<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 29, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MORGAN STANLEY DEAN WITTER
CHARTER GRAHAM L.P.
(Exact name of registrant as specified in charter document)
<TABLE>
<S> <C> <C>
DELAWARE 6799 [TO BE PROVIDED]
(State of Organization (Primary Standard Industrial (IRS Employer
of Issuer) Classification Code Number) Identification Number)
</TABLE>
------------------------
Two World Trade Center, 62nd Floor
New York, New York 10048
(212) 392-8899
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
Mark J. Hawley
DEMETER MANAGEMENT CORPORATION
Two World Trade Center, 62nd Floor
New York, New York 10048
(212) 392-8899
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
COPIES OF COMMUNICATIONS TO:
<TABLE>
<S> <C>
Edwin L. Lyon, Esq. Michael T. Gregg, Esq.
Cadwalader, Wickersham & Taft Dean Witter Reynolds Inc.
1333 New Hampshire Avenue, N.W. Two World Trade Center, 66th Floor
Washington, D.C. 20036 New York, New York 10048
(202) 862-2200 (212) 392-5530
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or 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. / /
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. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
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.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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- -------------------------------------------------------------------------------------------------------------
PROPOSED
INITIAL MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES BEING REGISTERED BE REGISTERED PER UNIT OFFERING PRICE FEE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Units of Limited Partnership 3,000,000
Interest.............................. Units $10.00 $30,000,000 $8,850.00
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</TABLE>
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<PAGE>
MORGAN STANLEY DEAN WITTER CHARTER GRAHAM L.P.
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
ITEM LOCATION IN
NO. REGISTRATION ITEM PROSPECTUS
- ---- ----------------------------------------------------- ------------------------------------------
<C> <S> <C>
1. Forepart of the Registration Statement and Outside
Front Cover Page of Prospectus..................... Facing Page; Front Cover Pages.
2. Inside Front and Outside Back Cover Pages of
Prospectus......................................... Inside Front Cover Page; Table of
Contents.
3. Summary Information, Risk Factors, and Ratio of
Earnings to Fixed Charges.......................... Summary of the Prospectus; Risk Factors;
Description of Charges; Investment
Programs, Use of Proceeds and Trading
Policies; The General Partner; The
Commodity Brokers.
4. Use of Proceeds...................................... Investment Programs, Use of Proceeds and
Trading Policies.
5. Determination of Offering Price...................... Plan of Distribution.
6. Dilution............................................. Not Applicable.
7. Selling Security Holders............................. Not Applicable.
8. Plan of Distribution................................. Plan of Distribution.
9. Description of Securities to be Registered........... The Limited Partnership Agreement.
10. Interests of Named Experts and Counsel............... Not Applicable.
11. Information with Respect to the Registrant
(a) Description of Business......................... Summary of the Prospectus; Risk Factors;
Investment Programs, Use of Proceeds and
Trading Policies; General Description of
Trading Approaches; The Trading
Advisors; The Futures, Options and
Forwards Markets; The Limited
Partnership Agreements.
(b) Description of Property.......................... Not Applicable.
(c) Legal Proceedings................................ Certain Litigation; The Trading Advisor.
(d) Market Price of and Dividends on the Registrant's
Common Equity and Related Stockholder Matters.... Risk Factors.
(e) Financial Statements............................. Independent Auditors' Reports.
(f) Selected Financial Data.......................... Selected Financial Data.
(g) Supplementary Financial Information.............. Selected Financial Data.
(h) Management's Discussion and Analysis of Financial
Condition and Results of Operations.............. Not applicable.
(i) Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure.............. Not Applicable.
(j) Directors and Executive Officers................. The General Partner.
(k) Executive Compensation........................... Summary of the Prospectus; Conflicts of
Interest; Fiduciary Responsibility;
Description of Charges; Risk Factors;
The Trading Advisors; The General
Partner; The Commodity Brokers.
(l) Security Ownership of Certain Beneficial Owners
and Management................................... Capitalization; The General Partner;
Independent Auditors' Reports.
(m) Certain Relationships and Related Transactions... Summary of the Prospectus; Conflicts of
Interest; Fiduciary Responsibility;
Description of Charges; Risk Factors;
The Trading Advisors; The General
Partner; The Commodity Brokers.
12. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities..................... Fiduciary Responsibility.
</TABLE>
<PAGE>
EXPLANATORY STATEMENT
The Prospectus contained in this Registration Statement relates not only to
3,000,000 Units of Limited Partnership Interest of Morgan Stanley Dean Witter
Charter Graham L.P. covered by this Registration Statement, but to (i) the
3,000,000 Units of Limited Partnership Interest of Morgan Stanley Dean Witter
Charter Millburn L.P. and (ii) the 3,000,000 Units of Limited Partnership
Interest of Morgan Stanley Dean Witter Charter Welton L.P., each covered by a
separate Registration Statement on Form S-1 filed simultaneously herewith.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
SUBJECT TO COMPLETION: DATED JULY 29, 1998
MORGAN STANLEY DEAN WITTER CHARTER SERIES
MINIMUM OF 400,000 UNITS OF MORGAN STANLEY DEAN WITTER CHARTER GRAHAM L.P.
MINIMUM OF 400,000 UNITS OF MORGAN STANLEY DEAN WITTER CHARTER MILLBURN L.P.
MINIMUM OF 400,000 UNITS OF MORGAN STANLEY DEAN WITTER CHARTER WELTON L.P.
------------------------
The Morgan Stanley Dean Witter Charter Series (the "Charter Series")
consists of three single-advisor commodity pool limited partnerships formed
under the laws of the State of Delaware and engaged primarily in the speculative
trading of futures and forward contracts, options on futures contracts and on
physical commodities, and other commodity interests, including foreign
currencies, financial instruments, precious and industrial metals, energy
products, and agriculturals, as more fully described herein (hereinafter
referred to collectively as "futures interests"). The three partnerships that
comprise the Charter Series are Morgan Stanley Dean Witter Charter Graham L.P.
("Charter Graham"), Morgan Stanley Dean Witter Charter Millburn L.P. ("Charter
Millburn"), and Morgan Stanley Dean Witter Charter Welton L.P. ("Charter
Welton") (individually, a "Partnership," and collectively, the "Partnerships").
Demeter Management Corporation is the general partner of each Partnership (the
"General Partner"). Dean Witter Reynolds Inc. ("DWR") is the selling agent and
non-clearing commodity broker for the Partnerships. DWR has appointed Morgan
Stanley & Co. Incorporated ("MS & Co.") as an additional selling agent for the
Partnerships. In the future, the Charter Series may be expanded to include
additional limited partnerships.
The assets of each Partnership are separately maintained and managed, and
the units of limited partnership interest ("Units") of each Partnership are
separately offered. New subscribers generally are required to invest a minimum
of $20,000 in the Charter Series, and they may allocate their investment among
any one or more of the Partnerships. The minimum investment in any one
Partnership, however, is $5,000. The minimum subscription for subscribers who
already own Units in a given Partnership and desire to make additional
investments in such Partnership is $1,000. See "Investment Requirements."
THESE ARE SPECULATIVE SECURITIES AND INVOLVE A HIGH DEGREE OF RISK. THESE
SECURITIES ARE SUITABLE FOR INVESTMENT ONLY BY A PERSON WHO CAN AFFORD TO LOSE
HIS ENTIRE INVESTMENT. SEE "SUMMARY OF THE PROSPECTUS--INVESTMENT REQUIREMENTS"
(PAGE 1), "RISK FACTORS" (PAGE 12), AND "CONFLICTS OF INTEREST" (PAGE 19).
An investment in the Partnerships involves significant risks, including the
following:
* Futures interests trading is speculative and volatile. Such volatility
could result in an investor losing all or a substantial part of his
investment.
* Each Partnership is subject to substantial charges by its Trading Advisor,
the General Partner, and DWR. Each Partnership must earn estimated annual
net trading profits (after taking into account estimated interest income
based upon current rates of 5%) of 4.2% of its average annual Net Assets
(as defined herein) in order to offset Partnership expenses, and 6.2% to
offset Partnership expenses and the 2% redemption charge if Units are
redeemed at the end of the first twelve months after they are purchased.
* No secondary market for Units exists. Units may be redeemed monthly only
after the end of the sixth month following the closing at which an
investor first became a Limited Partner in the Charter Series. A Unit
redeemed at or prior to the twenty-fourth month following the closing at
which such Unit was issued may be subject to redemption charges. Certain
market conditions may result in possible delays in, or inability to pay,
redemptions.
* Conflicts of interest exist that may adversely affect the Partnerships,
including the facts that DWR, MS & Co., and the General Partner are
affiliates, fees to DWR have not been negotiated in arm's-length
transactions, and DWR employees and additional sellers will receive a
portion of the brokerage fees paid by the Partnerships. See "Conflicts of
Interest."
* A Partnership will not be profitable unless its Trading Advisor is
successful with its trading program(s). Past performance is not
necessarily indicative of future results.
* While the General Partner does not intend to make any distributions,
profits earned by a Partnership in any year will result in taxable income
to investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE COMMODITY FUTURES TRADING COMMISSION HAS NOT PASSED UPON THE MERITS OF
PARTICIPATING IN ANY ONE OF THESE POOLS NOR HAS THE COMMISSION PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS DISCLOSURE DOCUMENT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
INITIAL PRICE
TO
THE SELLING PROCEEDS TO THE
PUBLIC(1)(2) COMMISSIONS PARTNERSHIPS(1)(2)(3)
- --------------------------------------------------------------------------------------------
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<S> <C> <C> <C>
Per Unit................................ $10.00 (1)(2)(3) $10.00
- --------------------------------------------------------------------------------------------
Charter Graham
Total Minimum of 400,000 Units........ $4,000,000 (1)(2)(3) $4,000,000
Total Maximum of 3,000,000 Units...... $30,000,000 $30,000,000
- --------------------------------------------------------------------------------------------
Charter Millburn
Total Minimum of 400,000 Units........ $4,000,000 (1)(2)(3) $4,000,000
Total Maximum of 3,000,000 Units...... $30,000,000 $30,000,000
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Charter Welton
Total Minimum of 400,000 Units........ $4,000,000 (1)(2)(3) $4,000,000
Total Maximum of 3,000,000 Units...... $30,000,000 $30,000,000
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Cover page continued and notes to the
above table on Page i
</TABLE>
MORGAN STANLEY DEAN WITTER
DEAN WITTER REYNOLDS INC.
THE DATE OF THIS PROSPECTUS * , 1998.
<PAGE>
COVER PAGE CONTINUED:
The Partnerships are not mutual funds or any other type of investment
company within the meaning of the Investment Company Act of 1940, as amended,
and are not subject to regulation thereunder.
Units of each Partnership are being offered initially (the "Initial
Offering") at $10 per Unit, for issuance at an initial closing (the "Initial
Closing"), which is currently scheduled to be held on October 31, 1998, but in
no event later than March 12, 1999 (the period from the date of this Prospectus
through November 30, 1998 is referred to as the "Initial Offering Period"). The
Initial Closing may be held at any time during the Initial Offering Period.
Units that remain unsold following the Initial Closing will be available for
sale in the Partnerships' continuing offering of Units (the "Continuing
Offering"). Because each Partnership may register additional Units for sale,
there is no maximum aggregate amount of contributions that may be received by
any Partnership. During the Continuing Offering, Units of each Partnership will
be offered for sale at monthly closings to be held as of the last day of each
month (each, a "Monthly Closing"; any Monthly Closing or the Initial Closing, a
"Closing") at a purchase price equal to 100% of the Net Asset Value per Unit of
such Partnership. An amount equal to 100% of the Net Asset Value of each Unit
sold at a Monthly Closing will be delivered to the Partnership which sold the
Unit.
Subject to certain limitations, the Partnerships will allow their Limited
Partners to shift their investments among the Partnerships by permitting a
Limited Partner to redeem Units in a Partnership and, with the proceeds of such
redemption, purchase Units of one or more other Partnerships at a price equal to
the Net Asset Value (assets less liabilities, divided by number of Units)
thereof (a "Series Exchange"). See "Exchange Privilege."
------------------------
NOTES TO TABLE ON FRONT COVER PAGE:
(1) The minimum initial subscription for most subscribers is $20,000. The
$20,000 minimum subscription may be satisfied by purchasing Units of one or
more Partnerships, except that the minimum subscription for any one
Partnership is $5,000. The minimum subscription per Partnership for Limited
Partners that already own Units in a Partnership and desire to make
additional investments in such Partnership is $1,000.
No underwriting compensation or selling commissions will be paid out of the
proceeds of any Closing. However, except as provided below, employees of DWR
will receive from DWR (payable solely from its own funds) a gross sales
credit equal to 4% of the Net Asset Value per Unit as of the applicable
Closing for each Unit sold by them and issued at such Closing, and/or a
gross sales credit of up to 71% of the brokerage fees attributable to each
outstanding Unit sold by them and received by DWR from the Partnership each
month, which credit will continue until such Partnership terminates or such
Unit is redeemed (whichever comes first). In either case an employee of DWR
will qualify for the continuing compensation only if he is properly
registered with the Commodity Futures Trading Commission ("CFTC") and is a
member of the National Futures Association ("NFA"), and has passed the
Series 3 or Series 31 examination or was "grandfathered" as an associated
person. Such continuing compensation is to be paid in recognition of the
employee's continuing services to the Limited Partners. For a description of
the terms and conditions applicable to such gross sales credits and the
continuing services to be rendered by DWR employees, see "Plan of
Distribution." The Selling Agreement among DWR and the Partnerships provides
that such compensation may only be paid by DWR as long as such services are
provided. Such continuing compensation paid by DWR may be deemed to be
underwriting compensation. No person will receive the continuing
compensation described above who is not a DWR employee at the time of
receipt of payment.
DWR will not pay to its employees the 4% initial gross sales credit
described above with respect to Units purchased pursuant to a Series
Exchange or purchased by an eligible subscriber with the proceeds of a
redemption of all or a portion of such subscriber's interest in any other
commodity pool for which the General Partner serves as the general partner
and commodity pool operator (a "Non-Series Exchange"). In order to be
eligible to purchase Units pursuant to a Non-Series Exchange, an investor
must purchase Units with the proceeds of a redemption from another commodity
pool for which the General Partner serves as the general partner and
commodity pool operator on the date of the Monthly Closing as of which the
redemption from such other commodity pool becomes effective. Such employees
will, however, receive continuing gross sales credits with respect to
brokerage fees received by DWR from a Partnership. See "Plan of
Distribution."
DWR has appointed MS & Co. as its agent to make offers and sales of Units.
DWR, with the approval of the General Partner, may also appoint additional
selling agents (MS & Co. and any such selling agent, an
i
<PAGE>
"Additional Seller"), provided such Additional Seller is a member of the
National Association of Securities Dealers, Inc. ("NASD") or, under certain
conditions, a foreign person as described under "Plan of Distribution." DWR
may compensate any Additional Seller for each Unit sold by it by paying such
Additional Seller a selling commission, payable by DWR solely from its own
funds, not to exceed 4% of the Net Asset Value of such Unit. Additional
Sellers who are properly registered with the CFTC and are members of the NFA
also may receive from DWR, payable solely from DWR's own funds, continuing
compensation for providing to Limited Partners the continuing services
referred to above. Such continuing compensation may be up to 35% annually of
the brokerage fees attributable to outstanding Units sold by such Additional
Sellers and received by DWR as commodity broker for each Partnership (except
MS & Co., which will be compensated at the same rate as DWR employees).
Additional Sellers may pay all or a portion of such continuing compensation
to their employees who have sold Units and provide continuing services to
Limited Partners if such employees are properly registered with the CFTC and
are members of the NFA. Such continuing compensation may be deemed to be
underwriting compensation. See "Plan of Distribution."
No part of the compensation described above will be paid by a Partnership
and, accordingly, Net Assets will not be reduced as a result of such
compensation. DWR has agreed to indemnify any Additional Seller against
certain civil liabilities, including liabilities under the Securities Act of
1933, as amended. DWR will be indemnified by each Partnership against
certain civil liabilities.
(2) Subscriptions received during the Initial Offering Period and not
immediately rejected by the General Partner will be held in escrow by The
Chase Manhattan Bank, New York, New York (the "Escrow Agent"), until such
subscriptions are either accepted or rejected by the General Partner or the
Initial Offering Period is concluded. The funds will be invested solely in
the Escrow Agent's interest-bearing money market account. Interest will be
earned on subscription funds from the day of deposit of such funds with the
Escrow Agent to the day that such funds are either accepted or rejected by
the General Partner; such interest will be credited to the subscribers'
customer accounts with DWR. If 400,000 or more Units of a Partnership are
subscribed for at or prior to the end of the Initial Offering Period, the
Initial Closing for such Partnership shall be held, and the proceeds of the
offering of such Units will be contributed to that Partnership. If fewer
than 400,000 Units of a Partnership have been subscribed for at the
termination of the Initial Offering Period, the subscriptions for that
Partnership will be promptly credited to each subscriber's customer account
with DWR within five business days following the termination of the Initial
Offering Period, together with any interest earned on such subscriber's
escrowed funds. It is contemplated that only one Initial Closing shall be
held for the Partnerships, and it is not a condition of the Initial Closing
that all three Partnerships sell the minimum number of Units.
Subscriptions received during the Continuing Offering and not immediately
rejected by the General Partner will be held in escrow by the Escrow Agent,
and invested solely in the Escrow Agent's interest-bearing money market
account. Interest will be earned on subscription funds from the day of
deposit of such funds with the Escrow Agent to the day that such funds are
either accepted or rejected by the General Partner. Any subscription
received by DWR during the last five business days of a month and not
rejected may be held in escrow until the second Monthly Closing immediately
following receipt of such subscription. The General Partner will determine
whether to accept or reject a subscription generally within ten days of the
receipt of a complete and executed Subscription and Exchange Agreement and
Power of Attorney. See "Plan of Distribution."
(3) DWR will pay all of the costs incurred in connection with the organization
of the Partnerships and the Initial Offering of Units by the Partnerships,
estimated to be approximately $1,000,000 in the aggregate. Pursuant to the
Selling Agreement among DWR, the General Partner and the Partnerships, DWR
also will pay all of the costs incurred in connection with the Continuing
Offering. Such costs will include legal, accounting, and auditing fees,
printing costs, filing fees, escrow fees, marketing costs and expenses, and
other related expenses incurred in connection with the offering of Units.
The Partnerships will not reimburse DWR for any such organizational and
offering costs, and while DWR may recoup such costs from brokerage fees paid
by the Partnerships, the Partnerships will not be liable for any such costs
at any time. Investments by subscribers are not subject to any upfront fees,
commissions or expenses and, therefore, 100% of the proceeds of the Initial
Offering and Continuing Offering shall be available for investment in each
Partnership. The number of Units sold of each Partnership will have no
effect on the Net Asset Value per Unit of such Partnership.
------------------------
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE MATTERS
DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
ii
<PAGE>
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER BY ANY PERSON WITHIN ANY JURISDICTION IN
WHICH SUCH OFFER IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER IS
NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM SUCH OFFER WOULD BE UNLAWFUL.
THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF ITS ISSUE.
UNTIL 90 DAYS FROM THE DATE OF THIS PROSPECTUS, ALL DEALERS EFFECTING
TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS
DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO
THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS
AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
------------------------
The Partnerships will be subject to the informational requirements of the
Securities Exchange Act of 1934 and in accordance therewith will file reports,
proxy statements and other information with the Securities and Exchange
Commission (the "SEC"). These reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the
SEC at the SEC's office at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and at its regional offices located at 7 World Trade Center, Suite 1300,
New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained from the Public
Reference Section of the SEC at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, and at the regional offices described above at prescribed rates. The
SEC maintains a World Wide Web site containing reports, proxy and information
statements, and other information regarding registrants that file electronically
with the SEC. The address of such Web site is: http://www.sec.gov.
The Partnerships have filed with the SEC, in Washington, D.C., Registration
Statements on Form S-1 under the Securities Act of 1933, as amended, with
respect to the Units offered hereby. This Prospectus does not contain all the
information included in such Registration Statements, certain items of which
were omitted in accordance with the Rules and Regulations of the SEC. For
further information about the Partnerships and the Units offered hereby,
reference is made to the Registration Statements and the exhibits thereto.
The Partnerships must furnish all Limited Partners annual and monthly
reports complying with CFTC requirements. The annual reports will contain
audited, and the monthly reports unaudited, financial information. The audited
financial statements will be examined and reported upon by independent certified
public accountants.
iii
<PAGE>
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 A POOL AND
CONSEQUENTLY THE VALUE OF YOUR INTEREST IN A POOL. IN ADDITION, RESTRICTIONS ON
REDEMPTIONS MAY AFFECT YOUR ABILITY TO WITHDRAW YOUR PARTICIPATION IN A 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 TO EACH POOL BEGINNING AT
PAGE 22 AND A STATEMENT OF THE PERCENTAGE RETURN NECESSARY TO BREAK EVEN, THAT
IS TO RECOVER THE AMOUNT OF YOUR INITIAL INVESTMENT, AT PAGE 25.
THIS BRIEF STATEMENT CANNOT DISCLOSE ALL THE RISKS AND OTHER FACTORS
NECESSARY TO EVALUATE YOUR PARTICIPATION IN EACH COMMODITY POOL. THEREFORE,
BEFORE YOU DECIDE TO PARTICIPATE IN ANY OF THESE COMMODITY POOLS, YOU SHOULD
CAREFULLY STUDY THIS DISCLOSURE DOCUMENT, INCLUDING A DESCRIPTION OF THE
PRINCIPAL RISK FACTORS OF THIS INVESTMENT BEGINNING AT PAGE 12.
YOU SHOULD ALSO BE AWARE THAT EACH 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 WHICH OFFER DIFFERENT OR DIMINISHED PROTECTION TO EACH POOL AND
THEIR 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 EACH POOL MAY BE
EFFECTED.
iv
<PAGE>
TABLE OF CONTENTS
PAGE
PAGE
<TABLE>
<S> <C>
Risk Disclosure Statement.............................. iv
Summary of the Prospectus.............................. 1
Investment Requirements.............................. 1
Additional Information............................... 2
The Morgan Stanley Dean Witter Charter Series........ 2
The General Partner.................................. 3
The Commodity Brokers................................ 4
Risk Factors......................................... 4
Risks Relating to Futures Interests Trading........ 4
Risks Relating to the Partnerships and the Offering
of Units......................................... 4
Risks Relating to the Trading Advisors............. 5
Taxation and Regulalory Risks...................... 5
Conflicts of Interest................................ 5
Description of Charges............................... 5
Charges to Each Partnership........................ 5
Redemption Charges to Limited Partners............. 6
Exchange Privilege................................... 7
Redemption of Units.................................. 7
Distributions........................................ 8
Transferability of Units............................. 8
The Offering......................................... 8
Securities Offered................................. 8
Subscription Procedure............................. 8
Plan of Distribution............................... 9
No Selling Commissions or Charges for
Organizational or Offering Expenses.............. 9
Suitability Standards.............................. 10
Use of Proceeds...................................... 10
Interest on Partnership Assets....................... 10
Tax Considerations................................... 10
Risk Factors........................................... 12
Risks Relating to Futures Interests Trading and the
Futures Interests Markets.......................... 12
Futures Interests Trading is Speculative and
Volatile........................................... 12
Futures Interests Trading is Highly Leveraged...... 12
Futures Interests Trading May Be Illiquid.......... 12
Special Risks Associated with Forward Trading...... 13
Special Risks Associated with Trading on Foreign
Exchanges........................................ 13
Special Risks Associated with Trading of Futures
Options.......................................... 13
The Partnerships Have Credit Risk to the Commodity
Brokers.......................................... 14
Possible Effects of Speculative Position Limits.... 14
Risks Relating to the Partnerships and the Offering
of Units........................................... 14
Substantial Charges to Each Partnership............ 14
Restricted Investment Liquidity in the Units....... 14
Conflicts of Interest in Each Partnership's
Structure.......................................... 15
Limited Partners Will Not Participate in
Management......................................... 15
Reliance on the General Partner.................... 15
No Assurance That Units Will Be Sold............... 15
Special Characteristics of Start-up Period......... 15
No Operating History of the Partnerships........... 15
Certain Litigation................................. 16
Risks Relating to the Trading Advisors............... 16
Reliance on the Trading Advisor to Trade
Successfully..................................... 16
Past Performance Not Necessarily Indicative of
Future Results................................... 16
Market Factors May Adversely Influence the Trading
Programs......................................... 16
Possible Consequence of Increasing Assets Managed
by a Trading Advisor............................. 16
Limited Term of Management Agreements May Limit
Access to the Trading Advisors................... 16
Possible Adverse Consequences of Changing a Trading
Advisor or its Trading Program................... 17
Trading Decisions Based on a Technical Trading
Approach May Not Perform Under Certain Market
Conditions....................................... 17
Taxation and Regulatory Risks........................ 17
Partner's Tax Liability May Exceed Distributions... 17
Possible Limitation on Deduction of Certain
Expenses......................................... 17
Redemption of Units May Produce Negative Tax
Consequences..................................... 18
Tax Laws are Subject to Change..................... 18
Deductibility of Passive Losses May Be Limited..... 18
Possibility of Tax Audit........................... 18
Absence of Regulations Applicable to Securities
Mutual Funds and Their Advisers.................. 18
Conflicts of Interest.................................. 19
Relationship of the General Partner to DWR as
Commodity Broker................................... 19
Accounts of Affiliates of the General Partner, the
Trading Advisors, and the Commodity Brokers........ 20
Management of Other Accounts by the Trading
Advisors........................................... 20
Customer Agreements with the Commodity Brokers....... 20
Other Commodity Pools................................ 21
Fiduciary Responsibility............................... 21
Description of Charges................................. 22
Charges to Each Partnership.......................... 22
1. Trading Advisors................................ 22
2. Commodity Brokers............................... 24
3. Extraordinary Expenses.......................... 24
4. Expense Limitations............................. 24
Redemption Charges to Limited Partners............... 25
Break-Even Analysis.................................. 25
</TABLE>
v
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PAGE
<TABLE>
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Investment Programs, Use of Proceeds and Trading
Policies............................................. 27
Investment Programs of each Charter Series
Partnership........................................ 28
Morgan Stanley Dean Witter Charter Graham L.P........ 28
Morgan Stanley Dean Witter Charter Millburn L.P...... 28
Morgan Stanley Dean Witter Charter Welton L.P........ 29
Additional Partnerships.............................. 29
Trading Policies..................................... 29
Capitalization......................................... 30
The General Partner.................................... 31
Directors and Officers of the General Partner........ 32
Description and Performance Information of Commodity
Pools Operated by the General Partner.............. 33
The Trading Advisors................................... 37
Introduction......................................... 37
General Description of Trading Approaches............ 37
Systematic and Discretionary....................... 37
Technical and Fundamental Analysis................. 37
Trend-Following.................................... 38
Risk Control Techniques............................ 38
The Trading Advisors................................. 38
Morgan Stanley Dean Witter Charter Graham L.P...... 39
Morgan Stanley Dean Witter Charter Millburn L.P.... 46
Morgan Stanley Dean Witter Charter Welton L.P...... 55
The Management Agreements.............................. 64
Term................................................. 64
Liability and Indemnification........................ 64
Obligations to a Partnership......................... 64
Exchange Privilege..................................... 64
Redemptions............................................ 65
The Commodity Brokers.................................. 66
Description of the Commodity Brokers................. 66
Brokerage Arrangements............................... 67
Certain Litigation..................................... 67
The Futures, Options and Forwards Markets.............. 68
Futures Contracts.................................... 68
Forward Contracts.................................... 69
Options on Futures................................... 69
Hedgers and Speculators.............................. 70
Commodity Exchanges.................................. 70
Speculative Position Limits.......................... 70
Daily Limits......................................... 71
Regulations.......................................... 71
Margins.............................................. 72
The Limited Partnership Agreements..................... 73
Nature of the Partnerships........................... 73
Management of Partnership Affairs.................... 73
Sharing of Profits and Losses........................ 74
Restrictions on Transfers or Assignments............. 74
Amendments; Meetings................................. 74
Indemnification...................................... 75
Reports to Limited Partners.......................... 76
Plan of Distribution................................... 77
Subscription Procedure................................. 79
Purchases by Employee Benefit Plans--ERISA
Considerations....................................... 81
Material Federal Income Tax Considerations............. 82
Introduction......................................... 82
Partnership Status................................... 82
Partnership Taxation................................. 83
Cash Distributions and Redemptions................... 83
Gain or Loss on Trading Activity..................... 83
Taxation of Limited Partners......................... 85
Tax Audits........................................... 88
State and Local Income Tax Aspects..................... 89
Potential Advantages................................... 89
Investment Diversification........................... 89
Futures Interests Traded............................. 93
Exchange Privilege................................... 94
Diversified Professional Trading Management.......... 94
Limited Liability.................................... 94
Interest Income...................................... 94
Administrative Convenience........................... 94
Legal Matters.......................................... 94
Experts................................................ 95
Additional Information................................. 95
Glossary............................................... 95
Certain Terms and Definitions........................ 95
Blue Sky Glossary.................................... 97
Morgan Stanley Dean Witter Charter Graham L.P., Morgan
Stanley Dean Witter Charter Millburn L.P., and Morgan
Stanley Dean Witter Charter Welton L.P.
Independent Auditors' Report......................... F-1
Statements of Financial Condition.................... F-2
Notes to Statements of Financial Condition........... F-5
Demeter Management Corporation
Independent Auditors' Report......................... F-7
Statements of Financial Condition.................... F-8
Notes to Statements of Financial Condition........... F-9
(certain information relating to the financial
condition of Demeter Management Corporation's
parent is contained in "The General Partner")
Exhibit A--Form of Limited Partnership Agreement....... A-1
Annex--Request for Redemption........................ A-21
Exhibit B--Specimen Form of Subscription and Exchange
Agreement and Power of Attorney...................... B-1
</TABLE>
vi
<PAGE>
SUMMARY OF THE PROSPECTUS
THE DATE OF THIS PROSPECTUS IS *, 1998.
The following is a summary of this Prospectus. This
Prospectus contains more detailed information under the captions referred to
below, and this summary is qualified in its entirety by the information
appearing elsewhere herein.
INVESTMENT REQUIREMENTS
The minimum investment for most subscribers is $20,000,
except that, in the case of eligible subscribers who, pursuant to a Subscription
and Exchange Agreement and Power of Attorney (a "Subscription Agreement"),
redeem units of limited partnership interest in any other commodity pool for
which the General Partner serves as the general partner and commodity pool
operator, and use the proceeds of such redemption to purchase Units of the
Partnerships (each such purchase is hereinafter referred to as a "Non-Series
Exchange"), the $20,000 minimum investment will be satisfied if the proceeds of
the redemption of the units redeemed would have equaled at least $20,000 as of
the last day of the month immediately preceding the Closing at which the Units
are purchased, irrespective of whether the actual proceeds from such redemption
are less than $20,000 when the units are redeemed. In order to be eligible to
purchase Units pursuant to a Non-Series Exchange, an investor must purchase
Units at the Closing held as of the date on which the redemption from the other
commodity pool becomes effective. A subscription may be for Units of one
Partnership, or may be divided among two or all three Partnerships, provided
that the minimum subscription for any one Partnership is: (a) in the case of a
cash purchase, $5,000, or (b) in the case of a Non-Series Exchange, the proceeds
from the redemption of (i) five units from commodity pools other than the
Spectum Series or Morgan Stanley Tangible Asset Fund L.P. ("MSTAF"), (ii) 500
units from one, or any combination, of the Spectrum Series, or (iii) 500 units
from MSTAF. The minimum subscription per Partnership for subscribers who already
own Units in a Partnership and desire to make an additional investment in such
Partnership is: (a) in the case of a cash purchase, $1,000, or (b) in the case
of a Non-Series Exchange, the proceeds from the redemption of (i) one unit from
commodity pools other than the Spectrum Series or MSTAF, (ii) 100 units from
one, or any combination, of the Spectrum Series, or (iii) 100 units from MSTAF.
Subscribers should be aware that there are minimum net worth
and/or annual income suitability standards that must be met in order to
subscribe for Units. Each subscriber must represent and warrant in a
Subscription Agreement that such subscriber has received this Prospectus and
that such subscriber meets the applicable State minimum financial suitability
standard set forth in the Subscription Agreement, and may be required to provide
additional information regarding the subscriber's background and investment
history. DWR and its financial advisors, or the Additional Seller who sold the
Units, have a duty to determine that this is a suitable investment for the
subscriber.
Unless otherwise specified in the Subscription Agreement
under "State Suitability Requirements," a subscriber must have either: (a) a net
worth of at least $150,000 (exclusive of home, furnishings, and automobiles), or
(b) a net worth of at least $45,000 (exclusive of home, furnishings, and
automobiles) and an annual income of at least $45,000. Certain jurisdictions
impose more restrictive suitability requirements than those set forth above,
including requirements for a higher net worth, a higher annual income, or both.
A list of such jurisdictions and the restrictions imposed is included in the
Subscription Agreement under the heading "State Suitability Requirements." A
specimen form of the Subscription Agreement is annexed hereto as Exhibit B. A
separate execution copy of the Subscription Agreement either accompanies this
Prospectus or may be obtained, after delivery of this Prospectus, from a local
DWR branch office.
Subject to certain limited revocation rights (see
"Subscription Procedure"), all subscriptions for Units are irrevocable by
subscribers, and the General Partner may, in its sole discretion, reject any
subscription in whole or in part. There are significant restrictions on the
ability of a Limited Partner to redeem Units, and although the Limited
Partnership Agreement of each Partnership permits the transfer of Units subject
to certain conditions, there is no public market for the Units and none is
likely to develop. Therefore, a purchaser of Units must be able to bear the
economic risks of an investment in a Partnership for a significant period of
time. See "The Limited Partnership Agreements--Restrictions on Transfers or
Assignments" and "Redemptions."
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<PAGE>
ADDITIONAL INFORMATION
In addition to this Prospectus, a sales brochure and certain
other sales literature prepared by DWR may be delivered with this Prospectus or
may be obtained from a DWR financial advisor or by writing to Dean Witter
Reynolds Inc., Two World Trade Center, 62nd Floor, New York, New York, 10048.
Following commencement of trading, the Partnerships' monthly reports prepared by
the General Partner will be delivered with this Prospectus.
THE MORGAN STANLEY DEAN WITTER CHARTER SERIES
The Morgan Stanley Dean Witter Charter Series (the "Charter
Series ") consists of three Delaware limited partnerships, each formed to engage
primarily in the speculative trading of futures and forward contracts, options
on futures contracts and on physical commodities, and other commodities
interests, including foreign currencies, financial instruments, precious and
industrial metals, energy products, and agriculturals (hereinafter referred to
collectively as "futures interests"). The Charter Series consists of Morgan
Stanley Dean Witter Charter Graham L.P. ("Charter Graham"), Morgan Stanley Dean
Witter Charter Millburn L.P. ("Charter Millburn"), and Morgan Stanley Dean
Witter Charter Welton L.P. ("Charter Welton") (individually, a "Partnership,"
and collectively, the "Partnerships"). Each of the Partnerships was organized as
a limited partnership on July 15, 1998 under the Delaware Revised Uniform
Limited Partnership Act (the "Partnership Act"). The offices of each Partnership
are located at Two World Trade Center, 62nd Floor, New York, New York 10048,
telephone (212) 392-8899. The taxable year for each Partnership is the calendar
year.
A Partnership will terminate upon the first to occur of the
following: (a) December 31, 2035; (b) an election to terminate and dissolve the
Partnership at a specified time by Limited Partners owning more than 50% of its
outstanding Units; (c) the withdrawal, insolvency, bankruptcy, dissolution,
liquidation or termination of the General Partner unless the Partnership's
business is continued by a remaining or successor general partner; (d) the
occurrence of any event which shall make it unlawful for the existence of the
Partnership to be continued; (e) a decline in the Net Asset Value of a Unit as
of the close of business (as determined by the General Partner) on any day to
less than $2.50; (f) a decline in the Partnership's Net Assets as of the close
of business (as determined by the General Partner) on any day to $250,000 or
less; (g) a determination by the General Partner that the Partnership's Net
Assets in relation to its operating expenses make it unreasonable or imprudent
to continue the business of the Partnership; (h) a determination by the General
Partner upon 120 days' notice to the Limited Partners to terminate the
Partnership; or (i) a determination by the General Partner to terminate the
Partnership following a Special Redemption Date. See "The Limited Partnership
Agreements--Reports to Limited Partners" as to Special Redemption Dates.
In the future, the Charter Series may be expanded to include
additional limited partnerships.
Each Partnership trades pursuant to trading programs
utilized by its trading advisor (each, a "Trading Advisor" or "Money Manager,"
and collectively, the "Trading Advisors" or "Money Managers"), as described more
fully in "The Trading Advisors." Although the General Partner believes that each
Partnership offers its Limited Partners a different trading approach and,
correspondingly, a different potential rate of return on their investment, all
speculative trading of futures interests is inherently risky and there can be no
assurance that a Partnership can achieve a desired rate of return or effectively
reduce the risk arising from an investment in such Partnership.
Certain Summary Information for Morgan Stanley Dean Witter Charter Graham L.P.
<TABLE>
<S> <C>
Trading Advisor: Graham Capital Management, L.P. Break-Even Information:
Partnership Net Assets initially allocated to: Percentage of estimated annual net
Global Diversified Program: 100% trading profits (after interest
income) in order to offset
Partnership expenses: 4.2%
Global Diversified Program annual rates of return: Percentage of estimated annual net
trading profits (after interest
1998 year-to-date return (5 months): 3.61% income) in order to offset
1997 annual return: 4.97% Partnership expenses and the 2% re-
1996 annual return: 14.14% demption charge if Units are
1995 annual return: 23.20% redeemed during the first twelve
1994 annual return (6 months): (3.73)% months after they are purchased:6.2%
</TABLE>
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<PAGE>
See "Description of Charges -- Break-Even Analysis" for details regarding the
above break-even information. The allocation of Net Assets to specific trading
programs of the Trading Advisor is subject to change. See "The Trading Advisors
- -- Morgan Stanley Dean Witter Charter Graham L.P." for information regarding
Graham Capital Management, L.P. and its trading programs.
Certain Summary Information for Morgan Stanley Dean Witter Charter Millburn L.P.
<TABLE>
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Trading Advisor: Millburn Ridgefield Corporation Break-Even Information:
Partnership Net Assets initially allocated to: Percentage of estimated annual net
Diversified Portfolio: 100% trading profits (after interest
income) in order to offset
Partnership expenses: 4.2%
Diversified Portfolio annual rates of return: Percentage of estimated annual net
1998 year-to-date return (5 trading profits (after interest
months): (2.63)% income) in order to offset
1997 annual return: 12.61% Partnership expenses and the 2% re-
1996 annual return: 17.33% demption charge if Units are
1995 annual return: 32.82% redeemed during the first twelve
1994 annual return: 11.78% months after they are purchased:6.2%
1993 annual return: 10.90%
</TABLE>
See "Description of Charges -- Break-Even Analysis" for details regarding the
above break-even information. The allocation of Net Assets to specific trading
programs of the Trading Advisor is subject to change. See "The Trading Advisors
- -- Morgan Stanley Dean Witter Charter Millburn L.P." for information regarding
Millburn Ridgefield Corporation and its trading programs.
Certain Summary Information for Morgan Stanley Dean Witter Charter Welton L.P.
<TABLE>
<S> <C>
Trading Advisor: Welton Investment Corporation Break-Even Information:
Partnership Net Assets initially allocated to: Percentage of estimated annual net
Diversified Portfolio: 100% trading profits (after interest
income) in order to offset
Partnership expenses: 4.2%
Diversified Portfolio annual rates of return: Percentage of estimated annual net
1998 year-to-date return (5 months): 9.56% trading profits (after interest
1997 annual return: 23.62% income) in order to offset
1996 annual return: 7.17% Partnership expenses and the 2% re-
1995 annual return: 36.35% demption charge if Units are
1994 annual return: 2.38% redeemed during the first twelve
1993 annual return: 47.90% months after they are purchased:6.2%
</TABLE>
See "Description of Charges -- Break-Even Analysis" for details regarding the
above break-even information. The allocation of Net Assets to specific trading
programs of the Trading Advisor is subject to change. See "The Trading Advisors
- -- Morgan Stanley Dean Witter Charter Welton L.P." for information regarding
Welton Investment Corporation and its trading programs.
THE GENERAL PARTNER
The general partner and commodity pool operator of each
Partnership is Demeter Management Corporation, a Delaware corporation ("Demeter"
or the "General Partner"). The General Partner is a wholly-owned subsidiary of
Morgan Stanley Dean Witter & Co. ("MSDW"). See "Conflicts of Interest," "The
General Partner" and "The Commodity Brokers." Although each Trading Advisor
makes all trading decisions with respect to the Partnership for which it trades,
the General Partner may override the instructions of each Trading Advisor and
make trading decisions under certain circumstances. See "The Management
Agreements." The General Partner's main business office is located at Two World
Trade Center, 62nd Floor, New York, New York 10048, Telephone (212) 392-5453.
The General Partner is or has been the general partner and commodity pool
operator
3
<PAGE>
of 33 commodity pools, seven of which have terminated. The General Partner had,
in the aggregate, approximately $1.2 billion of net assets under management as
of May 31, 1998.
THE COMMODITY BROKERS
DWR will act as the Partnerships' non-clearing commodity
broker. Carr Futures, Inc., a Delaware corporation ("CFI" and, together with
DWR, the "Commodity Brokers"), will act as the clearing commodity broker for the
Partnerships' futures interests trades and as the counterparty on the
Partnerships' foreign currency forward contracts. DWR currently acts as the
non-clearing commodity broker for all but one of the commodity pools for which
the General Partner acts as general partner and commodity pool operator, as well
as for other commodity pools. DWR is a wholly-owned subsidiary of MSDW and an
affiliate of the General Partner, but is not affiliated with CFI or any Trading
Advisor. CFI is a wholly-owned subsidiary of Credit Agricole Indosuez and acts
as the clearing commodity broker for all but one of the commodity pools for
which the General Partner acts as general partner and commodity pool operator.
CFI is not affiliated with the General Partner, DWR, MSDW, or any of the Trading
Advisors. See "Conflicts of Interest," "Description of Charges--Charges to Each
Partnership--2. The Commodity Brokers" and "The Commodity Brokers."
RISK FACTORS
As a general matter, an investment in any Partnership is
speculative and involves substantial risk, including the risk of loss of a
Limited Partner's entire investment. All of the risks described below are
relevant to each of the Partnerships. Risks of an investment in each of the
Partnerships include:
Risks Relating to Futures Interests Trading
O Futures interests trading is speculative and volatile.
Such volatility could result in an investor losing all
or a substantial part of his investment.
O Futures interests trading is highly leveraged and
relatively small price movements can result in
significant losses to a Partnership.
O Futures interests trading may be illiquid and in
certain situations prevent a Partnership from limiting
its loss on an unfavorable position.
O Trading in forward contracts may subject a Partnership
to losses if a counterparty is unable to meet its
obligations.
O Trading on foreign exchanges may result in a
Partnership having less regulatory protection
available. In addition, a Partnership may suffer
losses due to exchange rate changes.
O Trading in futures options can be extremely expensive
if market volatility is incorrectly predicted.
O The Partnerships have credit risk because the
Commodity Brokers act as the futures commission
merchants or the counterparty with respect to the
Partnerships' assets.
O Speculative position limits may result in a
Partnership having to liquidate profitable positions.
Risks Relating to the Partnerships and the Offering of Units
O Each Partnership incurs substantial charges regardless
of whether it realizes profits. Each Partnership must
earn estimated annual net trading profits (after
taking into account estimated interest income based
upon current rates of 5%) of 4.2% of its average
annual Net Assets to offset Partnership expenses, and
6.2% to offset Partnership expenses and the 2%
redemption charge if Units are redeemed at the end of
the first twelve months after they are purchased.
O The liquidity of the Units is restricted in that there
is an absence of a secondary market, the ability to
assign or transfer is restricted, redemptions are
limited to monthly beginning with the sixth month
after a Limited Partner first becomes a partner in any
Partnership, and Units redeemed within twenty-four
months of their purchase may be subject to redemption
charges.
O Significant actual and potential conflicts of interest
exist involving the General Partner, the Partnerships,
DWR and the Additional Sellers.
O Limited Partners do not participate in the management
of the Partnerships or in the conduct of their
business.
O Limited Partners must rely on the General Partner's
selection of Trading Advisors.
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<PAGE>
O THE POOLS HAVE NOT COMMENCED TRADING AND DO NOT HAVE
ANY PERFORMANCE HISTORY.
Risks Relating to the Trading Advisors
O A Partnership will not be profitable unless its
Trading Advisor is successful with its trading
program(s).
O The performance record of a given Trading Advisor may
be potentially misleading because a Trading Advisor's
past performance is not necessarily indicative of
future results.
O Factors outside the control of a Trading Advisor may
reduce the profitability of a trading program or
require an alteration in the program(s).
O A substantial increase in the assets managed by a
Trading Advisor may adversely affect its performance.
O The Management Agreement with a particular Trading
Advisor may or may not be renewed, may be renewed on
less favorable terms to the Partnership, or may be
terminated by the Trading Advisor such that the
Trading Advisor will no longer be available to the
Partnership.
O The General Partner, without prior notice to the
Limited Partners, may replace or add an additional
Trading Advisor to a Partnership or may instruct an
existing Trading Advisor to trade a Partnership's Net
Assets among one or more of a Trading Advisor's
trading programs.
O Technical trading programs require trending markets
and substantial price moves to be profitable.
Taxation and Regulatory Risks
O Profits earned in any year will result in taxable
income to investors, even though the General Partner
does not intend to make any distributions.
O Deductibility of certain of a Partnership's expenses
may be limited.
O A Partnership's tax return may be audited by the
Internal Revenue Service.
O The Partnerships are not registered as investment
companies or mutual funds, and investors, therefore,
are not afforded the protective measures provided by
such registration.
Only the General Partner will be liable for a Partnership's
obligations (including margin calls) to the extent that the Partnership's
assets, including amounts contributed by the Limited Partners and amounts paid
to Limited Partners upon redemptions, distributions or otherwise (together with
interest thereon), are insufficient to meet those obligations. See "Risk
Disclosure Statement," "Risk Factors," "Conflicts of Interest," "Description of
Charges," and "The Limited Partnership Agreements--Nature of the Partnerships."
CONFLICTS OF INTEREST
Significant actual and potential conflicts of interest exist
in the structure and operation of the Partnerships, principally arising from the
affiliation between the General Partner and DWR and the trading of other
accounts of, or managed by, the General Partner, DWR, the Trading Advisors and
their affiliates. Such conflicts include the fact that the commodity brokerage
arrangements were not agreed upon in arm's-length negotiations due to the
affiliation between the General Partner and DWR; that employees of DWR and
Additional Sellers selling Units will receive a portion of the brokerage fees
paid by the Partnerships, and thereby have a conflict in advising Limited
Partners whether and when to redeem Units; that the General Partner and the
Commodity Brokers may have conflicting demands in respect of other commodity
pools; that the Trading Advisors and the Commodity Brokers, and individuals and
entities associated with the General Partner, the Trading Advisors and the
Commodity Brokers may trade futures interests for their own accounts, which
trading may compete with a Partnership for positions; that trading by the
Trading Advisors for their own accounts and for other customers could result in
application of position limits to restrict a Partnership's trading; that under
the customer agreements with the Commodity Brokers, the Commodity Brokers may
close out positions and take certain other actions with regard to a
Partnership's accounts without the Partnership's consent; and that other
commodity pools managed by the General Partner and the Trading Advisors may
compete with the Partnerships. See "Conflicts of Interest," "The General
Partner," "The Commodity Brokers," and "The Trading Advisors."
DESCRIPTION OF CHARGES
CHARGES TO EACH PARTNERSHIP
Each Partnership is subject to substantial charges which are
summarized below and described in detail under "Description of Charges --
Charges to Each Partnership." The charges described below are the same for
5
<PAGE>
each Partnership. See also "Risk Factors--Risks Relating to the Partnerships and
the Offering of Units--Substantial Charges to Each Partnership," and "Investment
Programs, Use of Proceeds and Trading Policies."
<TABLE>
<S> <C>
FORM OF COMPENSATION AMOUNT OF COMPENSATION
- ----------------------------------------------- ------------------------------------------------------
Monthly management fee to the Trading Advisor.. A flat-rate monthly fee of 1/12 of 2% of the
Partnership's Net Assets on the first day of each
month (a 2% annual rate).
Monthly incentive fee to the Trading Advisor... 20% of the Trading Profits experienced by the
Partnership as of the end of each calendar month.
Monthly brokerage fee to DWR................... A flat-rate monthly fee of 1/12 of 7% of the
Partnership's Net Assets (a 7% annual rate) as of the
first day of the month. Such fee covers all brokerage
commissions, transaction fees and costs, and ordinary
administrative and offering expenses.
Financial benefit to DWR and CFI or their
affiliates from interest earned on the
Partnership's assets in excess of the interest
paid to the Partnership and from compensating
balance treatment in connection with the
designation of a bank or banks in which the
Partnership's assets are deposited............. The aggregate of (i) the flat-rate brokerage fee
payable by the Partnership, as described above, and
(ii) net excess interest and compensating balance
benefits to DWR and CFI or their affiliates (after
crediting the Partnership with interest) will not
exceed 14% annually of the Partnership's average
month-end Net Assets during a calendar year.
</TABLE>
The management, incentive, and brokerage fees may not be
increased unless Limited Partners of a Partnership are given prior notice
thereof and an opportunity to redeem their Units, and are subject to additional
limits as described under "Description of Charges--Charges to Each Partnership."
Based on the annual fees and expenses described above, each
Partnership must earn estimated annual net trading profits (after taking into
account estimated interest income based upon current rates of 5%) of 4.2% of its
average annual Net Assets in order to offset Partnership expenses.
REDEMPTION CHARGES TO LIMITED PARTNERS
Persons who have been Limited Partners in a Charter Series
Partnership for six months may redeem all or part of their Units, regardless of
when such Units were purchased, at any month-end (a "Redemption Date") in the
manner described herein.
Subject to certain exceptions, Units redeemed on or prior to
the last day of the twelfth month after such Units were purchased will be
subject to a redemption charge equal to 2% of the Net Asset Value of a Unit on
the Redemption Date. Units redeemed after the last day of the twelfth month and
on or prior to the last day of the twenty-fourth month after which such Units
were purchased will be subject to a redemption charge equal to 1% of the Net
Asset Value of a Unit on the Redemption Date. Units redeemed after the last day
of the twenty-fourth month after which such Units were purchased will not be
subject to a redemption charge. The foregoing redemption charges will be paid to
DWR. For a more detailed discussion, including exceptions to such charges, see
"Redemptions."
Based on the annual fees and expenses of each Partnership
described above, in order for a Limited Partner to break-even (earning profits
sufficient to pay the redemption charge and recoup its initial investment) upon
redemption at the end of one year from the date of purchase, each Partnership
must earn estimated net trading profits (after taking into account estimated
interest income based upon current rates of 5%) of $0.62 (6.2%) per Unit. This
assumes that each Trading Advisor's gross profits equal expenses, and interest
income exceeds the redemption charges, such that no incentive fees are earned by
the Trading Advisor. See "Description of Charges--Break-Even Analysis."
6
<PAGE>
EXCHANGE PRIVILEGE
If certain conditions are satisfied, a Limited Partner can
redeem his Units in a Partnership as of the last day of any calendar month and,
with the proceeds of such redemption, purchase Units of either or both of the
other Partnerships (hereafter referred to as a "Series Exchange"), at a price
per Unit equal to 100% of the Net Asset Value thereof. A Series Exchange will be
effected for a Limited Partner only if each of the following conditions is
satisfied immediately prior to the Series Exchange: (i) the Partnership
redeeming Units has assets sufficient to discharge its liabilities and redeem
Units; (ii) six months have elapsed after such person first became a Limited
Partner in a Charter Series Partnership; (iii) the General Partner has received
a properly completed Subscription Agreement at least 5 business days prior to
the date on which such Series Exchange is to be effective; (iv) a minimum of 500
Units must be exchanged, unless a Limited Partner is purchasing additional Units
in a Partnership in which he is already a Limited Partner, in which case only a
minimum of 100 Units must be exchanged, unless a Limited Partner is liquidating
his entire interest in a Partnership; and (v) the Partnership issuing Units has
a sufficient number of Units registered and qualified for sale under federal and
applicable state securities laws pursuant to a current Prospectus. While the
General Partner currently intends to maintain a sufficient number of Units
registered to effect Series Exchanges, the General Partner shall not have any
obligation to have Units registered or to maintain a current Prospectus. There
can be no assurance that any or a sufficient number of Units will be available
for sale when a Series Exchange is requested. If Units are not registered or
qualified for sale under either federal or applicable state law or pursuant to a
current Prospectus, the General Partner will not be able to effect the Series
Exchange for a Limited Partner.
REDEMPTION OF UNITS
Persons who have been Limited Partners for six months may
redeem all or part of their Units regardless of when such Units were purchased,
at any month-end in the manner described herein. Redemptions may only be made in
whole Units, with a minimum of 100 Units required for each redemption, unless a
Limited Partner is redeeming his entire interest in a Partnership. Redemption of
Units will be deemed to be in the order in which they are purchased (assuming
purchases at more than one closing).
Units redeemed on or prior to the last day of the twelfth
month from the date of purchase will be subject to a redemption charge equal to
2% of the Net Asset Value of a Unit on the Redemption Date. Units redeemed after
the last day of the twelfth month and on or prior to the last day of the
twenty-fourth month from the date of purchase will be subject to a redemption
charge equal to 1% of the Net Asset Value of a Unit on the Redemption Date.
Units redeemed after the last day of the twenty-fourth month from the date of
purchase will not be subject to a redemption charge. The foregoing redemption
charges will be paid to DWR.
Under certain circumstances, Units are exempt from
redemption charges, as follows. Units purchased by an investor who purchases
$500,000 or more of Units will not be subject to redemption charges. A Limited
Partner redeeming Units at the first Redemption Date following notice of an
increase in certain fees will not be subject to redemption charges. A Limited
Partner who redeems Units pursuant to a Series Exchange will not be subject to
redemption charges with respect to the Units exchanged and, for purposes of
determining the applicability of future redemption charges, such Units will be
deemed as having the same purchase date as the Units exchanged. A Limited
Partner who redeems units pursuant to a Non-Series Exchange will be subject to
any applicable redemption charges with respect to those units redeemed from the
other limited partnership; however, Units purchased pursuant to a Non-Series
Exchange will not be subject to the foregoing redemption charges. Further, a
Limited Partner who redeems Units and has either paid a redemption charge with
respect to such Units or held such Units for at least two years will not be
subject to redemption charges with respect to any newly purchased Units,
provided the new Units are purchased within twelve months of and in an amount no
greater than the net proceeds of the prior redemption and are held for at least
six months from the date of purchase. Such subscribers remain subject to the
minimum purchase and suitability requirements. See "Subscription Procedure."
In addition to the information and reports described below
under "The Limited Partnership Agreements--Reports to Limited Partners," the
General Partner will provide Limited Partners with such other information and
will comply with any such procedures in connection with redemptions as in the
future are specifically required under Securities and Exchange Commission (the
"SEC") rules and policies for commodity pools and similar investment vehicles.
The right to obtain redemptions is contingent upon the
redeeming Partnership having assets sufficient to discharge its liabilities as
of the end of the applicable month and the General Partner's timely receipt of a
properly executed Request for Redemption. A Partnership may be forced to
liquidate open positions to satisfy redemptions in the event it does not have
sufficient cash on hand. See "Redemptions."
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DISTRIBUTIONS
Each Partnership will make distributions of profits, if any,
at the sole discretion of the General Partner (it is currently the intention of
the General Partner not to make distributions). Distributions may be made by
credit to a Limited Partner's customer account with DWR. It is possible that no
distributions will be made in some years in which a Partnership has taxable
profits, realized or unrealized. However, a Limited Partner of such Partnership
will nevertheless account for his share of such profits as income for federal
tax purposes. See "Material Federal Income Tax Considerations."
TRANSFERABILITY OF UNITS
The assignability or transferability of Units of each
Partnership is limited by the applicable Limited Partnership Agreement and no
assignee or transferee may become a substituted limited partner without the
consent of the General Partner, which consent the General Partner may withhold
in its sole discretion. See "The Limited Partnership Agreements--Restrictions on
Transfers or Assignments."
THE OFFERING
SECURITIES OFFERED
Each Partnership has registered 3,000,000 Units with the
SEC, which are available to cover sales and Exchanges of Units of each
Partnership. The General Partner, in its discretion, may in the future register
additional Units of any or all of the Partnerships.
SUBSCRIPTION PROCEDURE
The minimum subscription for most subscribers is $20,000,
except that, in the case of eligible subscribers purchasing Units pursuant to a
Non-Series Exchange, the $20,000 minimum investment will be satisfied if the
proceeds of the redemption of the units redeemed would have equaled at least
$20,000 as of the last day of the month immediately preceding the Closing at
which Units are purchased, irrespective of whether the actual proceeds from such
redemption are less than $20,000 when the units are redeemed. A subscription may
be for Units of one Partnership, or may be divided among two or all three
Partnerships, provided that the minimum subscription for any one Partnership is:
(a) in the case of a cash purchase, $5,000, or (b) in the case of a Non-Series
Exchange, the proceeds from the redemption of (i) five units from commodity
pools other than the Spectrum Series or MSTAF, (ii) 500 units from one, or any
combination, of the Spectrum Series, or (iii) 500 units from MSTAF. A subscriber
who already owns Units in a Partnership and desires to make an additional
investment in such Partnership may subscribe for additional Units at a Monthly
Closing with a minimum investment of: (a) in the case of a cash purchase,
$1,000, or (b) in the case of a Non-Series Exchange, the proceeds from the
redemption of (i) one unit from commodity pools other than the Spectrum Series
or MSTAF, (ii) 100 units from one, or any combination, of the Spectrum Series,
or (iii) 100 units from MSTAF. Subject to certain limited revocation rights (see
"Subscription Procedure"), all subscriptions for Units are irrevocable by
subscribers. See "Investment Requirements," "Plan of Distribution," and
"Subscription Procedure."
In order to purchase Units, a subscriber must complete,
execute, and deliver an execution copy of the Subscription Agreement to DWR. In
the Subscription Agreement, a subscriber will authorize the General Partner and
DWR to transfer the subscription amount from the subscriber's customer account
with DWR to the Partnerships' Escrow Account. In connection with any Closing, a
subscriber whose Subscription Agreement is received by DWR and whose
subscription is not immediately rejected, must have the appropriate amount in
his customer account with DWR on the first business day following the date that
his Subscription Agreement is received by DWR, and DWR will debit the customer
account and transfer such funds to the Escrow Account with the Escrow Agent on
that date. In the case of a Non-Series Exchange, a subscriber will authorize the
General Partner to redeem all or a portion of such subscriber's interest in
another commodity pool for which the General Partner serves as general partner
and commodity pool operator (subject to the terms of the applicable limited
partnership agreement) and use the proceeds of such redemption (less any
applicable redemption charges) to purchase Units in the Partnerships.
At each Closing, each Partnership will issue to each
subscriber whose subscription is accepted the appropriate number of whole and
fractions of Units as may be determined by dividing the subscription amount for
such Partnership by the Net Asset Value of a Unit of such Partnership. See
"Investment Requirements" and "Subscription Procedure."
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PLAN OF DISTRIBUTION
The Units are being offered and sold by each Partnership
through DWR and MS & Co., and any other Additional Sellers appointed by DWR with
the approval of the General Partner. Pursuant to the Selling Agreement among the
Partnerships, the General Partner and DWR, DWR will use its best efforts to sell
Units, but DWR has not made any commitment to offer and sell a specific amount
of Units or to purchase Units in any Partnership. See "Plan of Distribution."
The General Partner, in its sole discretion, may reject a subscription in whole
or in part at any time prior to acceptance. Units of each Partnership are being
offered initially (the "Initial Offering") to the public at $10 per Unit, for
issuance at an Initial Closing, which is currently scheduled to be held on
October 31, 1998; provided, however, that the General Partner may at its
discretion hold such Initial Closing at any time during the Initial Offering
Period (as defined below). Units that remain unsold following the Initial
Closing may be offered for sale in a continuing offering (the "Continuing
Offering") at subsequent monthly closings to be held as of the last day of each
month (each, a "Monthly Closing"; any Monthly Closing or the Initial Closing, a
"Closing"), at a price per Unit equal to 100% of the Net Asset Value of a Unit
of such Partnership as of the close of business on the date of the Monthly
Closing. The period from the date of this Prospectus through November 30, 1998
will be referred to herein as the "Initial Offering Period"; provided, however,
that the General Partner may, in its sole discretion, extend the Initial
Offering Period up to and including March 12, 1999. If at least 400,000 Units in
a Partnership have been subscribed for at any time during the Initial Offering
Period, the General Partner will accept subscriptions for such Partnership at
the Initial Closing and commence such Partnership's trading operations, and
continue to offer Units of such Partnership in the Continuing Offering. The Net
Asset Value of a Unit of one Partnership is not related to any other Partnership
and depends entirely on the Net Assets and the total number of Units of that
Partnership outstanding. It is contemplated that only one Initial Closing shall
be held for the Partnerships, and it is not a condition of the Initial Closing
that all three Partnerships sell the minimum number of Units.
During the Initial Offering Period, and thereafter during
the Continuing Offering, all subscription amounts received and not rejected by
the General Partner will be held by The Chase Manhattan Bank, New York, New York
(the "Escrow Agent"), until subsequently accepted or rejected by the General
Partner at a Closing. If a subscription is accepted by the General Partner at a
Closing, the Escrow Agent will promptly pay to the appropriate Partnership the
accepted subscription funds and pay to DWR any interest earned on such
subscription funds, and DWR will credit the subscriber's customer account with
DWR with such interest. If a subscription is rejected by the General Partner,
the Escrow Agent will promptly pay to DWR the rejected subscription funds and
any interest earned thereon, and DWR will credit the subscriber's customer
account with DWR with such amounts. Interest will be earned on subscription
funds from the day of deposit of such funds with the Escrow Agent to the day
that such funds are either paid to the appropriate Partnerships in the case of
accepted subscriptions or paid to DWR in the case of rejected subscriptions.
If fewer than 400,000 Units ($4,000,000) in any Partnership
have been subscribed for at the termination of the Initial Offering Period, the
offer of Units with respect to such Partnership will terminate and each
subscription will be promptly credited to the subscriber's customer account with
DWR within five business days following termination of the Initial Offering
Period, together with any interest earned on the subscriber's subscription funds
while held in escrow, and at such time such funds will be immediately available
to the subscriber for investment or withdrawal. The General Partner, DWR, any
Additional Sellers, and the Trading Advisors and their respective affiliated
entities may, but are not required to, subscribe for any number of Units. Units
subscribed for by such entities will be counted for purposes of determining
whether the 400,000 Unit minimum subscription requirement for a Partnership has
been met. However, Units subscribed for by such entities during the Initial
Offering Period may not be redeemed for a period of two years after the Initial
Closing if the Partnership would not have the minimum $4,000,000 in Net Assets
remaining immediately following such redemption.
Employees of DWR, MS & Co. and other Additional Sellers, if
any, will receive compensation from DWR and not from the Partnerships, out of
the brokerage fees paid to DWR by the Partnerships. Such continuing compensation
is in consideration of certain additional services provided to Limited Partners
by such persons on a continuing basis and may be deemed to be additional
underwriting compensation. See "Plan of Distribution."
NO SELLING COMMISSIONS OR CHARGES FOR ORGANIZATIONAL OR OFFERING EXPENSES
In connection with the offering of Units by each Partnership
pursuant to this Prospectus, no selling commissions or organizational or
offering expenses will be paid by the Limited Partners or the Partnership; DWR
will pay all costs incurred in connection with the organization of the
Partnerships and the Initial Offering
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of Units, estimated to be $1,000,000 in the aggregate, and will also pay all of
the costs incurred in connection with the Continuing Offering. The Partnerships
will not reimburse DWR for any portion of the costs so incurred, and will not be
liable for any such costs at any time (although DWR may recoup such costs from
brokerage fees paid by the Partnerships and receipt of interest and compensating
balance benefits with respect to the Partnerships' assets deposited with DWR).
Except as otherwise provided herein, qualified employees of DWR will receive
from DWR (payable solely from its own funds) a gross sales credit equal to 4% of
the Net Asset Value per Unit as of the applicable Closing for each Unit sold by
them and issued at such Closing, and/or a gross sales credit of up to 71% of the
brokerage fees attributable to each outstanding Unit sold by them and received
by DWR from the Partnership each month, which credit will continue until such
Partnership terminates or such Unit is redeemed (whichever comes first). Such
continuing compensation will be paid only to employees who are properly
registered with the Commodity Futures Trading Commission ("CFTC") and are
members of the NFA, and who provide certain continuing services to Limited
Partners. DWR may compensate MS & Co. and any other Additional Seller for each
Unit sold, payable solely from DWR's funds. See "Plan of Distribution" for the
terms and conditions applicable to such gross sales credits and a description of
the continuing services to be provided by employees. DWR's employees and
Additional Sellers may have a conflict of interest in rendering advice to
Limited Partners as to when and whether to redeem Units because of their
interest in receiving certain continuing compensation for ongoing services
rendered to holders of outstanding Units. Net Assets will not be reduced as a
result of any such compensation to such employees.
SUITABILITY STANDARDS
Each investor (or person entitled to exercise control over
assets of such investor's account under an IRA or other employee benefit plan)
must represent and warrant in the Subscription Agreement that such investor
and/or other person has received this Prospectus and satisfies certain
suitability requirements described under "--Investment Requirements" above.
USE OF PROCEEDS
The entire proceeds of this offering, together with the
General Partner's capital contribution to each Partnership, will be divided
among the Partnerships based on the number of Units sold by each Partnership and
the Net Asset Value of each Unit sold, and deposited in each Partnership's
futures interests trading accounts with the Commodity Brokers and used to trade
futures interests. See "Investment Programs, Use of Proceeds and Trading
Policies."
INTEREST ON PARTNERSHIP ASSETS
Once each Partnership's assets are deposited with the
Commodity Brokers, they will be held in separate customer segregated and secured
funds accounts established by the Commodity Brokers. DWR will credit each
Partnership with interest income at month-end at the rate earned by DWR on its
U.S. Treasury bill investments with customer segregated funds as if 100% of each
Partnership's average daily funds (including cash and securities) held in such
Partnership's account with DWR during the month were invested in U.S. Treasury
bills at such rate. In addition, DWR will credit each Partnership with 100% of
the interest income DWR receives from CFI with respect to such Partnership's
assets deposited as margin with CFI. Each Partnership's assets held by the
Commodity Brokers may be used as margin solely for such Partnership's trading.
It is anticipated that approximately 80% of each Partnership's average daily
funds maintained in trading accounts will be on deposit with DWR and that
approximately 20% of each Partnership's average daily funds maintained in
trading accounts will be on deposit with CFI, although such percentages will
vary from time to time. See "Investment Programs, Use of Proceeds, and Trading
Policies."
TAX CONSIDERATIONS
In the opinion of the General Partner's tax counsel, the
Partnerships will be classified as partnerships for federal income tax purposes
and not as associations (or publicly traded partnerships) taxable as
corporations. Accordingly, the Partnerships will not be subject to federal
income tax. Each Limited Partner in computing his federal income tax liability
for a taxable year will be required to take into account his distributive share
of all items of Partnership income, gain, loss, deduction or credit for the
taxable year of the Partnership ending within or with the taxable year of the
Limited Partner, regardless of whether such Limited Partner has received any
distributions from the Partnership. Such items of Partnership gain or loss
retain their character (e.g., capital or ordinary) when allocated to the Limited
Partners. Moreover, the special allocation of Partnership gain or loss upon a
redemption of Units, which retains the same character as in the hands of the
Partnership, may alter the
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character of a redeeming Limited Partner's income (by reducing the amount of
long-term capital gain recognized upon receipt of redemption proceeds) and may
accelerate the recognition of income by such Limited Partner. All such
allocations will increase or decrease each Limited Partner's tax basis in his
Units. The allocation provisions are designed to reconcile tax allocations to
economic allocations; however, no assurance can be given that the Internal
Revenue Service will not challenge such allocation (including any Partnership's
tax allocations in respect of redeemed Units), especially in light of recently
issued final regulations. See "Material Federal Income Tax Considerations."
Taxes payable by partners with respect to a Partnership's
profits may exceed the amount of such Partnership's distributions, if any, for a
taxable year. Based upon the contemplated activities of the Partnerships, the
General Partner has been advised by its legal counsel that, in such counsel's
opinion, expenses incurred by the Partnerships should not be subject to the
limitations on the deductibility of certain miscellaneous itemized expenses,
except to the extent that the Internal Revenue Service promulgates regulations
that so provide.
Cash distributions by a Partnership and amounts received or
deemed received upon the partial or complete redemption of a Limited Partner's
Units that do not exceed the Limited Partner's aggregate basis in his Units are
not taxable. Because of the special allocation of Partnership gain or loss upon
a redemption of Units, the amounts received upon the partial or complete
redemption of a Limited Partner's Units normally will not result in additional
taxable income or loss to the Limited Partner. However, to the extent cash
distributions and amounts received or deemed received upon the partial
redemption of a Limited Partner's Units exceed a Limited Partner's aggregate tax
basis in his Units, the excess will be taxable to the Limited Partner as though
it were gain on the sale of his Units. Loss will generally be recognized on a
redemption of Units only if a Limited Partner redeems all of his Units in a
Partnership and, following the complete redemption, such Limited Partner has
remaining tax basis in the Partnership. In such case, the Limited Partner will
recognize loss to the extent of the remaining basis. Subject to an exception for
certain types of Partnership assets, such gain or loss (assuming that the Units
constitute capital assets) will be either short-term capital gain or loss or
long-term capital gain or loss, depending upon the length of time that Units
were held prior to the distribution or redemption. See "Material Federal Income
Tax Considerations."
The General Partner has been advised that, in the opinion of
its counsel, a Limited Partner who is a nonresident alien individual, foreign
corporation, foreign partnership, foreign trust, or foreign estate (a "Foreign
Limited Partner") should not be deemed engaged in a trade or business in the
United States, and should not be subject to United States federal income tax,
solely because such Foreign Limited Partner is a limited partner in a
Partnership, provided such Foreign Limited Partner is not a dealer in
commodities. In the event a Partnership's activities should in the future not
fall within certain safe harbors from U.S. trade or business status, there is a
risk that all of a Foreign Limited Partner's distributive share of income of the
Partnership would be treated as effectively connected with the conduct of a
trade or business in the United States. In that event, the Foreign Limited
Partner would be taxed at regular rates applicable to U.S. taxpayers and, if a
foreign corporation, could be subject to a 30% branch profits tax. See "Material
Federal Income Tax Considerations." As regards tax-exempt Limited Partners, see
"Purchases by Employee Benefit Plans--ERISA Considerations."
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RISK FACTORS
In addition to the Risk Disclosure Statement appearing at
the beginning of this Prospectus, prospective subscribers should consider the
following risks before subscribing for Units. All risks described below are
relevant to each of the Partnerships.
RISKS RELATING TO FUTURES INTERESTS TRADING AND THE FUTURES INTERESTS MARKETS
FUTURES INTERESTS TRADING IS SPECULATIVE AND VOLATILE.
Futures interests prices are highly volatile. Price movements of futures
interests are influenced by, among other things: changing supply and demand
relationships; weather; agricultural, trade, fiscal, monetary and exchange
control programs and policies of governments; domestic and foreign political and
economic events and policies; and changes in interest rates. See "The Trading
Advisors" for a discussion of the volatility of, and performance records for,
the trading programs to be employed for the Partnerships.
Each Partnership is also subject to the risk of failure of
any of the exchanges on which it trades or of its clearinghouses, if any. In
addition, under certain circumstances, such as the inability of a customer of a
Commodity Broker or a Commodity Broker itself to satisfy substantial
deficiencies in such customer's account, a Partnership may be subject to a risk
of loss of its funds on deposit with such Commodity Broker. Each Partnership is
also subject to the risk of any party to a transaction not being able to
reimburse the Partnership for its errors. See "The Futures, Options and Forwards
Markets."
FUTURES INTERESTS TRADING IS HIGHLY LEVERAGED. Because of
the low margin deposits normally required in trading futures interests
(typically between 2% and 15% of the value of the contract purchased or sold),
an extremely high degree of leverage is typical of a futures interests trading
account. As a result, a relatively small price movement in a futures interest
may result in immediate and substantial losses to the investor. The Partnerships
use substantial leverage which could, depending on performance, result in
increased gain or loss. For example, if at the time of purchase 10% of the price
of a contract is deposited as margin, a 10% decrease in the price of the
contract would, if the contract is then closed out, result in a total loss of
the margin deposit before any deduction for brokerage fees. A decrease of more
than 10% would result in a loss of more than the total margin deposit. See "The
Futures, Options and Forwards Markets--Margins" and "The Limited Partnership
Agreements--Nature of the Partnerships." See also "The Trading Advisors" for a
discussion of the leverage utilized in the trading programs employed by the
Trading Advisors.
FUTURES INTERESTS TRADING MAY BE ILLIQUID. Most United
States futures exchanges limit fluctuations in certain futures interests prices
during a single day by regulations referred to as "daily price fluctuation
limits" or "daily limits." Pursuant to such regulations, during a single trading
day no trades may be executed at prices beyond the daily limits. Once the price
of a particular futures interest has increased or decreased by an amount equal
to the daily limit, positions in the futures interest can neither be taken nor
liquidated unless traders are willing to effect trades at or within the limit.
Prices in various futures interests have occasionally moved the daily limit for
several consecutive days with little or no trading. Similar occurrences could
prevent a Partnership from promptly liquidating its unfavorable positions and
subject it to substantial losses. While daily limits may reduce or effectively
eliminate the liquidity of a particular market, they do not limit ultimate
losses, and may in fact substantially increase losses because they may prevent
the liquidation of unfavorable positions. There is no limitation on daily price
moves in trading currency forward contracts.
In addition, a Partnership may not be able to execute trades
at favorable prices if little trading in the futures interests involved is
taking place. Under certain circumstances, a Partnership may be required to
accept or make delivery of the underlying commodity if the position cannot be
liquidated prior to its expiration date. See "Investment Programs, Use of
Proceeds and Trading Policies--Trading Policies." It also is possible that an
exchange or the CFTC might suspend trading in a particular contract, order
immediate liquidation and settlement of a particular futures interest, or order
that trading in a particular futures interest be conducted for liquidation only.
