________________________
Michael P. Pacult Michael P. Pacult
President Individual Managing Member
*******************************************************************************
EXHIBIT B TO TRIVIEW GLOBAL FUND DISCLOSURE DOCUMENT
TRIVIVEW GLOBAL FUND, LLC
REQUEST FOR REDEMPTION
To: TriView Capital Management, Inc.
Managing Member ____________________________
5916 N. 300 West Our Social Security Number or
P. O. Drawer C Taxpayer ID Number
Fremont, IN 46737
Dear Managing Member:
The undersigned hereby requests redemption ("Redemption"), as defined in
and subject to all the terms and conditions disclosed in the Offering
Circular (the "Prospectus") delivered to the undersigned at the time of our
purchase of membership interests (the "Units") in TriView Global Fund, LLC,
(the "Fund"), of _______________Units (insert the number of Units to be
Redeemed). This Redemption request must be received by you no later than ten
(10) business days prior to the last business day of the month in with the
Redemption is to occur. Once this Redemption request is approved and
accepted by you as Managing Member, it will be paid at the Net Asset Value
per Unit, as described in the Prospectus, as of the close of business at the
end of the month following such approval.
The undersigned hereby represents and warrants that the undersigned is
the true, lawful and beneficial owner of the Units to which this Request is
made with full power and authority to request Redemption of such Units.
Such Units are not subject to any pledge or otherwise encumbered.
United States Taxable Members Only - Under penalty of perjury, the
undersigned hereby certifies that the Social Security Number or Taxpayer ID
Number indicated on this Request for Redemption is the undersigned's true,
cared and complete Social Security Number or Taxpayer ID Number and that the
undersigned is not subject to backup withholding under the provisions of
section 3406(a)(1)(C) of the Internal Revenue Code.
Non United States Members Only - Under penalty of perjury, the undersigned
hereby certifies that (a) the undersigned is not a citizen or resident of the
United States or (b) (in the case of an investor which is not an individual)
the investor is not a United States corporation, partnership, estate or
trust.
SIGNATURE(S) MUST BE IDENTICAL TO NAME(S) IN WHICH UNITS ARE REGISTERED
Please forward a fund check for the Redemption proceeds to the undersigned
at:
_________________________________________________________________________
Name Street City, State and Zip Code
Entity Member Individual Member(s)
______________________________ ________________________________
(Name of Entity) (Signature of Member)
By: _________________________ ________________________________
(Authorized corporate officer, partner, (Signature of Member)
custodian or trustee)
_____________________________
(Title)
*******************************************************************************
EXHIBIT C TO TRIVIEW GLOBAL FUND DISCLOSURE DOCUMENT
TRIVIEW GLOBAL FUND, LLC
SUBSCRIPTION REQUIREMENTS
By executing the Subscription Agreement and Power of Attorney for TriView
Global Fund, LLC (the "Fund"), each purchaser ("Purchaser") of Membership
Interests (the "Units") in the Fund irrevocably subscribes for Units at a
price equal to the Net Asset Value per Unit as of the end of the month in
which the subscription is accepted as described in the Fund's Offering
Circular dated October ___, 2004 (the "Prospectus"). The minimum
subscription is $25,000, however, it may be lowered to not less than $5,000
by the Managing Member; additional Units may be purchased in multiples of
$1,000. Subscriptions must be accompanied by a check in the full amount of
the subscription and made payable to "EBank for the acct. of TriView Fund".
Purchaser is also delivering to the Selling Agent an executed Subscription
Agreement and Power of Attorney (Exhibit D to the Prospectus). Upon
acceptance of Purchaser's Subscription Agreement and Power of Attorney
Purchaser agrees to contribute Purchaser's subscription to the Fund and to be
bound by the terms of the Fund's LLC Operating Agreement, attached as Exhibit
A to the Prospectus, as amended from time to time pursuant to its terms.
Thereafter, upon the sale of nine hundred thousand ($900,000) of Units, the
Managing Member will direct the release of funds from the depository account
and the commencement of trading by the Fund. Purchaser agrees to reimburse
the Fund and the Managing Member for any expense or loss, including legal
fees and court costs, incurred as a result of the cancellation of Purchaser's
Units due to a failure of Purchaser to deliver good funds in the amount of
the subscription price. By execution of the Subscription Agreement and Power
of Attorney, pursuant to the terms of the offering, Purchaser shall have
executed the LLC Operating Agreement.
As an inducement to the Managing Member to accept this subscription,
Purchaser (for the Purchaser and, if Purchaser is an entity, on behalf of and
with respect to each of Purchaser's shareholders, partners or beneficiaries),
by executing and delivering Purchaser's Subscription Agreement and Power of
Attorney, represents and warrants to the Managing Member, the Commodity
Broker and the Selling Agent who solicited Purchaser's subscription and the
Fund, as follows:
(a) Purchaser is of legal age to execute the Subscription Agreement and
Power of Attorney and is legally competent to do so. Purchaser acknowledges
that Purchaser has received a copy of the Prospectus, including the LLC
Operating Agreement, prior to subscribing for Units.
(b) All information that Purchaser has heretofore furnished to the
Managing Member or that is set forth in the Subscription Agreement and Power
of Attorney submitted by Purchaser is correct and complete as of the date of
such Subscription Agreement and Power of Attorney, and if there should be any
change in such information prior to acceptance of Purchaser's subscription,
Purchaser will immediately furnish such revised or corrected information to
the Managing Member.
(c) Unless (d) or (e) below is applicable, Purchaser's subscription is
made with Purchaser's funds for Purchaser's own account and not as trustee,
custodian or nominee for another.
(d) The subscription, if made as custodian for a minor, is a gift
Purchaser has made to such minor and is not made with such minor's funds or,
if not a gift, the representations as to net worth and annual income set
forth below apply only to such minor.
(e) If Purchaser is subscribing in a representative capacity, Purchaser
has full power and authority to purchase the Units and enter and be bound by
the Subscription Agreement and Power of Attorney on behalf of the entity for
which he is purchasing the Units, and such entity has full right and power to
purchase such Units and enter and be bound by the Subscription Agreement and
Power of Attorney and become a Member pursuant to the LLC Operating Agreement
which is attached to the Prospectus as Exhibit A.
