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As Of Filer Filing For·On·As Docs:Size Issuer Agent 7/30/08 Altegris Winton Futures Fd, L.P. 10-12G 6:2.0M Sidley Austin LLP/FA |
Document/Exhibit Description Pages Size 1: 10-12G Registration of Securities (General Form) HTML 716K 2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 23K 3: EX-4.1 Instrument Defining the Rights of Security Holders HTML 95K 4: EX-10.1 Material Contract HTML 80K 5: EX-10.2 Material Contract HTML 87K 6: EX-10.3 Material Contract HTML 115K
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a.
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FIMAT
will accept introductions from IB for the creation of accounts in the
records of FIMAT for customers introduced by IB (“Customers”) and FIMAT
shall execute or cause to be executed orders for the accounts of such
Customers, but only insofar as such orders are properly transmitted by
Customers or third parties with discretion over Customer Accounts,
including commodity trading advisors, to FIMAT. Each customer,
as introduced to FIMAT by IB, will only be regarded as a “Customer” of the
purposes of this Agreement if (i) it is not an existing or pending
customer of FIMAT; (ii) satisfactory due diligence is completed by
FIMAT; and (iii) an internal credit authorization to open one or more
accounts for such Customer is obtained by
FIMAT.
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b.
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FIMAT
shall prepare and transmit to Customers written reports of margin calls,
confirmation, purchase-and-sale, and monthly statements, and such other
documents as may be required by applicable law. Such reports
and other documents furnished by FIMAT to Customers shall indicate that
the Accounts are introduced by IB to FIMAT. FIMAT shall
promptly also provide IB with (i) unless otherwise instructed by the
Customer in writing, copies of all material communications, reports and
documents, or summaries thereof, transmitted to Customers hereunder
including, but not limited to electronic copies of all reports sent to
Customers and daily electronic equity runs for all markets in which IB’s
Customers’ trade, (ii) a daily electronic print image file and GMI
data output for each account and (iii) each month, contemporaneous
with the payment to IB of commissions and other amounts due to it under
this Agreement, FIMAT will provide IB with a report containing the
information in the IB template provided by FIMAT to IB as attached to this
Agreement as Exhibit B and a breakdown of the calculation used to
calculate the interest paid by FIMAT to IB. IB shall treat all
such information about Customer accounts as
confidential. FIMAT’S obligation to disclose any information to
IB in relation to a Customer to this agreement shall be conditional upon
Customer providing its prior written consent to the extent required by
law. FIMAT shall use its best efforts to obtain such
consent. IB shall ensure that Customers are aware that IB
receives compensation in connection with their trading
activity.
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c.
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FIMAT
shall conduct cashiering functions for Customers’ accounts. In
this regard, FIMAT will, pursuant to the instructions of Customers, or
pursuant to the instructions of the commodity trading advisors they engage
who have been given written discretionary authority to do so, accept and
deliver cash and securities for Customer accounts; provided that FIMAT
shall have no responsibility with respect to such cash or securities until
such time as the cash or securities have been physically delivered to
FIMAT. FIMAT shall pay interest on such cash held for the
accounts of Customers as described in Exhibit A, in respect of Winton
Futures Fund, L.P. only, and as otherwise agreed between the parties in
writing for each new Customer on a case by case
basis.
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d.
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FIMAT
shall maintain books and records as required by applicable Federal, state
and self-regulatory laws, rules and regulations of all transactions for
Customers’ accounts executed or cleared through
it.
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e.
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FIMAT
shall notify IB in writing, promptly upon receipt, or obtaining knowledge,
of any material Customer complaint or pending or threatened action or
proceeding by any Customer or if any Customer fails to deposit or maintain
proper margin, or incurs a deficit in any Customer
account.
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a.
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IB
shall promptly provide to FIMAT upon request, with basic data and other
documents as requested and/or required by applicable federal, state,
exchange and self-regulatory rules and regulations, as shall be necessary
or appropriate to permit FIMAT to discharge its obligations
hereunder.
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b.
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IB
shall furnish FIMAT with such information and documentation as requested
by FIMAT for the opening and carrying of Customers’ accounts, including,
but not limited to, account information and risk disclosure statements, on
FIMAT’s account forms.
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c.
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IB
agrees to cause all Customers to execute appropriate customer documents
(“Customer Agreements”) on such forms as shall be provided by FIMAT to IB
or as shall otherwise be approved in writing by
FIMAT.
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d.
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IB
shall provide FIMAT, upon its written request, with its yearly audited
financial statements within ninety (90) days following the end of
IB’s fiscal year and summaries of pending litigation within thirty
(30) days following the end of each of IB’s fiscal quarters;
provided, however, that IB shall provide FIMAT with a summary of each
claim against IB within five (5) days of IB’s receipt of notice of
such claims.
