THE SCOTT LAW FIRM, P.A.
940 Northeast 79th Street, Suite A
Miami, Florida 33138
(305) 754-3603
facsimile (305) 754-2668
wscott@wscottlaw.com
February 10, 2005
Ms. Karen Garnett
Assistant Director
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: TriView Global Fund, LLC (the "Registrant" and the "Fund")
Registration Statement on Form S-1, Pre-effective Amendment No. 1
File No. 333-119655
Dear Ms. Garnett,
We have reproduced your letter to the Registrant of November 8, 2004,
and have supplied its response immediately following each of the comments.
All changes are reflected in the Issuer's Registration Statement, Pre-
effective Amendment No. 1 filed herewith.
We are available to amplify or clarify any response.
Very truly yours,
/s/ William S. Scott
William Sumner Scott
For the Firm
WSS/lf
cc: TriView Capital Management, Inc.
Managing Member
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
November 8, 2004
DIVISION OF
CORPORATION FINANCE
Mail Stop 04-09
Michael Pacult
Managing Member
TriView Global Fund, LLC
5916 N. 300 West
Fremont, Indiana 46737
Re: TriView Global Fund, LLC Registration Statement on Form S-1 Filed on
October 8, 2004 File No. 333-119655
Dear Mr. Pacult:
We have reviewed your filing and have the following comments. Where
indicated, we think you should revise your document in response to these
comments. If you disagree, we will consider your explanation as to why our
comment is inapplicable or a revision is unnecessary. Please be as detailed
as necessary in your explanation. In some of our comments, we may ask you to
provide us with supplemental information so we may better understand your
disclosure. After reviewing this information, we may or may not raise
additional comments.
Please understand that the purpose of our review process is to assist you in
your compliance with the applicable disclosure requirements and to enhance
the overall disclosure in your filing. We look forward to working with you in
these respects. We welcome any questions you may have about our comments or
any other aspect of our review. Feel free to call us at the telephone numbers
listed at the end of this letter.
For purposes of this comment letter, we refer to the pagination, paragraphs,
sentence and line numbers as displayed by the courtesy copy version of your
Form S-1 filed on October 8,
2004.
General
1. Please provide us with a complete copy of any sales material which
includes all illustrations and other inserts in the form you expect to
distribute to investors in accordance with Release No. 33-6900 and by analogy
to Item 19.D. of Guide 5. We may have further comment after we receive your
materials.
Response: Should the Registrant elect to distribute any sales material other
than the prospectus, it will be submitted to the SEC for review prior to use.
2. The Commission no longer maintains public reference rooms in Chicago or
New York. Please remove the references to these facilities from page i.
Response: We have removed the references.
3. Please paginate the Edgar version of your registration statement.
Response: We have paginated the Edgar version of the pre-effective amendment
no. 1 to the registration statement submitted herewith.
4. Please provide supplementally copies of any graphics, charts, maps,
photographs, and related captions or other artwork including logos that you
intend to use in the prospectus. Such graphics and pictorial representations
should not be included in any preliminary prospectus distributed to
prospective investors prior to the staffs review of those items. For example,
we note your references to graphics regarding trading programs on page 27.
Response: We have removed the reference to the graphic and will not include
the graphic in the prospectus. No other items you describe above are
included either.
5. Please expand your prospectus to include the information required by Item
403 of Regulation S-K, regarding security ownership.
Response: We have added the following disclosure to the Summary section of
the prospectus:
Security ownership of certain beneficial owners
1) Title of class (2) Name and address of beneficial owner (3) Amount and
nature of beneficial ownership (4) Percent of class
Units of Membership Interest TriView Capital Management, Inc., corporate
managing member, 5914 N. 300 West, Fremont, IN 46737 1 Unit of Membership
Interest initially valued at $1,000 50%
Units of Membership Interest Michael P. Pacult, individually, 5914 N. 300
West, Fremont, IN 46737 1 Unit of Membership Interest initially valued at
$1,000 50%
Cover Page
6. It appears that you do not intend to appoint an independent escrow agent
to maintain investor funds prior to achieving the minimum offering. Please
supplementally tell us how you intend to comply with Rules 10b-9 and 15c2-4
of the Exchange Act without appointing an escrow agent. Specifically, tell us
what procedures are in place to ensure that funds will be promptly returned
to investors. Disclose the number of days until escrowed funds are returned
if the minimum offering is not achieved.