Similarly, trading in options on a particular futures interest may become
restricted if trading in the underlying futures interest has become restricted.
During periods in October 1987, for example, trading in certain stock index
futures was too illiquid for markets to function efficiently and was at one
point actually suspended. See "The Futures, Options and Forwards Markets." The
principals who deal in the forward contract markets are not required to continue
to make markets in the forward contracts they trade. There have been periods
during which certain participants in forward markets have refused to quote
prices for forward contracts or have quoted prices with an unusually wide spread
between the price at which they are prepared to buy and that at which they are
prepared to sell.
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SPECIAL RISKS ASSOCIATED WITH FORWARD TRADING. Each of the
Partnerships will trade in currency forward contracts. A forward contract is a
contractual obligation to purchase or sell a specified quantity of a commodity
at a specified date in the future at a specified price and, therefore, is
similar to a futures contract. However, forward contracts are not traded on
exchanges and, as a consequence, investors in forward contracts are not afforded
the regulatory protections of such exchanges or the CFTC; rather, banks and
dealers act as principals in such markets. Neither the CFTC nor banking
authorities regulate trading in forward contracts on currencies, and foreign
banks may not be regulated by any United States governmental agency.
Generally, when a Trading Advisor instructs a Partnership to
either sell or buy a particular currency, CFI will do back-to-back principal
trades in order to carry out such instructions. CFI, as principal, will arrange
bank lines of credit and contract with a United States or foreign bank or dealer
to make or take future delivery of a specified quantity of currency at a
negotiated price. CFI, again as principal, will in turn contract with the
Partnership to make or take future delivery of the same specified quantity of
currency at the same price. CFI will not attempt to profit from any mark-up or
spread on the trade with the Partnership.
Because performance of forward contracts is not guaranteed
by any exchange or clearinghouse, a Partnership is subject to the risk of the
inability or refusal to perform with respect to such contracts on the part of
the principals or agents with or through which the Partnership trades. Any such
failure or refusal, whether due to insolvency, bankruptcy or other causes, could
subject a Partnership to substantial losses. The Partnerships will trade forward
contracts only with banks, brokers, dealers and other financial institutions
which the General Partner, in conjunction with DWR, has determined to be
creditworthy. Initially the Partnerships will trade forward contracts only with
CFI.
The CFTC has published for comment in the United States
Federal Register a statement concerning its jurisdiction over transactions in
the foreign currency markets, including transactions of the type which may be
engaged in by the Partnerships. In the future, the CFTC might assert that
forward contracts of the type entered into by the Partnerships constitute
unauthorized futures contracts subject to the CFTC's jurisdiction and attempt to
prohibit the Partnerships from participating in transactions in such contracts.
If the Partnerships were restricted in their ability to trade in the currency
markets, the activities of the Trading Advisors could be materially affected.
SPECIAL RISKS ASSOCIATED WITH TRADING ON FOREIGN EXCHANGES.
Each of the Partnerships may trade in futures, forward and/or option contracts
on exchanges located outside the United States where CFTC regulations do not
apply. Some foreign exchanges, in contrast to domestic exchanges, are
"principals' markets" in which performance with respect to a contract is the
responsibility only of the individual member with whom the trader has entered
into a contract and not of the exchange or clearinghouse, if any. In the case of
trading on such foreign exchanges, a Partnership will be subject to the risk of
the inability of, or refusal by, the counterparty to perform with respect to
such contracts. The General Partner will attempt to monitor and control the
credit exposure of trading on foreign exchanges.
Trading on foreign exchanges may involve certain other risks
not applicable to trading on United States exchanges, such as the risks of
exchange controls, expropriation, burdensome or confiscatory taxation,
moratoriums, or political or diplomatic events. In addition, certain of these
foreign markets are newly formed and may lack personnel experienced in floor
trading as well as in monitoring floor traders for compliance with exchange
rules. For an additional discussion of the credit risks relating to trading on
foreign exchanges, see "The Futures, Options and Forwards Markets."
Furthermore, as the Partnerships will determine their
respective Net Assets in United States dollars, with respect to trading on
foreign markets the Partnerships will be subject to the risk of fluctuation in
the exchange rate between the local currency and dollars. Unless a Partnership
hedges itself (which none of the Trading Advisors intends to do) against
fluctuations in exchange rates between the United States dollar and the
currencies in which trading is done on such foreign exchanges, any profits which
the Partnership might realize in such trading could be eliminated as a result of
adverse changes in exchange rates, and the Partnership could even incur losses
as a result of any such changes. See "The Futures, Options and Forwards
Markets."
SPECIAL RISKS ASSOCIATED WITH TRADING OF FUTURES OPTIONS.
Options on futures contracts and options on physical commodities are traded on
United States commodity exchanges and may be traded by the Partnerships on
certain foreign exchanges. While each Partnership is authorized to trade
options, only WIC currently includes options in its trading program. Neither GCM
nor MRC presently intends to trade options, although either could do so in the
future. Each such option is a right, purchased for a certain price, to either
buy or sell the underlying futures contract or physical commodity during a
certain period of time for a fixed price. Such
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trading involves risks substantially similar to those involved in trading
futures contracts in that options are speculative and highly leveraged. Specific
market movements of the physical commodity or futures contract underlying an
option cannot be accurately predicted. The purchaser of an option is subject to
the risk of losing the entire purchase price of the option. The writer of an
option is subject to the risk of loss resulting from the difference between the
premium received for the option and the price of the commodity or futures
contract underlying the option which the writer must purchase or deliver upon
exercise of the option. Therefore, trading in futures options can be extremely
expensive if market volatility is incorrectly predicted. See "The Futures,
Options and Forwards Markets--Options on Futures."
THE PARTNERSHIPS HAVE CREDIT RISK TO THE COMMODITY BROKERS.
The Partnerships have credit risk because the Commodity Brokers will act as the
futures commission merchants or the counterparty with respect to most of the
Partnerships' assets. Exchange-traded futures and futures styled options
contracts are marked to market on a daily basis, with variations in value
credited or charged to a Partnership's account on a daily basis. Each of DWR and
CFI, as a futures commission merchant for each Partnership's exchange-traded
contracts, is required, pursuant to CFTC regulations, to segregate from its own
assets, and for the sole benefit of its commodity customers, all funds held by
it with respect to exchange-traded futures and futures styled options contracts,
including an amount equal to the net unrealized gain on all open futures and
futures styled options contracts. With respect to a Partnership's off-exchange
traded forward currency contracts with CFI, there are no daily settlements of
variations in value or any requirement to segregate funds held with respect to
such contracts.
POSSIBLE EFFECTS OF SPECULATIVE POSITION LIMITS. The CFTC
and United States futures exchanges have established limits referred to as
"speculative position limits" or "position limits" on the maximum net long or
net short futures interests position which any person or group of persons may
own, hold or control in particular futures interests.
All futures interests accounts owned, controlled or managed
by each Trading Advisor and its principals and affiliates will be combined for
position limit purposes, to the extent they may be applicable. The Trading
Advisors are the trading advisors for other commodity pools and/or numerous
individual accounts and will in the future manage additional accounts. In this
connection, each Management Agreement provides that if speculative position
limits are exceeded by a Trading Advisor or any of its principals or affiliates
in the opinion of independent counsel (who must be other than counsel to the
Partnerships) or in the opinion of the CFTC or any other regulatory body,
exchange, or board, such Trading Advisor and its principals and affiliates will
promptly liquidate positions in all of their accounts, including the
Partnership's account, as nearly as possible in proportion to their respective
equities to the extent necessary to comply with applicable position limits. See
"The Management Agreements." While each Trading Advisor believes that
established position limits, where applicable, will not adversely affect its
contemplated trading for a Partnership, it is possible that, from time to time,
the trading system or instructions of a Trading Advisor to a Partnership may
have to be modified and that positions held by such Partnership may have to be
liquidated in order to avoid exceeding such limits. Such modification or
liquidation, if required, could adversely affect the operations and
profitability of a Partnership. See "Conflicts of Interest--Management of Other
Accounts by the Trading Advisors." Speculative position limits are not
applicable to forward contract trading, although the principals with which CFI
or a Partnership may deal in the forward markets may limit the positions
available to CFI or the Partnership as a consequence of credit considerations.
RISKS RELATING TO THE PARTNERSHIPS AND THE OFFERING OF UNITS
SUBSTANTIAL CHARGES TO EACH PARTNERSHIP. Each of the
Partnerships incurs substantial charges from payment of the monthly flat-rate
brokerage fee to DWR and the management and incentive fees to each Trading
Advisor, regardless of whether the Partnership realizes profits. See
"Description of Charges--Charges to Each Partnership."
RESTRICTED INVESTMENT LIQUIDITY IN THE UNITS. The Units
cannot be assigned or transferred except on the terms and conditions set forth
in each Limited Partnership Agreement, and there is and will be no public market
for the Units. See "The Limited Partnership Agreements--Restrictions on
Transfers or Assignments." Limited Partners of a Partnership may require such
Partnership to redeem all or part of their Units as of the last day of any month
at the Net Asset Value thereof. However, Limited Partners may only redeem Units
as of, but not before the sixth month-end following the Closing at which such
person first became a Limited Partner in a Charter Series Partnership.
Furthermore, redemptions may only be made in whole Units, with a minimum of 100
Units required for each redemption, unless a Limited Partner is redeeming his
entire interest in a Partnership. Redemptions of Units are subject to redemption
charges through the end of the twenty-fourth
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month following the Closing at which such Unit was issued. The foregoing
redemption charges will not apply under the circumstances outlined herein with
respect to Limited Partners who purchased Units in a Series Exchange or a
Non-Series Exchange. Units purchased pursuant to a Series Exchange will not be
subject to the six-month limitation on redemptions described above. An investor
who purchases $500,000 or more of Units will not be subject to the redemption
charges described above. The right to obtain payment on redemption is contingent
upon (a) the Partnership having assets sufficient to discharge its liabilities
on the effective date of the redemption, and (b) the timely receipt by the
General Partner of a Request for Redemption in the form annexed to the Limited
Partnership Agreement. All liabilities of the Partnerships are accrued daily and
are reflected in the daily Net Asset Value of the Partnerships. Under certain
circumstances (including, but not limited to, a Partnership's inability to
liquidate or a delay in liquidating positions or the default or delay in
payments due a Partnership from dealers, brokers, banks, or other persons), a
Partnership may delay payment to Limited Partners requesting redemptions of the
proportionate part of the redemption requests represented by the sums which are
the subject of any such default or delay. See "Redemptions."
CONFLICTS OF INTEREST IN EACH PARTNERSHIP'S STRUCTURE. DWR
and the General Partner were instrumental in the organization of each
Partnership and may be deemed "promoters" of each Partnership within the meaning
of Rule 405 under the Securities Act of 1933, as amended (the "1933 Act").
Moreover, each Partnership, DWR, and the General Partner are affiliated entities
and are represented by a single counsel. As a consequence of the foregoing,
there is an absence of arm's-length negotiation with respect to some of the
terms of this offering, and there has been no independent due diligence
conducted with regard to this offering. See "Conflicts of Interest."
LIMITED PARTNERS WILL NOT PARTICIPATE IN MANAGEMENT. Limited
Partners will not participate in the management of a Partnership or in the
conduct of its business. See "The Limited Partnership Agreements--Management of
Partnership Affairs." However, each Limited Partnership Agreement provides that
certain actions may be taken upon the affirmative vote of Limited Partners
owning more than 50% of the Units then owned by Limited Partners. See "The
Limited Partnership Agreements--Amendments; Meetings."
RELIANCE ON THE GENERAL PARTNER. A Limited Partner is
relying on the ability of the General Partner in the selection of a successful
Trading Advisor for each Partnership. The selection by the General Partner of
the current Trading Advisor for each Partnership involved numerous
considerations. The General Partner evaluated the performance record of each
Trading Advisor, the Trading Advisor's trading programs, experience, volatility
of trading, futures interests traded, amount of management and incentive fees
normally charged, reputation of the Trading Advisor and its personnel and amount
of funds under management, and made certain subjective judgments in retaining a
Trading Advisor for each Partnership. Although the General Partner carefully
weighed the above factors in making its selections, other factors not considered
by the General Partner may also be important. In the future, the General Partner
may be required to terminate and replace a Trading Advisor by reason of its poor
performance or for other reasons, or to retain additional Trading Advisors for
each Partnership, and similar judgments will have to be made from time to time.
See "Investment Programs, Use of Proceeds and Trading Policies--Investment
Programs of Each Charter Series Partnership."
NO ASSURANCE THAT UNITS WILL BE SOLD. No assurance is given
that any or all of the Units of any Partnership will be sold. No Partnership
will commence trading operations unless at least 400,000 Units (representing
subscriptions of $4,000,000) are subscribed for during the Initial Offering
Period and such subscriptions are accepted by the General Partner at the Initial
Closing. Because DWR, in its capacity as selling agent, and MS & Co. and any
other Additional Seller have only agreed to use their best efforts to offer and
sell the Units, but have not agreed to purchase any specific amount of Units
from any Partnership, there is no assurance that DWR will be able to raise such
amount and that a subscriber ultimately will be able to purchase Units. See
"Plan of Distribution."
SPECIAL CHARACTERISTICS OF START-UP PERIOD. Each
Partnership will encounter a start-up period during which it will incur certain
risks relating to the initial investment of its Net Assets. The Partnerships may
commence trading operations at an unpropitious time, such as after sustained
moves in the futures markets, resulting in significant initial losses. Moreover,
the start-up period also presents a special risk in that the level of
diversification of a Partnership's portfolio will be lower than in a
fully-committed portfolio. No assurance can be given that a Trading Advisor's
procedures for moving to a fully-committed portfolio will be successful.
NO OPERATING HISTORY OF THE PARTNERSHIPS. The Commodity
Futures Trading Commission requires a commodity pool operator to disclose to
prospective pool participants the actual performance record of the pool for
which the operator is soliciting participants. YOU SHOULD NOTE THAT THESE POOLS
HAVE NOT COMMENCED TRADING AND DO NOT HAVE ANY PERFORMANCE HISTORY.
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There can be no assurance that the past performance of
accounts managed by the Trading Advisors, or other commodity pools for which the
General Partner serves as the general partner and commodity pool operator, is
representative of the performance of the Partnerships in the future.
CERTAIN LITIGATION. DWR, the General Partner, other
affiliated entities, certain limited partnership commodity pools of which the
General Partner is the general partner, and certain trading advisors to those
pools, are all defendants in certain purported class actions. Generally, these
class actions allege, among other things, fraud, deceit, misrepresentation,
breach of fiduciary duty, fraudulent and unfair business practices, unjust
enrichment, and conversion in connection with the sale and operation of the
various limited partnership commodity pools. Although the ultimate outcome of
the legal proceedings cannot be predicted with certainty, the DWR related
parties believe that strong defenses to these allegations exist and, as such,
they are being vigorously contested. In addition, the Commodity Brokers from
time to time are subject to various legal actions. See "Certain Litigation."
RISKS RELATING TO THE TRADING ADVISORS
RELIANCE ON THE TRADING ADVISOR TO TRADE SUCCESSFULLY. Under
each Management Agreement, the Trading Advisor has exclusive responsibility for
making trading decisions with respect to the Net Assets of the Partnership for
which it trades, except in certain limited situations. No assurance can be given
that the respective trading systems and strategies utilized by the Trading
Advisor will prove successful under all or any market conditions.
PAST PERFORMANCE NOT NECESSARILY INDICATIVE OF FUTURE
RESULTS. Certain commentators have expressed concerns over the potentially
misleading character of the performance records included in futures fund
prospectuses. In fact, certain academic studies reached the conclusion that
public commodity pools often significantly underperform the prior performance
records of the selected trading advisors included in their prospectuses. See,
for example, Elton, Gruber & Rentzler, "New Public Offerings, Information and
Investor Rationality: The Case of Publicly Offered Funds," 62 Journal of
Business, 1-15 (1989), and Edwards & Ma, "Commodity Pool Performance: Is the
Information Contained in Pool Prospectuses Useful?," 8 The Journal of Futures
Markets, 589-616 (1988). New futures funds often are offered following periods
of successful trading by an advisor. No assurance can be given that any
Partnership will perform successfully in the future inasmuch as a Trading
Advisor's past performance is not necessarily indicative of future results.
MARKET FACTORS MAY ADVERSELY INFLUENCE THE TRADING PROGRAMS.
Any factor which may lessen the prospect of major futures interests price trends
in the future (for example, increased governmental control of, or participation
in, the currency markets) may reduce a Trading Advisor's ability to trade
profitably in the future. Any factor which would make it more difficult to
execute timely trades, such as a significant lessening of liquidity in a
particular market, would also be detrimental to profitability. As a result of
these factors and the general volatility of the futures interests markets,
investors should view their investment as long term (at least 2 years) in order
to permit a Trading Advisor's program to function over time. Further, a Trading
Advisor may alter its programs from time to time in an attempt to better
evaluate market movements. As a result of such periodic modifications, it is
possible that the trading programs used by a Trading Advisor in the future may
be different from those presently in use.
POSSIBLE CONSEQUENCE OF INCREASING ASSETS MANAGED BY A
TRADING ADVISOR. The total amount of funds being managed by each Trading Advisor
may be substantially increased by the addition of assets to a Partnership's
account. There appears to be a tendency for the rates of return achieved by
commodity trading advisors to diminish as equity under management increases.
None of the Trading Advisors has agreed to limit the amount of additional equity
which it may manage. There can be no assurance whatsoever as to the effect such
increased equity will have on performance. See "The Trading Advisors."
LIMITED TERM OF MANAGEMENT AGREEMENTS MAY LIMIT ACCESS TO
THE TRADING ADVISORS. The Management Agreement with each Trading Advisor will
not expire until October 31, 2001. Thereafter, unless otherwise terminated upon
written notice from each Trading Advisor at least 30 days prior to the
expiration of the respective Management Agreement, each such agreement shall be
automatically renewed for additional one-year terms. In addition, each
Management Agreement may be terminated by the Partnership at any time without
penalty on prior written notice and may be terminated by either party in certain
circumstances. See "The Management Agreements." Upon the expiration or
termination of a Management Agreement, the General Partner may be unable to
enter into arrangements with the Trading Advisor or another Trading Advisor
which are substantially similar to the Management Agreements described in this
Prospectus.
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POSSIBLE ADVERSE CONSEQUENCES OF CHANGING A TRADING ADVISOR
OR ITS TRADING PROGRAM. The General Partner may replace a Trading Advisor or
instruct a Trading Advisor to reapportion Partnership assets among one or more
of such Trading Advisor's other trading programs. Any such change in Trading
Advisors and/or trading programs may be effected without prior notice to, or
approval by, Limited Partners, who may not have the opportunity to review the
performance record of a newly-appointed Trading Advisor prior to its appointment
or the updated performance record of such trading programs prior to their
implementation. See "The Trading Advisors."
TRADING DECISIONS BASED ON A TECHNICAL TRADING APPROACH MAY
NOT PERFORM UNDER CERTAIN MARKET CONDITIONS. Trading decisions of the Trading
Advisor for each Partnership will initially be based on a "technical" trading
program, as opposed to a "fundamental" trading program. Fundamental trading
programs attempt to examine external factors (such as governmental policies,
domestic and foreign political and economic events, changing trade prospects,
and similar factors which affect the supply and demand for a particular futures
interest) in order to predict future prices. Technical trading systems, however,
generate buy and sell signals which are not based on analysis of fundamental
supply and demand factors, but rather are based, in most cases, upon a study of
actual daily, weekly, and monthly price fluctuations, volume variations and
changes in open interest and other related mathematical, statistical or
quantitative data utilizing charts and/or computers.
The profitability of both technical and fundamental analysis
in futures interest trading generally depends upon the accurate forecasting of
major price moves or trends in some futures interests. No assurance can be given
of the accuracy of the forecasts or the existence of some major price move. The
best trading approach will not be profitable if there are sustained periods in
which there are no price moves or trends of the kind the trading approach seeks
to identify and follow. In the past, there have been periods without discernible
trends and, presumably, such periods will continue to occur in the future.
Periods without such price moves may produce losses. Any factor which would
lessen the prospect of major trends occurring in the future (such as increased
governmental control of or participation in the markets) may reduce the prospect
that a particular trading approach will be profitable in the future. Moreover,
any factor which would make it more difficult to execute trades at desired
prices in accordance with a trading approach (such as a significant lessening of
liquidity in a particular market) would also be detrimental to profitability.
Many other trading approaches utilize similar analyses in making trading
decisions; therefore, bunching of buy and sell orders can occur which makes it
more difficult for a position to be taken or liquidated. No assurance can be
given that a Trading Advisor's trading program and trading decisions will be
successful under all or any market conditions.
A limiting factor in the use of technical analysis is that
such an approach generally requires price movement data which can be translated
into price trends sufficient to dictate a market entry or exit decision. Any
trading approach which is based upon such technical concepts may not perform
well when futures interests markets are trendless or erratic, because a
technical approach may fail to identify a trend on which action should be taken
or it may react to minor price movements and thus establish a position contrary
to overall price trends, which may result in losses. In addition, a technical
trading approach may underperform other trading approaches when fundamental
factors dominate price moves within a given market. For example, since technical
analysis generally does not take into account fundamental factors such as
supply, demand, and political and economic events (except insofar as such
factors may have influenced price and other technical data constituting input
information for such approach), a technical trading approach may be unable to
respond to fundamental causative events until after their impact has ceased to
influence the markets; positions dictated by such resultant price movements may
be incorrect in light of the fundamental factors then affecting the markets. See
"The Trading Advisors--General Description of Trading Approaches."
TAXATION AND REGULATORY RISKS
PARTNER'S TAX LIABILITY MAY EXCEED DISTRIBUTIONS. If a
Partnership has profits for a taxable year, such profit will be taxable to the
Partners in accordance with their distributive shares of Partnership profit,
whether or not the profit actually has been distributed to its Partners.
Accordingly, United States federal income taxes (hereinafter "federal income
tax") payable by Partners with respect to Partnership profit may exceed the
amount of Partnership distributions, if any, for a taxable year. Further, a
Partnership may sustain losses offsetting such profit in a succeeding taxable
year, so that Partners may never receive the profit on which they were taxed in
the prior year. See "Material Federal Income Tax Considerations."
POSSIBLE LIMITATION ON DEDUCTION OF CERTAIN EXPENSES. The
deductibility of certain miscellaneous itemized deductions is limited to the
extent such expenses exceed 2% of the adjusted gross income of an individual,
trust or estate. In addition, certain of an individual's itemized deductions are
reduced by an amount equal to
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the lesser of (i) 3% of such individual's adjusted gross income over a certain
threshold amount and (ii) 80% of such itemized deductions. Based upon the
activities of the Partnerships, the General Partner has been advised by its
legal counsel that in its opinion various expenses incurred by the Partnerships
should not be subject to these limitations except to the extent that the United
States Internal Revenue Service (the "Internal Revenue Service") promulgates
regulations that so provide. Such advice is not binding on the Internal Revenue
Service or any court. If a Partnership's expenses (including incentive fees)
were treated as subject to these limitations, a Limited Partner's after-tax
return could be significantly reduced. See "Material Federal Income Tax
Considerations."
REDEMPTION OF UNITS MAY PRODUCE NEGATIVE TAX CONSEQUENCES.
Each Partnership will allocate taxable gains or losses to a Limited Partner who
redeems a Unit generally to the extent such Limited Partner's capital account
allocable to such Unit differs from the federal income tax basis allocable to
such Unit. Gain or loss allocable to a Limited Partner as his distributive share
of Partnership gain or loss (including such distributive share arising from a
special allocation upon redemption of Units) retains the same character as in
the hands of the Partnership. Accordingly, this special allocation of
Partnership gain or loss upon a redemption of Units may alter or modify the
character of such Limited Partner's income arising from a redemption of Units
(by reducing the amount of long-term capital gain recognized upon a receipt of
redemption proceeds) and may accelerate the recognition of income by such
Limited Partner. Further, no assurance can be given that the Internal Revenue
Service will not challenge a Partnership's tax allocations (including the
special allocation upon redemption of Units), and if such allocations are
successfully challenged, the amount of income or loss allocated to the Limited
Partners may be increased or reduced, or the character of such income or loss
may be modified. See "Material Federal Income Tax Considerations."
TAX LAWS ARE SUBJECT TO CHANGE. It is possible that the
current federal income tax treatment accorded an investment in the Partnerships
will be modified by legislative, administrative, or judicial action in the
future. The nature of additional changes in federal income tax law cannot be
determined prior to enactment of any new tax legislation or administrative or
judicial action. However, such legislation could significantly alter the tax
consequences and decrease the after-tax rate of return of an investment in the
Partnerships. Prospective subscribers should seek, and must rely on, the advice
of their own tax advisers with respect to the possible impact on their
investments of any future proposed tax legislation or administrative or judicial
action.
DEDUCTIBILITY OF PASSIVE LOSSES MAY BE LIMITED. Losses from
a passive activity ("passive losses") are generally disallowed to the extent
such losses exceed income from all passive activities ("passive income").
Pursuant to Proposed and Temporary Treasury Regulations, none of the
Partnerships will be treated as a passive activity. Accordingly, a Limited
Partner's distributive share of items of income, gain, deduction or loss from a
Partnership will not be characterized as passive income or loss, and Partnership
gains allocable to the Limited Partners will not be available to offset passive
losses from other investments. However, Partnership gains allocable to the
Limited Partners will be available to offset losses with respect to "portfolio"
investments, such as stocks and bonds. Moreover, any Partnership losses
allocable to the Limited Partners will be available to offset other income,
regardless of source. See "Material Federal Income Tax Considerations."
POSSIBILITY OF TAX AUDIT. There can be no assurance that the
Partnerships' tax returns will not be audited by the Internal Revenue Service or
that adjustments to such returns will not be made as a result of such audits. If
an audit results in an adjustment, Limited Partners may be required to file
amended returns (which may themselves also be audited) and to pay back taxes
plus interest and/or penalties that may then be due. See "Material Federal
Income Tax Considerations."
ABSENCE OF REGULATIONS APPLICABLE TO SECURITIES MUTUAL FUNDS
AND THEIR ADVISERS. None of the Partnerships is registered as an investment
company or a "mutual fund" under the Investment Company Act of 1940, as amended
(or any similar state law), and neither the General Partner nor any of the
Trading Advisors is registered as investment advisers under the Investment
Advisers Act of 1940, as amended (or any similar state law). Investors,
therefore, are not accorded the protective measures provided by such
legislation. However, in accordance with the provisions of the Commodity
Exchange Act, as amended (the "CEAct"), the regulations of the CFTC thereunder
and the NFA rules, the General Partner is registered as a commodity pool
operator, each Trading Advisor is registered as a commodity trading advisor, and
DWR and CFI are each registered as a futures commission merchant, each subject
to regulation by the CFTC and each a member of the NFA in such respective
capacities.
THE FOREGOING RISK FACTORS DO NOT PURPORT TO BE A COMPLETE
EXPLANATION OF ALL OF THE RISKS INVOLVED IN THIS OFFERING. POTENTIAL INVESTORS
SHOULD READ THIS PROSPECTUS IN ITS ENTIRETY BEFORE DETERMINING WHETHER TO INVEST
IN THE UNITS.
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CONFLICTS OF INTEREST
RELATIONSHIP OF THE GENERAL PARTNER TO DWR AS COMMODITY BROKER
The General Partner and DWR are each wholly-owned
subsidiaries of Morgan Stanley Dean Witter & Co. ("MSDW"). DWR, in acting as the
non-clearing Commodity Broker for each Partnership pursuant to a Customer
Agreement, receives brokerage fees for futures interests transactions effected
for each Partnership pursuant to the instructions of its Trading Advisor.
Because the General Partner is an affiliate of DWR, there has been no
arm's-length negotiation of the flat-rate brokerage fees charged to each
Partnership (CFI's fees will be paid by DWR). Moreover, because of such
relationship, the General Partner has a conflict of interest between its
responsibilities to limit and reduce the brokerage fees paid by the Partnerships
and otherwise manage the Partnerships for the benefit of the Limited Partners
and its interest in obtaining for DWR favorable brokerage fees, as well as a
disincentive to replace DWR as the non-clearing Commodity Broker for the
Partnerships. Most customers of DWR who maintain commodity trading accounts with
over $1,000,000 pay commissions at negotiated rates which are substantially less
than the rate which is paid by each Partnership. Nine of the 26 currently active
commodity pools for which Demeter acts as general partner are charged flat-rate
asset-based brokerage fees, 16 of such commodity pools are charged brokerage
fees on a roundturn brokerage commission basis (i.e., a charge for entering and
exiting each futures interest transaction) and such fees are subject to a
monthly asset-based cap, and one is charged on a roundturn brokerage commission
basis without a monthly asset-based cap. See "The Commodity Brokers" and
"Fiduciary Responsibility."
The General Partner selected each Trading Advisor and will
select any new Trading Advisors for the Partnerships. However, because the
selection of Trading Advisors who engage in a high volume of trades will
increase the costs to DWR, without DWR's receipt of an offsetting increase in
revenue, the General Partner has an incentive to select Trading Advisors who
engage in a low volume of trades.
In addition, the Partnerships, DWR, and the General Partner
are affiliated entities. As a consequence of the foregoing, there is an absence
of arm's-length negotiation with respect to some of the terms of, and there has
been no independent due diligence conducted with respect to, this offering.
However, the General Partner has a fiduciary duty under the Partnership Act to
exercise good faith and fairness in all dealings on behalf of the Partnerships,
including the Partnerships' dealings with DWR, as non-clearing Commodity Broker.
See "Fiduciary Responsibility." In addition, the Limited Partnership Agreements
contain restrictions on the General Partner's ability to contract with its
affiliates on behalf of the Partnerships. See "The Limited Partnership
Agreements--Management of Partnership Affairs."
While each Customer Agreement is nonexclusive, so that each
Partnership has the right to seek lower commission rates from other brokers at
any time, the General Partner believes that the Customer Agreements and other
arrangements between each Partnership and the Commodity Brokers are fair,
reasonable and competitive, and represent the best price and services available,
considering the matters discussed in this paragraph below and in the immediately
following paragraph. DWR is subject to the risk and expense of organizing the
Partnerships, offering the Units, and paying the Partnerships' ordinary
administrative expenses. Further, the General Partner, an affiliate of DWR, will
provide ongoing services to the Partnerships, which include operating the
Partnerships, monitoring the activity of each Trading Advisor, and administering
the redemption and Exchanges of Units; the General Partner also has financial
obligations as the general partner of the Partnerships. A significant portion of
the brokerage fees paid to DWR by each Partnership will be paid by DWR to its
employees and to MS & Co. (which is an affiliate of DWR, the General Partner and
MSDW) and any other Additional Sellers, for providing continuing assistance to
Limited Partners to whom they have sold Units. Such DWR employees and Additional
Sellers who provide continuing advice to Limited Partners as to when and whether
to make additional investments or redeem or exchange Units may have a conflict
of interest by reason of their receipt of a portion of the brokerage fees paid
to DWR by the Partnerships. In addition, any employee of DWR or any Additional
Seller effecting a Non-Series Exchange will immediately commence receiving a
monthly gross sales credit on the Units purchased, even though they may not have
been entitled to a gross sales credit at that time with respect to the units
redeemed from the other commodity pool for which the General Partner serves as a
General Partner. Thus, such DWR employees and Additional Sellers have a conflict
of interest by reason of the possibility of receiving a monthly gross sales
credit at an earlier date than otherwise may have been the case.
The General Partner will review the brokerage arrangements
at least annually to ensure that they are fair, reasonable and competitive, and
that they represent the best price and services available, taking into
consideration the size and trading activity of each Partnership and the services
provided, and costs, expenses, and risk borne, by DWR and the General Partner.
See "The Commodity Brokers" and "Fiduciary Responsibility."
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DWR and the General Partner may, from time to time, be
subject to conflicting demands in respect of their obligations to the
Partnerships and other commodity pools and accounts. Certain pools may generate
larger brokerage commissions, resulting in increased payments to DWR employees
as described above. Since DWR employees may receive greater compensation from
the sale of units of one pool over another, such employees are subject to a
conflict of interest in providing advice to Limited Partners.
ACCOUNTS OF AFFILIATES OF THE GENERAL PARTNER, THE TRADING ADVISORS, AND THE
COMMODITY BROKERS
While the General Partner does not trade futures interests
for its own account (other than indirectly as a consequence of its position as
general partner of commodity pools), certain officers, directors and employees
of the General Partner and the Commodity Brokers, and their affiliates,
principals, officers, directors and employees, may trade futures interests for
their own proprietary accounts. The records of such trading will not be
available to Limited Partners. In addition, CFI is a large futures commission
merchant, handling substantial customer business in physical commodities and
futures interests, and is a clearing member of all of the major commodity
exchanges in the United States. Thus, CFI may effect transactions for the
account of a Partnership in which the other parties to such transactions are
employees or affiliates of the General Partner, a Trading Advisor or CFI, or
customers or correspondents of CFI. Such persons might also compete with a
Partnership in bidding on purchases or sales of futures interests without
knowing that such Partnership is also bidding. It is possible that transactions
for the officers, directors, affiliates, employees, customers and correspondents
of the Commodity Brokers, a Trading Advisor or the General Partner might be
effected when similar trades for one or more Partnerships are not executed or
are executed at less favorable prices. In addition, certain of the officers and
directors of the General Partner (who are also employees of and are compensated
by DWR) may individually receive from DWR compensation and bonuses based on
various factors, including brokerage fees generated by the Partnerships. See
"The General Partner" and "The Commodity Brokers."
The Limited Partnership Agreements provide that, except as
described therein or in this Prospectus, no person may receive, directly or
indirectly, any advisory, management, or incentive fee for investment advice who
shares or participates in per trade commodity brokerage commissions paid by the
Partnerships. No commodity broker for the Partnerships may pay, directly or
indirectly, rebates or "give ups" to the General Partner or any Trading Advisor,
and such prohibitions may not be circumvented by any reciprocal business
arrangements.
MANAGEMENT OF OTHER ACCOUNTS BY THE TRADING ADVISORS
Each Management Agreement allows the Trading Advisor to
manage futures interests accounts in addition to the Partnership's account. Each
Trading Advisor and its principals and affiliates may at any time be trading
their own proprietary accounts, advising accounts for other commodity pools
and/or individual customers, and operating other commodity pools, and will
continue such activities in the future. A Trading Advisor may also operate more
than one trading program in its management of accounts, some of which programs
may not be used in trading for a Partnership. Such other trading programs have
in the past and may in the future experience significantly different performance
results than the programs used in trading for a Partnership. Each Trading
Advisor is required to aggregate futures interests positions in other accounts
managed by it with futures interests positions in the applicable Partnership's
account for speculative position limit purposes. Such aggregation of positions
could require the applicable Trading Advisor to liquidate or modify positions
for all such accounts, and such liquidation or modification may adversely affect
such Partnership. A Trading Advisor may have a conflict of interest in rendering
advice because its compensation for managing some other accounts may exceed its
compensation for managing the Partnership's account, and therefore may provide
an incentive to favor such other accounts. Moreover, if a Trading Advisor makes
trading decisions for such accounts and a Partnership's account at or about the
same time, the Partnership may be competing with such other accounts for the
same or similar positions. While the records of the accounts of the Trading
Advisors and their principals and accounts managed by them will not be made
available to Limited Partners, each Management Agreement permits the General
Partner access to such records in order to determine that the Partnership's
account is traded fairly. Each Management Agreement also provides that the
Trading Advisor will deal with the Partnership in a fiduciary capacity to the
extent recognized by applicable law and will not enter into transactions where
it knowingly or deliberately favors itself or another client over the
Partnership.
CUSTOMER AGREEMENTS WITH THE COMMODITY BROKERS
Each Partnership has opened a separate trading account with
each of the Commodity Brokers for its Trading Advisor pursuant to the
Partnership's Customer Agreement with each Commodity Broker. Under the
20
<PAGE>
Customer Agreements, all funds, futures interests and securities positions and
credits carried for the Partnership are held as security for such Partnership's
obligations to the Commodity Brokers; the margins required to initiate or
maintain open positions will be as established by the Commodity Brokers from
time to time; and the Commodity Brokers may close out positions, purchase
futures interests, or cancel orders at any time they deem necessary for their
protection, without the consent of the Partnership. Each Partnership also has
agreed to indemnify and defend the Commodity Brokers and their stockholders,
employees, officers, directors and affiliates against certain liabilities
incurred by them by reason of acting as such Partnership's commodity broker.
Each Commodity Broker, the General Partner or the Limited Partners of a
Partnership by majority vote may terminate the brokerage relationship and close
the Partnership's futures interests account at a Commodity Broker upon 60 days'
prior written notice and under certain other circumstances. If so terminated,
the Partnership would have to negotiate a new customer agreement with a
commodity broker upon terms and conditions, including brokerage commission
rates, which cannot now be determined.
OTHER COMMODITY POOLS
The General Partner is or has been the general partner for
30 other commodity pools. DWR is the non-clearing commodity broker for 29 of
such pools and several other commodity pools. Each may in the future establish
and/or be the general partner or commodity broker for additional commodity
pools, and any such pool may be said to be in competition with the Partnerships
in that any one or more of such pools might compete with the Partnerships for
the execution of trades.
FIDUCIARY RESPONSIBILITY
Investors should be aware that the General Partner has a
fiduciary duty under the Partnership Act to the Limited Partners of each
Partnership to exercise good faith and fairness in all dealings affecting such
Partnership. The General Partner's fiduciary duty to the Limited Partners under
each Limited Partnership Agreement is in accordance with the fiduciary duty owed
to limited partners by a general partner under Delaware law. The Limited
Partnership Agreements prohibit the Limited Partners from limiting, by any
means, the fiduciary duty of the General Partner owed to the Limited Partners
under statutory or common law. In the event that a Limited Partner believes that
the General Partner has violated its responsibility, such Limited Partner may
seek legal relief for himself and all other similarly situated Limited Partners
or on behalf of the Partnership under the Partnership Act, the CEAct, applicable
federal and state securities laws and other applicable laws to recover damages
from, or to require an accounting by, the General Partner. The Trading Advisor
for each Partnership also has a fiduciary duty under applicable law to that
Partnership.
The Limited Partnership Agreements, the Customer Agreements,
the Selling Agreement and the Management Agreements generally provide that the
General Partner, the Commodity Brokers, DWR (as selling agent), any Additional
Seller, the Trading Advisors and their "affiliates" (as defined in each Limited
Partnership Agreement) shall not be liable to a Partnership, the Limited
Partners, or its or their successors or assigns, for any act, omission, conduct,
or activity undertaken by or on behalf of the Partnership which the General
Partner, the Commodity Brokers, DWR (as selling agent), any Additional Seller,
or the Trading Advisor, as applicable, determines, in good faith, to be in the
best interests of the Partnership, unless such act, omission, conduct, or
activity of or by the General Partner, the Commodity Brokers, DWR (as selling
agent), any Additional Seller, the Trading Advisor or their affiliates, as
applicable, constituted misconduct or negligence.
Under the Limited Partnership Agreements, the Customer
Agreements, the Selling Agreement, and the Management Agreements, each
Partnership has generally agreed to indemnify, defend, and hold harmless the
General Partner, the Commodity Brokers, DWR (as selling agent), any Additional
Seller, the Trading Advisor for such Partnership, and their respective
affiliates 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) actually and reasonably incurred arising from
acts, omissions, conduct, or activities undertaken by or on behalf of the
Partnership, including, without limitation, any demands, claims, or lawsuits
initiated by a Limited Partner (or assignee thereof), provided that (1) the
General Partner, the Commodity Brokers, DWR (as selling agent), any Additional
Seller, or the Trading Advisor, as applicable, has determined, in good faith,
that the act, omission, conduct, or activity giving rise to the claim for
indemnification was in or not opposed to the best interests of the Partnership,
and (2) the act, omission, conduct, or activity that was the basis for such
loss, liability, damage, cost, or expense was not the result of misconduct or
negligence. Payment of any indemnity to such person by a Partnership would
reduce the Net Assets of such Partnership. The General Partner does not carry
insurance covering such potential losses and it is not contemplated that the
Partnerships will carry liability insurance covering such potential losses or
indemnification exposure.
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<PAGE>
Notwithstanding the foregoing, in any action brought by a
Limited Partner in the right of a Partnership, the General Partner or any
affiliate thereof may only be indemnified to the extent and subject to the
conditions specified in the Partnership Act (which presently permits
indemnification of any partner to the extent provided in the Limited Partnership
Agreement, as described in the immediately preceding paragraph). Also, no
indemnification of the General Partner, the Commodity Brokers, DWR (as selling
agent), any Additional Seller, the Trading Advisors, or their affiliates by a
Partnership shall be permitted for losses, liabilities, or expenses arising from
or out of alleged violations of federal or state securities laws unless: (1)
there has been a successful adjudication on the merits of each count involving
alleged securities law violations as to the particular indemnitee, or (2) such
claims have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee, or (3) a court of competent
jurisdiction approves a settlement of the claims against the particular
indemnitee and finds that indemnification of the settlement and related costs
should be made, provided, with regard to such court approval, the indemnitee
must apprise the court of the position of the SEC, and the positions of the
respective securities administrators of Massachusetts, Missouri, Tennessee,
and/or those other states and jurisdictions in which the plaintiffs claim they
were offered or sold Units, with respect to indemnification for securities laws
violations, before seeking court approval for indemnification. Note that, with
respect to indemnification for liabilities arising under the 1933 Act for
directors, officers or controlling persons of a Partnership or the General
Partner, it is the opinion of the SEC that such indemnification is against
public policy, as expressed in the 1933 Act, and is therefore unenforceable. The
CFTC has issued a statement of policy relating to indemnification of officers
and directors of a futures commission merchant (such as DWR and CFI) and its
controlling persons under which the CFTC has taken the position that whether
such an indemnification is consistent with the policies expressed in the CEAct
will be determined by the CFTC on a case-by-case basis.
DESCRIPTION OF CHARGES
CHARGES TO EACH PARTNERSHIP
Each Partnership is subject to substantial charges, all of
which are described in detail below. The charges described below are the same
for each Partnership.
<TABLE>
<CAPTION>
ENTITY FORM OF COMPENSATION AMOUNT OF COMPENSATION
- ------------------------------ ------------------------------ ---------------------------------------
<S> <C> <C>
The Trading Advisor........... Monthly Management Fee. A flat-rate monthly fee of 1/12 of 2%
of the Partnership's Net Assets on the
first day of each month (a 2% annual
rate).
Monthly Incentive Fee. 20% of the Trading Profits experienced
by the Partnership as of the end of
each calendar month.
DWR........................... Monthly Brokerage Fee. A flat-rate monthly fee of 1/12 of 7%
of the Partnership's Net Assets (a 7%
annual rate) as of the first day of
each month. Such fee covers brokerage
commissions, transaction fees and
costs, and ordinary administrative and
offering expenses.
Commodity Brokers............. Financial benefit to DWR and The aggregate of (i) the flat-rate
CFI or their affiliates from brokerage fee payable by the
interest earned on the Partnership, as described above, and
Partnership's assets in excess (ii) net excess interest and
of the interest paid to the compensating balance benefits to DWR
Partnership and from and CFI or their affiliates (after
compensating balance treatment crediting the Partnership with
in connection with the interest) will not exceed 14% annually
designation of a bank or banks of the Partnership's average month-end
in which the Partnership's Net Assets during a calendar year.
assets are deposited.
</TABLE>
1. THE TRADING ADVISOR
(a) Monthly Management Fee. Each Partnership will pay its
Trading Advisor a monthly management fee equal to 1/12 of 2% (a 2% annual rate)
of such Partnership's Net Assets as of the first day of each month, whether or
not the Partnership is profitable.
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<PAGE>
For example, if the Net Assets of a Partnership equaled
$30,000,000 as of the first day of each month during the fiscal year, the
Trading Advisor would receive an aggregate monthly management fee for the year
of $600,000 ( 1/12 of 2% of $30,000,000 per month, or $50,000, times 12).
If during any month a Partnership does not conduct business
operations or suspends trading or, as a result of an act or failure to act by
its Trading Advisor, is otherwise unable to utilize the trading advice of such
Trading Advisor on any of the trading days of that period for any reason, the
management fee described above will be prorated based on the ratio that the
number of trading days in the month in which a Partnership engaged in trading
operations or utilized the trading advice of the Trading Advisor bears to the
total number of trading days in the month. If a Management Agreement is
terminated on a date other than the end of a calendar month, the management fee
described above will be determined as if such date were the end of a month, but
such fee will be prorated based on the ratio by which the number of trading days
in the month through the date of termination bears to the total number of
trading days in the month.
(b) Incentive Fee. Each Partnership will pay its Trading
Advisor a monthly incentive fee equal to 20% of Trading Profits experienced by
the Partnership as of the end of each calendar month. "Trading Profits" is
defined to mean net futures interests trading profits (realized and unrealized)
earned on a Partnership's Net Assets, decreased by monthly management fees,
brokerage fees, and any transaction fees and costs not included in the brokerage
fees (under the current Customer Agreements with the Commodity Brokers, the
brokerage fees include all transaction fees and costs); with such Trading
Profits and items of decrease determined from the end of the last calendar month
in which an incentive fee was earned by the Trading Advisor or, if no incentive
fee has been earned previously by the Trading Advisor, from the date that the
Partnership commenced trading, to the end of the month as of which such
incentive fee calculation is being made. Extraordinary expenses of the
Partnership, if any, will not be deducted in determining Trading Profits. No
incentive fees will be paid on interest earned by any Partnership.
If any payment of incentive fees is made to a Trading
Advisor on account of Trading Profits and such Trading Advisor thereafter fails
to earn Trading Profits or experiences losses for any subsequent incentive
period, the Trading Advisor will be entitled to retain such amounts of incentive
fees previously paid to the Trading Advisor in respect of such Trading Profits.
However, no subsequent incentive fees will be payable to the Trading Advisor
until the Partnership has again earned Trading Profits; provided, however, that
if the Partnership's Net Assets are reduced or increased because of redemptions
or additions that occur at the end of or subsequent to an incentive period in
which the Trading Advisor experiences a futures interests trading loss, the
trading loss for that incentive period which must be recovered before the
Trading Advisor will be deemed to experience Trading Profits will be equal to
the amount determined by (x) dividing the Partnership's Net Assets after such
increase or decrease by the Partnership's Net Assets immediately before such
increase or decrease, and (y) multiplying that fraction by the amount of the
unrecovered futures interests trading loss experienced in the month prior to
such increase or decrease. In the event that the Partnership experiences a
futures interests trading loss in more than one month without the payment of an
intervening incentive fee and the Partnership's Net Assets are increased or
reduced in more than one such month because of redemptions or additions, then an
adjustment to the trading loss for each such month will be made in accordance
with the formula described above and such increased or reduced amount of futures
interests trading loss will be carried forward and used to offset subsequent
futures interests trading profits.
Thus, for example, if a Trading Advisor earned Trading
Profits of $5,000,000 for the period ended September 30, 1998, the Trading
Advisor would receive an incentive fee of $1,000,000 for that period. If,
however, the Trading Advisor experiences realized and/or unrealized trading
losses, or fees offset trading profits, so as to result in a $500,000 loss for
the period ended October 31, 1998, no incentive fee will be paid to the Trading
Advisor for that period. If the Trading Advisor is to earn an incentive fee for
the following period ending November 30, 1998, the Trading Advisor will have to
earn Trading Profits exceeding $500,000 for that period, since the incentive fee
is payable based upon Trading Profits measured from the last period for which an
incentive fee was paid (i.e., September 30), and not from the immediately
preceding period. For the period ended November 30, 1998, Trading Profits would
be equal to the amount of profits in excess of $500,000. The Trading Advisor
would receive an incentive fee for such period equal to 20% of such Trading
Profits. (The foregoing example assumes no redemptions or additional purchases
of Units during the periods in question, which would require adjustments as
described above.)
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<PAGE>
2. COMMODITY BROKERS
(a) Brokerage Fees. Commodity brokerage fees for futures
interests trades are often paid on the completion or liquidation of a trade and
are referred to as "roundturn commissions," which cover both the initial
purchase (or sale) of a futures interest and the subsequent offsetting sale (or
purchase). However, pursuant to the Customer Agreements with the Commodity
Brokers, the Partnerships will not pay commodity brokerage commissions on a
per-trade basis, but rather will pay DWR a monthly flat-rate brokerage fee based
on their Net Assets. This fee will be 1/12 of 7% of the Partnership's Net Assets
as of the first day of each month (a 7% annual rate). DWR will receive such
brokerage fees, irrespective of the number of trades executed on a Partnership's
behalf.
From the flat-rate brokerage fees received by it, DWR will
pay or reimburse the Partnerships for all fees and costs of CFI for executing
trades by the Partnerships, including floor brokerage fees, exchange fees,
clearinghouse fees, NFA fees, "give up" fees, any taxes (other than income
taxes), any third party clearing costs incurred by CFI, costs associated with
taking delivery of futures interests, and fees for execution of forward contract
transactions. DWR will also pay, from the flat-rate brokerage fee received from
each Partnership, the ordinary administrative and Continuing Offering expenses
of each Partnership. Ordinary administrative expenses include legal, accounting
and auditing expenses, printing and mailing expenses, and filing fees incurred
in preparing reports, notices and tax information to Limited Partners and
regulatory bodies. Continuing Offering expenses include the cost of legal,
accounting and auditing fees, printing costs, solicitation and marketing costs
and other related fees and expenses.
Such payments to DWR are compensation, in part, for the
risks of organizing the Partnerships and conducting the initial and continuing
offerings. Specifically, DWR will pay all of the costs incurred in connection
with the organization of the Partnerships and the Initial Offering of Units
(estimated to be $1,000,000 in the aggregate), and will pay the costs of the
Continuing Offering. The Partnerships will not reimburse DWR for any such
organization and offering costs, and while DWR may recoup such costs from the
brokerage fees paid by each Partnership, the Partnerships will not be liable for
any such costs at any time. Additionally, the General Partner, an affiliate of
DWR, provides ongoing services to the Partnerships, which include evaluating,
retaining, monitoring and terminating Trading Advisors for the Partnerships and
administering the redemption and exchange of Units. Such fee also enables DWR to
compensate its employees, MS & Co. and any other Additional Sellers who provide
continuing services to Limited Partners to whom they have sold Units. See "The
Commodity Brokers--Brokerage Arrangements" and "Plan of Distribution."
While each Partnership pays a flat-rate brokerage fee,
rather than "roundturn commissions" on each trade, it is estimated, based upon
each Trading Advisor's historical trading, that such flat-rate brokerage fees
would translate into roundturn commissions ranging from approximately $35-50 for
each Partnership. NO REPRESENTATION OR WARRANTY IS MADE AS TO THE ACCURACY OF
THE FOREGOING ESTIMATE, AS IT IS ENTIRELY DEPENDENT ON THE NUMBER OF
TRANSACTIONS EFFECTED BY THE TRADING ADVISOR FOR EACH PARTNERSHIP.
(b) Financial Benefits. DWR and CFI may benefit from the
interest crediting arrangements and possible compensating balance treatment in
connection with its designation of a bank or banks in which the Partnerships'
assets are deposited. See "Investment Programs, Use of Proceeds and Trading
Policies."
3. EXTRAORDINARY EXPENSES
Each Partnership is obligated to pay any extraordinary
expenses it may incur. Extraordinary expenses will be determined in accordance
with generally accepted accounting principles, which generally include events
that are both unusual in nature and occur infrequently.
4. EXPENSE LIMITATIONS
No increase in any of the management, incentive or brokerage
fees payable by a Partnership may take effect until the first business day
following a Redemption Date, provided that: (i) notice of such increase is
mailed to each Limited Partner in such Partnership at least five business days
prior to the last date on which a "Request for Redemption" must be received by
the General Partner with respect to the applicable Redemption Date; (ii) such
notice describes the redemption and voting rights of Limited Partners; and (iii)
Limited Partners redeeming Units at the first Redemption Date following such
notice will not be subject to any redemption charges. Notwithstanding the
foregoing, in accordance with guidelines applied by certain state securities
regulators (see "Glossary--Blue Sky Glossary"), each Partnership's fees and
expenses are subject to the following limits: (a) the
24
<PAGE>
aggregate of (i) the management fees payable by the Partnership, and (ii) the
Partnership's customary and routine administrative expenses (other than
commodity brokerage commissions or fees, transaction fees and costs, incentive
fees, legal and auditing fees and expenses, and extraordinary expenses), shall
not exceed 1/2 of 1% of the Partnership's Net Assets per month, or 6% of the
Partnership's Net Assets annually; (b) the incentive fee payable by the
Partnership to a Trading Advisor shall not exceed 15% of the Partnership's
Trading Profits, provided that such incentive fee may be increased by 2% for
each 1% by which the aggregate fees and expenses described in clause (a) of this
sentence are below the 6% of Net Assets annual limit thereon (e.g., if such fees
and expenses are limited to 3% of Net Assets, the maximum incentive fee payable
may be increased to 21%); (c) if the Partnership were to pay roundturn brokerage
commissions, such brokerage commissions (excluding transaction fees and costs)
payable by the Partnership to any commodity broker for the Partnership shall not
exceed 80% of such commodity broker's published non-member rates for speculative
accounts; and (d) the aggregate of (i) the brokerage commissions or fees payable
by the Partnership to any commodity broker for the Partnership, (ii) any
transaction fees and costs payable by the Partnership, and (iii) the net excess
interest and compensating balance benefits to any commodity broker for the
Partnership (after crediting the Partnership with interest) shall not exceed 14%
annually of the Partnership's average month-end Net Assets during such calendar
year. The General Partner or an affiliate thereof will pay any fees and expenses
in excess of any such limits.
REDEMPTION CHARGES TO LIMITED PARTNERS
Persons who have been Limited Partners in a Charter Series
Partnership for more than six months may redeem all or part of their Units at
any month-end in the manner described in this Prospectus.
Subject to certain exceptions, Units redeemed on or prior to
the last day of the twelfth month after such Units were purchased will be
subject to a redemption charge equal to 2% of the Net Asset Value of a Unit on
the Redemption Date (as defined below). Units redeemed after the last day of the
twelfth month and on or prior to the last day of the twenty-fourth month after
which such Units were purchased will be subject to a redemption charge equal to
1% of the Net Asset Value of a Unit on the Redemption Date. Units redeemed after
the last day of the twenty-fourth month after which such Units were purchased
will not be subject to a redemption charge. The foregoing redemption charges
will be paid to DWR. For a more detailed discussion, including exceptions to
such charges, see "Redemptions."
BREAK-EVEN ANALYSIS
Based upon the Net Asset Value per Unit of $10 at the
Initial Closing, each Partnership must earn estimated net trading profits (after
taking into account estimated interest income based upon current rates of 5%) of
4.2% of its average annual Net Assets in order to offset Partnership expenses,
and 6.2% to offset Partnership expenses and the 2% redemption charge if Units
are redeemed at the end of the first year of investment. This assumes that a
Trading Advisor's gross profits equal expenses and interest income is greater
than the redemption fee, such that no incentive fees are earned by the Trading
Advisor.
25
<PAGE>
Based upon the Net Asset Value per Unit of $10 at the
Initial Closing, each Partnership must earn estimated net trading profits of
$0.62 per Unit in order for a Limited Partner to recoup its initial investment
upon redemption of a Unit at the end of one year after payment by a Partnership
of its expenses and payment of the 2% redemption charge (as calculated below).
<TABLE>
<CAPTION>
CHARTER CHARTER CHARTER
GRAHAM MILLBURN WELTON
-------------------------- -------------------------- --------------------------
<S> <C> <C> <C>
$ $ $
Selling Price per Unit(1)................ 10.00 10.00 10.00
Management Fee(2)........................ .20 .20 .20
Brokerage Fee(3)......................... .70 .70 .70
Less Interest Income(4).................. (.48) (.48) (.48)
Redemption Fee(5)........................ .20 .20 .20
Incentive Fee(6)......................... -- -- --
Amount of Trading Income Required for a
Limited Partner to Recoup its
Investment at the End of
One Year......................... .62 .62 .62
Percentage of Selling Price per Unit..... 6.2% 6.2% 6.2%
</TABLE>
- ------------------------------------------------
Notes
(1) Units are offered for sale at the Initial Closing at $10 per Unit. Units
that remain unsold following the Initial Closing will be offered for
sale at Monthly Closings held as of the last day of each month at a
purchase price equal to 100% of the Net Asset Value of the Unit at the
close of business as of the date of the Monthly Closing.
(2) Monthly management fees are equal to 1/12 of 2% (a 2% annual rate) of
Net Assets on the first day of each month.
(3) The brokerage fee is a flat-rate monthly fee of 1/12 of 7% (a 7% annual
rate) of Net Assets as of the first day of the month. Such fee covers
all brokerage fees and transaction fees and costs (including "give up"
and transfer fees).
(4) DWR will credit each Partnership with interest income at month-end at
the rate earned by DWR on its U.S. Treasury bill investments with
customer segregated funds as if 100% of each Partnership's average daily
funds (including cash and securities) held in such Partnership's account
with DWR during the month were invested in U.S. Treasury bills at such
rate. In addition, DWR will credit each Partnership with 100% of the
interest income DWR receives from CFI with respect to such Partnership's
assets deposited as margin with CFI. For purposes of the break-even
calculation, it was estimated that approximately 80% of each
Partnership's average daily funds maintained in trading accounts will be
on deposit with DWR and earn interest income at a rate of approximately
5%, and that approximately 20% of each Partnership's average daily funds
maintained in trading accounts will be on deposit with CFI and generate
interest income at a rate of approximately 4%.
(5) Units redeemed at the end of one year from the date of purchase are
subject to a 2% redemption charge.
(6) Incentive fees are assumed to be zero because (i) interest income is
greater than the redemption fee and (ii) each Trading Advisor's trading
profits equal expenses.
The General Partner will furnish to each Limited Partner a
monthly statement describing the performance of each Partnership and setting
forth, among other things, aggregate management and incentive fees, brokerage
fees, and extraordinary expenses, if any, incurred or accrued by each
Partnership during the month and certain other information concerning the Net
Asset Value of a Unit of each Partnership. See "The Limited Partnership
Agreements--Reports to Limited Partners."
26
<PAGE>
INVESTMENT PROGRAMS, USE OF PROCEEDS AND TRADING POLICIES
Each Partnership was formed to engage primarily in the
speculative trading of futures and forward contracts, options on futures
contracts and on physical commodities, and other commodity interests, including
foreign currencies, financial instruments, precious and industrial metals,
energy products, and agriculturals (collectively, "futures interests"). The
entire proceeds of the Initial Offering and Continuing Offering received by each
Partnership from the sale of its Units and the continuing capital contributions
of the General Partner to each Partnership will be deposited in separate
commodity trading accounts established by DWR and CFI for the Trading Advisors
for each Partnership. All of the funds in a Partnership's trading accounts will
be used to engage in futures interests trading pursuant to instructions provided
by the Trading Advisor. DWR will transfer Partnership funds to CFI to margin
futures interests trades effected with and through CFI as clearing broker and
foreign currency forward counterparty for each Partnership. Each Partnership's
margin commitments with respect to its U.S. commodity futures positions are
anticipated to range between 10% and 40% of Net Assets, although in certain
circumstances, a Partnership's margin levels could deviate substantially from
that range in the future. See "Risk Factors--Risks Relating to Futures Interests
Trading and the Futures Interests Markets--Futures Interests Trading is Highly
Leveraged." The Partnerships' assets held by DWR and CFI will be segregated or
secured in accordance with the CEAct and CFTC regulations. The Partnerships'
trading on various United States futures exchanges is subject to CFTC regulation
and the rules of the applicable exchanges. The Partnerships' trading on foreign
futures exchanges is subject to regulation by foreign regulatory authorities and
the rules of the applicable exchange. The Partnerships may each trade different
types of futures interests, on both domestic and foreign markets. The
Partnerships may trade on the following foreign futures exchanges: the Deutsche
Terminborse, the Hong Kong Futures Exchange Ltd., the International Petroleum
Exchange of London, the Italian Derivatives Market, the London International
Financial Futures Exchange Ltd., the London Metals Exchange, the Marche a Terme
International de France, the London Securities and Derivatives Exchange, the
MEFF Renta Fija, the MEFF Renta Variable, the Montreal Exchange, the Singapore
International Monetary Exchange, the New Zealand Futures and Options Exchange,
the Swiss Options and Financial Futures Exchange A.G., the Sydney Futures
Exchange, the Tokyo Grain Exchange, the Tokyo International Futures Exchange,
the Tokyo Stock Exchange and the Winnipeg Commodity Exchange. From time to time
the Partnerships may trade on other foreign exchanges. From time to time in
connection with foreign futures and options contracts, the Partnerships' assets
may be deposited in accounts with non-United States banks and foreign brokers
which are segregated on the books of such banks or brokers for the benefit of
CFI customers. All such non-United States banks and foreign brokers will be
qualified depositories pursuant to relevant CFTC Advisories. Such non-United
States banks will be subject to the local bank regulatory authorities, and the
foreign brokers will be members of the exchanges on which the futures and option
trades are to be executed and will be subject to the regulatory authorities in
the jurisdictions in which they operate. The protections provided by such
foreign regulatory authorities may differ significantly from those provided by
United States regulators. See "Risk Factors--Risks Relating to Futures Interests
Trading and the Futures Interests Markets--Special Risks Associated with Forward
Trading" and "--Special Risks Associated with Trading on Foreign Exchanges."
The Trading Advisor for each Partnership is obligated to
invest in accordance with the trading policies applicable to such Partnership.
These trading policies provide, among other things, that a Trading Advisor may
commit as margin up to, but no more than, a certain percentage of funds under
management.
DWR will credit each Partnership with interest income at
each month-end at the rate earned by DWR on its U.S. Treasury bill investments
with customer segregated funds as if 100% of each Partnership's average daily
funds (including cash and securities) held in such Partnership's account with
DWR during the month were invested in U.S. Treasury bills at such rate. In
addition, DWR will credit each Partnership with 100% of the interest income DWR
receives from CFI with respect to such Partnership's assets deposited as margin
with CFI. It is anticipated that approximately 80% of each Partnership's average
daily funds maintained in trading accounts will be on deposit with DWR and that
approximately 20% of each Partnership's average daily funds maintained in
trading accounts will be on deposit with CFI, although such percentages will
vary from time to time. DWR and CFI will retain any interest earned in excess of
the interest paid by DWR to the Partnerships. To the extent that the assets of
each Partnership are held in non-interest-bearing bank accounts, DWR and CFI or
their affiliates may benefit from compensating balance treatment in connection
with their designation of a bank or banks in which the Partnerships' assets are
deposited, i.e., DWR and CFI or their affiliates may receive favorable loan
rates from such bank or banks by reason of such deposits. While it is
anticipated that such compensating balance benefits will exceed the interest
credited to each Partnership, it is estimated that they should not exceed 4% of
each Partnership's annual average Net Assets after such credits. To the extent
that
27
<PAGE>
such excess interest and compensating balance benefits to DWR and CFI or their
affiliates exceed the interest DWR is obligated to credit to the Partnerships,
they will not be shared with the Partnerships. Notwithstanding the foregoing,
the aggregate of (i) brokerage fees payable by a Partnership, and (ii) the net
excess interest and compensating balance benefits to DWR and CFI or their
affiliates (after crediting the Partnership with interest as described above)
cannot exceed 14% annually of a Partnership's average month-end Net Assets
during each calendar year.
The assets of the Partnerships are not commingled with the
assets of one another or any other entity. Margin deposits and deposits of
assets with a commodity broker do not constitute commingling.
INVESTMENT PROGRAMS OF EACH CHARTER SERIES PARTNERSHIP
The Charter Series, a series of related managed futures
funds, offers the investor a choice of managed futures funds, each with a
different Trading Advisor and trading approach, and the opportunity to shift
investments among such funds. The Charter Series presently consists of three
Delaware limited partnerships organized pursuant to the form of Limited
Partnership Agreement attached hereto as Exhibit A. Demeter is the general
partner and commodity pool operator ("CPO") of each Partnership. See "The
General Partner."
The investment objective of each Partnership is capital
appreciation of its assets through speculative trading in futures interests.
The selection of the Trading Advisor for each Partnership
was based on a review of each Trading Advisor's trading programs, experience and
trading performance, including the level of volatility in performance
experienced by each Trading Advisor in the past. Although these factors are
obtained from past trading performance, the General Partner believes such
factors have some value in evaluating the potential trading success of a Trading
Advisor; however, future performance may be completely different. See "Risk
Factors" and "The Futures, Options and Forwards Markets." THE GENERAL PARTNER IS
NOT PREDICTING OR GUARANTEEING ANY LEVEL OF PERFORMANCE OR RISK BY ANY
PARTNERSHIP. PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS.
MORGAN STANLEY DEAN WITTER CHARTER GRAHAM L.P.
The Trading Advisor for Morgan Stanley Dean Witter Charter
Graham L. P. ("Charter Graham") is Graham Capital Management, L.P. ("GCM").
GCM is a Delaware limited partnership formed in 1994 and is
registered as a commodity trading advisor ("CTA") and CPO with the CFTC and is a
member of the NFA in such capacities. The assets of Charter Graham will
initially be traded pursuant to GCM's Global Diversified Program at 1.5 times
the leverage it normally applies for such program. This program has been traded
since July 1994, and relies primarily on computerized trading models to
participate in approximately 70 global markets. Subject to the prior approval of
the General Partner, GCM may, at any time, trade some or all of the
Partnership's assets among one or more of GCM's other programs and/or GCM's
discretionary trading approach, and at an increased or reduced rate of leverage.
As of May 31, 1998, GCM was managing approximately $399 million of client assets
pursuant to the Global Diversified Program (notional funds included) and
approximately $556 million in all of its programs (notional funds included).
A full description of GCM, its principals and trading
programs is included in "The Trading Advisors--Morgan Stanley Dean Witter
Charter Graham L.P." Read "The Trading Advisors" carefully before you decide to
invest. See "Risk Factors--Risks Relating to the Partnerships and the Offering
of Units--Past Performance Not Necessarily Indicative of Future Results."
MORGAN STANLEY DEAN WITTER CHARTER MILLBURN L.P.
The Trading Advisor for Morgan Stanley Dean Witter Charter
Millburn L.P. ("Charter Millburn") is Millburn Ridgefield Corporation ("MRC").
MRC is a Delaware corporation formed in 1982 and is
registered as a CTA and CPO with the CFTC and is a member of the NFA in such
capacities. The assets of Charter Millburn will initially be traded pursuant to
MRC's Diversified Portfolio, which has been traded since February 1971, and
which trades a portfolio of approximately 50 markets in the following sectors:
currencies, precious and industrial metals, debt instruments, stock indices,
agricultural commodities and energy. Subject to the prior approval of the
General Partner, MRC may, at any time, trade some or all of the Partnership's
assets among one or more of MRC's other programs. As of May 31, 1998, MRC was
managing approximately $404 million of client assets pursuant to the
28
<PAGE>
Diversified Portfolio (notional funds excluded) and approximately $721 million
in all of its programs (notional funds excluded).
A full description of MRC, its principals and trading
programs is included in "The Trading Advisors--Morgan Stanley Dean Witter
Charter Millburn L.P." Read "The Trading Advisors" carefully before you decide
to invest. See "Risk Factors--Risks Relating to the Partnerships and the
Offering of Units--Past Performance Not Necessarily Indicative of Future
Results."
MORGAN STANLEY DEAN WITTER CHARTER WELTON L.P.
The Trading Advisor for Morgan Stanley Dean Witter Charter
Welton L.P. ("Charter Welton") is Welton Investment Corporation ("WIC").
WIC is a Delaware corporation which was merged from a
California corporation which was originally formed in 1988, and is registered as
a CTA and CPO with the CFTC and is a member of the NFA in such capacities. The
assets of Charter Welton will initially be traded pursuant to WIC's Diversified
Portfolio, which has been traded since April 1992, and which relies primarily on
exposure to a wide spectrum of futures markets. Subject to the prior approval of
the General Partner, WIC may, at any time, trade some or all of the
Partnership's assets among one or more of WIC's other programs. As of May 31,
1998, WIC was managing approximately $111 million (notional funds excluded) of
client assets pursuant to its Diversified Portfolio and approximately $139
million (notional funds excluded) in all of its programs.
A full description of WIC, its principals and trading
programs is included in "The Trading Advisors--Morgan Stanley Dean Witter
Charter Welton L.P." Read "The Trading Advisors" carefully before you decide to
invest. See "Risk Factors--Risks Relating to the Partnerships and the Offering
of Units--Past Performance Not Necessarily Indicative of Future Results."
Each Partnership conducts its business separately and
independent of the other Partnerships.
ADDITIONAL PARTNERSHIPS
In the future, additional partnerships may be added to the
Charter Series and units of limited partnership interest of such partnerships
may be offered pursuant to an updated version of, or supplement to, this
Prospectus. Such partnerships will each have a different Trading Advisor and may
have substantially different trading approaches or fee structures. A Limited
Partner should carefully review such updated version of or supplement to this
Prospectus describing any such partnership before making the decision to
purchase units of any such partnership.
TRADING POLICIES
Each Partnership requires its Trading Advisor to manage the
Partnership's funds in accordance with trading policies set forth in its Limited
Partnership Agreement. The trading policies for each Partnership are as follows:
1. The Trading Advisor will trade only in those futures
interests that have been approved by the General Partner. The Partnership
normally will not establish new positions in a futures interest for any one
contract month or option if such additional positions would result in a net
long or short position for that futures interest requiring as margin or
premium more than 15% of the Partnership's Net Assets.
2. The Partnership will not acquire additional positions
in any futures interest if such additional positions would result in the
aggregate net long or short positions for all futures interests requiring as
margin or premium for all outstanding positions more than 66 2/3% of the
Partnership's Net Assets. Under certain market conditions, such as an abrupt
increase in margins required by a commodity exchange or its clearinghouse or
an inability to liquidate open positions because of daily price fluctuation
limits, or both, the Partnership may be required to commit as margin amounts
in excess of the foregoing limit. In such event, the Trading Advisor will
reduce its open positions to comply with the foregoing limit before
initiating new positions.
3. The Partnership will trade currencies and other
commodities in the interbank and forward contract markets only with banks,
brokers, dealers, and other financial institutions which the General Partner,
in conjunction with DWR, has determined to be creditworthy. In determining
the creditworthiness of a counterparty to a forward contract, the General
Partner and DWR will consult with the Corporate Credit Department of DWR.
29
<PAGE>
4. The Trading Advisor will not generally take a position
after the first notice day in any futures interest during the delivery month
of that futures interest, except to match trades to close out a position on
the interbank foreign currency or other forward markets or liquidate trades
in a limit market.
5. The Partnership will not employ the trading technique
commonly known as "pyramiding," in which the speculator uses unrealized
profits on existing positions in a given futures interest due to favorable
price movement as margin specifically to buy or sell additional positions in
the same or a related futures interest. Taking into account the Partnership's
open trade equity on existing positions in determining generally whether to
acquire additional futures interest positions on behalf of the Partnership
will not be considered to constitute "pyramiding."
6. The Partnership will not under any circumstances lend
money to affiliates or otherwise. The Partnership will not utilize borrowings
except if the Partnership purchases or takes delivery of commodities. If the
Partnership borrows money from the General Partner or any affiliate thereof,
the lending entity in such case (the "Lender") may not receive interest in
excess of its interest costs, nor may the Lender receive interest in excess
of the amounts which would be charged the Partnership (without reference to
the General Partner's financial abilities or guarantees) by unrelated banks
on comparable loans for the same purpose, nor may the Lender or any affiliate
thereof receive any points or other financing charges or fees regardless of
the amount. Use of lines of credit in connection with its forward trading
does not, however, constitute borrowing for purposes of this trading
limitation.
7. The Partnership will not permit "churning" of the
Partnership's assets.
8. The Partnership will not purchase, sell, or trade
securities (except securities approved by the CFTC for investment of customer
funds). The Partnership may, however, trade in futures contracts on
securities and securities indexes, options on such futures contracts, and
other commodity options.
Material changes to the Trading Policies described above may
be made only with the prior written approval of Limited Partners owning more
than 50% of Units then outstanding. The General Partner will notify the Limited
Partners within seven business days after any material change in the
Partnership's Trading Policies so approved by the Limited Partners.
The Trading Policies above are applicable to the three
Partnerships offering Units hereby. In the future, new partnerships added to the
Charter Series may have substantially different trading policies. There is no
obligation on the part of any new partnership of the Charter Series to conform
its trading policies to those set forth above.
CAPITALIZATION
The following table sets forth the capitalization of each
Partnership as of the date of this Prospectus and the pro forma capitalization
of each Partnership adjusted to reflect (i) the proceeds (at the initial
offering price of $10 per Unit) from the sale during the Initial Offering Period
of the minimum number of Units of each Partnership (400,000) and the maximum
number of Units of each Partnership (3,000,000) offered by this Prospectus, and
(ii) the capital contribution required of the General Partner based on such
capitalization of each Partnership. There will be no difference insofar as
sharing of profits and losses are concerned between Units of Limited Partnership
Interest and Units of General Partnership Interest.
<TABLE>
<CAPTION>
PRO FORMA(1)
-----------------------------------
SALE OF SALE OF
OUTSTANDING MINIMUM UNITS MAXIMUM UNITS
----------- ------------- -------------
<S> <C> <C> <C>
$ $ $
Charter Graham
Limited Partnership Interest
(2)....................... 10 4,000,000 30,000,000
General Partnership Interest
(3)....................... 10 41,000 304,000
Charter Millburn
Limited Partnership Interest
(2)....................... 10 4,000,000 30,000,000
General Partnership Interest
(3)....................... 10 41,000 304,000
Charter Welton
Limited Partnership Interest
(2)....................... 10 4,000,000 30,000,000
General Partnership Interest
(3)....................... 10 41,000 304,000
</TABLE>
- ------------------------------------------------
(1) The pro forma amounts shown assume that all Units are sold at the
initial offering price of $10 per Unit. Subsequent to the Initial
Closing, unsold Units will be offered on a continuing basis at Monthly
Closings for sale at a price equal to 100% of the Net Asset Value of a
Unit as of the close of business on the date of such
30
<PAGE>
Monthly Closing. The actual proceeds from such sale will depend upon the
Net Asset Value per Unit at the time of sale.