*******************************************************************************
EXHIBIT D TO TRIVIEW GLOBAL FUND DISCLOSURE DOCUMENT
TRIVIEW GLOBAL FUND, LLC
UNITS OF MEMBERSHIP INTEREST
SUBSCRIPTION INSTRUCTIONS
Any person considering subscribing for
Units should carefully read and review the Prospectus.
The Units are speculative and involve a high degree of risk. No person
may invest more than 10% of his or her liquid net worth (exclusive of home,
furnishings and automobiles) in the Fund. No entity-and, in particular, no
ERISA plan-may invest more than 10% of its liquid net worth (readily
marketable securities) in the Fund. If a purchaser is allowed to purchase
less than $25,000 in Units, then the purchaser must have a minimum annual
gross income of $45,000 and a minimum net worth of $45,000 or, in the
alternative, a minimum net worth of $150,000.
A Subscription Agreement and Power of Attorney Signature Page (the
"Signature Page") is attached to these Subscription Instructions and the
following Subscription Agreement and Power of Attorney. The Signature Page is
the document which you must execute if you wish to subscribe for Units. One
copy of such Signature Page should be retained by you for your records and
the others delivered to your Registered Representative.
FILL IN ALL OF THE INFORMATION ON THE ATTACHED SIGNATURE PAGE, USING
BLACK INK ONLY, AS FOLLOWS
Item 1 - Enter the dollar amount (no cents) of the purchase.
Items 2 - 7 - Enter the Social Security Number or Taxpayer ID
Number and check the appropriate box to indicate the type of individual
ownership desired or of the entity that is subscribing. In the case of joint
ownership, either Social Security Number may be used.
The Signature Page is self-explanatory for most ownership types; however,
the following specific instructions are provided for certain of the ownership
types identified on the Signature Page:
Trusts-Enter the trust's name on Line 3 and the trustee's name on Line 4,
followed by "Ttee." If applicable, use Line 7 also for the custodian's name.
Be sure to furnish the Taxpayer ID Number of the trust.
Custodian Under Uniform Gifts to Minors Act-Complete Line 3 with the name of
minor followed by "UGMA." On Line 7, enter the custodian's name followed by
"Custodian." Be sure to furnish the minor's Social Security Number.
Partnership or Corporation-The partnership's or corporation's name is
required on Line 4. Enter a partner's or officer's name on Line 4. Be sure to
furnish the Taxpayer ID Number of the partnership or corporation. A
subscriber who is not an individual must provide a copy of documents
evidencing the authority of such entity to invest in the Partnership.
Item 8 - The investor(s) must execute the Subscription Agreement
and Power of Attorney Signature Page and review the representations relating
to backup withholding tax or non-resident alien status underneath the
signature and telephone number lines in Item 8.
Item 9 - Registered Representative must complete.
The Selling Agent's copy of the Subscription Agreement and Power of Attorney
Signature Page may be required to be retained in the Branch Office.
TRIVIEW GLOBAL FUND, LLC
UNITS OF MEMBERSHIP INTEREST
BY EXECUTING THIS SUBSCRIPTION AGREEMENT AND POWER OF ATTORNEY
SUBSCRIBERS ARE NOT WAIVING ANY RIGHTS UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES
EXCHANGE ACT OF 1934
SUBSCRIPTION AGREEMENT AND
POWER OF ATTORNEY
To: TriView Capital Management, Inc.
Managing Member ____________________________
5916 N. 300 West, P. O. Drawer C Our Social Security Number or
Fremont, IN 46737 Taxpayer ID Number
Dear Managing Member:
1. Subscription For Units. I hereby subscribe for the number of Membership
Units ("Units") in TriView Global Fund, LLC (the "Fund") set forth below
(minimum $25,000) in the Subscription Agreement and Power of Attorney
Signature Page, at a price per Unit as set forth in the Fund disclosure
document dated October ___, 2004, (the "Prospectus"). I have completed and
executed a Subscription Agreement and Power of Attorney Signature Page in the
form attached hereto as Exhibit "D", and delivered the executed Subscription
Documents to the Sales Agent and executed a check made payable to "Star Bank
for the acct. of TriView Fund" to be delivered by the Sales Agent to the
Depository Agent within 24 hours after receipt for deposit to the Depository
Account. The Managing Member may, in its sole and absolute discretion,
accept or reject this subscription, in whole or in part. If this
subscription is accepted, I understand subscribers will earn additional Units
in lieu of interest earned on the undersigned's subscription during any
period of time, if any, such subscription is held in escrow. If this
subscription is rejected, all funds remitted by the undersigned will be
returned, together with any interest earned from the depository account, if
any.
2. Representations and Warranties of Subscriber. I have received, read, and
understand the prospectus dated October ___, 2004. I understand that by
submitting this Subscription Agreement and Power of Attorney I am making the
representations and warranties set forth in "Exhibit C - Subscription
Requirements" contained in the Prospectus, including, without limitation,
representations and warranties relating to my net worth and annual income.
Additionally, I understand that my broker/dealer account application will be
forwarded to the Managing Member to review my suitability for this
investment.
3. Power of Attorney. In connection with my acceptance of an Interest in the
Fund, I do hereby irrevocably constitute and appoint the Managing Member, and
its successors and assigns, as my true and lawful Attorney-in-Fact, with full
power of substitution, in my name, place and stead, to (i) file, prosecute,
defend, settle or compromise litigation, claims or arbitration on behalf of
the Fund; and, (ii) make, execute, sign, acknowledge, swear to, deliver,
record and file any documents or instruments which may be considered
necessary or desirable by the Managing Member to carry out fully the
provisions of the LLC Operating Agreement of the Fund, which is attached as
Exhibit A to the Prospectus, including, without limitation, the execution of
the said Agreement itself and by effecting all amendments permitted by the
terms thereof. The Power of Attorney granted hereby shall be deemed to be
coupled with an interest and shall be irrevocable and shall survive, and
shall not be affected by, my subsequent death, incapacity, disability,
insolvency or dissolution or any delivery by me of an assignment of the whole
or any portion of my interest in the Fund.