Response: The Fund will deposit all subscription proceeds to a segregated
account in Star Bank, an unaffiliated bank, out of control of the general
partner and with no right of withdrawal unless the Fund sells the minimum and
commences business. As the subscriptions are received, the Selling Agent
will promptly deliver the checks and supply Star Bank with a list of names,
addresses, and subscription amounts. In the event the offering is terminated
for any reason before the sale of the minimum, Star Bank will be notified of
the termination and return the subscription amounts directly to the
subscribers within five business days without deductions for any costs or
expenses. The Depository Agreement is provided by Star Bank at no expense to
the Selling Agent. To call the agreement an Escrow Agreement would incur
significant the bank fees with no increase in protection to the subscribers.
We have used language in the Depository Agreement to track the obligations
imposed by SEC rule Section 15(c)(2). We believe the substantive duties
imposed on the Bank are the same as an escrow agreement.
Summary of the Offering
7. We note your third summary risk factor bullet point on page 2. Please
add a brief break-even analysis to the summary section of the prospectus.
Response: We believe the disclosure of the break-even percentage in the
summary risk factors adequately discloses the break even points. In
addition, there is a mandatory statement of each of the charges and fees
against the Fund in the footnotes, which cannot be summarized. To repeat the
above narrative in the break-even table and accompanying notes would be
redundant. We respectfully request that this comment be withdrawn.
8. If you have a web site, please include these web addresses in the
summary. Further, we note your disclosure on page 20 referring to
reimbursement for web site promotion used in connection with the solicitation
and sale of membership interests. Please clarify here and in the "Plan For
Sale of Membership Interests" section as to whether you or your principal
selling agent will maintain websites for this purpose. Further, please detail
whether you intend to allow investors to access your preliminary prospectus
on the Internet. If so, identify the party and the website, describe the
material terms of your agreement, and provide us with a copy of any written
agreement. Provide us also with copies of all information concerning your
company or prospectus that has appeared on their website.
Response: The Registrant does not have a website or an agreement with the
principal selling agent to maintain a website, nor does it intend to allow
investors access to its preliminary prospectus on the Internet. No
information regarding the Registrant or its offering have appeared on any
website. The Registrant will not change these circumstances prior to SEC
review and an effective date for the prospectus.
The Fund, page 1
9. We refer to the fourth bullet point regarding your managing member.
Please revise so that it identifies the fact that the individual managing
member, Michael Pacult, is the sole principal of the corporate managing
member.
Response: We have revised as follows:
* is managed and controlled by TriView Capital Management, Inc., a Delaware
corporation, and Michael Pacult, the sole owner and principal of TriView
Capital, both of which are collectively referred to as the managing member.
Business Objectives, page 2
10. Please revise the third bullet point to provide an example or two of the
"other financial instruments" to which you refer.
Response: We have revised as follows:
* 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, such as financial instruments for investment
in only principal known as strips and contracts for future delivery of
physical securities and commodities.
Summary Risk Factors, page 2
11. Please expand the seventh bullet point of your summary risk factor to
clarify:
* whether continuing service fees may be higher than those charged by
independent third parties;
Response: The continuing service fees of 4% are industry norms. We have
revised as follows:
* the managing member's fees and principal selling agent's continuing
service fees have not been negotiated at arm's length and, therefore, may be
higher than those paid by other commodity pools that compete with this Fund.
* that individual managing member owns half of the principal selling agent;
and
Response: We have revised as follows:
* the individual managing member is the sole principal of the corporate
managing member and is a 50% owner of the affiliated principal selling agent.
* whether the principals may trade in derogation of pool participant
interests.
Response: We have revised as follows:
* the managing member, the commodity trading advisors and their principals
may preferentially trade for their own accounts or for others, but will not
do so to the derogation of pool participant interests.
We note your conflict disclosure at the top of on page 11 and managing member
disclosure on page 24. Provide similar clarification in the more detailed
discussion of risk factors in the body of the prospectus.
Response: We believe the risk factors titled The corporate managing member
of this Fund has no experience and There are conflicts of interest in the
Fund structure that may limit our profits adequately disclose the risks to
which you refer.
12. Refer to the ninth bullet point. Please revise to briefly clarify
whether you have any obligation to initially allocate the offering proceeds
to any specific programs of the three trading advisors identified on page 3.
If so, please provide a summary of these fixed obligations. Alternatively,
state that you have no obligations to these CTAs.
Response: We have revised as follows:
* The managing member may at any time and at 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 managing member has no
obligation initially to allocate the offering proceeds to any of the three
trading advisors identified in this prospectus or to any particular program
of any such advisor.