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e.
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At
the written request of FIMAT, lB shall provide access, for purposes of
inspection and examination to its books of account and records to FIMAT in
response to a request from any designated examining authority of FIMAT or
any exchange, regulatory or self-regulatory
authority.
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f.
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IB
shall provide to FIMAT corporate resolutions, partnership agreements or
such other documentation as FIMAT may, in its discretion require, showing
evidence that IB has full power and authority to enter into this
Agreement.
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a.
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IB
shall assist FIMAT in obtaining all relevant account documentation,
including, but not limited to, acknowledgments of receipt of disclosure
documents and proper exemptive
notices.
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b.
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IB
shall assure its compliance, as well as that of its employees and
associated persons, with all rules and regulations to which IB and such
persons are subject, including but not limited to the requirements and
regulations of all foreign governing bodies, rules and regulations of the
Commodity Futures Trading Commission CFTC), exchanges and self-regulatory
organizations. IB shall notify FIMAT promptly if at any time
IB’s registration with any of the foregoing is not in good standing or if
lB is the subject of an investigation by any of the above mentioned
agencies.
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c.
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IB
shall adhere to all reasonable procedures instituted by FIMAT, and
communicated to IB in writing.
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d.
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IB
shall notify FIMAT in writing, immediately upon receipt, or obtaining
knowledge, of any material Customer complaint or pending or threatened
action or proceeding by any Customer. FIMAT shall provide IB
with any assistance IB may reasonably request in order to enable IB to
handle such inquiries or complaints, however, subject to Section 10,
FIMAT shall have the right to respond to, adjust, settle or reconcile any
such Customer complaint which names FIMAT as a party, and any such
remedial action taken by FIMAT shall be binding upon IB. FIMAT
shall notify IB if FIMAT receives a complaint from any Customer of
IB.
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e.
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IB
shall not guarantee any Customer account against loss or a margin call in
an account or in respect of any transaction effected with or for such
Customer account.
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f.
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IB
shall make no report or statement (whether orally or in writing) to any
Customer with respect to any transaction, position, or other matter
relating to a Customer’s account that is not in conformity with
statements, reports, and information furnished by FIMAT pursuant to this
Agreement and any related agreements with
Customers.
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g.
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IB
shall notify FIMAT immediately in the event that IB or any agent thereof
shall become subject to suspension, restriction, disciplinary action,
sanction, investigation or fine by any regulatory body having jurisdiction
over IB, IB’s business or FIMAT. IB authorizes FIMAT to take
all such steps as may be necessary for FIMAT to maintain compliance with
the laws, rules and regulations to which it is
subject.
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a.
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IB
hereby agrees and acknowledges that it is obligated to, and will, comply
with anti-money laundering laws and regulations, including any future
obligations that may be imposed on IB by law or regulation to know its
Customers, their source and use of funds, and to monitor for and identify
suspicious activity. These obligations include, but are not
limited to: (a) currency and foreign transaction
reporting; (b) suspicious activity reporting; (c) customer
identification and verification (USA PATRIOT Act § 326); applying
enhanced due diligence to private banking accounts (USA PATRIOT Act
§ 312); (e) applying those special measures as maybe directed by
the Secretary of the Treasury (USA PATRIOT Act § 311);
(f) observing the prohibition on doing business with foreign shell
banks (USA PATRIOT Act § 313); (g) collecting (and providing to
FIMAT) certain information as it relates to foreign banks (USA PATRIOT Act
§ 319); and otherwise complying with all applicable laws and
regulations relating to money laundering
prevention.
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b.
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IB
has established and maintains an anti-money laundering program, consisting
of at a minimum, written internal policies, procedures and controls
including a means for monitoring and identifying suspicious activity, the
designation of an anti-money laundering compliance officer, an ongoing
employee training program, an independent audit function to test such
programs, and any additional
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c.
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As
indicated above, IB is responsible for filing currency transaction reports
and suspicious activity reports, including form
SAR.
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d.
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IB
shall, as soon as practical after identifying a suspicious activity and in
any event prior to filing a suspicious activity report on SAR, notify
FIMAT and shall communicate with FIMAT about the transaction for purposes
of sharing information about the transaction and determining whether IB or
FIMAT shall file the SAR, unless such sharing of information is prohibited
by law. IB will provide FIMAT with copies of all SARs and other
communications it files with respect to Customer accounts held at FIMAT,
unless prohibited by law.
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e.
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Prior
to filing any report with the Treasury Department, the IRS, the U.S.
Customs Service or any regulatory body or organization relating to the
reporting of currency transactions IB shall notify FIMAT and cooperate
with FIMAT as FIMAT may deem appropriate, unless prohibited by law from
doing so.
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f.