(2) The $10 Limited Partnership Interests shown as outstanding represent the
interests of Mark J. Hawley (President and a Director of the General
Partner) acquired by him as the initial Limited Partner of each
Partnership; each such interest was acquired in order to permit each
Partnership to be organized as a limited partnership under the
Partnership Act. At the Initial Closing, each such interest will be
redeemed and $10 will be returned to the initial Limited Partner.
(3) The $10 General Partnership Interests shown as outstanding reflect the
initial capital contribution to each Partnership by the General Partner
to permit each Partnership to be organized as a limited partnership
under the Partnership Act. The General Partner has agreed to contribute
to each Partnership, in $1,000 increments at each Closing, an additional
amount in cash as is necessary to make the General Partner's capital
contribution at least equal to the greater of (a) 1% of aggregate
capital contributions to the Partnership (including the General
Partner's contribution) and (b) $25,000. Such additional contributions
by the General Partner need not exceed the amount described above and
shall be evidenced by Units of General Partnership Interest, each of
which will have a Net Asset Value per Unit equal to that of each
Partnership's Net Asset Value per Unit at the date of such Closing.
Under certain conditions and where modification will not adversely
affect the interests of Limited Partners, the General Partner's minimum
investment requirements may be modified by the General Partner at its
option without notice to or the consent of the Limited Partners.
THE GENERAL PARTNER
The general partner and commodity pool operator of each
Partnership is Demeter Management Corporation, a Delaware corporation formed on
August 18, 1977 to act as a CPO ("Demeter" or the "General Partner"). Effective
in 1977, the General Partner became registered with the CFTC as a CPO and is
currently a member of the NFA in such capacity. The General Partner's main
business office is located at Two World Trade Center, 62nd Floor, New York, New
York 10048, telephone (212) 392-8899. The General Partner, DWR and MS & Co. are
wholly-owned subsidiaries of Morgan Stanley Dean Witter & Co. ("MSDW"), which is
a publicly-owned company. MSDW, DWR, and the General Partner each may be deemed
to be a "parent" and "promoter" of the Partnerships within the meaning of the
federal securities laws.
The General Partner is or has been the general partner and
CPO for 30 other commodity pools--Dean Witter Reynolds Commodity Partners
("Commodity Partners"), Columbia Futures Fund ("Columbia"), Dean Witter
Cornerstone Fund I ("Cornerstone I"), Dean Witter Cornerstone Fund II
("Cornerstone II"), Dean Witter Cornerstone Fund III ("Cornerstone III"), Dean
Witter Cornerstone Fund IV ("Cornerstone IV"), Dean Witter Diversified Futures
Fund Limited Partnership ("Diversified"), Dean Witter Multi-Market Portfolio,
L.P. (formerly Dean Witter Principal Guaranteed Fund L.P.) ("Multi-Market"),
Dean Witter Diversified Futures Fund II L.P. ("Diversified II"), Dean Witter
Principal Guaranteed Fund II L.P. ("Principal Guaranteed Fund II"), Dean Witter
Principal Guaranteed Fund III L.P. ("Principal Guaranteed Fund III"), Dean
Witter Principal Plus Fund L.P. (including Dean Witter Principal Plus Fund
Management L.P., an affiliated pool, "Principal Plus"), Dean Witter Diversified
Futures Fund III L.P. ("Diversified III"), Dean Witter Portfolio Strategy Fund
L.P. (formerly Dean Witter Principal Secured Futures Fund L.P.) ("Portfolio
Strategy"), Dean Witter Spectrum Select L.P. (formerly Dean Witter Select
Futures Fund L.P.) ("Spectrum Select"), Dean Witter Global Perspective Portfolio
L.P. ("Global"), Dean Witter World Currency Fund L.P. ("World Currency"), DWFCM
International Access Fund L.P. ("IAF"), Dean Witter Spectrum Strategic L.P.
("Spectrum Strategic"), Dean Witter Spectrum Global Balanced L.P. (formerly Dean
Witter Spectrum Balanced L.P.) ("Spectrum Global Balanced"), Dean Witter
Spectrum Technical L.P. ("Spectrum Technical"), DWR Chesapeake L.P.
("Chesapeake"), DWR/JWH Futures Fund L.P. ("DWR/JWH"), Morgan Stanley Tangible
Asset Fund L.P. ("MSTAF"), and DWR/Market Street Futures Fund L.P. ("Market
Street"), plus four other commodity pools which are exempt from certain
disclosure requirements pursuant to CFTC Rule 4.7. The General Partner has
served in such capacities since the inception of Commodity Partners in February
1981 (until its termination in December 1988), February 1985 for Columbia, the
inception of Cornerstone I in December 1983 (until its termination in December
1991), the inception of Cornerstone II and Cornerstone III in December 1983, the
inception of Cornerstone IV in December 1986, the inception of Diversified in
November 1987, the inception of Multi-Market in April 1988, the inception of
Diversified II in September 1988, the inception of Principal Guaranteed Fund II
in October 1988, the inception of Principal Guaranteed Fund III in October 1988,
the inception of Principal Plus in August 1989, the inception of Diversified III
in May 1990, the inception of Portfolio Strategy in August 1990, the inception
of Spectrum Select in March 1991, the inception of Global in November 1991, the
inception of World Currency in
31
<PAGE>
December 1992, the inception of IAF in October 1993, the inception of each of
Spectrum Strategic, Spectrum Global Balanced and Spectrum Technical in April
1994, the inception of Chesapeake in August 1994, the inception of DWR/JWH in
November 1995, the inception of MSTAF in July 1997, and the inception of Market
Street in January 1998. As of May 31, 1998, the General Partner had, in the
aggregate, approximately $1.2 billion in net assets under management, making it
one of the largest operators of managed futures funds in the United States. As
of May 31, 1998, there were approximately 100,000 investors in the commodity
pools managed by Demeter.
The responsibilities of the General Partner are described
under "Fiduciary Responsibility" and "The Limited Partnership
Agreements--Management of Partnership Affairs." The General Partner receives no
compensation for its services to the Partnerships (however, the General Partner
shares office space, equipment and staff with DWR, which receives brokerage fees
from the Partnerships, as described under "Description of Charges--Charges to
Each Partnership--2. Commodity Brokers,"). Under each Limited Partnership
Agreement, the General Partner is required to maintain its net worth at an
amount not less than 10% of the total contributions to each Partnership by all
the Partners thereof (including the General Partner's contribution) and to any
other limited partnership for which it acts as a general partner by all
partners. In addition to its current capitalization and exclusive of its
anticipated investment in the Partnerships, the General Partner will increase
its net worth from time to time as may be required as additional Limited
Partners are admitted to the Partnerships or otherwise. MSDW has contributed to
the General Partner additional capital necessary to permit the General Partner
to meet its net worth obligations as General Partner of each Partnership and
intends to continue to do so. Under certain conditions and where modifications
will not adversely affect the interests of Limited Partners, the General
Partner's minimum net worth requirements may be modified by the General Partner
at its option without notice to or the consent of the Limited Partners. See
"Capitalization."
In this connection, as reflected, respectively, in MSDW's
1997 Annual Report and Form 10-Q for the quarter ended May 31, 1998, MSDW had
total shareholders' equity of $13,956 million and total assets of $302,287
million as of November 30, 1997 (audited), and total shareholders' equity of
$13,825 million and total assets of $380,665 million as of May 31, 1998
(unaudited). Additional financial information regarding MSDW is included in the
financial statements filed as part of such Annual Report and Form 10-Q. MSDW
will provide to investors, upon request, copies of its most recent Forms 10-K,
10-Q and 8-K, as filed from time to time with the SEC. Such reports will be
available for review or copying at the offices of the SEC, 450 Fifth Street,
N.W., Room 1024, Judiciary Plaza, Washington, D.C. 20549 or will be available at
no charge by writing to MSDW at 1585 Broadway, New York, New York 10036 (Attn:
Investor Relations).
DIRECTORS AND OFFICERS OF THE GENERAL PARTNER
Richard M. DeMartini, age 45, is the Chairman of the Board
and a Director of the General Partner. Mr. DeMartini is also Chairman of the
Board and a Director of Dean Witter Futures & Currency Management Inc.
("DWFCM"). Mr. DeMartini is president and chief operating officer of DWR's
Individual Asset Management Group. He was named to this position in May of 1997
and is responsible for Dean Witter InterCapital, Van Kampen American Capital,
insurance services, managed futures, unit trust, investment consulting services,
Dean Witter Realty, and NOVUS Financial Corporation. Mr. DeMartini is a member
of the MSDW management committee, a director of the InterCapital funds, a
trustee of the TCW/DW funds and a trustee of the Van Kampen American Capital and
Morgan Stanley retail funds. Mr. DeMartini has been with DWR his entire career,
joining the firm in 1975 as an financial advisor. He served as a branch manager,
regional director, and national sales director, before being appointed president
and chief operating officer of the Dean Witter Consumer Markets. In 1988 he was
named president and chief operating officer of Sears' Consumer Banking Division
and in January 1989 he became president and chief operating officer of Dean
Witter Capital. Mr. DeMartini has served as chairman of the board of the Nasdaq
Stock Market, Inc. and vice chairman of the board of the National Association of
Securities Dealers, Inc. A native of San Francisco, Mr. DeMartini holds a
bachelor's degree in marketing from San Diego State University.
Mark J. Hawley, age 55, is President and a Director of the
General Partner. Mr. Hawley is also President and a Director of DWFCM. Mr.
Hawley joined DWR in February 1989 as Senior Vice President and is currently the
Executive Vice President and Director of DWR's Product Management for Individual
Asset Management. In this capacity, Mr. Hawley is responsible for directing the
activities of the firm's Managed Futures, Insurance, and Unit Investment Trust
Business. From 1978 to 1989, Mr. Hawley was a member of the senior management
team at Heinold Asset Management, Inc., a CPO, and was responsible for a variety
of projects in public futures funds. From 1972 to 1978, Mr. Hawley was a Vice
President in charge of institutional block trading for the Mid-West at Kuhn Loeb
& Company.
32
<PAGE>
Lawrence Volpe, age 51, is a Director of the General Partner
and DWFCM. Mr. Volpe joined DWR as a Senior Vice President and Controller in
September 1983. In May 1998 Mr. Volpe began taking on special assignments for
DWR and relinquishing certain day-to-day responsibilities. From July 1979 to
September 1983, he was associated with E.F. Hutton & Company Inc. and prior to
his departure, held the positions of First Vice President and Assistant
Controller. From 1970 to July 1979, he served as audit manager in the financial
services division of Arthur Andersen & Co.
Joseph G. Siniscalchi, age 53, is a Director of the General
Partner. Mr. Siniscalchi joined DWR in July 1984 as a First Vice President,
Director of General Accounting. He is currently Senior Vice President and
Controller of the Financial Markets Division of DWR. From February 1980 to July
1984, Mr. Siniscalchi was Director of Internal Audit at Lehman Brothers Kuhn
Loeb, Inc.
Edward C. Oelsner III, age 55, is a Director of the General
Partner. Mr. Oelsner is currently an Executive Vice President and head of the
Product Development Group at Dean Witter InterCapital Inc., an affiliate of DWR.
Mr. Oelsner joined DWR in 1981 as a Managing Director in DWR's Investment
Banking Department specializing in coverage of regulated industries and,
subsequently, served as head of the DWR Retail Products Group. Prior to joining
DWR, Mr. Oelsner held positions at The First Boston Corporation as a member of
the Research and Investment Banking Departments from 1967 to 1981. Mr. Oelsner
received his M.B.A. in Finance from the Columbia University Graduate School of
Business in 1966 and an A.B. in Politics from Princeton University in 1964. Mr.
Oelsner joined DWR in March 1981 as a Managing Director in the Corporate Finance
Department. He currently manages DWR's Retail Products Group within the
Corporate Finance Department. While Mr. Oelsner has extensive experience in the
securities industry, he has no experience in futures interests trading.
Robert E. Murray, age 37, is a Director of the General
Partner. Mr. Murray is also a Director of DWFCM. Mr. Murray is currently a
Senior Vice President of DWR's Managed Futures Department and is the Senior
Administrative Officer of DWFCM. Mr. Murray began his career at DWR in 1984 and
is currently the Director of the Managed Futures Department. In this capacity,
Mr. Murray is responsible for overseeing all aspects of the firm's Managed
Futures Department. Mr. Murray currently serves as a Director of the Managed
Funds Association, an industry association for investment professionals in
futures, hedge funds and other alternative investments. Mr. Murray graduated
from Geneseo State University in May 1983 with a B.A. degree in Finance.
Lewis A. Raibley, III, age 36, is Vice President and Chief
Financial Officer of the General Partner. Mr. Raibley is currently Senior Vice
President and Controller in the Individual Asset Management Group of MSDW. From
July 1997 to May 1998, Mr. Raibley served as Senior Vice President and Director
in the Internal Reporting Department of MSDW and prior to that, from 1992 to
1997, he served as Senior Vice President and Director in the Financial Reporting
and Policy Division of Dean Witter Discover & Co. ("DWD"). He has been with DWD
and its affiliates since June 1986.
The General Partner and its officers and directors may, from
time to time, trade futures interests for their own proprietary accounts. The
records of trading in such accounts will not be made available to Limited
Partners for inspection.
The General Partner has agreed to make capital contributions
to each Partnership as needed to make the General Partner's capital contribution
at least equal to the greater of (a) 1% of aggregate capital contributions to
the Partnership by all Partners (including the General Partner's contribution)
and (b) $25,000. The General Partner and its principals are not obligated to
purchase Units but may do so.
DESCRIPTION AND PERFORMANCE INFORMATION OF COMMODITY POOLS OPERATED BY THE
GENERAL PARTNER
The following table sets forth summary information for the
24 other commodity pools (other than the four pools exempt from disclosure under
CFTC Rule 4.7) operated to date by Demeter, fourteen of which employ one trading
advisor and ten of which employ more than one trading advisor, for which Demeter
serves as general partner. In the context of a pool with only one trading
advisor, Demeter performs general monitoring of the trading advisor and
administrative services. Generally, in the context of pools with more than one
trading advisor, in addition to providing general monitoring and administrative
services, Demeter provides asset allocation strategies in the selection and
replacement of trading advisors as well as in the allocation of assets to such
advisors.
While each of these commodity pools has essentially the same
objective (appreciation of assets through speculative trading), the structure
(including fees and interest income arrangements) and performance of these pools
varies widely. For example, certain pools employ only one trading advisor while
others employ more
33
<PAGE>
than one trading advisor (several pools employ two to four trading advisors and
some have employed more than ten trading advisors at the same time). Certain
pools are so-called "principal protection pools," offering an assurance of
principal return at a date certain. The performance records of these pools
include several pools that have traded unprofitably, including four pools that
have terminated trading due to losses; other pools that have not incurred
losses, but have not achieved significant profits; and certain pools that have
performed well over time.
All summary performance information is current as of April
30, 1998. Performance information is set forth for the most recent five full
years of each pool, or in the event that a pool has been trading for less than
five years, performance information is set forth from the inception of trading.
Rate of return information prior to January 1, 1993 has not been included for
pools that have been trading for more than five years in accordance with CFTC
regulations. In reviewing the following summary performance information,
prospective investors should understand that (i) such performance is calculated
on the accrual basis in accordance with generally accepted accounting principles
and is "net" of all fees and charges, and (ii) a more complete presentation of
the performance of the futures funds operated or managed by the General Partner
and/or its affiliates is available without charge upon request to the General
Partner.
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE
RESULTS AND MATERIAL DIFFERENCES EXIST BETWEEN THE COMMODITY POOLS DESCRIBED
HEREIN AND THE PARTNERSHIPS. THERE CAN BE NO ASSURANCE THAT THE PARTNERSHIPS
WILL PERFORM IN A MANNER COMPARABLE TO ANY OF THE COMMODITY POOLS DESCRIBED
BELOW OR THAT THE PARTNERSHIPS WOULD HAVE DONE SO IN THE PAST. INVESTORS SHOULD
ALSO NOTE THAT INTEREST INCOME MAY CONSTITUTE A SIGNIFICANT PORTION OF A
COMMODITY POOL'S TOTAL INCOME AND, IN CERTAIN INSTANCES, MAY GENERATE PROFITS
WHERE THERE HAVE BEEN REALIZED OR UNREALIZED LOSSES FROM COMMODITY TRADING.
- --------------------------------------------------------------------------------
Prospective investors should note that the performance
records of the commodity pools operated by the General Partner are set forth in
summary form herein. A more detailed presentation of such performance
information will be provided to any prospective investor upon request and
without charge.
- --------------------------------------------------------------------------------
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
34
<PAGE>
DEMETER MANAGEMENT CORPORATION
CAPSULE SUMMARY OF PERFORMANCE INFORMATION REGARDING COMMODITY POOLS OPERATED
(EXCEPT AS OTHERWISE INDICATED, BEGINNING JANUARY 1, 1993 THROUGH APRIL 30, 1998
<TABLE>
<CAPTION>
CURRENT CURRENT CUMULATIVE
TOTAL NET ASSET RETURN
START CLOSE AGGREGATE NET ASSET VALUE PER SINCE
FUND TYPE/FUND(1) DATE(2) DATE(3) SUBSCRIPTION(4) VALUE(5) UNIT(6) INCEPTION(7)
- -------------------------------------- -------- -------- --------------- ----------- ---------- -------------
<S> <C> <C> <C> <C> <C> <C>
$ $ $ %
<CAPTION>
PUBLICLY-OFFERED FUNDS WITH ONE ADVISOR WITHOUT "PRINCIPAL PROTECTION"
<S> <C> <C> <C> <C> <C> <C>
DWR Commodity Partners Jan-81 Dec-88 9,648,397 739,757 488.29 (51.37)
Columbia Futures Fund(11) Jul-83 N/A 29,276,299 8,676,206 2,638.16 169.20
DW Diversified Futures Fund L.P.(11) Apr-88 N/A 206,815,107 122,410,956 924.29 226.48
DW Multi-Market Portfolio L.P.(11) Sep-88 N/A 252,526,000 9,506,820 1,038.59 3.86
DW Diversifed Futures Fund II L.P. Jan-89 N/A 13,210,576 10,192,431 2,436.29 143.63
DW Diversifed Futures Fund III L.P. Nov-90 N/A 126,815,755 61,695,355 1,531.19 53.12
DW Portfolio Strategy Fund L.P.(11) Feb-91 N/A 143,522,564 122,833,612 2,257,56 125.76
DWFCM International Access Fund L.P. Mar-94 N/A 68,115,440 41,679,647 1,332.17 33.22
DW Spectrum Global Balanced L.P. Nov-94 N/A 32,155,851 30,401,819 14.33 43.30
Morgan Stanley Tangible Asset Fund Jan-98 N/A 40,530,217 38,079,517 9.31 (6.90)
<CAPTION>
PUBLICLY-OFFERED FUNDS WITH MORE THAN ONE ADVISOR WITHOUT "PRINCIPAL PROTECTION"
<S> <C> <C> <C> <C> <C> <C>
DW Cornerstone Fund I(11) Jan-85 Dec-91 19,122,276 281,303 456.80 (53.15)
DW Cornerstone Fund II(11) Jan-85 N/A 65,634,484 27,748,445 3,467.26 255.62
DW Cornerstone Fund III(11) Jan-85 N/A 137,116,765 41,235,639 3,086.21 216.53
DW Cornerstone Fund IV(11) May-87 N/A 167,936,749 108,660,798 4,184.48 329.18
DW Spectrum Select L.P. Aug-91 N/A 200,874,673 153,983,232 20.08 100.80
DW Global Perspective Portfolio L.P. Mar-92 N/A 67,424,535 18,298,896 881.82 (11.82)
DW World Currency Fund L.P. Apr-93 N/A 114,945,830 27,973,610 929.96 (7.00)
DW Spectrum Strategic L.P. Nov-94 N/A 79,348,721 57,064,085 9.73 (2.70)
DW Spectrum Technical L.P. Nov-94 N/A 196,199,149 192,367,410 14.03 40.30
<CAPTION>
PUBLICLY-OFFERED FUNDS WITH ONE ADVISOR WITH "PRINCIPAL PROTECTION"
<S> <C> <C> <C> <C> <C> <C>
DW Principal Guaranteed Fund III L.P. Jul-89 Sep-95 126,263,000 7,022,437 1,000.00 0.00
DW Principal Plus Fund L.P.(11) Feb-90 N/A 109,013,535 52,512,157 1,781.09 78.11
<CAPTION>
PUBLICLY-OFFERED FUNDS WITH MORE THAN ONE ADVISOR WITH "PRINCIPAL PROTECTION"
<S> <C> <C> <C> <C> <C> <C>
DW Principal Guaranteed Fund II L.P. Mar-89 Mar-96 162,203,303 4,966,449 1,056.55 5.66
<CAPTION>
PRIVATELY-OFFERED FUNDS WITH ONE ADVISOR WITHOUT "PRINCIPAL PROTECTION"
<S> <C> <C> <C> <C> <C> <C>
DWR Chesapeake L.P. Nov-94 N/A 16,854,355 17,478,937 1,865.00 86.50
DWR/JWH Futures Fund L.P. Feb-96 N/A 24,257,946 22,644,603 1,116.57 11.66
<CAPTION>
WORST WORST PEAK- COMPOUND ANNUAL RATES OF RETURN(10)
MONTHLY % TO-VALLEY ----------------------------------------------------
FUND TYPE/FUND(1) DRAWDOWN(8) DRAWDOWN(9) 1998 1997 1996 1995
- -------------------------------------- ------------ ------------ --------- --------- ---------- ---------
<S> <C> <C>
% % % % % %
PUBLICLY-OFFERED FUNDS WITH ONE ADVISO
<S> <C> <C>
DWR Commodity Partners (34.48) (64.23)
7/88 4/86-12/88
Columbia Futures Fund(11) (17.54) (42.58) (6.81) 22.60 19.09 28.21
4/86 7/83-9/85 (4 months)
DW Diversified Futures Fund L.P.(11) (12.85) (24.86) (9.43) 11.96 (2.66) (4.56)
5/90 5/95-6/96 (4 months)
DW Multi-Market Portfolio L.P.(11) (13.26) (29.84) (9.03) 13.28 (6.76) (6.37)
2/96 5/95-6/96 (4 months)
DW Diversifed Futures Fund II L.P. (13.41) (25.62) (9.24) 11.28 (4.83) (2.90)
8/89 5/95-6/96 (4 months)
DW Diversifed Futures Fund III L.P. (13.62) (27.00) (9.51) 12.29 (4.73) (4.02)
1/92 5/95-6/96 (4 months)
DW Portfolio Strategy Fund L.P.(11) (14.40) (25.65) (4.88) 11.28 25.50 25.37
1/92 1/92-4/92 (4 months)
DWFCM International Access Fund L.P. (12.87) (22.84) (10.12) 26.22 3.97 21.88
1/95 8/94-1/95 (4 months)
DW Spectrum Global Balanced L.P. (7.92) (10.64) 4.22 18.23 (3.65) 22.79
2/96 2/96-5/96 (4 months)
Morgan Stanley Tangible Asset Fund (5.92) (8.09) (6.90)
2/98 2/98-4/98 (4 months)
PUBLICLY-OFFERED FUNDS WITH MORE THAN
<S> <C> <C>
DW Cornerstone Fund I(11) (20.88) (64.47)
8/91 4/86-8/91
DW Cornerstone Fund II(11) (11.74) (32.70) (6.92) 18.05 11.47 26.50
9/89 7/88-10/89 (4 months)
DW Cornerstone Fund III(11) (18.28) (32.35) 3.10 10.24 8.24 27.50
2/89 2/89-10/89 (4 months)
DW Cornerstone Fund IV(11) (21.04) (45.21) (5.66) 38.41 12.97 22.96
9/89 7/89-9/89 (4 months)
DW Spectrum Select L.P. (13.72) (26.77) (3.69) 6.22 5.27 23.62
1/92 6/95-8/96 (4 months)
DW Global Perspective Portfolio L.P. (8.55) (40.90) (8.83) 11.16 9.26 16.76
2/96 8/93-1/95 (4 months)
DW World Currency Fund L.P. (9.68) (46.04) (6.42) 39.35 12.97 2.02
5/95 8/93-1/95 (4 months)
DW Spectrum Strategic L.P. (11.06) (21.91) (9.15) 0.37 (3.53) 10.49
4/98 4/97-4/98 (4 months)
DW Spectrum Technical L.P. (6.39) (8.27) (4.10) 7.49 18.35 17.59
2/96 3/97-5/97 (4 months)
PUBLICLY-OFFERED FUNDS WITH ONE ADVISO
<S> <C> <C>
DW Principal Guaranteed Fund III L.P. (13.98) (30.93) 5.21
1/92 5/90-4/92 (9 months)
DW Principal Plus Fund L.P.(11) (7.48) (13.08) 4.30 15.39 (5.28) 17.98
2/96 2/96-5/96 (4 months)
PUBLICLY-OFFERED FUNDS WITH MORE THAN
<S> <C> <C>
DW Principal Guaranteed Fund II L.P. (5.62) (14.69) 1.00 7.30
1/91 8/89-4/92
PRIVATELY-OFFERED FUNDS WITH ONE ADVIS
<S> <C> <C>
DWR Chesapeake L.P. (16.14) (17.80) 8.57 15.38 15.23 15.80
7/96 5/96-7/96 (4 months)
DWR/JWH Futures Fund L.P. (8.49) (16.86) (16.86) 13.66 18.17
5/97 1/98-4/98 (4 months) (11 months)
<CAPTION>
FUND TYPE/FUND(1) 1994 1993
- -------------------------------------- ---------- ---------
% %
PUBLICLY-OFFERED FUNDS WITH ONE ADVISO
DWR Commodity Partners
Columbia Futures Fund(11) (5.75) 14.36
DW Diversified Futures Fund L.P.(11) 7.68 6.65
DW Multi-Market Portfolio L.P.(11) 2.66 8.65
DW Diversifed Futures Fund II L.P. 5.41 7.35
DW Diversifed Futures Fund III L.P. 5.89 7.58
DW Portfolio Strategy Fund L.P.(11) (5.41) 19.88
DWFCM International Access Fund L.P. (7.32)
(10 months)
DW Spectrum Global Balanced L.P. (1.70)
(2 months)
Morgan Stanley Tangible Asset Fund
PUBLICLY-OFFERED FUNDS WITH MORE THAN
DW Cornerstone Fund I(11)
DW Cornerstone Fund II(11) (8.93) 7.81
DW Cornerstone Fund III(11) (10.04) (4.78)
DW Cornerstone Fund IV(11) (14.27) (9.12)
DW Spectrum Select L.P. (5.12) 41.62
DW Global Perspective Portfolio L.P. (31.62) (4.67)
DW World Currency Fund L.P. (25.13) (17.35)
(9 months)
DW Spectrum Strategic L.P. 0.10
(2 months)
DW Spectrum Technical L.P. (2.20)
(2 months)
PUBLICLY-OFFERED FUNDS WITH ONE ADVISO
DW Principal Guaranteed Fund III L.P. 1.08 5.37
DW Principal Plus Fund L.P.(11) (8.61) 11.55
PUBLICLY-OFFERED FUNDS WITH MORE THAN
DW Principal Guaranteed Fund II L.P. (8.12) 9.74
PRIVATELY-OFFERED FUNDS WITH ONE ADVIS
DWR Chesapeake L.P. 11.57
(2 months)
DWR/JWH Futures Fund L.P.
</TABLE>
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
35
<PAGE>
FOOTNOTES TO DEMETER MANAGEMENT CORPORATION PERFORMANCE INFORMATION
1. Each pool is identified by certain of the following classifications.
Funds that are "publicly-offered" are pools offered to the public
pursuant to registration in accordance with the requirements of the
Securities Act of 1933, as amended. The General Partner also serves as
general partner and/or commodity pool operator to seven
"privately-offered" funds, which are pools offered in private
placements exempt from registration pursuant to Section 4(2) of the
Securities Act of 1933, as amended, and Rule 506 thereunder.
Performance information for four of such privately-offered funds is
not provided, consistent with CFTC Rule 4.7, and a fifth fund had not
commenced trading as of April 30, 1998. Funds with more than one
advisor are pools the assets of which are managed by more than one
commodity trading advisor but are not "multi-advisor pools" within the
meaning of CFTC Rule 4.10(d)(2). (The CFTC defines a multi-advisor
pool as one in which no advisor is allocated or intended to be
allocated more than 25% of the pool's assets available for trading.)
Funds with "principal protection" are pools with an investment feature
whereby investors are guaranteed to receive back at least the amount
that they originally invested at a date certain in the future
(generally 5 to 7 years after the date of subscription). Funds without
"principal protection" are pools in which there is no guarantee of an
investor's investment. None of the privately-offered pools has a
principal protection feature.
2. "Start Date" is the month and year in which the pool commenced
operations.
3. "Close Date" is the month and year in which the pool liquidated its
assets and ceased to do business.
4. "Aggregate Subscriptions" is the aggregate of all amounts ever
contributed to the pool, including investments which were subsequently
redeemed by investors.
5. "Current Total Net Asset Value" is the net asset value of the pool as
of April 30, 1998, or, in the case of liquidated pools, the net asset
value of the pool on the date of liquidation.
6. "Current Net Asset Value Per Unit" is the Current Total Net Asset
Value divided by the total number of units outstanding as of April 30,
1998, or, in the case of liquidated pools, the net asset value per
unit on the date of liquidation.
7. "Cumulative Return Since Inception" is the percentage increase or
decrease in the net asset value of a unit from inception through April
30, 1998, or, in the case of liquidated pools, from inception through
the date of liquidation.
8. "Drawdown" means losses experienced by the relevant pool over the
specified period and is calculated on a rate of return basis, i.e.,
dividing net performance by beginning equity. "Drawdown" is measured
on the basis of monthly returns only, and does not reflect intra-month
figures. The month in which the worst monthly drawdown occurred during
the history of the pool is set forth under "Worst Monthly % Drawdown."
9. "Peak-to-Valley Drawdown" is the largest percentage decline in the net
asset value per unit over the history of the fund. This need not be a
continuous decline, but can be a series of positive and negative
returns where the negative returns are larger than the positive ones.
"Peak-to-Valley Drawdown" represents the greatest percentage decline
from any month-end net asset value per unit which occurs without such
month-end net asset value per unit being equaled or exceeded as of a
subsequent month-end. For example, if the net asset value per unit of
a particular pool declined by $1 in each of January and February,
increased by $1 in March and declined again by $2 in April, a
"peak-to-valley drawdown" analysis conducted as of the end of April
would consider that "drawdown" to be still continuing and to be $3 in
amount, whereas if the net asset value per unit had increased by $2 in
March, the January-February drawdown would have ended as of the end of
February at the $2 level. The months during which the worst
peak-to-valley drawdown occurred are set forth under "Worst
Peak-to-Valley Drawdown."
10. "Compound Annual Rates of Return" are calculated in respect of each year
by multiplying on a compound basis each of the monthly rates of return
during the year (not shown), and not by adding or averaging such monthly
rates of return. For the year in which a pool commenced operations and
for 1998, "Compound Annual Rates of Return" reflect the compounded
monthly rates of return (not shown) from the Start Date for, or the
beginning of, such partial year.
11. Columbia was a publicly-offered fund with more than one advisor from its
inception in July 1983 through January 1988, at which point it was
changed to a publicly-offered fund with one advisor. Diversified's net
asset value per unit was revalued from $3,964.23 to $1,000.00 after the
close of business on August 31, 1995. All investors in Diversified prior
to August 31, 1995 had their units increased by a corresponding amount to
reflect this revaluation, and all return calculations in the table have
been adjusted accordingly. Multi-Market, formerly named Dean Witter
Principal Guaranteed Fund L.P., was a publicly-offered fund with more
than one advisor with principal protection from its inception in
September 1988 through September 30, 1993, at which point it was changed
to a publicly-offered fund with one advisor without principal protection.
Portfolio Strategy, formerly named Dean Witter Principal Secured Futures
Fund L.P., was a publicly-offered fund with one advisor with principal
protection from its inception in February 1991 through July 31, 1996, at
which point it was changed to a publicly-offered fund with one advisor
without principal protection. Spectrum Global Balanced was formerly named
Spectrum Balanced. Spectrum Select was formerly named Select Futures
Fund; each unit of Select Futures Fund was converted into 100 units of
Spectrum Select on April 30, 1998, with a corresponding revaluation of
Net Asset Value per Unit from $2,008.20 to $20.08. Subscriptions for
interests in Cornerstone II, Cornerstone III, and Cornerstone IV included
an up-front 7.625% of net asset value selling commission and continuing
offering expense charge until sales to new investors were terminated on
September 30, 1994. Because sales occurred through the year and,
therefore, the amount of the net asset value-based charge varied among
investors, it was not practicable to include the up-front charge in
determining the Cornerstone Funds' annual returns for the years 1993 and
1994. The performance record of Principal Plus includes the performance
of Dean Witter Principal Plus Fund Management L.P., an affiliated pool.
36
<PAGE>
THE TRADING ADVISORS
INTRODUCTION
A Partnership's ability to succeed depends largely on the
success of the trading approaches utilized by its trading advisor (each, a
"Trading Advisor" or "Money Manager," and collectively, the "Trading Advisors"
or "Money Managers"). The following is a brief description of general approaches
used in trading futures interests, followed by specific information relating to
the Trading Advisor of each Partnership.
A Trading Advisor's registration with the CFTC or its
membership in the NFA should not be taken as an indication that any such agency
has recommended or approved the Trading Advisor.
The Trading Advisors and their principals have no
affiliation with any futures commission merchant, introducing broker or
principal thereof, and do not and will not participate in brokerage commissions,
directly or indirectly.
GENERAL DESCRIPTION OF TRADING APPROACHES
SYSTEMATIC AND DISCRETIONARY. Trading advisors may be
classified as either systematic or discretionary.
A systematic trader will generally rely to some degree on
judgmental decisions concerning, for example, what markets to follow and futures
interests to trade, when to liquidate a position in a contract which is about to
expire and how large a position to take in a particular futures interest.
However, although these judgmental decisions may have a substantial effect on a
systematic Trading Advisor's performance, his primary reliance is on trading
programs or models which generate trading signals. The systems utilized to
generate trading signals are changed from time to time (although generally
infrequently), but the trading instructions generated by the systems being used
are followed without significant additional analysis or interpretation. On the
other hand, while discretionary traders may utilize market charts, computer
programs and compilations of quantifiable fundamental information to assist them
in making trading decisions, they make trading decisions on the basis of their
own judgment and trading experience, not on the basis of trading signals
generated by any program or model.
Each approach involves certain inherent risks. Systematic
traders may fail to capitalize on market trends which their systems would
otherwise have exploited due to judgmental decisions made by them in the context
of applying their generally mechanical trading systems. Discretionary traders,
on the other hand, may decide to make trades which would not have been signaled
by a trading system and which result in substantial losses. Furthermore, any
trading system or trader may suffer substantial losses by misjudging the market.
Systematic traders tend to rely more on computerized programs than do
discretionary traders, and some consider the prospect of disciplined trading,
which largely removes the emotion of the individual trader from the trading
process, advantageous. In addition, due to their use of computers, systematic
traders are generally able to incorporate more data into a particular trading
decision than can discretionary traders. However, when fundamental factors
dominate the market, trading systems may suffer rapid and severe losses due to
their inability to respond to such factors until the reversal of trading
signals, by which time a precipitous price change may already be in progress,
preventing liquidation at anything but substantial losses.
TECHNICAL AND FUNDAMENTAL ANALYSIS. In addition to being
distinguished from one another by the criterion of whether they trade
systematically or on the basis of their discretionary evaluations of the
markets, Trading Advisors are also distinguished as relying on either
"technical" or "fundamental" analysis, or on a combination of the two.
Systematic traders tend to rely on technical analysis, because the data relevant
to such analysis is more susceptible to being isolated and quantified to the
extent necessary to be successfully incorporated into a program or mathematical
model than is most "fundamental" information, but there is no inconsistency in
attempting to trade systematically on the basis of fundamental analysis. The
fundamental information which can be evaluated by a formalized trading system
is, however, limited to some extent in that it generally must be quantifiable in
order to be processed by such a system.
Technical analysis is not based on anticipated supply and
demand factors; instead, it is based on the theory that the study of the futures
markets themselves will provide a means of anticipating prices in the future.
Technical analysis operates on the theory that market prices at any given point
in time reflect all known factors affecting the supply and demand for a
particular commodity. Consequently, technical analysis focuses not on evaluating
those factors directly but on an analysis of market prices themselves,
theorizing that a detailed analysis of, among other things, actual daily, weekly
and monthly price fluctuations, volume variations and
37
<PAGE>
changes in open interest is the most effective means of attempting to predict
the future course of price movements.
Fundamental analysis, in contrast, is based on the study of
factors external to the trading markets that affect the supply and demand of a
particular commodity in an attempt to predict future price levels. Such factors
might include weather, the economy of a particular country, government policies,
domestic and foreign political and economic events, and changing trade
prospects. Fundamental analysis theorizes that by monitoring relevant supply and
demand factors for a particular commodity, a state of current or potential
disequilibrium of market conditions may be identified that has yet to be
reflected in the price level of that commodity. Fundamental analysis assumes
that markets are imperfect, that information is not instantaneously assimilated
or disseminated and that econometric models can be constructed that generate
equilibrium prices that may indicate that current prices are inconsistent with
underlying economic conditions and will, accordingly, change in the future.
TREND-FOLLOWING. "Trend-following" Trading Advisors gear
their trading approaches towards positioning themselves to take advantage of
major price movements, as opposed to traders who seek to achieve overall
profitability by making numerous small profits on short-term trades, or through
arbitrage techniques. "Trend-following" Trading Advisors assume that most of
their trades will be unprofitable. Their objective is to make a few large
profits, more than offsetting their more numerous but smaller losses, from
capitalizing on major trends. Consequently, during periods when no major price
trends develop in a market, a "trend-following" Trading Advisor is likely to
incur substantial losses.
RISK CONTROL TECHNIQUES. As will be apparent from the
following descriptions of the respective Trading Advisors' trading programs, an
important aspect of any speculative futures strategy relates to the control of
losses, not only the ability to identify profitable trades. Unless it is
possible to avoid major drawdowns, it is very difficult to achieve long-term
profitability.
Trading Advisors often adopt fairly rigid "risk management"
or "money management" principles. Such principles typically restrict the size of
positions which will be taken, as well as establishing "stop-loss" points at
which losing positions must be liquidated. It is important for prospective
investors to recognize that no risk control technique is "fail safe" and cannot,
in fact, assure that major drawdowns will be avoided. Not only do estimates of
market volatility themselves require judgmental input, but market illiquidity
also can make it impossible for an account to liquidate a position against which
the market is moving strongly, whatever risk management principles are utilized.
Similarly, unless a "trend-following" Trading Advisor trades profitably, the
losses incurred in the course of taking an initial position in a futures
interest can quickly cumulate into a major drawdown. A Trading Advisor's risk
management principles should, accordingly, be seen more as a discipline applied
to its trading in highly speculative markets, rather than as an effective
protection against loss.
Not only are some methods proprietary and confidential, but
they are also continually evolving. Prospective investors and Limited Partners
will generally not be informed of a change in a Trading Advisor's trading
approach, unless the General Partner is informed of such change and considers
such change to be material.
In addition to the continually changing character of trading
methods, the futures interests markets themselves are continually changing. Each
Trading Advisor may, in its sole discretion, elect to trade certain futures
interests to the exclusion of others in its programs, depending upon the Trading
Advisor's view of the markets.
THE TRADING ADVISORS
The following contains the biographies of the principals and
brief summaries of trading programs of the Trading Advisor initially selected,
and other trading programs which may be employed in the future, for each
Partnership. The success of each Partnership is dependent upon the success of
its Trading Advisor in its trading for the Partnership. In terms of attempting
to reach an investment decision regarding the purchase of Units in any
Partnership, however, it is difficult to know how to assess Trading Advisor
descriptions, as trading methods are proprietary and confidential. Over time the
Trading Advisor selected for a Partnership may change, and a Trading Advisor may
make substantial modifications to its trading programs.
The following descriptions of the Trading Advisors, their
respective trading programs and their respective principals are general and are
not intended to be exhaustive. No attempt has been or could be made to provide a
precise description of any Trading Advisor's trading program. Furthermore,
certain Trading Advisors may have chosen to refer to specific aspects of their
trading programs, which aspects may also be applicable to other
38
<PAGE>
Trading Advisors which did not choose to make specific reference to these
aspects of their own trading approaches. As a consequence, contrasts in the
following descriptions may not, in fact, indicate a substantive difference
between the different approaches involved. The General Partner believes that the
following descriptions may be of interest to prospective investors. However,
investors must be aware of the inherent limitations of such descriptions.
FUTURES INTERESTS TRADING IS SPECULATIVE AND VOLATILE AND
INVOLVES A HIGH DEGREE OF RISK. THERE CAN BE NO ASSURANCE THAT ANY TRADING
ADVISOR WILL TRADE PROFITABLY OR AVOID SUBSTANTIAL LOSSES.
MORGAN STANLEY DEAN WITTER CHARTER GRAHAM L.P.
The Trading Advisor for Charter Graham is Graham Capital
Management, L.P. ("GCM"). GCM is a Delaware limited partnership which was
organized in May 1994. GCM's main business address is Stamford Harbor Park, 333
Ludlow Street, Stamford, Connecticut 06902. GCM has been registered with the
CFTC as a CPO and CTA since July 1994 and is a member of the NFA in such
capacities. GCM is not affiliated with the General Partner, the Commodity
Brokers, or any other Trading Advisor.
Certain key personnel of GCM are as follows:
Mr. Kenneth G. Tropin is the President, the founder, and a
principal of GCM. As President of GCM, Mr. Tropin is responsible for the
investment management strategies of the organization. He has developed GCM's
trading programs.
Prior to organizing GCM, Mr. Tropin served as President,
Chief Executive Officer and as a Director of John W. Henry & Co. Inc. ("JWH")
from March 1989 to September 1993. Mr. Tropin was formerly Senior Vice President
and Director of Managed Futures and Precious Metals at DWR. He joined DWR from
Shearson in February 1982 to run DWR's Managed Futures Department, and in
October 1984 Mr. Tropin assumed responsibility for Dean Witter Precious Metals
as well. In November 1984, Mr. Tropin was appointed President of Demeter.
In February 1986, Mr. Tropin was instrumental in the
foundation of the Managed Futures Trade Association ("MFTA"), a non-profit
managed futures industry association. Mr. Tropin was elected Chairman of the
MFTA in March 1986 and held this position until 1991. In June 1987, Mr. Tropin
was appointed President of DWFCM, an affiliate of DWR. As President and Chief
Executive Officer of JWH, Mr. Tropin was responsible for the management and
administration of JWH as well as the management of its trading activities. In
addition to his responsibilities as President and Chief Executive Officer of
JWH, Mr. Tropin was President and Chief Executive Officer of JWH Investment
Advisory Services Inc. and was also the Chairman of Global Capital Management, a
British Virgin Islands company. Mr. Tropin also served as Chairman of the
Managed Funds Association in 1991 and 1992, the successor organization to the
Managed Futures Trade Association and the National Association of Futures
Trading Advisors.
Mr. Thomas Schneider is an Executive Vice President, the
Chief Trader, and a principal of GCM. Mr. Schneider is responsible for managing
GCM's trading operations, including order execution, policies and procedures,
and maintaining relationships with independent executing brokers and FCMs.
Mr. Schneider graduated from the University of Notre Dame in
1983 with a BBA in Finance, and received his MBA from the University of Texas at
Austin. From June 1985 through September 1993, Mr. Schneider was employed by ELM
Financial, Inc. ("ELM"), a commodity trading advisor in Dallas, Texas. While
employed at ELM, Mr. Schneider held positions of increasing responsibility and
was ultimately Chief Trader, Vice President and principal of ELM, responsible
for 24 hour trading execution, compliance and accounting. In January 1994, Mr.
Schneider began working as Chief Trader for Chang Crowell Management
Corporation, a commodity trading advisor in Norwalk, Connecticut. He was
responsible for streamlining operations for more efficient order execution, and
for maintaining and developing relationships with over 15 FCMs on a global
basis. In addition to his responsibilities as Chief Trader, Mr. Schneider serves
on the Board of the New York Futures Exchange, has served on the MFA's Trading
and Markets committee, and has been an NFA arbitrator since 1989.
Mr. Robert Griffith is a Senior Vice President, the Chief
Technology Officer, and a principal of GCM, and is responsible for the
management of all technology resources. Mr. Griffith is in charge of the
day-to-day administration of GCM's trading systems and the management of its
database of price information on more than 100 markets. Mr. Griffith assists Mr.
Tropin in numerous research initiatives as well as various administrative
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responsibilities. Prior to joining GCM, Mr. Griffith's Veridical Methods, Inc.
provided computer programming and consulting services to such firms as GE
Capital, Lehman Brothers and Morgan Guaranty Trust. He received his BBA in
Management Information systems from the University of Iowa.
Mr. Thomas K. Sullivan is a Vice President, the Director of
Research, and a principal of GCM. Mr. Sullivan is responsible for GCM's research
activities, including portfolio management, asset allocation, trading system
development, as well as policies and procedures. Prior to joining GCM in March
1997, Mr. Sullivan was a Senior Portfolio Manager for RXR, Inc. and a member of
the firm's Management Team. He also served on RXR's Investment Policy Committee.
Mr. Sullivan directed the investment and research activity for the firm and was
responsible for portfolio management and strategy implementation. Before joining
RXR in 1988, Mr. Sullivan worked as a trading floor specialist for Floor Broker
Associates and Freeburg Futures, members of the New York Commodity Exchange. Mr.
Sullivan graduated from Miami University of Ohio in 1983 with a BS in economics
and international business.
Mr. Anthony Bryla, C.P.A., is a Vice President, the
Controller, and a principal of GCM, and is responsible for the management of all
accounting and finance activities at GCM. Mr. Bryla is in charge of the daily
and monthly performance reporting, company accounting, treasury functions, as
well as policies and procedures. Prior to joining GCM in September 1995, Mr.
Bryla was an Assistant Accounting Manager at OMR Systems Corp., where he
provided back-office and accounting services for such clients as Merrill Lynch
and Chase Manhattan Bank, and held positions of increasing responsibility since
February 1989. Mr. Bryla is a member of the New Jersey Society of C.P.A.'s and
graduated from Rutgers University with a BA in Business Administration in 1982.
Mr. Paul Sedlack is a Vice President, the General Counsel,
and a principal of GCM, and is responsible for legal and compliance matters. Mr.
Sedlack began his career at the law firm of Coudert Brothers in New York in 1986
and was resident in Coudert's Singapore office from 1988 to 1989. Prior to
joining GCM in June 1998, Mr. Sedlack was a partner at the law firm of
McDermott, Will & Emery in New York, focusing on securities and commodities laws
pertaining to the investment management and related industries. Mr. Sedlack
received a J.D. from Cornell Law School and an MBA in Finance and BS in
Engineering from State University of New York at Buffalo.
Mr. Kevin O'Connor is a Vice President, Senior Trader, and
principal of GCM. Mr. O'Connor is a senior member of the trading staff
responsible for executing trades in accordance with GCM's five systems, and
works closely with Mr. Schneider in managing the firm's daily trading
operations. Prior to joining GCM, from June 1992 until June 1995, Mr. O'Connor
was a Vice President and Controller for Luck Trading Company, a commodity
trading advisor in New York City. From January 1981 until June 1992, Mr.
O'Connor was a Controller and Senior Trader for Futures Investment Company, a
commodity trading advisor based in Greenwich, CT. Mr. O'Connor graduated from
Providence College in 1980 with a BS in Accounting.
Dr. Shawn X. Deng is a quantitative research analyst and
works in conjunction with other members of GCM's research staff on investment
strategies, technology, and software development. Prior to joining GCM in
October 1996, Dr. Deng was a senior software engineer at AutoLogic Information
Technology, Inc., where he implemented client/server management and software
release systems. Before he joined AutoLogic, he worked at Online Environs, Inc.,
where he developed state-of-the-art three-dimensional network browsers. Dr. Deng
received his M.Sc. and Ph.D. in mechanical engineering in 1996 from Harvard
University, specializing in solid mechanics and finite element analysis. While
at Harvard, he was the principal investigator of a research grant for the
optimal design, fracture analysis and fatigue life assessment of Boeing 737
aircraft fuselages, and was awarded the DAS Fellowship and the Golden McKay
Scholarship. Before attending Harvard, he was co-founder and vice president of
Global Computer Consulting Company, Xian, China, which provided traffic, human
resource and financial management systems for the city of Xian. Dr. Deng
received his B.Eng. in 1987 and M.Eng. in 1990 from Xian Jiaotong University,
China, and was the valedictorian of his class.
Dr. Brian Aldershof is a quantitative research analyst with
significant expertise in mathematics and statistics. Prior to joining GCM in May
1997, Dr. Aldershof was a professor of mathematics at Lafayette College in
Easton, PA. Dr. Aldershof's research interests center on non-linear stochastic
systems, especially genetic algorithms. Dr. Aldershof received his MS (1990) and
Ph.D. (1991) in Statistics from the University of North Carolina at Chapel Hill,
where he was a Pogue Fellow. His research in graduate school concerned
estimating functionals of probability density functions. During this time, he
was a consultant for the RAND Corporation, the Center for Naval Analyses, and
the Environmental Protection Agency. Dr. Aldershof received his A.B. (1985) from
Middlebury College, where he completed a double major in Mathematics and
Psychology.
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During the five years preceding the date of this Prospectus,
there have been no material administrative, civil or criminal actions, including
actions pending, on appeal or concluded, against GCM or its principals.
GCM and its principals may, from time to time, trade futures
interests contracts for their own proprietary accounts. Such trades may or may
not be in accordance with the GCM trading programs described below.
Systematic Trading Approach
GCM primarily relies on technical rather than fundamental
information as the basis for its trading decisions. GCM believes that it can
over time successfully anticipate market events using its quantitative
mathematical models to determine its trading activities, as opposed to
attempting to properly forecast price trends using subjective analysis of supply
and demand. The primary objective of the trading systems is to establish
positions in markets where the price action of a particular market signals the
computerized systems used by GCM that a potential trend in prices is occurring.
The systems are designed to mathematically analyze the recent trading
characteristics of each market and statistically compare such characteristics to
the long term historical trading pattern of the particular market. As a result
of this analysis, the program will utilize proprietary risk management and trade
filter strategies which are intended to enable the system to benefit from
sustained price trends while protecting the account from unacceptable levels of
risk and volatility exposure.
GCM generally uses multiple trading systems in managing
capital for most clients. These strategies are similar in philosophy but can
have significant differences in terms of methodology. GCM expects all of its
investment strategies to experience favorable results over time, and believes
that the historical analysis of utilizing multiple trading systems indicates
that diversifying the management of an investor's capital between the
methodologies will enhance performance while reducing volatility and risk.
Discretionary Trading Group
In February 1998, GCM established the Discretionary Trading
Group ("DTG") to trade proprietary capital using a discretionary trading
approach. This group generally utilizes fundamental information as well as
certain technical data as the basis for its trading strategies. Unlike GCM's
computerized trading programs which are wholly based on mathematical models, the
discretionary traders rely on their personal judgment to determine which markets
to trade, when to enter or exit a position and when to take a profit or loss.
Their trading decisions may be based on a fundamental view of the market which
can be of either a long or short term time horizon, information flow, technical
research, and many other factors. The DTG participates in the global macro
markets including foreign exchange, fixed income, futures and cash markets.
The DTG's performance results will, in general, not be
correlated to GCM's other trading programs or other discretionary traders. Each
member of the DTG has had several years of experience in discretionary trading
prior to joining GCM and has demonstrated historically the ability to generate
significant returns with low relative risk.
The GCM Trading Programs
GCM will initially trade 100% of Charter Graham's assets
pursuant to its Global Diversified Program, as described below, at 1.5 times the
leverage it normally applies for such program. Subject to the prior approval of
the General Partner, GCM may, at any time trade some or all of the Partnership's
assets among one or more of GCM's other programs and/or GCM's discretionary
trading approach, and at an increased or reduced rate of leverage.
Global Diversified Program
The Global Diversified Program ("GDP") utilizes multiple
computerized trading models which are designed to participate in the potential
profit opportunities of approximately 70 global markets. This program features
broad diversification in both financial and non-financial markets.
The strategies which are utilized are primarily long term in
nature and are intended to generate significant returns over time with low
relative risk and volatility characteristics. The computer models on a daily
basis analyze the recent price action, the relative strength, and the risk
characteristics of each market and compare statistically the quantitative
results of this data to years of historical data on each market.
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The GDP will normally have approximately 29% weighting in
futures contracts based on short term and long term global interest rates, 35%
weighting in currency forwards, 7% stock index futures, 15% in agricultural
futures, 10% in metal futures, and 4% in energy futures. The actual weighting
and leverage used in each market will change over time due to liquidity, price
action, and risk considerations.
GCM rebalances the weighting of each market in the portfolio
on a monthly basis so as to maintain, on a volatility and risk adjusted basis,
consistent exposure to each market over time.
International Financial Program
The International Financial Program ("IFP") uses multiple
proprietary trading systems to manage clients' capital. Unlike GCM's other
programs, which emphasize broad participation in markets such as agriculture,
metals, energy, livestock, and soft commodities, the IFP concentrates its
trading activities in foreign exchange, global interest rates, and stock
indices. Although less diversified than GCM's other programs, the IFP emphasizes
those financial markets that have historically provided the most consistent
profit opportunities to GCM. As a result, the performance of the IFP may vary
significantly from GCM's other programs. Additionally, the IFP utilizes a
moderately higher degree of leverage than the GDP and may, as a result,
experience greater returns and a higher degree of volatility.
Graham Global FX Program
The Graham Global FX Program ("GGFX") was developed to meet
the investment objectives of institutional clients who wish to participate in
the foreign exchange markets utilizing the trading strategies of GCM. This
program uses a lower degree of leverage than the GDP and may, as a result,
experience more conservative returns and a lower degree of volatility.
The GGFX utilizes GCM's computerized models in approximately
20 cross-currency relationships including cross rates in both major and minor
world currencies. Virtually all of the program's trading is conducted in 24
interbank currency markets. The program will normally maintain positions in
approximately half the markets it follows, and its overall leverage will average
from 2:1 to 3:1.
The GGFX is designed for investors who want specific
exposure to systematic currency trading. The GGFX is also used by financial
institutions who want to out-source a portion of their proprietary trading. GCM
can tailor the leverage and risk/reward objectives of the GGFX to meet the needs
of each client.
Graham Selective Trading Program
The Graham Selective Trading Program ("GST") was developed
in 1997 and utilizes a completely different trading system than other GCM
programs. The GST uses a mathematical model to identify certain price patterns
which have very specific characteristics indicating that there is a high
probability that a significant directional move will occur. Although the system
does not trade against the market trend, it is not a true trend-following system
inasmuch as it will only participate in very specific types of market moves
which meet the very restrictive criteria of the model. As a result, it may
frequently not participate in market trends in which virtually all
trend-following systems would have a position. The program trades in
approximately 57 markets with approximate weighting of 35% in foreign exchange,
30% in global interest rates, 5% in stock index futures, 16% agricultural
futures, 11% in metal futures, and 3% in energy futures. Due to the extremely
selective criteria of the GST model, the program will normally maintain a
neutral position in approximately 60% to 80% of the markets in the portfolio.
Natural Resource Program
The Natural Resource Program ("NRP") participates only in
potential profit opportunities of production-type commodities. The trading
approach is primarily based on the philosophy that production commodities,
unlike financial futures, are mean-reverting over time. In GCM's opinion, when
commodities such as grains become very expensive relative to their cost of
production and their long term historical price level, these markets will
eventually experience mean-reversion. Under this scenario, they eventually
return to their "normal" price, or even a discount to this level, due to
increased production caused by attractive price levels for producers.
Conversely, when a commodity becomes very cheap relative to its production cost
and long term price history, eventually this commodity will rise in value to its
normal price, and potentially a premium over this price, as production
diminishes due to low profitability levels for producers.
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GCM believes that the mean reversion process will normally
occur over several years in each market as producers increase production to take
advantage of prices which are high by historical standards or, alternatively,
cut production when prices become too cheap to generate a profit for a producer.
These cyclical patterns vary in time and magnitude; however, they can provide
excellent profit potential for trading strategies which GCM has specifically
designed in an effort to take advantage of market valuations which are
unsustainable over time.
The NRP will participate in several sectors of
production-type markets, including grains, livestock, energy, soft commodities,
base and precious metals. One of the most significant advantages of the NRP is
its lack of performance correlation to other types of managed futures programs
or traditional asset classes.
Past Performance of GCM
Set forth below in Capsules A, B, C, D and E is the past
performance history of GCM and its principals for client accounts. Capsule A-1
is a pro forma of an account from Capsule A based on 1.5 times the standard
leverage of the Graham Global Diversified Program, adjusted for the brokerage,
management, and incentive fees to be applied to Charter Graham. The footnotes
following Capsule E are an integral part of each Capsule.
INVESTORS ARE CAUTIONED THAT THE PERFORMANCE INFORMATION SET
FORTH IN THE FOLLOWING CAPSULE PERFORMANCE SUMMARIES ARE NOT INDICATIVE OF, AND
MAY HAVE NO BEARING ON, ANY TRADING RESULTS WHICH MAY BE ATTAINED BY GCM OR
CHARTER GRAHAM IN THE FUTURE, SINCE PAST PERFORMANCE IS NOT A GUARANTEE OF
FUTURE RESULTS. THERE CAN BE NO ASSURANCE THAT GCM OR THE PARTNERSHIP WILL MAKE
ANY PROFITS AT ALL OR WILL BE ABLE TO AVOID INCURRING SUBSTANTIAL LOSSES.
INVESTORS SHOULD ALSO NOTE THAT INTEREST INCOME MAY CONSTITUTE A SIGNIFICANT
PORTION OF A COMMODITY POOL'S TOTAL INCOME AND, IN CERTAIN INSTANCES, MAY
GENERATE PROFITS WHERE THERE HAVE BEEN REALIZED OR UNREALIZED LOSSES FROM
FUTURES INTEREST TRADING.
CAPSULE A
GRAHAM CAPITAL MANAGEMENT, L.P.
GLOBAL DIVERSIFIED PROGRAM
Name of CTA: Graham Capital Management, L.P.
Name of program: Global Diversified Program
Inception of trading by CTA: July 1994
Inception of trading in program: July 1994
Number of open accounts: 14
Aggregate assets overall: $556,000,000
Aggregate assets in program: $399,000,000
Largest monthly drawdown: (6.31)% - (2/96)
Worst peak-to-valley drawdown: (11.40)% - (7/95-10/95)
1998 year-to-date return (5 months): 3.61%
1997 annual return: 4.97%
1996 annual return: 14.14%
1995 annual return: 23.20%
1994 annual return (6 months): (3.73)%
CAPSULE A-1
GRAHAM CAPITAL MANAGEMENT, L.P.
PRO FORMA OF AN ACCOUNT FROM CAPSULE A
GLOBAL DIVERSIFIED PROGRAM
Largest monthly drawdown: (11.05)% - (2/96)
Worst peak-to-valley drawdown: (12.18)% -(2/97-6/97)
1998 year-to-date return (5 months): 4.49%
1997 annual return: 7.62%
1996 annual return: 18.74%
1995 annual return (11 months): 39.84%
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CAPSULE B
GRAHAM CAPITAL MANAGEMENT, L.P.
INTERNATIONAL FINANCIAL PROGRAM
Name of CTA: Graham Capital Management, L.P.
Name of program: International Financial Program
Inception of trading by CTA: July 1994
Inception of trading in program: January 1996
Number of open accounts: 2
Aggregate assets overall: $556,000,000
Aggregate assets in program: $26,000,000
Largest monthly drawdown: (5.90)% - (2/96)
Worst peak-to-valley drawdown: (8.55)% - (2/97-6/97)
1998 year-to-date return (5 months): (0.84)%
1997 annual return: 5.14%
1996 annual return: 13.98%
CAPSULE C
GRAHAM CAPITAL MANAGEMENT, L.P.
NATURAL RESOURCE PROGRAM
Name of CTA: Graham Capital Management, L.P.
Name of program: Natural Resource Program
Inception of trading by CTA: July 1994
Inception of trading in program: September 1996
Number of open accounts: 3
Aggregate assets overall: $556,000,000
Aggregate assets in program: $38,000,000
Largest monthly drawdown: (5.72)% - (10/97)
Worst peak-to-valley drawdown: (17.57)% - (1/97-5/98)
1998 year-to-date return (5 months): 12.02%
1997 annual return: (16.30)%
1996 annual return (4 months): 2.73%
CAPSULE D
GRAHAM CAPITAL MANAGEMENT, L.P.
GLOBAL FX PROGRAM
Name of CTA: Graham Capital Management, L.P.
Name of program: Global FX Program
Inception of trading by CTA: July 1994
Inception of trading in program: May 1997
Number of open accounts: 5
Aggregate assets overall: $556,000,000
Aggregate assets in program: $26,000,000
Largest monthly drawdown: (3.58) % - (2/98)
Worst peak-to-valley drawdown: (7.55)% - (12/97-5/98)
1998 year-to-date return (5 months): (2.85)%
1997 annual return (8 months): 4.52%
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CAPSULE E
GRAHAM CAPITAL MANAGEMENT, L.P.
SELECTIVE TRADING PROGRAM
Name of CTA: Graham Capital Management, L.P.
Name of program: Graham Selective Trading Program
Inception of trading by CTA: July 1994
Inception of trading in program: September 1997
Number of open accounts: 1
Aggregate assets overall: $556,000,000
Aggregate assets in program: $50,000,000
Largest monthly drawdown: (0.98)% - (3/98)
Worst peak-to-valley drawdown: (0.98%) - (3/98-5/98)
1998 year-to-date return (5 months): 2.39%
1997 annual return (4 months): 2.11%
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
Footnotes to GCM Capsules A, B, C, D and E Performance Summaries
"Inception of trading by CTA" is the date on which GCM began
trading client accounts.
"Inception of trading in program" is the date on which GCM
began trading client accounts pursuant to the program shown.
"Number of open accounts" is the number of accounts directed
by GCM pursuant to the program shown as of May 31, 1998.
"Aggregate assets overall" is the aggregate amount of assets
in accounts under the management of GCM as of May 31, 1998, and includes client
and proprietary funds and notional equity. Notional equity represents the
additional amount of equity that exceeds the amount of equity actually committed
to GCM for management.
"Aggregate assets in program" is the aggregate amount of
assets in the program specified as of May 31, 1998, and includes client and
proprietary funds and notional equity.
"Largest monthly drawdown" is the largest loss experienced
by a single account in the program in any calendar month during the most recent
five calendar years and year-to-date expressed as a percentage of the total
equity in the account and includes the month and year of such drawdown.
"Worst peak-to-valley drawdown" means the greatest
cumulative percentage decline in month-end net asset value due to losses
sustained 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.
"Annual and year-to-date return" is computed on a compounded
monthly basis assuming reinvestment of accrued profits. Rate of Return is
computed by reference to total equity in the program. These numbers represent
the composite performance of all accounts in the program, not the performance of
any specific account.
Footnotes to GCM Capsule A-1 Pro Forma Performance Summary
Capsule A-1 above reflects pro forma rates of return, which
are the result of the General Partner making certain pro forma adjustments to
the actual past performance record of a client account managed pursuant to the
GDP, the trading program to be employed for Charter Graham by GCM. The pro forma
adjustments are an attempt approximately to reflect the brokerage, management
and incentive fees, and interest income, and the degree of leverage to be
applied for Charter Graham, as opposed to the fees, expenses, and interest
income and leverage applicable to the account.
CAPSULE A-1 MUST BE READ IN CONJUNCTION WITH THE DESCRIPTION
OF GCM AND ITS TRADING PROGRAMS ABOVE. FURTHERMORE, PROSPECTIVE INVESTORS MUST
BE AWARE THAT PRO FORMA RATES OF RETURN HAVE CERTAIN INHERENT LIMITATIONS: (A)
PRO FORMA ADJUSTMENTS ARE ONLY AN APPROXIMATE MEANS OF MODIFYING HISTORICAL
RECORDS TO REFLECT CERTAIN ASPECTS OF THE ECONOMIC TERMS OF A NEW COMMODITY
POOL, CONSTITUTE NO MORE THAN
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MATHEMATICAL ADJUSTMENTS TO ACTUAL PERFORMANCE NUMBERS, AND GIVE NO EFFECT
WHATSOEVER TO SUCH FACTORS AS POSSIBLE CHANGES IN TRADING APPROACH THAT MIGHT
HAVE RESULTED FROM THE DIFFERENT FEE STRUCTURE, INTEREST INCOME, LEVERAGE, AND
OTHER FACTORS APPLICABLE TO CHARTER GRAHAM AS COMPARED TO GCM'S ACTUAL TRADING;
AND (B) THERE ARE DIFFERENT MEANS BY WHICH THE PRO FORMA ADJUSTMENTS COULD HAVE
BEEN MADE. INVESTORS SHOULD ESPECIALLY NOTE THAT GCM HAS NEVER TRADED AT THE FEE
STRUCTURE APPLICABLE TO CHARTER GRAHAM. AS OF THE DATE OF THIS PROSPECTUS,
CHARTER GRAHAM HAS NOT BEGUN TRADING.
WHILE THE GENERAL PARTNER BELIEVES THAT THE INFORMATION SET
FORTH IN CAPSULE A-1 IS RELEVANT TO EVALUATING AN INVESTMENT IN CHARTER GRAHAM,
NO REPRESENTATION IS OR COULD BE MADE THAT THE TABLE PRESENTS WHAT THE RESULTS
OF CHARTER GRAHAM WOULD HAVE BEEN IN THE PAST OR ARE LIKELY TO BE IN THE FUTURE.
PAST RESULTS ARE NOT A GUARANTEE OF FUTURE RESULTS..
MORGAN STANLEY DEAN WITTER CHARTER MILLBURN L.P.
The Trading Advisor for Charter Millburn is Millburn
Ridgefield Corporation ("MRC"). MRC is a Delaware Corporation which was
organized in May 1982. MRC's main business address is 411 West Putnam Avenue,
Greenwich, Connecticut 06830. MRC has been registered with the CFTC as a CTA
since July 1982 and as a CPO since September 1984 and is a member of the NFA in
such capacities. MRC is not affiliated with the General Partner, the Commodity
Brokers, or any other Trading Advisor.
The principals of MRC are as follows:
Mr. Harvey Beker is President, Co-Chief Executive Officer
and a Director of MRC and The Millburn Corporation, and a partner of ShareInVest
Research L.P. He received a Bachelor of Arts degree in economics from New York
University in 1974 and a Master of Business Administration degree in finance
from NYU in 1975. From June 1975 to July 1977, Mr. Beker was employed by Loeb
Rhoades, Inc. where he developed and traded silver arbitrage strategies. From
July 1977 to June 1978, Mr. Beker was a futures trader at Clayton Brokerage Co.
of St. Louis. Mr. Beker has been employed by The Millburn Corporation since June
1978. During his tenure at Millburn, he has been instrumental in the development
of the research, trading and operations areas. Mr. Beker became a principal of
the firm in 1982.
Mr. George E. Crapple is Co-Chief Executive Officer,
Vice-Chairman and a Director of MRC, Vice-Chairman and a Director of The
Millburn Corporation and a partner of ShareInVest Research L.P. In 1966 he
graduated with honors from the University of Wisconsin where his field of
concentration was economics and he was elected to Phi Beta Kappa. In 1969 he
graduated from Harvard Law School, magna cum laude, where he was a member of the
Harvard Law Review. He was a lawyer with Sidley & Austin, Chicago, Illinois,
from 1969 until April 1, 1983, and a partner since 1975, specializing in
commodities, securities, corporate and tax law. He was first associated with MRC
in 1976 and joined MRC on April 1, 1983 on a full-time basis. Mr. Crapple is a
member of the Board of Directors, Executive and Appeals Committees and a former
Chairman of the Eastern Regional Business Conduct Committee of the NFA,
Vice-Chairman of the Board of Directors and a member of the Executive Committee
of the Managed Funds Association, a member of the Financial Products Advisory
Committee of the CFTC and a former member of the Board of Directors of the
Futures Industry Association.
Mr. Mark B. Fitzsimmons is a Senior Vice-President of MRC
and The Millburn Corporation and a partner of ShareInVest Research L.P. His
responsibilities include both marketing and investment strategy. He graduated
summa cum laude from the University of Bridgeport, Connecticut in 1970 with a
B.S. in economics. His graduate work was done at the University of Virginia,
where he received a certificate of candidacy for a Ph.D. in economics in 1973.
He joined Millburn Ridgefield in January 1990 from Morgan Stanley & Co.
Incorporated, where he was a principal and manager of institutional foreign
exchange sales and was involved in strategic trading for the firm. From 1977 to
1987 he was with Chemical Bank New York Corporation, first as a Senior Economist
in Chemical's Foreign Exchange Advisory Service and later as a Vice-President
and Manager of Chemical's Corporate Trading Group. While at Chemical he also
traded both foreign exchange and fixed income products. From 1973 to 1977 Mr.
Fitzsimmons was employed by the Federal Reserve Bank of New York, dividing his
time between the International Research Department and the Foreign Exchange
Department.
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Mr. Barry Goodman is Executive Vice-President, Director of
Trading and Co-Director of Research of MRC and The Millburn Corporation and a
partner of ShareInVest Research L.P. His responsibilities include overseeing the
firm's trading operation and managing its trading relationships, as well as the
design and implementation of trading systems. He graduated magna cum laude from
Harpur College of the State University of New York in 1979 with a B.A. in
economics. From 1980 through late 1982 he was a commodity trader for E. F.
Hutton & Co., Inc. At Hutton he also designed and maintained various technical
indicators and coordinated research projects pertaining to the futures markets.
He joined MRC in 1982 as Assistant Director of Trading.
Mr. Dennis B. Newton is a Senior Vice-President of MRC. His
primary responsibilities are in administration and marketing. Prior to joining
MRC in September 1991, Mr. Newton was President of Phoenix Asset Management,
Inc., a registered commodity pool operator from April 1990 to August 1991. Prior
to his employment with Phoenix, Mr. Newton was a Director of Managed Futures
with Prudential-Bache Securities Inc. from September 1987 to March 1990. Mr.
Newton joined Prudential-Bache from Heinold Asset Management, Inc., where he was
a member of the senior management team. Heinold was a pioneer and one of the
largest sponsors of funds utilizing futures and currency forward trading.
Mr. Grant N. Smith is Executive Vice-President and
Co-Director of Research of MRC and The Millburn Corporation and a partner of
ShareInVest Research L.P. He is responsible for the design, testing and
implementation of quantitative trading strategies, as well as for planning and
overseeing the computerized decision-support systems of the firm. He received a
B.S. degree from the Massachusetts Institute of Technology in 1974 and an M.S.
degree from M.I.T. in 1975. While at M.I.T. he held several teaching and
research positions in the computer science field and participated in various
projects relating to database management. He joined MRC in 1975.
During the five years preceding the date of this Prospectus,
there have been no material administrative, civil or criminal actions, including
actions pending, on appeal or concluded, against MRC or its principals.
MRC and its principals may, from time to time, trade futures
interests contracts for their own proprietary accounts. Such trades may or may
not be in accordance with the MRC trading programs described below.
The objective of MRC's trading method is to participate in
all major sustained price moves in the markets traded. MRC regards its approach
as long-term in nature. MRC will make trading decisions pursuant to its trading
method which includes technical trend analysis (and certain non-trend-following
technical systems) and the money management principles described below, which
may be revised from time to time. Given trends in price of sufficient duration
and magnitude, these trading systems may be profitable even though more than
half of all individual trades are unprofitable. A period of time without such
trends, however, may result in substantial losses. MRC has a substantial ongoing
research effort to improve its currency and futures trading method and to apply
its quantitative analysis expertise to new financial products.
MRC considers its methodology to be an exercise in risk
control. It includes systems applicable to each market traded individually and
money management principles applicable to a portfolio as a whole.
The first step in the methodology is developing intermediate
to long-term trading systems which generate long or short (buy or sell)
decisions in a particular market based on the direction of the price trend in
the market. Trading is limited to markets which MRC believes are sufficiently
liquid in respect of the amount of trading contemplated. MRC has developed
hundreds of trading systems using classes of quantitative models and classes of
data such as price, volume and interest rates. The full range of systems will be
tested in each market against five, ten or fifteen years of historical data to
simulate the results each system would have achieved in the market had it been
used to make trading decisions during the simulation period.
The performance of all systems in the market are ranked, and
three or four systems are selected which make decisions in different ways at
different times. This multi-system approach ensures that the total risk intended
to be taken in a market pursuant to trend-following strategies is spread over
several different strategies. For example, if four systems are used to trade
crude oil, the maximum position would be traded if all four were long or short.
If two were long and two short, they would cancel each other out and a flat
position in crude oil would be signaled. The effect of the multi-system approach
is that in periods where the technical picture is unclear, the systems disagree
and positions will be light or flat, but when all systems agree on the trend,
maximum positions will be traded.
In certain markets, MRC also uses short-term systems based
on intra-day tick data. Minute-by-minute prices are used to identify "quiet" as
opposed to "noisy" periods, and trades may be implemented with or counter to the
short-term trend, depending on conditions.
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In certain markets, MRC also uses an options strategy which
focuses on options' implied volatility. When volatility is low, the probability
of trend-following directional signals being profitable increases, and trades
are implemented by buying at the money or slightly out of the money options. The
nature of options results in an increase in leverage as a position becomes
profitable and a decrease in leverage as a position becomes unprofitable.
The volatility overlay is also a part of individual market
risk management. This system measures the risk in the portfolio's position in a
market, again, for example, crude oil, by analyzing the current and past
volatility of the position. The volatility overlay signals a decrease in
position size when risk increases and an increase in position size when risk
decreases. Risk is a function of both price level and price volatility. For
example, a 100,000 barrel crude oil position is worth more and is, therefore,
more risky with oil at $30 than with oil at $10. Similarly, if prices were
moving in a 5% range daily, oil is more risky than if prices were moving in a 1%
range daily. The volatility overlay maintains overall portfolio risk and
distribution of risk across markets within designated ranges. It is applied to
all three systematic strategies described in the three preceding paragraphs. A
secondary benefit of the volatility overlay can be timely taking of profits,
since markets tend to become more volatile after a profitable trend has been
long underway, and the volatility underlay often signals position reductions
before trend reversals.