Charges to the Fund, pages 2-3
13. Please revise the table to disclose the portion and price of the per
round turn shared by introducing broker, Mt. Kemble Futures, that will be
paid by the managing member to the futures commission merchants.
Response: The total brokerage commission paid by the Fund is fully
disclosed. How Mt. Kemble Futures, as introducing broker, and Man Financial
Inc., as futures commission merchant, share in the fees paid by the Fund is
confidential competitive information that is not shared with the Fund. Both
Mt. Kemble and Man Financial are unrelated to the Fund and its Affiliates.
The
Fund requests this comment be withdrawn.
14. We note on page 15 that your managing member will advance the offering
and organizational expenses to the registrant and the registrant will
reimburse this advance. Contrarily, it appears in Note I to the financial
statements, that the obligation to reimburse on a delayed basis for offering
and organization expenses will be conditional on selling the minimum-offering
amount. Please revise your disclosure here to reconcile this apparent
conflict.
Response: We have revised as follows:
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 twelfth month of
operation after the commencement of business, conditioned upon the sale of
the minimum offering amount. Such expenses to be paid twelve months after
the sale of the minimum are estimated to be $55,000.
Selection of Commodity Trading Advisors and Allocation of Equity, page 3
15. We note that you have initially chosen three CTAs. Please disclose what
programs operated by these three CTAs will be employed to trade the proceeds
from this offering, and briefly describe that program. We note your
description of the CTAs and prior program performance later in the
prospectus.
Response: The selection of which program to use is entirely left to the
judgment of the CTA. To disclose a particular program could be misleading
should the CTA elect, for any reason, to trade a different program on behalf
of the Fund.
Redemptions, page 4
16. Supplementally, please provide a detailed analysis regarding the
applicability of the tender offer rules to the share redemption program.
Specifically address whether you intend to place any limit on the percentage
of shares you may redeem. Refer to Rule 13e-4 and Regulation 14E of the
Exchange Act.
Response: There is no right to make a tender offer; i.e. the offer to
repurchase at a price to be accepted by the members, in the TriView LLC
Operating Agreement and no tender offer is described by the Managing Member
in the prospectus. The right of redemption is a right conferred to the
members based upon the contract made by the LLC Operating Agreement and not
an offer to all members or holders that may be accepted within a particular
time frame. The limit on redeemed shares will only be to the extent of
liquidity and other operational limitations discussed under "LLC Operating
Agreement, Redemptions" and "Risk Factors, Your Right of Redemption is
Limited."
17. Based on your disclosure, it is unclear whether you intend to conduct
the share redemption program during the one-year offering period of the
shares being registered under this registration statement. If this is your
intention, please tell us supplementally how the redemption of shares will be
conducted in a manner that is consistent with the restrictions on activities
by issuers during distributions of securities set forth in Regulation M.
Please advise us as to whether you will file an application for exemptive
order regarding Rule 102 of Regulation M with the Division of Market
Regulation. For guidance, please refer to the following No-Action Letters:
Inland Western Retail Estate Trust, Inc. (August 25, 2003), T REIT, Inc.
(June 4, 2001), CNL American Properties -Fund, Inc. (August 13, 1998).
Response: The exception in Rule 102 (c) related to commodity pool
redemptions will apply once the minimum is sold and trading commences. Prior
to the sale of the minimum, there will be no redemptions or withdrawal of
subscriptions. Should the offer be terminated for any reason, the
subscriptions will be returned without deduction for any costs and with
interest while held in the depository account.
18. While we note your cross-reference to the LLC Operating Agreement,
Redemption section on page 41, please revise your disclosure here to
summarize the material terms of the redemption, such as:
* that the redemption will be offered on both a first-come, first-serve and
pro rata basis in the sole discretion of the managing member; and
* whether there is any limit on the percentage of shares you may redeem.
Response: We have revised as follows:
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. Subject to the forgoing limitations, there will be no
limit on the percentage of membership interests you may redeem; provided, in
the case of partial redemptions, you must maintain the regulatory minimum
balance of $5,000. Redemptions will be offered on both a first-come, first-
serve and pro rata basis with payment of the redemption request in the sole
discretion of the managing member. See, The LLC Operating Agreement,
Redemptions.
Diagram of Partnership Structure & Commissions TriView Global Fund, LLC, page
5
19. Please consider revising to include the ownership percentages of each
entity listed. For example, please confirm that the investing public will
acquire 99% of the registrant through this offering.
Response: We have added the following footnote:
Mr. Pacult is sole stockholder, director, principal and officer of TriView
Capital Management, Inc., the corporate managing member of the Fund and, as a
result, he is the sole decision maker for the Fund. TriView Capital, as
corporate managing member, and Mr. Pacult, individually, are currently the
sole members of the Fund and each maintain a one unit ($1,000) interest in
the Fund.