4. Irrevocability; Governing Law. You may revoke your subscription for five
business days after you send it to us (the "Revocation Period"). After the
lapse of five business days from submission, your subscription will be
irrevocable. The Units offered to you are subject to prior sale. I hereby
acknowledge and agree that after the Revocation Period I am not entitled to
cancel, terminate or revoke this subscription or any of my agreements
hereunder and that this subscription and such agreements shall survive my
death or disability. This Subscription Agreement and Power of Attorney shall
be governed by and interpreted in accordance with the laws of the State of
Delaware.
5. Suitability and Acceptance of Risks. In addition to the suitability
requirements set forth in Exhibit C, I represent and warrant to the Managing
Member and Selling Agent that (i) I have the capacity of understanding the
fundamental aspects of the Fund (or, if I do not have such fundamental
understanding, I have so advised the Selling Agent of such fact); and, (ii) I
understand the fundamental risks and possible financial hazards of an
investment in the Fund (disclosed in the Prospectus under "Risk Factors"
identified on the face page, in the Summary, and described in the Prospectus
at page 6), including, but not limited to, the lack of liquidity of my
investment in the Fund, the management and control by the Managing Member,
and the tax consequences of the investment.
TRIVIEW GLOBAL FUND, LLC
Units of Membership Interests
Subscription Agreement and Power of Attorney
Signature Page
The investor named below, by execution and delivery of this Subscription
Agreement and Power of Attorney, by payment of the purchase price for
Membership Interests (the "Units") in TriView Global Fund, LLC (the "Fund"),
and by enclosing a check payable to "Star Bank for the acct. of TriView
Fund", hereby subscribes for the purchase of Units, at a price per Unit as
set forth in the Prospectus.
The named investor further, by signature below, acknowledges (i) receipt and
that he has read the Prospectus of the Fund dated October___, 2004; (ii) that
such Prospectus includes the Fund's LLC Operating Agreement, the Subscription
Requirements, and the Subscription Agreement and Power of Attorney set forth
therein, the terms of which govern the investment in the Units being
subscribed for hereby; (iii) that this subscription may be revoked within
five business days after submission; and, (iv) after the lapse of five
business days from submission, this subscription will be irrevocable.
By my signature below, I represent that I satisfy the requirements relating
to net worth and annual income as set forth in Exhibit C to the Prospectus.
1) Total $ Amount __________________ (minimum of $25,000, unless lowered to
less than $25,000 but not less than $5,000 by the Managing Member; $1,000
minimum for investors making an additional investment)
2) Social Security Number _____-___-_____
Taxpayer ID # _____-___-_____
Taxable Investors (check one):
O Individual Ownership
O Trust other than a Grantor or Revocable Trust
O Joint Tenants with Right of Survivorship
O Estate
O UGMA/UTMA (Minor)
O Tenants in Common
O Community Property
O Partnership
O Corporation
O Grantor or Other Revocable Trust
Non-Taxable Investors (check one):
O IRA
O Profit Sharing
O IRA Rollover
O Defined Benefit
O Pension
O Other (specify)
O SEP
3) Investor's Name _________________________________________________________
4) _________________________________________________________________________
Additional Information (for Estates, Trusts, Partnerships and Corporations)
5) Resident Address of Investor
_________________________________________________________________________
Street (P.O. Box not acceptable) City State Zip Code
6) Mailing Address(if different)
_________________________________________________________________________
Street City State Zip Code
7) Custodian Name and Mailing Address
_________________________________________________________________________
Name Street (P.O. Box not acceptable) City State Zip Code
Signature(s) - do not sign without familiarizing yourself with the
information in the Prospectus, including: (i) the fundamental risks and
financial hazards of this investment, including the risk of losing your
entire investment; (ii) that the Fund is the first client account to trade in
the TriView Global Fund portfolio; (iii) the Fund's substantial charges; (iv)
the Fund's highly leveraged trading activities; (v) the lack of liquidity of
the Units; (vi) the existence of actual and potential conflicts of interest
in the structure and operation of the Fund; (vii) that Members may not take
part in the management of the Fund; and (viii) the tax consequences of the
Fund.
8) INVESTOR(S) MUST SIGN
X_________________________________________________________
Signature of Investor Date Telephone No.
X_________________________________________________________
Signature of Joint Investor (if any) Date
Investor must sign individually, or pursuant to a power of attorney;
provided, however, that such power of attorney has not been granted to a
registered representative of a Selling Agent.
Executing and delivering this Subscription Agreement and Power of Attorney
shall in no respect be deemed to constitute a waiver of any rights under the
Securities Act of 1933 or under the Securities Exchange Act of 1934.
UNITED STATES INVESTORS ONLY
I have checked the following box if I am subject to backup withholding under
the provisions of Section 3406(a)(1)(C) of the Internal Revenue Code: 0.
Under the penalties of perjury, by signature above I hereby certify that the
Social Security Number or Taxpayer ID Number set forth in Item 2 above is my
true, correct and complete Social Security Number of Taxpayer ID Number and
that the information given in the immediately preceding sentence is true,
correct and complete.
NON-UNITED STATES INVESTORS ONLY
Under the penalties of perjury, by signature above, I hereby certify that (a)
I am not a citizen or resident of the United States or (b) (in the case of an
investor which is not an individual) the investor is not a United States
corporation, partnership, estate or trust: 0.
9) REGISTERED REPRESENTATIVE MUST SIGN
I hereby certify that I have informed the investor of all pertinent facts
relating to the: risks; tax consequences; liquidity and marketability;
management; and control of the Managing Owner with respect to an investment
in the Units, as set forth in the Prospectus. I have also informed the
investor of the unlikelihood of a public trading market developing for the
Units. I do not have discretionary authority over the account of the
investor.
I have reasonable grounds to believe, based on information obtained from the
investor concerning his/her investment objectives, other investments,
financial situation and needs and any other information known by me, that an
investment in the Fund is suitable for such investor in light of his/her
financial position, net worth and other suitability characteristics.
The Registered Representative MUST sign below in order to substantiate
compliance with Article III, Section 34 of the NASD's Rules of Fair Practice.