The second category of risk control involves money
management principles applicable to the portfolio as a whole, rather than to
individual markets. The first principle is portfolio diversification, which
further improves the quality of profits by reducing volatility. In any currency
and futures portfolio, MRC will select markets and assign them weightings to
achieve broad diversification. Factors considered include profitability,
liquidity, market depth, correlation of losing periods, and MRC's trading
experience. MRC seeks a portfolio where returns from trading various markets are
not highly correlated; returns are not all positive or negative at the same
time.
Additional money management principles applicable to the
portfolio as a whole include: limiting the assets committed as margin, generally
within a range of 15% to 30% (22.5% to 45% for accounts traded at 150% of
standard leverage) of an account's net assets at exchange minimum margins
(including imputed margins on forward positions), although the amount committed
to margin at any time may be substantially higher; prohibiting pyramiding (that
is, using unrealized profits in a particular market as margin for additional
positions in the same market); and changing the equity utilized for trading by
an account solely on a controlled periodic basis rather than as an automatic
consequence of an increase in equity resulting from trading profits.
The final risk control money management principle is careful
control of leverage or portfolio size. This is determined by simulating the
entire portfolio -- all markets, all systems, all risk control overlays, the
exact weightings of the markets in the portfolio, and the proposed level of
leverage -- over the past five or ten years to determine the worst case
experienced by the portfolio in the simulation period. The worst case is
measured from a daily high in portfolio assets to the subsequent daily low,
whether that occurs days, weeks or months after the daily high (a peak-to-trough
drawdown). If the drawdown is considered too severe, the leverage or portfolio
size is reduced.
Decisions whether to trade a particular market will be based
upon various factors, including the liquidity of the market, its significance in
terms of the desired degrees of concentration and diversification, and its
profit potential, both historically and at a given time. These decisions will
require the exercise of judgment. The decision not to trade certain markets for
certain periods, or to reduce the size of a position in a particular market, may
result at times in missing significant profit opportunities.
The money management principles, computer assisted research
into historical trading data, and experience of the principals of MRC are
factors upon which decisions concerning the percentage of assets to be used for
each market traded and the size of positions taken or maintained will be based.
From time to time decisions to increase, decrease, cover or reverse a futures,
forward or option position may be made which are not signaled by the systematic
technical trading systems. Such decisions also require the exercise of judgment
and may include consideration of the volatility of the particular market; the
pattern of price movement, both inter-day and intra-day; open interest; volume
of trading; changes in spread relationships between various forward contracts;
and overall portfolio balance and risk exposure.
With respect to the execution of trades, MRC may rely to an
extent on the judgment of others, including dealers, bank traders and floor
brokers. No assurance is given that it will be possible to execute trades
regularly at or near the desired buy or sell point.
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Although MRC adjusts the leverage at which it trades
different portfolios to reflect the number of markets traded and the weightings
of the various markets, it does not at the present time utilize different
systems or methods depending on the markets traded in a portfolio. Whether MRC
is trading the Diversified, World Resource, Currency or Global portfolio, the
same models are used in the same markets at the present time.
The trading method, systems and money management principles
to be utilized by MRC are proprietary and confidential and vary over time. The
foregoing description is general and is not intended to be complete. While MRC
believes the description of its strategies may be of interest to prospective
investors, prospective investors must be aware of the inherent limitations on
any such description.
The MRC Trading Programs
MRC will initially trade 100% of Charter Millburn's assets
pursuant to its Diversified Portfolio, as described below. Subject to the prior
approval of the General Partner, MRC may, at any time, trade some or all of the
Partnership's assets among one or more of MRC's other programs.
Diversified Portfolio
MRC trades a broadly diversified portfolio of approximately
50 markets in the following six sectors: currencies, precious and industrial
metals, debt instruments, stock indices, agricultural commodities and energy.
Currencies currently account for approximately 40% of the Diversified Portfolio.
MRC trades its Diversified Portfolio at standard leverage and at 150% of
standard leverage.
Currency Portfolio
MRC trades approximately 20 different currencies in its
Currency Portfolio, including "cross-rate" positions (positions in two different
currencies other than the United States dollar). MRC -- which had managed
financially-oriented accounts since 1979 -- began managing currency-only
accounts in November 1989. MRC trades its Currency Portfolio at standard
leverage and at 150% of standard leverage.
Global Portfolio
The Global Portfolio includes the currency markets as well
as futures and options contracts on U.S. and non-U.S. interest rates and stock
indices as well as precious and industrial metals. MRC trades its Global
portfolio at standard leverage and at 150% of standard leverage.
World Resource Portfolio
The World Resource Portfolio is a variation of the
Diversified Portfolio, but with a reduced emphasis on currency markets. MRC
began trading the World Resource Portfolio on a non-proprietary basis in
September 1995.
Past Performance of MRC
Set forth below in Capsules A, B, C, D, E, F and G is the
past performance history of MRC and its principals for client accounts. Capsule
A-1 is a pro forma of Capsule A, adjusted for the brokerage, management, and
incentive fees to be applied to Charter Millburn. The footnotes following
Capsule G are an integral part of each Capsule.
INVESTORS ARE CAUTIONED THAT THE PERFORMANCE INFORMATION SET
FORTH IN THE FOLLOWING CAPSULE PERFORMANCE SUMMARIES ARE NOT INDICATIVE OF, AND
MAY HAVE NO BEARING ON, ANY TRADING RESULTS WHICH MAY BE ATTAINED BY MRC OR
CHARTER MILLBURN IN THE FUTURE, SINCE PAST PERFORMANCE IS NOT A GUARANTEE OF
FUTURE RESULTS. THERE CAN BE NO ASSURANCE THAT MRC OR THE PARTNERSHIP WILL MAKE
ANY PROFITS AT ALL OR WILL BE ABLE TO AVOID INCURRING SUBSTANTIAL LOSSES.
INVESTORS SHOULD ALSO NOTE THAT INTEREST INCOME MAY CONSTITUTE A SIGNIFICANT
PORTION OF A COMMODITY POOL'S TOTAL INCOME AND, IN CERTAIN INSTANCES, MAY
GENERATE PROFITS WHERE THERE HAVE BEEN REALIZED OR UNREALIZED LOSSES FROM
FUTURES INTEREST TRADING.
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CAPSULE A
MILLBURN RIDGEFIELD CORPORATION
DIVERSIFIED PORTFOLIO
Name of CTA: Millburn Ridgefield Corporation
Name of program: Diversified Portfolio
Inception of trading by CTA: February 1971
Inception of trading in program: February 1971
Number of open accounts: 22
Aggregate assets overall: $721,146,092
Aggregate assets in program: $404,308,011
Largest monthly drawdown (past 5 years): (11.50)% - (2/96)
Largest monthly drawdown (since 1977): 18.30% - (9/86)
Worst peak-to-valley drawdown (past 5 years): (12.93)% - (1/96 -
5/96)
Worst peak-to-valley drawdown (since 1977): (32.50)% - (3/86-12/86)
Accounts closed with positive net performance (past 5 years): 1
Accounts closed with positive net performance (since 1977): 13
Accounts closed with negative net performance (past 5 years): 0
Accounts closed with negative net performance (since 1977): 0
<TABLE>
<S> <C>
1998 year-to-date return (5 months): (2.63)% 1987 annual return: 35.02%
1997 annual return: 12.61% 1986 annual return: (19.36)%
1996 annual return: 17.33% 1985 annual return: 23.44%
1995 annual return: 32.82% 1984 annual return: 21.72%
1994 annual return: 11.78% 1983 annual return: (9.44)%
1993 annual return: 10.90% 1982 annual return: 29.09%
1992 annual return: 17.30% 1981 annual return: 38.50%
1991 annual return: 4.44% 1980 annual return: 66.53%
1990 annual return: 53.01% 1979 annual return: 57.18%
1989 annual return: (0.94)% 1978 annual return: 18.92%
1988 annual return: 2.70% 1977 annual return: 7.12%
</TABLE>
CAPSULE A-1
MILLBURN RIDGEFIELD CORPORATION
PRO FORMA OF CAPSULE A
DIVERSIFIED PORTFOLIO
Largest monthly drawdown (past 5 years): (12.47)% - (2/96)
Largest monthly drawdown (since 1977): 22.81% - (4/78)
Worst peak-to-valley drawdown: (past five years): (13.65)% - (2/96 -
5/96)
Worst peak-to-valley drawdown (since 1977): (32.84)% - (4/86-12/86)
<TABLE>
<S> <C>
1998 year-to-date return (5 months): (5.05)% 1987 annual return: 38.89%
1997 annual return: 6.92% 1986 annual return: (18.24)%
1996 annual return: 13.33% 1985 annual return: 27.33%
1995 annual return: 25.71% 1984 annual return: 26.76%
1994 annual return: 8.61% 1983 annual return: (7.10)%
1993 annual return: 7.73% 1982 annual return: 32.78%
1992 annual return: 11.71% 1981 annual return: 42.06%
1991 annual return: 3.38% 1980 annual return: 73.39%
1990 annual return: 53.44% 1979 annual return: 67.92%
1989 annual return: (4.23)% 1978 annual return: 22.96%
1988 annual return: 2.85% 1977 annual return: 9.12%
</TABLE>
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CAPSULE B
MILLBURN RIDGEFIELD CORPORATION
DIVERSIFIED PORTFOLIO--HIGH LEVERAGE
Name of CTA: Millburn Ridgefield Corporation
Name of program: Diversified Portfolio--High Leverage
Inception of trading by CTA: February 1971
Inception of trading in program: April 1998
Number of open accounts: 4
Aggregate assets overall: $721,146,092
Aggregate assets in program: $50,000,000
Largest monthly drawdown: (8.93)% - (4/98)
Worst peak-to-valley drawdown: (8.93)% - (4/98)
1998 year-to-date return (2 months): (3.81)%
CAPSULE C
MILLBURN RIDGEFIELD CORPORATION
CURRENCY PORTFOLIO
Name of CTA: Millburn Ridgefield Corporation
Name of program: Currency Portfolio
Inception of trading by CTA: February 1971
Inception of trading in program: November 1989
Number of open accounts: 9
Aggregate assets overall: $721,146,092
Aggregate assets in program: $71,300,006
Largest monthly drawdown: (12.03)% - (8/93)
Worst peak-to-valley drawdown: (33.06)% - (9/92-1/95)
1998 year-to-date return (5 months): (2.30)%
1997 annual return: 20.86%
1996 annual return: 11.29%
1995 annual return: 18.88%
1994 annual return: (7.90%)
1993 annual return: (13.00%)
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CAPSULE D
MILLBURN RIDGEFIELD CORPORATION
CURRENCY PORTFOLIO - HIGH LEVERAGE
Name of CTA: Millburn Ridgefield Corporation
Name of program: Currency Portfolio - High Leverage
Inception of trading by CTA: February 1971
Inception of trading in program: July 1993
Number of open accounts: 1
Aggregate assets overall: $721,146,092
Aggregate assets in program: $12,448,310
Largest monthly drawdown: (13.10)% - (8/93)
Worst peak-to-valley drawdown: (29.75)% - (7/93-1/95)
1998 year-to-date return (5 months): (4.28)%
1997 annual return: 27.99%
1996 annual return: 16.36%
1995 annual return: 25.15%
1994 annual return: (21.29)%
1993 annual return (6 months): (11.10)%
CAPSULE E
MILLBURN RIDGEFIELD CORPORATION
GLOBAL PORTFOLIO
Name of CTA: Millburn Ridgefield Corporation
Name of program: Global Portfolio
Inception of trading by CTA: February 1971
Inception of trading in program: November 1989
Number of open accounts: 3
Aggregate assets overall: $721,146,092
Aggregate assets in program: $47,937,544
Largest monthly drawdown: (10.54)% - (1/94)
Worst peak-to-valley drawdown: (13.74)% - (6/94 - 1/95)
1998 year-to-date return (5 months): (6.47)%
1997 annual return: 13.65%
1996 annual return: 11.38%
1995 annual return: 25.76%
1994 annual return: (5.24)%
1993 annual return: 9.10%
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CAPSULE F
MILLBURN RIDGEFIELD CORPORATION
GLOBAL PORTFOLIO - HIGH LEVERAGE
Name of CTA: Millburn Ridgefield Corporation
Name of program: Global Portfolio - High Leverage
Inception of trading by CTA: February 1971
Inception of trading in program: July 1993
Number of open accounts: 0
Aggregate assets overall: $721,146,092
Aggregate assets in program: $0
Largest monthly drawdown: (13.23)% - (1/94)
Worst peak-to-valley drawdown: (20.05)% - (6/94 - 1/95)
1997 annual return: 11.82%
1996 annual return: 11.15%
1995 annual return: 32.15%
1994 annual return: (9.03%)
1993 annual return (6 months): 9.34%
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CAPSULE G
MILLBURN RIDGEFIELD CORPORATION
WORLD RESOURCE PORTFOLIO
Name of CTA: Millburn Ridgefield Corporation
Name of program: World Resource Portfolio
Inception of trading by CTA: February 1971
Inception of trading in program: September 1995
Number of open accounts: 4
Aggregate assets overall: $721,146,092
Aggregate assets in program: $134,944,401
Largest monthly drawdown: (12.28)% - (2/96)
Worst peak-to-valley drawdown: (15.26)% - (2/97 - 8/97)
1998 year-to-date return (5 months): (1.21)%
1997 annual return: 1.88%
1996 annual return: 8.33%
1995 annual return (4 months): 7.28%
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
Footnotes to MRC Capsules A, B, C, D, E, F, and G Performance Summaries
"Inception of trading by CTA" is the date on which MRC began
trading client accounts.
"Inception of trading in program" is the date on which MRC
began trading client accounts pursuant to the program shown.
"Number of open accounts" is the number of accounts directed
by MRC pursuant to the program shown as of May 31, 1998.
"Aggregate assets overall" is the aggregate amount of assets
in non-proprietary accounts under the management of MRC as of May 31, 1998.
"Aggregate assets in program" is the aggregate amount of
assets in the program specified as of May 31, 1998.
"Largest monthly drawdown" is the largest loss experienced
by a single account in the program in any calendar month during the most recent
five calendar years and year-to-date (and from 1977 to date in the case of
Capsule A) expressed as a percentage of the total equity in the account and
includes the month and year of such drawdown.
"Worst peak-to-valley drawdown" is the largest calendar
month to calendar month loss experienced by a single account in the program
(regardless of whether it is continuous) during the most recent five calendar
years and year-to-date (and from 1977 to date in the case of Capsule A)
expressed as a percentage of total equity in the account and includes the months
and years in which it occurred. For example, a worst peak-to-valley drawdown in
an account of "(10)%-(1/95 - 8/95)" means that the peak-to-valley drawdown was
10% and lasted from January 1995 to August 1995.
"Annual and year-to-date return" is computed on a compounded
monthly basis assuming reinvestment of accrued profits. Rate of Return is
computed by reference to total equity in the program. These numbers represent
the composite performance of all accounts in the program, not the performance of
any specific account.
Footnotes to MRC Capsule A-1 Pro Forma Performance Summary
Capsule A-1 above reflects pro forma rates of return, which
are the result of the General Partner making certain pro forma adjustments to
the actual past performance record of client accounts managed pursuant to the
Diversified Portfolio, the trading program to be employed for Charter Millburn
by MRC. The pro forma adjustments are an attempt approximately to reflect the
brokerage, management and incentive fees, and interest income, as opposed to the
fees, expenses, and interest income applicable to the various accounts included
in Capsule A above.
CAPSULE A-1 MUST BE READ IN CONJUNCTION WITH THE DESCRIPTION
OF MRC AND ITS TRADING PROGRAMS ABOVE. FURTHERMORE, PROSPECTIVE INVESTORS MUST
BE AWARE THAT PRO
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FORMA RATES OF RETURN HAVE CERTAIN INHERENT LIMITATIONS; (A) PRO FORMA
ADJUSTMENTS ARE ONLY AN APPROXIMATE MEANS OF MODIFYING HISTORICAL RECORDS TO
REFLECT CERTAIN ASPECTS OF THE ECONOMIC TERMS OF A NEW COMMODITY POOL,
CONSTITUTE NO MORE THAN MATHEMATICAL ADJUSTMENTS TO ACTUAL PERFORMANCE NUMBERS,
AND GIVE NO EFFECT WHATSOEVER TO SUCH FACTORS AS POSSIBLE CHANGES IN TRADING
APPROACH THAT MIGHT HAVE RESULTED FROM THE DIFFERENT FEE STRUCTURE, INTEREST
INCOME, LEVERAGE, AND OTHER FACTORS APPLICABLE TO CHARTER MILLBURN AS COMPARED
TO MRC'S ACTUAL TRADING; AND (B) THERE ARE DIFFERENT MEANS BY WHICH THE PRO
FORMA ADJUSTMENTS COULD HAVE BEEN MADE. INVESTORS SHOULD ESPECIALLY NOTE THAT
MRC HAS NEVER TRADED AT THE FEE STRUCTURE APPLICABLE TO CHARTER MILLBURN. AS OF
THE DATE OF THIS PROSPECTUS, CHARTER MILLBURN HAS NOT BEGUN TRADING.
WHILE THE GENERAL PARTNER BELIEVES THAT THE INFORMATION SET
FORTH IN CAPSULE A-1 IS RELEVANT TO EVALUATING AN INVESTMENT IN CHARTER
MILLBURN, NO REPRESENTATION IS OR COULD BE MADE THAT THE TABLE PRESENTS WHAT THE
RESULTS OF CHARTER MILLBURN WOULD HAVE BEEN IN THE PAST OR ARE LIKELY TO BE IN
THE FUTURE. PAST RESULTS ARE NOT A GUARANTEE OF FUTURE RESULTS.
MORGAN STANLEY DEAN WITTER CHARTER WELTON L.P.
The Trading Advisor for Charter Welton is Welton Investment
Corporation ("WIC"). "WIC" is a Delaware corporation which was merged from a
California corporation originally formed in 1988. WIC's main business address is
The Eastwood Building, San Carlos between 5th and 6th, P.O. Box 6147, Carmel,
California 93921-6147. WIC has been registered with the CFTC as a CPO and CTA
since January 1989, and is a member of the NFA in such capacities. WIC is not
affiliated with the General Partner, the Commodity Brokers or any other Trading
Advisor.
The principals of WIC are as follows:
Dr. Patrick L. Welton is the Chief Executive Officer and
Chairman of WIC. Dr. Welton developed the mathematical analysis techniques and
systems software employed by WIC in its trading and portfolio management. From
1978 to 1982, Dr. Welton earned Bachelor's Degrees from the University of
Wisconsin, completing a portion of his undergraduate studies at Harvard
University. From 1982 to 1986, he attended the UCLA School of Medicine, where he
completed graduate biophysics and medical studies and earned an MD degree. From
1986 to 1990, he was a postgraduate physician at the Stanford University Medical
Center. In addition to his full-time management of WIC, Dr. Welton is a
principal of Welton Global Funds Management Corporation, a Director of Axios
Data Analysis Systems Corporation, a non-practicing shareholder in Peninsula
Radiation Oncology Specialists, Inc., and a volunteer Clinical Professor of
Medicine at Stanford University School of Medicine. He has engaged in futures
and equities market research since 1981 and has traded futures for his own
account since 1983. During the past five years, Dr. Welton has spoken at
domestic and international conferences, authored articles, participated in panel
presentations on numerous trading and risk management issues, and served on
committees for the Managed Funds Association ("MFA") and NFA. He is currently
serving on the Board of Directors of the NFA. He is registered as an Associated
Person with the NFA.
Ms. Annette L. Welton is a co-founder of WIC, a Director,
Chief Operational Officer and Chief Financial Officer. Ms. Welton participated
in the early development of the systems software employed by WIC in its trading
and portfolio management methods and, since 1988, Ms. Welton has continued to
participate in the research committee in the review process and the monitoring
of trading for the company's clients. She also serves as a principal of Welton
Global Funds Management Corporation, a CPO affiliated with WIC. Ms. Welton
earned a Bachelor of Science Degree in 1984 from the University of California at
Los Angeles. Since 1992, Ms. Welton has participated in the MFA Public Relations
and Trading and Markets Committees and is currently a member of the Trading and
Markets Committee. She has served on the NFA's Nominating Committee in the CTA
category and has authored and co-authored several articles published in various
alternative investment trade publications. She is registered as an Associated
Person with the NFA.
Mr. Jerry M. Harris is the Senior Vice President of WIC. He
received a Bachelor of Science Degree in 1973 in Aerospace Engineering at the
University of Virginia. In May of 1983, he earned a Masters Degree in
Information Systems from the University of Southern California. From 1984
through 1988, he was Vice President and Chief Operating Officer of Cresta
Commodity Management, Inc. in San Diego, California. Beginning 1989 through
1990, he was Vice President of Marketing at Commodities Corporation in
Princeton, New Jersey. From November 1988 through 1997, he was also employed as
a pilot with Delta Airlines. Mr. Harris is responsible for
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business development efforts and industry representation, as well as
participating in strategic planning for WIC. Mr. Harris is a member of the
Alternative Investments Management Association and serves on its International
Development Committee as well as the Institutional Money Management Advisory
Committee of the New York Mercantile Exchange. He frequently is a featured
speaker to institutional and private investor groups on the topic of integrating
skill-based alternative investment strategies to diversify investment
portfolios. He has been associated with WIC since 1993 and is registered as an
Associated Person with the NFA.
During the five years preceding the date of this Prospectus,
there have been no material administrative, civil or criminal actions, including
actions pending, on appeal or concluded, against WIC or its principals.
WIC and its principals trade futures options and securities
for their own accounts and provide management services to other clients.
Investments made on behalf of WIC, its principals, and its clients, as well as
any policies related thereto, will remain confidential. In the course of such
trading, WIC or its principals may take positions in their own accounts which
are in the same market and in the same direction as positions advocated for
clients. In a case where WIC or its principals place the same trade orders for
their accounts as they do for their clients in a single block order with a
brokerage firm, the brokerage firm shall allocate the trade fill prices assigned
to each account in a manner consistent with that firm's policy. This equalizes
the likelihood of WIC or its principals receiving a superior or inferior price
compared to any of their clients or, in the case of a partial fill of a block
order, equalizes the likelihood of WIC or its principals receiving a trade that
some customers will not receive or vice versa.
WIC Investment Philosophy and Technology
WIC is committed to achieving attractive rates of return
while successfully managing risk. This is accomplished through the consistent
application of the firm's primary trading principles:
O Market diversification
O Methodological diversification
O Portfolio allocation and management
O Full trade monitoring and market participant structure analysis
O Formal monitoring and review systems
These principles are the basis to pursue strong rates of
return with controlled volatility and with low correlation to other managed
futures programs, hedge funds, and other alternative investment strategies, as
well as to traditional fixed-income and equity investments.
WIC considers its portfolios and programs to be in a
constant cycle of review and improvement, centered on a stable process for
improving their long term success. This paradigm for performance improvement
involves all divisions of the firm. The continuous process involves regular
review and analysis of all: actual trading activity; all new and existing global
markets with the goal of increasing market diversification; of all potential
strategic approaches to various market conditions with the goal of increasing
strategic diversification, and hence, effective diversification; trading costs
and execution methods; and portfolio management models and techniques to best
integrate all of the above. This process implicitly recognizes that adaptation
is essential in approaching the global markets and that adaptation is best
implemented at even the most primary model levels.
To implement these models, WIC has developed an advanced
decision support platform capable of real-time analysis of markets and
combinations of markets around the world. This tool allows the implementation of
WIC trading strategies independently or in complementary combinations across
diverse global markets. Ongoing research and development continues to be WIC's
largest single commitment of resources and is conducted within its performance
improvement paradigm to improve the level, consistency, and quality of
performance in its offered portfolios and programs.
Although the trading of WIC portfolios is guided by the
consistent application of proprietary mathematical systems, there will always
remain investment decisions requiring the discretion and judgment of WIC. These
include, but are not limited to, contract month selection, analysis of portfolio
balance, and capital requirements. In addition, WIC may, in its sole discretion,
choose not to implement certain trades if they are judged to carry unacceptable
risk to an account. WIC will reinvest trading profits unless withdrawn by the
client. WIC may also stop trading certain markets should they become, in WIC's
judgment, too illiquid or volatile to trade or their movement too correlated
with other portfolio elements. Assets committed to meet minimum exchange
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margin for all positions usually remain between 5% and 20% of the trading size
of the total account equity. These levels may from time to time be greater or
less than this range. All investments including WIC managed portfolios and
programs involve the risk of loss.
WIC Investment Portfolios and Programs
WIC offers two distinct categories of investment products to
institutional, fund, corporate, and qualified individual clients. The first
category ("Absolute Return Portfolios") is a select group of diversified
investment portfolios each utilizing diversified trading styles and quantitative
investment models across the global futures, options, and currency markets.
These are designed to achieve attractive absolute rates of return with low
correlation to the returns of traditional asset classes and even other
skill-based alternative strategies. The second category ("Customized Return
Enhancement Programs") includes two inherently customized investment programs
designed to improve returns relative to accepted global investment performance
benchmarks such as a client's current portfolio return, an equity index or a
fixed income index or note. A brief description of these investment portfolios
and programs follows.
Absolute Return Portfolios
WIC offers investors three different managed futures
portfolios. These portfolios have the goals of achieving attractive rates of
appreciation from diversified sources of investment returns while continually
managing risk. Each portfolio employs the same diverse set of investment styles
applied to different market and instrument sets. These portfolios seek to
achieve investment style, timing, and market diversification unavailable from
traditional managed investments. Specific portfolios include: Diversified
Portfolio; Global Financials and Metals Portfolio; and Global Financials
Portfolio.
Each portfolio provides broad diversification through
various selected domestic and global interest rate, currency, equity index,
precious and base metal, agricultural, and petroleum product markets and trades
these markets using futures, options and forward contract instruments. Clients
may shape their allocations to market sectors through the various portfolios
offered by WIC.
Diversified Portfolio
The Diversified Portfolio manages investors' assets through
exposure to the widest spectrum of futures markets spanning all major market
sectors. Investing in the Diversified Portfolio will provide a balanced exposure
across various selected domestic and global interest rates, currency, equity
index, precious and base metal, agricultural, and petroleum product markets.
Multiple trading strategies are employed in an attempt to profitably participate
in a variety of market conditions. This emphasis on market and methodological
diversification epitomizes WIC's core principles in advising on investor assets
in the global marketplace.
WIC will initially trade 100% of Charter Welton's assets
pursuant to its Diversified Portfolio, as described above. Subject to the prior
approval of the General Partner, WIC may, at any time, trade some or all of the
Partnership's assets among one or more of WIC's other programs.
Global Financials and Metals Portfolio
The Global Financials and Metals Portfolio manages client
assets in a broad selection of world financial markets including interest rate,
currency, equity index, metal, and petroleum product markets. Appreciation of
assets is attempted through capturing the potential movements in these markets
and in their synthetic intermarket relationships with multiple trading
strategies.
Global Financials Portfolio
The Global Financials Portfolio manages client assets in a
more focused selection of pure financial markets exclusively confined to
interest rates, currencies and equity indices. Appreciation of assets is
attempted through capturing the potential movements in these markets and their
synthetic intermarket relationships with multiple trading strategies.
Customized Return Enhancement Programs
WIC works closely with its clients to create low leverage
return enhancement programs which are designed to provide a supplemental
relative rate of return, based upon a preselected benchmark measure matched to
the
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needs of the client. These programs include: Benchmark Linked Return Enhancement
Program and Fixed Income Return Enhancement Program.
Benchmark Linked Return Enhancement Program
The Benchmark Linked Return Enhancement Program is an
inherently customized management product tailored to attempt to exceed the
specific investment benchmark objectives of the client. Assets will be managed
in an adaptable overlay structure to participate in a simultaneous combination
of passive and coordinated active investment strategies driven by specific
client needs and timing. In general, clients will have the flexibility to alter
their benchmark and enhancement objectives independently on an ongoing basis.
The benchmark is selected by the client. This performance
benchmark may be the client's current investment portfolio, an equity index, a
fixed income index or any combination. The return enhancement targeted by the
client would be measured above this benchmark and would normally be set up with
a predefined risk exposure target.
Fixed Income Return Enhancement Program
The Fixed Income Return Enhancement Program offers
institutional investors a diversified enhancement to short term fixed income
yields. This was developed to meet the growing institutional demand for products
offering real rates of return comparable with equity allocations but maintaining
many of the characteristics of fixed income allocations such as low dispersion
of return and principal safety. It enables fixed income oriented investors to
participate in a tailor-made structure that minimizes principal risk and
fluctuations through permitting the investor a higher yield opportunity without
the requirement of extending maturities beyond two to four years. An investor
can simultaneously lower duration risk, increase credit quality, and improve
liquidity while potentially achieving higher returns at lower levels of risk.
This program employs computerized monitoring and risk control as it seeks to
provide some of the upside potential of managed futures while maintaining the
income stability and principal protection of short term government notes.
Past Performance of WIC
Set forth below in Capsules A, B, C, and D is the past
performance history of WIC and its principals for client accounts. Capsule A-1
is a pro forma of Capsule A, adjusted for the brokerage, management, and
incentive fees to be applied to Charter Welton. The footnotes following Capsule
D are an integral part of each Capsule.
INVESTORS ARE CAUTIONED THAT THE INFORMATION SET FORTH IN
THE FOLLOWING CAPSULE PERFORMANCE SUMMARIES ARE NOT INDICATIVE OF, AND MAY HAVE
NO BEARING ON, ANY TRADING RESULTS WHICH MAY BE ATTAINED BY WIC OR CHARTER
WELTON IN THE FUTURE, SINCE PAST RESULTS ARE NOT A GUARANTEE OF FUTURE RESULTS.
THERE CAN BE NO ASSURANCE THAT WIC OR THE PARTNERSHIP WILL MAKE ANY PROFITS AT
ALL, OR WILL BE ABLE TO AVOID INCURRING SUBSTANTIAL LOSSES. INVESTORS SHOULD
ALSO NOTE THAT INTEREST INCOME MAY CONSTITUTE A SIGNIFICANT PORTION OF A
COMMODITY POOL'S TOTAL INCOME AND, IN CERTAIN INSTANCES, MAY GENERATE PROFITS
WHERE THERE HAVE BEEN REALIZED OR UNREALIZED LOSSES FROM COMMODITY TRADING.
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<PAGE>
CAPSULE A
WELTON INVESTMENT CORPORATION
DIVERSIFIED PORTFOLIO
Name of CTA: Welton Investment Corporation
Name of program: Diversified Portfolio
Inception of trading by CTA: February 1989
Inception of trading in program: April 1992
Number of open accounts: 42
Aggregate assets overall (excluding notional): $139,000,000
Aggregate assets overall (including notional): $216,000,000
Aggregate assets in program (excluding notional): $111,000,000
Aggregate assets in program (including notional): $188,000,000
Largest monthly drawdown (past 5 years): (15.94)% - (2/96)
Largest monthly drawdown (since inception): (15.94)% - (2/96)
Worst peak-to-valley drawdown (past 5 years): (25.96)% - (1/96 -
8/96)
Worst peak-to-valley drawdown (since inception): (25.96)% -(1/96 -
8/96)
Accounts closed with positive net performance (past 5 years): 17
Accounts closed with positive net performance (since inception): 21
Accounts closed with negative net performance (past 5 years): 15
Accounts closed with negative net pereformance (since inception): 16
1998 year-to-date return (5 months): 9.56%
1997 annual return: 23.62%
1996 annual return: 7.17%
1995 annual return: 36.35%
1994 annual return: 2.38%
1993 annual return: 47.90%
1992 annual return (9 months): (4.29)%
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CAPSULE A-1
WELTON INVESTMENT CORPORATION
PRO FORMA OF CAPSULE A
DIVERSIFIED PORTFOLIO
Largest monthly drawdown (past 5 years): (16.73)% - (2/96)
Largest monthly drawdown (since inception): (16.73)% - (2/96)
Worst peak-to-valley drawdown (past 5 years): (26.59)% - (2/96-8/96)
Worst peak-to-valley drawdown (since inception): (26.59)% -
(2/96-8/96)
Accounts closed with positive net performance (past 5 years): 17
Accounts closed with positive net performance (since inception): 21
Accounts closed with negative net performance (past 5 years): 15
Accounts closed with negative net performance (since inception): 16
1998 year-to-date return (5 months): 11.01%
1997 annual return: 19.27%
1996 annual return: 5.78%
1995 annual return: 37.72%
1994 annual return: 1.26%
1993 annual return: 47.04%
1992 annual return (9 months): (3.71)%
CAPSULE B
WELTON INVESTMENT CORPORATION
GLOBAL FINANCIALS AND METALS PORTFOLIO
Name of CTA: Welton Investment Corporation
Name of program: Global Financials and Metals Portfolio
Inception of trading by CTA: February 1989
Inception of trading in program: April 1992
Number of open accounts: 2
Aggregate assets overall (excluding notional): $139,000,000
Aggregate assets overall (including notional): $216,000,000
Aggregate assets in program (excluding notional): $23,000,000
Aggregate assets in program (including notional): $23,000,000
Largest monthly drawdown: (15.72)% - (2/96)
Worst peak-to-valley drawdown: (30.89)% - (12/93 - 9/94)
1998 year-to-date return (5 months): 11.85%
1997 annual return: 19.18%
1996 annual return: 10.12%
1995 annual return: 48.90%
1994 annual return: (23.34)%
1993 annual return: 70.38%
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CAPSULE C
WELTON INVESTMENT CORPORATION
GLOBAL FINANCIALS PORTFOLIO
Name of CTA: Welton Investment Corporation
Name of program: Global Financials Portfolio
Inception of trading by CTA: February 1989
Inception of trading in program: November 1994
Number of open accounts: 3
Aggregate assets overall (excluding notional): $139,000,000
Aggregate assets overall (including notional): $216,000,000
Aggregate assets in program (excluding notional): $5,000,000
Aggregate assets in program (including notional): $5,000,000
Largest monthly drawdown: (15.70)% - (2/96)
Worst peak-to-valley drawdown: (30.20)% - (1/96 - 8/96)
1998 year-to-date return (5 months): 15.22%
1997 annual return: 14.35%
1996 annual return: 7.05%
1995 annual return: 49.67%
1994 period return (2 months): 3.73%
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CAPSULE D
WELTON INVESTMENT CORPORATION
TRADING PROGRAMS NO LONGER OFFERED
As of May 31, 1998
<TABLE>
<C> <S>
February 1989 Date advisor began trading client accounts
$139,000,000 Total assets under management by the advisor representing actual funds
$216,000,000 Total assets under management by the advisor representing nominal funds
</TABLE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
INTERNATIONAL INTEREST
EQUITY LINKED PORTFOLIO CUSTOM RATE
TRADING PROGRAM ENHANCEMENT PRODUCT GLOBAL FINANCIAL ACCOUNTS PORTFOLIO
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Date Program Began Trading Oct-93 Mar-94 Mar-92
Actual Funds Managed Closed Closed Closed
Oct-94 Oct-94 Mar-96
<S> <C> <C> <C>
Nominal Funds Managed -- -- --
Open Accounts 0 0 0
Closed Accounts 2 6 33
Accounts Closed at a Profit 1 0 9
Accounts Closed at a Loss 1 6 24
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C>
QUANTITATIVE FOREIGN WORLD
TRADING PROGRAM NONFINANCIAL PORTFOLIO EXCHANGE PORTFOLIO CURRENCY PORTFOLIO
- ---------------------------------------------------------------------------------------------------------------------------
Date Program Began Trading Mar-94 Jun-94 Apr-92
Actual Funds Managed Closed Closed Closed
Aug-95 Feb-95 Feb-94
<S> <C>
Nominal Funds Managed -- -- --
Open Accounts 0 0 0
Closed Accounts 4 2 4
Accounts Closed at a Profit 2 0 1
Accounts Closed at a Loss 2 2 3
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
WORLD
EQUITY
INDEX
TRADING PROGRAM PORTFOLIO
- ----------------------------------------------------------------------------------------------------------------------------
Date Program Began Trading May-94
Actual Funds Managed Closed
Jun-96
Nominal Funds Managed --
Open Accounts 0
Closed Accounts 11
Accounts Closed at a Profit 1
Accounts Closed at a Loss 10
</TABLE>
<TABLE>
<S> <C> <C> <C>
Annual Rates of Return
1993 7.36% -- 70.00%
1994 (4.21)% (22.89)% (26.68)%
1995 -- -- 56.49%
1996 -- -- (14.87)%
1997 -- -- --
YTD through Feb-98 -- -- --
Largest Single Monthly
Drawdown1 (1.79)% (7.15)% (14.47)%
<CAPTION>
Date of Drawdown Jul-94 Oct-94 Feb-96
<S> <C> <C> <C>
Largest Peak-to-Valley
Drawdown2 (6.55)% (25.12)% (32.40)%
<CAPTION>
Date of Peak Mar-94 Mar-94 Dec-93
Date of Valley Oct-94 Oct-94 Jan-95
- ---------------------------------------------------------------------------------------------------------------------------
<CAPTION>
Annual Rates of Return
<S> <C>
1993 -- -- (18.90)%
1994 44.13% (13.66)% (2.99)%
1995 (16.38)% (2.94)% --
1996 -- -- --
1997 -- -- --
YTD through Feb-98 -- -- --
Largest Single Monthly
Drawdown1 (8.99)% (14.68)% (8.80)%
Date of Drawdown Mar-95 Nov-94 Jan-93
<S> <C>
Largest Peak-to-Valley
Drawdown2 (19.03)% (17.58)% (23.21)%
Date of Peak Feb-95 Oct-94 Nov-92
Date of Valley Aug-95 Feb-95 Feb-94
- ----------------------------
<CAPTION>
Annual Rates of Return
1993
1994 (15.97)%
1995 4.99%
1996 (14.82)%
1997 --
YTD through Feb-98 --
Largest Single Monthly
Drawdown1 (9.71)%
Date of Drawdown Jun-96
Largest Peak-to-Valley
Drawdown2 (25.18)%
Date of Peak May-94
Date of Valley Jan-96
- ----------------------------
</TABLE>
Footnotes to WIC Capsules A, B, C and D Performance Summaries
"Inception of trading by CTA" is the date on which WIC began
trading client accounts.
"Inception of trading in program" is the date on which WIC
began trading client accounts pursuant to the program shown.
"Number of open accounts" is the number of accounts directed
by WIC pursuant to the program shown as of May 31, 1998.
"Aggregate assets overall" is the aggregate amount of assets
in non-proprietary accounts under the management of WIC as of May 31, 1998.
"Aggregate assets in program" is the aggregate amount of
assets in the program specified as of May 31, 1998.
"Drawdown" means losses experienced by the trading program
over a specified period. "Largest monthly drawdown" means greatest percentage
decline in net asset value due to losses sustained by the trading program from
the beginning to the end of a calendar month during the most recent five
calendar years (and from inception to date in the case of Capsule A).
"Worst peak-to-valley drawdown" means greatest cumulative
percentage decline in month-end net asset value of the trading program due to
losses sustained during a period in which the initial month-end net asset value
of the trading program is not equaled or exceed by a subsequent month-end net
asset value of the trading program during the most recent five calendar years
(and from inception to date in the case of Capsule A).
"Annual and year-to-date return" presented in the composite
performance capsules are calculated based on the "Fully-Funded-Subset" method as
prescribed by the CFTC. These monthly rates of return are derived by dividing
the sum of the net performance, i.e., the aggregate of net performance for each
of the accounts qualifying for inclusion in the Fully-Funded Subset, by the sum
of the Actual Funds-based beginning NAVs for the Fully-Funded Subset. Monthly
returns are then compounded to arrive at the year-to-date rate of return.
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Footnotes to WIC Capsule A-1 Pro Forma Performance Summary
Capsule A-1 above reflects pro forma rates of return, which
are the result of the General Partner making certain pro forma adjustments to
the actual past performance record of client accounts managed pursuant to the
Diversified Portfolio, the trading program to be employed for Charter Welton by
WIC. The pro forma adjustments are an attempt approximately to reflect the
brokerage, management and incentive fees, and interest income, as opposed to the
fees, expenses, and interest income applicable to the various accounts included
in Capsule A above.
CAPSULE A-1 MUST BE READ IN CONJUNCTION WITH THE DESCRIPTION
OF WIC AND ITS TRADING PROGRAMS ABOVE. FURTHERMORE, PROSPECTIVE INVESTORS MUST
BE AWARE THAT PRO FORMA RATES OF RETURN HAVE CERTAIN INHERENT LIMITATIONS: (A)
PRO FORMA ADJUSTMENTS ARE ONLY AN APPROXIMATE MEANS OF MODIFYING HISTORICAL
RECORDS TO REFLECT CERTAIN ASPECTS OF THE ECONOMIC TERMS OF A NEW COMMODITY
POOL, CONSTITUTE NO MORE THAN MATHEMATICAL ADJUSTMENTS TO ACTUAL PERFORMANCE
NUMBERS, AND GIVE NO EFFECT WHATSOEVER TO SUCH FACTORS AS POSSIBLE CHANGES IN
TRADING APPROACH THAT MIGHT HAVE RESULTED FROM THE DIFFERENT FEE STRUCTURE,
INTEREST INCOME, LEVERAGE, AND OTHER FACTORS APPLICABLE TO CHARTER WELTON AS
COMPARED TO WIC'S ACTUAL TRADING; AND (B) THERE ARE DIFFERENT MEANS BY WHICH THE
PRO FORMA ADJUSTMENTS COULD HAVE BEEN MADE. INVESTORS SHOULD ESPECIALLY NOTE
THAT WIC HAS NEVER TRADED AT THE FEE STRUCTURE APPLICABLE TO CHARTER WELTON. AS
OF THE DATE OF THIS PROSPECTUS, CHARTER WELTON HAS NOT BEGUN TRADING.
WHILE THE GENERAL PARTNER BELIEVES THAT THE INFORMATION SET
FORTH IN CAPSULE A-1 IS RELEVANT TO EVALUATING AN INVESTMENT IN CHARTER WELTON,
NO REPRESENTATION IS OR COULD BE MADE THAT THE TABLE PRESENTS WHAT THE RESULTS
OF CHARTER WELTON WOULD HAVE BEEN IN THE PAST OR ARE LIKELY TO BE IN THE FUTURE.
PAST RESULTS ARE NOT A GUARANTEE OF FUTURE RESULTS.
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THE MANAGEMENT AGREEMENTS
Each Trading Advisor has entered into a Management Agreement
with a Partnership and the General Partner, which provides that the Trading
Advisor will have sole authority and responsibility, except in certain limited
situations, for directing the investment and reinvestment in futures interests
of the Partnership's assets. See "Investment Programs, Use of Proceeds and
Trading Policies--Investment Programs of Each Charter Series Partnership."
TERM
The Management Agreement with each Trading Advisor has a
term of three years and will not expire until October 31, 2001, with annual
renewals thereafter. Unless otherwise terminated upon written notice from the
Trading Advisor at least 30 days prior to the expiration of the Management
Agreement, each agreement shall be automatically renewed for additional one year
terms.
The Management Agreement with each Partnership will
terminate if the Partnership terminates. Each Management Agreement may also be
terminated by the Partnership, without penalty, at any time upon prior written
notice to the Trading Advisor. In addition, each Management Agreement may be
terminated by the Partnership or the Trading Advisor at any time without penalty
under certain other circumstances specified therein.
No assurance is given that a Partnership will be able to
retain the services of a Trading Advisor once its Management Agreement with such
person is terminated, or, if such services are available, that they will be
available on the same or similar terms as those of the Management Agreement. The
compensation payable by each Partnership to a Trading Advisor for its services
under the Management Agreement is described under "Description of
Charges--Charges to Each Partnership--1. Trading Advisor."
LIABILITY AND INDEMNIFICATION
Each Management Agreement sets forth a standard of liability
for the Trading Advisor and also provides for certain indemnities of the Trading
Advisor. See "Fiduciary Responsibility."
Each Management Agreement also provides that the Trading
Advisor will assume financial responsibility for any errors committed or caused
by it in transmitting orders for the purchase or sale of futures interests for
the Partnership. Each Trading Advisor has an affirmative obligation promptly to
notify the General Partner of any error in transmitting orders for the purchase
and sale of futures interests, and a Trading Advisor must use its best efforts
to identify and promptly notify the General Partner of any order or trade which
the Trading Advisor reasonably believes was not executed in accordance with its
instructions.
OBLIGATIONS TO A PARTNERSHIP
Each Trading Advisor is engaged in the business of advising
investors as to the purchase and sale of futures interests. During the term of
each Management Agreement, the Trading Advisors and their principals and
affiliates may be advising other investors and trading for their proprietary
accounts. However, under the Management Agreements, the Trading Advisors and
their principals and affiliates may not knowingly or deliberately favor (other
than by charging different management and/or incentive fees) any account advised
or managed by the Trading Advisors or any of their principals and affiliates
over the accounts of the Partnerships. Each Trading Advisor will treat the
Partnership for which it manages funds in a fiduciary capacity to the extent
recognized by applicable law, but, subject to that standard, each Trading
Advisor and its principals and affiliates will be free to advise and manage
accounts of other investors and will be free to trade on the basis of the same
trading systems, methods or strategies employed by such Trading Advisor on
behalf of the Partnership, or trading systems, methods or strategies that are
entirely independent of, or materially different from, those employed on behalf
of the Partnership, and will be free to compete for the same futures interests
as the Partnership or to take positions opposite to the Partnership, where such
actions do not knowingly or deliberately favor any of such accounts over the
Partnership's account.
EXCHANGE PRIVILEGE
If the conditions described below are satisfied, a Limited
Partner can redeem Units in a Partnership as of the last day of any calendar
month and, with the proceeds of such redemption, purchase Units of one or more
other Partnerships at 100% of the Net Asset Value thereof (a "Series Exchange").
A Series Exchange of Units will be permitted as of the last day of each month,
commencing the sixth month-end after a person becomes a
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<PAGE>
Limited Partner of any Partnership (an "Exchange Date"). Each Unit purchased in
a Series Exchange with the proceeds of a redemption will be issued and sold at a
price per Unit equal to 100% of the Net Asset Value of a Unit as of the close of
business on such Exchange Date. Units acquired pursuant to a Series Exchange
will be deemed as having the same purchase date as the Units exchanged for
purposes of determining the applicability of any redemption charges.
Each Series Exchange is subject to satisfaction of certain
additional conditions immediately prior to an Exchange Date. Each redeeming
Partnership must have assets sufficient to discharge its liabilities and redeem
Units. See "Redemptions." In order to effect a Series Exchange, a Subscription
Agreement must be sent by a Limited Partner (or any assignee thereof) to a DWR
branch office and received by the General Partner at least five business days
prior to the applicable Exchange Date. Such Subscription Agreement must
acknowledge that the Limited Partner remains eligible to purchase Units on such
date. A minimum of 500 Units must be exchanged, unless a Limited Partner is
liquidating his entire interest in a Partnership. However, in the case of
subscribers who already own Units in a Partnership and desire to make an
additional investment in such Partnership, the minimum investment is 100 Units.
A form of Subscription Agreement is annexed hereto as Exhibit B. Additional
copies of the Subscription Agreement may be obtained by written request to the
General Partner or from a local DWR branch office. Each Partnership issuing
Units to Limited Partners pursuant to a Series Exchange must have a sufficient
number of Units registered and qualified for sale under federal and applicable
state securities laws pursuant to a current Prospectus. While the General
Partner currently intends to maintain a sufficient number of Units registered to
effect Series Exchanges, the General Partner shall not have any obligation to
have Units registered or to maintain a current Prospectus. There can be no
assurance that any or a sufficient number of Units will be available for sale on
an Exchange Date. If Units are not registered or qualified for sale under either
federal or applicable state securities laws or pursuant to a current Prospectus,
the General Partner will not be able to effect a Series Exchange for a Limited
Partner. Furthermore, certain states may impose significant burdens on, or alter
the requirements for, qualifying Units for sale and, in such cases, the General
Partner may not continue qualifying Units for sale in such state or states, and
a resident thereof would not be eligible for a Series Exchange. At some time in
the future, certain states may impose more restrictive suitability and/or
investment requirements than those set forth in the form of Subscription
Agreement. Any such restrictions may limit the ability of a resident of such
state to effect a Series Exchange. In the event that not all Subscription
Agreements can be processed because an insufficient number of Units is available
for sale on an Exchange Date, the General Partner will allocate Units in any
manner which it deems reasonable under the circumstances and may allocate a
substantial portion of such Units to new subscribers for Units.
Units of limited partnership interest of any new partnership
in the Charter Series may be offered to Limited Partners pursuant to exercise of
the Series Exchange privilege. Before purchasing such units, a Limited Partner
must execute a Subscription Agreement specifically referring to the units of
such partnership and must have received a copy of a prospectus or a supplement
to this Prospectus describing such units and such partnership.
Since a Series Exchange is equivalent to a redemption and
immediate reinvestment of the proceeds of such redemption, a Limited Partner
should carefully review the portions of this Prospectus describing redemptions
and certain tax consequences thereof. See "Redemptions" and "Material Federal
Income Tax Considerations."
REDEMPTIONS
Persons who have been Limited Partners for six months may
redeem all or part of their Units, regardless of when such Units were purchased,
at any month-end (a "Redemption Date") in the manner described herein.
Redemptions may only be made in whole Units, with a minimum of 100 Units
required for each redemption, unless a Limited Partner is redeeming his entire
interest in a Partnership. Redemption of Units will be deemed to be in the order
in which they are purchased (assuming purchases at more than one Closing).
Units redeemed on or prior to the last day of the twelfth
month from the date of purchase will be subject to a redemption charge equal to
2% of the Net Asset Value of a Unit on the Redemption Date. Units redeemed after
the last day of the twelfth month and on or prior to the last day of the
twenty-fourth month from the date of purchase will be subject to a redemption
charge equal to 1% of the Net Asset Value of a Unit on the Redemption Date.
Units redeemed after the last day of the twenty-fourth month from the date of
purchase will not be subject to a redemption charge. The foregoing redemption
charges will be paid to DWR.
Under certain circumstances, Units are exempt from
redemption charges, as follows. Units purchased by an investor who purchases
$500,000 or more of Units will not be subject to redemption charges. A Limited
Partner redeeming Units at the first Redemption Date following notice of an
increase in certain fees will not be
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<PAGE>
subject to redemption charges. A Limited Partner who redeems Units pursuant to a
Series Exchange will not be subject to redemption charges with respect to the
Units exchanged and, for purposes of determining the applicability of future
redemption charges, such Units will be deemed as having the same purchase date
as the Units exchanged. A Limited Partner who redeems units pursuant to a
Non-Series Exchange will be subject to any applicable redemption charges with
respect to the units redeemed from the other limited partnership; however, the
Units purchased pursuant to a Non-Series Exchange will not be subject to the
foregoing redemption charges. Further, a Limited Partner who redeems Units and
has either paid a redemption charge with respect to such Units or held such
Units for at least two years will not be subject to redemption charges with
respect to any newly purchased Units, provided the new Units are purchased
within twelve months of and in an amount no greater than the net proceeds of the
prior redemption, and are held for at least six months from the date of
purchase. Such subscribers remain subject to the minimum purchase and
suitability requirements. See "Subscription Procedure."
The "Net Asset Value" of a Unit is an amount equal to a
Partnership's Net Assets allocated to capital accounts represented by Units,
divided by the number of Units outstanding. "Net Assets" are defined in each
Limited Partnership Agreement to mean the total assets of a Partnership
(including all cash and cash equivalents (valued at cost), accrued interest and
amortization of original issue discount, and the market value of all open
futures interests positions and other assets of the Partnership), less the total
liabilities of the Partnership (including, but not limited to, one-half of the
brokerage commissions that would be payable with respect to the closing of each
Partnership's open futures interests positions (if charged on a roundturn
basis), or brokerage fees (if charged on a "flat rate" basis), management fees,
incentive fees, ordinary administrative expenses, transaction fees and costs, if
any, and extraordinary expenses), determined in accordance with generally
accepted accounting principles consistently applied under the accrual basis of
accounting. Unless generally accepted accounting principles require otherwise,
the market value of a futures interest traded on a United States exchange shall
be determined using the settlement price on the exchange on which the particular
futures interest is traded by a Partnership on the day with respect to which Net
Assets are being determined; provided, however, that if a futures interest could
not have been liquidated on such day due to the operation of daily limits or
other rules of the exchange upon which that futures interest is traded or
otherwise, the settlement price on the first subsequent day on which the futures
interest could have been liquidated shall be the market value of such futures
interest for such day. The market value of a forward contract or a futures
interest traded on a foreign exchange will mean its market value as determined
by the General Partner on a basis consistently applied for each different
variety of forward contract or futures interest.
The General Partner will endeavor to pay redemptions within
10 business days after the Redemption Date. A Partnership may be forced to
liquidate open futures interests positions to satisfy redemptions in the event
it does not have sufficient cash on hand. See "Risk Factors--Risks Relating to
the Partnerships and the Offering of Units--Restricted Investment Liquidity in
the Units." Payment will be made by credit in the amount of such redemption to
the Limited Partner's customer account with DWR, or by check mailed to the
Limited Partner if such account is closed. The right to obtain redemption is
contingent upon (i) the redeeming Partnership having assets sufficient to
discharge its liabilities on the Redemption Date, and (ii) timely receipt by the
General Partner of a Request for Redemption as described above.
The terms and conditions applicable to redemptions in
general, other than those prohibiting redemptions before the sixth month-end
following the Closing at which a person first becomes a Limited Partner in a
Charter Series Partnership, and providing that redemptions may only be made as
of the end of a calendar month, will also apply to redemptions effected on
"Special Redemption Dates," as described under "The Limited Partnership
Agreements--Reports to Limited Partners."
The liability of Limited Partners, including the possible
liability of a person who has redeemed Units, for liabilities of the Partnership
which arose before such redemption is described under "The Limited Partnership
Agreements-- Nature of the Partnerships."
Federal income tax aspects of redemptions are described
under the caption "Material Federal Income Tax Considerations."
THE COMMODITY BROKERS
DESCRIPTION OF THE COMMODITY BROKERS
Dean Witter Reynolds Inc. ("DWR"), a Delaware corporation,
acts as the Partnerships' non-clearing commodity broker, and Carr Futures, Inc.
("CFI" and, together with DWR, the "Commodity Brokers"), a
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Delaware corporation, acts as the clearing broker for the Partnerships' futures
interests trades and as the counterparty on the Partnerships' foreign currency
forward contracts. DWR also serves as the non-clearing commodity broker for all
but one of the other commodity pools for which Demeter serves as general partner
and commodity pool operator, and CFI serves as the clearing broker and foreign
currency forward counterparty for such commodity pools.
DWR is a principal operating subsidiary of MSDW, which is a
publicly-owned company. DWR is a financial services company which provides to
its individual, corporate and institutional clients services as a broker in
securities and futures interests, a dealer in corporate, municipal and
government securities, an investment adviser, and an agent in the sale of life
insurance and various other products and services. DWR is a member firm of the
New York Stock Exchange, the American Stock Exchange, the Chicago Board Options
Exchange, other major securities exchanges, and the National Association of
Securities Dealers, Inc. ("NASD"). DWR is registered with the CFTC as a futures
commission merchant and is a member of the NFA in such capacity. DWR is
currently servicing its clients through a network of 415 offices nationwide with
over 10,000 financial advisors servicing individual and institutional client
accounts.
CFI is a subsidiary of Credit Agricole Indosuez, which had
total equity of approximately $5.5 billion at December 31, 1996 and which is
itself a subsidiary of Caisse Nationale de Credit Agricole, one of the ten
largest banks in the world. CFI's parent has guaranteed to each Partnership
payment of the net liquidating value of the transactions in the Partnership's
account with CFI. CFI has been registered under the CEAct as a futures
commission merchant and has been a member of the NFA in such capacity since
August 1987. CFI's global headquarters is located at 10 South Wacker Drive,
Suite 1100, Chicago, Illinois 60606. CFI acts as a commodity broker to
individuals, corporate and institutional clients and is a clearing member of the
Chicago Board of Trade, the Chicago Mercantile Exchange, the Commodity Exchange
Inc., and other major commodities exchanges.
BROKERAGE ARRANGEMENTS
The Partnerships' brokerage arrangements with DWR and CFI
are discussed in "Conflicts of Interest--Relationship of the General Partner to
DWR as Commodity Broker" and "--Customer Agreements with the Commodity Brokers,"
and "Description of Charges--Charges to Each Partnership--2. Commodity Brokers."
The General Partner will review at least annually the
brokerage arrangements of each Partnership to ensure that such brokerage
arrangements are fair, reasonable, and competitive, and represent the best price
and services available, taking into consideration: (i) the size of the
Partnership; (ii) the futures interests trading activity; (iii) the services
provided by the Commodity Brokers or any affiliate thereof to the Partnership;
(iv) the cost incurred by the Commodity Brokers or any affiliate thereof in
organizing and operating the Partnership and offering Units; (v) the overall
costs to the Partnership; (vi) any excess interest and compensating balance
benefits to the Commodity Brokers from assets held thereby; and (vii) if the
General Partner is an affiliate of a Commodity Broker (Demeter is an affiliate
of DWR), the risks incurred by the General Partner as such. See "Conflicts of
Interest."
The Customer Agreements set forth a standard of liability
for the Commodity Brokers and provide for certain indemnities of and by the
Commodity Brokers. See "Fiduciary Responsibility."
CERTAIN LITIGATION
At any given time, DWR is involved in numerous legal
actions, some of which seek significant damages.
On May 16, 1996, an NASD arbitration panel awarded damages
and costs against DWR and one of its financial advisors in the amount of
approximately $1.1 million, including punitive damages, to three customers who
alleged, among other things, fraud and misrepresentation in connection with
their individually managed futures accounts (not commodity pools).
On September 6, 10, and 20, 1996, and on March 13, 1997,
similar purported class actions were filed in the Superior Court of the State of
California, County of Los Angeles, on behalf of all purchasers of interests in
limited partnership commodity pools sold by DWR. Named defendants include DWR,
Demeter, Dean Witter Futures and Currency Management Inc., MSDW (all such
parties referred to hereafter as the "Dean Witter Parties"), certain limited
partnership commodity pools of which Demeter is the general partner, and certain
trading advisors to those pools. On June 16, 1997, the plaintiffs in the above
actions filed a consolidated amended complaint, alleging, among other things,
that the defendants committed fraud, deceit, negligent misrepresentation,
various violations of the California Corporations Code, intentional and
negligent breach of
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fiduciary duty, fraudulent and unfair business practices, unjust enrichment, and
conversion in the sale and operation of the various limited partnerships
commodity pools. Similar purported class actions were also filed on September 18
and 20, 1996 in the Supreme Court of the State of New York, New York County, and
on November 14, 1996 in the Superior Court of the State of Delaware, New Castle
County, against the Dean Witter Parties and certain trading advisors on behalf
of all purchasers of interests in various limited partnership commodity pools
sold by DWR. A consolidated and amended complaint in the action pending in the
Supreme Court of the State of New York was filed on August 13, 1997, alleging
that the defendants committed fraud, breach of fiduciary duty, and negligent
misrepresentation in the sale and operation of the various limited partnership
commodity pools. On December 16, 1997, upon motion of the plaintiffs, the action
pending in the Superior Court of the State of Delaware was voluntarily dismissed
without prejudice. The complaints seek unspecified amounts of compensatory and
punitive damages and other relief. It is possible that additional similar
actions may be filed and that, in the course of these actions, other parties,
including the Partnerships, could be added as defendants. The Dean Witter
Parties believe that they have strong defenses to, and they will vigorously
contest, the actions. Although the ultimate outcome of legal proceedings cannot
be predicted with certainty, it is the opinion of management of the Dean Witter
Parties that the resolution of the actions will not have a material adverse
effect on the financial condition or the results of operations of any of the
Dean Witter Parties.
During the five years preceding the date of this Prospectus,
there have been (other than as described above) no material criminal, civil or
administrative actions pending, on appeal or concluded against DWR, Demeter, or
any of their principals, which DWR or Demeter believes would be material to an
investor's decision to invest in the Partnerships.
At any given time, CFI is involved in various legal actions.
On July 31, 1992, a CFTC Administrative Law Judge ("ALJ") ordered CFI to pay a
former client of the firm approximately $1.7 million in damages, plus interest
and costs, based upon certain alleged misrepresentations made by a former
account executive. Al Baraka Investment and Development Corp. vs. Indosuez Carr
Futures, Inc. (CFTC Docket No. 91-R-126). On May 3, 1993, the CFTC issued an
Order of Summary Affirmance, which affirmed the ALJ's decision, and the U.S.
Court of Appeals for the Seventh Circuit affirmed the CFTC order in June, 1994.
During the five years preceding the date of this Prospectus,
there have been (other than as described above) no material criminal, civil or
administrative actions pending, on appeal or concluded against CFI or any of its
principals, which CFI believes would be material to an investor's decision to
invest in the Partnerships.
THE FUTURES, OPTIONS AND FORWARDS MARKETS
Since 1974, the market in futures interests has undergone
dramatic changes. According to statistics provided by the Futures Industry
Association, in 1974 the futures markets were divided 82% in agricultural
products, 15% in metals, 2% in currencies, and 1% in lumber and energy products;
by December 31, 1997, the markets were divided 58% in interest rates, 12% in
agriculturals, 10% in stock indices, 6% in currencies, 8% in metals, and 6% in
energy products. By December 31, 1997, over $32 billion was invested in managed
futures interests.
FUTURES CONTRACTS
Futures contracts are standardized contracts made on
domestic or foreign exchanges that call for the future delivery of specified
quantities of various agricultural and tropical commodities, industrial
commodities, currencies, financial instruments or metals at a specified time and
place. The contractual obligations, depending upon whether one is a buyer or a
seller, may be satisfied either by taking or making, as the case may be,
physical delivery of an approved grade of commodity or by making an offsetting
sale or purchase of an equivalent but opposite futures contract on the same
exchange prior to the designated date of delivery. As an example of an
offsetting transaction where the physical commodity is not delivered, the
contractual obligation arising from the sale of one contract of December 1999
wheat on a commodity exchange may be fulfilled at any time before delivery of
the commodity is required by the purchase of one contract of December 1999 wheat
on the same exchange. The difference between the price at which the futures
contract is sold or purchased and the price paid for the offsetting purchase or
sale, after allowance for brokerage commissions, constitutes the profit or loss
to the trader. Certain futures contracts, such as those for stock or other
financial or economic indices approved by the CFTC or Eurodollar contracts
settle in cash (irrespective of whether any attempt is made to offset such
contracts), rather than by delivery of any physical commodity.
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FORWARD CONTRACTS
Contracts for the future delivery of certain commodities may
also be made through banks or dealers pursuant to what are commonly referred to
as "forward contracts." A forward contract is a contractual right to purchase or
sell a specified quantity of a commodity at or before a specified date in the
future at a specified price and, therefore, is similar to a futures contract. In
forward contract trading, a bank or dealer generally acts as principal in the
transaction and includes its anticipated profit (the "spread" between the "bid"
and the "asked" prices), and in some instances a mark-up, in the prices it
quotes for forward contracts. Unlike futures contracts, forward contracts are
not standardized contracts; rather, they are the subjects of individual
negotiation between the parties involved. Moreover, because there is no
clearinghouse system applicable to forward contracts, forward contracts are not
fungible, and there is no direct means of "offsetting" a forward contract by
purchase of an offsetting position on the same exchange as one can a futures
contract. In recent years, the terms of forward contracts have become more
standardized, and in some instances such contracts now provide a right of offset
or cash settlement as an alternative to making delivery on the contract.
OPTIONS ON FUTURES
An option on a futures contract or on a physical commodity
gives the buyer of the option the right to take a position at a specified price
(the "striking," "strike," or "exercise" price) in the underlying futures
contract or commodity. The buyer of a "call" option acquires the right to take a
long position (i.e., the obligation to take delivery of a specified amount of a
specific commodity) in the underlying futures contract or commodity, and the
buyer of a "put" option acquires the right to take a short position (i.e., the
obligation to make delivery of a specified amount of a specified commodity) in
the underlying futures contract or commodity.
The purchase price of an option is referred to as its
"premium." The seller (or "writer") of an option is obligated to take a futures
position at a specified price opposite to the option buyer if the option is
exercised. Thus, the seller of a call option must stand ready to take a short
position in the underlying futures contract or commodity at the striking price
if the buyer should exercise the option. The seller of a put option, on the
other hand, must stand ready to take a long position in the underlying futures
contract or commodity at the striking price.
A call option on a futures contract is said to be
"in-the-money" if the striking price is below current market levels, and
"out-of-the-money" if the striking price is above current market levels.
Similarly, a put option on a futures contract is said to be "in-the-money" if
the striking price is above current market levels, and "out-of-the-money" if the
striking price is below current market levels.
Options have limited life spans, usually tied to the
delivery or settlement date of the underlying futures contract. An option that
is out-of-the-money and not offset by the time it expires becomes worthless. On
certain exchanges, in-the-money options are automatically exercised on their
expiration date, but on others unexercised options simply become worthless after
their expiration date. Options usually trade at a premium above their intrinsic
value (i.e., the difference between the market price for the underlying futures
contract and the striking price), because the option trader is speculating on
(or hedging against) future movements in the price of the underlying contract.
As an option nears its expiration date, the market and intrinsic value typically
move into parity. The difference between an option's intrinsic and market values
is referred to as the "time value" of the option.
The use of interrelated options and futures positions can
provide an additional means of risk management and permit a trader to retain a
futures position in the hope of additional appreciation in that position, while
at the same time allowing the trader to limit the possible adverse effects of a
decline in the position's value.
Successful futures options trading requires many of the same
skills as does successful futures trading. However, since specific market
movements of the underlying futures contract or commodity must be predicted
accurately, the risks involved are somewhat different. For example, if a
Partnership buys an option (either to sell or buy a futures contract or
commodity), it will pay a "premium" representing the market value and time value
of the option. Unless the price of the futures contract or commodity underlying
the option changes and it becomes profitable to exercise or offset the option
before it expires, the Partnership may lose the entire amount of such premium.
Conversely, if the Partnership sells an option (either to sell or buy a futures
contract or commodity), it will be credited with the premium but will have to
deposit margin due to its contingent liability to take or deliver the futures
contract or commodity underlying the option in the event the option is
exercised. Traders who sell options are subject to the entire loss which occurs
in the underlying futures position or
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commodity (less any premium received). The ability to trade in or exercise
options may be restricted in the event that trading in the underlying futures
contract or commodity becomes restricted.
HEDGERS AND SPECULATORS
The two broad classes of persons who trade futures interests
contracts are "hedgers" and "speculators." Commercial interests, including
farmers, that market or process commodities and financial institutions that
market or deal in commodities (including, for example, interest rate sensitive
instruments, foreign currencies and stock portfolios) and which are exposed to
exchange, interest rate and stock market risks, may use the commodities markets
primarily for hedging. Hedging is a protective procedure designed to minimize
losses that may occur because of price fluctuations occurring, for example,
between the time a merchandiser or processor makes a contract to buy or sell a
raw or processed commodity at a certain price and the time he must perform the
contract. The commodity markets enable the hedger to shift the risk of price
fluctuations to the speculator. The speculator risks his capital with the hope
of making profits from price fluctuations in futures interests contracts.
Speculators rarely take delivery of commodities, but rather close out their
positions by entering into offsetting purchases or sales of contracts. Since the
speculator may take either a long or short position in the commodities markets,
it is possible for him to make profits or incur losses regardless of whether
prices go up or down. Trading by the Partnerships will be for speculative rather
than for hedging purposes.
COMMODITY EXCHANGES
Commodity exchanges provide centralized market facilities
for trading futures contracts and options (but not forward contracts) relating
to specified commodities, indices and other intangibles. Members of, and trades
executed on, a particular exchange are subject to the rules of that exchange.
Among the principal exchanges in the United States are the Chicago Board of
Trade, the Chicago Mercantile Exchange (including the International Monetary
Market), the New York Mercantile Exchange, the New York Cotton Exchange, Inc.
and the Coffee, Sugar and Cocoa Exchange.
Each of the commodity exchanges in the United States has an
associated "clearinghouse." Once trades between members of an exchange have been
confirmed, the clearinghouse becomes substituted for each buyer and each seller
of contracts traded on the exchange and, in effect, becomes the other party to
each trader's open position in the market. Thereafter, each party to a trade
looks only to the clearinghouse for performance. The clearinghouse generally
establishes some sort of security or guarantee fund to which all clearing
members of the exchange must contribute; this fund acts as an emergency buffer
that enables the clearinghouse, at least to a large degree, to meet its
obligations with regard to the "other side" of an insolvent clearing member's
contracts. Furthermore, clearinghouses require margin deposits and continuously
mark positions to market to provide some assurance that their members will be
able to fulfill their contractual obligations. Thus, a central function of the
clearinghouses is to ensure the integrity of trades, and members effecting
futures transactions on an organized exchange need not worry about the solvency
of the party on the opposite side of the trade; their only remaining concerns
are the respective solvencies of their commodity broker and the clearinghouse.
The exchanges also impose speculative position limits and other restrictions on
customer positions to help ensure that no single trader can amass a position
that would have a major impact on market prices.
Commodity exchanges in the United States and their
clearinghouses are given reasonable latitude in promulgating rules and
regulations to control and regulate their members. Examples of regulations by
exchanges and clearinghouses include the establishment of initial margin levels,
size of trading units, contract specifications, speculative position limits, and
daily price fluctuation limits. The CFTC reviews all such rules (other than
those relating to specific margin levels for futures, as opposed to options) and
can disapprove or, with respect to certain of such rules, require the amendment
or modification thereof.
Foreign commodity exchanges differ in certain respects from
their United States counterparts. In contrast to United States exchanges,
certain foreign exchanges are "principals' markets," where trades remain the
liability of the traders involved, and the exchange does not become substituted
for any party. See "Regulations" below and "Risk Factors--Risks Relating to
Futures Interests Trading and the Futures Interests Markets--Special Risks
Associated with Trading on Foreign Exchanges."
SPECULATIVE POSITION LIMITS
The CFTC and United States commodity exchanges have
established limits, referred to as "speculative position limits" or "position
limits," on the maximum net long or net short speculative position that any
person or group of persons (other than a hedger, which the Partnerships are not)
may hold, own or control in certain
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futures interests contracts. Among the purposes of speculative position limits
is to prevent a "corner" on a market or undue influence on prices by any single
trader or group of traders. The CFTC has jurisdiction to establish position
limits with respect to all commodities and has established position limits for
all agricultural commodities. In addition, the CFTC requires each United States
exchange to submit position limits for all commodities traded on such exchange
for approval by the CFTC. Certain exchanges or their clearinghouses also set
limits on the total net positions that may be held by a clearing broker, such as
CFI. However, position limits do not apply to many currency futures contracts,
and, in general, no position limits are in effect in bank or dealer forward
contract trading or in trading on foreign commodity exchanges, although the
principals with which the Partnerships may trade in such markets may impose such
limits as a matter of credit policy. The futures interests positions of the
Partnerships are not, and will not be, attributable to Limited Partners with
respect to their own futures interests trading, if any, for purposes of position
limits.
DAILY LIMITS
Most United States commodity exchanges (but generally not
foreign exchanges or banks or dealers in the case of forward contracts) normally
limit the amount of fluctuation in futures interests contract prices during a
single trading day by regulation. These regulations specify what are referred to
as "daily price fluctuation limits" or more commonly "daily limits." The daily
limits establish the maximum amount that the price of a futures interests
contract may vary either up or down from the previous day's settlement price.
Once the daily limit has been reached in a particular futures interest, no
trades may be made at a price beyond the limit. This can create liquidity
problems.
REGULATIONS
Commodity exchanges in the United States are subject to
regulation under the CEAct by the CFTC, the governmental agency having
responsibility for regulation of commodity exchanges and futures interests
contract trading conducted thereon. The function of the CFTC is to implement the
objectives of the CEAct of preventing price manipulation and excessive
speculation and promoting orderly and efficient markets. Such regulation, among
other things, provides that trading in futures interests must be on exchanges
designated as "contract markets," and that all trading on such exchanges must be
done by or through exchange members.
The CFTC possesses exclusive jurisdiction to regulate the
activities of "commodity trading advisors" and "commodity pool operators" and
has adopted regulations with respect to certain of such persons' activities.
Pursuant to its authority, the CFTC requires a commodity pool operator (such as
the General Partner) to keep accurate, current and orderly records with respect
to each pool it operates. The CFTC may suspend the registration of a commodity
pool operator if the CFTC finds that the operator has violated the CEAct or
regulations thereunder and in certain other circumstances. Suspension,
restriction or termination of the General Partner's registration as a commodity
pool operator would prevent it, until such time (if any) as such registration
were to be reinstated, from managing, and might result in the termination of,
the Partnerships. The CEAct gives the CFTC similar authority with respect to the
activities of commodity trading advisors, such as the Trading Advisors. If the
registration of a Trading Advisor as a commodity trading advisor were to be
terminated, restricted or suspended, the Trading Advisor would be unable, until
such time (if any) as such registration were to be reinstated, to render trading
advice to the relevant Partnership. The Partnerships themselves are not
registered with the CFTC in any capacity.
The CEAct requires all "futures commission merchants," such
as the Commodity Brokers, to meet and maintain specified fitness and financial
requirements, segregate customer funds from proprietary funds and account
separately for all customers' funds and positions, and to maintain specified
books and records open to inspection by the staff of the CFTC. The CFTC has
similar authority over "introducing brokers," i.e., persons who solicit or
accept orders for futures interests trades but who do not accept margin deposits
for the execution of trades. The Partnerships have no present intention of using
any introducing brokers in their trading. The CEAct also gives the states
certain powers to enforce its provisions and the regulations of the CFTC.
The fact of CFTC registration of the General Partner, the
Commodity Brokers, and the Trading Advisors does not imply that the CFTC has
passed on or approved this offering or their qualifications to act as described
in this Prospectus.
Limited Partners are afforded certain rights for reparations
under the CEAct. Limited Partners may also be able to maintain a private right
of action for certain violations of the CEAct. The CFTC has adopted rules
implementing the reparation provisions of the CEAct which provide that any
person may file a complaint for a reparations award with the CFTC for violation
of the CEAct against a floor broker, futures commission
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merchant, introducing broker, commodity trading advisor, commodity pool
operator, and their respective associated persons.