20. Please revise the table or include a footnote to disclose that Mr.
Pacult is the sole stockholder, director, principal and officer of TriView
Capital Management, Inc. and, as a result, he is the sole decision maker for
the Fund. We note the disclosure on page 13, however, we believe this fact
should be highlighted for investors in the summary.
Response: We have made this suggested change. See the response to your
comment 19.
21. Please revise the diagram to show all fees including sales commissions
to be received by principal selling agent through an advance by the Managing
Member and as part of the 4% continuing service fee.
Response: The diagram shows all fees. The principal selling agent will not
receive sales commissions, advanced or otherwise, except for the 4%
continuing service fee, which will be paid monthly by the Fund (not advanced
by the managing member).
The Risks You Face, Page 6
Managing member and commodity trading advisors will serve other businesses
and may not have adequate time to devote to the Fund, page 7
22. Please revise to quantify the number of other commodity pools the
managing member, Michael Pacult, currently manages specifying how many of
those are public commodity pools.
Response: All other commodity pools managed are public. We have revised as
follows:
The individual managing member currently manages three other public commodity
pools, one of which is in the process of registration of its securities, and
both managing members have reserved the right and expect to manage additional
pools in the future.
Managing member may settle IRS claim without your approval, whether or not it
is in your best interests, page 10
23. Supplementally, please tell us whether Mr. Michael Pacult or Ms. Shira
del Pacult have previously settled IRS claims as managing members or general
partners of other commodity pools.
Response: We supplementally advise that Mr. Michael Pacult and Ms. Shira Del
Pacult have not previously settled IRS claims as managing members or general
partners of other commodity pools.
Conflicts of Interest, page 10
Managing Member, the commodity trading advisors, the introducing broker, the
futures commission merchant, the selling agents and their principals may
trade for themselves and others, page 11
24. We note the last sentence of this risk factor whereby you state that,
"they could take their positions prior to the entry of positions they know
will be placed for the Fund, although they stated they will not do so."
Please revise this risk factor caption and text to clearly convey to
investors that despite a policy not to engage in such conduct, there is a
material risk that your co-managing members, your principal selling agent and
the others listed may trade in derogation of the pool participant interests.
Response: We have revised as follows:
The 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, possibly to the derogation of
Fund investors.
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, which would be to the derogation of
Fund investors, although, they have stated they will not do so.
Mr. Pacult has sole control over the time he will allocate to the management
of the Fund, pages 11-12
25. In order to provide greater context as to the demands on Mr. Pacult's
time, please revise
to quantify the number of other pools or ventures Mr. Pacult currently
manages.
Response: We disclose that Mr. Pacult manages "this Fund and three other
publicly traded Funds," which is the total number of other pools/ventures Mr.
Pacult currently manages.
No Resolution of Conflicts Procedures, page 12
26. We note your statement that you currently have no and will not establish
any formal procedures in to resolve conflicts. Please revise to include any
informal conflict resolution measures that are in place or may be established
or whether you will resolve conflicts on an ad hoc basis.
Response: We have revised as follows:
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. However, Mr. Pacult, as individual
managing member and principal of the corporate managing member, will use his
twenty-four years of reputable industry experience to resolve any future
conflicts on an ad hoc basis should they arise.
Management's Discussion and Analysis The Advisory Contracts, page 13
27. Please clarify whether you have entered into or when you will enter into
the Advisory Contracts and Powers of Attorney.
Response: We have revised as follows:
The managing member expects to assign 97% of our assets to trading by the
advisors. Authority has been granted to the trading advisors as expressed in
the executed advisory contracts and powers of attorney granted by the Fund to
the trading advisors, and the futures commission merchant. See Appendixes F-
H.
Expenses Per Unit of Membership Interest, page 14
28. Please revise or advise as to why you should not include the material
components of your offering and organizational expenses including:
* $55,000 in offering and organizational expenses;
* $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; and
* depository fees for holding the minimum in a separate bank account for up
to one year.
Response: The offering and organizational expenses will be deferred until
the thirteenth month of operation, which is beyond the one year break even
table required by NFA Compliance Rule 2-13. The depository agent has advised
the managing member that it will not charge any depository fees. The
Depository Agreement has been amended accordingly.