X__________________________________________________________
Registered Representative Signature Date
X__________________________________________________________
Office Manager Signature Date
(if required by Selling Agent procedures)
10) REGISTERED REPRESENTATIVE
Name:
Address:
Tel. Number:
Registered Representative Number:
11) SELLING AGENT
Name: Futures Investment Company
Address: 5916 N. 300 West
Fremont, IN 46737
Tel. Number: (260) 833-1306
*******************************************************************************
EXHIBIT E TO TRIVIEW GLOBAL FUND DISCLOSURE DOCUMENT
DEPOSITORY AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the ___ day
of October, 2004, is by and among Triview Global Fund, LLC, (the "Fund"),
Triview Capital Management, Inc., 5916 N. 300 West, P. O. Box, C, Fremont, IN
46737, (the "Managing Member"); Futures Investment Company, an Illinois
corporation, 5916 N. 300 West, P. O. Box, C, Fremont, IN 46737 (the "Selling
Agent"), and Star Financial Bank, 2004 N. Wayne St., Angola, IN 46703, a bank
unaffiliated with the Fund, Managing Member or Selling Agent and otherwise
within the definition of Section 3(a)(6) of the 1934 Act (the "Depository").
1. Account Opened. The Managing Member establishes and the Depository
accepts and opens an account that will be invested in short term bank
certificates of deposit titled "Star Bank for the acct. of Triview" to clear
proceeds of sale of units of membership interest (the "Units") in a best
efforts minimum/maximum offering of the Fund promptly delivered by the
Selling Agent from subscribers at an initial offering price of one thousand
dollars ($1,000) to be held in said bank account subject to the terms of this
Agreement until a total face amount of nine hundred thousand dollars
($900,000) of Units (the "Minimum") are sold and, thereafter to continue to
accept proceeds of sale from subscribers sold at the Net Asset Value per Unit
computed after the close of business on the last business day of each month
and transferred to the Fund as of the open on the first business day of each
month. The Selling Agent shall direct all subscribers to make their checks
to "Star Bank for the acct. of Triview." Any instrument not so made out
shall be promptly returned to the subscriber, with notice to the Selling
Agent. The Selling Agent will supply Depository with a list of the
subscribers to identify their name, address and amount of subscription. The
Selling Agent will be solely responsible for the allocation of interest
earned among the subscribers.
2. Sale of Minimum Required. The Selling Agent shall promptly transmit
all checks and wire transfers for the purchase of Units directly to the
Depository. At the time of delivery of the proceeds to the Depository, the
Selling Agent shall provide the Depository with the name and address of the
subscriber for the Units. Should the Minimum not be sold within twelve
months from the effective date of the Offering established by the Securities
and Exchange Commission (the "Offering Period") or should the offering
terminate for any reason prior to the Offering Period, the Depository shall
promptly return the proceeds to each subscriber plus interest as allocated by
the Managing Member without deduction for costs or expenses from the amounts
paid to the subscribers, and the Depository shall notify the Managing Member
and the Selling Agent of its distribution of the funds. The proceeds
returned to each subscriber shall be free and clear of any and all claims of
the Fund or any of its creditors. The Managing Member is solely responsible
for the allocation of the interest earned to the subscribers. Upon the
receipt of deposits that total $900,000 to the account before the lapse of or
termination of the Offering Period, the Depository shall deliver the proceeds
plus interest by check or account transfer to the Fund and at the end of each
month thereafter, the Depository shall deliver all proceeds plus interest by
check or account transfer to the Fund. In no event will the proceeds be
released to the Fund until the Minimum is received by the Depository in
collected funds. For purposes of this Agreement, the term "collected funds"
shall mean all funds received by the Depository which have cleared normal
banking channels and are in the form of cash.
3. No Creditor's Rights. The Selling Agent and the Managing Member,
individually and on behalf of the Fund agree that they are not entitled to
any funds in the Depository account prior to the sale of the Minimum and no
amounts deposited in the Depository Account shall become the property of or
be subject to the debts of the Selling Agent, Managing Member, Fund or any
other entity or person.
4. Collection Procedure. The Depository is hereby authorized to forward
each check for collection and, upon collection of the proceeds of each check,
deposit the collected proceeds in the account. As an alternative, the
Depository may telephone the bank on which the check is drawn to confirm that
the check has been paid. Any check returned unpaid shall be returned by Star
Bank to the subscriber with notice to the Selling Agent. If the Fund rejects
any subscription for which the Depository has already collected funds, the
Depository shall promptly issue a refund check to the rejected subscriber. If
the Managing Member rejects any subscription for which the Depository has not
yet collected funds but has submitted the subscriber's check for collection,
the Depository shall promptly issue a check in the amount of the subscriber's
check to the rejected subscriber after the Depository has cleared such funds.
If the Depository has not yet submitted a rejected subscriber's check for
collection, the Depository shall promptly remit the subscriber's check
directly to the subscriber.
5. Depository Compensation. As the Depository's total compensation for
the performance of its services, Depository shall receive an aggregate fee
determined by multiplying the total number of checks received from and
issued to subscribers by the Depository by $15.00 (the "Depository Fee").
The Managing Member shall pay the Depository Fee within fifteen (15) days
after the sale of the Minimum and, thereafter, after the close of each month.
Under no circumstances shall the Depository Fee or any indemnification for
any damages incurred by the Depository or any monies whatsoever be paid out
of or chargeable to the subscribers' funds or interest earned while on
deposit in the Depository Account.
6. Depository Liability Limited. Depository shall have no liability
under, or duty to inquire into, the terms and provisions of any other
document or instrument utilized in connection with the Offering, and it is
agreed that the duties of Depository are purely ministerial in nature, and
that Depository shall incur no liability whatsoever under this Agreement,
except for acts or omissions of the Depository involving or constituting
willful misconduct, fraud, gross negligence or bad faith.