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FIMAT
reserves the right to make and file such suspicious activity or other
reports as listed in above when it deems it necessary or appropriate; and
IB recognizes that when FIMAT does so, FIMAT does not thereby assume any
responsibility for making and filing reports on behalf of IB and/or
relieve IB of its own responsibility for making and filing reports as
necessary under U.S. or other laws and regulations. FIMAT will
provide IB a copy of any such report that relates to a Customer account,
unless prohibited by law from doing
so.
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g.
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At
the time of the opening of any new Customer account, IB must obtain
sufficient information from its Customer to satisfy itself as to the
identity of its Customer and the source of the Customer’s
funds. IB also must satisfy itself that opening the Customer
account would not violate the provisions of various Executive Orders and
regulations administered by the U.S. Treasury Department’s Office of
Foreign Assets Control (“OFAC”). IB will immediately inform
FIMAT of the existence of any Customer account subject to an OFAC
restriction. As detailed below, FIMAT uses software that may
assist IB to detect possible OFAC
violations.
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h.
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For
any Customer accounts opened for a non-resident alien, IB will comply with
FIMAT’s written AML guidelines as provided to IB by FIMAT from time to
time.
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j.
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IB
shall undertake reasonable efforts to ascertain that the Customer is not
engaged in unlawful activities, the assets being invested have been
legitimately obtained, and any disbursements to a Customer or third party
are for legitimate purposes.
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a.
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FIMAT
hereby agrees and acknowledges that it is obligated to comply with
anti-money laundering laws and regulations, including any future
obligations that may be imposed on FIMAT. Notwithstanding the
foregoing, FIMAT shall be primarily responsible for supervision of ongoing
account activity in accordance with the USA PATRIOT Act and the
regulations promulgated pursuant thereto, or any similar laws or
regulations enacted or adopted hereafter (including, without limitation,
NFA Compliance Rule 2-9(c). In the event FIMAT has
electronic tools for detecting possible money laundering and terrorist
financing, FIMAT shall make those tools available to
IB.
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b.
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For
each new Customer account opened by IB, FIMAT shall submit the name and
address as provided by the IB to a service company which will determine if
the Customer is on an OFAC list or is located in a country which is not
considered a cooperative country by the U.S.
government.
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c.
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In
the normal course of providing clearing and custody services, FIMAT may
detect apparent suspicious activity. In such circumstances,
FIMAT will contact IB about the transaction for purposes of sharing
information about the transaction, unless FIMAT believes that IB itself
may be engaged in suspicious activity and/or FIMAT would be prohibited by
law from sharing with IB information about the suspicious
transaction. Nothing in this Section is to be read to prohibit
FIMAT from filing its own suspicious activity and other reports, as it
believes necessary or appropriate.
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d.
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For
all incoming wires, FIMAT shall scan relevant information, including the
remitter’s name and address and the originating bank’s name and address,
(to the extent provided on an incoming wire) to detect possible OFAC
restrictions.
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e.
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Requests
for third party wires are processed by FIMAT on an exception basis
only. When allowed, for outgoing wires ordered to the delivery
of a person or entity other than the account holder, FIMAT requires
relevant information, including the payee’s name and address and the
recipient bank’s name and address, to allow FIMAT’s processing to detect
possible violations of OFAC
restrictions.
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(ii)
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Any
inaccuracy or misrepresentation in, or breach of, any of the warranties,
representations, covenants or agreements made by IB
herein;
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(iii)
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Any
Customer instituting a claim, suit, action, or other proceeding (whether
in law or in equity) against FIMAT or any of its affiliates, or any
exchange or any U.S. or non-U.S. governmental agency or self-regulatory
organization institutes a claim, suit, action, or other proceeding against
FIMAT or any of its affiliates relating to this Agreement or any Customer
that are caused by any action or inaction of
IB;
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(iv)
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Any
debts, liabilities or obligations arising from the failure of IB to comply
with the Commodity Exchange Act (the “Act”), the Gramm-Leach-Blily Act,
the rules and regulations of the CFTC, Federal Trade Commission (“FTC”),
NFA and any Exchange or with any other applicable law of any jurisdiction
or agency thereof.
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(ii)
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Any
inaccuracy or misrepresentation in, or breach of, any of the warranties,
representations, covenants or agreements made by FIMAT
herein;
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(iii)
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Any
claims, liabilities or demands of IB in respect of any Customer or any
other third party that are caused by any action or inaction of FIMAT
including any breach by FIMAT of its obligations under its Customer
Agreement; or
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(iv)
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any
liabilities or obligations arising from the failure of FIMAT to comply
with the Act, the Gramm-Leach-Bliley Act, the rules and regulations of the
CFTC, Federal Trade Commission, NFA and any Exchange or with any other
applicable law of any jurisdiction or agency
thereof.