29. We note your disclosure that the incentive fees payable to both the CTAs
and general partner of new trading profits has not been included in your
break-even analysis. Please either revise so that the impact of the incentive
fees is reflected in your break-even analysis or tell us supplementally why
you believe that not reflecting the impact of the incentive fees in your
analysis is consistent with the Interpretive Notice relating to the
preparation of break-even analysis in accordance with NFA Compliance Rule 2-
13 issued by NFA's Board of Directors. We further note your fee table on page
19; however, please tell us why you hove not included a discussion these fees
in the break-even analysis.
Response: We have added the incentive fees to the break even table on those
expenses to be recouped by the CTA.
30. We refer to footnote (7) that indicates that, based on current interest
rates, you expect to earn 4% annually in interest income on your deposits in
T-Notes. Please provide us with supplemental support for your statement that
current interest rotes for short-term treasuries are 4%.
Response: We have changed all references to the 4% assumed interest rate to
2.65%, which is the current short term T-Bill rate, as reported by the
Federal Reserve.
Charges to the Fund
Restrictions On Management Fees, pages 19-20
31. Noting your discussion of NASAA Guidelines for commodity pools, please
disclose what circumstances may prompt the managing member to change the fees
payable to the CTAs.
Response: We added the following:
The managing member would likely change these fees only if it retained a
substitute trading advisor on different terms.
32. We note that you currently pay all three CTAs incentive fees equal to
22.71% of the new net profit they produce. This amount appears to exceed the
15% limit on incentive fees imposed by the NASAA guidelines. Please revise to
clarify how you will adjust the incentive fees in order to comply with the
NASAA guidelines.
Response: We have revised as follows:
As permitted by the guidelines, without prior notice to you, the managing
member has reserved the right to raise the current total incentive fee beyond
15%, provided the total allowed management fees of 6% are correspondingly
lowered by 1% for every 2% increase in incentive fees, until a maximum of 27%
incentive fee and minimum 0% management fee is reached. The managing member
will notify you of any change in fees within seven business days. The
managing member would likely change these fees only if it retained a
substitute trading advisor on different terms. 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. The current total
incentive fees and total management fees are within the NASAA guidelines.
Limited Liability, page 22
33. We note your statement that your legal counsel has opined that
individual investors will not be subject to margin calls and cannot lose more
than their original investment. Since this disclosure is based on an opinion
of counsel, please identify counsel and file counsel's consent to being named
under this separate heading.
Response: The Scott Law Firm, P.A. has opined on this issue and has already
filed consent to being named under this subheading in Exhibit 23.02. We have
revised the prospectus as follows:
In the opinion of The Scott Law Firm, P.A., 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 any applicable
preference period, provided...
Use of Proceeds, page 22
34. Consistent with the disclosure in note 1 to the financial statements of
the Fund, please revise the disclosure on page 22 (Use of Proceeds) and
elsewhere in the filing to clearly state that the Fund's obligation to
reimburse the managing member for organization and offering expenses is
contingent on the offering.
Response: We have revised as follows:
After the sale of the minimum and the operation of the Fund for twelve
months, the Fund will reimburse the managing member for all offering and
organizational expenses incurred. After twelve months of operation, the Fund
will pay all expenses as incurred.
Determination of the Offering Price, page 23
35. We note your statement that you set the initial value of each unit at
$1,000, but you did not state why or how you arrived at this value. Since
there is currently no established trading market for your units of membership
interest, please revise to describe the various factors considered in
determining this price. Refer to Item 505(a) of Regulation S-K.
Response: We have revised as follows:
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). These amounts were established at the
discretion of the managing member based upon its knowledge of industry
standards. 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.
Performance of Other Funds Managed by the Managing Member, page 25
36. We note your narrative disclosure of the prior performance of the
Bromwell Financial Fund and the Atlas Futures Fund on page 25. Please revise
to disclose when both programs closed their offerings.
Response: The offerings are ongoing. We have revised as follows:
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
October 31, 2004, the total amount of money raised for both pools is
$11,451,838 and the total number of investors in both pools is 218. In
November, 2003, Mr. Pacult replaced the two trading advisors for Bromwell
because they were unprofitable. As of January 31, 2005, the new trading
advisor, Fall River Capital, LLC has not been profitable and the general
partner of Bromwell caused substantially all of the partners to redeem their
accounts in Bromwell. Bromwell has suspended trading. Atlas, however, has
been profitable since inception. The offering of Atlas is ongoing and the
general partner of Bromwell has under consideration the terms upon which to
resume sales of Bromwell.
37. Supplementally, tell us whether either program has experienced any major
adverse business development or conditions other than replacing the CTA. See
Item 8.A. of Guide 5.