7. Depository May Resign. Depository may, at any time, resign hereunder
by giving written notice of its intent to resign to the other parties hereto,
at their respective addresses set forth above, at least ten (10) days prior
to the date specified for such resignation to take effect, and upon the
effective date of such resignation the proceeds, including all accrued
interest, shall be delivered by Depository to the person designated in
writing by the Selling Agent and the Managing Member or a court of competent
jurisdiction, whereupon all of Depository's obligations hereunder shall cease
and terminate. Notwithstanding the foregoing, nothing in this paragraph
releases Depository or relieves it of any of its obligations that existed
prior to the effective date of Depository's resignation including, without
limitation, liability for willful misconduct, fraud, gross negligence or bad
faith. Notwithstanding the foregoing, nothing in this paragraph releases the
Selling Agent or the Managing Member of their obligations under the
Securities and Exchange Act including, but not limited to, Rules 15c2-4 and
10b-9.
8. Depository Indemnification. The Selling Agent and the Managing Member
agree to indemnify, defend and hold Depository harmless from and against any
and all loss, damage, tax, liability and expense that may be incurred by
Depository and arising out of or in connection with its acceptance of
appointment as depository hereunder, including reasonable attorneys' fees and
other legal costs and expenses of defending itself against any claim or
liability in connection with its performance hereunder, except in the case of
willful misconduct, fraud, gross negligence or bad faith on the part of
Depository. Depository may consult with and rely on its attorneys with
respect to any dispute not assumed or defended by the Selling Agent and the
Managing Member and this indemnification shall include all reasonable and
necessary attorneys' fees of Depository in connection with such consultation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
TRIVIEW CAPITAL MANAGEMENT, INC. STAR FINANCIAL BANK
By: ______________________________ By: __________________________
Mr. Michael Pacult Thad Wright
President Vice President
FUTURES INVESTMENT COMPANY TRIVIEW GLOBAL FUND, LLC
By: Triview Capital Management, Inc.
By: ______________________________ By: __________________________
Mr. Michael Pacult Mr. Michael Pacult
President President
*******************************************************************************
EXHIBIT F TO TRIVIEW GLOBAL FUND DISCLOSURE DOCUMENT
INVESTMENT ADVISORY CONTRACT
Forecast Trading Group, LLC
THIS AGREEMENT is made and entered as of this ____ day of October, 2004,
between TriView Global Fund, LLC, (the "Fund") and Forecast Trading Group,
LLC, a New Jersey limited liability company (the "CTA").
WITNESSETH:
In consideration of the agreement of the Fund to use its best efforts to
raise and deposit nine hundred thousand dollars ($900,000), or more, of
equity to Man Financial Inc (the "FCM") to an account to be assigned by the
FCM (the "Account") and the grant of the power of attorney on the standard
form of the FCM to the CTA to permit the CTA to enter trades for the Fund in
the Account and payment of management fees to and the opportunity to earn
incentive fees by the CTA, the parties hereto agree as follows:
1. The Fund shall use its best efforts to raise and deposit in the Account
with the FCM or some other registered futures commission merchant, in U.S.
funds equity, which the CTA agrees to manage pursuant to the terms of this
Agreement. Subsequent deposits and accumulation of profits in the Account,
less withdrawals and losses, shall also be subject to this Agreement. At its
sole discretion, the Fund may add or withdraw funds at any time from the
Account by written request to the FCM with a copy to the CTA.
2. The CTA will cause futures contracts, and when deemed advisable,
options on futures and forward contracts, to be bought and sold on behalf of
the Fund in the Account. The CTA will have the sole authority to issue all
necessary instructions to the FCM to effect trading for the Fund's Account.
All such transactions shall be for the account and risk of the Fund. The CTA
agrees to use its best efforts to exit all futures trades prior to delivery
of any commodity that requires storage or other costs. During the term of
this agreement, the Fund agrees that it will not place orders in the Account
without the prior written consent of the CTA.
3. The CTA's services are not rendered exclusively for the Fund and the
Fund agrees that the CTA is free to continue to provide and offer similar
services to others. The Managing Member may change or add another FCM for
the Account assigned to the CTA at any time upon written direction to the FCM
and the CTA, and the FCM and the CTA agree to effect the transfer and sign
the forms necessary to complete such change or addition, provided such
transfer does not conflict with any prior agreements the CTA has with the
FCM.
4. TriView Capital Management, Inc. (the "Managing Member") shall charge
the Fund a fixed commission of five percent (5%) per year, payable 5/12 of 1%
per month, for trades made on domestic markets. The fixed commission for
domestic trades is for entry and exit from all trades, pit brokerage,
exchange, NFA fees and other clearing expenses arising from the trades placed
by the CTA in the Account. This does not include trades made on foreign
exchanges or forward markets or costs to accept delivery incurred on trades
made on any exchange. Those commissions and costs will be at rates to be
negotiated by the Managing Member with the FCM or other party, as the facts
determine, and charged separately, if at all, to the Fund..
5. The CTA will use its best efforts to obtain an equity run from the
FCM before the opening of business the next trading day. Unless authorized
in writing by the Managing Member, the CTA will use only the equity in the
Account assigned to the CTA by the Managing Member for margins to hold the
positions taken by the CTA. No equity in the Account assigned to the CTA
will be commingled or margined, for any purpose, with any other account at
the FCM. The Managing Member, upon written instruction to the FCM, may
terminate, for any reason, the power of attorney and suspend the trading
authority of the CTA to enter trades with the FCM. In the event of a
termination of the power of attorney, the CTA agrees that the FCM shall
accept no further instructions from the CTA but shall place the Account upon
liquidation only to be handled in written instructions from the Managing
Member to the FCM.
6. The Fund agrees to execute, from time to time, the Acknowledgment of
Receipt of Disclosure Document from the CTA. By signing, the Fund agrees
that it has received and understands and the CTA represents that it has
supplied the most recent copy of the CTA's Risk Disclosure Document. The
CTA will promptly review the Fund offering documents submitted by the Fund to
it, from time to time, and will furnish its consent, in the form requested by
the Fund, to the filing of forms and offering documents with the Federal and
State security and commodity regulators.