Pursuant to authority in the CEAct, the NFA has been formed
and registered with the CFTC as a "registered futures association." At the
present time, the NFA is the only non-exchange self-regulatory organization for
commodities professionals. NFA members are subject to NFA standards relating to
fair trade practices, financial condition, and consumer protection. As the
self-regulatory body of the commodities industry, the NFA promulgates rules
governing the conduct of commodity professionals and disciplines those
professionals who do not comply with such standards. The CFTC has delegated to
the NFA responsibility for the registration of commodity trading advisors,
commodity pool operators, futures commission merchants, introducing brokers and
their respective associated persons and floor brokers. The General Partner, the
Commodity Brokers, and the Trading Advisors are all members of the NFA (the
Partnerships themselves are not required to become members of the NFA).
The above-described regulatory structure may be modified by
rules and regulations promulgated by the CFTC or by legislative changes enacted
by Congress.
The CFTC has no authority to regulate trading on foreign
commodity exchanges and markets. The CFTC has, however, adopted rules relating
to the marketing of foreign futures contracts and options in the United States.
These rules permit foreign futures contracts and options traded only on certain
foreign exchanges to be offered and sold in the United States. See "Risk
Factors--Risks Relating to Futures Interests Trading and the Futures Interests
Markets--Special Risks Associated with Trading on Foreign Exchanges."
MARGINS
"Initial" or "original" margin is the minimum amount of
funds that must be deposited by a commodity trader with his commodity broker in
order to initiate futures trading or to maintain an open position in futures
contracts. "Maintenance" margin is the amount (generally less than initial
margin) to which a trader's account may decline before he must deliver
additional margin. A margin deposit is like a cash performance bond. It helps
assure the commodity trader's performance of the futures interests contracts he
purchases or sells. Futures interests contracts are customarily bought and sold
on margins that represent a very small percentage (ranging upward from less than
2%) of the purchase price of the underlying commodity being traded. Because of
such low margins, price fluctuations occurring in the futures markets may create
profits and losses that are greater, in relation to the amount invested, than
are customary in other forms of investment or speculation. The minimum amount of
margin required in connection with a particular futures interests contract is
set from time to time by the exchange on which such contract is traded, and may
be modified from time to time by the exchange during the term of the contract.
See "Risk Factors--Risks Relating to Futures Interests Trading and the Futures
Interests Markets--Futures Interests Trading is Highly Leveraged."
Brokerage firms, such as the Commodity Brokers, carrying
accounts for traders in futures interests contracts may not accept lower, and
generally require higher, amounts of margin as a matter of policy in order to
afford further protection for themselves. The Commodity Brokers presently intend
to require each Partnership to make margin deposits equal to the exchange
minimum levels for all futures interests contracts.
Trading in the currency forward contract market does not
require margin, but generally does require the extension of credit by a bank or
dealer to those with whom the bank or dealer trades. Since each Partnership's
trading will be conducted through CFI, each Partnership will be able to take
advantage of CFI's credit lines with several participants in the interbank
market. CFI will require margin with respect to a Partnership's trading of
currency forward contracts.
When a trader purchases an option, there is no margin
requirement. When a trader sells an option, on the other hand, he is required to
deposit margin in an amount determined by the margin requirements established
for the futures interests contract underlying the option, and, in addition, an
amount substantially equal to the current premium for the option. The margin
requirements imposed on the writing of options, although adjusted to reflect the
probability that out-of-the-money options will not be exercised, can in fact be
higher than those imposed in dealing in the futures markets directly.
Complicated margin requirements apply to "spreads" and "conversions," which are
complex trading strategies in which a trader acquires a mixture of related
futures and options positions.
Margin requirements are computed each day by a trader's
commodity broker. When the market value of a particular open futures interests
contract position changes to a point where the margin on deposit does not
satisfy maintenance margin requirements, a margin call is made by the commodity
broker. If the margin call is
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not met within a reasonable time, the broker may close out the trader's
position. With respect to a Partnership's trading, that Partnership, and not its
Limited Partners personally or any other Partnership, will be subject to margin
calls.
THE LIMITED PARTNERSHIP AGREEMENTS
This Prospectus contains an explanation of the more
significant terms and provisions of the Limited Partnership Agreement of each
Partnership, a copy of which is annexed hereto as Exhibit A and is incorporated
herein by this reference. Each Limited Partnership Agreement is identical
insofar as the terms and provisions thereof discussed hereunder are concerned.
The following description is a summary only of certain significant terms of the
Limited Partnership Agreement not set forth elsewhere in this Prospectus, is not
intended to be complete, and is qualified in its entirety by reference to
Exhibit A.
NATURE OF THE PARTNERSHIPS
Each Partnership was formed on July 15, 1998 under the
Partnership Act. The fiscal year of each Partnership begins on January 1 of each
year and ends on the following December 31.
Units purchased and paid for pursuant to this offering will
be fully paid and nonassessable. Except as described under "Restrictions on
Transfers and Assignments" below, Limited Partners may only withdraw from a
Partnership by redeeming all of their Units. Each Partnership may have a claim
against its Limited Partners after redemption or a Series Exchange of Units or
receipt of distributions from such Partnership for liabilities of the
Partnership that arose before the date of such redemption, Series Exchange or
distribution, but such claim will not exceed the sum of such Limited Partner's
unredeemed capital contribution, undistributed profits, if any, any
distributions and amounts received upon redemptions, and amounts deemed received
on a Series Exchange, together with interest thereon. No Partnership will make a
claim against its Limited Partners with respect to amounts distributed to them
or amounts received by them upon redemption of Units or deemed received upon a
Series Exchange of Units unless the Net Assets of the Partnership are
insufficient to discharge liabilities of the Partnership that arose before the
payment of such amounts. The General Partner will be liable for all obligations
of each Partnership to the extent that assets of such Partnership, including
amounts contributed by its Limited Partners and paid out in distributions,
redemptions, Series Exchanges, or otherwise to Limited Partners, are
insufficient to discharge such obligations. However, neither the General
Partner, DWR, nor any of their affiliates shall be personally liable to a
Limited Partner (or assignee) for the return or repayment of all or any portion
of the capital or profits of such Limited Partner.
MANAGEMENT OF PARTNERSHIP AFFAIRS
The Limited Partners of a Partnership will not participate
in the management or operations of such Partnership. Any participation by a
Limited Partner in the management of a Partnership may jeopardize the limited
liability of such Limited Partner. Under each Limited Partnership Agreement,
responsibility for managing the Partnership is vested solely in the General
Partner. See "Fiduciary Responsibility." The General Partner may delegate
complete trading authority to a Trading Advisor and has done so, except for the
ability of the General Partner to override trading instructions that violate a
Partnership's trading policies, or to the extent necessary to fund distributions
or redemptions, or to pay Partnership expenses, or when the Trading Advisor is
unable or unwilling to act and a successor Trading Advisor has not yet been
retained.
On behalf of each Partnership, the General Partner may
engage and compensate from the funds of that Partnership such persons as the
General Partner in its sole judgment deems advisable for the conduct and
operation of the business of the Partnership, provided however, that, except as
described in the Limited Partnership Agreement and this Prospectus, the General
Partner will not engage on behalf of a Partnership any person, firm, or
corporation that is an affiliate of the General Partner without having made a
good faith determination that: (i) the affiliate which it proposes to engage to
perform such services is qualified to do so (considering the prior experience of
the affiliate or the individuals employed thereby); (ii) the terms and
conditions of the agreement pursuant to which such affiliate is to perform
services for the Partnership are no less favorable to the Partnership than could
be obtained from equally-qualified unaffiliated third parties, or are otherwise
determined by the General Partner to be fair and reasonable to the Partnership
and the Limited Partners; and (iii) the maximum period covered by the agreement
pursuant to which such affiliate is to perform services for the Partnership will
not exceed one year, and such agreement may be terminated without penalty upon
60 days' prior written notice by the Partnership.
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Other responsibilities of the General Partner include, but
are not limited to, the following: determining whether each Partnership will
make distributions; administering redemptions and Series Exchanges; preparing
monthly and annual reports to the Limited Partners of each Partnership;
preparing or causing to be prepared and filing tax returns required to be filed
by each Partnership; directing the investment of each Partnership's assets
(other than investments in futures interests); executing various documents on
behalf of each Partnership and its Limited Partners pursuant to powers of
attorney; and supervising the liquidation of a Partnership if an event causing
termination of that Partnership occurs. To facilitate the execution of various
documents by the General Partner on behalf of each Partnership and its Limited
Partners, each of the Limited Partners will appoint the General Partner, with
power of substitution, his attorney-in-fact by executing a Subscription
Agreement.
SHARING OF PROFITS AND LOSSES
Each Partner, including the General Partner, of each
Partnership will have a capital account with an initial balance equal to the
amount he paid for Units of such Partnership, or, in the case of the General
Partner, its capital contribution. Each Partnership's Net Assets will be
determined monthly, and any increase or decrease from the end of the preceding
month will be added to or subtracted from the accounts of the Partners in the
ratio that each account bears to all accounts. For a description of the federal
tax allocations, see "Material Federal Income Tax Considerations."
RESTRICTIONS ON TRANSFERS OR ASSIGNMENTS
Except as set forth below, each Limited Partnership
Agreement provides that Units may be transferred or assigned, but that no
transferee or assignee may become a substituted Limited Partner without the
written consent of the General Partner, which consent may be withheld in its
sole discretion. No Limited Partner, or an assignee, transferee, estate,
custodian or personal representative of a Limited Partner, may withdraw any
capital or profits from a Partnership except by redemption of Units. See
"Redemptions." The General Partner, without prior notice to or consent of the
Limited Partners, may withdraw any portion of its interest in a Partnership that
is in excess of the interest required under its Limited Partnership Agreement.
See "Capitalization." The General Partner may withdraw or assign its entire
interest in a Partnership only upon 120 days' prior written notice to Limited
Partners; if a majority of Limited Partners elect a new general partner or
partners to continue the business of the Partnership, the withdrawing General
Partner must pay all reasonable expenses incurred by the Partnership in
connection with such withdrawal.
Any transfer or assignment of Units permitted by the Limited
Partnership Agreements will be effective as of the end of the month in which
such transfer or assignment is made; provided, however, that no Partnership need
recognize any transfer or assignment until it has received at least 30 days'
prior written notice from the Limited Partner, which notice sets forth the
address and social security or taxpayer identification number of the transferee
or assignee and the number of Units transferred or assigned, and is signed by
the Limited Partner. No transfers or assignments of Units will be effective or
recognized by the General Partner if as a result any party to such transfer or
assignment owns fewer than the minimum number of Units required to be purchased
as described herein (subject to certain exceptions relating to gifts, death,
divorce, or transfers to family members or affiliates contained in the Limited
Partnership Agreements). No transfer or assignment of Units will be permitted
unless the General Partner is satisfied that (i) such transfer or assignment
would not be in violation of the Partnership Act or applicable federal, state or
foreign securities laws, and (ii) notwithstanding such transfer or assignment,
the Partnership will continue to be classified as a partnership rather than as
an association taxable as a corporation under the Internal Revenue Code of 1986,
as amended (the "Code"). No transfer or assignment of Units will be effective or
recognized by a Partnership if such transfer or assignment would result in the
termination of that Partnership for federal income tax purposes, and any
attempted transfer or assignment in violation of the Limited Partnership
Agreement will be ineffective. The Limited Partner will bear all costs
(including any attorneys' and accountants' fees) related to such transfer or
assignment.
AMENDMENTS; MEETINGS
Each Limited Partnership Agreement may be amended in
accordance with, and to the extent permissible under, the Partnership Act by an
instrument signed by the General Partner and by Limited Partners owning more
than 50% of the Units then owned by Limited Partners of that Partnership. In
addition, the General Partner may make the following amendments to a Limited
Partnership Agreement without the consent of the Limited Partners: (i) change
the name of the Partnership or cause the Partnership to transact business under
another name; (ii) clarify any inaccuracy or any ambiguity, or reconcile any
inconsistent provisions in the
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Limited Partnership Agreement; (iii) make any amendment to the Limited
Partnership Agreement that is not adverse to the Limited Partners; (iv) effect
the intent of the allocations proposed in the Limited Partnership Agreement to
the maximum extent possible and to the extent necessary to comply with the Code
or the interpretations thereof affecting such allocations, as same may be
amended from time to time; (v) attempt to ensure that the Partnership is not
taxed as an association taxable as a corporation for federal income tax
purposes; (vi) qualify or maintain the qualification of the Partnership as a
limited partnership in any jurisdiction; (vii) delete, add or modify any
provision of or to the Limited Partnership Agreement required to be deleted,
added or modified by the staff of the SEC, the CFTC, any other federal agency,
any state "Blue Sky" official, or other governmental official, or in order to
opt to be governed by any amendment or successor to the Partnership Act, or to
comply with applicable law; (viii) make any modification to the Limited
Partnership Agreement to reflect the admission of additional or substitute
general partners and to reflect any modification to the net worth and minimum
investment requirements applicable to the General Partner and any other general
partner, as contemplated by Sections 5 and 6 of the Limited Partnership
Agreement; (ix) make any amendment that is appropriate or necessary, in the
opinion of the General Partner, to prevent the Partnership or the General
Partner or its directors, officers or controlling persons from in any manner
being subject to the provisions of the Investment Company Act of 1940, as
amended (the "1940 Act"), the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), or "plan asset" regulations adopted under the Employee
Retirement Income Security Act of 1974, as amended; and (x) to make any
amendment that is appropriate or necessary, in the opinion of the General
Partner, to qualify the Partnership under the 1940 Act, and any persons under
the 1940 Act and the Advisers Act, if the General Partner is informed that doing
so is necessary. However, no amendment of the Limited Partnership Agreement of a
Partnership without the consent of all Partners affected thereby may reduce the
capital account of any Partner, modify the percentage of profits, losses, or
distributions to which any Partner is entitled, or change or alter the
provisions of such Limited Partnership Agreement relating to amendments
requiring the consent of all Partners.
Any Limited Partner or his authorized attorney or agent,
upon written request to the General Partner, delivered either in person or by
certified mail, and upon payment of reasonable duplicating and postage costs,
shall be entitled to obtain from the General Partner by mail a list of the names
and addresses of record of all Limited Partners of the Partnership(s) in which
he owns Units and the number of Units owned by each. Upon receipt of a written
request, signed by Limited Partners owning at least 10% of the Units then owned
by Limited Partners of a Partnership, that a meeting of such Partnership be
called to consider any matter upon which Limited Partners may vote pursuant to
its Limited Partnership Agreement, the General Partner, by written notice to
each Limited Partner of record sent by certified mail or delivered in person
within 15 days after receipt of such notice, must call a meeting of that
Partnership. Such meeting must be held at least 30 but not more than 60 days
after the mailing of such notice, and such notice must specify the date, a
reasonable place and time, and the purpose of such meeting.
At any meeting of the Limited Partners, upon the affirmative
vote of Limited Partners (in person or by proxy) owning more than 50% of the
Units then owned by Limited Partners of a Partnership, the following actions may
be taken: (i) the Limited Partnership Agreement may, with certain exceptions
described above, be amended; (ii) the Partnership may be dissolved; (iii) the
General Partner may be removed and replaced; (iv) a new general partner or
general partners may be elected if the General Partner terminates or liquidates
or elects to withdraw from the Partnership, or becomes insolvent, bankrupt or is
dissolved; (v) any contracts with the General Partner or any of its affiliates
may be terminated without penalty on 60 days' prior written notice; and (vi) the
sale of all or substantially all of the assets of the Partnership may be
approved; provided, however, that no such action may be taken if it will
adversely affect the classification of the Partnership as a partnership under
the federal income tax laws or the status of the Limited Partners as limited
partners under the Partnership Act (while not required by the Limited
Partnership Agreement, it is advisable that Limited Partners proposing to take
any of the foregoing actions obtain an opinion of qualified counsel to confirm
that the action to be taken will not have adverse ramifications under federal
income tax laws and the Partnership Act, and that such action is otherwise
permitted under the Partnership Act). Any of the foregoing actions may also be
taken by Limited Partners without a meeting, without prior notice, and without a
vote, by means of written consents signed by Limited Partners owning the
requisite number of Units; notice of any actions taken by written consent must
be given to non-consenting Limited Partners within seven business days
thereafter.
INDEMNIFICATION
The Limited Partnership Agreement provides for certain
indemnities of the General Partner and its affiliates. See "Fiduciary
Responsibility."
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REPORTS TO LIMITED PARTNERS
The books and records of each Partnership are maintained at
its principal office, and must be retained for not less than five years. The
Limited Partners or their authorized attorneys or agents will have the right
during normal business hours to inspect and copy such books and records of each
Partnership of which they are Limited Partners, and, upon request, copies of
such books and records will be sent to any Limited Partner if reasonable
reproduction and distribution costs are paid by him. Copies of subscription
documentation in connection with purchases and Exchanges of Units will be
retained by the Partnership for not less than six years.
Within 30 days after the close of each calendar month, the
General Partner shall provide to each Limited Partner such financial and other
information with respect to each Partnership as the CFTC and NFA, from time to
time, may require in such monthly reports, together with information concerning
any material change in the brokerage commissions or fees payable by the
Partnerships to any commodity broker. Additionally, each Partnership will
distribute to the Limited Partners within 90 days after the close of each fiscal
year an annual report containing audited financial statements (including a
statement of income and statement of financial condition) of the Partnership for
the fiscal year then ended, prepared in accordance with generally accepted
accounting principles and accompanied by a report of the independent certified
public accounting firm which audited such financial statements, and such other
information as the CFTC and the NFA may from time to time require. Such annual
reports will provide a detailed statement of any transactions with the General
Partner or its affiliates and of fees, commissions and any compensation paid or
accrued to the General Partner or its affiliates for the fiscal year completed,
showing the amount paid or accrued to each recipient and the services performed.
Within 75 days after the close of each fiscal year (but in no event later than
March 15 of each year), the Partnership will report to each Limited Partner tax
information necessary for the preparation of the Limited Partner's federal
income tax returns. The Net Asset Value of Units will be determined daily by the
General Partner and the most recent Net Asset Value calculations will be
promptly supplied in writing to any Limited Partner after receipt of a written
request to such effect. In addition to the above-described information and
reports, the General Partner will provide Limited Partners with such other
information and will comply with any such procedures in connection with
redemptions as in the future are specifically required under SEC rules and
policies for commodity pools and similar investment vehicles.
In addition, if any of the following events occurs, notice
of such event, including a description of Limited Partners' redemption and
voting rights, will be mailed to each Limited Partner of that Partnership within
seven business days after the occurrence of the event: (i) a decrease in the Net
Asset Value of a Unit as of the close of business on any business day to 50% or
less of the Net Asset Value for such Unit as of the end of the immediately
preceding month; (ii) any material amendment to the Limited Partnership
Agreement; (iii) any change in Trading Advisors or any material change in the
management agreement with a Trading Advisor; (iv) any change in Commodity
Brokers or any material change in the compensation arrangements with a Commodity
Broker; (v) any change in general partners or any material change in the
compensation arrangements with a general partner; (vi) any change in the
Partnership's fiscal year; (vii) any material change in the Partnership's
trading policies as specified in the Limited Partnership Agreement; or (viii)
cessation of futures interests trading by the Partnership. In the case of a
notice given in accordance with clause (i) of the immediately preceding
sentence: (a) such notice shall also advise Limited Partners that a "Special
Redemption Date," on a date specified in such notice (but in no event earlier
than 15, nor later than 45, days after the mailing of such notice), will take
place as of which Limited Partners may redeem their Units in the same manner as
described under "Redemptions" for regular Redemption Dates (a Special Redemption
Date may take place on a regular Redemption Date); and (b) following the close
of business on the date of the 50% decrease giving rise to such notice, the
Partnership shall liquidate all existing positions as promptly as reasonably
practicable and shall suspend all futures interests trading through the Special
Redemption Date. Thereafter, the General Partner shall determine whether to
reinstitute futures interests trading or to terminate the Partnership.
In addition, subject to limits imposed under certain state
guidelines incorporated in the Limited Partnership Agreements, no increase in
any of the management, incentive or brokerage fees payable by the Partnerships,
or any caps on management fees, incentive fees, brokerage commissions or fees,
transaction fees and costs, ordinary administrative expenses, or net excess
interest or compensating balance benefits, as described under "Description of
Charges--Charges to Each Partnership--5. Expense Limitations," may take effect
until the first business day following a Redemption Date, provided that: (i)
notice of such increase is mailed to each Limited Partner at least five business
days prior to the last date on which a "Request for Redemption" must be received
by the General Partner with respect to the applicable Redemption Date; (ii) such
notice describes the
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redemption and voting rights of Limited Partners; and (iii) Limited Partners
redeeming Units at the first Redemption Date following such notice shall not be
subject to any redemption charges.
Each Limited Partner (and any assignee of such Limited
Partner's interest) expressly agrees that in the event of his death, such
Limited Partner waives on behalf of himself and his estate, and directs the
legal representative of his estate and any person interested therein, to waive
the furnishing of any inventory, accounting, or appraisal of the assets of the
Partnership and any right to an audit or examination of the books of the
Partnership, except to the extent described above.
PLAN OF DISTRIBUTION
The Units are being offered through DWR pursuant to a
Selling Agreement among the Partnerships, the General Partner, and DWR, as
selling agent. DWR has appointed MS & Co., and may appoint, with the approval of
the General Partner, as its agent to make offers and sales of the Units, any
other securities broker or dealer which is a member in good standing of the
NASD, or any foreign bank, dealer, institution or person ineligible for
membership in the NASD which agrees to make no offers or sales of Units within
the United States or its territories, possessions or areas subject to its
jurisdiction or to persons who are citizens thereof or residents therein, and
which further agrees in making offers and sales of Units to comply with the
applicable provisions of the Conduct Rules of the NASD (each, an "Additional
Seller"). DWR, MS & Co. and the General Partner are "affiliates" of one another
pursuant to SEC rules under the 1933 Act.
The Units are being offered on a "best efforts" basis
without any agreement by DWR to purchase Units. The General Partner has
registered 3,000,000 Units of each Partnership with the SEC, for sale in the
Initial Offering and the Continuing Offering. The General Partner may in the
future register additional Units with the SEC. There is no maximum aggregate
amount of funds which may be contributed to any Partnership. The General Partner
may in the future subdivide or combine outstanding Units of any Partnership, in
its discretion, provided that no such subdivision or combination shall affect
the Net Asset Value of any Limited Partner's interest in the Partnership.
Units of each Partnership are being offered initially to the
public at $10 per Unit, for issuance at the Initial Closing, which is currently
scheduled to be held on October 31, 1998; provided, however, that the General
Partner may at its discretion hold such Initial Closing at any time during the
Initial Offering Period (as defined below). Units that remain unsold following
the Initial Closing may be offered for sale in the Continuing Offering at
subsequent Monthly Closings at a price per Unit equal to 100% of the Net Asset
Value of a Unit of the Partnership which sells the Unit as of the date of the
applicable Monthly Closing. The period from the date of this Prospectus through
November 30, 1998 will be referred to herein as the "Initial Offering Period";
provided, however, that the General Partner may, in its sole discretion, extend
the Initial Offering Period up to and including March 12, 1999. If at least
400,000 ($4,000,000) Units in a Partnership have been subscribed for at any time
during the Initial Offering Period, the General Partner will accept
subscriptions for such Partnership at the Initial Closing and commence such
Partnership's trading operations, and continue to offer Units of such
Partnership in the Continuing Offering. Following the Initial Closing, the Net
Asset Value of a Unit of a Partnership will not be related to the performance of
any other Partnership and will depend on the performance of its Trading Advisor.
At subsequent Monthly Closings, such Net Asset Value may increase or decrease
substantially between the date of a subscription and the date as of which such
subscription is accepted by the General Partner; consequently, a subscriber may
receive at a Monthly Closing more or fewer Units of a Partnership than would
have been received if the Monthly Closing had been held on the date of the
subscription. Additionally, even if the amount of a subscription is divided
equally among the Partnerships, the number of Units of each Partnership
purchased at a Monthly Closing will not generally be the same and may differ
significantly.
During the Initial Offering Period and, thereafter, during
the Continuing Offering, funds with respect to a subscription received and not
immediately rejected by the General Partner will be transferred to, and held in
escrow by, The Chase Manhattan Bank, New York, New York (the "Escrow Agent"),
and invested solely in the Escrow Agent's interest-bearing money market account.
If a subscription is accepted by the General Partner, the Escrow Agent will pay
to the appropriate Partnerships the subscription funds and pay to DWR any
interest earned on such subscription funds at the applicable Closing, and DWR
will credit the subscriber's customer account with DWR with such interest. If a
subscription is rejected by the General Partner, the Escrow Agent will promptly
pay to DWR the rejected subscription funds and any interest earned thereon, and
DWR will credit the subscriber's customer account with DWR with such amounts,
and at such time such funds will be immediately available for investment or
withdrawal. In the event a subscriber's customer account with DWR has been
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closed, any subscription returned and/or interest earned will be paid by check.
Interest will be earned on subscription funds from the day of deposit of such
funds with the Escrow Agent to the day that such funds are either paid to the
appropriate Partnerships in the case of accepted subscriptions or paid to DWR in
the case of rejected subscriptions. At all times during the Initial Offering
Period and, thereafter, during the Continuing Offering, and prior to each
Monthly Closing, subscription funds will be in the possession of the Escrow
Agent, and at no time will the General Partner hold or take possession of such
funds.
If fewer than 400,000 ($4,000,000) Units in any Partnership
have been subscribed for at the termination of the Initial Offering Period or
for any reason the Initial Closing does not occur, the offering of Units with
respect to any such Partnership will terminate and each subscription received
during the Initial Offering Period will be promptly returned by the Escrow Agent
to DWR for prompt deposit to each subscriber's customer account with DWR, within
five business days following termination of the Initial Offering Period,
together with any interest earned on such subscription while held in escrow. DWR
will promptly notify each subscriber that such subscription has been returned to
such subscriber's customer account with DWR and that such funds are under such
subscriber's control. It is contemplated that only one Initial Closing will be
held for the Partnerships, and it is not a condition of the Initial Closing that
all three Partnerships sell the minimum number of Units.
During the Initial Offering Period, the General Partner,
DWR, any Additional Seller, the Trading Advisor, and their respective affiliated
entities may, but are not required to, subscribe for any number of Units. Units
subscribed for by such entities will be counted for purposes of determining
whether the minimum subscription requirement for a Partnership has been met. Any
Units subscribed for by such entities may not be redeemed for a period of two
years after the Initial Closing if the Partnership would not have the minimum
$4,000,000 in Net Assets immediately following such redemption.
In the case of Units purchased for cash, qualified employees
of DWR have the option to receive from DWR (payable solely from its own funds) a
gross sales credit equal to 4% of the Net Asset Value per Unit as of the
applicable Closing for each Unit sold by them and issued at such Closing, plus a
gross sales credit of up to 71% of the brokerage fees received by DWR from the
Partnership each month that are attributable to such outstanding Units,
commencing with the fifteenth month after the Closing at which a Unit is issued.
Alternatively, qualified employees of DWR may forego the initial sales credit of
4% of the Net Asset Value per Unit and immediately commence receiving a gross
sales credit of up to 71% of the brokerage fees received by DWR from the
Partnership each month that are attributable to such outstanding Units.
Notwithstanding the foregoing, employees of DWR that sell $500,000 or more of
Units to any single investor will not have an option, and will only be entitled
to receive a gross sales credit of up to 71% of the brokerage fees received by
DWR from the Partnership each month that are attributable to such outstanding
Units, commencing with the first month after the Units are issued.
In the case of Units purchased pursuant to a Series Exchange
or Non-Series Exchange, qualified employees of DWR will not receive the initial
gross sales credit of 4%. However, in the case of a Series Exchange or Non-
Series Exchange, DWR employees will receive a gross sales credit of up to 71% of
the brokerage fees received by DWR from the Partnership each month that are
attributable to such outstanding Units, as follows: (i) in the case of a Series
Exchange where the DWR employee elected to receive the initial gross sales
credit of 4% in connection with the initial purchase of the Units redeemed, such
DWR employee will receive the monthly gross sales credit commencing with the
fifteenth month after the date the Units being redeemed were purchased; and
(ii) in the case of (A) a Series Exchange where the DWR employee elected not to
receive the initial gross sales credit of 4% in connection with the initial
purchase of the Units redeemed, or (B) a Non-Series Exchange, such DWR employee
will receive the monthly gross sales credit commencing with the first month
after the Units are issued. In all cases, qualified DWR employees will receive
continuing compensation until the applicable Partnership terminates or such Unit
is redeemed (whichever comes first).
For the purpose of paying continuing compensation, brokerage
fees are deemed to be attributable to Units sold by an employee in the
proportion which the number of such Units bears to the total number of Units
outstanding at any time. For example, if an employee sold 2,500 Units of one
Partnership and there were 125,000 Units of such Partnership outstanding, 2%
(2,500 divided by 125,000) of the brokerage fees received by DWR with respect to
such Partnership would be deemed to be attributable to the Units sold by that
employee, and such employee would be paid by DWR, under present plans, up to 57%
of such fees. Units issued to a Limited Partner in a Series Exchange will be
treated for purposes of allocating brokerage fees as sold by the employee who
sold the Units subject to such Series Exchange. No part of such compensation
will be paid by a Partnership and, accordingly, Net Assets will not be reduced
as a result of such compensation. Each person receiving such continuing
compensation must be a DWR employee at the time of receipt of payment and must
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be registered as an associated person with the CFTC and be a member of the NFA
in such capacity only after either having passed the Series 3 or Series 31
examination or having been "grandfathered" as an associated person qualified to
do commodity brokerage under the CEAct and the regulations thereunder. The
additional services to be rendered by such employees include: (a) inquiring of
the General Partner from time to time, at the request of Limited Partners, as to
the Net Asset Value of each Partnership's Units; (b) inquiring of the General
Partner, at the request of Limited Partners, regarding the futures interests
markets and the activities of the Partnerships; (c) responding to questions of
Limited Partners with respect to the monthly account statements, annual reports,
financial statements and annual tax information furnished periodically to
Limited Partners; (d) providing advice to Limited Partners as to when and
whether to make additional investments or to redeem or Exchange Units; (e)
assisting Limited Partners in the redemption or Exchange of Units; and (f)
providing such other services as Limited Partners from time to time may
reasonably request. Such additional compensation paid by DWR may be deemed to be
underwriting compensation. In addition, certain officers and directors of the
General Partner may receive compensation as employees of DWR based, in part, on
the amount of brokerage fees paid by the Partnerships to DWR. The Selling
Agreement among DWR, the General Partner and the Partnerships provides that such
compensation may only be paid by DWR as long as such services are provided. A
Limited Partner may telephone, write or visit such employee at the local DWR
branch office to avail himself of such services.
DWR may compensate any qualified Additional Seller for each
Unit sold by it by paying such Additional Seller a selling commission, payable
by DWR solely from its own funds, as determined by DWR and such Additional
Seller, but not to exceed 4% of the Net Asset Value of the Unit sold (except MS
& Co., which will be compensated at the same rate as DWR). Additional Sellers
who are properly registered as futures commission merchants or introducing
brokers with the CFTC and are members of the NFA in such capacity may also
receive from DWR, payable solely from its own funds, continuing compensation for
providing to Limited Partners the continuing services described above. Such
additional compensation paid by DWR may be up to 35% of the brokerage fees
generated by outstanding Units sold by such Additional Sellers and received by
DWR as commodity broker for each Partnership. Additional Sellers may pay all or
a portion of such additional compensation to their employees who have sold Units
and provide continuing services to Limited Partners if such employees are
properly registered with the CFTC and are members of the NFA. Such additional
compensation paid by DWR may be deemed to be underwriting compensation.
In connection with the sale of Units, DWR may at any time
and from time to time implement cash sales incentive and/or promotional programs
for its employees who sell Units. Such programs will provide for DWR, and not
the Partnership or General Partner, to pay its employees bonus compensation
based on sales of Units. Any such program will be approved by the NASD prior to
its implementation.
The aggregate of all compensation paid to employees of DWR
from the initial 4% gross sales credit, the redemption charges received by DWR,
and any sales incentives will not exceed 10% of the proceeds of the sale of
Units.
The Units of each Partnership are being sold by each
Partnership when, as and if subscriptions therefor are accepted by the General
Partner, subject to the satisfaction of certain conditions set forth in the
Selling Agreement and the approval by counsel of certain legal matters. Pursuant
to the respective Management Agreements, each Partnership has agreed to
indemnify its Trading Advisor in connection with the offer and sale of Units
with respect to any misleading or untrue statement or alleged misleading or
untrue statement of a material fact or material omission or alleged omission
unrelated to such Trading Advisor. Each Partnership also has agreed to indemnify
DWR, the General Partner, MS & Co., and any other Additional Sellers in
connection with the offer and sale of Units. See "Fiduciary Responsibility."
If units of new partnerships of the Charter Series are
offered for sale by the General Partner, such offer would be on such terms as
the General Partner may determine. The expenses incurred in this offering and
the pricing formulas described above would not be determinative of the price per
unit in any such subsequent offering.
SUBSCRIPTION PROCEDURE
The minimum subscription for most subscribers is $20,000,
except that, in the case of eligible subscribers purchasing Units pursuant to a
Non-Series Exchange, the $20,000 minimum investment will be satisfied if the
proceeds of the redemption of the units redeemed would have equaled at least
$20,000 as of the last day of the month immediately preceding the Closing at
which the Units are purchased, irrespective of whether the actual
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proceeds from such redemption are less than $20,000 when the units are redeemed.
See "Investment Requirements." A subscription may be for Units of one
Partnership, or may be divided among two or all three Partnerships, provided
that the minimum subscription for any one Partnership is: (a) in the case of a
cash purchase, $5,000, or (b) in the case of a Non-Series Exchange, the proceeds
from the redemption of (i) five units from commodity pools other than the
Spectrum Series or MSTAF, (ii) 500 units from one, or any combination, of the
Spectrum Series, or (iii) 500 units from MSTAF. A subscriber who already owns
Units in a Partnership and desires to make an additional investment in such
Partnership may subscribe for additional Units at a Monthly Closing with a
minimum investment of: (a) in the case of a cash purchase, $1,000, or (b) in the
case of a Non-Series Exchange, the proceeds from the redemption of (i) one unit
from commodity pools other than the Spectrum Series or MSTAF, or (ii) 100 units
from one, or any combination of the Spectrum Series, or (iii) 100 units from
MSTAF.
In order to purchase Units, a subscriber must complete,
execute, and deliver to DWR an execution copy of a Subscription Agreement. In
the Subscription Agreement, a subscriber (other than one effecting an Exchange)
will authorize the General Partner and DWR to transfer immediately the full
subscription amount from his customer account with DWR to the Partnerships'
Escrow Account. DWR will promptly debit the subscriber's customer account and
transfer such funds to the Escrow Account with the Escrow Agent upon receipt of
the executed Subscription Agreement. A subscriber (other than one effecting an
Exchange) whose Subscription Agreement is received by DWR and whose subscription
is not immediately rejected, must have the appropriate amount in his customer
account with DWR on the first business day following the date that his
Subscription Agreement is received by DWR, and DWR will debit his customer
account and transfer such funds into escrow with the Escrow Agent on that date.
In the event that a subscriber (other than one effecting an Exchange) does not
have a customer account with DWR or does not have sufficient funds in his
existing customer account with DWR, the subscriber should make appropriate
arrangements with his DWR financial advisor, if any, and if none, should contact
his local DWR branch office. MS & Co. and the other Additional Sellers, if any,
will arrange for their respective customers subscribing for Units to open
customer accounts with DWR. Payment must not be mailed to the General Partner,
as any such payment will be returned to the subscriber for proper placement with
the DWR branch office where his account is maintained. Additional investments in
the Partnerships for subscribers who already own Units must be made by executing
a Subscription Agreement authorizing the immediate transfer of funds from the
customer's account with DWR to the Escrow Agent. In the case of a Series
Exchange or a Non-Series Exchange, a subscriber must complete, execute, and
deliver to DWR an execution copy of a Subscription Agreement, which will
authorize the General Partner to redeem all or a portion of such subscriber's
interest in a Partnership or another commodity pool for which the General
Partner serves as general partner and commodity pool operator (subject to terms
of the applicable limited partnership agreement), and use the proceeds of such
redemption (less any applicable redemption charges) to purchase Units in the
Partnership[s]. In accordance with an NASD rule, DWR will not subscribe for
Units on behalf of any customer account over which it has discretionary
authority, unless it gets prior written approval from the customer.
In the case of a subscription on behalf of an IRA or other
employee benefit plan, merely subscribing for Units does not create a plan.
Those considering the purchase of Units on behalf of an IRA or other employee
benefit plan must first ensure that the plan has been properly established in
accordance with the Code and the regulations thereunder and administrative
rulings thereof and that the plan has been adequately funded. If an IRA or other
employee benefit plan has been properly established and adequately funded, the
trustee or custodian of the plan who decides to or who is instructed to do so
may subscribe for Units. Payment of the subscription price must be made by
having the trustee or custodian of the plan authorize the General Partner and
DWR to transfer immediately the full subscription amount to the Morgan Stanley
Dean Witter Charter Series Escrow Account from the plan's customer account with
DWR. An employee benefit plan, including an IRA, should consider the tax
consequences of an investment in the Partnerships. See "Purchases by Employee
Benefit Plans--ERISA Considerations."
All Units subscribed for upon DWR's transfer of funds from a
customer account following receipt of a subscriber's check will be issued
subject to the collection of the funds represented by such check. In the event
that a subscriber's check is returned unpaid, DWR will notify the General
Partner, and the relevant Partnership will cancel the Units issued to such
subscriber represented by such check. Any losses or profits sustained by the
Partnership in connection with the Partnership's business allocable to such
cancelled Units will be deemed a decrease or increase in Net Assets and
allocated among the remaining Partners. In the Limited Partnership Agreements,
each Limited Partner agrees to reimburse a Partnership for any expense or loss
(including any
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trading loss) incurred in connection with the issuance and cancellation of any
Units issued to such Limited Partner.
All subscriptions for Units are generally irrevocable by
subscribers, provided, however, that (i) a subscriber may revoke his
Subscription Agreement, and receive a full refund of the subscription amount and
any accrued interest thereon (or revoke the redemption of units in the other
commodity pool in the case of a Series Exchange or Non-Series Exchange), within
five business days after execution of such Subscription Agreement or no later
than 3:00 P.M., New York City time, on the date of the applicable Closing,
whichever comes first, by delivering written notice to his DWR financial
advisor; and (ii) there may be possible rescission rights under applicable
federal and state securities laws. The General Partner may reject any
subscription, in whole or in part, in its sole discretion. See "Plan of
Distribution." A specimen form of the Subscription Agreement is annexed hereto
as Exhibit B. A separate execution copy of the Subscription Agreement
accompanies this Prospectus or may be obtained, after delivery of this
Prospectus (and, if applicable, the Partnerships' latest Monthly Report), from a
local DWR branch office. Limited Partners will not receive certificates
evidencing Units, but will be sent confirmations of purchase in DWR's customary
form.
PURCHASES BY EMPLOYEE BENEFIT PLANS -- ERISA CONSIDERATIONS
The purchase of Units might or might not be a suitable
investment for an employee benefit plan. Before proceeding with a purchase of
Units, the person with investment discretion on behalf of an employee benefit
plan should determine whether the purchase of Units is (a) permitted under the
governing instruments of the plan and (b) appropriate for that particular plan
in view of its overall investment policy, the composition and diversification of
its portfolio, and the considerations discussed below.
As used herein, the term "employee benefit plans" refers to
plans and accounts of various types (including their related trusts) which
provide for the accumulation of a portion of an individual's earnings or
compensation, as well as investment income earned thereon, typically free from
federal income tax until such time as funds are distributed from the plan. Such
plans include corporate pension and profit-sharing plans (such as so-called
"401(k)" plans), "simplified employee pension plans," so-called "Keogh" plans
for self-employed individuals (including partners), and, for purposes of this
discussion, individual retirement accounts ("IRAs"), described in Section 408 of
the Internal Revenue Code of 1986, as amended (the "Code").
If the assets of an investing employee benefit plan were to
be treated, for purposes of the reporting and disclosure provisions and certain
other of the fiduciary responsibility provisions of Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Code, as including an undivided interest in each of the underlying assets
of a Partnership, an investment in Units would in general be an inappropriate
investment for the plan. A U.S. Department of Labor regulation (the
"Regulation") defines "plan assets" in situations where employee benefit plans
purchase equity securities in investment entities such as a Partnership. The
Regulation provides that the assets of an entity will not be deemed to be "plan
assets" of an employee benefit plan which purchases an equity security of such
an entity if the equity security is a "publicly-offered security," meaning it is
(1) freely transferable, (2) held by more than 100 investors independent of the
issuer and of each other, and (3) either (a) registered under Section 12(b) or
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "1934
Act") or (b) sold to the plan as part of a public offering of such securities
pursuant to an effective registration statement under the 1933 Act, where the
security is then timely registered under Section 12(b) or Section 12(g) of the
1934 Act. It is expected that the Units will meet, and continue to meet, the
criteria of the Regulation.
The General Partner believes, based upon the advice of its
legal counsel, that income earned by the Partnerships will not constitute
"unrelated business taxable income" under Section 512 of the Code to employee
benefit plans and other tax-exempt entities which purchase Units in one or more
of the Partnerships. Although the Internal Revenue Service has issued favorable
private letter rulings to taxpayers in somewhat similar circumstances, other
taxpayers may not use or cite such rulings as precedent.
The person with investment discretion on behalf of an
employee benefit plan who is considering the purchase of Units in one or more of
the Partnerships should consult a professional tax adviser regarding the
application of the foregoing matters to their purchase of Units.
Units may not be purchased with the assets of an employee
benefit plan if the General Partner, DWR, any Additional Seller, any Trading
Advisor or any of their respective affiliates either: (a) has investment
discretion with respect to the investment of such plan assets; (b) has authority
or responsibility to give or regularly gives investment advice with respect to
such plan assets for a fee and pursuant to an agreement or understanding that
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such advice will serve as a primary basis for investment decisions with respect
to such plan assets and that such advice will be based on the particular
investment needs of the plan; or (c) is an employer maintaining or contributing
to such plan.
Subscribing for Units in a Partnership does not create an
IRA or other employee benefit plan. Those considering the purchase of Units on
behalf of an IRA or other employee benefit plan must first ensure that the plan
has been properly established in accordance with the Code and ERISA and the
regulations and administrative rulings thereunder and that the plan has been
adequately funded. Then, after all of the considerations discussed above have
been taken into account, the trustee or custodian of a plan who decides to or
who is instructed to do so may subscribe for Units in one or more of the
Partnerships, subject to the applicable minimum subscription requirement per
Partnership.
ACCEPTANCE OF SUBSCRIPTIONS ON BEHALF OF IRAS OR OTHER
EMPLOYEE BENEFIT PLANS IS IN NO RESPECT A REPRESENTATION BY THE GENERAL PARTNER,
DWR, MS & CO., ANY OTHER ADDITIONAL SELLERS OR ANY PARTNERSHIP THAT THIS
INVESTMENT MEETS ALL RELEVANT LEGAL REQUIREMENTS WITH RESPECT TO INVESTMENTS BY
PLANS GENERALLY OR ANY PARTICULAR PLAN OR THAT THIS INVESTMENT IS APPROPRIATE
FOR PLANS GENERALLY OR ANY PARTICULAR PLAN.
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
INTRODUCTION
The General Partner has been advised by counsel, Cadwalader,
Wickersham & Taft, that in its opinion, the following summary correctly
describes the material federal income tax consequences to United States
taxpayers of acquiring, owning and disposing of Units. The opinions appearing in
this section are the opinions of Cadwalader, Wickersham & Taft, except as
otherwise specifically noted herein. The following summary is based upon the
Internal Revenue Code of 1986, as amended (the "Code"), rulings thereon,
regulations promulgated thereunder and existing interpretations thereof, any of
which could be changed at any time and which changes could be retroactive. The
federal income tax summary and the state and local income tax summary which
follow in general relate only to the tax implications of an investment in the
Partnerships by individuals who are citizens or residents of the United States.
Except as indicated below or under "Purchases by Employee Benefit Plans-ERISA
Considerations," the summaries do not address the tax implications of an
investment in the Partnerships by corporations, partnerships, trusts and other
non-individuals. Moreover, the summaries are not intended as a substitute for
careful tax planning, particularly since certain of the tax consequences of
owning an interest in the Partnerships may not be the same for all taxpayers,
such as non-individuals or foreign persons, or in light of an investor's
personal investment circumstances. A complete discussion of all federal, state
and local tax aspects of an investment in each Partnership is beyond the scope
of the following summary, and prospective investors must consult their own tax
advisors on such matters.
PARTNERSHIP STATUS
The General Partner has been advised by its legal counsel,
Cadwalader, Wickersham & Taft, that in its opinion, under current federal income
tax law, each Partnership will be classified as a partnership and not as an
association (or a publicly traded partnership) taxable as a corporation. No
ruling has been requested from the Internal Revenue Service with respect to
classification of each Partnership and the General Partner does not intend to
request such a ruling.
The opinion of counsel described above is based upon the
facts set forth herein, including that a principal activity of each Partnership
consists of buying and selling commodities not held as inventory, or futures,
options and forward contracts with respect to such commodities, and at least 90%
of the Partnership's gross income during each year consists of gains from such
trading and interest income.
Certain "publicly traded partnerships" are taxed as
corporations. While this treatment does not affect the Partnerships, new
legislation governing the taxation of limited partnerships may be enacted at any
time, and may apply to the Partnerships retroactively. If a partnership were
treated as an association (or a publicly traded partnership) taxable as a
corporation, income or loss of such partnership would not be passed through to
its partners, and such partnership would be subject to tax on its income without
deduction for any distributions to its partners, at the rates applicable to
corporations. In addition, all or a portion of any distributions by such
partnership to its partners could be taxable to the partners as dividends or
capital gains.
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PARTNERSHIP TAXATION
Partners, Rather than Partnership, Subject to Federal Income
Tax. Each Partnership, as an entity, will not be subject to federal
income tax. Except as provided below with respect to certain nonresident aliens,
each Limited Partner in computing his federal income tax liability for a taxable
year will be required to take into account his distributive share of all items
of Partnership income, gain, loss, deduction, and credit for the taxable year of
the Partnership ending within or with the taxable year of such Partner,
regardless of whether such Partner has received any distributions from the
Partnership. The characterization of an item of profit or loss will usually be
determined at the Partnership level.
Organization and Syndication Expenses. None of the
Partnerships nor any Partner thereof will be entitled to any deduction for
syndication expenses (i.e., those amounts paid or incurred in connection with
issuing and marketing Units).
Allocation of Partnership Profits and Losses. For
federal income tax purposes, a Limited Partner's distributive share of items of
Partnership income, gain, loss, deduction, and credit will be determined by each
Limited Partnership Agreement, annexed hereto as Exhibit A, unless an allocation
under such Agreement does not have "substantial economic effect," in which case
the allocations are made in accordance with the Partners' interests in the
Partnership. In general, each Limited Partnership Agreement allocates items of
ordinary income and expense pro rata among the Partners based upon their
respective capital accounts as of the end of the month in which such items are
accrued. Net recognized capital gain or loss is generally allocated among all
Partners based upon their respective capital accounts. However, net recognized
capital gain or loss is allocated first to Partners who have redeemed Units in
the Partnership during a taxable year to the extent of the difference between
the amount received on the redemption and the allocation account as of the date
of redemption attributable to the redeemed Units. Net recognized capital gain
for each year is allocated next among all Partners whose capital accounts are in
excess of their Units' allocation accounts to the extent of such excess in the
ratio that each such Partner's excess bears to all such Partners' excesses. Net
recognized loss for each year is allocated next among all Partners whose Units'
allocation accounts are in excess of their capital accounts to the extent of
such excess in the ratio that each such Partner's excess bears to all such
Partners' excesses.
The special allocation of each Partnership's net gain or
loss upon a redemption of Units, which retains the same character as in the
hands of each Partnership, may alter the character of a redeeming Limited
Partner's income (by reducing the amount of long-term capital gain recognized
upon receipt of redemption proceeds) and may accelerate the recognition of
income by such Limited Partner.
These allocation provisions are designed to reconcile tax
allocations to economic allocations. However, no assurance can be given that the
Internal Revenue Service will not challenge such allocations (including each
Partnership's tax allocations in respect of redeemed Units).
If the allocation provided by each Limited Partnership
Agreement is not recognized by the Internal Revenue Service for federal income
tax purposes, the amount of income or loss allocated to the Partners for federal
income tax purposes under such Limited Partnership Agreement may be increased or
reduced or the character of such income or loss may be modified.
CASH DISTRIBUTIONS AND REDEMPTIONS
Because of the special allocation of Partnership gain or
loss upon a redemption of Units, the amounts received upon the partial or
complete redemption of a Limited Partner's Units normally will not result in
additional taxable income or loss to the Limited Partner. However, distributions
by a Partnership and amounts received upon the partial or complete redemption of
a Limited Partner's Units will be taxable to the Limited Partners to the extent
cash distributions by a Partnership or amounts received upon redemption by a
Limited Partner exceed such Partner's adjusted tax basis in his Units. Such
excess will be taxable to him as though it were a gain from a sale of the Units.
A loss will be recognized upon a redemption of Units only if, following the
redemption of all of a Limited Partner's Units, such Partner has any tax basis
in his Units remaining. In such case, the Limited Partner will recognize loss to
the extent of such remaining basis. See "Redemptions." Generally, if a Limited
Partner is not a "dealer" with respect to his interest in the Partnership and he
has held his interest in the Partnership for more than one year, such gain or
loss would be long-term capital gain or loss.
GAIN OR LOSS ON TRADING ACTIVITY
Because each Partnership will purchase futures interests for
its own account and not for the account of others, because each Partnership will
not maintain an inventory of futures interests and because substantially
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all of the expected return of any combination of each Partnership's futures
interests positions will not be attributable to the time value of such
Partnership's net investment in such positions, for federal income tax purposes
substantially all of the profit and loss generated by each Partnership from its
trading activities will be capital gain and loss, which in turn may be either
short-term, long-term or a combination thereof. Gain or loss with respect to a
"Section 1256 contract" is generally treated as short-term capital gain or loss
to the extent of 40% of such gain or loss, and long-term capital gain or loss to
the extent of 60% of such gain or loss. For individual partners, long-term
capital gains are taxed at a maximum marginal rate of 20%, and short-term
capital gains are taxed at a maximum marginal rate of 39.6%. For corporate
partners, all capital gains are taxed at a maximum marginal rate of 35%.
A "Section 1256 contract" includes a "regulated futures
contract," a "foreign currency contract," a "nonequity option," and a "dealer
equity option." A "regulated futures contract" is a futures contract which is
traded on or subject to the rules of a national securities exchange which is
registered with the SEC, a domestic board of trade designated as a contract
market by the CFTC, or any other board of trade, exchange or other market
designated by the Secretary of the Treasury ("a qualified board or 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, a
foreign currency which is a currency in which positions are also traded through
regulated futures contracts, which is traded in the interbank market, and which
is entered into at arm's length at a price determined by reference to the price
in the interbank market. (The Secretary of the Treasury is authorized to issue
regulations excluding certain currency forward contracts from mark-to-market
treatment.) A "nonequity option" means an option which is traded 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
(i) there is in effect a designation by the CFTC of a contract market for a
contract based on such group of stocks or stock index or (ii) such option is a
cash-settled option on a stock index that the SEC has determined to be "broad
based." A "dealer equity option" means, with respect to an options dealer, any
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.
Each Section 1256 contract held at the end of a Partnership's taxable year will
be treated as having been sold for its fair market value on the last day of such
taxable year, and gain or loss will be taken into account for such year. The
Partnerships expect that a majority of their trading activities will be
conducted in Section 1256 contracts; however, the Partnerships also expect that
a portion of their trading activities will be conducted in contracts that do not
presently qualify as Section 1256 contracts ("non-Section 1256 contracts").
Gain or loss with respect to foreign currency forward and
futures contracts that are not traded on U.S. exchanges or on certain foreign
exchanges designated as "qualified boards or exchanges" by the Internal Revenue
Service, ("foreign currency positions") is treated as capital gain or loss only
if held by an electing "qualified fund." In general, a "qualified fund" is an
electing partnership that: (1) has at least 20 unrelated partners (no one of
which owns more than 20% of the capital or profits of the partnership); (2) has
as a principal activity the buying and selling of options, futures, or forwards
with respect to commodities; and (3) receives at least 90% of its gross income
from interest, dividends, gains from the sale or disposition of capital assets
held for the production of interest or dividends, and income and gain from
futures, forward, and option contracts with respect to commodities. All such
foreign currency positions held by a qualified fund are treated as "Section 1256
contracts" (i.e., marked-to-market at year end) and gain or loss with respect to
all such foreign currency positions is treated as 100% short-term gain or loss.
Gain or loss with respect to "regulated futures contracts," "foreign currency
contracts" and "nonequity options" is treated as 60% long-term gain or loss and
40% short-term gain or loss. The General Partner has made a qualified fund
election for the Partnerships.
Subject to certain limitations, a Limited Partner, other
than a corporation, estate or trust, may elect to carry back net Section 1256
contract losses to each of the three preceding years. Net Section 1256 contract
losses carried back to prior years may only be used to offset net Section 1256
contract gains. Generally, such losses are carried back as 40% short-term
capital losses and 60% long-term capital losses. Capital assets not marked to
market under Section 1256, such as non-currency forward contracts, are not
subject to the 60/40 tax regime for Section 1256 contracts, and gain or loss on
sale generally will be long-term only if such property has been held for more
than one year.
During taxable years in which little or no profit is
generated from trading activities, a Limited Partner may still have interest
income.
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The Partnerships may eventually engage in spread and
straddle trading (i.e., holding offsetting positions whereby the risk of loss
from holding either or both position(s) is substantially diminished). Realized
losses with respect to any position in a spread or straddle are taken into
account for federal income tax purposes only to the extent that the losses
exceed unrecognized gain (at the end of the taxable year) from offsetting
positions, successor positions, or offsetting positions to the successor
positions. Thus, spreads and straddles may not be used to defer gain from one
taxable year to the next. For purposes of applying the above rules restricting
the deductibility of losses with respect to offsetting positions, if a Partner
takes into account gain or loss with respect to a position held by the
Partnership, the Partner will be treated as holding the Partnership's position,
except to the extent otherwise provided in regulations. Accordingly, positions
held by a Partnership may limit the deductibility of realized losses sustained
by a Limited Partner with respect to positions held for his own account, and
positions held by a Limited Partner for his own account may limit his ability to
deduct realized losses sustained by a Partnership. Reporting requirements
generally require taxpayers to disclose all unrecognized gains with respect to
positions held at the end of the taxable year. The above principle, whereby a
Limited Partner may be treated as holding Partnership positions, may also apply
to require a Limited Partner to capitalize (rather than deduct) interest and
carrying charges allocable to property held by him. A portion of the gain on a
"conversion transaction," including spread and straddle trading, may be
characterized as ordinary income where substantially all of the expected return
is attributable to the time value of the net investment in the transaction.
Pursuant to current Proposed and Temporary Treasury
Regulations, the holding period of any position included in a straddle begins
anew when the straddle is terminated unless the position was held for more than
the long-term capital gain and loss holding period before the straddle was
established. Further, the loss on any position included in a straddle will be
treated as a long-term capital loss if, at the time the loss position was
acquired, the taxpayer held offsetting positions with respect to such loss
position that would give rise only to long-term capital loss if such offsetting
positions were disposed of on the day the loss position was acquired.
Where the positions of a straddle are comprised of both
Section 1256 and non-Section 1256 contracts, a Partnership will be subject to
the mixed straddle rules of the Code and the regulations promulgated thereunder.
The appropriate tax treatment of any gains and losses from trading in mixed
straddles will depend on which of the following four alternatives a Partnership
elects to pursue. A Partnership may elect to treat Section 1256 positions as
non-Section 1256 positions, and the mixed straddle would be subject to the rules
governing non-Section 1256 straddles. Alternatively, a Partnership may identify
the positions of a particular straddle as an "identified mixed straddle" under
Section 1092(b)(2) of the Code and, thereby, net the capital gain or loss
attributable to the offsetting positions. The net capital gain or loss is
treated as 60% long-term and 40% short-term capital gain or loss if attributable
to the Section 1256 positions, or all short-term capital gain or loss if
attributable to the non-Section 1256 positions. Alternatively, a Partnership may
place the positions in a "mixed straddle" account which is marked-to-market
daily. Under a special account cap, not more than 50% of net capital gain may be
long-term capital gain, and not more than 40% of net capital loss may be
short-term capital loss. If a Partnership does not make any of the
aforementioned three elections, any net loss attributable to either the Section
1256 or the non-Section 1256 positions will be treated as 60% long-term and 40%
short-term capital loss, while any net gain will be treated as 60% long-term and
40% short-term capital gain, or all short-term capital gain, depending upon
whether the net gain was attributable to Section 1256 positions or non-Section
1256 positions.
TAXATION OF LIMITED PARTNERS
Limitations on Deductibility of Partnership
Losses. The amount of Partnership loss, including capital loss, which a
Limited Partner will be entitled to take into account for federal income tax
purposes is limited to the lesser of the tax basis of his Units or (in the case
of certain Limited Partners, including individuals and closely-held C
corporations) the amounts for which he is "at risk" with respect to such
interest as of the end of the Partnership's taxable year in which such loss
occurred.
Generally, a Limited Partner's initial tax basis will be the
amount paid for each Unit. A Limited Partner's adjusted tax basis will be his
initial tax basis reduced by the Limited Partner's share of Partnership
distributions, losses and expenses and increased by his share of Partnership
income, including gains. The amount for which a Limited Partner is "at risk"
with respect to his interest in a Partnership is generally equal to his tax
basis for such interest, less: (i) any amounts borrowed in connection with his
acquisition of such interest for which he is not personally liable and for which
he has pledged no property other than his interest; (ii) any amounts borrowed
from persons who have a proprietary interest in such Partnership; and (iii) any
amounts borrowed for which the Limited Partner is protected against loss through
guarantees or similar arrangements.
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Because of the limitations imposed upon the deductibility of
capital losses referred to below, a Limited Partner's share of a Partnership's
net capital losses, if any, will not materially reduce his federal income tax on
his ordinary income. In addition, certain expenses of a Partnership might be
deductible by a Partner only as so-called itemized deductions and, therefore,
will not reduce the federal taxable income of a Partner who does not itemize his
deductions. Furthermore, an individual who is subject to the alternative minimum
tax for a taxable year will not realize any tax benefit from such itemized
deductions.
Limitations on Deductibility of Passive Losses. In
general, losses from a passive activity ("passive losses") are disallowed to the
extent such losses exceed income from all passive activities ("passive income").
A passive activity is defined as a trade or business in which the taxpayer does
not materially participate unless otherwise provided in Treasury Regulations.
Proposed and Temporary Treasury Regulations provide that the
trading of personal property, such as commodities, will not be treated as a
passive activity. Accordingly, a Limited Partner's distributive share of items
of income, gain, deduction, or loss from a Partnership will not be treated as
passive income or loss and Partnership gains allocable to Limited Partners will
not be available to offset passive losses from sources outside such Partnership.
Partnership gains allocable to Limited Partners will, however, be available to
offset losses with respect to "portfolio" investments, such as stocks and bonds.
Moreover, any Partnership losses allocable to Limited Partners will be available
to offset other income, regardless of source. Final Treasury Regulations may
modify the Proposed and Temporary Regulations, and such regulations may be
retroactive in effect.
Limited Deduction of Certain Expenses. Certain
miscellaneous itemized deductions, such as expenses incurred to maintain
property held for investment, are deductible only to the extent that they exceed
2% of the adjusted gross income of an individual, trust or estate. The amount of
certain itemized deductions allowable to individuals is further reduced by an
amount equal to the lesser of (i) 3% of the individual's adjusted gross income
in excess of a certain threshold amount (for tax years beginning in 1998, this
amount is $124,500 ($62,250 in the case of married individuals filing a separate
return)) and (ii) 80% of such itemized deductions. Moreover, such investment
expenses are miscellaneous itemized deductions that are not deductible by a non-
corporate taxpayer in calculating its alternative minimum tax liability. Based
upon the current and contemplated activities of the Partnerships, the General
Partner has been advised by its legal counsel that, in such counsel's opinion,
expenses incurred by the Partnerships in their futures interests trading
businesses should not be subject to the 2% "floor" or the 3% phaseout, except to
the extent that the Internal Revenue Service promulgates regulations that so
provide. However, such advice is not binding on a court or the Internal Revenue
Service, and the Internal Revenue Service could assert, and a court could agree,
that such Partnership expenses (including incentive fees) are investment
expenses which are subject to these limitations.
Tax on Capital Gains and Losses. For individuals,
trusts and estates, "long-term capital gains" are currently taxed at a maximum
marginal tax rate of 20%, and short-term capital gains and other income are
taxed at a maximum marginal tax rate of 39.6%. Corporate taxpayers are currently
subject to a maximum marginal tax rate of 35% on all capital gains and income.
The excess of capital losses over capital gains is
deductible by an individual against ordinary income on a one-for-one basis,
subject to an annual limitation of $3,000 ($1,500 in the case of married
individuals filing a separate return). Excess capital losses may be carried
forward.
Net losses from Section 1256 contracts are treated as 60%
long-term capital loss and 40% short-term capital loss. Such losses may, at the
individual taxpayer's election, be carried back to each of the preceding three
years and applied against gains from Section 1256 contracts.
Alternative Minimum Tax. An alternative minimum tax
may be imposed on Limited Partners, depending on their particular circumstances.
This tax, with respect to taxpayers other than corporations, will be assessed to
the extent that 26% of the first $175,000 ($87,500 for married individuals
filing a separate return) of "alternative minimum taxable income" in excess of
the exemption amount ($45,000 in the case of married taxpayers filing joint
returns or a surviving spouse; $33,750 in the case of an unmarried taxpayer who
is not a surviving spouse; or $22,500 in the case of a married individual filing
a separate return or an estate or trust) plus 28% of the balance of such excess
exceeds the taxpayer's regular federal income tax liability (subject to special
modification) for the year. The alternative minimum tax exemption is phased-out
for individual taxpayers with alternative minimum taxable income in excess of
$112,500 ($150,000 for married taxpayers filing a joint return and surviving
spouses; $75,000 for married individuals filing separate returns, estates and
trusts). "Alternative minimum taxable income" is equal to adjusted gross income
computed without deducting
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<PAGE>
normal net operating losses, less specified net operating losses, credits, trust
distributions and itemized deductions, and increased by certain tax preferences.
Long-term capital gains are taxed at a maximum rate of 20%. The limitation on
the long-term capital gains rate does not give rise to an adjustment or increase
in "alternative minimum taxable income." Therefore, transactions in Section 1256
contracts should not directly affect the application of the alternative minimum
tax. The extent, if any, to which the alternative minimum tax will be imposed
will depend on the overall tax situation of each Limited Partner at the end of
each such taxable year.
Limitation on Deductibility of Interest on Investment
Indebtedness. Interest paid or accrued on indebtedness properly
allocable to property held for investment is investment interest. Such interest
is generally deductible by non-corporate taxpayers only to the extent it does
not exceed net investment income. A Limited Partner's distributive share of net
Partnership income and any gain from the disposition of Units will be treated as
investment income, except that a Limited Partner's net capital gain from the
disposition of Units is not investment income unless the Limited Partner waives
the benefit of the preferential tax rate on such gain. It is not clear whether a
Limited Partner's distributive share of Partnership net capital gain constitutes
investment income where such gain is taxed at the maximum rate for capital
gains. Interest expense incurred by a Limited Partner to acquire his Units
generally will be investment interest. Any investment interest disallowed as a
deduction in a taxable year solely by reason of the limitation above is treated
as investment interest paid or accrued in the succeeding taxable year.
Taxation of Foreign Limited Partners. A Limited
Partner who is a non-resident alien individual, foreign corporation, foreign
partnership, foreign trust or foreign estate (a "Foreign Limited Partner")
generally is not subject to taxation by the United States on United States
source capital gains from commodity trading for a taxable year, provided that
such Foreign Limited Partner does not have certain present or former connections
with the United States (e.g., if the Foreign Limited Partner (in the case of an
individual) does not spend more than 182 days in the United States during his
taxable year (or, in certain limited circumstances, a prior taxable year) or if
the Foreign Limited Partner is not engaged in a trade or business within the
United States during the taxable year or, in certain limited circumstances, a
prior taxable year to which income, gain, or loss from a Partnership is treated
as effectively connected).
Pursuant to a "safe harbor" provision of the Code, a Foreign
Limited Partner would not be engaged in a trade or business within the United
States solely because such Foreign Limited Partner is a partner of a partnership
which effects transactions in the United States in commodities for the
partnership's own account, as long as neither the foreign limited partner nor
the partnership is a dealer in commodities and as long as the partnership only
trades commodities which are of a kind customarily dealt in on an organized
commodity exchange in transactions of a kind customarily consummated on such an
exchange. The Partnerships have been advised by the General Partner's counsel
that, in such counsel's opinion, each Partnership's commodities transactions
should satisfy the safe harbor, and that owning an interest in a Partnership
should not, in such counsel's opinion, by itself, cause a Foreign Limited
Partner that is not a dealer in commodities to be engaged in a trade or business
within the United States. In the event that future Partnership transactions are
not covered by the safe harbor, there is a risk that all of a Foreign Limited
Partner's distributive share of income of a Partnership would be treated as
effectively connected with the conduct of a trade or business in the United
States and taxed at regular rates (discussed previously) and, in the case of a
Foreign Limited Partner which is a foreign corporation, an additional 30% branch
profits tax (unless reduced or eliminated by treaty).
If a Foreign Limited Partner is a dealer in commodities, or
is otherwise engaged in a U.S. trade or business and if income, gain or loss
from a Partnership is treated as effectively connected with such trade or
business, such Partnership may be required to withhold tax on income allocable
to such Foreign Limited Partner and remit to the Internal Revenue Service an
amount equal to 39.6% (35% for corporations) of the amount of such effectively
connected taxable income allocable to such Foreign Limited Partner. Any amounts
remitted will constitute a refundable credit against the Foreign Limited
Partner's United States federal income tax liability, which can be claimed on
the Foreign Limited Partner's United States federal income tax return. Foreign
Limited Partners that are corporations and derive effectively connected income
from the Partnerships may also be required to pay a branch profits tax at a 30%
rate unless reduced by an applicable tax treaty.
A foreign person generally is subject to a 30% withholding
tax (unless reduced or exempted by treaty) on certain types of United States
source income that are not effectively connected with the conduct of a United
States trade or business, such as certain interest-bearing obligations, the
income attributable to which is not exempt from tax. This tax must be withheld
by the person having control over the payment of such income. Accordingly, a
Partnership may be required to withhold tax on items of such income which are
included in the
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<PAGE>
distributive share (whether or not actually distributed) of a Foreign Limited
Partner. However, 30% withholding is not required in respect of certain interest
bearing obligations, such as "portfolio interest" obligations issued after July
18, 1984 (if procedural requirements are complied with). If a Partnership is
required to withhold tax on such income of a Foreign Limited Partner, the
General Partner may pay such tax out of its own funds and then be reimbursed out
of the proceeds of any distribution to or redemption of Units by the Foreign
Limited Partner.
The estate of a deceased Foreign Limited Partner may be
liable for U.S. estate tax and may be required to obtain an estate tax release
from the Internal Revenue Service in order to transfer the Units of such Foreign
Limited Partner.
FOREIGN PERSONS SHOULD CONSULT THEIR OWN TAX ADVISERS BEFORE
DECIDING WHETHER TO INVEST IN THE PARTNERSHIPS.
Tax Elections. The Code provides for optional
adjustments to the basis of Partnership property upon distributions of
Partnership property to a Partner (Section 734) and transfers of Units,
including transfers by reason of death (Section 743), provided that a
Partnership election has been made pursuant to Section 754. As a result of the
complexities and added expense of the tax accounting required to implement such
an election, the General Partner does not presently intend to make such an
election. Therefore, any benefits which might be available to the Partners by
reason of such an election will be foreclosed.
Tax Returns and Information. The Partnerships will
file their information returns using the accrual method of accounting. Within 75
days after the close of each Partnership's taxable year, the Partnership will
furnish each Limited Partner (and any assignee of the Unit of any Limited
Partner) copies of (i) the Partnership's Schedule K-1 indicating the Limited
Partner's distributive share of tax items and (ii) such additional information
as is reasonably necessary to permit the Limited Partners to prepare their own
federal and state tax returns.
Partnership's Tax Accounting. Each Partnership has
the calendar year as its taxable year.
Unrelated Business Taxable Income of Employee Benefit Plan
Limited Partners and Other Tax-Exempt Investors. Income allocated to a
Limited Partner which is an employee benefit plan or other tax-exempt entity
should not be subject to tax under Section 511 of the Code, provided that the
Units purchased by such plans and entities are not "debt-financed." Such
investors should see "Purchases by Employee Benefit Plans--ERISA
Considerations."
TAX AUDITS
All Partners are required under the Code to report all the
Partnership items on their own returns consistently with the treatment by a
Partnership, unless they file a statement with the Internal Revenue Service
disclosing the inconsistencies. Adjustments in tax liability with respect to
Partnership items will be made at the Partnership level. The General Partner
will represent each Partnership during any audit and in any dispute with the
Internal Revenue Service. Each Limited Partner will be informed by the General
Partner of the commencement of an audit of a Partnership. In general, the
General Partner may enter into a settlement agreement with the Internal Revenue
Service on behalf of, and binding upon, certain Limited Partners (i.e., Limited
Partners owning less than a 1% profits interest if the Partnership has more than
100 Partners). However, prior to settlement, a Limited Partner may file a
statement with the Internal Revenue Service stating that the General Partner
does not have the authority to settle on behalf of such Limited Partner.
The period for assessing a deficiency against a partner in a
partnership, such as any of the Partnerships, with respect to a partnership item
is the later of three years after such partnership files its return or, if the
name and address of the partner does not appear on such partnership return, one
year after the Internal Revenue Service is furnished with the name and address
of the partner. In addition, the General Partner may consent on behalf of each
Partnership to the extension of the period for assessing a deficiency with
respect to a Partnership item. As a result, a Limited Partner's federal income
tax return may be subject to examination and adjustment by the Internal Revenue
Service for a Partnership item more than three years after it has been filed.
- --------------------------------------------------------------------------------
All of the foregoing statements are based upon the existing
provisions of the Code and the regulations promulgated thereunder and the
existing administrative and judicial interpretations thereof. It is emphasized
that no assurance can be given that legislative, administrative or judicial
changes will not occur which will modify such statements.
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<PAGE>
The foregoing statements are not intended as a substitute
for careful tax planning, particularly since certain of the federal income tax
consequences of purchasing an interest in the Partnerships may not be the same
for all taxpayers. There can be no assurance that the Partnerships' tax returns
will not be audited by the Internal Revenue Service or that no adjustments to
the returns will be made as a result of such audits. If an audit results in
adjustment, Limited Partners may be required to file amended returns and their
returns may be audited. Accordingly, prospective purchasers of an interest in
the Partnerships are urged to consult their tax advisers with specific reference
to their own tax situation under federal law and the provisions of applicable
state, local and foreign laws before subscribing for Units.
STATE AND LOCAL INCOME TAX ASPECTS
In addition to the federal income tax consequences for
individuals described under "Material Federal Income Tax Considerations" above,
the Partnerships and their Limited Partners may be subject to various state and
local taxes. Certain of such taxes could, if applicable, have a significant
effect on the amount of tax payable in respect of an investment in the
Partnerships. A Limited Partner's distributive share of the realized profits of
a Partnership may be required to be included in determining his reportable
income for state or local tax purposes. Furthermore, state and local tax laws
may not reflect recent changes made to the federal income tax law and hence may
be inconsistent with the federal income treatment of gains and losses arising
from the Partnerships' transactions in Section 1256 contracts. Accordingly,
prospective Limited Partners should consult with their own tax advisers
concerning the applicability of state and local taxes to an investment in the
Partnerships.
The General Partner has been advised by its legal counsel,
Cadwalader, Wickersham & Taft, that in such counsel's opinion, the Partnerships
should not be liable for New York City unincorporated business tax. Limited
Partners who are nonresidents of New York State will not be liable for New York
State personal income tax on such Partners' income from the Partnerships, but
may be liable for such tax to the extent such Limited Partners' allocable share
of income attributable to the Partnerships' transactions involves tangible
personal property. Likewise, Limited Partners who are nonresidents of New York
City will not be liable for New York City earnings tax on such Partners' income
from the Partnerships. New York City residents may be subject to New York City
personal income tax on such Partners' income from the Partnerships. No ruling
from the New York State Department of Taxation and Finance or the New York City
Department of Finance has been, or will be, requested regarding such matters.
POTENTIAL ADVANTAGES
An investment in a Partnership is speculative and involves a
high degree of risk. See "Risk Factors." The General Partner and DWR believe
that managed futures investments (such as a Partnership) provide investors with
the potential for long-term capital appreciation (with commensurate risk) and
are appropriate only for the aggressive growth portion of an investor's
comprehensive financial plan. See "Risk Factors." However, such an investment
offers the following potential advantages.
INVESTMENT DIVERSIFICATION
An investor who is not prepared to make a significant
investment or spend substantial time trading various futures interests
nevertheless may participate in these markets through an investment in a
Partnership, thereby obtaining diversification from investments in stocks,
bonds, and real estate. The General Partner believes, on the basis of past
experience, that the profit potential of a Partnership does not depend upon
favorable general economic conditions, and that a Partnership is as likely to be
profitable during periods of declining stock, bond, and real estate markets as
at any other time; conversely, a Partnership may be unprofitable (as well as
profitable) during periods of generally favorable economic conditions.
Managed futures investments can serve to diversify a
portfolio and smooth overall portfolio volatility. Modern Portfolio Theory
("MPT") is the academic affirmation of the value of diversification. MPT was
developed in the 1950s by Nobel Laureates William Sharpe and Harold Markowitz.
These two pioneers developed a framework for efficiently diversifying assets
within a portfolio. They suggested that investing in any asset class with
positive returns and low correlation to other assets improves the overall
risk/reward characteristics of the entire portfolio. In 1983, Dr. John H.
Lintner of Harvard University focused on the concepts of MPT in a
ground-breaking study about portfolio diversification. The results of Lintner's
work demonstrated that by including a variety of assets, such as commodities, in
a hypothetical portfolio an investor may lower the portfolio's overall
volatility or risk.