Response: We supplementally confirm that neither program has experienced any
major adverse business development or conditions other than the negative
performance for Bromwell that is fully disclosed. Bromwell and Atlas each
filed a Form 8-K to report that certain expenses were not paid during the
period in which they were incurred. In the opinions of the general partners,
these were not major adverse business developments.
The Commodity Trading Advisors, page 26
38. Please revise to provide updated prior performance capsule information
for the same periods as practicable for each of your CTAs: Forecast Trading
Group, NuWave Investment and Adobe Asset Management. Currently, your last
month of capsule performance disclosure is different for each CTA: March
2004, June 2004 and August 2004, respectively. Updated disclosure for the
same most recent period will provide easier comparability for investors.
Response: We have updated the performance information for all CTAs through
October 31, 2004.
39. Please revise to clarify whether Forecast Trading Group only has one
trading program, the Forecast Portfolio, or there are multiple programs
comprising this portfolio. If this portfolio represents more than one
program, revise to describe each.
Response: We have revised as follows:
Forecast trades one program, the Forecast Portfolio, and relies primarily on
fundamental analysis with the support of technical analysis.
40. Since both NuWave and Adobe trade on multiple program platforms
utilizing differing types of analyses, please tell us why you have not
include capsule performance disclosure for each of NuWave's and Adobe's
programs. We note that Adobe's FFDP and 5xFFDP only differ in the quantity
traded.
Response: We have updated the performance disclosures to include all
programs traded by NuWave and Adobe as provided in their disclosure documents
filed with the National Futures Association. As disclosed in the Trading
Program summary for NuWave, its Alpha, Beta and Pattern Recognition programs
are offered as a Combined Portfolio program and not offered individually.
Forecast Trading Group, LLC
Affiliated Weather Research Professionals, page 27
41. Please revise to clarify the number of years Messrs. Notis and Roemer
have in forecasting Fortune 500 grain and energy companies in the U.S.
Currently, it is unclear whether you refer to 2 or 25 years each.
Response: We have revised as follows:
Mr. Notis and Mr. Roemer each have over 25 years experience forecasting for
Fortune 500 grain and energy companies in the U.S.
The Futures Commission Merchant, page 32 The Introducing Broker, page 33
42. Please revise to describe whether Man Financial, Inc. and/or Mt. Kemble
Futures, LLC are registered clearing brokers under the Exchange Act.
Response: We advise you supplementally that neither Man nor Mt. Kemble are
registered brokers under either the Securities Act of 1933 or are clearing
brokers under the Securities and Exchange Act of 1934. They may have
affiliates that are so registered, however, those registrations are not
applicable to the proposed operations of the Fund. We have revised as
follows:
Man is a registered futures commission merchant, clearing broker, and
commodity pool operator pursuant to the Commodity Exchange Act, as amended,
and is a member of the National Futures Association in such capacities.
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 is a registered introducing broker
under the Commodity Exchange Act, as amended, and is a member of the National
Futures Association in such capacity. It shares in the round turn brokerage
commission paid by the Fund to the futures commission merchant for trades
entered by Adobe Asset Management, LLC and Forecast Trading Group, LLC but
does not participate in the brokerage commissions for trades entered by
NuWave Investment Corp.
Federal Income Tax Aspects Tax Opinion, page 34
43. Please revise to the first paragraph to remove the word "believes"
immediately preceding the bullet points. The disclosure must clearly state
counsel's opinion rather than counsel's belief.
Response: We have revised as follows:
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:
Plan for Sale of Membership Interests, page 41
44. Please provide us supplementally with a copy of the letter from NASD
granting you the Rule 2810 exemption.
Response: See Federal Register Release No. 34-50335 that provides notice of
the delay of the implementation of NASD Notice to Members 04-50. FIC filed
the TriView offering with the NASD prior to October 12, 2004, so it will not
be prohibited from charging ongoing trail commissions. Sales commissions are
still subject to the ten percent limitation. The NASD will not issue any
letter to the issuer on the matter of commissions. It has stated to counsel
for the Fund that the FR publication is sufficient notice of policy to
issuers.
Redemptions, page 41
45. Please revise to clarify whether there is any limit on the percentage of
shares you may redeem. Also disclose how you define the effective date of the
request.
Response: We have revised as follows:
Redemption allows you to receive your share of the net assets of this Fund.