7. The Fund agrees to execute the CTA's Managed Account Compensation
Agreement authorizing the CTA to be paid a one percent (1%) annual management
fee, payable monthly, from the Fund Account. The CTA will be paid an
incentive fee of twenty percent (20%), of the New Net Profit earned each
calendar quarter, after recouping actual round turn brokerage commissions
charged by the FCM. New Net Profit is determined after deduction of the
fixed commission; i.e., the CTA must earn back the brokerage commissions
before incentive fees are paid. And, New Net Profit excludes interest earned
on cash and cash equivalents, such as treasury bills. The Fund accountant
will make the incentive fee determination on the close of the last business
day of each quarter and submit his calculations to the CTA and Managing
Member for approval. Once approved, the invoice for the quarterly incentive
fee will be submitted to the futures commission merchant for payment from the
Account.
8. The Fund and the CTA agree that they have or will properly execute all
necessary forms for opening the Account with the FCM; provided, however, any
disputes between the Fund and the CTA will be submitted to arbitration before
a single arbitrator selected by the American Arbitration Association, not the
National Futures Association, and only upon written agreement of the parties
at the time such dispute arises. The terms of this Agreement will supersede,
and in the event of conflicts with any other agreement, the terms of this
Agreement shall control. This Agreement will be governed by the laws of the
State of Massachusetts and any dispute concerning arbitration will be
resolved by a Federal or State court of competent jurisdiction located in
Boston, Massachusetts.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first above written.
TriView Global Fund, LLC Forecast Trading Group, LLC
By: TriView Capital Management, Inc.
Managing Member
__________________________________ _________________________________
Michael Pacult James R. Brunn
President Managing Director
*******************************************************************************
EXHIBIT G TO TRIVIEW GLOBAL FUND DISCLOSURE DOCUMENT
INVESTMENT ADVISORY CONTRACT
NuWave Investment Corp
THIS AGREEMENT is made and entered as of this ____ day of October, 2004,
between TriView Global Fund, LLC, (the "Fund") and NuWave Investment Corp, a
New Jersey corporation (the "CTA").
WITNESSETH:
In consideration of the agreement of the Fund to use its best efforts to
raise and deposit nine hundred thousand dollars ($900,000), or more, of
equity to Man Financial Inc (the "FCM") to an account to be assigned by the
FCM (the "Account") and the grant of the power of attorney on the standard
form of the FCM to the CTA to permit the CTA to enter trades for the Fund in
the Account and payment of management fees to and the opportunity to earn
incentive fees by the CTA, the parties hereto agree as follows:
1. The Fund shall use its best efforts to raise and deposit in the Account
with the FCM or some other registered futures commission merchant, in U.S.
funds equity, which the CTA agrees to manage pursuant to the terms of this
Agreement. Subsequent deposits and accumulation of profits in the Account,
less withdrawals and losses, shall also be subject to this Agreement. At its
sole discretion, the Fund may add or withdraw funds at any time from the
Account by written request to the FCM with a copy to the CTA.
2. The CTA will cause futures contracts, and when deemed advisable,
options on futures and forward contracts, to be bought and sold on behalf of
the Fund in the Account. The CTA will have the sole authority to issue all
necessary instructions to the FCM to effect trading for the Fund's Account.
All such transactions shall be for the account and risk of the Fund. The CTA
agrees to use its best efforts to exit all futures trades prior to delivery
of any commodity that requires storage or other costs. During the term of
this agreement, the Fund agrees that it will not place orders in the Account
without the prior written consent of the CTA.
3. The CTA's services are not rendered exclusively for the Fund and the
Fund agrees that the CTA is free to continue to provide and offer similar
services to others. The Managing Member may change or add another FCM for
the Account assigned to the CTA at any time upon written direction to the FCM
and the CTA, and the FCM and the CTA agree to effect the transfer and sign
the forms necessary to complete such change or addition, provided such
transfer does not conflict with any prior agreements the CTA has with the
FCM.
4. TriView Capital Management, Inc. (the "Managing Member") shall charge
the Fund a fixed commission of five percent (5%) per year, payable 5/12 of 1%
per month, for trades made on domestic markets. The fixed commission for
domestic trades is for entry and exit from all trades, pit brokerage,
exchange, NFA fees and other clearing expenses arising from the trades placed
by the CTA in the Account. This does not include trades made on foreign
exchanges or forward markets or costs to accept delivery incurred on trades
made on any exchange. Those commissions and costs will be at rates to be
negotiated by the Managing Member with the FCM or other party, as the facts
determine, and charged separately, if at all, to the Fund..
5. The CTA will use its best efforts to obtain an equity run from the
FCM before the opening of business the next trading day. Unless authorized
in writing by the Managing Member, the CTA will use only the equity in the
Account assigned to the CTA by the Managing Member for margins to hold the
positions taken by the CTA. No equity in the Account assigned to the CTA
will be commingled or margined, for any purpose, with any other account at
the FCM. The Managing Member, upon written instruction to the FCM, may
terminate, for any reason, the power of attorney and suspend the trading
authority of the CTA to enter trades with the FCM. In the event of a
termination of the power of attorney, the CTA agrees that the FCM shall
accept no further instructions from the CTA but shall place the Account upon
liquidation only to be handled in written instructions from the Managing
Member to the FCM.
6. The Fund agrees to execute, from time to time, the Acknowledgment of
Receipt of Disclosure Document from the CTA. By signing, the Fund agrees
that it has received and understands and the CTA represents that it has
supplied the most recent copy of the CTA's Risk Disclosure Document. The
CTA will promptly review the Fund offering documents submitted by the Fund to
it, from time to time, and will furnish its consent, in the form requested by
the Fund, to the filing of forms and offering documents with the Federal and
State security and commodity regulators.
7. The Fund agrees to execute the CTA's Managed Account Compensation
Agreement authorizing the CTA to be paid a one half percent (1/2%) annual
management fee, payable monthly, from the Fund Account. The CTA will be paid
an incentive fee of twenty percent (20%), of the New Net Profit earned each
calendar quarter, after recouping actual round turn brokerage commissions
charged by the FCM. New Net Profit is determined after deduction of the
fixed commission; i.e., the CTA must earn back the brokerage commissions
before incentive fees are paid. And, New Net Profit excludes interest earned
on cash and cash equivalents, such as treasury bills. The Fund accountant
will make the incentive fee determination on the close of the last business
day of each quarter and submit his calculations to the CTA and Managing
Member for approval. Once approved, the invoice for the quarterly incentive
fee will be submitted to the futures commission merchant for payment from the
Account.