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<PAGE>
The Partnerships' combined benefits of growth potential
(with commensurate risk) and diversification can potentially reduce overall
portfolio volatility while increasing profits. By combining asset classes,
investors strive to create a portfolio mix that provides the potential to offer
the greatest possible return within acceptable levels of volatility. Thus, while
past performance is no guarantee of future results, managed futures investments,
such as the Partnerships, may profit (with commensurate risk) from futures
interests market moves, with the potential to enhance an investor's overall
portfolio.
Each Money Manager's speculative trading techniques will be
the primary factor in a Partnership's success or failure. Investors should note
that there are always two parties to a futures or forward contract;
consequently, for any gain achieved by one party on a contract, a corresponding
loss is suffered by the other. Therefore, due to the nature of futures and
forward trading, only 50% of futures and forward contracts held by all market
participants can experience gain at any one time, without reference to brokerage
commissions and other costs of trading, which may reduce or eliminate any gain
that would otherwise be achieved.
The table below is an empirical example of how different
assets can react to business cycles. In each case, the asset class is
represented by a recognized industry index for that asset.
ANNUAL RETURNS OF VARIOUS ASSET CLASSES OVER TIME
<TABLE>
<CAPTION>
U.S. TREASURY
BONDS (LEHMAN
BROTHERS MANAGED
STOCKS TREASURY INT'L STOCKS FUTURES (BARCLAY
(S&P 500) BOND INDEX) (EAFE INDEX) CTA INDEX)
--------- -------------- ------------ ----------------
<S> <C> <C> <C> <C>
% % % %
1981 -5.0 1.14 -1.0 23.9
1982 21.6 41.11 -0.9 16.7
1983 22.5 1.80 24.6 23.8
1984 6.2 14.68 7.9 8.7
1985 31.7 32.01 56.7 25.5
1986 18.6 24.15 70.0 3.8
1987 5.2 -2.66 24.9 57.3
1988 16.5 9.14 28.6 21.8
1989 31.6 18.89 10.8 1.8
1990 -3.1 4.56 -23.2 21.0
1991 30.4 17.85 12.5 3.7
1992 7.6 7.83 -11.8 -0.9
1993 10.1 16.37 32.9 10.4
1994 1.3 -6.92 8.1 -0.7
1995 37.5 30.70 11.5 13.7
1996 23.0 -0.41 6.4 9.2
1997 33.4 14.87 2.1 10.2
</TABLE>
Notes to "Annual Returns of Various Asset Classes Over Time" Table:
The S&P 500 Index and EAFE Index performance data for stocks
and international stocks, respectively, are provided by Thomson Investment
Software, Rockville, MD. The Lehman Brothers Treasury Bond Index and the Barclay
CTA Index performance data for U.S. Treasury bonds and managed futures,
respectively, are provided by the Barclay Trading Group Ltd., Fairfield, IA.
Performance of any of these indices (which, by definition, are averages of many
individual investments) may not be representative of any specific investment
within that index's asset class.
THE PERFORMANCE INFORMATION OF THE ASSET CLASSES ABOVE DOES
NOT REFLECT THE EFFECT OF FEES IDENTICAL TO THOSE TO BE PAID BY THE
PARTNERSHIPS, INCLUDING MANAGEMENT, INCENTIVE, AND BROKERAGE FEES. PAST
PERFORMANCE IS NO GUARANTEE OF FUTURE RESULTS. NOTE THAT WHILE THE BARCLAY CTA
INDEX REFLECTS RESULTS NET OF ACTUAL FEES AND EXPENSES, IT INCLUDES ACCOUNTS
WITH TRADING ADVISORS AND FEE STRUCTURES THAT DIFFER FROM PUBLIC MANAGED FUTURES
FUNDS (SUCH AS THE PARTNERSHIPS). ALSO, THE
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<PAGE>
PARTNERSHIPS' TRADING STRATEGIES MAY BE DIFFERENT FROM THE TRADING STRATEGIES
EMPLOYED BY THE TRADING ADVISORS INCLUDED IN THE BARCLAY CTA INDEX. ACCORDINGLY,
WHILE THE BARCLAY CTA INDEX IS BELIEVED TO BE REPRESENTATIVE OF MANAGED FUTURES
IN GENERAL, THE PERFORMANCE OF PUBLIC MANAGED FUTURES FUNDS AS A SUBCLASS, OR
INDIVIDUALLY (IN PARTICULAR THE PARTNERSHIPS), MAY DIFFER.
- --------------------------------------------------------------------------------
Over time, managed futures investments have demonstrated
that they have the potential to perform independently of traditional markets
such as stocks and bonds. The factors that influence the stock and bond markets
can affect the futures markets in different ways and to varying degrees. In this
connection, an article in the June 8, 1998 issue of BUSINESS WEEK, "Commodities
Are Cheap--Time to Leap?" discusses the risks and potential rewards of investing
in managed futures funds, noting the low correlation of their performance to
stocks and bonds.
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<PAGE>
The following chart illustrates the performance of managed
futures against that of stocks from 1982 through 1997, using the recognized
market indices of each asset.
Managed Futures vs. Stocks
12-month holding periods
S&P 500 Index BARCLAY'S CTA INDEX
12/81 -4.93% 23.90%
1/82 -2.05% 19.68%
2/82 -9.17% 22.38%
3/82 -13.10% 36.81%
4/82 -7.44% 34.16%
5/82 -10.76% 33.64%
6/82 -11.57% 22.58%
7/82 -13.25% 14.52%
8/82 3.33% 15.91%
9/82 9.96% 30.14%
10/82 16.32% 29.02%
11/82 16.21% 14.97%
12/82 21.45% 16.68%
1/83 27.61% 35.84%
2/83 38.28% 19.89%
3/83 44.12% 13.97%
4/83 48.81% 13.88%
5/83 52.66% 21.23%
6/83 61.03% 3.85%
7/83 59.06% 17.83%
8/83 43.89% 23.21%
9/83 44.04% 12.85%
10/83 27.76% 18.58%
11/83 25.43% 19.50%
12/83 22.47% 23.75%
1/84 17.39% 6.22%
2/84 10.74% 15.67%
3/84 8.71% 15.59%
4/84 1.66% 13.59%
5/84 -3.16% 7.70%
6/84 -4.84% 6.16%
7/84 -3.08% 24.90%
8/84 5.99% 5.36%
9/84 4.63% 9.35%
10/84 6.22% 2.87%
11/84 2.89% 4.15%
12/84 6.10% 8.74%
1/85 15.06% 9.78%
2/85 20.67% 16.02%
3/85 18.65% 12.57%
4/85 17.48% 13.21%
5/85 31.66% 10.18%
6/85 31.02% 16.27%
7/85 32.48% 9.21%
8/85 18.28% 16.78%
9/85 14.61% 3.67%
10/85 19.40% 15.37%
11/85 29.06% 24.49%
12/85 31.83% 25.50%
1/86 22.90% 24.64%
2/86 30.55% 35.92%
3/86 37.73% 45.10%
4/86 36.35% 38.81%
5/86 35.70% 31.60%
6/86 35.84% 36.26%
7/86 28.36% 23.46%
8/86 39.11% 31.90%
9/86 31.64% 34.95%
10/86 33.15% 21.01%
11/86 27.55% 13.05%
12/86 18.54% 3.82%
1/87 33.88% 12.63%
2/87 29.39% -0.72%
3/87 26.08% -2.84%
4/87 26.34% 26.48%
5/87 20.94% 29.26%
6/87 24.86% 26.93%
7/87 39.02% 28.75%
8/87 34.23% 20.42%
9/87 43.16% 28.42%
10/87 6.22% 34.78%
11/87 -4.78% 49.66%
12/87 5.20% 57.27%
1/88 -3.33% 39.63%
2/88 -2.77% 39.76%
3/88 -8.35% 30.57%
4/88 -6.41% 2.74%
5/88 -6.59% 13.99%
6/88 -6.95% 50.09%
7/88 -11.73% 31.52%
8/88 -17.94% 34.50%
9/88 -12.49% 34.61%
10/88 14.71% 36.00%
11/88 22.96% 28.51%
12/88 16.33% 21.76%
1/89 19.79% 25.93%
2/89 11.65% 20.71%
3/89 17.87% 29.56%
4/89 22.64% 31.52%
5/89 26.54% 35.10%
6/89 20.37% 7.40%
7/89 31.72% 15.00%
8/89 39.10% 7.71%
9/89 32.83% 3.61%
10/89 26.12% -3.91%
11/89 30.61% -4.21%
12/89 31.37% 1.80%
1/90 14.25% 1.86%
2/90 18.59% 6.36%
3/90 18.94% 5.71%
4/90 10.24% 13.34%
5/90 16.29% -4.29%
6/90 16.18% -4.34%
7/90 6.27% 2.83%
8/90 -5.11% 16.50%
9/90 -9.30% 23.49%
10/90 -7.44% 32.87%
11/90 -3.44% 29.27%
12/90 -3.07% 21.02%
1/91 8.45% 13.35%
2/91 14.78% 11.53%
3/91 14.56% 12.89%
4/91 17.73% 5.95%
5/91 11.92% 10.30%
6/91 7.53% 11.85%
7/91 12.92% 2.34%
8/91 26.95% -5.91%
9/91 31.09% -5.97%
10/91 33.32% -7.88%
11/91 20.28% -7.21%
12/91 30.34% 3.73%
1/92 22.61% 4.13%
2/92 15.96% 2.26%
3/92 10.99% -3.71%
4/92 13.97% -2.64%
5/92 9.81% -1.77%
6/92 13.26% -0.07%
7/92 12.61% 7.86%
8/92 7.77% 12.50%
9/92 10.94% 7.76%
10/92 9.96% 8.96%
11/92 18.44% 9.97%
12/92 7.71% -0.91%
1/93 10.55% 1.91%
2/93 10.66% 10.36%
3/93 15.18% 11.84%
4/93 9.25% 16.34%
5/93 11.65% 17.93%
6/93 13.69% 14.02%
7/93 8.78% 13.36%
8/93 15.34% 7.37%
9/93 13.06% 8.20%
10/93 14.97% 7.37%
11/93 10.07% 6.26%
12/93 9.97% 10.37%
1/94 12.80% 8.69%
2/94 8.23% 1.57%
3/94 1.45% 4.16%
4/94 5.29% -0.86%
5/94 4.26% 1.27%
6/94 1.46% 2.79%
7/94 5.22% -1.92%
8/94 5.53% -1.92%
9/94 3.72% 0.59%
10/94 3.82% 1.25%
11/94 1.09% 2.80%
12/94 1.39% -0.65%
1/95 0.61% 0.90%
2/95 7.44% 5.85%
3/95 15.63% 10.41%
4/95 17.46% 13.71%
5/95 20.24% 11.20%
6/95 26.03% 7.09%
7/95 26.03% 6.88%
8/95 21.42% 12.88%
9/95 29.76% 10.86%
10/95 26.47% 10.74%
11/95 36.97% 10.05%
12/95 37.51% 13.64%
1/96 38.58% 18.77%
2/96 34.71% 9.38%
3/96 32.10% 3.39%
4/96 30.17% 8.28%
5/96 28.42% 5.62%
6/96 26.03% 6.63%
7/96 16.53% 6.19%
8/96 18.74% 2.92%
9/96 20.33% 5.35%
10/96 24.07% 11.17%
11/96 27.88% 13.84%
12/96 22.98% 9.12%
1/97 26.19% 10.42%
2/97 26.07% 20.00%
3/97 19.70% 18.59%
4/97 25.01% 10.37%
5/97 29.40% 12.94%
6/97 34.68% 13.43%
7/97 52.15% 21.88%
8/97 40.68% 17.97%
9/97 40.55% 16.58%
10/97 32.21% 8.74%
11/97 28.64% 6.59%
12/97 33.50% 10.89%
1/98 27.09% 7.41%
2/98 35.15% 2.76%
3/98 48.12% 3.97%
Notes to "Managed Futures vs. Stocks" Table:
Stocks are represented by the S&P 500 Index, Thomson
Investment Software, Rockville, MD; managed futures are represented by the
Barclay CTA Index, Barclay Trading Group Ltd., Fairfield, IA. Each bar
represents the asset class performance derived from successive 12-month
hypothetical holding periods or windows. (A 12-month holding period is defined
as a period of 12 consecutive months, i.e., from January 1989 to December 1989;
the next would be from February 1989 to January 1990, etc.) Performance of any
of these indices (which, by definition, are averages of many individual
investments) may not be representative of any specific investment within that
index's asset class.
By overlaying returns, investors can see the potential
benefits of a diversified portfolio that includes both traditional asset classes
as well as assets that are non-traditional and non-correlated. There are many
times when both the managed futures and stock indices showed positive
performance. Obviously, though, there is no investment that only appreciates.
There are 18 periods when managed futures showed negative returns, while stocks
experienced 26 periods of negative returns during the studied time frame. While
not a guarantee of future results, this chart provides clear indication of the
non-correlated aspect of managed futures. This non-correlation enables investors
with managed futures to potentially lower the overall volatility of their
portfolios.
THE PERFORMANCE INFORMATION OF THE ASSET CLASSES ABOVE DOES
NOT REFLECT THE EFFECT OF FEES IDENTICAL TO THOSE TO BE PAID BY THE
PARTNERSHIPS, INCLUDING MANAGEMENT, INCENTIVE, AND BROKERAGE FEES. PAST
PERFORMANCE IS NO GUARANTEE OF FUTURE RESULTS. NOTE THAT WHILE THE BARCLAY CTA
INDEX REFLECTS RESULTS NET OF ACTUAL FEES AND EXPENSES, IT INCLUDES ACCOUNTS
WITH TRADING ADVISORS AND FEE STRUCTURES THAT DIFFER FROM PUBLIC MANAGED FUTURES
FUNDS (SUCH AS THE PARTNERSHIPS). ALSO, THE PARTNERSHIPS' TRADING STRATEGIES MAY
BE DIFFERENT FROM THE TRADING STRATEGIES EMPLOYED BY THE TRADING ADVISORS
INCLUDED IN THE BARCLAY CTA INDEX. ACCORDINGLY, WHILE THE BARCLAY CTA INDEX IS
BELIEVED TO BE REPRESENTATIVE OF MANAGED FUTURES IN GENERAL, THE PERFORMANCE OF
PUBLIC MANAGED FUTURES FUNDS AS A SUBCLASS, OR INDIVIDUALLY (IN PARTICULAR, THE
PARTNERSHIPS), MAY DIFFER.
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The following chart illustrates the risk/return
characteristics of a portfolio consisting of different combinations of domestic
stocks, corporate bonds, international equities and/or managed futures, based on
the performance of recognized market indices of each asset over the period
January 1981 - March 1998.
Improved Portfolio Efficiency
Portfolio Efficiency Slide
Risk (VolatilityMonthly Return
<TABLE>
<S> <C> <C>
100% Stocks 4.173% 1.395%
100% Bonds 2.706% 1.025%
100% Int'l Eqs. 5.057% 1.219%
100% Mgd. Futures 5.188% 1.209%
50%stocks/50%Bonds 2.920% 1.210%
50%stocks/30%Bonds/10%Int'l Eqs./10%Mgd. Fut. 2.860% 1.248%
</TABLE>
Notes to "Improved Portfolio Efficiency" Table:
Stocks are represented by the S&P 500 Index, corporate bonds
are represented by the Salomon Corporate Bond Index, and international equities
are represented by the EAFE Index, each provided by Thomson Investment Software,
Rockville, MD; managed futures are represented by the Barclay CTA Index,
provided by the Barclay Trading Group Ltd., Fairfield, IA. Performance of any of
these indices (which, by definition, are averages of many individual
investments) may not be representative of any specific investment within that
index's asset class.
THE PERFORMANCE INFORMATION OF THE ASSET CLASSES ABOVE DOES
NOT REFLECT THE EFFECT OF FEES IDENTICAL TO THOSE TO BE PAID BY THE
PARTNERSHIPS, INCLUDING MANAGEMENT, INCENTIVE, AND BROKERAGE FEES. PAST
PERFORMANCE IS NO GUARANTEE OF FUTURE RESULTS. NOTE THAT WHILE THE BARCLAY CTA
INDEX REFLECTS RESULTS NET OF ACTUAL FEES AND EXPENSES, IT INCLUDES ACCOUNTS
WITH TRADING ADVISORS AND FEE STRUCTURES THAT DIFFER FROM PUBLIC MANAGED FUTURES
FUNDS (SUCH AS THE PARTNERSHIPS). ALSO, THE PARTNERSHIPS' TRADING STRATEGIES MAY
BE DIFFERENT FROM THE TRADING STRATEGIES EMPLOYED BY THE TRADING ADVISORS
INCLUDED IN THE BARCLAY CTA INDEX. ACCORDINGLY, WHILE THE BARCLAY CTA INDEX IS
BELIEVED TO BE REPRESENTATIVE OF MANAGED FUTURES IN GENERAL, THE PERFORMANCE OF
PUBLIC MANAGED FUTURES FUNDS AS A SUBCLASS, OR INDIVIDUALLY (IN PARTICULAR, THE
PARTNERSHIPS), MAY DIFFER.
FUTURES INTERESTS TRADED
Each Partnership normally trades a portfolio of diverse
futures interests, but may trade a greater or lesser number of futures interests
from time to time. Each Limited Partner will obtain greater diversification in
futures interests traded than would be possible trading individually, unless
substantially more than the minimum investment described herein were committed
to the futures interests markets.
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EXCHANGE PRIVILEGE
Subject to certain minimum investment requirements, each
calendar month a Limited Partner may shift his investment among the Partnerships
(a "Series Exchange"). See "Exchange Privilege." This permits a Limited Partner
to select one or more Partnerships which best suit his investment needs and
objectives, which may change from time to time. A Limited Partner is not
required to pay any redemption charges in connection with a Series Exchange.
DIVERSIFIED PROFESSIONAL TRADING MANAGEMENT
Trading decisions for each Partnership will be made by a
Money Manager retained by the General Partner. See "The Trading Advisors." The
trading approaches employed on behalf of each Partnership by its Money Manager
are not available for investments as small as the required minimum investment in
each Partnership. A Limited Partner can diversify his professional trading
management by dividing his investment among one or more of the Partnerships. For
example, an investor owning Units of all three Partnerships would have the
benefit of having his investment managed by three different Money Managers.
LIMITED LIABILITY
Unlike an individual who invests directly in futures
interests, an investor in a Partnership cannot be individually subject to margin
calls and cannot lose more than the amount of his unredeemed capital
contribution, his share of undistributed profits, if any, and, under certain
circumstances, any distributions and amounts received upon redemption, or deemed
received on an Exchange of Units, and interest thereon. See "The Futures,
Options and Forwards Markets," "Redemptions" and "The Limited Partnership
Agreements--Nature of the Partnerships."
INTEREST INCOME
Many commodity brokers permit accounts above a certain size
to deposit margin for futures interests in the form of interest-bearing
obligations, such as U.S. Treasury bills, rather than cash, thus enabling the
account to earn interest on funds being used for futures trading, or such
brokers pay interest at U.S. Treasury bill rates on a portion of the cash
deposited in the account. Each Partnership deposits its assets in separate
commodity trading accounts with the Commodity Brokers. DWR will credit each
Partnership with interest income at month-end at the rate earned by DWR on its
U.S. Treasury bills investments with customer segregated funds as if 100% of
each Partnership's average daily funds (including cash and securities) held in
such Partnership's account with DWR during the month were invested in U.S.
Treasury bills at such rate. In addition, DWR will credit each Partnership with
100% of the interest income DWR receives from CFI with respect to such
Partnership's assets deposited as margin with CFI. It is anticipated that
approximately 80% of each Partnership's average daily funds maintained in
trading accounts will be on deposit with DWR and that approximately 20% of each
Partnership's average daily funds maintained in trading accounts will be on
deposit with CFI, although such percentages will vary from time to time.
Generally, an individual trader would not receive any interest on the funds in
his commodity account unless he committed substantially more than the minimum
investment required for the Partnerships. While the Partnerships are credited
with interest by DWR on the respective percentage of their assets deposited as
margin as described above, the form of margin posted, whether cash or
interest-bearing obligations (such as U.S. Treasury bills), does not reduce the
risks inherent in the trading of futures interests. See "Risk Factors" and
"Investment Programs, Use of Proceeds and Trading Policies."
ADMINISTRATIVE CONVENIENCE
The Partnerships are structured so as to provide Limited
Partners with numerous services designed to alleviate the administrative details
involved in engaging directly in futures interests trading, including monthly
and annual financial reports (showing, among other things, the Net Asset Value
of a Unit, trading profits or losses, and expenses), and all tax information
relating to the Partnerships necessary for Limited Partners to complete their
federal income tax returns.
LEGAL MATTERS
Legal matters in connection with the Units being offered
hereby, including the discussion of the material federal income tax
considerations relating to the acquisition, ownership and disposition of Units,
have been passed upon for each Partnership and the General Partner by
Cadwalader, Wickersham & Taft, 100 Maiden
94
<PAGE>
Lane, New York, New York 10038. Cadwalader, Wickersham & Taft also has acted as
counsel for DWR in connection with the offering of Units. Cadwalader, Wickersham
& Taft may advise the General Partner with respect to its responsibilities as
general partner of, and with respect to matters relating to, the Partnerships.
EXPERTS
The statements of financial condition of Morgan Stanley Dean
Witter Charter Graham L.P., Morgan Stanley Dean Witter Charter Millburn L.P.,
and Morgan Stanley Dean Witter Charter Welton L.P., as of July 20, 1998, and the
statements of financial condition of Demeter Management Corporation as of
November 30, 1997 and December 31, 1996 included in this Prospectus, have been
audited by Deloitte & Touche LLP, independent auditors, as indicated in their
reports with respect thereto in this Prospectus, and are included in reliance
upon their authority as experts in accounting and auditing. Deloitte & Touche
LLP also acts as independent auditors for MSDW.
ADDITIONAL INFORMATION
This Prospectus does not contain all of the information set
forth in the Registration Statements and the exhibits relating thereto that have
been filed with the Securities and Exchange Commission in Washington, D.C. For
further information pertaining to each Partnership and the Units offered hereby,
reference is hereby made to the Registration Statements, including the exhibits
filed as part thereof. The Registration Statements and exhibits are on file at
the offices of the Securities and Exchange Commission, 450 Fifth Street, N.W.,
Room 1024, Judiciary Plaza, Washington, D.C. 20549, and may be examined, without
charge, at the offices of the SEC, and copies may be obtained of all or part
thereof from the SEC upon payment of the prescribed fees.
GLOSSARY
CERTAIN TERMS AND DEFINITIONS
Knowledge of various terms and concepts relating to this
offering is useful for a potential investor in determining whether to invest in
the Partnerships.
"Affiliate"--An "affiliate" of a person means (i) any
natural person, partnership, corporation, association, or other legal entity
directly or indirectly owning, controlling, or holding with power to vote 10% or
more of the outstanding voting securities of such person; (ii) any partnership,
corporation, association, or other legal entity 10% or more of whose outstanding
voting securities are directly or indirectly owned, controlled, or held with
power to vote by such person; (iii) any natural person, partnership,
corporation, association, or other legal entity directly or indirectly
controlling, controlled by, or under common control with, such person; or (iv)
any officer, director or partner of such person.
"Brokerage Fee"--The fee charged by a broker for executing a
trade in a commodity account of a customer. DWR charges a monthly flat-rate
brokerage fee of 1/12 of 7% of Net Assets (a 7% annual rate).
"Churning"--Engaging in excessive trading with respect to a
futures interests account for the purpose of generating brokerage commissions.
"Daily Limits"--Limits imposed by commodity exchanges on the
amount of fluctuation in futures interest prices during a single trading day.
"Forward Contract"--A contractual right to purchase or sell
a specified quantity of currency or commodity at or before a specified date in
the future at a specified price. It is distinguished from a futures contract in
that it is not traded on an exchange and it contains terms and conditions
specifically negotiated by the parties.
"Futures Contract"--Standardized contract made on domestic
or foreign commodity exchanges which calls for the future delivery of a
specified quantity of a commodity at a specified time, place, and price.
"Limit Order"--An order to execute a trade at a specified
price or better. As contrasted with a stop order, a limit order does not become
a market order when the limit price is reached.
"Margin"--Good faith deposits with a broker to assure
fulfillment of a purchase or sale of a commodity futures contract and, under
certain circumstances, a commodity option contract.
"Market Order"--An order to execute a trade at the
prevailing price as soon as possible.
95
<PAGE>
"Net Assets"--A Partnership's "Net Assets" shall mean the
total assets of the Partnership (including, but not limited to, all cash and
cash equivalents (valued at cost), accrued interest and amortization of original
issue discount, and the market value of all open futures interests positions and
other assets of the Partnership), less the total liabilities of the Partnership
(including, but not limited to, all brokerage, management and incentive fees,
ordinary administrative expenses, transaction fees and costs and extraordinary
expenses) determined in accordance with generally accepted accounting principles
consistently applied under the accrual basis of accounting. Unless generally
accepted accounting principles require otherwise, the market value of a futures
interest traded on a United States exchange shall be determined using the
settlement price on the exchange on which the particular futures interest was
traded by a Partnership on the day with respect to which Net Assets are being
determined; provided, however, that if a futures interest could not have been
liquidated on such day due to the operation of daily limits or other rules of
the exchange upon which that futures interest shall be traded or otherwise, the
settlement price on the first subsequent day on which the futures interest could
be liquidated shall be the market value of such futures interest for such day.
The market value of a futures interest traded on a foreign exchange shall mean
its market value as determined by the General Partner on a basis consistently
applied for each different variety of futures interest.
"Net Asset Value Per Unit"--The Net Assets allocated to
capital accounts represented by Units of Limited Partnership Interest divided by
the aggregate number of Units outstanding on the date of calculation.
"Option"--An option on a futures contract or a physical
commodity gives the buyer of the option the right, as opposed to the obligation,
to take a position at a specified price in an underlying futures contract or
commodity.
"Organizational and Offering Expenses"--Costs incurred in
the organization of a Partnership and the offering of Units, including legal,
accounting and auditing fees, printing costs, filing fees, escrow fees,
marketing costs and expenses, and other related expenses.
"Pyramiding"--Using unrealized profits on existing positions
in a given futures interest due to favorable price movements as margin
specifically to buy or sell additional positions in the same or related futures
interest.
"Settlement Price"--The closing price for futures contracts
in a particular commodity established by the clearinghouse or exchange after the
close of each day's trading.
"Speculative Position Limits"--Limits established by the
CFTC and United States commodity exchanges on the maximum net long or short
speculative positions which a person or group of persons may hold, own, or
control in futures interests.
"Spot Contract"--A cash market transaction in which the
buyer and seller agree to the immediate purchase and sale of a specific
commodity lot, usually with a two-day settlement.
"Stop Order"--An order given to a broker to execute a trade
in a futures interest when the contract price reaches the specified stop order
price. Stop orders become market orders when the stop price is reached.
"Trading Advisor"--Any person who for any consideration
engages in the business of advising others, either directly or indirectly, as to
the value or purchase of futures interests.
"Trading Profits" is defined to mean net futures interests
trading profits (realized and unrealized) earned on a Partnership's Net Assets,
decreased by monthly management fees, brokerage fees, and any transaction fees
and costs not included in the brokerage fees (under the current Customer
Agreements with the Commodity Brokers, the brokerage fees include all
transaction fees and costs); with such trading profits and items of decrease
determined from the end of the last calendar month in which an incentive fee was
earned by the Trading Advisor or, if no incentive fee has been earned previously
by the Trading Advisor, from the date that the Partnership commenced trading, to
the end of the month as of which such incentive fee calculation is being made.
Extraordinary expenses of the Partnership, if any, will not be deducted in
determining Trading Profits. No incentive fees will be paid on interest earned
by the Partnership.
"Transaction Fees and Costs"--Floor brokerage fees, exchange
fees, clearinghouse fees, NFA fees, "give up" fees, any taxes (other than income
taxes), any third party clearing costs incurred by CFI, costs associated with
taking delivery of futures interests, and any fees for execution of forward
contract transactions.
"Unrealized Profit or Loss"--The profit or loss which could
be realized on an open position if it were closed out at the current settlement
price.
96
<PAGE>
BLUE SKY GLOSSARY
Prospective investors should be aware of the following
definitions, reprinted verbatim from the "Guidelines for Registration of
Commodity Pool Programs" adopted by the North American Securities Administrators
Association, Inc., as revised in September, 1993 (the "Guidelines"), which
Guidelines are applied by certain state securities administrators in reviewing
public offerings of "commodity pools" (such as the Partnerships). For ease of
reference, each of these definitions is followed by the comparable defined term
used in the form of Limited Partnership Agreement and this Prospectus, in
brackets, as applicable.
"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. ["Trading
Advisors"--page A-4]
"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 partner of such Person; or (e) if such
Person is an officer, director or partner, any Person for which such Person acts
in any such capacity. ["Affiliate"--
page A-17]
"Capital Contributions"--The total investment in a Program
by a Participant or by all Participants, as the case may be. ["Unit(s) of
General Partnership Interest"--page A-3; "Unit(s)"--page A-3]
"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. ["Commodity Broker"--page A-4; includes DWR and CFI]
"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. ["Futures
Interests"--page A-1]
"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
Assets"--page A-6]
"Net Worth"--The excess of total assets over total
liabilities as determined by generally accepted accounting principles. Net Worth
shall be determined exclusive of home, home furnishings and automobiles. ["net
worth," as regards subscribers' investment requirements, is referenced on pages
1, B-2>, and B-3; as regards the General Partner's net worth requirement, see
Section 5 of the Limited Partnership Agreement on page A-2]
"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 margin account. ["Trading Profits"--pages 23 and 92]
"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. ["organizational, initial and continuing offering
expenses"--page A-7]
"Participant"--The holder of a Program Interest. ["General
Partner," "Limited Partners," "Partners"--page A-1]
"Person"--Any natural Person, partnership, corporation,
association or other legal entity. [No comparable term]
"Program"--The limited partnership, joint venture,
corporation, trust or other entity formed and operated for the purpose of
investing in Commodity Contracts. ["Partnership"--page A-1]
97
<PAGE>
"Pyramiding"--A method of using all or part of an unrealized
profit in a Commodity Contract position to provide margin for any additional
Commodity Contracts of the same or related commodities. [See Trading Policy 5 on
page A-10]
"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 general partner(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 units. The
term "Sponsor" shall be deemed to include its Affiliates. ["General Partner,"
"DWR" and their "Affiliates"]
"Valuation Date"--The date as of which the Net Assets of the
Program are determined. [No comparable term, but for purposes of redemption, Net
Assets of the Partnerships are determined as of the last business day of the
month--page A-14]
98
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Limited Partners and the General Partner of
Morgan Stanley Dean Witter Charter Graham L.P.
Morgan Stanley Dean Witter Charter Millburn L.P.
Morgan Stanley Dean Witter Charter Welton L.P.:
We have audited the accompanying statements of financial condition of Morgan
Stanley Dean Witter Charter Graham L.P., Morgan Stanley Dean Witter Charter
Millburn L.P., and Morgan Stanley Dean Witter Charter Welton L.P. (collectively,
the "Partnerships") as of July 20, 1998. These financial statements are the
responsibility of the Partnerships' management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. 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 statements of financial condition.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such statements of financial condition present fairly, in all
material respects, the financial position of Morgan Stanley Dean Witter Charter
Graham L.P., Morgan Stanley Dean Witter Charter Millburn L.P., and Morgan
Stanley Dean Witter Charter Welton L.P., as of July 20, 1998 in conformity
with generally accepted accounting principles.
/s/ Deloitte & Touche LLP
July 21, 1998
New York, New York
F-1
<PAGE>
MORGAN STANLEY DEAN WITTER CHARTER GRAHAM L.P.
(LIMITED PARTNERS SHOULD NOTE THAT THEIR OWNERSHIP OF UNITS IN THE PARTNERSHIP
DOES NOT RESULT IN THE OWNERSHIP OF ANY INTEREST IN THE GENERAL PARTNER)
STATEMENT OF FINANCIAL CONDITION
AS OF JULY 20, 1998
ASSETS
<TABLE>
<S> <C>
Equity in Commodity Interest Trading Account:
Cash.................................................................................. $20
---
---
PARTNERS' CAPITAL
Limited Partner -- 1 Unit Outstanding........................................................... $10
General Partner -- 1 Unit Outstanding........................................................... 10
---
$20
---
---
</TABLE>
The accompanying notes are an integral part of this financial statement.
F-2
<PAGE>
MORGAN STANLEY DEAN WITTER CHARTER MILLBURN L.P.
(LIMITED PARTNERS SHOULD NOTE THAT THEIR OWNERSHIP OF UNITS IN THE PARTNERSHIP
DOES NOT RESULT IN THE OWNERSHIP OF ANY INTEREST IN THE GENERAL PARTNER)
STATEMENT OF FINANCIAL CONDITION
AS OF JULY 20, 1998
ASSETS
<TABLE>
<S> <C>
Equity in Commodity Interest Trading Account:
Cash.................................................................................. $20
---
---
PARTNERS' CAPITAL
Limited Partner -- 1 Unit Outstanding........................................................... $10
General Partner -- 1 Unit Outstanding........................................................... 10
---
$20
---
---
</TABLE>
The accompanying notes are an integral part of this financial statement.
F-3
<PAGE>
MORGAN STANLEY DEAN WITTER CHARTER WELTON L.P.
(LIMITED PARTNERS SHOULD NOTE THAT THEIR OWNERSHIP OF UNITS IN THE PARTNERSHIP
DOES NOT RESULT IN THE OWNERSHIP OF ANY INTEREST IN THE GENERAL PARTNER)
STATEMENT OF FINANCIAL CONDITION
AS OF JULY 20, 1998
ASSETS
<TABLE>
<S> <C>
Equity in Commodity Interest Trading Account:
Cash.................................................................................. $20
---
---
PARTNERS' CAPITAL
Limited Partner -- 1 Unit Outstanding........................................................... $10
General Partner -- 1 Unit Outstanding........................................................... 10
---
$20
---
---
</TABLE>
The accompanying notes are an integral part of this financial statement.
F-4
<PAGE>
MORGAN STANLEY DEAN WITTER CHARTER SERIES
NOTES TO STATEMENTS OF FINANCIAL CONDITION
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION--Morgan Stanley Dean Witter Charter Graham
L.P., Morgan Stanley Dean Witter Charter Millburn L.P., and Morgan Stanley Dean
Witter Charter Welton L.P. (collectively, the "Partnerships") are limited
partnerships organized under the Delaware Revised Uniform Limited Partnership
Act on July 15, 1998 to engage in the speculative trading of futures and forward
contracts, options on futures contracts and physical commodities and other
commodity interests, including foreign currencies, financial instruments,
precious and industrial metals, energy products and agriculturals (collectively,
"futures interests.") The initial capital contributed are the capital
contributions of $10 to each Partnership by Demeter Management Corporation, the
general partner of the Partnerships (the "General Partner"), and $10 to each
Partnership by Mark J. Hawley, President of the General Partner and Executive
Vice President of Dean Witter Reynolds Inc. ("DWR"), an affiliate of the General
Partner, as initial Limited Partner to each Partnership, to permit the filing of
Certificates of Limited Partnership under the Delaware Revised Uniform Limited
Partnership Act for each Partnership.
The Partnerships will each offer 3,000,000 Units of Limited
Partnership Interest ("Units") for sale to the public at an initial price of $10
per Unit. The minimum subscription for most subscribers will be (i) $20,000,
except as may be the case in a Non-Series Exchange, as described in the
Partnerships' Prospectus. If at least 400,000 Units of a Partnership are
subscribed for during the "Initial Offering Period" (defined as the date of the
Prospectus to November 30, 1998, subject to earlier termination or extension)
the General Partner may accept such subscriptions at the "Initial Closing"
(currently scheduled for October 31, 1998) and commence operations of such
Partnership. Thereafter, Units in each Partnership will be sold at Monthly
Closings at a price equal to 100% of the Net Asset Value per Unit (as described
in the Partnerships' Prospectus). If it appears that subscriptions will be
received in excess of the Units available for sale, the General Partner may
register additional Units for sale.
The Partnerships' cash is on deposit with Dean Witter
Reynolds Inc. ("DWR"), an affiliate of the General Partner, in a futures
interest trading account. At each Monthly Closing (as described in the
Prospectus), the General Partner will contribute, in $1,000 increments to each
Partnership, the additional amount in cash that is necessary for it at all times
to own, for its account, Units of General Partnership Interest at least equal to
the greater of $25,000 or 1% of aggregate capital contributions. The General
Partner and each Limited Partner will share in the profits and losses of the
Partnerships in proportion to the amount of Partnership interest owned by each.
The Partnerships will terminate on December 31, 2035 or at
an earlier date if certain conditions occur as defined in the Partnerships'
Limited Partnership Agreement.
Limited Partners may redeem some or all of their Units at
100% of the Net Asset Value per Unit effective as of the sixth month-end
following the closing at which they first become a Limited Partner. The Net
Asset Value of a Unit is equal to Net Assets (as defined below) divided by the
aggregate number of Units of Limited and General Partnership Interest
outstanding. Thereafter, Units may be redeemed as of the end of any month upon
advance notice by redemption form to the General Partner. However, any Units
redeemed on or prior to the last day of the twelfth month after such Units were
purchased will be subject to a redemption charge equal to 2% of the Net Asset
Value of a Unit on the date of such redemption. Units redeemed after the last
day of the twelfth month and on or prior to the last day of the twenty-fourth
month after which such Units were purchased will be subject to a redemption
charge equal to 1% of the Net Asset Value of a Unit on the date of such
redemption. Units redeemed after the last day of the twenty-fourth month after
which such Units were purchased will not be subject to a redemption charge.
Investors who purchase $500,000 or more of Units will not be subject to the
redemption charges described above.
Net Assets, which will be determined daily, is defined as
the total assets of a Partnership (including, but not limited to, all cash and
cash equivalents, accrued interest and amortization of original issue discount,
and the market value of all open futures interest contract positions and other
assets of a Partnership) less the total liabilities of a Partnership (including,
but not limited to, one-half of the brokerage commissions that would be payable
with respect to the closing of each Partnership's open futures interest contract
positions (if charged on a "roundturn" basis), or brokerage fees (if charged on
a "flat rate" basis), management fees, incentive fees, ordinary administrative
expenses, transaction fees and costs, and extraordinary expenses) determined in
accordance with generally accepted accounting principles consistently applied
under the accrual basis of accounting. Unless generally accepted accounting
principles require otherwise, the market value of a futures
F-5
<PAGE>
interest traded on a United States exchange shall mean the settlement price on
the exchange on which the particular futures interest shall be traded by a
Partnership on the day with respect to which Net Assets shall be determined;
provided, however, that if a futures interest could not have been liquidated on
such day due to the operation of daily limits or other rules of the exchange
upon which that futures interest shall be traded or otherwise, the settlement
price on the first subsequent day on which the futures interest could have been
liquidated shall be the market value of such futures interest for such day. The
market value of a futures interest traded on a foreign exchange or market shall
mean its market value as determined by the General Partner on a basis
consistently applied for each different variety of futures interest.
2. ORGANIZATION AND OFFERING EXPENSES
The Partnerships are not liable for any organizational and
offering expenses in connection with the issuance and distribution of the Units.
DWR has agreed to pay the organizational expenses of the Partnerships and the
expenses of offering the Units to the public.
The proceeds from the subscription of Units will be held in
escrow and invested in an interest-bearing money market account. The pro-rata
share of interest earned on accepted or rejected subscription funds while such
funds are held in escrow will be credited to subscribers' customer accounts with
DWR.
3. OTHER AGREEMENTS
The proceeds from the closings will be used to establish
futures interests trading accounts with DWR for each Partnership's Trading
Advisor.
Each Partnership will pay its Trading Advisor a monthly
management fee equal to 1/12 of 2% per month (a 2% annual rate) of the
Partnership's Net Assets (as defined in the Prospectus) as of the first day of
each month.
Each Partnership also will pay a monthly incentive fee to
the Trading Advisor equal to 20% of "Trading Profits" as of the end of each
calendar month. If the Trading Advisor has experienced losses with respect to
Net Assets at the end of each calendar month, the Trading Advisor must earn back
such losses before the Trading Advisor is eligible for an incentive fee.
Under each Customer Agreement with DWR, each Partnership
will pay DWR a flat-rate monthly brokerage fee of 1/12 of 7% of Net Assets as of
the first day of each month (a 7% annual rate).
Under each Customer Agreement with Carr Futures Inc.
("CFI"), DWR will pay or reimburse the Partnerships for all fees and costs of
CFI for executing trades by the Partnerships.
DWR will credit each Partnership with interest income at
month-end at the rate earned by DWR on its U.S. Treasury bills investments with
customer segregated funds as if 100% of each Partnership's average daily funds
(including cash and securities) held in each Partnership's account with DWR
during the month were invested in U.S. Treasury bills at such rate. In addition,
DWR will credit each Partnership with 100% of the interest income DWR receives
from CFI with respect to each Partnership's assets deposited as margin with CFI.
It is anticipated that approximately 80% of each Partnership's average daily
funds maintained in trading accounts will be on deposit with DWR and that
approximately 20% of each Partnership's average daily funds maintained in
trading accounts will be on deposit with CFI, although such percentages will
vary from time to time.
F-6
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of
Demeter Management Corporation:
We have audited the accompanying statements of financial condition of Demeter
Management Corporation (a wholly-owned subsidiary of Morgan Stanley, Dean
Witter, Discover & Co.) (the "Company") as of November 30, 1997 and December 31,
1996. These statements of financial condition are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
statements of financial condition based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the statements of financial condition are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the statements of financial
condition. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
statement of financial condition presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, such statements of financial condition present fairly, in all
material respects, the financial position of Demeter Management Corporation as
of November 30, 1997 and December 31, 1996 in conformity with generally accepted
accounting principles.
/s/ Deloitte & Touche LLP
January 12, 1998
New York, New York
F-7
<PAGE>
DEMETER MANAGEMENT CORPORATION
(WHOLLY-OWNED SUBSIDIARY OF MORGAN STANLEY DEAN WITTER & CO.)
STATEMENTS OF FINANCIAL CONDITION
<TABLE>
<CAPTION>
MAY 31,
1998 NOVEMBER 30, DECEMBER 31,
(UNAUDITED) 1997 1996
------------ ------------ ------------
<S> <C> <C> <C>
ASSETS $ $
Investments in affiliated partnerships
(Note 2) 22,952,032 22,016,069 18,955,507
Income taxes receivable 101,866 429,885 --
Receivable from affiliated partnerships 32,675 968 1,049
------------ ------------ ------------
Total Assets 23,086,573 22,446,922 18,956,556
------------ ------------ ------------
------------ ------------ ------------
LIABILITIES AND STOCKHOLDER'S EQUITY
LIABILITIES
Payable to MSDW (Note 3) 18,282,319 17,995,100 15,762,235
Accrued expenses 27,659 34,072 30,379
Income taxes payable -- -- 114,218
------------ ------------ ------------
Total Liabilities 18,309,978 18,029,172 15,906,832
------------ ------------ ------------
STOCKHOLDER'S EQUITY:
Common stock, no par value:
Authorized 1,000 shares;
Issued and outstanding 100
shares at stated value of $500
per share 50,000 50,000 50,000
Additional paid-in capital 111,170,000 111,170,000 111,170,000
Retained earnings 4,626,595 4,267,750 2,899,724
------------ ------------ ------------
115,846,595 115,487,750 114,119,724
Less: Notes receivable from MSDW
(Note 4) (111,070,000) (111,070,000) (111,070,000)
------------ ------------ ------------
Total Stockholder's Equity 4,776,595 4,417,750 3,049,724
------------ ------------ ------------
Total Liabilities and
Stockholder's Equity 23,086,573 22,446,922 18,956,556
------------ ------------ ------------
------------ ------------ ------------
</TABLE>
The accompanying notes are an integral part of these statements of financial
condition.
F-8
<PAGE>
DEMETER MANAGEMENT CORPORATION
(WHOLLY-OWNED SUBSIDIARY OF MORGAN STANLEY DEAN WITTER & CO.)
NOTES TO STATEMENTS OF FINANCIAL CONDITION
(THE INFORMATION RELATING TO 1998 IS UNAUDITED)
1. BUSINESS DESCRIPTION AND SIGNIFICANT ACCOUNTING POLICIES
Demeter Management Corporation ("Demeter") is a wholly-owned subsidiary of
Morgan Stanley Dean Witter & Co. ("MSDW").
On March 24, 1998, Morgan Stanley, Dean Witter, Discover & Co. changed its
corporate name to Morgan Stanley Dean Witter & Co.
Demeter manages the following commodity pools as their sole general partner:
Dean Witter Cornerstone Fund II, Dean Witter Cornerstone Fund III, Dean Witter
Cornerstone Fund IV, Columbia Futures Fund, Dean Witter Diversified Futures Fund
Limited Partnership, Dean Witter Diversified Futures Fund II L.P., Dean Witter
Diversified Futures Fund III L.P., Dean Witter Multi-Market Portfolio L.P.
(formerly Dean Witter Principal Guaranteed Fund L.P.), Dean Witter Principal
Plus Fund L.P. ("DWPPF"), Dean Witter Principal Plus Fund Management L.P., Dean
Witter Portfolio Strategy Fund L.P. (formerly Dean Witter Principal Secured
Futures Fund L.P.) ("DWPSF"), Dean Witter Global Perspective Portfolio L.P.,
Dean Witter World Currency Fund L.P., Dean Witter Institutional Balanced
Portfolio Account I L.P. ("DWIBP I"), Dean Witter Institutional Account II L.P.,
("DWIA II"), DWFCM International Access Fund L.P., Dean Witter Anchor
Institutional Balanced Portfolio Account L.P., ("Anchor"), Dean Witter Spectrum
Global Balanced L.P. (formerly known as Dean Witter Spectrum Balanced L.P.),
Dean Witter Spectrum Strategic L.P., Dean Witter Spectrum Technical L.P., Dean
Witter Spectrum Select L.P. (formerly known as Dean Witter Select Futures Fund
L.P. ("DWSFF"), DWR Chesapeake L.P., DWR Institutional Balanced Portfolio
Account III L.P., DWR/JWH Futures Fund L.P. ("DWR/ JWH") and Morgan Stanley
Tangible Asset Fund L.P. ("MSTAF").
Each of the commodity pools is a limited partnership organized to engage in the
speculative trading of commodity futures contracts, forward contracts on foreign
currencies and other commodity interests.
On July 31, 1996, with the Net Asset Value of DWPSF above $1,000 per unit, the
letter of credit arrangement which assured investors who redeemed their units on
July 31, 1996 a minimum Net Asset Value of $1,000 per unit expired. On August 1,
1996, that partnership was renamed Dean Witter Portfolio Strategy Fund L.P. and
will continue trading in a non-guaranteed format. As a result, both the
reduction of interest income of 1.125% per annum for the letter of credit fee
paid by Dean Witter Reynolds Inc. ("DWR") and the letter of credit fee of 1% of
new appreciation have been eliminated.
Demeter reopened DWSFF for additional investment and on August 13, 1996 DWSFF
registered with the SEC 60,000 Units which was offered to investors for a
limited time in a public offering.
On August 20, 1996, Demeter ceased trading activities in DWIBP I and distributed
approximately 97% of DWIBP I's assets. At that time, there were open forward
positions maturing through December 1996. DWIBP I liquidated and distributed its
remaining assets in 1997.
Demeter reopened DWPSF for additional investment and on May 12, 1997 DWPSF
registered with the SEC 50,000 units which were offered to investors for a
limited time in a public offering.
On July 31, 1997, Demeter entered into a limited partnership agreement as
general partner in MSTAF. On November 4, 1997, MSTAF registered with the SEC
5,000,000 units which were offered to investors for a limited time in a public
offering.
On September 18, 1997, Demeter ceased trading activities in Anchor and
distributed approximately 87% of Anchor's assets. Demeter distributed the
remainder of Anchor's assets in 1998.
On April 20, 1998, Dean Witter Spectrum Balanced L.P. changed its name to Dean
Witter Spectrum Global Balanced L.P. and Dean Witter Select Futures Fund L.P.
changed its name to Dean Witter Spectrum Select L.P.
On April 30, 1998, Demeter ceased trading activities in DWIA II and subsequently
distributed DWIA II's Net Assets.
F-9
<PAGE>
On May 11, 1998 Demeter registered with the SEC 5,000,000 additional units of
Dean Witter Spectrum Technical L.P. and 1,500,000 units of Dean Witter Spectrum
Select L.P., both of which are being offered to investors in a continuing public
offering with previously registered units of Dean Witter Spectrum Strategic L.P.
and Dean Witter Spectrum Global Balanced L.P.
INCOME TAXES--The results of operations of Demeter are included in the
consolidated federal income tax return of MSDW, computed on a separate company
basis and due to MSDW.
BASIS OF ACCOUNTING--The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts in the financial statements.
2. INVESTMENTS IN AFFILIATED PARTNERSHIPS
The limited partnership agreement of each commodity pool requires Demeter to
maintain a general partnership interest in each partnership, generally in an
amount equal to, but not less than, 1 percent of the aggregate capital
contributed to the partnership by all partners.
The total assets, liabilities and partners' capital of all the funds managed by
Demeter at May 31, 1998, November 30, 1997 and December 31, 1996 were as
follows:
<TABLE>
<CAPTION>
MAY 31,
1998 NOVEMBER 30, DECEMBER 31,
(UNAUDITED) 1997 1996
------------- ------------- -------------
<S> <C> <C> <C>
$ $ $
Total assets............................. 1,232,182,556 1,195,307,516 1,084,660,072
Total liabilities........................ 21,081,944 19,346,113 27,893,698
Total partners' capital.................. 1,211,100,612 1,175,961,403 1,056,766,374
</TABLE>
Demeter's investments in the above limited partnerships are carried at market
value with changes in such market value reflected currently in operations.
3. PAYABLE TO MSDW
The payable to MSDW is primarily for amounts due for the purchase of partnership
investments.
4. NET WORTH REQUIREMENT
At May 31, 1998 (unaudited), November 30, 1997 and December 31, 1996, Demeter
held non-interest bearing notes from MSDW that were payable on demand. These
notes were received in connection with additional capital contributions
aggregating $111,070,000.
The limited partnership agreement of each commodity pool requires Demeter to
maintain its net worth at an amount not less than 10% of the capital
contributions by all partners in each pool in which Demeter is the general
partner (15% if the capital contributions to any partnership are less than
$2,500,000, or $250,000, whichever is less).
In calculating this requirement, Demeter's interests in each limited partnership
and any amounts receivable from or payable to such partnerships are excluded
from net worth. Notes receivable from MSDW are included in net worth for
purposes of this calculation.
5. LEGAL MATTERS
On September 6, 10, and 20, 1996, and on March 13, 1997, similar purported class
actions were filed in the Superior Court of the State of California, County of
Los Angeles, on behalf of all purchasers of interests in limited partnership
commodity pools sold by DWR, an affiliate of Demeter. Named defendants include
DWR, Demeter, Dean Witter Futures and Currency Management Inc., MSDW (all such
parties referred to hereafter as the "Dean Witter Parties"), certain limited
partnership commodity pools of which Demeter is the general partner, and certain
trading advisors to those pools. On June 16, 1997, the plaintiffs in the above
actions filed a
F-10
<PAGE>
consolidated amended complaint alleging, among other things, that the defendants
committed fraud, deceit, negligent misrepresentation, various violations of the
California Corporations Code, intentional and negligent breach of fiduciary
duty, fraudulent and unfair business practices, unjust enrichment, and
conversion in the sale and operation of the various limited partnership
commodity pools. Similar purported class actions were also filed on September 18
and 20, 1996 in the Supreme Court of the State of New York, New York County, and
on November 14, 1996 in the Superior Court of the State of Delaware, New Castle
County, against the Dean Witter Parties and certain trading advisors on behalf
of all purchasers of interests in various limited partnership commodity pools
sold by DWR. A consolidated and amended complaint in the action pending in the
Supreme Court of the State of New York was filed on August 13, 1997, alleging
that the defendants committed fraud, breach of fiduciary duty, and negligent
misrepresentation in the sale and operation of the various limited partnership
commodity pools. On December 16, 1997, upon motion of the plaintiffs, the action
pending in the Superior Court of the State of Delaware was voluntarily dismissed
without prejudice. The complaints seek unspecified amounts of compensatory and
punitive damages and other relief. It is possible that additional similar
actions may be filed and that, in the course of these actions, other parties
could be added as defendants. The Dean Witter Parties believe that they have
strong defenses to, and they will vigorously contest, the actions. Although the
ultimate outcome of legal proceedings cannot be predicted with certainty, it is
the opinion of management of the Dean Witter Parties that the resolution of the
actions will not have a material adverse effect on the financial condition or
the results of operations of any of the Dean Witter Parties.
F-11
<PAGE>
EXHIBIT A
TABLE OF CONTENTS TO FORM OF
LIMITED PARTNERSHIP AGREEMENT FOR
MORGAN STANLEY DEAN WITTER CHARTER [GRAHAM] [MILLBURN][WELTON] L.P.
<TABLE>
<C> <S> <C>
PAGE
1. Formation; Name............................................................................ A-1
2. Office..................................................................................... A-1
3. Business................................................................................... A-1
4. Term; Dissolution; Fiscal Year............................................................. A-2
(a) Term................................................................................... A-2
(b) Dissolution............................................................................ A-2
(c) Fiscal Year............................................................................ A-2
5. Net Worth of General Partner............................................................... A-2
6. Capital Contributions and Offering of Units of Limited Partnership Interest................ A-3
7. Allocation of Profits and Losses; Accounting; Other Matters................................ A-5
(a) Capital Accounts....................................................................... A-5
(b) Monthly Allocations.................................................................... A-5
(c) Allocation of Profit and Loss for Federal Income Tax Purposes.......................... A-5
(d) Definitions; Accounting................................................................ A-6
(e) Expenses and Limitations Thereof....................................................... A-7
(f) Limited Liability of Limited Partners.................................................. A-7
(g) Return of Limited Partner's Capital Contribution....................................... A-8
(h) Distributions.......................................................................... A-8
(i) Interest on Assets..................................................................... A-8
8. Management and Trading Policies............................................................ A-8
(a) Management of the Partnership.......................................................... A-8
(b) The General Partner.................................................................... A-8
(c) General Trading Policies............................................................... A-9
(d) Changes to Trading Policies............................................................ A-10
(e) Miscellaneous.......................................................................... A-10
9. Audits; Reports to Limited Partners........................................................ A-11
10. Transfer; Redemption of Units; Exchange Privilege.......................................... A-12
(a) Transfer............................................................................... A-12
(b) Redemption............................................................................. A-13
(c) Exchange Privilege..................................................................... A-14
11. Special Power of Attorney.................................................................. A-15
12. Withdrawal of a Partner.................................................................... A-15
13. No Personal Liability for Return of Capital................................................ A-16
14. Standard of Liability; Indemnification..................................................... A-16
(a) Standard of Liability.................................................................. A-16
(b) Indemnification by the Partnership..................................................... A-16
(c) Affiliate.............................................................................. A-17
(d) Indemnification by Partners............................................................ A-17
15. Amendments; Meetings....................................................................... A-17
(a) Amendments with Consent of the General Partner......................................... A-17
(b) Meetings............................................................................... A-18
(c) Amendments and Actions without Consent of the General Partner.......................... A-18
(d) Action Without Meeting................................................................. A-18
(e) Amendments to Certificate of Limited Partnership....................................... A-18
16. Index of Defined Terms..................................................................... A-18
17. Governing Law.............................................................................. A-19
18. Miscellaneous.............................................................................. A-19
(a) Priority among Limited Partners........................................................ A-19
(b) Notices................................................................................ A-19
(c) Binding Effect......................................................................... A-20
(d) Captions............................................................................... A-20
Annex 1 --Request for Redemption.............................................................. A-21
</TABLE>
<PAGE>
EXHIBIT A
FORM OF
LIMITED PARTNERSHIP AGREEMENT FOR
MORGAN STANLEY DEAN WITTER CHARTER [GRAHAM] [MILLBURN] [WELTON] L.P.
This Agreement of Limited Partnership, made as of
, 1998, by and among
Demeter Management Corporation, a Delaware corporation (the "General Partner"),
and the other parties who shall execute this Agreement, whether in counterpart,
by separate instrument, or otherwise, as limited partners (collectively
"Limited Partners"; the General Partner and Limited Partners may be
collectively referred to herein as "Partners"). The definitions of capitalized
terms used in this Agreement and not defined where used may be found by
reference to the index of defined terms in Section 16.
WITNESSETH:
WHEREAS, the parties hereto desire to form a limited
partnership for the purpose of engaging in the speculative trading of futures
interests.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. FORMATION; NAME.
The parties hereto do hereby form a limited partnership
under the Delaware Revised Uniform Limited Partnership Act, as amended and in
effect on the date hereof (the "Act"). The name of the limited partnership is
Morgan Stanley Dean Witter Charter [Graham] [Millburn] [Welton] L.P. (the
"Partnership"). The General Partner may, without the approval of the Limited
Partners, change the name of the Partnership, or cause the Partnership to
transact business under another name. The General Partner shall notify all
Limited Partners (or any assignees thereof) of any such change. The General
Partner shall execute and file a Certificate of Limited Partnership of the
Partnership (the "Certificate of Limited Partnership") in accordance with the
Act, and shall execute, file, record, and publish as appropriate such
amendments, assumed name certificates, and other documents as are or become
necessary or advisable in connection with the operation of the Partnership, as
determined by the General Partner, and shall take all steps which the General
Partner may deem necessary or advisable to allow the Partnership to conduct
business as a limited partnership where the Partnership conducts business in any
jurisdiction, and to otherwise provide that Limited Partners will have limited
liability with respect to the activities of the Partnership in all such
jurisdictions, and to comply with the law of any jurisdiction. Each Limited
Partner hereby undertakes to furnish to the General Partner a power of attorney
and such additional information as the General Partner may request to complete
such documents and to execute and cooperate in the filing, recording, or
publishing of such documents as the General Partner determines appropriate.
2. OFFICE.
The principal office of the Partnership shall be Two World
Trade Center, 62nd Floor, New York, New York 10048, or such other place as the
General Partner may designate from time to time.
The address of the principal office of the Partnership in
the State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and
the name and address of the registered agent for service of process on the
Partnership in the State of Delaware is The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801, or such other agent as the General Partner shall designate from
time to time.
3. BUSINESS.
The Partnership's business and general purpose is to trade,
buy, sell, spread, or otherwise acquire, hold, or dispose of commodities (which
may include foreign currencies, mortgage-backed securities, money market
instruments, financial instruments, and any other securities or items which are
now, or may hereafter be, the subject of futures contract trading, domestic and
foreign commodity futures contracts, commodity forward contracts, foreign
exchange commitments, options on physical commodities and on futures contracts,
spot (cash) commodities and currencies, and any rights pertaining thereto
(collectively, "Futures Interests"), and securities (such as United States
Treasury securities) approved by the Commodity Futures Trading Commission (the
"CFTC") for investment of customer funds and other securities on a limited
basis, and to engage in all activities incident thereto. The objective of the
Partnership's business is appreciation of its assets
A-1
<PAGE>
through speculative trading. The Partnership may pursue this objective in any
lawful manner consistent with the Partnership's trading policies. The
Partnership may engage in the foregoing activities either directly or through
any lawful transaction or any lawful activity into which a limited partnership
may enter or in which a limited partnership may engage under the laws of the
State of Delaware; provided, that such transactions or activities do not subject
the Limited Partners to any liability in excess of the limited liability
provided for herein and contemplated by the Act.
4. TERM; DISSOLUTION; FISCAL YEAR.
(a) TERM. The term of the Partnership shall commence
upon the filing of the Certificate of Limited Partnership in the Office of the
Secretary of State of the State of Delaware and shall end upon the first to
occur of the following: (i) December 31, 2035; (ii) receipt by the General
Partner of a notice setting forth an election to terminate and dissolve the
Partnership at a specified time by Limited Partners owning more than 50% of the
outstanding Units, which notice shall be sent by registered mail to the General
Partner not less than 90 days prior to the effective date of such termination
and dissolution; (iii) the withdrawal, insolvency, bankruptcy, dissolution,
liquidation or termination of any general partner, unless the business of the
Partnership shall be continued by any remaining or successor general partner(s)
in accordance with the provisions hereof; (iv) the occurrence of any event which
shall make it unlawful for the existence of the Partnership to be continued; (v)
a decline in the Net Asset Value of a Unit as of the close of business (as
determined by the General Partner) on any day to less than $2.50; (vi) a decline
in the Partnership's Net Assets as of the close of business (as determined by
the General Partner) on any day to $250,000 or less; (vii) a determination by
the General Partner that the Partnership's Net Assets in relation to the
operating expenses of the Partnership make it unreasonable or imprudent to
continue the business of the Partnership; (viii) a determination by the General
Partner upon 120 days' notice to the Limited Partners to terminate the
Partnership; or (ix) a determination by the General Partner to terminate the
Partnership following a Special Redemption Date.
(b) DISSOLUTION. Upon the occurrence of an event causing
the termination of the Partnership, the Partnership shall terminate and be
dissolved. Dissolution, payment of creditors, and distribution of the
Partnership's Net Assets shall be effected as soon as practicable in accordance
with the Act, except that the General Partner and each Limited Partner (and any
assignee) shall share in the Net Assets of the Partnership pro rata in
accordance with such Partner's respective capital account, less any amount owing
by such Partner (or assignee) to the Partnership. The General Partner shall, at
its option, be entitled to supervise the liquidation of the Partnership.
Nothing contained in this Agreement shall impair, restrict,
or limit the rights and powers of the Partners under the laws of the State of
Delaware and any other jurisdiction in which the Partnership shall be conducting
business to reform and reconstitute themselves as a limited partnership
following dissolution of the Partnership, either under provisions identical to
those set forth herein or any others which they shall deem appropriate.
(c) FISCAL YEAR. The fiscal year of the Partnership shall
begin on January 1 of each year and end on the following December 31.
5. NET WORTH OF GENERAL PARTNER.
The General Partner agrees that at all times, as long as it
remains a general partner of the Partnership, it shall maintain its net worth at
an amount not less than 10% of the total contributions to the Partnership by all
Partners and to any other limited partnership for which it acts as a general
partner by all such partnership's partners; provided, however, that if the total
contributions to the Partnership by all Partners, or to any limited partnership
for which it acts as a general partner by all partners, are less than
$2,500,000, then with respect to the Partnership and any such limited
partnership, the General Partner shall maintain its net worth at an amount of at
least 15% of the total contributions to the Partnership by all Partners and of
the total contributions to any such limited partnership for which it acts as a
general partner by all such partnership's partners or $250,000, whichever is the
lesser; and, provided, further, that in no event shall the General Partner's net
worth be less than $50,000. For the purposes of this Section 5, "net worth"
shall be calculated in accordance with generally accepted accounting principles,
except as otherwise specified in this Section 5, with all current assets based
on their then current market values. The interests owned by the General Partner
in the Partnership and any other partnerships for which it acts as a general
partner and any notes and accounts receivable from and payable to any limited
partnership in which it has an interest shall not be included as an asset in
calculating its net worth, but any notes receivable from an "affiliate" (as such
term is defined in Regulation S-X
A-2
<PAGE>
of the rules and regulations of the Securities and Exchange Commission (the
"SEC")) of the General Partner or letters of credit may be included.
The General Partner agrees that it shall not be a general
partner of any limited partnership other than the Partnership unless, at all
times when it is a general partner of any such additional limited partnership,
its net worth is at least equal to the net worth required by the preceding
paragraph of this Section 5.
The requirements of the preceding two paragraphs of this
Section 5 may be modified by the General Partner at its option, without notice
to or the consent of the Limited Partners, provided that: (a) such modification
does not adversely affect the interests of the Limited Partners, and (b) the
General Partner obtains a written opinion of counsel for the Partnership that
such proposed modification: (i) will not adversely affect the classification of
the Partnership as a partnership for federal income tax purposes, (ii) will not
adversely affect the status of the Limited Partners as limited partners under
the Act, and (iii) will not violate any applicable state securities or Blue Sky
law or any rules, regulations, guidelines, or statements of policy promulgated
or applied thereunder; provided, however, that the General Partner's net worth
may not be reduced below the lesser of (A) the net worth required by Section
II.B of the Guidelines for Registration of Commodity Pool Programs, as adopted
in revised form by the North American Securities Administrators Association,
Inc. in September, 1993 (the "NASAA Guidelines"), and (B) the net worth required
by such Guidelines as in effect on the date of such proposed modification.
6. CAPITAL CONTRIBUTIONS AND OFFERING OF UNITS OF LIMITED PARTNERSHIP
INTEREST.
The General Partner is herewith contributing $10 in cash to
the Partnership, for which it is receiving one unit of general partnership
interest (a "Unit of General Partnership Interest"). At the initial closing (the
"Initial Closing"), if any, for the acceptance of subscriptions for Units of
Limited Partnership Interest of the Partnership ("Units" or, individually, a
"Unit") during the initial offering of Units (the "Initial Offering"), the
General Partner shall contribute to the Partnership, in $1,000 increments, such
amount in cash as is necessary to make the General Partner's capital
contribution at least equal to the greater of: (a) 1% of aggregate capital
contributions to the Partnership by all Partners (including the General
Partner's contribution) and (b) $25,000. Such additional contribution by the
General Partner need not exceed the amount described above and shall be
evidenced by Units of General Partnership Interest. Thereafter, the General
Partner shall maintain its interest in the capital of the Partnership at no less
than the amount stated above. The General Partner, without notice to or consent
of the Limited Partners, may withdraw any portion of its interest in the
Partnership that is in excess of its required interest described above. The net
asset value of a Unit of General Partnership Interest shall at all times be
equivalent to the Net Asset Value of a Unit of Limited Partnership Interest.
The General Partner's minimum investment requirements of the
preceding paragraph of this Section 6 may be modified by the General Partner at
its option, without notice to or the consent of the Limited Partners, provided
that: (a) such modification does not adversely affect the interests of the
Limited Partners, and (b) the General Partner obtains a written opinion of
counsel for the Partnership that such proposed modification: (i) will not
adversely affect the Partnership's ability to meet the administrative
requirements applicable to partnerships under the federal income tax laws, (ii)
will not adversely affect the status of the Limited Partners as limited partners
under the Act, and (iii) will not violate any applicable state securities or
Blue Sky law or any rules, regulations, guidelines, or statements of policy
promulgated or applied thereunder; provided, however, that the General Partner's
minimum investment in the Partnership may not be reduced below the lesser of (A)
the minimum investment required by Section II.C of the NASAA Guidelines, and (B)
the minimum investment required by such Guidelines as in effect on the date of
such proposed modification.
Interests in the Partnership, other than the General
Partnership Interest of the General Partner, shall be Units. The initial Limited
Partner named at the end of this Agreement is herewith contributing $10 in cash
to the capital of the Partnership in consideration for receiving one Unit. The
initial Limited Partner agrees to withdraw as a Limited Partner at the Initial
Closing, and the remaining Partners hereby consent to such withdrawal. The $10
capital contribution of the Initial Limited Partner shall be returned to him,
without interest, and he shall have no further rights or obligations as a
Limited Partner with respect to such contribution.
The General Partner, for and on behalf of the Partnership,
shall issue and sell Units to persons desiring to become Limited Partners,
provided that such persons shall be determined by the General Partner to be
qualified investors and their subscriptions for Units shall be accepted by the
General Partner, which acceptance the General Partner may withhold in whole or
in part in its sole discretion. The minimum
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subscription for Units per subscriber shall be such amount as the General
Partner shall determine from time to time in its sole discretion.
The Partnership, directly and/or through Dean Witter
Reynolds Inc. ("DWR"), Morgan Stanley & Co. Incorporated ("MS & Co."), or such
other selling agent or agents (each, a "Selling Agent") as may be approved by
the General Partner, may at any time and from time to time in the sole
discretion of the General Partner offer for sale Units and fractions of Units
(to the third decimal place) in public and/or private offerings, at prices per
Unit, in such minimum amounts, for such periods of time, and on such terms and
conditions as the General Partner shall determine in its sole discretion. Units
offered during any offering shall be issued and sold by the Partnership as of
the close of business (as determined by the General Partner) on the last day of
a calendar month and a closing for subscriptions received during such offering
shall be held as of such date; provided, however, that the General Partner may
hold closings at such other times and for such other periods as it shall
determine in its sole discretion to effectuate such offerings. At each such
closing, the Partnership shall issue and sell Units to each subscriber whose
subscription shall be accepted by the General Partner at a price per Unit to be
determined by the General Partner in its sole discretion; provided, however,
that the offering price per Unit at the Initial Closing shall be $10 per Unit,
and the offering price per Unit at any subsequent closing during any offering of
Units shall not at any time be less than the Net Asset Value of a Unit as of the
close of business on the date of the applicable closing at which such Unit shall
be issued and sold, unless the newly offered Units' participation in the
Partnership's profits and losses is proportionately reduced. During any
offering, Units may be subscribed for by the General Partner, DWR, MS & Co.,
Morgan Stanley Dean Witter & Co. ("MSDW"), any trading advisor to the
Partnership (each, a "Trading Advisor"), any commodity broker for the
Partnership (each, a "Commodity Broker"), and such persons' respective
shareholders, directors, officers, partners, employees, principals, and
Affiliates. Notwithstanding Section 10(b), Units purchased at the Initial
Closing by the General Partner, DWR, any Additional Seller and any Trading
Advisor, or any Affiliate of the foregoing (for purposes of this provision, the
term "Affiliate" shall not include any natural persons) may not be redeemed for
a period of two years after the Initial Closing if such redemption would cause
the Partnership to have less than $4,000,000 in Net Assets. Subscriptions for
Units by such persons shall not preclude them from receiving compensation from
the Partnership for services rendered by them in their respective capacities as
other than Limited Partners. No subscriber for Units during any offering of
Units shall become a Limited Partner until the General Partner shall: (a) accept
such subscriber's subscription at a closing relating to such offering; (b)
execute this Agreement on behalf of such subscriber pursuant to the power of
attorney in the subscription agreement executed by the subscriber in connection
with such offering; and (c) make an entry on the books and records of the
Partnership reflecting that such subscriber has been admitted as a Limited
Partner. Accepted subscribers shall be deemed Limited Partners at such time as
their admission shall be reflected on the books and records of the Partnership.
The aggregate of all capital contributions to the Partnership shall be available
to the Partnership to carry on its business and no interest shall be paid by the
Partnership on any such contribution.
In connection with any offering of Units by the Partnership,
the General Partner, on behalf of the Partnership, shall: (a) cause to be filed
one or more disclosure documents and such amendments and supplements thereto as
the General Partner shall deem advisable or as may be required by applicable law
with the CFTC and the National Futures Association ("NFA"), Forms D or other
applications, notices or forms with the SEC and state securities and Blue Sky
administrators, and Registration Statements, Prospectuses (as used hereinafter,
the term "Prospectus" shall mean the most recent version of the Prospectus
issued by the Partnership, or the most recent version of the disclosure document
or other offering memorandum prepared, in connection with the particular
offering of Units), and such amendments and supplements thereto as the General
Partner shall deem advisable or as may be required by applicable law, with the
CFTC, the NFA, the SEC, and NASD Regulation, Inc.; (b) qualify by registration
or exemption from registration the Units for sale under the Blue Sky and
securities laws of such states of the United States and such other jurisdictions
as the General Partner in its sole discretion shall deem advisable or as may be
required by applicable law; (c) make such arrangements for the sale of Units as
it shall deem advisable, including engaging DWR, MS & Co., or any other firm as
Selling Agent and entering into a selling agreement with DWR, MS & Co., or such
other Selling Agent; and (d) take such action with respect to and in order to
effectuate the matters described in clauses (a) through (c) as it shall deem
advisable or necessary.
The Partnership shall not pay the costs of any offering or
any selling commissions relating thereto. No Limited Partner shall have any
preemptive, preferential or other rights with respect to the issuance or sale of
any additional Units, except as described in the applicable Prospectus. No
Limited Partner shall have the right to consent to the admission of any
additional Limited Partner. There is no maximum aggregate amount of
contributions which may be received by the Partnership.
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All Units subscribed for shall be issued subject to the
collection of good funds. If, at any time, good funds representing payment for
Units are not made available to the Partnership because a subscriber has
provided bad funds in the form of a bad check or draft or otherwise to DWR, MS &
Co., or another Selling Agent which, in turn, has deposited the subscription
amount with the escrow agent, the Partnership shall cancel the Units issued to
such subscriber represented by such bad funds, and the subscriber's name shall
be removed as a Limited Partner from the books and records of the Partnership.
Any losses or profits sustained by the Partnership in connection with its
Futures Interests trading allocable to such cancelled Units shall be deemed a
decrease or increase in Net Assets and allocated among the remaining Partners as
described in Section 7. Each Limited Partner agrees to reimburse the Partnership
for any expense or loss (including any trading loss) incurred in connection with
the issuance and cancellation of any such Units issued to such Limited Partner.
7. ALLOCATION OF PROFITS AND LOSSES; ACCOUNTING; OTHER MATTERS.
(a) CAPITAL ACCOUNTS. A capital account shall be established
for each Partner. The initial balance of each Partner's capital account shall be
the amount of a Partner's initial capital contribution to the Partnership.
(b) MONTHLY ALLOCATIONS. As of the close of business (as
determined by the General Partner) on the last day of each calendar month
("Determination Date") during each fiscal year of the Partnership, the following
determinations and allocations shall be made:
(1) The Net Assets of the Partnership, before accrual
of any monthly management fee and any incentive fee shall be determined.
(2) The accrued monthly management fee shall then be
charged against Net Assets.
(3) The accrued monthly incentive fee, if any, shall
then be charged against Net Assets.
(4) Any increase or decrease in Net Assets (after the
adjustments in subparagraphs (2) and (3) above), over those of the
immediately preceding Determination Date (or, in the case of the first
Determination Date, the Initial Closing), shall then be credited or
charged to the capital accounts of each Partner in the ratio that the
balance of each account bears to the balance of all accounts.
(5) The amount of any distribution to a Partner, any
amount paid to a Partner on redemption of Units, any amount deemed
received by a Partner on a Series Exchange of Units pursuant to Section
10(c) hereof, and any amount paid to the General Partner upon withdrawal
of its interest in the Partnership shall be charged to that Partner's
capital account.
(c) ALLOCATION OF PROFIT AND LOSS FOR FEDERAL INCOME TAX
PURPOSES. As of the end of each fiscal year of the Partnership, the
Partnership's recognized profit or loss shall be allocated among the Partners
pursuant to the following subparagraphs for federal income tax purposes. Such
allocations of profit and loss will be pro rata from net capital gain or loss
and net operating income or loss realized by the Partnership. For United States
federal income tax purposes, a distinction will be made between net short-term
gain or loss and net long-term gain or loss.