There is no limit on the percentage of membership interests you may redeem;
provided, in the case of partial redemptions, you must maintain the
regulatory minimum balance of $5,000. 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 the request is the day the managing member
accepts the request for payment. Once accepted for payment, the effective
date to determine the amount of the redemption will 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 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 Selling Agent, page 41
46. Please revise to include the underwriting compensation table and
associated disclosures required by Item 508(e) of Regulation S-K, including
disclosure of the annual compensation to be paid to the selling agent. In
addition, please disclose the compensation to be paid or reallowed to selling
agents other than Futures Investment Company and to introducing brokers or
other broker-dealers that participate in the offer and sale of the registered
units. Refer to Item 508(h) of Regulation S-K.
Response: The sales are on a best efforts basis with no sales commissions
and, therefore, Item 508(e) of Regulation S-K does not apply. The continuing
service fee is to provide information to investors after the sale is made.
This fee is excluded from NASD Rule 2810 and has been excluded from all other
filings by commodity pools, see Campbell Strategic Allocation Fund LP at SEC
# 333-119259 and Quadriga Superfund at SEC # 333-88460. The document also
discloses the four percent continuing service fee at numerous locations.
Subscription Procedure Subscription Amounts, page 42
47. Please provide examples as to why the managing member in its sole
discretion may lower the minimum purchase amount for some investors and not
others below the $25,000 membership interest threshold, but not below $5,000.
Response: The managing member reserves the right to lower the minimum
investment at its sole discretion and does not want to falsely give investors
the impression that there are fixed criteria under which it will do this.
Rather, the minimum investment will be lowered only when exceptional
circumstances, which cannot be predicted, exist.
Financial Statements
48. Please continue to monitor the updating requirements of Rule 3-12 of
Regulation S-X.
Response: The included financials are current.
49. We note on page 13 and elsewhere in the filing that Mr. Michael Pacult
is the individual managing member of the Fund and the sole shareholder,
director, principal, and officer of the corporate managing member. Please
submit supplementally an unaudited balance sheet of the individual managing
member as of a recent date prepared in accordance with AICPA guidelines (SOP
82-1).
Response: We have supplementally provided Mr. Pacult's balance sheet as of
December 31, 2004, for which we request confidential treatment.
50. Also, revise the registration statement to disclose the net worth of the
individual managing member. If the individual managing member's net worth is
derived from material amounts of assets that are not readily marketable or if
guarantees and contingencies are material, please make the appropriate
disclosures.
Response: We have revised as follows:
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. Mr. Pacult's net worth is in excess of one
million dollars, which consists primarily of real estate and other holdings
that are not liquid.
Financial Statements of Triview Capital Management, Inc Note 1 Nature of
Business and Significant Accounting Policies Principles of Consolidation
51. We note that Triview Capital Management, Inc. is not consolidating the
Fund based on the temporary nature of its ownership interest. Please note
that paragraph C2a of SFAS 144 eliminated the exception to consolidation for
a subsidiary for which control is likely to be temporary. Also, we note that
the managing member uses the equity method to account for its investment in
the Fund (note 2). Please revise as appropriate to clarify the basis for this
accounting and advise us.
Response: We have consolidated the financials as requested.
52. We note the disclosure in note 5 to the financial statements of the Fund
that management does not believe that a variable interest entity relationship
exists between FIC, the corporate managing member and the Fund. Explain to us
how you arrived at this FIN 46R accounting conclusion.
Response: See our response to your comment 51, above.
Note 2 Corporate Affiliations
53. We note your disclosure that Triview Capital Management, Inc has
incurred $45,000 in organization and offering costs related to Triview Global
Fund, LLC. Please explain how this amount reconciles to the $20,000 due from
Triview Global Fund per the Triview Capital Management Balance Sheet and the
$20,000 shown as due to affiliates per the Triview Global Fund Balance Sheet.
Response: The balance sheets of TriView Global and TriView Capital have been
revised to eliminate any discrepancies.
Statement of Additional Information
54. Please remove the language at the bottom of the first page, which
indicates the date of the Statement of Additional Information. Since this
section is part of the prospectus, the date on the prospectus cover page is
sufficient.
Response: We interpreted NFA Rule 2-35(c)(1)(iv) to require a date on the
Statement of Additional Information. On refection, do you agree with us or
should we contact the NFA for an interpretation?
55. Please refrain from designating information included in the Statement of
Additional Information as "exhibits." The information in this section should
be distinct from the exhibits to the registration statement. Provide similar
clarification in the exhibit index included in Part II to the registration
statement.
Response: We have renamed the "Exhibits" A-H to the prospectus and all
references thereto as "Appendixes" A-H to avoid confusion with the Exhibits
to the Registration Statement.