8. The Fund and the CTA agree that they have or will properly execute all
necessary forms for opening the Account with the FCM; provided, however, any
disputes between the Fund and the CTA will be submitted to arbitration before
a single arbitrator selected by the American Arbitration Association, not the
National Futures Association, and only upon written agreement of the parties
at the time such dispute arises. The terms of this Agreement will supersede,
and in the event of conflicts with any other agreement, the terms of this
Agreement shall control. This Agreement will be governed by the laws of the
State of Massachusetts and any dispute concerning arbitration will be
resolved by a Federal or State court of competent jurisdiction located in
Boston, Massachusetts.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first above written.
TriView Global Fund, LLC NuWave Investment Corp
By: TriView Capital Management, Inc.
Managing Member
____________________________________ ____________________________
Michael Pacult Troy Buckner
President Principal
*******************************************************************************
EXHIBIT H TO TRIVIEW GLOBAL FUND DISCLOSURE DOCUMENT
INVESTMENT ADVISORY CONTRACT
Adobe Asset Management, L.L.C.
THIS AGREEMENT is made and entered as of this ____ day of October, 2004,
between TriView Global Fund, LLC, (the "Fund") and Adobe Asset Management,
L.L.C., a Colorado limited liability company (the "CTA").
WITNESSETH:
In consideration of the agreement of the Fund to use its best efforts to
raise and deposit nine hundred thousand dollars ($900,000), or more, of
equity to Man Financial Inc (the "FCM") to an account to be assigned by the
FCM (the "Account") and the grant of the power of attorney on the standard
form of the FCM to the CTA to permit the CTA to enter trades for the Fund in
the Account and payment of management fees to and the opportunity to earn
incentive fees by the CTA, the parties hereto agree as follows:
1. The Fund shall use its best efforts to raise and deposit in the Account
with the FCM or some other registered futures commission merchant, in U.S.
funds equity, which the CTA agrees to manage pursuant to the terms of this
Agreement. Subsequent deposits and accumulation of profits in the Account,
less withdrawals and losses, shall also be subject to this Agreement. At its
sole discretion, the Fund may add or withdraw funds at any time from the
Account by written request to the FCM with a copy to the CTA.
2. The CTA will cause futures contracts, and when deemed advisable,
options on futures and forward contracts, to be bought and sold on behalf of
the Fund in the Account. The CTA will have the sole authority to issue all
necessary instructions to the FCM to effect trading for the Fund's Account.
All such transactions shall be for the account and risk of the Fund. The CTA
agrees to use its best efforts to exit all futures trades prior to delivery
of any commodity that requires storage or other costs. During the term of
this agreement, the Fund agrees that it will not place orders in the Account
without the prior written consent of the CTA.
3. The CTA's services are not rendered exclusively for the Fund and the
Fund agrees that the CTA is free to continue to provide and offer similar
services to others. The Managing Member may change or add another FCM for
the Account assigned to the CTA at any time upon written direction to the FCM
and the CTA, and the FCM and the CTA agree to effect the transfer and sign
the forms necessary to complete such change or addition, provided such
transfer does not conflict with any prior agreements the CTA has with the
FCM.
4. TriView Capital Management, Inc. (the "Managing Member") shall charge
the Fund a fixed commission of five percent (5%) per year, payable 5/12 of 1%
per month, for trades made on domestic markets. The fixed commission for
domestic trades is for entry and exit from all trades, pit brokerage,
exchange, NFA fees and other clearing expenses arising from the trades placed
by the CTA in the Account. This does not include trades made on foreign
exchanges or forward markets or costs to accept delivery incurred on trades
made on any exchange. Those commissions and costs will be at rates to be
negotiated by the Managing Member with the FCM or other party, as the facts
determine, and charged separately, if at all, to the Fund..
5. The CTA will use its best efforts to obtain an equity run from the
FCM before the opening of business the next trading day. Unless authorized
in writing by the Managing Member, the CTA will use only the equity in the
Account assigned to the CTA by the Managing Member for margins to hold the
positions taken by the CTA. No equity in the Account assigned to the CTA
will be commingled or margined, for any purpose, with any other account at
the FCM. The Managing Member, upon written instruction to the FCM, may
terminate, for any reason, the power of attorney and suspend the trading
authority of the CTA to enter trades with the FCM. In the event of a
termination of the power of attorney, the CTA agrees that the FCM shall
accept no further instructions from the CTA but shall place the Account upon
liquidation only to be handled in written instructions from the Managing
Member to the FCM.
6. The Fund agrees to execute, from time to time, the Acknowledgment of
Receipt of Disclosure Document from the CTA. By signing, the Fund agrees
that it has received and understands and the CTA represents that it has
supplied the most recent copy of the CTA's Risk Disclosure Document. The
CTA will promptly review the Fund offering documents submitted by the Fund to
it, from time to time, and will furnish its consent, in the form requested by
the Fund, to the filing of forms and offering documents with the Federal and
State security and commodity regulators.
7. The Fund agrees to execute the CTA's Managed Account Compensation
Agreement authorizing the CTA to be paid an incentive fee of twenty-five
percent (25%), of the New Net Profit earned each calendar quarter, after
recouping actual round turn brokerage commissions charged by the FCM. New
Net Profit is determined after deduction of the fixed commission; i.e., the
CTA must earn back the brokerage commissions before incentive fees are paid.
And, New Net Profit excludes interest earned on cash and cash equivalents,
such as treasury bills. The Fund accountant will make the incentive fee
determination on the close of the last business day of each quarter and
submit his calculations to the CTA and Managing Member for approval. Once
approved, the invoice for the quarterly incentive fee will be submitted to
the futures commission merchant for payment from the Account.