(1) Items of ordinary income (such as interest or
credits in lieu of interest) and expense (such as the management fees,
incentive fees, brokerage fees and extraordinary expenses) shall be
allocated pro rata among the Partners based on their respective capital
accounts (exclusive of these items of ordinary income or expense) as of
the end of each month in which the items of ordinary income or expense
accrued.
(2) Net recognized gain or loss from the Partnership's
trading activities shall be allocated as follows (with any allocation of
recognized gain or loss consisting of pro rata shares of capital or
ordinary gain or loss):
(aa) For the purpose of allocating the
Partnership's net recognized gain or loss among the Partners, there
shall be established an allocation account with respect to each
outstanding Unit. The initial balance of each allocation account shall
be the amount paid by the Partner to the Partnership for the Unit.
Allocation accounts shall be adjusted as of the end of each fiscal year
and as of the date a Partner completely redeems his Units as follows:
(i) Each allocation account shall be increased
by the amount of income allocated to the holder of the Unit
pursuant to subparagraph (c)(1) above and subparagraph (c)(2)(cc)
below.
(ii) Each allocation account shall be decreased
by the amount of expense or loss allocated to the holder of the
Unit pursuant to subparagraph (c)(1) above and
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subparagraph (c)(2)(ee) below and by the amount of any distribution
the holder of the Unit has received with respect to the Unit (other
than on redemption of the Unit).
(iii) When a Unit is redeemed or exchanged in a
Series Exchange, the allocation account with respect to such Unit
shall be eliminated.
(bb) Net recognized gain shall be allocated first
to each Partner who has partially redeemed his Units or exchanged less
than all his Units in a Series Exchange during the fiscal year up to
the excess, if any, of the amount received upon redemption of the Units
or the amount deemed received on the Series Exchange of the Units over
the allocation account attributable to the redeemed Units or the Units
exchanged in the Series Exchange.
(cc) Net recognized gain remaining after the
allocation thereof pursuant to subparagraph (c)(2)(bb) above shall be
allocated next among all Partners whose capital accounts are in excess
of their Units' allocation accounts (after the adjustments in
subparagraph (c)(2)(bb) above) in the ratio that each such Partner's
excess bears to all such Partners' excesses. In the event that gain to
be allocated pursuant to this subparagraph (c)(2)(cc) is greater than
the excess of all such Partners' capital accounts over all such
allocation accounts, the excess will be allocated among all Partners in
the ratio that each Partner's capital account bears to all Partners'
capital accounts.
(dd) Net recognized loss shall be allocated first
to each Partner who has partially redeemed his Units or exchanged less
than all his Units in a Series Exchange during the fiscal year up to
the excess, if any, of the allocation account attributable to the
redeemed Units or the Units exchanged in the Series Exchange over the
amount received upon redemption of the Units or the amount deemed
received on the Series Exchange of the Units.
(ee) Net recognized loss remaining after the
allocation thereof pursuant to subparagraph (c)(2)(dd) above shall be
allocated next among all Partners whose Units' allocation accounts are
in excess of their capital accounts (after the adjustments in
subparagraph (c)(2)(dd) above) in the ratio that each such Partner's
excess bears to all such Partners' excesses. In the event that loss to
be allocated pursuant to this subparagraph (c)(2)(ee) is greater than
the excess of all such allocation accounts over all such Partners'
capital accounts, the excess loss will be allocated among all Partners
in the ratio that each Partner's capital account bears to all Partners'
capital accounts.
(3) The tax allocations prescribed by this Section
7(c) shall be made to each holder of a Unit whether or not the holder is a
substituted Limited Partner. In the event that a Unit has been transferred
or assigned pursuant to Section 10(a), the allocations prescribed by this
Section 7(c) shall be made with respect to such Unit without regard to the
transfer or assignment, except that in the year of transfer or assignment
the allocations prescribed by this Section 7(c) shall be divided between
the transferor or assignor and the transferee or assignee based on the
number of months each held the transferred or assigned Unit. For purposes
of this Section 7(c), tax allocations shall be made to the General
Partner's Units of General Partnership Interest on a Unit-equivalent
basis.
(4) The allocation of profit and loss for federal
income tax purposes set forth herein is intended to allocate taxable
profits and loss among Partners generally in the ratio and to the extent
that net profit and net loss are allocated to such Partners under Section
7(b) hereof so as to eliminate, to the extent possible, any disparity
between a Partner's capital account and his allocation account with
respect to each Unit then outstanding, consistent with the principles set
forth in Section 704(c) of the Internal Revenue Code of 1986, as amended
(the "Code").
(d) DEFINITIONS; ACCOUNTING.
(1) NET ASSETS. The Partnership's "Net Assets" shall
mean the total assets of the Partnership (including, but not limited to,
all cash and cash equivalents (valued at cost), accrued interest and
amortization of original issue discount, and the market value of all open
Futures Interests positions and other assets of the Partnership), less the
total liabilities of the Partnership (including, but not limited to,
one-half of the brokerage commissions that would be payable with respect
to the closing of each of the Partnership's open Futures Interests
positions (if charged on a "roundturn" basis), or brokerage fees (if
charged on a "flat rate" basis), management fees, incentive fees, ordinary
administrative expenses, Transaction Fees and Costs, if any, and
extraordinary expenses), determined in accordance with generally accepted
accounting principles consistently applied under the accrual basis of
accounting. Unless generally accepted accounting principles require
otherwise, the market
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value of a Futures Interest traded on a United States exchange shall be
determined using the settlement price on the exchange on which the
particular Futures Interest was traded by the Partnership on the day with
respect to which Net Assets are being determined; provided, however, that
if a Futures Interest could not have been liquidated on such day due to
the operation of daily limits or other rules of the exchange upon which
that Futures Interest shall be traded or otherwise, the settlement price
on the first subsequent day on which the Futures Interest could have been
liquidated shall be the market value of such Futures Interest for such
day. The market value of a forward contract or a Futures Interest traded
on a foreign exchange or off an exchange shall mean its market value as
determined by the General Partner on a basis consistently applied for each
different variety of forward contract or Futures Interest.
(2) NET ASSET VALUE. The "Net Asset Value" of a Unit
shall mean the Net Assets allocated to capital accounts represented by
Units divided by the aggregate number of Units.
(e) EXPENSES AND LIMITATIONS THEREOF. DWR shall pay all of
the organizational, Initial Offering and continuing offering expenses of the
Partnership (including, but not limited to, legal, accounting, and auditing
fees, printing costs, filing fees, escrow fees, marketing costs and expenses,
and other related expenses), and shall not be reimbursed therefor. Any such
offering expenses in connection with a subsequent offering of Units shall not be
paid by the Partnership.
Subject to the limits set forth below, and except to the
extent that DWR or an affiliate has agreed to pay any such fees, costs, or
expenses as provided in the Prospectus, the Partnership shall pay its
operational expenses. The General Partner shall not be reimbursed by the
Partnership for any costs incurred by it relating to office space, equipment,
and staff necessary for Partnership operations and administration of redemptions
and Series Exchanges of Units. The Partnership will be obligated to pay any
extraordinary expenses (determined in accordance with generally accepted
accounting principles) it may incur.
The Partnership's assets held by any Commodity Broker, as
provided in Section 7(i), may be used as margin solely for the Partnership's
trading. The Partnership shall bear all commodity brokerage fees and commissions
and, except as otherwise set forth herein or described in the Prospectus, shall
be obligated to pay all liabilities incurred by it, including, without
limitation, all fees and expenses incurred in connection with its trading
activities (including, but not limited to, floor brokerage fees, exchange fees,
clearinghouse fees, NFA fees, "give up" or transfer fees, costs associated with
the taking of delivery of Futures Interests, fees for the execution of forward
contract transactions, fees for the execution of cash transactions relating to
the exchange of futures for physical transactions, and the use of any Commodity
Broker's institutional and overnight execution facilities (collectively,
"Transaction Fees and Costs")), and management and incentive fees payable to any
Trading Advisor. Appropriate reserves may be created, accrued, and charged
against Net Assets for contingent liabilities, if any, as of the date any such
contingent liability becomes known to the General Partner. Such reserves shall
reduce the Net Asset Value of interests in the Partnership for all purposes,
including redemptions and Series Exchanges.
The following special limits shall apply to the
Partnership's fees and expenses, in accordance with Section IV.C of the NASAA
Guidelines: (a) the aggregate of (i) the management fees payable by the
Partnership to the Trading Advisor(s), and (ii) the Partnership's customary and
routine administrative expenses (other than commodity brokerage commissions or
fees, Transaction Fees and Costs, incentive fees, legal and auditing fees and
expenses, and extraordinary expenses), if such expenses are being paid directly
by the Partnership, shall not exceed 1/2 of 1% of the Partnership's Net Assets
per month, or 6% of the Partnership's Net Assets annually; (b) the incentive
fees payable by the Partnership to any Trading Advisor shall not exceed 15% of
the Partnership's "Trading Profits" (as defined in the Prospectus) attributable
to such Trading Advisor for the applicable calculation period, provided that
such incentive fees may be increased by 2% for each 1% by which the aggregate
fees and expenses described in clause (a) of this sentence are below the 6% of
Net Assets annual limit thereon (e.g., if such fees and expenses are 4% of Net
Assets, the maximum incentive fee payable may be increased to 19%); (c) any
"roundturn" brokerage commissions (excluding Transaction Fees and Costs) payable
by the Partnership to any Commodity Broker shall not exceed 80% of such
Commodity Broker's published non-member rates for speculative accounts; and (d)
the aggregate of (i) the brokerage commissions or fees payable by the
Partnership to any Commodity Broker, (ii) any Transaction Fees and Costs
separately payable by the Partnership, and (iii) any net excess interest and
compensating balance benefits to any Commodity Broker (after crediting the
Partnership with interest), shall not exceed 14% annually of the Partnership's
average monthly Net Assets as of the last day of each month during each calendar
year. The General Partner or an Affiliate thereof shall pay and shall not be
reimbursed for any fees and expenses in excess of any such limits.
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(f) LIMITED LIABILITY OF LIMITED PARTNERS. Each Unit, when
purchased by a Limited Partner in accordance with the terms of this Agreement,
shall be fully paid and nonassessable. No Limited Partner shall be liable for
the Partnership's obligations in excess of such Partner's unredeemed capital
contribution, undistributed profits, if any, and any distributions and amounts
received upon redemption of Units or deemed received on a Series Exchange of
Units, together with interest thereon. The Partnership shall not make a claim
against a Limited Partner with respect to amounts distributed to such Partner or
amounts received by such Partner upon redemption of Units or deemed received
upon a Series Exchange of Units, unless the Net Assets of the Partnership (which
shall not include any right of contribution from the General Partner except to
the extent previously made by it pursuant to this Agreement) shall be
insufficient to discharge the liabilities of the Partnership which shall have
arisen prior to the payment of such amounts.
(g) RETURN OF LIMITED PARTNER'S CAPITAL CONTRIBUTION. Except
to the extent that a Limited Partner shall have the right to withdraw capital
through redemption or Series Exchange of Units in accordance with Section 10(b)
or (c), no Limited Partner shall have any right to demand the return of his
capital contribution or any profits added thereto, except upon termination and
dissolution of the Partnership. In no event shall a Limited Partner be entitled
to demand or receive from the Partnership property other than cash.
(h) DISTRIBUTIONS. The General Partner shall have sole
discretion in determining what distributions (other than on redemption or Series
Exchange of Units), if any, the Partnership shall make to its Partners. If made,
all distributions shall be pro rata in accordance with the respective capital
accounts of the Partners and may be made by credit to a Limited Partner's
account with DWR or by check if such account is closed.
(i) INTEREST ON ASSETS. The Partnership shall deposit all of
its assets with such Commodity Broker(s) as the Partnership shall utilize from
time to time, and such assets shall be used by the Partnership to engage in
Futures Interests trading. Unless provided otherwise in the Prospectus, such
assets will be invested in securities approved by the CFTC for investment of
customer funds or held in non-interest-bearing accounts, and such Commodity
Broker(s) will credit the Partnership at month-end with interest income as set
forth in the Prospectus or as otherwise set forth in a notice to Limited
Partners.
8. MANAGEMENT AND TRADING POLICIES.
(a) MANAGEMENT OF THE PARTNERSHIP. Except as may be
otherwise specifically provided herein, the General Partner, to the exclusion of
all Limited Partners, shall conduct and manage the business of the Partnership,
including, without limitation, the investment of the funds of the Partnership.
No Limited Partner shall have the power to represent, act for, sign for, or bind
the General Partner or the Partnership. Except as provided herein, no Partner
shall be entitled to any salary, draw, or other compensation from the
Partnership. Each Limited Partner hereby undertakes to furnish to the General
Partner such additional information as may be determined by the General Partner
to be required or appropriate for the Partnership to open and maintain an
account or accounts with the Partnership's Commodity Broker(s) for the purpose
of trading in Futures Interests.
The General Partner shall be under a fiduciary duty to
conduct the affairs of the Partnership in the best interests of the Partnership.
The Limited Partners will under no circumstances be permitted to contract away,
or be deemed to have contracted away, the fiduciary obligations owed them by the
General Partner under statutory or common law. The General Partner shall have
fiduciary responsibility for the safekeeping of all of the funds and assets of
the Partnership, whether or not in its immediate possession or control, and the
General Partner shall not employ, or permit another to employ, such funds or
assets in any manner except for the benefit of the Partnership.
(b) THE GENERAL PARTNER. The General Partner, on behalf of
the Partnership, shall retain one or more Trading Advisors to make all trading
decisions for the Partnership, and shall delegate complete trading discretion to
such Trading Advisor(s); provided, however, that the General Partner may
override any trading instructions: (i) that the General Partner, in its sole
discretion, determines to be in violation of any trading policy of the
Partnership, as set forth in subsection (c) below; (ii) to the extent the
General Partner believes doing so is necessary for the protection of the
Partnership; (iii) to terminate the Futures Interests trading of the
Partnership; (iv) to comply with applicable laws or regulations; or (v) as and
to the extent necessary, upon the failure of a Trading Advisor to comply with a
request to make the necessary amount of funds available to the Partnership
within five days of such request, to fund distributions, redemptions, or
reapportionments among Trading Advisors or to pay the expenses of the
Partnership; and provided, further, that the General Partner may make trading
decisions at any time at which a Trading Advisor shall become incapacitated or
some other emergency shall arise as a result of which such Trading Advisor shall
be unable or unwilling to act and a successor Trading Advisor has not yet been
retained.
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The Partnership shall not enter into any agreement with the
General Partner, DWR, MS & Co., MSDW, or their respective Affiliates (other than
a selling agreement as contemplated by Section 6) which has a term of more than
one year and which does not provide that it shall be terminable by the
Partnership without penalty upon 60 days' prior written notice by the General
Partner; provided, however, that any such agreement may provide for automatic
renewal for additional one-year terms unless either the Partnership or the other
party to such agreement, upon written notice given not less than 60 days prior
to the original termination date or any extended termination date, notifies the
other party of its intention not to renew.
Subject to the foregoing paragraph, the General Partner is
hereby authorized, on behalf of the Partnership, to enter into the form of
management agreement described in the Prospectus (each, a "Management
Agreement") with each Trading Advisor described in the Prospectus, and to cause
the Partnership to pay to each such Trading Advisor the management and incentive
fees provided for in the applicable Management Agreement, as described in the
Prospectus.
The General Partner is further authorized: (a) to modify
(including changing the form and amount of compensation and other arrangements
and terms) or terminate any Management Agreement in its sole discretion in
accordance with the terms of such Management Agreement and to employ from time
to time other Trading Advisors pursuant to management agreements having such
terms and conditions and providing for such form and amount of compensation as
the General Partner in its sole discretion shall deem to be in the best
interests of the Partnership, which terms may include provision for the payment
of an incentive fee to a new or replacement Trading Advisor or Advisors which
shall be based on any trading profits which shall be earned by such Trading
Advisor(s), irrespective of whether such profits shall exceed trading losses
incurred by any previous or existing Trading Advisor or Advisors or by the
Partnership as a whole; (b) to enter into the Customer Agreements described in
the Prospectus (each, a "Customer Agreement") with the Commodity Brokers
described in the Prospectus, and to cause the Partnership to pay to such
Commodity Brokers brokerage fees or commissions and Transaction Fees and Costs
at the rates provided for in the Customer Agreements and as described in the
Prospectus; and (c) to modify (including changing the form and amount of
compensation and other arrangements and terms) and terminate any Customer
Agreement in its sole discretion in accordance with the terms of such agreement
and to employ from time to time other Commodity Brokers pursuant to customer
agreements having such terms and conditions and providing for such form and
amount of compensation as the General Partner in its sole discretion shall deem
to be in the best interests of the Partnership, provided, however, that the
General Partner shall review at least annually the brokerage arrangements with
the Partnership to ensure that the brokerage fees or commissions paid to any
Commodity Broker are fair, reasonable, and competitive, and represent the best
price and services available, taking into consideration: (i) the size of the
Partnership; (ii) the Futures Interests trading activity; (iii) the services
provided by the Commodity Broker or any Affiliate thereof to the Partnership;
(iv) the costs incurred by the Commodity Broker or any Affiliate thereof in
organizing and operating the Partnership and offering Units; (v) the overall
costs to the Partnership; (vi) any excess interest and compensating balance
benefits to the Commodity Broker from assets held thereby; and (vii) if the
General Partner is an Affiliate of the Commodity Broker, the risks incurred by
and the obligations of the General Partner as such. Any modifications to any of
the foregoing compensation arrangements shall be subject to the limits described
in the fourth paragraph of Section 7(e) and the notice requirements of Section
9.
The General Partner may subdivide or combine Units in its
discretion, provided that no such subdivision or combination shall affect the
Net Asset Value of any Limited Partner's interest in the Partnership.
(c) GENERAL TRADING POLICIES. The General Partner shall
require any Trading Advisor retained by the Partnership to follow the trading
policies set forth below. The following trading policies are applicable to the
Partnership as a whole and do not apply to the trading of any individual Trading
Advisor.
1. The Trading Advisor will trade only in those
Futures Interests that have been approved by the General Partner. The
Partnership normally will not establish new positions in a Futures
Interest for any one contract month or option if such additional positions
would result in a net long or short position for that Futures Interest
requiring as margin or premium more than 15% of the Partnership's Net
Assets.
2. The Partnership will not acquire additional
positions in any Futures Interest if such additional positions would
result in the aggregate net long or short positions for all Futures
Interests requiring as margin or premium for all outstanding positions
more than 66 2/3% of the Partnership's Net Assets. Under certain market
conditions, such as an abrupt increase in margins required by a commodity
exchange or its clearinghouse or an inability to liquidate open positions
because of daily price fluctuation limits, or both, the Partnership may be
required to commit as margin amounts in excess of
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the foregoing limit. In such event, the Trading Advisor will reduce its
open positions to comply with the foregoing limit before initiating new
positions.
3. The Partnership will trade currencies and other
commodities in the interbank and forward contract markets only with banks,
brokers, dealers, and other financial institutions which the General
Partner, in conjunction with DWR, has determined to be creditworthy. In
determining the creditworthiness of a counterparty to a forward contract,
the General Partner and DWR will consult with the Corporate Credit
Department of DWR.
4. The Trading Advisor will not generally take a
position after the first notice day in any Futures Interest during the
delivery month of that Futures Interest, except to match trades to close
out a position on the interbank foreign currency or other forward markets
or liquidate trades in a limit market.
5. The Partnership will not employ the trading
technique commonly known as "pyramiding," in which the speculator uses
unrealized profits on existing positions in a given Futures Interest due
to favorable price movement as margin specifically to buy or sell
additional positions in the same or a related Futures Interest. Taking
into account the Partnership's open trade equity on existing positions in
determining generally whether to acquire additional Futures Interest
positions on behalf of the Partnership will not be considered to
constitute "pyramiding."
6. The Partnership will not under any circumstances
lend money to Affiliates or otherwise. The Partnership will not utilize
borrowings except if the Partnership purchases or takes delivery of
commodities. If the Partnership borrows money from the General Partner or
any Affiliate thereof, the lending entity in such case (the "Lender") may
not receive interest in excess of its interest costs, nor may the Lender
receive interest in excess of the amounts which would be charged the
Partnership (without reference to the General Partner's financial
abilities or guarantees) by unrelated banks on comparable loans for the
same purpose, nor may the Lender or any Affiliate thereof receive any
points or other financing charges or fees regardless of the amount. Use of
lines of credit in connection with its forward trading does not, however,
constitute borrowing for purposes of this trading limitation.
7. The Partnership will not permit "churning" of the
Partnership's assets.
8. The Partnership will not purchase, sell, or trade
securities (except securities approved by the CFTC for investment of
customer funds). The Partnership may, however, trade in futures contracts
on securities and securities indexes, options on such futures contracts,
and other commodity options.
(d) CHANGES TO TRADING POLICIES. The General Partner shall
not make any material change in the trading policies in Section 8(c) without
obtaining prior written approval of Limited Partners owning more than 50% of the
Units then outstanding.
(e) MISCELLANEOUS. The General Partner may take such other
actions as it deems necessary or desirable to manage the business of the
Partnership, including, but not limited to, the following: opening bank accounts
and paying or authorizing the payment of distributions to the Partners and the
expenses of the Partnership, such as brokerage fees and commissions, management
and incentive fees, ordinary and extraordinary expenses, and Transaction Fees
and Costs.
The General Partner shall prepare or cause to be prepared
and shall file on or before the due date (or any extension thereof) any federal,
state, or local tax returns which shall be required to be filed by the
Partnership. The General Partner shall cause the Partnership to pay any taxes
payable by the Partnership; provided, however, that the General Partner shall
not be required to cause the Partnership to pay any tax so long as the General
Partner or the Partnership shall be in good faith and by appropriate legal
proceedings contesting the validity, applicability, or amount thereof and such
contest shall not materially endanger any right or interest of the Partnership.
The General Partner shall be authorized to perform all
duties imposed by Sections 6221 through 6233 of the Code on the General Partner
as "tax matters partner" of the Partnership, including, but not limited to, the
following: (a) the power to conduct all audits and other administrative
proceedings with respect to Partnership tax items; (b) the power to extend the
statute of limitations for all Limited Partners with respect to Partnership tax
items; (c) the power to file a petition with an appropriate federal court for
review of a final Partnership administrative adjustment; and (d) the power to
enter into a settlement with the Internal Revenue Service on behalf of, and
binding upon, those Limited Partners having less than a 1% interest in the
Partnership, unless a Limited Partner shall have notified the Internal Revenue
Service and the General Partner that the General Partner may not act on such
Partner's behalf.
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If the Partnership is required to withhold United States
taxes on income with respect to Units held by Limited Partners who are
nonresident alien individuals, foreign corporations, foreign partnerships,
foreign trusts, or foreign estates, the General Partner may, but is not required
to, pay such tax out of its own funds and then be reimbursed out of the proceeds
of any distribution or redemption with respect to such Units.
The General Partner shall keep at the principal office of
the Partnership such books and records relating to the business of the
Partnership as it deems necessary or advisable, as are required by the Commodity
Exchange Act, as amended (the "CEAct"), and the CFTC's rules and regulations
thereunder, or as shall be required by other regulatory bodies, exchanges,
boards, and authorities having jurisdiction. Such books and records shall be
retained by the Partnership for not less than five years.
The Partnership's books and records shall be available to
Limited Partners or their authorized attorneys or agents for inspection and
copying during normal business hours of the Partnership and, upon request, the
General Partner shall send copies of same to any Limited Partner upon payment by
him of reasonable reproduction and distribution costs. Any subscription
documentation executed by a Limited Partner in connection with his purchase of
Units, Series Exchange or Non-Series Exchange, as applicable, shall be retained
by the Partnership for not less than six years.
Except as described herein or in the Prospectus, no person
may receive, directly or indirectly, any advisory, management, or incentive fee
for investment advice who shares or participates in per trade commodity
brokerage commissions paid by the Partnership. No Commodity Broker for the
Partnership may pay, directly or indirectly, rebates or "give-ups" to the
General Partner or any Trading Advisor, and such prohibitions may not be
circumvented by any reciprocal business arrangements. Assets of the Partnership
shall not be commingled with assets of any other person. Margin deposits and
deposits of assets with a Commodity Broker shall not constitute commingling.
The General Partner shall devote such time and resources to
the Partnership's business and affairs as it, in its sole discretion, shall deem
necessary or advisable to effectively manage the Partnership. Subject to Section
5, the General Partner may engage in other business activities and shall not be
required to refrain from any other activity or disgorge any profits from any
such activity, whether as general partner of additional partnerships formed for
investment in Futures Interests or otherwise. The General Partner may engage and
compensate, on behalf and from funds of the Partnership, such persons, firms, or
corporations, including any Affiliate of the General Partner, as the General
Partner in its sole judgment shall deem advisable for the conduct and operation
of the business of the Partnership; provided, however, that, except as described
herein and in the Prospectus, the General Partner shall not engage any such
Affiliate to perform services for the Partnership without having made a good
faith determination that: (i) the Affiliate which it proposes to engage to
perform such services is qualified to do so (considering the prior experience of
the Affiliate or the individuals employed thereby); (ii) the terms and
conditions of the agreement pursuant to which such Affiliate is to perform
services for the Partnership are no less favorable to the Partnership than could
be obtained from equally-qualified unaffiliated third parties, or are otherwise
determined by the General Partner to be fair and reasonable to the Partnership
and the Limited Partners; and (iii) the maximum period covered by the agreement
pursuant to which such Affiliate is to perform services for the Partnership
shall not exceed one year, and such agreement shall be terminable without
penalty upon 60 days' prior written notice by the Partnership. Nothing contained
in the preceding sentence shall prohibit the General Partner from receiving
reimbursement from the Partnership for expenses advanced on behalf of the
Partnership (other than organizational and offering expenses).
No person dealing with the General Partner shall be required
to determine its authority to make any undertaking on behalf of the Partnership
or to determine any fact or circumstance bearing upon the existence of its
authority.
9. AUDITS; REPORTS TO LIMITED PARTNERS.
The Partnership's books shall be audited annually by an
independent certified public accounting firm selected by the General Partner in
its sole discretion. The Partnership shall cause each Partner to receive: (a)
within 90 days after the close of each fiscal year an annual report containing
audited financial statements (including a statement of income and a statement of
financial condition) of the Partnership for the fiscal year then ended, prepared
in accordance with generally accepted accounting principles and accompanied by a
report of the accounting firm which audited such statements, and such other
information as the CFTC and NFA may from time to time require (such annual
reports will provide a detailed statement of any transactions with the General
Partner or its Affiliates and of fees, commissions and any compensation paid or
accrued to the
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General Partner or its Affiliates for the fiscal year completed, showing the
amount paid or accrued to each recipient and the services performed); (b) within
75 days after the close of each fiscal year (but in no event later than March 15
of each year) such tax information relating to the Partnership as is necessary
for such Partner to complete his federal income tax return; (c) within 30 days
after the close of each calendar month, such financial and other information
with respect to the Partnership as the CFTC and NFA from time to time shall
require in monthly reports, together with information concerning any material
change in the brokerage commissions and fees payable by the Partnership to any
Commodity Broker; and (d) at such times as shall be necessary or advisable in
the General Partner's sole discretion, such other information as the CFTC and
NFA from time to time shall require under the CEAct to be given to participants
in commodity pools.
In addition, if any of the following events occurs, notice
of such event, including a description of the redemption and voting rights of
Limited Partners, as set forth in Sections 10(b) and 15, shall be mailed to each
Limited Partner within seven business days after the occurrence of such event:
(a) a decrease in the Net Asset Value of a Unit as of the close of business on
any business day to 50% or less of the Net Asset Value for such Unit as of the
end of the immediately preceding month; (b) any material amendment to this
Agreement; (c) any change in Trading Advisors or any material change in the
Management Agreement with a Trading Advisor; (d) any change in Commodity Brokers
or any material change in the compensation arrangements with a Commodity Broker;
(e) any change in general partners or any material change in the compensation
arrangements with a general partner; (f) any change in the Partnership's fiscal
year; (g) any material change in the Partnership's trading policies; or (h)
cessation of Futures Interests trading by the Partnership. In the case of a
notice given in accordance with clause (a) of the immediately preceding
sentence: (i) such notice shall also advise Limited Partners that a "Special
Redemption Date," on a date specified in such notice (but in no event earlier
than 15, nor later than 45, days after the mailing of such notice), will take
place as of which Limited Partners may redeem their Units in the same manner as
provided in Section 10(b) for regular Redemption Dates (a Special Redemption
Date may take place on a regular Redemption Date); and (ii) following the close
of business on the date of the 50% decrease giving rise to such notice, the
Partnership shall liquidate all existing positions as promptly as reasonably
practicable and shall suspend all Futures Interests trading through the Special
Redemption Date. Thereafter, the General Partner shall determine whether to
reinstitute Futures Interests trading or to terminate the Partnership. As used
herein, "material change in the Partnership's trading policies" shall mean any
material change in those trading policies specified in Section 8(c).
The Net Asset Value of a Unit shall be determined daily by
the General Partner, and the most recent Net Asset Value calculation shall be
promptly supplied by the General Partner in writing to any Limited Partner after
the General Partner shall have received a written request from such Partner.
In addition, no increase (subject to the limits in the
fourth paragraph of Section 7(e)) in any of the management, incentive, or
brokerage fees payable by the Partnership, or any caps (other than those
described in the fourth paragraph of Section 7(e)) on management fees, incentive
fees, brokerage commissions or fees, Transaction Fees and Costs, ordinary
administrative expenses, or net excess interest or compensating balance
benefits, all as described in the Prospectus, may take effect until the first
business day following a Redemption Date, provided that: (i) notice of such
increase is mailed to each Limited Partner at least five business days prior to
the last date on which a Request for Redemption must be received by the General
Partner with respect to the applicable Redemption Date; (ii) such notice shall
describe the redemption and voting rights of Limited Partners, as set forth in
Sections 10(b) and 15; and (iii) Limited Partners redeeming Units at the first
Redemption Date following such notice shall not be subject to the redemption
charges described in Section 10(b).
10. TRANSFER; REDEMPTION OF UNITS; EXCHANGE PRIVILEGE.
(a) TRANSFER. A Limited Partner may transfer or assign his
Units only as provided in this Section 10(a). No transferee or assignee shall
become a substituted Limited Partner unless the General Partner first consents
to such transfer or assignment in writing, which consent may be withheld in its
sole discretion. Any transfer or assignment of Units which is permitted
hereunder shall be effective as of the end of the month in which such transfer
or assignment is made; provided, however, that the Partnership need not
recognize any transfer or assignment until it has received at least 30 days'
prior written notice thereof from the Limited Partner, which notice shall set
forth the address and social security or taxpayer identification number of the
transferee or assignee and the number of Units to be transferred or assigned,
and which notice shall be signed by the Limited Partner. No transfer or
assignment of Units will be effective or recognized by the Partnership if the
transferee or assignee, or the transferor or assignor (if fewer than all Units
held by the transferor or assignor are being transferred or assigned), would, by
reason of such transfer or assignment, acquire Units which do not meet the
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minimum initial subscription requirements, as described in the Prospectus;
provided, however, that the foregoing restriction shall not apply to transfers
or assignments of Units (i) by the way of gift or inheritance, (ii) to any
members of the Limited Partner's family, (iii) resulting from divorce,
annulment, separation or similar proceedings, or (iv) to any person who would be
deemed an Affiliate of the Limited Partner (for purposes of this clause (iv),
the term "Affiliate" also includes any partnership, corporation, association, or
other legal entity for which such Limited Partner acts as an officer, director
or partner). No transfer or assignment shall be permitted unless the General
Partner is satisfied that (i) such transfer or assignment would not be in
violation of the Act or applicable federal, state, or foreign securities laws,
and (ii) notwithstanding such transfer or assignment, the Partnership shall
continue to be classified as a partnership rather than as an association taxable
as a corporation under the Code. No transfer or assignment of Units shall be
effective or recognized by the Partnership if such transfer or assignment would
result in the termination of the Partnership for federal income tax purposes,
and any attempted transfer or assignment in violation hereof shall be
ineffective to transfer or assign any such Units. Any transferee or assignee of
Units who has not been admitted to the Partnership as a substituted Limited
Partner shall not have any of the rights of a Limited Partner, except that such
person shall receive that share of capital and profits, shall have that right of
redemption, and shall remain subject to the other terms of this Agreement
binding upon Limited Partners. No Limited Partner shall have any right to
approve of any person becoming a substituted Limited Partner. The Limited
Partner shall bear all costs (including any attorneys' and accountants' fees)
related to such transfer or assignment of his Units.
In the event that the General Partner consents to the
admission of a substituted Limited Partner pursuant to this Section 10(a), the
General Partner is hereby authorized to take such actions as may be necessary to
reflect such substitution of a Limited Partner.
(b) REDEMPTION. Except as set forth below and in accordance
with the terms hereof, a Limited Partner (or any assignee thereof) may withdraw
all or part of his unredeemed capital contribution and undistributed profits, if
any, by requiring the Partnership to redeem all or part of his Units at the Net
Asset Value thereof, reduced as hereinafter described (any such withdrawal being
herein referred to as a "Redemption"). Redemptions may only be made in whole
Units, with a minimum amount of 100 Units required for each redemption, unless a
Limited Partner is redeeming his entire interest in the Partnership.
Except as otherwise provided in Section 6, Units may be
redeemed at the option of a Limited Partner as of, but not before, the sixth
month-end following the closing at which the Limited Partner first becomes a
Limited Partner of the Partnership or a limited partner of any other partnership
offering Units pursuant to the Prospectus (all such partnerships shall be
defined collectively as the "Charter Series Partnerships" or individually as a
"Charter Series Partnership"). Thereafter, Units may be redeemed as of the end
of any month. However, any Unit redeemed at or prior to the end of the twelfth
or twenty-fourth full month following the closing at which such Unit was issued
will be assessed a redemption charge equal to 2% or 1%, respectively, of the Net
Asset Value of a Unit on the date of such redemption. The foregoing charges will
be paid to DWR. A Limited Partner who purchased Units pursuant to a Non-Series
Exchange (as defined in the Prospectus) will not be subject to the foregoing
redemption charges with respect to such Units. The number of Units (determined
on a per closing basis), expressed as a percentage of Units purchased, which is
not subject to a redemption charge is determined by dividing (a) the dollar
amount used in a Non-Series Exchange to purchase Units by (b) the total
investment in the Partnership. Limited Partners who redeem units of limited
partnership interest in a Charter Series Partnership and have either paid a
redemption charge with respect to such units, or have held such units for at
least two years and subsequently purchase Units, will not be subject to
redemption charges on the new Units under the following conditions: (a) the
subscriber must subscribe for new Units prior to the one-year anniversary of the
effective date of the redemption of the units of limited partnership in the
other Charter Series Partnership, (b) the subscriber will not be subject to
redemption charges with respect to the amount of the subscription for the new
Units up to the amount of the proceeds of the redemption (net of any redemption
charges), and (c) the subscriber must hold the newly acquired Units for six
months from the date of purchase before such Units may be redeemed or exchanged
pursuant to a Series Exchange. Such subscribers remain subject to the minimum
purchase and suitability requirements. In addition, redemption charges may not
be imposed for certain large purchasers of units of limited partnership interest
in the Charter Series Partnerships, as provided in the Prospectus. A Limited
Partner who redeems Units pursuant to a Series Exchange will not be subject to
redemption charges with respect to the redeemed Units. Units acquired pursuant
to a Series Exchange will be deemed as having the same purchase date as the
Units exchanged for purposes of determining the applicability of any redemption
charges. Furthermore, a Limited Partner redeeming Units at the first Redemption
Date following notice of an increase in certain fees in accordance with the
fourth paragraph of Section 9 will not be subject to the foregoing redemption
charges. Redemptions of Units will be deemed to be in the order in which they
are purchased (assuming purchases at more than one
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closing), with the Units not subject to a redemption charge being deemed to be
the first Units purchased at a closing.
Redemption of a Limited Partner's Units shall be effective
as of the last day of the first month ending after an irrevocable Request for
Redemption in proper form shall have been received by the General Partner
("Redemption Date"); provided, that all liabilities, contingent or otherwise, of
the Partnership (except any liability to Partners on account of their capital
contributions) shall have been paid or there shall remain property of the
Partnership sufficient to pay them. As used herein, "Request for Redemption"
shall mean a letter in the form specified by the General Partner and received by
the General Partner by 5:00 p.m. (New York City time) at least five business
days prior to the date on which such Redemption is to be effective. A form of
Request for Redemption is annexed to this Agreement. Additional forms of Request
for Redemption may be obtained by written request to the General Partner.
Upon Redemption, a Limited Partner (or any assignee thereof)
shall receive from the Partnership for each Unit redeemed an amount equal to the
Net Asset Value thereof as of the Redemption Date, less any redemption charges
and any amount owing by such Partner (and his assignee, if any) to the
Partnership pursuant to Section 14(d). If a Redemption is requested by an
assignee, all amounts owed to the Partnership under Section 14(d) by the Partner
to whom such Unit was sold, as well as all amounts owed by all assignees of such
Unit, shall be deducted from the Net Asset Value of such Unit upon Redemption.
The General Partner shall endeavor to pay Redemptions within 10 business days
after the Redemption Date, except that under special circumstances (including,
but not limited to, the inability on the part of the Partnership to liquidate
Futures Interests positions or the default or delay in payments which shall be
due the Partnership from commodity brokers, banks, or other persons), the
Partnership may delay payment to Partners requesting Redemption of Units of the
proportionate part of the Net Asset Value of the Units represented by the sums
which are the subject of such default or delay. Redemptions will be made by
credit to the Limited Partner's customer account with DWR or by check mailed to
the Limited Partner if such account is closed. The General Partner may, in its
absolute discretion, waive any restrictions or charges applicable to
redemptions.
The foregoing terms and conditions in this Section 10(b),
other than those in the second paragraph hereof prohibiting redemptions before
the sixth month-end following the closing at which a person first becomes a
Limited Partner, shall also apply to redemptions effected on "Special Redemption
Dates" held in accordance with Section 9.
The General Partner shall be authorized to execute, file,
record, and publish, on behalf of the Partnership and each Partner, such
amendments to this Agreement and such other documents as shall be necessary or
desirable to reflect any Redemption pursuant to this Section 10(b).
(c) EXCHANGE PRIVILEGE. Except as set forth below, a Limited
Partner (or any assignee thereof) may redeem his Units effective as of the last
business day of any month and authorize the General Partner to use the net
proceeds of such redemption to purchase units of limited partnership interest of
another Charter Series Partnership (such a transfer between Charter Series
Partnerships being herein referred to as a "Series Exchange"). Series Exchanges
shall only be permitted by a Limited Partner as of, but not before, the sixth
month-end following the closing at which a Limited Partner first became a
limited partner of a Charter Series Partnership. The minimum amount of any
Series Exchange is 500 Units, unless a Limited Partner is liquidating his entire
interest in the other Charter Series Partnerhip; provided, however, that the
minimum amount of a Series Exchange for Limited Partners that already own Units
in the Charter Series Partnership being purchased and desire to make an
additional investment in such Partnership is 100 Units.
A Series Exchange shall be effective as of the last business
day of the month ending after an Exchange Agreement and Power of Attorney in
proper form has been received by the General Partner ("Exchange Date"),
provided, that the Partnership has assets sufficient to discharge its
liabilities and to redeem Units on the Exchange Date. As used herein, "Exchange
Agreement and Power of Attorney" shall mean the form annexed to the Prospectus
as Exhibit B, sent by a Limited Partner (or any assignee thereof) to a DWR
branch office and received by the General Partner at least 5 business days prior
to the Exchange Date. Additional forms of the Exchange Agreement and Power of
Attorney may be obtained by written request to the General Partner or from a
local DWR branch office. Upon requesting a Series Exchange, a Limited Partner
shall have authorized the General Partner to redeem the number of Units
specified therein and to utilize the net proceeds of such redemption to purchase
an amount of units of limited partnership interest of one or more other Charter
Series Partnerships as specified in the Exchange Agreement and Power of
Attorney. The General Partner shall cause the net proceeds of the redemption to
be delivered to the Charter Series Partnership(s) issuing and selling units of
limited partnership interest to the redeeming Limited Partner, and shall cause
to be mailed to such Limited Partner, within 20 business days after such
Exchange Date, a written confirmation thereof.
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At the next closing on the sale of Units following each
Exchange Date, the Partnership shall issue and sell Units with a total Net Asset
Value equal to the net proceeds of redemptions from limited partners of other
Charter Series Partnerships requesting Units on a Series Exchange, provided,
that the General Partner, in its capacity as the general partner of each of the
Charter Series Partnerships, has (i) timely received a properly executed
Exchange Agreement and Power of Attorney verifying that such units of limited
partnership interest in the other Charter Series Partnership(s) subject to such
Series Exchange are owned by the person requesting such Series Exchange and
acknowledging that the limited partner thereof remains eligible to purchase
Units, and (ii) caused the net proceeds from units of limited partnership
interest in the other Charter Series Partnership(s) being redeemed to be
transferred to the Partnership in payment of such Units. Each Unit to be
purchased with the net proceeds of a redemption of units of limited partnership
interest from another Charter Series Partnership shall be issued and sold by the
Partnership at a price per Unit equal to 100% of the Net Asset Value of a Unit
as of the close of business on the relevant Exchange Date.
Each Limited Partner understands that its ability to effect
a Series Exchange in another Charter Series Partnership is conditioned upon
units of limited partnership interest of other Charter Series Partnerships being
registered and qualified for sale pursuant to a current Prospectus immediately
prior to each Exchange Date. The General Partner shall not have any obligation
to have units of limited partnership interest in other Charter Series
Partnerships registered. There can be no assurance that any or a sufficient
number of such units of limited partnership interest will be available for sale
on the Exchange Date. If units of limited partnership interest are not
registered or qualified for sale under either federal or applicable state
securities laws, the General Partner will not be able to effect a Series
Exchange for the Limited Partner. Furthermore, certain states may impose
significant burdens on, or alter the requirements for, qualifying units of
limited partnership interest for sale and in such cases, the General Partner may
elect not to continue to qualify units of limited partnership interest for sale
in such state or states, and a resident thereof would not be eligible for a
Series Exchange. In the event that not all Exchange Agreements and Powers of
Attorney can be processed because an insufficient number of units of limited
partnership interest are available for sale on an Exchange Date, the General
Partner is hereby authorized to allocate units of limited partnership interest
in any manner which it deems is reasonable under the circumstances and may
allocate a substantial portion of such units of limited partnership interest to
new subscribers for Units.
The General Partner, on behalf of the Partnership and each
Partner, is authorized to execute, file, record, and publish such amendments to
this Agreement and such other documents as shall be necessary to reflect any
Series Exchange pursuant to this Section 10(c).
11. SPECIAL POWER OF ATTORNEY.
Each Limited Partner, by the execution of this Agreement,
does irrevocably constitute and appoint the General Partner, with full power of
substitution, as his true and lawful agent and attorney-in-fact, in his name,
place, and stead, (a) to execute, acknowledge, swear to, deliver, file, and
record in his behalf in the appropriate public offices and publish: (i) this
Agreement and the Certificate of Limited Partnership and amendments thereto;
(ii) all instruments that the General Partner deems necessary or appropriate to
reflect any amendment, change, or modification of this Agreement or the
Certificate of Limited Partnership made in accordance with the terms of this
Agreement; (iii) certificates of assumed name; and (iv) all instruments that the
General Partner deems necessary or appropriate to qualify or maintain the
qualification of the Partnership to do business as a foreign limited partnership
in other jurisdictions; and (b) to admit additional Limited Partners and, to the
extent that it is necessary under the laws of any jurisdiction, to execute,
deliver, and file amended certificates or agreements of limited partnership or
other instruments to reflect such admission. The Power of Attorney granted
herein shall be irrevocable and deemed to be a power coupled with an interest
and shall survive the incapacity, death, dissolution, liquidation, or
termination of a Limited Partner. Each Limited Partner hereby agrees to be bound
by any representation made by the General Partner and by any successor thereto
acting in good faith pursuant to such Power of Attorney. Each Limited Partner
agrees to execute a special Power of Attorney on a document separate from this
Agreement. In the event of any conflict between this Agreement and any
instruments filed by such attorney-in-fact pursuant to the Power of Attorney
granted in this Section 11, this Agreement shall control.
12. WITHDRAWAL OF PARTNERS.
The Partnership shall terminate and be dissolved upon the
withdrawal, insolvency, bankruptcy, dissolution, liquidation, or termination of
the General Partner (unless a new general partner(s) is elected pursuant to
Section 15(c) and such remaining general partner(s) shall have elected to
continue the business of
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the Partnership, which any remaining general partner(s) shall have the right to
do). The General Partner shall not withdraw or assign all of its interest at any
time without giving the Limited Partners 120 days' prior written notice of its
intention to withdraw or assign, and, if the Limited Partners thereupon elect a
new general partner or partners pursuant to Section 15(c) which elect(s) to
continue the business of the Partnership, the withdrawing General Partner shall
pay all reasonable expenses incurred by the Partnership in connection with such
withdrawal. The General Partner shall be paid the Net Asset Value of its
interests in the Partnership as of the date of such withdrawal.
The death, incompetency, withdrawal, insolvency, bankruptcy,
termination, liquidation, or dissolution of a Limited Partner shall not
terminate or dissolve the Partnership, and such Limited Partner, his estate,
custodian, or personal representative shall have no right to withdraw or value
such Limited Partner's interest in the Partnership except as provided in Section
10. Each Limited Partner (and any assignee of such Partner's interest) expressly
agrees that in the event of his death, he waives on behalf of himself and his
estate and he directs the legal representative of his estate and any person
interested therein to waive the furnishing of any inventory, accounting, or
appraisal of the assets of the Partnership and any right to an audit or
examination of the books of the Partnership (except to the extent permissible
under the sixth paragraph of Section 8(e)).
13. NO PERSONAL LIABILITY FOR RETURN OF CAPITAL.
Subject to Section 14, neither the General Partner, DWR, nor
any Affiliate thereof shall be personally liable for the return or repayment of
all or any portion of the capital or profits of any Partner (or assignee), it
being expressly agreed that any such return of capital or profits made pursuant
to this Agreement shall be made solely from the assets (which shall not include
any right of contribution from the General Partner) of the Partnership.
14. STANDARD OF LIABILITY; INDEMNIFICATION.
(a) STANDARD OF LIABILITY. The General Partner and its
Affiliates shall not be liable to the Partnership, the Limited Partners, or its
or their successors or assigns, for any act, omission, conduct or activity
undertaken by or on behalf of the Partnership which the General Partner
determines, in good faith, to be in the best interests of the Partnership,
unless such act, omission, conduct, or activity constituted misconduct or
negligence.
(b) INDEMNIFICATION BY THE PARTNERSHIP. The Partnership
shall indemnify, defend, and hold harmless the General Partner and its
Affiliates 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) actually and reasonably incurred arising from
any act, omission, activity, or conduct undertaken by or on behalf of the
Partnership, including, without limitation, any demands, claims, or lawsuits
initiated by a Limited Partner (or assignee thereof), provided that (1) the
General Partner has determined, in good faith, that the act, omission, activity,
or conduct giving rise to the claim for indemnification was in the best
interests of the Partnership, and (2) the act, omission, activity, or conduct
that was the basis for such loss, liability, damage, cost, or expense was not
the result of misconduct or negligence. Notwithstanding anything to the contrary
contained in the foregoing, neither the General Partner nor any of its
Affiliates nor any person acting as a broker-dealer shall be indemnified by the
Partnership for any losses, liabilities, or expenses arising from or out of an
alleged violation of federal or state securities laws unless (1) there has been
a successful adjudication on the merits of each count involving alleged
securities law violations as to the particular indemnitee, or (2) such claims
have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee, or (3) a court of competent
jurisdiction approves a settlement of the claims against the particular
indemnitee and finds that indemnification of the settlement and related costs
should be made, provided, with regard to such court approval, the indemnitee
must apprise the court of the position of the SEC, and the positions of the
respective securities administrators of Massachusetts, Missouri, Tennessee,
and/or those other states and jurisdictions in which the plaintiffs claim that
they were offered or sold Units, with respect to indemnification for securities
laws violations before seeking court approval for indemnification. Furthermore,
in any action or proceeding brought by a Limited Partner in the right of the
Partnership to which the General Partner or any Affiliate thereof is a party
defendant, any such person shall be indemnified only to the extent and subject
to the conditions specified in the Act and this Section 14(b). The Partnership
shall make advances to the General Partner or its Affiliates hereunder only if:
(1) the demand, claim, lawsuit, or legal action relates to the performance of
duties or services by such persons to the Partnership; (2) such demand, claim,
lawsuit, or legal action is not initiated by a Limited Partner; and (3) such
advances are repaid, with interest at the legal rate under Delaware law, if the
person receiving such advance is ultimately found not to be entitled to
indemnification hereunder.
A-16
<PAGE>
Nothing contained in this Section 14(b) shall increase the
liability of any Limited Partner to the Partnership beyond the amount of his
unredeemed capital contribution, undistributed profits, if any, and any amounts
received on distributions and redemptions and deemed received on Series
Exchanges, together with interest thereon. All rights to indemnification and
payment of attorneys' and accountants' fees and expenses shall not be affected
by the termination of the Partnership or the withdrawal, insolvency, or
dissolution of the General Partner.
The Partnership shall not incur the cost of that portion of
liability insurance which insures the General Partner and its Affiliates for any
liability as to which the General Partner and its Affiliates are prohibited from
being indemnified.
(c) AFFILIATE. As used in this Agreement, the term
"Affiliate" of a person shall mean: (i) any natural person, partnership,
corporation, association, or other legal entity directly or indirectly owning,
controlling, or holding with power to vote 10% or more of the outstanding voting
securities of such person; (ii) any partnership, corporation, association, or
other legal entity 10% or more of whose outstanding voting securities are
directly or indirectly owned, controlled, or held with power to vote by such
person; (iii) any natural person, partnership, corporation, association, or
other legal entity directly or indirectly controlling, controlled by, or under
common control with, such person; or (iv) any officer, director or partner of
such person. Notwithstanding the foregoing, solely for purposes of determining
eligibility for indemnification under Section 14(b), the term "Affiliate" shall
include only those persons performing services for the Partnership.
(d) INDEMNIFICATION BY PARTNERS. In the event that the
Partnership is made a party to any claim, demand, dispute, or litigation or
otherwise incurs any loss, liability, damage, cost, or expense as a result of,
or in connection with, any Partner's (or assignee's) obligations or liabilities
unrelated to the Partnership's business, such Partner (or assignees
cumulatively) shall indemnify, defend, hold harmless, and reimburse the
Partnership for such loss, liability, damage, cost, and expense to which the
Partnership shall become subject (including attorneys' and accountants' fees and
expenses).
15. AMENDMENTS; MEETINGS.
(a) AMENDMENTS WITH CONSENT OF THE GENERAL PARTNER. If, at
any time during the term of the Partnership, the General Partner shall deem it
necessary or desirable to amend this Agreement, such amendment shall be
effective only if embodied in an instrument approved by the General Partner and
by Limited Partners owning more than 50% of the Units then outstanding, and if
made in accordance with, and to the extent permissible under, the Act. Any
amendment to this Agreement or actions taken pursuant to this Section 15 that
shall have been approved by the percentage of outstanding Units prescribed above
shall be deemed to have been approved by all Limited Partners. Notwithstanding
the foregoing, the General Partner shall be authorized to amend this Agreement
without the consent of any Limited Partner in order to: (i) change the name of
the Partnership or cause the Partnership to transact business under another
name; (ii) clarify any inaccuracy or any ambiguity, or reconcile any
inconsistent provisions herein; (iii) make any amendment to this Agreement,
provided that such amendment is not adverse to the Limited Partners; (iv) effect
the intent of the allocations proposed herein to the maximum extent possible and
to the extent necessary to comply with the Code or the interpretations thereof
affecting such allocations, as same may be amended from time to time; (v)
attempt to ensure that the Partnership is not taxed as an association taxable as
a corporation for federal income (or relevant state income or franchise) tax
purposes; (vi) qualify or maintain the qualification of the Partnership as a
limited partnership in any jurisdiction; (vii) delete, add or modify any
provision of or to this Agreement required to be deleted, added or modified by
the staff of the SEC, the CFTC, any other federal agency, any state "Blue Sky"
official, or other governmental official, or in order to opt to be governed by
any amendment or successor to the Act, or to comply with applicable law; (viii)
make any modification to this Agreement to reflect the admission of additional
or substitute general partners and to reflect any modification to the net worth
and minimum investment requirements applicable to the General Partner and any
other general partner, as contemplated by Sections 5 and 6 hereof; (ix) make any
amendment that is appropriate or necessary, in the opinion of the General
Partner, to prevent the Partnership or the General Partner or its directors,
officers or controlling persons from in any manner being subject to the
provisions of the Investment Company Act of 1940, as amended (the "1940 Act"),
the Investment Advisers Act of 1940, as amended (the "Advisers Act"), or "plan
asset" regulations adopted under the Employee Retirement Income Security Act of
1974, as amended; and (x) to make any amendment that is appropriate or
necessary, in the opinion of the General Partner, to qualify the Partnership
under the 1940 Act, and any persons under the 1940 Act and the Advisers Act, if
the General Partner is informed that doing so is necessary. Any such
supplemental or amendatory agreement shall be adhered to and have the same force
and effect from and after its effective date as if the same had originally
A-17
<PAGE>
been embodied in, and formed a part of, this Agreement; provided, however, that
no such supplemental or amendatory agreement shall, without the consent of all
Partners affected thereby, change or alter the provisions of this proviso,
reduce the capital account of any Partner, or modify the percentage of profits,
losses or distributions to which any Partner is entitled.
(b) MEETINGS. Any Limited Partner or his authorized attorney
or agent, upon written request to the General Partner, delivered either in
person or by certified mail, and upon payment of reasonable duplicating and
postage costs, shall be entitled to obtain from the General Partner by mail a
list of the names and addresses of record of all Limited Partners and the number
of Units owned by each.
Upon receipt of a written request, signed by Limited
Partners owning at least 10% of the Units then owned by Limited Partners, that a
meeting of the Partnership be called to vote upon any matter upon which all
Limited Partners may vote pursuant to this Agreement, the General Partner, by
written notice to each Limited Partner of record sent by certified mail or
delivered in person within 15 days after such receipt, shall call a meeting of
the Partnership. Such meeting shall be held at least 30 but not more than 60
days after the mailing of such notice, and such notice shall specify the date, a
reasonable place and time, and the purpose of such meeting.
(c) AMENDMENTS AND ACTIONS WITHOUT CONSENT OF THE GENERAL
PARTNER. At any meeting of the Limited Partners, upon the affirmative vote
(which may be in person or by proxy) of Limited Partners owning more than 50% of
the Units then owned by Limited Partners, the following actions may be taken
without the consent of the General Partner: (i) this Agreement may be amended in
accordance with, and only to the extent permissible under, the Act; provided,
however, that no such amendment shall, without the consent of all Partners
affected thereby, change or alter the provisions of this proviso, reduce the
capital account of any Partner, or modify the percentage of profits, losses, or
distributions to which any Partner is entitled; (ii) the Partnership may be
dissolved; (iii) the General Partner may be removed and replaced; (iv) a new
general partner or general partners may be elected if the General Partner
terminates or liquidates or elects to withdraw from the Partnership pursuant to
Section 12, or becomes insolvent, bankrupt, or is dissolved; (v) any contracts
with the General Partner or any of its Affiliates may be terminated without
penalty on not less than 60 days' prior written notice; and (vi) the sale of all
or substantially all of the assets of the Partnership may be approved.
Notwithstanding the foregoing, no such action shall adversely affect the status
of the Limited Partners as limited partners under the Act or the classification
of the Partnership as a partnership under the federal income tax laws, and Units
owned by the General Partner and any Affiliate thereof shall not be voted on the
matters described in clauses (iii) and (v) above. Any action which shall have
been approved by the percentage of outstanding Units prescribed above shall be
deemed to have been approved by all Limited Partners.
(d) ACTION WITHOUT MEETING. Notwithstanding contrary
provisions of this Section 15 covering notices to, meetings of, and voting by
Limited Partners, any action required or permitted to be taken by Limited
Partners at a meeting or otherwise may be taken by Limited Partners without a
meeting, without prior notice, and without a vote if a consent in writing
setting forth the action so taken shall be signed by Limited Partners owning
Units having not fewer than the minimum number of votes that would be necessary
to authorize or take such action at a meeting of Limited Partners at which all
outstanding Units shall have been present and voted. Notice of the taking of
action by Limited Partners without a meeting by less than unanimous written
consent of the Limited Partners shall be given to those Limited Partners who
shall not have consented in writing within seven business days after the
occurrence thereof.
(e) AMENDMENTS TO CERTIFICATE OF LIMITED PARTNERSHIP. If an
amendment to this Agreement shall be made pursuant to this Section 15, the
General Partner shall be authorized to execute, acknowledge, swear to, deliver,
file, record, and publish, on behalf of the Partnership and each Partner, such
amendments to the Certificate of Limited Partnership as shall be necessary or
desirable to reflect such amendment.
16. INDEX OF DEFINED TERMS.
<TABLE>
<S> <C>
DEFINED TERM SECTION
1940 Act............................................. 15(a)
Act.................................................. 1
Advisers Act......................................... 15(a)
Affiliate............................................ 14(c)
Agreement............................................ Preamble
CEAct................................................ 8(e)
Certificate of Limited Partnership................... 1
</TABLE>
A-18
<PAGE>
<TABLE>
<S> <C>
DEFINED TERM SECTION
CFTC................................................. 3
Charter Series Partnership(s)........................ 10(b)
Code................................................. 7(c)(4)
Commodity Broker..................................... 6
Customer Agreement................................... 8(b)
Determination Date................................... 7(b)
DWR.................................................. 6
Exchange Agreement and Power of Attorney............. 10(c)
Exchange Date........................................ 10(c)
Futures Interests.................................... 3
General Partner...................................... Preamble
Initial Closing...................................... 6
Initial Offering..................................... 6
Limited Partners..................................... Preamble
Management Agreement................................. 8(b)
MS & Co.............................................. 6
MSDW................................................. 6
NASAA Guidelines..................................... 5
Net Asset Value...................................... 7(d)(2)
Net Assets........................................... 7(d)(1)
NFA.................................................. 6
Non-Series Exchange.................................. 10(b)
Partners............................................. Preamble
Partnership.......................................... 1
Prospectus........................................... 6
Pyramiding........................................... 8(c)(5)
Redemption........................................... 10(b)
Redemption Date...................................... 10(b)
Request for Redemption............................... 10(b)
SEC.................................................. 5
Selling Agent........................................ 6
Series Exchange...................................... 10(c)
Special Redemption Date.............................. 9
Trading Advisor...................................... 6
Trading Profits...................................... 7(e)
Transaction Fees and Costs........................... 7(e)
Unit(s) of General Partnership Interest.............. 6
Unit(s).............................................. 6
</TABLE>
17. GOVERNING LAW.
THE VALIDITY AND CONSTRUCTION OF THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE,
INCLUDING, SPECIFICALLY, THE ACT (WITHOUT REGARD TO ITS CHOICE OF LAW
PRINCIPLES); PROVIDED, HOWEVER, THAT CAUSES OF ACTION FOR VIOLATIONS OF FEDERAL
OR STATE SECURITIES LAWS SHALL NOT BE GOVERNED BY THIS SECTION 17.
18. MISCELLANEOUS.
(a) PRIORITY AMONG LIMITED PARTNERS. Except as otherwise
specifically set forth in this Agreement, no Limited Partner shall be entitled
to any priority or preference over any other Limited Partner in regard to the
affairs of the Partnership.
(b) NOTICES. All notices and requests to the General Partner
under this Agreement (other than Requests for Redemption, and notices of
assignment or transfer, of Units) shall be in writing and shall be effective
upon personal delivery or, if sent by registered or certified mail, postage
prepaid, addressed to the General Partner at
A-19
<PAGE>
Two World Trade Center, 62nd Floor, New York, New York 10048 (or such other
address as the General Partner shall have notified the Limited Partners), upon
the deposit of such notice in the United States mail. Requests for Redemption,
and notices of assignment or transfer of Units shall be effective upon timely
receipt by the General Partner. Except as otherwise provided herein, all reports
and notices hereunder shall be in writing and shall be sent by first-class mail
to the last known address of the Limited Partner.
(c) BINDING EFFECT. This Agreement shall inure to the
benefit of, and be binding upon, all of the parties, their successors, assigns
as permitted herein, custodians, estates, heirs, and personal representatives.
For purposes of determining the rights of any Partner or assignee hereunder, the
Partnership and the General Partner may rely upon the Partnership's records as
to who are Partners and assignees, and all Partners and assignees agree that
their rights shall be determined and that they shall be bound thereby, including
all rights that they may have under Section 15.
(d) CAPTIONS. Captions in no way define, limit, extend, or
describe the scope of this Agreement nor the effect of any of its provisions.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
<TABLE>
<S> <C>
ADDITIONAL LIMITED PARTNERS: GENERAL PARTNER:
By: Demeter Management Corporation,
General Partner, as
Authorized Agent and DEMETER MANAGEMENT
Attorney-in-Fact CORPORATION
By:.............................................. By:..............................................
Mark J. Hawley, President Mark J. Hawley, President
INITIAL LIMITED PARTNER:
.................................................
Mark J. Hawley
</TABLE>
A-20
<PAGE>
<TABLE>
<S> <C>
MFAD USE ONLY:............................... CLOSING DATE:................................
</TABLE>
- --------------------------------------------------------------------------------
REQUEST FOR REDEMPTION: DEAN WITTER MANAGED FUTURES FUNDS
THIS IRREVOCABLE REQUEST FOR REDEMPTION SHOULD BE DELIVERED TO A LIMITED
PARTNER'S LOCAL DEAN WITTER BRANCH OFFICE AND MUST BE RECEIVED BY THE GENERAL
PARTNER (DEMETER MANAGEMENT CORPORATION, TWO WORLD TRADE CENTER, 62ND FLOOR, NEW
YORK, N.Y., 10048) AT LEAST 5 BUSINESS DAYS PRIOR TO THE LAST DAY OF THE MONTH
IN WHICH THE REDEMPTION IS TO BE EFFECTIVE. THIS FORM CANNOT BE FAXED.
<TABLE>
<S> <C>
.........................., 19 .................................................................
(DATE) (PRINT OR TYPE DEAN WITTER ACCOUNT NUMBER)
</TABLE>
I hereby request redemption (effective as of the next
applicable date as of which redemption is permitted as set forth in the Limited
Partnership Agreement of the Partnership for which redemption is requested,
subject to all terms and conditions set forth therein) of my capital account in
an amount equal to the respective Net Asset Value, as defined in the Limited
Partnership Agreement, of the following Unit(s) of Limited Partnership Interest
("Units"), less any amounts specified in the Limited Partnership Agreement.
COMPLETE ONLY ONE SECTION -- A, B, C OR D - PER FORM
- --------------------------------------------------------------------------------
SECTION A
SPECTRUM SERIES SHALL ONLY REDEEM UNITS IN A MINIMUM AMOUNT OF 50 UNITS, UNLESS
A LIMITED
PARTNER IS REDEEMING HIS/HER ENTIRE INTEREST (ALL) IN SUCH PARTNERSHIP.
<TABLE>
<S> <C> <C>
[DWSB] Spectrum Global Balanced Entire Interest Units
[DWSS] Spectrum Strategic Entire Interest Units
[DWST] Spectrum Technical Entire Interest Units
[DWSF] Spectrum Select Entire Interest Units
</TABLE>
- --------------------------------------------------------------------------------
SECTION B
CORNERSTONE FUNDS SHALL ONLY REDEEM $1,000 INCREMENTS OR WHOLE UNITS
UNLESS A LIMITED PARTNER IS REDEEMING HIS/HER ENTIRE INTEREST (ALL) IN SUCH
PARTNERSHIP.
<TABLE>
<S> <C> <C> <C>
[CFCFB] Cornerstone Fund II Entire Interest Units $ ,000
[CFCFC] Cornerstone Fund III Entire Interest Units $ ,000
[CFCFD] Cornerstone Fund IV Entire Interest Units $ ,000
</TABLE>
- --------------------------------------------------------------------------------
SECTION C
CHARTER SERIES SHALL ONLY REDEEM UNITS IN A MINIMUM AMOUNT OF 100 UNITS, UNLESS
A LIMITED PARTNER IS REDEEMING HIS/HER ENTIRE INTEREST (ALL) IN SUCH
PARTNERSHIP.
<TABLE>
<S> <C> <C>
[ ] Charter Graham Entire Interest Units
[ ] Charter Millburn Entire Interest Units
[ ] Charter Welton Entire Interest Units
</TABLE>
- --------------------------------------------------------------------------------
SECTION D
OTHER MANAGED FUTURES FUNDS SHALL ONLY REDEEM $1,000 INCREMENTS OR WHOLE UNITS
UNLESS A LIMITED PARTNER IS REDEEMING HIS/HER ENTIRE INTEREST (ALL) IN SUCH
PARTNERSHIP.
MARK ONE FUND ONLY (USE ONE FORM PER FUND):
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
[CFF] Columbia Futures Fund [MSTAF] Morgan Stanley Tangible Asset Fund Entire
[DFF] Diversified Futures Fund [PGF] Multi-Market Portfolio Interest
[DFF2] Diversified Futures Fund II [PPF] Principal Plus Fund Units
[DFF3] Diversified Futures Fund III [PSF] Portfolio Strategy Fund
[GPP] Global Perspective Portfolio [WCF] World Currency Fund $ ,000
[IAF] International Access Fund
</TABLE>
A-21
<PAGE>
ACCOUNT INFORMATION AND SIGNATURES
I understand that I may only redeem Units at such times as are specified in the
Limited Partnership Agreement and that, under certain circumstances described
therein, I may be subject to a redemption charge.
I (either in my individual capacity or as an authorized representative of an
entity, if applicable) hereby represent and warrant that I am the true, lawful
and beneficial owner of Units (or fractions thereof) to which this Request for
Redemption relates, with full power and authority to request redemption. The
Units (or fractions thereof) which are the subject of this request are not
subject to any pledge or otherwise encumbered in any fashion. My signature has
been represented by a member of a registered national securities exchange.
SIGNATURES MUST BE IDENTICAL TO NAME(S) IN WHICH UNITS ARE REGISTERED
TYPE OR PRINT ALL INFORMATION BELOW
- --------------------------------------------------------------------------------
1. ACCOUNT INFORMATION
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
............................................... ...............................................
(Name of Limited Partner) (Dean Witter Account Number)
</TABLE>
Address.........................................................................
(Street)
............................................................................
(City) (State or Province) (Zip Code or Postal Code)
- --------------------------------------------------------------------------------
2.A. SIGNATURE(S) OF INDIVIDUAL PARTNER(S) OR ASSIGNEE(S) INCLUDING IRAS
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
X.............................................. ...............................................
(Signature) (Date)
X.............................................. ...............................................
(Signature) (Date)
</TABLE>
- --------------------------------------------------------------------------------
2.B. SIGNATURE OF ENTITY PARTNER OR ASSIGNEE
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
............................................... By: X..........................................
(Name of Entity) (Authorized officer, partner, trustee or
custodian. If a corporation, include
certified copy of authorized resolution.)
...............................................
(Date)
</TABLE>
- --------------------------------------------------------------------------------
3. BRANCH MANAGER AND FINANCIAL ADVISOR USE ONLY
- --------------------------------------------------------------------------------
We, the undersigned Financial Advisor and Branch Manager, represent that the
above signature(s) is/are true and correct.
<TABLE>
<S> <C>
X.............................................. By: X..........................................
(Financial Advisor MUST sign and date) (Branch Manager MUST sign and date)
...............................................
(Branch Telephone Number) Please enter a SELL order upon receipt of a
completed Request for Redemption.
</TABLE>
A-22
<PAGE>
EXHIBIT B
SUBSCRIPTION AND EXCHANGE AGREEMENT AND POWER OF ATTORNEY
MORGAN STANLEY DEAN WITTER CHARTER SERIES
UNITS OF LIMITED PARTNERSHIP INTEREST SUBSCRIPTION AND EXCHANGE INSTRUCTIONS
Subscribers purchasing Units for cash hereby are
"Subscribers." Subscribers who are (i) redeeming units in another commodity pool
for which the General Partner serves as the general partner and commodity pool
operator or (ii) redeeming Units in a Charter Series Partnership pursuant to a
Series Exchange are "Exchange Subscribers." Subscribers and Exchange Subscribers
should follow the instructions below.
SUBSCRIPTION INSTRUCTIONS
ANY PERSON DESIRING TO SUBSCRIBE FOR UNITS SHOULD CAREFULLY
READ AND REVIEW THE PROSPECTUS DATED *, 1998 (THE "PROSPECTUS") AND THIS
SUBSCRIPTION AND EXCHANGE AGREEMENT AND POWER OF ATTORNEY ("AGREEMENT"). BY
SIGNING THIS AGREEMENT, A SUBSCRIBER OR EXCHANGE SUBSCRIBER WILL BE DEEMED TO
MAKE EACH APPLICABLE REPRESENTATION AND WARRANTY AND SATISFY ANY APPLICABLE
SPECIAL STATE SUITABILITY REQUIREMENT SET FORTH IN THIS AGREEMENT ON PAGES 2-4,
SO PLEASE MAKE SURE THAT YOU SATISFY ALL APPLICABLE PROVISIONS IN THOSE SECTIONS
BEFORE SIGNING THIS AGREEMENT.
SUBSCRIBERS MUST FILL IN ALL OF THE BOXES AND BLANKS ONLY ON
PAGES 6 AND 7, AND EXCHANGE SUBSCRIBERS MUST FILL IN ALL OF THE BOXES AND BLANKS
ONLY ON PAGES 8 AND 9, USING BLACK INK, AS FOLLOWS:
<TABLE>
<S> <C>
Item 1 (pages 6-7 or
pages 8-9) --Enter Dean Witter Reynolds Inc. ("DWR") Account Number.
--Enter the Social Security Number or Taxpayer ID Number and check the
appropriate box to indicate the type of entity that is subscribing.
In case of joint ownership, either Social Security Number may be
used.
--Each subscriber must (i) if a United States taxable subscriber, review
the representation relating to backup withholding tax under "United
States Taxable Investors Only" on Page 6 (for Subscribers) or Page 8
(for Exchange Subscribers) or (ii) if a non-United States subscriber,
review the representation relating to such subscriber's
classification as a non-resident alien for United States federal
income tax purposes under "Non-United States Investors Only" on Page
6 (for Subscribers) or Page 8 (for Exchange Subscribers).
SUBSCRIBER(S) AND EXCHANGE SUBSCRIBER(S) MUST SIGN BELOW THE TAX
REPRESENTATION IN ITEM 1 ON PAGE 6 OR 8.
--Enter the exact name in which the Units are to be held based on
ownership type, and enter residency and other information.
--Enter taxable year of subscriber, if other than calendar year.
--Check box if the subscriber is a non-resident alien that is a dealer in
commodities or is otherwise engaged in a trade or business within the
U.S.
--If there is a co-subscriber, trustee or custodian, complete applicable
information.
--Each subscriber purchasing Units as custodian for a minor: (i) if a
gift to minor not made with minor's funds, net worth and annual
income representations apply only to subscriber, or (ii) if not a
gift, net worth and annual income representations apply only to such
minor.
--Each subscriber purchasing Units as a trustee or custodian of an
employee benefit plan with an individual beneficiary or of an
individual retirement account ("IRA") at the direction of the
beneficiary of such plan or IRA: net worth and annual income
representations apply only to the beneficiary of such plan or
account.
Item 1 For Signatories to Subscription --Enter the dollar amount or number of Units of the subscription for each
Signature Page (page 6) Partnership (see "Subscription Procedure" in the Prospectus for
minimum investment requirements).
Item 1 For Signatories to Exchange --Enter the symbol(s) of the limited partnership(s) from which units are
Signature Page (page 8) to be redeemed; specify the quantity to be redeemed (entire interest
or number of whole units).
Item 2 (page 7 or 9) --Each subscriber must execute the Agreement Signature Page (on Page 7
(for Subscribers) or Page 9 (for Exchange Subscribers)).
Item 3 (page 7 or 9) --Financial Advisor and Branch Manager must complete the required
information.
--This Agreement must be mailed to Dean Witter Reynolds Inc. at Two World
Trade Center, 62nd Floor, New York, New York 10048-0026.
</TABLE>
B-1
<PAGE>
MORGAN STANLEY DEAN WITTER CHARTER SERIES
- --------------------------------------------------------------------------------
SUBSCRIPTION AND EXCHANGE AGREEMENT AND POWER OF ATTORNEY
Any person subscribing for Units of Limited Partnership
Interest ("Units") in the Morgan Stanley Dean Witter Charter Series, consisting
of three commodity pool limited partnerships, Morgan Stanley Dean Witter Charter
Graham L.P., Morgan Stanley Dean Witter Charter Millburn L.P. and Morgan Stanley
Dean Witter Charter Welton L.P. (each, a "Partnership," and collectively, the
"Partnerships"), should carefully read and review the Partnerships' Prospectus
dated *, 1998 (the "Prospectus"). Capitalized terms used below
and not defined in this Subscription and Exchange Agreement and Power of
Attorney ("Agreement") are defined (and described in detail) in the Prospectus.
For Signatories to Subscription Signature Page: By executing
the Signature Page of this Agreement, the undersigned Subscriber ("Subscriber")
irrevocably subscribes for Units in one or more of the Partnerships at the price
per Unit described in the Prospectus.
For Signatories to Exchange Signature Page: By executing the
Signature Page of this Agreement, the undersigned Subscriber ("Subscriber")
irrevocably redeems the units of limited partnership interest of the limited
partnership indicated on the signature page of this Agreement and, with the
proceeds of such redemption, hereby irrevocably subscribes for Units in one or
more of the Partnerships at the price per Unit described in the Prospectus.