Part II of the S-1
Item 15. Recent Sales of Unregistered Securities, page 1
56. Please revise to include disclosure required by Item 15 of Form S-1.
Based on your structure chart on page 5 of Part I, it appears that the
Managing Member and CPO own
1 % of the fund. Please revise to reflect this prior sale. For guidance,
please refer to Item 701 of Regulation S-K.
Response: We have removed the disclosure from the structure chart and
elsewhere. We have also revised as follows:
Item 15. Recent Sales of Unregistered Securities. None within three years,
except purchase by Michael Pacult and TriView Capital Management, Inc., both
managing members of the Issuer, of one unit ($1,000) each of limited
liability interest.
Exhibits
Exhibit 5.01 Legal Opinion
57. Please have counsel revise its legal opinion to reflect the fact that
the registration statement has been filed. The language currently in the
opinion dated October 7, 2004 only anticipates that the registration
statement will be filed. In order to use the registration statement as a
basis for the opinion, it is not appropriate to refer to a registration
statement not on file.
Response: We have dated the opinion to the date of filing of pre-effective
amendment no. 1 and have revised the opinion as follows:
We hereby consent to the filing of this opinion as an Exhibit to the Form S-1
Registration Statement filed by the Managing Member on behalf of Triview
Global Fund, LLC with the U. S. Securities and Exchange Commission and the
states to be selected by your firm where the Units will be offered for sale
and to all references to the legality of the Units referred to in the Form S-
1 attributed to our firm.
58. In the penultimate paragraph of this opinion on page 2 you state that
you are only licensed in the State of Florida, but with the registrant's
permission you are opining on Delaware General Corporation Law and the LLC
Act. For equity securities, counsel must opine on the legality of the
securities under the laws of the state in which the registrant is
incorporated. While we generally accept that all lawyers are deemed capable
of opining on Delaware law, we believe it is inappropriate to qualify your
opinion as to the jurisdiction of Florida. Please provide a revised opinion
that eliminates the carve out for counsel's expertise.
Response: We have revised as follows:
With the permission of the Fund, we have relied upon our interpretation of
Delaware General Corporation Law and LLC Act.
Exhibit 8.01 Tax Opinion
59. We note that your tax opinion from counsel is dated October 7, 2004,
prior to the filing of the registration statement, October 8, 2004. Since
this opinion refers to information found in the registration statement to be
filed, it does not appear counsel can confirm its opinion in a registration
statement not yet filed at the time of the opinion's issuance. Please have
counsel refile the tax opinion with a more recent date.
Response: We have changed the date of the opinion to coincide with the date
of the filing of pre-effective amendment no. 1.
As appropriate, please amend your registration statement in response to these
comments. You may wish to provide us with marked copies of the amendment to
expedite our review. Please furnish a cover letter with your amendment that
keys your responses to our comments and provides any requested supplemental
information. Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and adequacy of the
disclosure in the filings reviewed by the staff to be certain that they have
provided all information investors require for an informed decision. Since
the company and its management are in possession of all facts relating to a
company's disclosure, they are responsible for the accuracy and adequacy of
the disclosures they have made.
Notwithstanding our comments, in the event the company requests acceleration
of the effective date of the pending registration statement, it should
furnish a letter, at the time of such request, acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the Commission
from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to delegated
authority, in declaring the filing effective, does not relieve the company
from its full responsibility for the adequacy and accuracy of the disclosure
in the filing; and
* the company may not assert this action as a defense in any proceeding
initiated by the Commission or any person under the federal securities laws
of the United States.
In addition, please be advised that the Division of Enforcement has access to
all information you provide to the staff of the Division of Corporation
Finance in connection with our review of your filing or in response to our
comments on your filing.
We will consider a written request for acceleration of the effective date of
the registration statement as a confirmation of the fact that those
requesting acceleration are aware of their respective responsibilities under
the Securities Act of 1933 and the Securities Exchange Act of 1934 as they
relate to the proposed public offering of the securities specified in the
above registration statement. We will act on the request and, pursuant to
delegated authority, grant acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding requesting
acceleration of a registration statement. Please allow adequate time after
the filing of any amendment for further review before submitting a request
for acceleration. Please provide this request at least two business days in
advance of the requested effective date.
You may contact Robert Telewicz at (202) 824-5356 or Jorge Bonilla at (202)
942-1993 if you have questions regarding comments on the financial statements
and related matters. Please contact Neil Miller at (202) 942-1851 or me at
(202) 942-1960 with any other questions.
Sincerely,
Karen Garnett
Assistant Director
cc: William S. Scott, Esq. (via facsimile)
The Scott Law Firm, P.A.