8. The Fund and the CTA agree that they have or will properly execute all
necessary forms for opening the Account with the FCM; provided, however, any
disputes between the Fund and the CTA will be submitted to arbitration before
a single arbitrator selected by the American Arbitration Association, not the
National Futures Association, and only upon written agreement of the parties
at the time such dispute arises. The terms of this Agreement will supersede,
and in the event of conflicts with any other agreement, the terms of this
Agreement shall control. This Agreement will be governed by the laws of the
State of Massachusetts and any dispute concerning arbitration will be
resolved by a Federal or State court of competent jurisdiction located in
Boston, Massachusetts.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first above written.
TriView Global Fund, LLC Adobe Asset Management, L.L.C.
By: TriView Capital Management, Inc.
Managing Member
_____________________________________ _________________________________
Michael Pacult Jaesun Park
President Principal
*******************************************************************************
Dealer Prospectus Delivery Obligation
Until one year from the date of this prospectus, all dealers that effect
transactions in these securities, whether or not participating in this
offering, may be required to deliver a prospectus. This is in addition
to the dealers' obligation, if any, to deliver a prospectus when acting
as underwriters and with respect to their unsold allotments or subscriptions.
[The balance of this page has been intentionally left blank.]
*******************************************************************************
FORM S-1
Registration No. ____________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
(a) The Selling Agreement between Futures Investment Company and the
Registrant contains an indemnification from the Managing Member to the effect
that the disclosures in the Prospectus are in compliance with Rule 10b5 and
otherwise true and complete. This indemnification speaks from the date of
the first offering of the Units through the end of the applicable statute of
limitations. The Registrant has assumed no responsibility for any
indemnification to Futures Investment Company and the Managing Member is
prohibited by the LLC Operating Agreement from receiving indemnification for
breach of any securities laws or for reimbursement for insurance for coverage
for any such claims. See Section 15.4 of the LLC Operating Agreement.
(b) There are no indemnification agreements which are not contained in the
LLC Operating Agreement attached as Exhibit A, the Selling Agreement or the
Clearing Agreement.
(c) The following reflects all expenses in connection with the issuance
and distribution of the securities to be registered, other than underwriting
discounts and commissions:
Expense Cost
Registration fees $ 23,000
Federal taxes 0
States taxes and fees 10,000
Trustees' and transfer agents' fees 0
Costs of printing and engraving 2,000
Legal 10,000
Accounting 10,000
Engineering 0
$55,000
Item 15. Recent Sales of Unregistered Securities. None within three years.
Item 16. Exhibits and Financial Statement Schedules.
The following documents (unless indicated) are filed herewith and made a part
of this Registration Statement:
(a) Exhibits.
Exhibit
Number Description of Document
1.01 Selling Agreement dated October 4, 2004 between the Registrant
and Futures Investment Company, the Selling Agent
2.01 None
3.01 Articles of Incorporation of the Managing Member
3.02 By-Laws of the Managing Member
3.03 Board Resolution of Managing Member to authorize formation of the
Registrant, a Delaware Limited Liability Company
3.04 By-Laws of the Registrant
3.05 LLC Operating Agreement of the Registrant (included as Exhibit A
to the Prospectus)
3.05 Certificate of Formation of the Registrant
4.01 LLC Operating Agreement of the Registrant (included as Exhibit A
to the Prospectus)
5.01 Opinion of The Scott Law Firm, P.A. with respect to the legality
of the Registrant Units
6.01 Not Applicable
7.01 Not Applicable
8.01 Opinion of The Scott Law Firm, P.A. with respect to Federal
income tax consequences
9.01 None
10.01 Form of Advisory Agreement between the Registrant and the
Commodity Trading Advisors (included as Exhibits F, G & H to the Prospectus)
10.02 Form of Subscription Agreement and Power of Attorney (included
as Exhibit D to the Prospectus)
10.03 Depository Agreement among Depository, Underwriter, and the
Registrant (included as Exhibit E to the Prospectus)
11.01 Not Applicable - start-up business
12.01 Not Applicable
13.01 Not Required
14.01 None
15.01 None
16.01 Not Applicable
17.01 Not Required
18.01 Not Required
19.01 Not Required
20.01 Not Required
21.01 None
22.01 Not Required
23.01 Consent of Frank L. Sassetti & Co., Certified Public Accountants
23.02 Consent of The Scott Law Firm, P.A., Legal & Tax Counsel
24.01 None
25.01 None
26.01 None
27.01 Not Applicable
28.01 Not Applicable
(b) Financial Statement Schedules.
No Financial Schedules are required to be filed herewith.
Item 17. Undertakings.
(a) (1) The undersigned registrant hereby undertakes to file, during
any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represents a fundamental: change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each post-
effective amendment that contains a form of prospectus shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) The Managing Member has provided an indemnification to Futures
Investment Company, the best efforts selling agent. The Registrant (issuer)
has not made any indemnification to Futures Investment Company.
Insofar as indemnification for liabilities under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant including, but not limited to, the Managing Member pursuant to
the provisions described in Item 14 above, or otherwise, the Registrant had
been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any such action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
*******************************************************************************
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, in the City of
Fremont in the State of Indiana on this 7th day of October, 2004, Mr. Michael
Pacult, the individual managing member of the Registrant, signed this
Registration Statement; and TriView Capital Management, Inc., the corporate
managing member of the Registrant, has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
TRIVIEW CAPITAL MANAGEMENT, INC. TRIVIEW GLOBAL FUND, LLC
BY TRIVIEW CAPITAL MANAGEMENT, INC.
MANAGING MEMBER
By: /s/ Michael Pacult By: /s/ Michael Pacult
MR. MICHAEL PACULT MR. MICHAEL PACULT
PRESIDENT PRESIDENT
TRIVIEW GLOBAL FUND, LLC
BY MR. MICHAEL PACULT
MANAGING MEMBER
By: /s/ Michael Pacult By: /s/ Michael Pacult
MR. MICHAEL PACULT MR. MICHAEL PACULT
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following person on behalf of TriView
Capital Management, Inc., Managing Member of the Registrant in the capacities
and on the date indicated.
/s/ Michael Pacult
MR. MICHAEL PACULT
PRESIDENT
Date: October 7, 2004
(Being the principal executive officer, the principal financial and
accounting officer and the sole director of TriView Capital Management, Inc.,
Managing Member of the Fund)