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(a)
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IB
and FIMAT have obtained and will maintain, during the term hereof, all
licenses and registrations necessary for the conduct of its business,
including, without limitation, registration with the CFTC, the NFA and
such other regulatory or self-regulatory organizations as may be necessary
for the proper conduct of the parties
business;
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(b)
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The
parties have all requisite authority, whether arising under applicable
Federal, state, exchange or self-regulatory organization laws, rules and
regulations or otherwise to enter into this
Agreement;
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(c)
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All
employees, agents and associated persons of both parties have been and
will continue to be duly registered and licensed as necessary and to the
extent required by law, to participate in the transactions contemplated by
this Agreement; and
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(d)
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Both
parties are currently and shall remain in compliance with all financial
and regulatory requirements as set forth by the CFTC, NFA, FTC, exchanges
or any other self-regulatory organization, including, without limitation,
the minimum capital requirements set forth in CFTC Regulation
1.17. IB shall promptly notify FIMAT, in writing, if IB’s net
capital falls below the requirements of the NFA and the
CFTC.
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(a)
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The
term of this Agreement shall be indefinite. Either party upon
ten (10) days written notice may terminate this
Agreement. If IB is terminating this Agreement, it shall give
FIMAT reasonable prior notice of the transferee futures commission
merchant and evidence of Customer’s intent to transfer. Within
thirty (30) days of termination of this Agreement by either party for
any reason, IB agrees to provide FIMAT instructions regarding the transfer
of Customer accounts. Upon receipt of written instructions from
Customer (or its designee who has been given written authority to do so)
to FIMAT, and proof of sufficient notice to Customer from IB to FIMAT,
FIMAT shall assign all Customer Accounts to an FCM selected by Customer
(or such designee) and shall transfer all Customer balances and open
positions in such accounts via a tape-to-tape transfer to the extent the
receiving FCM will accept a tape-to-tape transfer. Except for
the ½ turn commission in connection with the establishment of any open
positions at FIMAT any fee or commission levied by an exchange and/or any
outstanding balance owed by any client to FIMAT neither IB nor such
Customer accounts will be charged any other fees, commissions or charges
with respect to such transfer. Furthermore FIMAT shall provide
IB with copies of the Customer account documentation including account
opening documentation. FIMAT agrees that in the event that the
FCM to which the accounts have been assigned refuses any account in
writing within 48 hours of assignment or FIMAT does not receive transfer
instructions from IB within 30 days of the date of termination, FIMAT
shall maintain Customer accounts and will notify Customers that they must
elect an FCM within thirty (30) days; provided however, that if FIMAT
is prohibited by applicable law or regulation from continuing to provide
services to any client, it may immediately close any such client account
and notify IB and Client It is for the Customers to decide whether and
whom to transfer their accounts to.
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(b)
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Upon
termination of this Agreement, each party shall continue to indemnify,
protect and hold harmless the other party, its subsidiaries, its
affiliates and all of the persons controlling any of them for any
liabilities, losses, expenses and costs incurred by either party as a
result of any event the occurrence of which would have required
indemnification if the Agreement were in
effect.
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(c)
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FIMAT
and IB specifically agree that any and all obligations owing to the other
shall survive the termination of this Agreement and shall remain in full
force and effect despite the termination of this Agreement to any
occurrence or transmission undertaken during the life of this
Agreement.
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(e)
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FIMAT’s
obligation to make Continuing Payments are contingent
upon: (x) the Customers maintaining their accounts on the
books of FIMAT or its affiliates and (y) IB maintaining the necessary
regulatory licenses to receive such
amounts.
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(f)
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For
purposes of this Agreement “Continuing Payments” means the amounts
described in Paragraph 9 as though this Agreement were still in
effect. During the period in which FIMAT makes Continuing
Payments it shall continue to provide IB with the reports described in
paragraph 1(b).
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(a)
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If
any part, term or provision of this Agreement is held to be illegal or in
conflict with the law of any state or any other law, the validity of the
remaining portions or provisions shall not be affected, and the rights and
obligations of the parties shall be construed and enforced as if this
Agreement did not contain the particular part, term or provision held to
be invalid. The section headings in this
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Agreement
are inserted for convenience of reference only and are not intended to
limit the applicability or affect the meaning of any of its
provisions.
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(b)
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This
Agreement shall inure to the benefit of, and be binding on each of the
parties and their successors and
assigns.
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(c)
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At
all times during the term of this Agreement and following the termination
thereof (i) each of the IB and FIMAT will keep confidential any
information acquired in respect of the other as a result of this Agreement
regarding the business, affairs and customers of each other, and shall not
disclose this information to third parties except as may be required by
law.
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(d)
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FIMAT
has established a Business Continuity Plan in accordance with applicable
rules. lB may obtain a copy of FIMAT’s Business Continuity
Plan, upon IB’s request.
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