NOTWITHSTANDING THE FOREGOING, SUBSCRIBER MAY REVOKE THIS
AGREEMENT, AND RECEIVE A FULL REFUND OF THE SUBSCRIPTION AMOUNT AND ANY ACCRUED
INTEREST THEREON (OR REVOKE THE REDEMPTION OF UNITS IN THE OTHER LIMITED
PARTNERSHIP IN THE CASE OF AN EXCHANGE), WITHIN FIVE BUSINESS DAYS AFTER
EXECUTION OF THIS AGREEMENT OR NO LATER THAN 3:00 P.M., NEW YORK CITY TIME, ON
THE DATE OF THE APPLICABLE CLOSING, WHICHEVER COMES FIRST, BY DELIVERING WRITTEN
NOTICE TO SUBSCRIBER'S DWR FINANCIAL ADVISOR. If this Agreement is accepted,
Subscriber agrees to contribute Subscriber's subscription to each Partnership
designated herein and to be bound by the terms of each such Partnership's
Limited Partnership Agreement, included as Exhibit A to the Prospectus (the
"Limited Partnership Agreement"). BY EXECUTION OF THE SIGNATURE PAGE ATTACHED
HERETO, SUBSCRIBER SHALL BE DEEMED TO HAVE EXECUTED THIS AGREEMENT AND THE
LIMITED PARTNERSHIP AGREEMENT (INCLUDING THE POWERS OF ATTORNEY HEREIN AND
THEREIN).
- --------------------------------------------------------------------------------
PAYMENT INSTRUCTIONS
- --------------------------------------------------------------------------------
For Signatories to Subscription Signature Page:
Payment of this subscription must be made by charging the
Subscriber's Customer Account with DWR (the "Customer Account"). In the event
that Subscriber does not have a Customer Account or does not have sufficient
funds in Subscriber's existing Customer Account, Subscriber should make
appropriate arrangements with Subscriber's DWR financial advisor, if any, and if
none, should contact Subscriber's local DWR branch office. Payment must NOT be
mailed to the General Partner at its offices in New York City. Any such payment
will not be accepted by the General Partner and will be returned to Subscriber
for proper placement with the DWR branch office where Subscriber's Customer
Account is maintained. The undersigned Subscriber hereby authorizes and directs
the General Partner and DWR to transfer the appropriate amount from the Customer
Account to the Escrow Account.
For Signatories to Exchange Signature Page:
Payment of this subscription must be made by applying the proceeds from
the redemption of limited partnership units in one of the Partnerships or
another commodity pool for which the General Partner serves as the general
partner and commodity pool operator. Subscriber may only redeem units at such
times as are specified in the applicable limited partnership agreement for such
other commodity pool, and under certain circumstances described therein,
Subscriber may be subject to a redemption charge.
- --------------------------------------------------------------------------------
REPRESENTATIONS AND WARRANTIES
- --------------------------------------------------------------------------------
Subscriber (for myself/ourselves, and, if Subscriber is an
entity, on behalf of and with respect to such entity and its shareholders,
partners, or beneficiaries) hereby represents and warrants to the General
Partner and each Partnership in which Subscriber is purchasing Units, as
follows:
(1) Subscriber has received a copy of the Prospectus,
including each Limited Partnership Agreement.
(2) Subscriber is of legal age to execute this Agreement
and is legally competent to do so.
(3) Subscriber has either: (a) net worth of at least
$150,000 (exclusive of home, furnishings, and automobiles); or (b) net worth
of at least $45,000 (exclusive of home, furnishings, and automobiles) and
annual gross income of at least $45,000. However, if Subscriber is a resident
and/or subject to regulation by one of the states which imposes more
restrictive suitability requirements than the foregoing, or requires a higher
minimum investment, as set forth below under the caption "State Suitability
Requirements" Subscriber's net worth and/or income and investment satisfies
the requirements of such state. (If Units are being purchased by spouses as
joint owners, their joint net worth and annual income may be used to satisfy
applicable state suitability requirements.) Subscriber agrees to provide any
additional documentation requested by the General Partner, as may be required
by the securities administrators of certain states to confirm that Subscriber
meets the applicable minimum financial suitability standards to invest in the
Partnerships.
(4) The address set forth on the Signature Page is
Subscriber's true and correct residence and Subscriber has no present
intention of becoming a resident of any other state or country. All the
information that is provided on the Signature Page regarding Subscriber is
correct and complete as of the date of this Agreement, and, if there should
be any material change in such information prior to Subscriber's admission as
a Limited Partner, Subscriber will immediately furnish such revised or
corrected information to the General Partner.
B-2
<PAGE>
(5) If Subscriber is an employee benefit plan, to the best
of Subscriber's knowledge, neither the General Partner, DWR, MS & Co., any
other Additional Seller, any Trading Advisor, nor any of their respective
affiliates either: (a) has investment discretion with respect to the
investment of Subscriber's plan assets; (b) has authority or responsibility
to or regularly gives investment advice with respect to such plan assets for
a fee and pursuant to an agreement or understanding that such advice will
serve as a primary basis for investment decisions with respect to such plan
assets and that such advice will be based on the particular investment needs
of the plan; or (c) is an employer maintaining or contributing to such plan.
For purposes hereof, an "employee benefit plan" shall include plans and
accounts of various types (including their related trusts) which provide for
the accumulation of a portion of an individual's earnings or compensation as
well as investment income earned thereon free from federal income tax until
such time as funds are distributed from the plan, and include corporate
"pension" and profit-sharing plans, "simplified employee pension plans,"
"Keogh" plans for self-employed individuals, and IRAs.
(6) Unless (7) or (8) below is applicable, Subscriber's
subscription is made with Subscriber's funds for Subscriber's own account and
not as trustee, custodian or nominee for another.
(7) The subscription, if made as custodian for a minor, is
a gift Subscriber 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 herein apply only to such minor.
(8) If Subscriber is subscribing as a trustee or custodian
of an employee benefit plan or of an IRA at the direction of the beneficiary
of such plan or IRA, the representations set forth herein apply only to the
beneficiary of such plan or IRA.
(9) If Subscriber is subscribing in a representative
capacity, Subscriber has full power and authority to purchase the Units and
enter into and be bound by this Agreement on behalf of the entity for which
the Subscriber is purchasing the Units, and such entity has full right and
power to purchase such Units and enter into and be bound by this Agreement
and become a Limited Partner pursuant to each applicable Limited Partnership
Agreement.
(10) Subscriber either is not required to be registered
with the Commodity Futures Trading Commission ("CFTC") or to be a member of
the National Futures Association ("NFA"), or, if so required, is duly
registered with the CFTC and is a member in good standing of the NFA. It is
an NFA requirement that the General Partner attempt to verify that any person
or entity that seeks to purchase Units be duly registered with the CFTC and a
member of the NFA, if required. Subscriber agrees to supply the General
Partner with such information as the General Partner may reasonably request
in order to attempt such verification. Certain entities that acquire Units
may, as a result, themselves become "commodity pools" within the intent of
applicable CFTC and NFA rules, and their sponsors, accordingly, may be
required to register as "commodity pool operators."
Additional Representation and Warranty for Signatories to
Exchange Signature Page
(11) Subscriber is the true, lawful, and beneficial owner
of the units of limited partnership interest (or fractions thereof) to be
redeemed pursuant to this Agreement, with full power and authority to request
redemption and a subsequent purchase of Units. The units of limited
partnership interest (or fractions thereof) which are subject to this
redemption request are not subject to any pledge or otherwise encumbered in
any fashion.
By making the representations and warranties set forth above,
Subscribers should be aware that they have not waived any rights of action which
they may have under applicable federal or state securities laws. Federal and
state securities laws provide that any such waiver would be unenforceable.
Subscribers should be aware, however, that the representations and warranties
set forth above may be asserted in the defense of a Partnership, the General
Partner, any Trading Advisor, DWR, MS & Co., any other Additional Seller, or
others in any subsequent litigation or other proceeding.
- --------------------------------------------------------------------------------
STATE SUITABILITY REQUIREMENTS
- --------------------------------------------------------------------------------
Except as indicated below, investors in the Partnerships must
have a net worth (exclusive of home, furnishings, and automobiles) of at least
$150,000 or, failing that standard, have a net worth (same exclusions) of at
least $45,000 and an annual gross income of at least $45,000, and must make a
minimum aggregate investment of $20,000 or, in the case of a Non-Series
Exchange, the minimum $20,000 investment will be measured as of the preceding
Monthly Closing and be deemed satisfied irrespective of whether the proceeds
from such redemption are worth less than $20,000 when the Units are subsequently
acquired. However, the states listed below have more restrictive suitability or
minimum investment requirements for Subscribers residing therein. Please read
the following list to make sure that Subscriber meets the minimum suitability
and/or investment requirements for the state in which Subscriber resides. (As
used below, "NW" means net worth exclusive of home, furnishings, and
automobiles; "AI" means annual gross income; and "TI" means annual taxable
income for federal income tax purposes.)
[SPECIAL STATE REQUIREMENTS TO BE PROVIDED]
- --------------------------------------------------------------------------------
SIGNIFICANT DISCLOSURES
- --------------------------------------------------------------------------------
Subscriber should read the Prospectus in its entirety before
completing this Agreement and subscribing for Units, and should carefully
consider the information contained therein as well as the following information
(which is set forth in detail in the Prospectus) concerning an investment in the
Partnerships:
(1) The General Partner, DWR, the Partnerships'
non-clearing Commodity Broker, and MS & Co. are each wholly-owned
subsidiaries of Morgan Stanley Dean Witter & Co., and conflicts of interest
therefore exist. The principal business address of the General Partner is Two
World Trade Center, 62nd Floor, New York, New York 10048.
B-3
<PAGE>
(2) DWR will receive substantial commodity brokerage fees
from the Partnerships and may also realize the benefits of excess interest
earned on the Partnerships' funds and compensating balance benefits from
deposits of the Partnerships' funds, subject to certain limitations as
described in the Prospectus. A Limited Partner will consent to the execution
and delivery by the General Partner on behalf of each Partnership of a
Customer Agreement with DWR, and to the payment to DWR of such brokerage fees
and benefits.
(3) The performance information in the Prospectus should be
read only in conjunction with the textual description and notes thereto, and
such data should not be interpreted to mean that the Partnerships will have
similar results or will realize any profits whatsoever. A Limited Partner
will consent to the execution and delivery by the General Partner on behalf
of each Partnership of the Management Agreements with the Trading Advisors
(as described in the Prospectus), and with such other Trading Advisors as the
General Partner may retain from time to time.
(4) Units cannot be transferred or assigned except as set
forth in the Limited Partnership Agreement. Persons who have been Limited
Partners for more than six months may redeem all or part of their Units, at
any month-end in the manner described herein. An investor who has been a
Limited Partner for less than six months may first redeem Units effective as
of the last day of the sixth month following the closing in which he first
became a Limited Partner in the manner described herein. Units redeemed on or
prior to the last day of the twelfth month after such Units were purchased
will be subject to a redemption charge equal to 2% of the Net Asset Value of
a Unit on the date of such redemption. Units redeemed after the last day of
the twelfth month and on or prior to the last day of the twenty-fourth month
after which such Units were purchased will be subject to a redemption charge
equal to 1% of the Net Asset Value of a Unit on the date of such redemption.
Units redeemed after the last day of the twenty-fourth month after which such
Units were purchased will not be subject to a redemption charge. The
foregoing redemption charges will be paid to DWR. Notwithstanding the above,
Units purchased by an investor who purchases $500,000 or more of Units will
not be subject to the foregoing redemption charges, but will be subject to
the other restrictions on redemptions. Units purchased pursuant to a
Non-Series Exchange will not be subject to the foregoing redemption charges
under the circumstances described below. The number of Units (determined on a
per closing basis), expressed as a percentage of Units purchased, which is
not subject to a redemption charge is determined by dividing (a) the dollar
amount received upon redeeming an interest in another partnership and used to
purchase Units by (b) the total investment in the Partnerships. Redemptions
of Units will be deemed to be in the order in which they are purchased
(assuming purchases at more than one closing), with Units not subject to a
redemption charge being deemed to be the first Units purchased at a closing.
Limited Partners who redeem Units and have either paid a redemption charge
with respect to such Units, or have held such Units for at least two years
and subsequently purchase Units, will not be subject to redemption charges on
the new Units under the following conditions: (a) the subscriber must
subscribe for new Units prior to the one-year anniversary of the effective
date of the redemption of Units, (b) the subscriber will not be subject to
redemption charges with respect to the amount of the subscription for the new
Units up to the amount of the proceeds of the redemption (net of any
redemption charges), and (c) the subscriber must hold the newly acquired
Units for six months from the date of purchase before such Units may be
redeemed or exchanged. Such subscribers remain subject to the minimum
purchase and suitability requirements. A Limited Partner who redeems Units
pursuant to a Series Exchange will not be subject to the redemption charges
described above with respect to the redeemed Units. Units acquired pursuant
to a Series Exchange will be deemed as having the same purchase date as the
Units exchanged for purposes of determining the applicability of any
redemption charges. Units may only be redeemed upon 5 business days' written
notice to the General Partner prior to the effective date of redemption,
which will be the last day of a calendar month.
(5) All subscriptions are subject to acceptance or
rejection by the General Partner in whole or in part for any reason and are
irrevocable by Subscribers, subject to the limited revocation right described
on page 2 of this Agreement.
(6) A Limited Partner may be able to invest in any member
partnerships of the Morgan Stanley Dean Witter Charter Series formed
subsequent to the date hereof by exchanging Units as provided in the Limited
Partnership Agreements. Any such investment will be subject to a Limited
Partner's prior receipt of, and will be subject to all of the terms and
conditions described in, a prospectus or supplement to the Prospectus
offering an investment in any such newly organized partnership.
(7) During the Continuing Offering, Units are being offered
for sale at "Monthly Closings" to be held as of the last day of each month.
The Net Asset Value of a Unit may increase or decrease substantially between
the date of this subscription and the date of the Monthly Closing at which
this subscription is accepted by the General Partner; consequently, the
undersigned Subscriber may receive more or fewer Units than would be received
if the Monthly Closing were held on the date of this subscription.
- --------------------------------------------------------------------------------
ACCEPTANCE OF THE LIMITED PARTNERSHIP AGREEMENTS
- --------------------------------------------------------------------------------
The Subscriber hereby agrees that as of the date that
Subscriber's name is entered on the books of a Partnership, Subscriber shall
become a Limited Partner of such Partnership. Subscriber hereby agrees to each
and every term of the Limited Partnership Agreement of such Partnership as if
Subscriber's signature were subscribed thereto. Subscriber further agrees that
DWR may receipt on Subscriber's behalf for the Units purchased by Subscriber
hereunder upon the issuance of such Units by the Partnership (although no
certificate evidencing Unit(s) will be issued to Subscriber).
- --------------------------------------------------------------------------------
POWER OF ATTORNEY AND GOVERNING LAW
- --------------------------------------------------------------------------------
Subscriber hereby irrevocably constitutes and appoints Demeter
Management Corporation, the General Partner of each Partnership, as Subscriber's
true and lawful Attorney-in-Fact, with full power of substitution, in
Subscriber's name, place,
B-4
<PAGE>
and stead, to do all things necessary to admit it as a Limited Partner of each
Partnership requested below, and such other Partnership(s) of the Morgan Stanley
Dean Witter Charter Series as Subscriber may request from time to time, and to
admit others as additional or substituted Limited Partners to such
Partnership(s) so long as such admission is in accordance with the terms of the
applicable Limited Partnership Agreement or any amendment thereto, to file,
prosecute, defend, settle, or compromise any and all actions at law or suits in
equity for or on behalf of each Partnership in connection with any claim,
demand, or liability asserted or threatened by or against any Partnership, and
to execute, acknowledge, swear to, deliver, file, and record on Subscriber's
behalf and as necessary in the appropriate public offices, and publish: (a) each
Limited Partnership Agreement and each Certificate of Limited Partnership and
all amendments thereto permitted by the terms thereof; (b) all instruments that
the General Partner deems necessary or appropriate to reflect any amendment,
change, or modification of any Limited Partnership Agreement or any Certificate
of Limited Partnership made in accordance with the terms of such Limited
Partnership Agreement; (c) certificates of assumed name; and (d) all instruments
that the General Partner deems necessary or appropriate to qualify or maintain
the qualification of each Partnership to do business as a foreign limited
partnership in other jurisdictions. Subscriber agrees to be bound by any
representation made by the General Partner or any successor thereto acting in
good faith pursuant to this Power of Attorney.
The Power of Attorney granted hereby shall be deemed to be
coupled with an interest and shall be irrevocable and survive the death,
incapacity, dissolution, liquidation, or termination of Subscriber.
THIS SUBSCRIPTION AND EXCHANGE AGREEMENT AND POWER OF ATTORNEY
SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT BE DEEMED A WAIVER OF
ANY RIGHTS OF ACTION SUBSCRIBER MAY HAVE UNDER APPLICABLE FEDERAL OR STATE
SECURITIES LAW.
- --------------------------------------------------------------------------------
RECEIPT OF DOCUMENTATION
- --------------------------------------------------------------------------------
The regulations of the Commodity Futures Trading Commission
require that the undersigned Subscriber be given a copy of the Prospectus, as
well as certain additional documentation consisting of: (a) a supplement to the
Prospectus, which must be given to the undersigned if the Prospectus is dated
more than nine months prior to the date that the undersigned first receives the
Prospectus, and (b) the most current monthly account statement (report) for the
Partnerships after they begin trading operations. The undersigned hereby
acknowledges receipt of the Prospectus and the additional documentation referred
to above, if any.
B-5
<PAGE>
- --------------------------------------------------------------------------------
SUBSCRIPTION SIGNATURE PAGE BUY
- --------------------------------------------------------------------------------
MORGAN STANLEY DEAN WITTER CHARTER SERIES
UNITS OF LIMITED PARTNERSHIP INTEREST
SUBSCRIPTION SIGNATURE PAGE
A
PLEASE PRINT OR TYPE. USE BLACK INK ONLY.
PAGES 6 AND 7, THE SUBSCRIPTION SIGNATURE PAGES, SHOULD BE DELIVERED TO THE
LOCAL DEAN WITTER BRANCH OFFICE AND MUST BE RECEIVED BY THE GENERAL PARTNER AT
TWO WORLD TRADE CENTER, 62ND FLOOR, NEW YORK, NEW YORK 10048-0026, AT LEAST FIVE
BUSINESS DAYS PRIOR TO THE APPLICABLE CLOSING.
The Subscriber named below, by execution and delivery of this Signature Page
and by payment of the purchase price for Units of Limited Partnership Interest
("Units") in one or more Partnerships in the Morgan Stanley Dean Witter Charter
Series (the "Partnerships"), hereby subscribes for Units in the Partnership(s)
specified below at a price equal to $10 per Unit at the Initial Closing, or 100%
of the Net Asset Value per Unit of the applicable Partnership(s) as of the close
of business on the date of the Monthly Closing, as applicable.
BY SUCH EXECUTION AND PAYMENT, THE SUBSCRIBER ACKNOWLEDGES RECEIPT OF THE
PROSPECTUS OF THE PARTNERSHIPS DATED , 1998, INCLUDING THE LIMITED
PARTNERSHIP AGREEMENT AND THIS SUBSCRIPTION AND EXCHANGE AGREEMENT AND POWER OF
ATTORNEY, THE TERMS OF WHICH GOVERN THE INVESTMENT IN THE UNITS BEING SUBSCRIBED
FOR HEREBY, AND, IF THE PARTNERSHIPS HAVE BEEN TRADING AT LEAST ONE MONTH, THE
CURRENT MONTHLY REPORT FOR THE PARTNERSHIPS.
ITEM 1 -- SUBSCRIBER (SUBSCRIBER MUST SIGN BELOW TAX REPRESENTATION)
- --------------------------------------------------------------------------------
<TABLE>
<C> <S> <C> <C>
CHARTER FUND SYMBOL AMOUNT
OF
SUBSCRIPTION
/ / / / / / / / / / / / / / / / / / / / MORGAN STANLEY DEAN WITTER CHARTER GRAHAM L.P. $
DWR ACCOUNT NO. MORGAN STANLEY DEAN WITTER CHARTER $
MILLBURN L.P.
MORGAN STANLEY DEAN WITTER CHARTER WELTON L.P. $
</TABLE>
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
TAXABLE INVESTORS NON-TAXABLE INVESTORS
/ / / / / /-/ / / /-/ / / / / / / / OR / / / / -/ / / / / / / / / / / / / / OR / / / / / / / / / / / / / / / / / / / / / /
SOCIAL SECURITY NUMBER OF: (CHECK ONE) TAXPAYER ID NUMBER FOR: (CHECK ONE) SOC. SEC. #/TAXPAYER ID # FOR: (CHECK ONE)
/ / Individual Ownership / / Trust other than Grantor / / IRA (the DWR Branch Manager must
/ / Joint Tenants with Rights of or Revocable Trust sign below for IRA accounts)
Survivorship / / Estate / / Employee Benefit Plan
/ / Tenants in Common / / UGMA/UTMA (Minor) (Participant-Directed)
/ / Community Property / / Partnership / / Defined Benefit Plan (Other)______________
/ / Grantor or other Revocable Trust / / Corporation / / Other (specify)
</TABLE>
ALL SUBSCRIBERS (OR BRANCH MANAGERS IN THE CASE OF AN IRA) MUST SIGN
<TABLE>
<S> <C> <C>
UNITED STATES TAXABLE INVESTORS ONLY: NON-UNITED STATES INVESTORS ONLY:
/ / Check box if Subscriber is subject to backup withholding under the Under penalties of perjury, by
provisions of Section 3406(a)(1)(C) of the Internal Revenue Code. signature below, the Subscriber
If Subscriber's taxable year is other than the calendar year, certifies that such Subscriber is NOT
indicate the date on which Subscriber's taxable year ends:............ OR
Under penalties of perjury, by signing below, I certify that the Social (a) a citizen or resident of the
Security Number (or Taxpayer ID Number) above to be the true, correct and United States; or
complete Social Security Number (or Taxpayer ID Number) and that all the (b) a United States corporation,
information above is true, correct and complete. partnership, estate or trust.
X ___________________________ ______________________________
(Signature of Subscriber or Officer, Partner or Trustee [or Branch Manager in
the case of IRAs]) Date
</TABLE>
<TABLE>
<S> <C>
If Subscriber is an Entity: Type or Print Name of Entity:...................................................
Name: ................................. Date: .................................
Title:..........................................................................
Full Name of Account.............................................................................................
(Subscriber's Name or Name of Trust or Custodial Account--do not use initials)
Subscriber is a resident of ................................. and a citizen of ................................
(name of country) (name of county)
Street Address...................................................................................................
(MUST be residence address--P.O. Box alone not acceptable)
City............................. State ............. Zip Code ............ Tel. No. ( ............ ) ............
</TABLE>
/X/ Check here if Subscriber is a non-resident alien individual, foreign
corporation, foreign partnership, foreign trust or foreign estate that
is a dealer in commodities or otherwise engaged in a trade business
within the U.S.A. to which income, gain or loss from a Partnership would
be treated as effectively connected. (Subscriber must complete Form W-8,
which may be obtained from a DWR Financial Advisor.
B-6
<PAGE>
COMPLETE, IF APPLICABLE (MUST BE COMPLETED IF THERE IS A CO-SUBSCRIBER, TRUSTEE
OR CUSTODIAN):
Name ................. Telephone Number ( ................. ) .................
The person or entity above is a/an: (check one)
/ / Co-Subscriber / / Trustee or Custodian / / Authorized Person, if an
Institutional Trustee
<TABLE>
<S> <C>
Street Address (P.O. Box alone not acceptable)..................................
City............................................................. State .............. Zip Code ..............
Co-Subscriber, Trustee or Custodian is a resident of............. and a citizen of............................
Minor (if not a gift) is a resident of........................... and a citizen of............................
</TABLE>
- --------------------------------------------------------------------------------
ITEM 2 -- SIGNATURE(S) -- SUBSCRIBER(S) MUST SIGN UNDER TAX REPRESENTATION ON
PRECEDING PAGE AND BELOW
- --------------------------------------------------------------------------------
(INDIVIDUAL OR JOINT SUBSCRIPTION, INCLUDING PARTICIPANT-DIRECTED EMPLOYEE
BENEFIT PLAN OR IRA SUBSCRIPTION)
If this subscription is for a joint or community property account, the
statements, representations, and warranties set forth in this Subscription and
Exchange Agreement and Power of Attorney shall be deemed to have been made by
each owner of the account.
* If the Units will be owned by joint owners, tenants in common, or as community
property, signatures of all owners are required.
* In the case of a participant-directed employee benefit plan or IRA, the
beneficiary must sign immediately below and the trustee or custodian must sign
below under "Entity Subscription."
X __________________ _______________ X __________________ _______________
(Signature of Subscriber) Date (Signature of Date
Co-Subscriber)
(ENTITY SUBSCRIPTION)
ACCEPTANCE OF SUBSCRIPTION ON BEHALF OF EMPLOYEE BENEFIT PLANS (INCLUDING IRAS)
IS IN NO RESPECT A REPRESENTATION BY THE GENERAL PARTNER OR DWR THAT THIS
INVESTMENT MEETS ALL RELEVANT LEGAL REQUIREMENTS WITH RESPECT TO INVESTMENTS BY
ANY PARTICULAR PLAN, OR THAT THIS INVESTMENT IS APPROPRIATE FOR ANY PARTICULAR
PLAN.
The undersigned corporate officer, partner or trustee hereby certifies and
warrants that s/he has full power and authority from or on behalf of the entity
named below and its shareholders, partners, or beneficiaries to complete,
execute and deliver this Subscription and Exchange Agreement and Power of
Attorney on their behalf and to make the statements, representations, and
warranties made herein on their behalf, and that investment in each Partnership
specified is authorized under applicable law and the governing documents of the
entity, has been affirmatively authorized by the governing board or body, if
any, of the entity, and is legally permissible.
<TABLE>
<S> <C> <C>
....................................................... X...................................... ......................
(Type or Print Name of Entity) (Signature) Date
Print Name............................................. Title..................................
</TABLE>
- --------------------------------------------------------------------------------
ITEM 3 -- FINANCIAL ADVISOR USE ONLY (COMPLETE IN FULL AND IN INK)
- --------------------------------------------------------------------------------
THE UNDERSIGNED FINANCIAL ADVISOR HEREBY CERTIFIES THAT:
(1) the above signature(s) is/are true and correct;
(2) s/he has informed the Subscriber about the liquidity and marketability of
the Units as set forth in the Prospectus.
(3) based on information obtained from the Subscriber concerning the
Subscriber's investment objectives, other investments, financial situation,
needs and any other relevant information, that s/he reasonably believes
that:
(a) such Subscriber is or will be in a financial position appropriate to
enable such Subscriber to realize the benefits of each Partnership
specified, as described in the Prospectus;
(b) such Subscriber has a net worth sufficient to sustain the risk inherent
in each Partnership specified (including loss of investment and lack of
liquidity); and
(c) each Partnership specified is otherwise a suitable investment for such
Subscriber; and
(4) the Subscriber received the Prospectus at least five business days prior to
the applicable Monthly Closing.
THE FINANCIAL ADVISOR MUST SIGN BELOW IN ORDER TO SUBSTANTIATE COMPLIANCE WITH
NASD CONDUCT RULE 2810.
X ______________________________________________________________________________
Financial Advisor's Signature
................................................................................
Type or Print Full Name of Financial Advisor
Telephone Number ( .............................. ).............................
THE UNDERSIGNED BRANCH MANAGER HEREBY CERTIFIES THAT:
(1) the above signature(s) is/are true and correct.
(2) the above client(s) is/are suitable.
X ______________________________________________________________________________
Branch Manager's Signature
................................................................................
Type or Print Full Name of Branch Manager
B-7
<PAGE>
MORGAN STANLEY DEAN WITTER CHARTER SERIES
EXCHANGE SIGNATURE PAGE
B
PLEASE PRINT OR TYPE. USE BLACK INK ONLY.
PAGES 8 AND 9, THE SUBSCRIPTION SIGNATURE PAGES, SHOULD BE
DELIVERED TO THE LOCAL DEAN WITTER BRANCH OFFICE AND MUST BE RECEIVED BY THE
GENERAL PARTNER AT TWO WORLD TRADE CENTER, 62ND FLOOR, NEW YORK, NEW YORK
10048-0026, AT LEAST FIVE BUSINESS DAYS PRIOR TO THE APPLICABLE CLOSING.
The Subscriber named below, by execution and delivery of this
Signature Page hereby redeems the units of limited partnership interest of the
limited partnership(s) named in Item 1 below and, by application of the proceeds
of such redemption to the payment of the purchase price for Units of Limited
Partnership Interest ("Units") in one or more Partnerships in the Morgan Stanley
Dean Witter Charter Series (the "Partnerships"), hereby subscribes for Units in
the Partnership(s) specified below at a price equal to $10 per Unit at the
Initial Closing, or 100% of the Net Asset Value per Unit of the applicable
Partnership(s) as of the close of business on the date of the Monthly Closing,
as applicable. Redemption of units of any partnership for an exchange must be in
whole units, unless Subscriber is redeeming its entire interest in such
partnership.
BY SUCH EXECUTION AND PAYMENT, THE SUBSCRIBER ACKNOWLEDGES
RECEIPT OF THE PROSPECTUS OF THE PARTNERSHIPS DATED , 1998, INCLUDING
THE LIMITED PARTNERSHIP AGREEMENT AND THIS SUBSCRIPTION AND EXCHANGE AGREEMENT
AND POWER OF ATTORNEY, THE TERMS OF WHICH GOVERN THE INVESTMENT IN THE UNITS
BEING SUBSCRIBED FOR HEREBY, AND, IF THE PARTNERSHIPS HAVE BEEN TRADING FOR AT
LEAST ONE MONTH, THE CURRENT MONTHLY REPORT FOR THE PARTNERSHIPS.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ITEM 1 -- SUBSCRIBER (SUBSCRIBER MUST SIGN BELOW TAX REPRESENTATION)
- --------------------------------------------------------------------------------
DWR ACCOUNT NO. / / / / / / / / / / / / / / / / / / / / / /
<TABLE>
<S> <C> <C>
SYMBOL(S) FOR FUND(S) SPECIFY QUANTITY OF UNITS TO BE REDEEMED CHARTER
FROM (CHECK BOX IF ENTIRE INTEREST; INSERT NUMBER IF WHOLE SERIES
WHICH UNITS TO BE UNITS) FUND SYMBOL
REDEEMED
/ / / / / / / / / / / / Entire Interest OR Whole Units TO / / / / / / / /
/ / / / / / / / / / / / Entire Interest OR Whole Units TO / / / / / / / /
/ / / / / / / / / / / / Entire Interest OR Whole Units TO / / / / / / / /
/ / / / / / / / / / / / Entire Interest OR Whole Units TO / / / / / / / /
</TABLE>
The Subscriber hereby authorizes Demeter Management Corporation to
redeem the above quantity of units of limited partnership interest set
forth opposite the symbol for each partnership identified on the left
above at the "Net Asset Value" thereof, as defined in the limited
partnership agreement of each such partnership, less any redemption
charges, and to utilize the net proceeds thereof to purchase Units in
the applicable Charter Series Partnership as indicated. Redemptions
for an exchange must meet the applicable minimum investment
requirements described under "Subscription Procedure" in the
Prospectus.
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
TAXABLE INVESTORS NON-TAXABLE INVESTORS
/ / / / / / -/ / / / -/ / / / / / / / OR / / / / -/ / / / / / / / / / / / / / OR / / / / / / / / / / / / / / / / / / / / / /
SOCIAL SECURITY NUMBER OF: (CHECK ONE) TAXPAYER ID NUMBER FOR: (CHECK ONE) SOC. SEC. #/TAXPAYER ID # FOR: (CHECK ONE)
/ / Individual Ownership / / Trust other than Grantor or / / IRA (the DWR Branch Manager must
/ / Joint Tenants with Rights of Revocable Trust sign below for IRA accounts)
Survivorship / / Estate / / Employee Benefit Plan
/ / Tenants in Common / / UGMA/UTMA (Minor) (Participant-Directed)
/ / Community Property / / Partnership / / Defined Benefit Plan (Other)_________
/ / Grantor or other Revocable Trust / / Corporation / / Other (specify) _____________________
</TABLE>
ALL SUBSCRIBERS (OR BRANCH MANAGERS IN THE CASE OF AN IRA) MUST SIGN
<TABLE>
<S> <C> <C>
UNITED STATES TAXABLE INVESTORS ONLY: NON-UNITED STATES INVESTORS ONLY:
/ / Check box if Subscriber is subject to backup withholding under the Under penalties of perjury, by
provisions of Section 3406(a)(1)(C) of the Internal Revenue Code. signature below, the Subscriber
If Subscriber's taxable year is other than the calendar certifies that such Subscriber is NOT
year, indicate the date on which Subscriber's taxable year ends:.... OR
Under penalties of perjury, by signing below, I certify that the Social (a) a citizen or resident of the
Security Number (or Taxpayer ID Number) above to be the true, correct and United States; or
complete Social Security Number (or Taxpayer ID Number) and that all the (b) a United States corporation,
information above is true, correct and complete. partnership, estate or trust.
X
________________________________________________________________________________________________ __________________________
(Signature of Subscriber or Officer, Partner or Trustee [or Branch Manager in the case of IRAs]) Date
If Subscriber is an Entity: Type or Print Name of Entity:.....................................................................
Name:.......................................................Date:.................................
Title:............................................................................................
</TABLE>
- -----------------------------------------------------------------------
EXCHANGE SIGNATURE PAGE EXG
- -----------------------------------------------------------------------
B-8
<PAGE>
<TABLE>
<S> <C>
Full Name of Account.............................................................................................
(Subscriber's Name or Name of Trust or Custodial Account--do not use initials)
Subscriber is a resident of ............................... and a citizen of ..............................
(name of country) (name of county)
</TABLE>
/ / Check here if Subscriber is a non-resident alien individual, foreign
corporation, foreign partnership, foreign trust or foreign estate that is a
dealer in commodities or otherwise engaged in a trade or business within the
U.S.A. to which income, gain or loss from a Partnership would be treated as
effectively connected. (Subscriber must complete Form W-8, which may be obtained
from a DWR Financial Advisor.)
COMPLETE, IF APPLICABLE (MUST BE COMPLETED IF THERE IS A CO-SUBSCRIBER, TRUSTEE
OR CUSTODIAN):
Name .......... Telephone Number ( .......... ) .........
The person or entity above is a/an: (check one)
/ / Co-Subscriber / / Trustee or Custodian / / Authorized Person, if an
Institutional Trustee
<TABLE>
<S> <C>
Street Address (P.O. Box alone not acceptable)...................................................................
City............................................................. State ....... Zip Code ....... Tel. No.
Co-Subscriber, Trustee or Custodian is a resident of............. and a citizen of............................
Minor (if not a gift) is a resident of........................... and a citizen of............................
</TABLE>
- --------------------------------------------------------------------------------
ITEM 2 -- SIGNATURE(S) -- SUBSCRIBER(S) MUST SIGN UNDER TAX REPRESENTATION ON
PRECEDING PAGE AND BELOW
- --------------------------------------------------------------------------------
(INDIVIDUAL OR JOINT SUBSCRIPTION, INCLUDING PARTICIPANT-DIRECTED EMPLOYEE
BENEFIT PLAN OR IRA SUBSCRIPTION)
If this subscription is for a joint or community property account, the
statements, representations, and warranties set forth in this Subscription and
Exchange Agreement and Power of Attorney shall be deemed to have been made by
each owner of the account.
* If the Units will be owned by joint owners, tenants in common, or as
community property, signatures of all owners are required.
* In the case of a participant-directed employee benefit plan or IRA, the
beneficiary must sign immediately below and the trustee or custodian must
sign below under "Entity Subscription."
<TABLE>
<S> <C> <C> <C>
X____________________________________ ____________________ X_______________________________ __________________
(Signature of Subscriber) Date (Signature of Co-Subscriber) Date
</TABLE>
(ENTITY SUBSCRIPTION)
ACCEPTANCE OF SUBSCRIPTION ON BEHALF OF EMPLOYEE BENEFIT PLANS (INCLUDING IRAS)
IS IN NO RESPECT A REPRESENTATION BY THE GENERAL PARTNER OR DWR THAT THIS
INVESTMENT MEETS ALL RELEVANT LEGAL REQUIREMENTS WITH RESPECT TO INVESTMENTS BY
ANY PARTICULAR PLAN, OR THAT THIS INVESTMENT IS APPROPRIATE FOR ANY PARTICULAR
PLAN.
The undersigned corporate officer, partner or trustee hereby certifies and
warrants that s/he has full power and authority from or on behalf of the entity
named below and its shareholders, partners, or beneficiaries to complete,
execute and deliver this Subscription Agreement and Power of Attorney on their
behalf and to make the statements, representations, and warranties made herein
on their behalf, and that investment in each Partnership specified is authorized
under applicable law and the governing documents of the entity, has been
affirmatively authorized by the governing board or body, if any, of the entity,
and is legally permissible.
<TABLE>
<S> <C> <C>
....................................................... X______________________________________ ______________________
(Type or Print Name of Entity) (Signature) Date
Print Name............................................. Title..................................
</TABLE>
- --------------------------------------------------------------------------------
ITEM 3 -- BRANCH MANAGER AND FINANCIAL ADVISOR USE ONLY (COMPLETE IN FULL AND IN
INK)
- --------------------------------------------------------------------------------
THE UNDERSIGNED FINANCIAL ADVISOR HEREBY CERTIFIES THAT:
(1) the above signature(s) is/are true and correct;
(2) s/he has informed the Subscriber about the liquidity and marketability of
the Units as set forth in the Prospectus.
(3) based on information obtained from the Subscriber concerning the
Subscriber's investment objectives, other investments, financial situation,
needs and any other relevant information, that s/he reasonably believes
that:
(a) such Subscriber is or will be in a financial position appropriate to
enable such Subscriber to realize the benefits of each Partnership
specified, as described in the Prospectus;
(b) such Subscriber has a net worth sufficient to sustain the risk
inherent in each Partnership specified (including loss of investment
and lack of liquidity); and
(c) each Partnership specified is otherwise a suitable investment for
such Subscriber; and
(4) the Subscriber received the Prospectus at least five business days prior
to the applicable Monthly Closing.
THE FINANCIAL ADVISOR MUST SIGN BELOW IN ORDER TO SUBSTANTIATE COMPLIANCE WITH
NASD CONDUCT RULE 2810.
X ______________________________________________________________________________
Financial Advisor's Signature
................................................................................
Type or Print Full Name of Financial Advisor
Telephone Number ( ............................ )...........................
THE UNDERSIGNED BRANCH MANAGER HEREBY CERTIFIES THAT:
(1) the above signature(s) is/are true and correct.
(2) the above client(s) is/are suitable.
X ______________________________________________________________________________
Branch Manager's Signature
................................................................................
Type or Print Full Name of Branch Manager
B-9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee.................................................... $ 8,850
NASD filing fee......................................................... 3,500
Printing and engraving.................................................. 133,333*
Legal fees and expenses (excluding Blue Sky legal fees)................. 83,333*
Accounting fees and expenses............................................ 26,667*
Escrow Agent fees....................................................... 1,000*
Blue Sky fees and expenses (including Blue Sky legal fees).............. 50,000*
Miscellaneous........................................................... 26,650
--------
Total............................................... $333,333
--------
--------
<FN>
- ------------------------------------------------------------------------
*Represents an estimate of the Partnership's portion of fees and expenses that
are common to the concurrent offerings of the three partnerships in the Morgan
Stanley Dean Witter Charter Series, being effected pursuant to this Registration
Statement and each of the Registration Statements on Form S-1 for Morgan Stanley
Dean Witter Charter Millburn L.P. and Morgan Stanley Dean Witter Charter Welton
L.P., respectively.
</FN>
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14 of the Limited Partnership Agreement (a form of
which is annexed to the Prospectus as Exhibit A) provides for indemnification of
the General Partner and its affiliates (as such term is defined therein) by the
Partnership for any loss, liability, damage, cost or expense arising from any
act, omission, activity or conduct undertaken by or on behalf of the Partnership
that is determined by the General Partner in good faith to be in the best
interests of the Partnership and was not the result of misconduct or negligence.
Section 11 of the Selling Agreement provides for indemnification of the General
Partner and its affiliates and its successors and assigns by Dean Witter
Reynolds Inc. ("DWR") for any loss, claim, damage, liability, cost and expense
incurred for a breach by DWR of a representation or agreement in the Selling
Agreement, or for misleading statements and material omissions regarding DWR in
the Registration Statement or Prospectus. Such Section also provides for the
indemnification by the Partnership of DWR, the General Partner and their
affiliates for any act, omission, conduct, or activity undertaken by or on
behalf of a Partnership that is determined by DWR or the General Partner, as
applicable, in good faith to be in the best interests of the Partnership and was
not the result of misconduct or negligence. Section 8 of the DWR Customer
Agreement provides for indemnification of DWR and its affiliates for
liabilities, losses, damages, costs, or expenses for activities taken by or on
behalf of the Partnership which DWR has determined in good faith are in the best
interests of the Partnership and are not the result of misconduct or negligence.
Section 8 of the Management Agreement provides for indemnification of the
General Partner and its affiliates by the Trading Advisor for losses, claims,
damages, liabilities, costs and expenses incurred as a result of actions or
omissions by the Trading Advisor involving the Partnership's trading which are
the result of a breach of agreement, representation or warranty or the result of
bad faith, misconduct or negligence.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
None.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS.
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------------------------------------------------------------
<C> <S>
1.01 Form of Selling Agreement among the Registrant, Demeter Management Corpora-
tion, the Trading Advisor and Dean Witter Reynolds Inc.
1.02 Form of Additional Seller Agreement between Dean Witter Reynolds Inc. and
additional selling agents (to also be included as an annex to Exhibit
1.01, form of Selling Agreement).
3.01 Form of Limited Partnership Agreement of the Registrant (included as Exhibit
A to the Prospectus).
3.02 Certificate of Limited Partnership of the Registrant.
5.01 Opinion of Cadwalader, Wickersham & Taft to the Registrant regarding the
legality of Units (including consent).
8.01 Opinion of Cadwalader, Wickersham & Taft to the Registrant regarding certain
federal income tax matters (including consent).
10.01 Form of Customer Agreement between the Registrant and Dean Witter Reynolds
Inc.
10.01(a) Form of Customer Agreement among the Registrant, Carr Futures, Inc. and Dean
Witter Reynolds Inc.
10.01(b) Form of International Foreign Exchange Master Agreement between the
Registrant and Carr Futures, Inc.
10.02 Form of Management Agreement among the Registrant, the General Partner and
the Trading Advisor.
10.03 Subscription and Exchange Agreement and Power of Attorney to be executed by
purchasers of Units (included as Exhibit B to the Prospectus).
10.04 Escrow Agreement among the Registrant, Dean Witter Reynolds Inc., and The
Chase Manhattan Bank, the escrow agent.
23.01 Consent of Independent Auditors for the General Partner and the Registrant.
</TABLE>
(B) FINANCIAL STATEMENTS.
Included in the Prospectus:
Morgan Stanley Dean Witter Charter Graham L.P.
Independent Auditors' Report
Statement of Financial Condition
Notes to Statement of Financial Condition
Demeter Management Corporation
Independent Auditors' Report
Statements of Financial Condition
Notes to Statements of Financial Condition
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement: (a)
to include any prospectus required by Section 10(a)(3) of the Securities Act of
1933; (b) 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, represent a
fundamental change in the information set forth in the Registration Statement;
and (c) to include any material information with respect to the plan of
II-2
<PAGE>
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) That all post-effective amendments will comply with
the applicable forms, rules and regulations of the Securities and Exchange
Commission in effect at the time such post-effective amendments are filed.
(4) 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.
(5) Insofar, as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act 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 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York
and State of New York on the 29th day of July 1998.
MORGAN STANLEY DEAN WITTER
CHARTER GRAHAM L.P.
By: DEMETER MANAGEMENT CORPORATION,
General Partner
By: /s/ Mark J. Hawley
________________________
Mark J. Hawley, President
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------- -----------------
<C> <S> <C>
DEMETER MANAGEMENT CORPORATION General Partner
/s/ Mark J. Hawley President and Director of July 29, 1998
- --------------------------------------------- the General Partner
Mark J. Hawley
/s/ Richard M. DeMartini Chairman of the Board and July 29, 1998
- --------------------------------------------- Director of the
Richard M. DeMartini General Partner
- --------------------------------------------- Director of the General
Lawrence Volpe Partner
- --------------------------------------------- Director of the General
Joseph G. Siniscalchi Partner
/s/ Edward C. Oelsner, III Director of the General July 29, 1998
- --------------------------------------------- Partner
Edward C. Oelsner, III
/s/ Robert E. Murray Director of the General July 29, 1998
- --------------------------------------------- Partner
Robert E. Murray
/s/ Lewis A. Raibley, III Vice President and Chief July 29, 1998
- --------------------------------------------- Financial and
Lewis A. Raibley, III Principal Accounting
Officer of the
General Partner
</TABLE>
II-4
<PAGE>
EXHIBIT 1.01
<PAGE>
SELLING AGREEMENT
Dated as of _________ ___, 1998
Dean Witter Reynolds Inc.
Two World Trade Center, 62nd Floor
New York, New York 10048
Dear Sirs:
Morgan Stanley Dean Witter Charter Graham L.P. ("Charter Graham"),
Morgan Stanley Dean Witter Charter Millburn L.P. ("Charter Millburn"), and
Morgan Stanley Dean Witter Charter Welton L.P. ("Charter Welton"; collectively
with Charter Graham and Charter Millburn, the "Partnerships," and each
individually, a "Partnership"), each a limited partnership organized pursuant to
a certificate of limited partnership filed on July 15, 1998 and a limited
partnership agreement dated as of _______ ___, 1998 under the Delaware Revised
Uniform Limited Partnership Act (the "DRULPA") (the certificates of limited
partnership of Charter Graham, Charter Millburn, and Charter Welton are each
hereinafter referred to as a "Certificate of Limited Partnership," and the
limited partnership agreements of Charter Graham, Charter Millburn, and Charter
Welton, are each hereinafter referred to as a "Limited Partnership Agreement"),
each propose, subject to the terms and conditions set forth in this Agreement,
to concurrently offer, sell, and issue up to 3,000,000 units of limited
partnership interest in each Partnership ("Units").
Demeter Management Corporation, a Delaware corporation, is the sole
general partner of each Partnership (the "General Partner"). A single
registered commodity trading advisor (each, a "Trading Advisor") for each
Partnership is acting as the trading advisor with respect to the management of
each Partnership's trading activities pursuant to the respective management
agreements among the Trading Advisor for each Partnership, each Partnership, and
the General Partner (each, a "Management Agreement" and collectively, the
"Management Agreements").
Dean Witter Reynolds Inc., a Delaware corporation ("DWR"), acts as
selling agent pursuant to this Agreement and acts as the non-clearing
commodity broker (in such capacity, the "Non-Clearing Broker") pursuant to
the respective customer agreements between the Non-Clearing Broker and each
Partnership, each dated as of ____________ ___, 1998 (collectively, the "DWR
Customer Agreements"). Carr Futures, Inc., a Delaware corporation (the
"Clearing Broker" and, together with the Non-Clearing Broker, the "Commodity
Brokers"), acts as the clearing commodity broker pursuant to the respective
customer agreements among the Clearing Broker, the Non-Clearing Broker, and
each Partnership, each dated as of _____________ ____, 1998 (collectively, the
"CFI Customer Agreements"). Subscriptions for Units will be held by The
Chase Manhattan Bank, as escrow agent (the "Escrow Agent"), pursuant to an
<PAGE>
escrow agreement among the Partnerships, the Escrow Agent and DWR, dated as of
__________ ____, 1998 (the "Escrow Agreement").
1. Representations and Warranties of the General Partner and the
Partnerships. The General Partner represents and warrants to each of the
other parties hereto as to each Partnership and itself, and each Partnership,
severally and not jointly, represents and warrants to DWR as to itself with
respect to the agreements to which it is a party and with respect to the other
applicable documents, as follows:
(a) The Partnerships have provided to DWR, and filed with the
Securities and Exchange Commission (the "SEC") on July ____, 1998, registration
statements on Form S-1 (SEC File Nos. 333-_______, 333-____________, and 333-
__________), for the registration of 3,000,000 Units of Charter Graham,
3,000,000 Units of Charter Millburn, and 3,000,000 Units of Charter Welton,
respectively), under the Securities Act of 1933, as amended (the "1933 Act"),
and the rules and regulations promulgated by the SEC thereunder (the "SEC
Regulations"), and have filed copies of such registration statements with (i)
the Commodity Futures Trading Commission (the "CFTC") under the Commodity
Exchange Act (the "CEAct") and the rules and regulations promulgated thereunder
(the "CFTC Rules"); (ii) NASD Regulation, Inc. (the "NASD") pursuant to its
Conduct Rules; and (iii) the National Futures Association (the "NFA") in
accordance with NFA Compliance Rule 2-13. Each registration statement and
prospectus included therein are hereinafter called the "Registration Statement"
and the "Prospectus," respectively, except that if any Partnership files a post-
effective amendment to its registration statement, then the term "Registration
Statement" shall, from and after the filing of each such amendment, refer to the
applicable Registration Statement, as amended by such amendment, and the term
"Prospectus" shall refer to the amended prospectus then on file with the SEC
as part of the applicable Registration Statement; and if a prospectus as first
issued in compliance with the SEC Regulations shall differ from the prospectus
on file at the time the applicable Registration Statement or any amendment
thereto shall have become effective, the term "Prospectus" shall refer to the
prospectus most recently so issued from and after the date on which it shall
have been issued, including any amendment or supplement thereto. The
Partnerships will not file any amendment to their respective Registration
Statements or any amendment or supplement to the Prospectus unless DWR has
received reasonable prior notice of and a copy of such amendments or supplements
and has not reasonably objected thereto in writing.
(b) The Limited Partnership Agreements provide for the subscription
for and sale of the Units; all action required to be taken by the General
Partner and the Partnerships as a condition to the sale of the Units to
qualified subscribers therefor has been, or prior to each Closing (as defined in
Section 5(b) hereof) will have been, taken; and, upon payment of the
consideration therefor specified in each accepted Subscription and Exchange
Agreement and Power of Attorney, in the form included in the Prospectus (the
"Subscription Agreement"), the Units will constitute valid limited partnership
interests in the Partnership for which Units were subscribed.
- 2 -
<PAGE>
(c) Each Partnership is a limited partnership duly organized pursuant
to a Certificate of Limited Partnership, a Limited Partnership Agreement and the
DRULPA, and is validly existing under the laws of the State of Delaware with
full power and authority to engage in the trading of futures interests (as
defined in the Prospectus) and to engage in its other contemplated activities as
described in the Prospectus; each Partnership has received a certificate of
authority to do business in the State of New York as provided by Section 121-902
of the New York Revised Limited Partnership Act and is qualified to do business
in each jurisdiction in which the nature or conduct of its business requires
such qualification and where the failure to be so qualified could materially
adversely affect the Partnership's ability to perform its obligations hereunder
or under its Limited Partnership Agreement, its Management Agreement, its DWR
Customer Agreement, its CFI Customer Agreement, or the Escrow Agreement, as
applicable.
(d) The General Partner is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware, and is
qualified to do business and is in good standing as a foreign corporation under
the laws of the State of New York and in each other jurisdiction in which the
nature or conduct of its business requires such qualification and where the
failure to be so qualified could materially adversely affect the General
Partner's ability to perform its obligations hereunder or under the Limited
Partnership Agreements, the Management Agreements, or as described in the
Prospectus.
(e) Each of the Partnerships and the General Partner has full
partnership and corporate power and authority, as applicable, under applicable
law to conduct its business and perform its respective obligations, as
applicable, under the Limited Partnership Agreements, the Management Agreements,
the DWR Customer Agreements, the CFI Customer Agreements, the Escrow Agreement,
and this Agreement.
(f) The Registration Statements and the Prospectus contain all
statements and information required to be included therein by the CEAct and the
CFTC Rules. When each of the Registration Statements becomes effective under
the 1933 Act and at all times subsequent thereto up to and including each
Closing, the Registration Statements and the Prospectus will comply in all
material respects with the requirements of the 1933 Act, the SEC Regulations,
the CEAct, the CFTC Rules, and the rules of the NASD and the NFA. As of their
respective effective dates, the Registration Statements will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
The Prospectus, as of its date of issue and as of each Closing, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which such statements were made, not misleading. Any supplemental sales
literature employed in offering the Units ("Sales Literature"), when read in
conjunction with the Prospectus, as of its date of issue and as of each Closing,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which such statements were made, not misleading. The Sales
Literature will comply with the 1933 Act, the SEC Regulations, the CEAct, the
CFTC Rules, and the rules of the NASD and the NFA. This representation and
warranty shall not, however,
- 3 -
<PAGE>
apply to any statement or omission in the Registration Statements, Prospectus
or Sales Literature relating to DWR or any Trading Advisor or made in
reliance upon and in conformity with information furnished by DWR or any
Trading Advisor.
(g) The accountants who certified the financial statements filed
with the SEC as part of the Registration Statements are, with respect to the
General Partner and the Partnerships, independent public accountants as required
by the 1933 Act and the SEC Regulations.
(h) The financial statements filed as part of the Registration
Statements and those included in the Prospectus present fairly the financial
position of each Partnership and of the General Partner as of the dates
indicated; and said financial statements have been prepared in conformity with
generally accepted accounting principles (as described therein).
(i) Since the respective dates as of which information is given in
the Registration Statements and the Prospectus, except as may otherwise be
stated in or contemplated by the Registration Statements and the Prospectus,
there has not been any material adverse change in the condition, financial or
otherwise, business or prospects of the General Partner or any Partnership,
whether or not arising in any ordinary course of business.
(j) The General Partner will have a net worth at each Closing
sufficient in amount and satisfactory in form to meet the net worth
requirements set forth in each of the Limited Partnership Agreements.
(k) The Limited Partnership Agreements, the Management Agreements
and this Agreement have each been duly and validly authorized, executed, and
delivered by the General Partner on behalf of the Partnerships and the General
Partner, and each constitutes a valid and binding agreement of the
Partnerships and of the General Partner, enforceable in accordance with their
terms. The DWR Customer Agreements, the CFI Customer Agreements and the Escrow
Agreement have each been duly and validly authorized, executed, and delivered
by the General Partner on behalf of the Partnerships, and each constitutes a
valid and binding agreement of the Partnerships, enforceable in accordance
with their terms.
(l) The execution and delivery of the Limited Partnership Agreements,
the Management Agreements, the DWR Customer Agreements, the CFI Customer
Agreements, the Escrow Agreement, and this Agreement, the incurrence of the
obligations set forth in each of such agreements, and the consummation of the
transactions contemplated therein and in the Registration Statements and the
Prospectus, will not violate, or constitute a breach of, or default under, the
certificate of incorporation or bylaws of the General Partner, the Certificates
of Limited Partnership or the Limited Partnership Agreements of the
Partnerships, or any other agreement or instrument by which either the General
Partner or the Partnerships, as the case may be, is bound or any law, order,
rule, or regulation applicable to the General Partner or the Partnerships of any
court, governmental body, administrative agency, panel, or self-regulatory
organization having jurisdiction over the General Partner or the Partnerships.
- 4 -
<PAGE>
(m) Except as set forth in the Registration Statements or the
Prospectus, there has not been in the five years preceding the date of the
Prospectus and there is not pending or, to the best of the General Partner's
knowledge, threatened, any action, suit, or proceeding at law or in equity
before or by any court, governmental body, administrative agency, panel, or
self-regulatory organization to which the General Partner, any of the
"principals" of the General Partner, as defined in CFTC Rule 4.10(e) ("General
Partner Principals"), or any of the Partnerships is or was a party, or to which
any of the assets of the General Partner or any of the Partnerships is or was
subject; and neither the General Partner nor any General Partner Principal has
received any notice of an investigation by the SEC, CFTC, NASD, or NFA regarding
non-compliance by the General Partner, the General Partner Principals, or the
Partnerships with the 1933 Act, the SEC Regulations, the Securities Exchange Act
of 1934, as amended (the "1934 Act"), any other federal securities laws, rules
or regulations, the CEAct, the CFTC Rules, or the rules of the NASD or the NFA,
which action, suit, proceeding, or investigation resulted or might reasonably be
expected to result in any material adverse change in the condition, financial or
otherwise, business or prospects of the General Partner or any of the
Partnerships, or which could be material to an investor's decision to invest
in any of the Partnerships.
(n) The General Partner and each "principal" of the General Partner,
as defined in CFTC Rule 3.1(a), have all federal, state, and foreign
governmental, regulatory, self-regulatory, and exchange approvals, licenses,
registrations, and memberships, and have effected all filings with federal,
state, and foreign governmental regulators, self-regulatory organizations, and
exchanges required to conduct their business and to act as described in the
Registration Statements and the Prospectus, or required to perform their
obligations under the Limited Partnership Agreements, the DWR Customer
Agreements, the CFI Customer Agreements, the Escrow Agreement, the Management
Agreements and this Agreement. The General Partner is registered as a
commodity pool operator under the CEAct and is a member of the NFA as a
commodity pool operator. The General Partner's principals identified in the
Prospectus are all of the General Partner Principals.
(o) To the extent required under CFTC Rules and applicable CFTC staff
no-action letters, the actual performance of all pools "operated" within the
meaning of the CEAct by the General Partner and of the General Partner
Principals is disclosed in the Prospectus.
2. Covenants of the Partnerships and the General Partner. Each
Partnership as to itself, severally and not jointly, and the General Partner
as to itself and each Partnership covenants and agrees as follows:
(a) The Partnerships will use their best efforts to cause the
Registration Statements to become effective as promptly as possible. The
Partnerships will prepare and file with the SEC, CFTC, NASD, and NFA, promptly
upon DWR's request, any amendments to the applicable Registration Statement,
and any amendments and supplements to the Prospectus, which may be necessary
or advisable in connection with the offering and sale of Units, and will use
its best efforts to cause the same to become effective as promptly as possible.
- 5 -
<PAGE>
(b) As soon as any Partnership is advised or obtains knowledge
thereof, such Partnership will advise DWR of any requests made by the SEC,
CFTC, NASD, or NFA to amend the applicable Registration Statement, to amend or
supplement the Prospectus, or for additional information, or of the issuance
by the SEC of any stop order suspending the effectiveness of any Registration
Statement, of any order by the SEC, CFTC, NASD or NFA preventing or suspending
the use of the Prospectus, or of the institution of any proceedings for any
such purpose, and will use its best efforts to prevent the issuance of any
such order and, if any such order is issued, to obtain the lifting thereof as
promptly as possible.
(c) If, at any time after the effective date of any Registration
Statement and any amendment thereto, any event occurs involving any of the
Partnerships, the General Partner, or any General Partner Principal, or of
which any of the Partnerships, the General Partner, or any General Partner
Principal is aware, as a result of which any Registration Statement or the
Prospectus, as then amended and supplemented, would include any untrue
statement of a material fact or any omission to state a material fact required
to be stated therein or necessary to make the statements therein (and, with
respect to the Prospectus, in light of the circumstances under which they were
made) not misleading, or if it becomes necessary or desirable at any time to
amend or supplement any Registration Statement or the Prospectus to comply
with the 1933 Act, the SEC Regulations, the CEAct, the CFTC Rules, or the
rules of the NASD or the NFA, the Partnerships will promptly notify DWR
thereof and will prepare and file with the SEC, CFTC, NASD, and NFA an
amendment or supplement that will correct such statement or omission or that
will effect such compliance.
(d) The Partnerships will furnish to DWR copies of the Registration
Statements, the Prospectus, and all amendments and supplements thereto, in each
case as soon as available and, in the case of the Prospectus, in such quantities
as DWR may reasonably request for delivery to it.
3. Representations and Warranties of the Non-Clearing Broker.
The Non-Clearing Broker represents and warrants to each of the other parties
hereto, as follows:
(a) The Non-Clearing Broker is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Delaware, and is qualified to do business and is in good standing as a foreign
corporation in the State of New York and in each other jurisdiction in which
the nature or conduct of its business requires such qualification and where
the failure to be so qualified could materially adversely affect the
Non-Clearing Broker's ability to perform its obligations hereunder or under
the DWR Customer Agreements, or as described in the Prospectus. The
Non-Clearing Broker has full corporate power and authority to perform its
obligations under each of the DWR Customer Agreements and this Agreement, and
to conduct its business as described in the Registration Statements and the
Prospectus.
(b) As to the Non-Clearing Broker, (i) the Registration Statements
and the Prospectus are accurate and complete in all material respects and
contain all statements and information required to be included therein under
the 1933 Act, the SEC Regulations, the CEAct, the CFTC Rules, and the rules of
the NFA; (ii) as of their effective dates, the
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Registration Statements will not contain any untrue statement of a material
fact or omit to state a material fact which is required to be stated therein or
necessary to make the statements therein not misleading; and (iii) the
Prospectus, as of its date of issue and as of each Closing, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which such
statements were made, not misleading.
(c) The Non-Clearing Broker and each "principal" of the Non-Clearing
Broker, as defined in CFTC Rule 3.1(a), have all federal, state, and foreign
governmental, regulatory, self-regulatory, and exchange approvals, licenses,
registrations, and memberships, and have effected all filings with federal,
state, and foreign governmental regulators, self-regulatory organizations, and
exchanges required to conduct their business and to act as described in the
Registration Statements and the Prospectus, or required to perform their
obligations under each DWR Customer Agreement and this Agreement, as applicable.
The Non-Clearing Broker is registered as a futures commission merchant under the
CEAct and is a member of the NFA as a futures commission merchant.
(d) The DWR Customer Agreements and this Agreement have been duly
and validly authorized, executed, and delivered by the Non-Clearing Broker,
and each constitutes a valid and binding agreement of the Non-Clearing Broker,
enforceable in accordance with its terms.
(e) Since the respective dates as of which information is given in
the Registration Statements and the Prospectus, except as may otherwise be
stated in or contemplated by the Registration Statements and the Prospectus,
there has not been any material adverse change in the condition, financial or
otherwise, business or prospects of the Non-Clearing Broker, whether or not
arising in the ordinary course of business.
(f) Except as set forth in the Registration Statements or the
Prospectus, there has not been in the five years preceding the date of the
Prospectus and there is not pending or, to the best of the Non-Clearing
Broker's knowledge, threatened, any action, suit, or proceeding at law or in
equity before or by any court, governmental body, administrative agency,
panel, or self-regulatory organization to which the Non-Clearing Broker is or
was a party, or to which any of the assets of the Non-Clearing Broker is or
was subject; and the Non-Clearing Broker has not received any notice of an
investigation by the NFA or the CFTC regarding non-compliance by the Non-
Clearing Broker with the CEAct, the CFTC Rules, or the rules of the NFA, which
action, suit, proceeding or investigation resulted in or might reasonably be
expected to result in any material adverse change in the condition, financial
or otherwise, business or prospects of the Non-Clearing Broker or which would
be material to an investor's decision to invest in any of the Partnerships.
(g) The execution and delivery of each DWR Customer Agreement and
this Agreement, the incurrence of the obligations set forth herein and in each
DWR Customer Agreement, and the consummation of the transactions contemplated
therein and in the Registration Statements and in the Prospectus, will not
violate, or constitute a breach of, or
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default under, the certificate of incorporation or bylaws of the Non-Clearing
Broker or any other agreement or instrument by which it is bound, or any law,
order, rule, or regulation applicable to the Non-Clearing Broker of any court,
governmental body, administrative agency, panel, or self-regulatory organization
having jurisdiction over the Non-Clearing Broker.
4. Covenants of the Non-Clearing Broker. The Non-Clearing Broker
covenants and agrees as follows:
(a) The Non-Clearing Broker agrees reasonably to cooperate by
providing information regarding itself in the preparation of any amendments or
supplements to the Registration Statements and the Prospectus.
(b) The Non-Clearing Broker agrees to notify the General Partner
immediately upon discovery of any untrue statement of a material fact in the
Registration Statements or the Prospectus relating to the Non-Clearing Broker,
or an omission to state a material fact relating to the Non-Clearing Broker,
required to be stated therein or necessary to make the statements therein (and,
with respect to the Prospectus, in light of the circumstances under which they
were made) not misleading, or of the occurrence of any event or change in
circumstances which would result in there being any material untrue or
misleading statement or a material omission in the Prospectus or the
Registration Statements regarding the Non-Clearing Broker, or which would
result in the Prospectus not including all material information relating to
the Non-Clearing Broker, required pursuant to the CEAct, the CFTC Rules, or
the rules of the NFA.
5. Appointment of the Selling Agent.
(a) Subject to the terms and conditions set forth in this Agreement,
each Partnership hereby appoints DWR as its selling agent to offer and sell
Units on a best efforts basis, without any firm commitment on the part of DWR to
purchase any Units. DWR shall offer for sale up to 3,000,000 Units of Charter
Graham, 3,000,000 Units of Charter Millburn, and 3,000,000 Units of Charter
Welton and such additional Units as the General Partner may, in its discretion,
register and offer for sale from time to time.
(b) The "Initial Offering Period" will be the period commencing
on the date of the Prospectus and ending on November 30, 1998, unless all
of the registered Units have previously been subscribed for or the General
Partner has sooner terminated the Initial Offering Period, or the General
Partner extends the Initial Offering Period as described below. During the
Initial Offering Period, DWR will offer Units of each Partnership for sale at
an "Initial Closing," which currently is scheduled to be held on October 31,
1998, at a price equal to $10.00 per Unit of each Partnership. However,
the General Partner may at its discretion hold such Initial Closing at any
time during the Initial Offering Period. The Initial Closing shall not take
place with respect to any Partnership unless subscriptions have been accepted
for at least 400,000 Units of such Partnership; it is not a condition of the
Initial Closing that such minimum number of Units be sold by each Partnership.
If the minimum number of Units of a Partnership are not sold during the
Initial Offering Period, the offering of
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Units of such Partnership shall terminate, and all subscription amounts
(together with any interest earned thereon) shall be refunded to subscribers, as
described in the Prospectus. Units which remain unsold following the Initial
Closing shall be offered for sale in the Partnerships' continuing offering (the
"Continuing Offering"), at monthly closings to be held as of the last day of
each month ("Monthly Closing"), at a price per Unit equal to 100% of the "Net
Asset Value per Unit" (as defined in each Limited Partnership Agreement) as of
the close of business on the date of such Monthly Closing. The minimum
subscription for most subscribers shall be $20,000, except that, in the case of
subscribers purchasing Units pursuant to a Non-Series Exchange (as defined in
the Prospectus), the $20,000 minimum investment will be satisfied if the
proceeds of the redemption of the units redeemed would have equaled at least
$20,000 as of the last day of the month immediately preceding the Closing at
which Units are purchased, irrespective of whether the actual proceeds from such
redemption are less than $20,000 when the units are redeemed. A subscription may
be for Units of one Partnership, or may be divided among two or all three
Partnerships, provided that the minimum subscription for any one Partnership is:
(a) in the case of a cash purchase, $5,000, or (b) in the case of a Non-Series
Exchange, the proceeds from the redemption of (i) five units from commodity
pools other than the Spectrum Series or Morgan Stanley Tangible Asset Fund L.P.,
("MSTAF"), (ii) 500 units from one, or any combination, of the Spectrum Series,
or (iii) 500 units from MSTAF. The minimum subscription per Partnership for
subscribers who already own Units in a Partnership and desire to make an
additional investment in such Partnership is: (a) in the case of a cash
purchase, $1,000, or (b) in the case of a Non-Series Exchange, the proceeds from
the redemption of (i) one Unit from commodity pools other than the Spectrum
Series or MSTAF, (ii) 100 units from one, or any combination of the Spectrum
Series, or (iii) 100 units from MSTAF. The number of Units received by a
subscriber will be rounded to the third decimal place.
(c) Notwithstanding any provision to the contrary herein, the
General Partner will have the sole discretion to accept or reject any
subscription for Units in whole or in part at any time prior to acceptance.
(d) No selling commissions will be charged with respect to the
sale of Units. The Partnerships understand, however, that DWR may compensate
its employees and certain "Additional Sellers," solely from DWR's own funds,
in the manner described in Sections 5(e)-(j).
(e) In the case of Units purchased for cash, qualified employees
of DWR have the option to receive from DWR (payable solely from its own funds)
a gross sales credit equal to four percent (4%) of the Net Asset Value per
Unit as of the applicable Closing for each Unit sold by them and issued at
such Closing, plus a gross sales credit of up to 71% of the brokerage fees
received by the Non-Clearing Broker from the Partnership each month that are
attributable to such outstanding Units, commencing with the fifteenth month
after the Closing at which a Unit is issued. Alternatively, qualified
employees of DWR may forego the initial gross sales credit of 4% of the Net
Asset Value per Unit and immediately commence receiving a gross sales credit
of up to 71% of the brokerage fees received by the Non-Clearing Broker from
the Partnership each month that are attributable to such outstanding Units.
Notwithstanding the foregoing, employees of DWR that sell $500,000 or more of
Units to any single investor for cash will not have an option, and will only
be entitled to receive a gross sales credit of up to 71% of the brokerage fees
received by the Non-Clearing Broker from the Partnership each month that are
attributable to such outstanding Units, commencing with the first month after
the Units are issued.
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(f) In the case of Units purchased pursuant to a Series Exchange
or Non-Series Exchange, qualified employees of DWR will not receive the
initial gross sales credit of 4%. However, DWR employees effecting a Series
Exchange or Non-Series Exchange will receive a gross sales credit of up to 71%
of the brokerage fees received by the Non-Clearing Broker from the Partnership
each month that are attributable to such outstanding Units, as follows:
(i) in the case of a Series Exchange where the DWR employee elected to receive
the initial gross sales credit of 4% in connection with the initial purchase
of the Units redeemed, such DWR employee will receive the monthly gross sales
credit commencing with the fifteenth month after the date the Units being
redeemed were purchased; and (ii) in the case of (A) a Series Exchange where
the DWR employee elected not to receive the initial gross sales credit of
4% in connection with the initial purchase of the Units redeemed or (B) a
Non-Series Exchange, such DWR employee will receive the monthly gross sales
credit commencing with the first month after the Units are issued. In all
cases, qualified DWR employees will receive continuing compensation until the
applicable Partnership terminates or such Unit is redeemed (whichever comes
first).
(g) In all cases, an employee of DWR will qualify for such continuing
compensation only if he is properly registered with the CFTC and is a member of
the NFA, as set forth in Section 5(h). Such continuing compensation is to be
paid in recognition of an employee's continuing services to Limited Partners of
the Partnerships, as set forth in Section 5(j). No person will receive the
continuing compensation described above who is not an employee of DWR at the
time of receipt of payment.
(h) Notwithstanding the foregoing, DWR will not pay any such
continuing compensation to any of its employees who is not legally qualified
or permitted to receive such continuing compensation. In that regard, each of
DWR's employees who receives any such continuing compensation must have become
registered as an "associated person" of DWR with the CFTC and with the NFA in
such capacity only after either having passed the National Commodity Futures
Examination (NASD Test Series #3), the Futures Managed Funds Examination (NASD
Test Series #31), or having been "grandfathered" as an associated person
under the CEAct and the Bylaws and rules of the NFA. Also, such compensation
may be paid by DWR to its employees only in respect of outstanding Units sold
by such persons and only so long as the additional services described in Section
5(i) are provided by such persons to Limited Partners; provided, however, that
DWR may not pay any portion of such compensation to any individual no longer
employed by it, and provided, further, that such compensation may be paid to its
employees who, although not responsible for the sale of an outstanding Unit,
provide the services described below in place of the individual who was
responsible for such sale. All compensation described in Sections 5(e) and (f),
along with any other underwriting compensation, will not exceed 10% of the
proceeds received in connection with the issuance of the Units.
(i) DWR has appointed Morgan Stanley & Co. Incorporated ("MS &
Co.") as its agent to make offers and sales of Units. DWR, with the written
approval of the General Partner, may also appoint, as additional selling
agents, one or more securities brokers or dealers which are members in good
standing of the NASD, or any foreign bank, dealer,
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institution or person ineligible for membership in the NASD which agrees to make
no offers or sales of Units within the United States or its territories,
possessions or areas subject to its jurisdiction or to persons who are citizens
thereof or residents therein, as additional selling agents (MS & Co. and any
such selling agent, an "Additional Seller" and collectively, the "Additional
Sellers"), provided that each Additional Seller shall execute an Additional
Seller's Agreement substantially in the form attached hereto as Exhibit A. DWR
may compensate any Additional Seller by paying such Additional Seller, solely
from DWR's own funds, a commission, not to exceed four percent (4%) of the Net
Asset Value per Unit as of the date of the applicable Closing, for each Unit
sold by such Additional Seller and issued at such Closing. DWR may pay any
Additional Seller continuing compensation of up to 35% annually of the brokerage
fees received by the Non-Clearing Broker from the Partnerships each month that
are attributable to outstanding Units sold by such Additional Seller (except MS
& Co., which will be compensated at the same rate as DWR's employees), in
recognition of such Additional Seller's continuing services to Limited Partners
of the Partnerships, as set forth in Section 5(j); provided, however, that: (A)
no continuing compensation shall be paid to an Additional Seller unless it is
properly registered with the CFTC as a "futures commission merchant" or
"introducing broker," and is a member of the NFA in one of such capacities, and
(B) no Additional Seller which is registered as a futures commission merchant or
introducing broker may pay any portion of such continuing compensation to an
employee thereof unless such employee meets the same qualifications as DWR's
employees, as set forth in Section 5(h).
(j) The additional services that employees of DWR and Additional
Sellers will provide on an ongoing basis to Limited Partners at no charge will
include, but not be limited to: (i) inquiring of the General Partner from
time to time, at the request of Limited Partners, as to the Net Asset Value of
a Unit; (ii) inquiring of the General Partner from time to time, at the
request of Limited Partners, as to the futures interests markets and the
activities of the Partnerships; (iii) responding to questions of Limited
Partners from time to time with respect to monthly account statements, annual
reports, financial statements, and annual tax information furnished
periodically to Limited Partners; (iv) providing advice to Limited Partners
from time to time as to when and whether to make additional investments or to
redeem or exchange Units; (v) assisting Limited Partners from time to time in
the redemption or exchange of Units; and (vi) providing such other services as
Limited Partners from time to time may reasonably request.
(k) The Partnerships and DWR acknowledge that: (i) the Partnerships
shall have no liability to DWR, its employees, any Additional Seller, or any
employee of an Additional Seller with regard to any selling compensation
described above; and (ii) DWR will be paid any and all redemption charges
imposed on Limited Partners in accordance with Section 10(b) of the Limited
Partnership Agreement.
6. Undertakings of DWR.
(a) DWR agrees to use its best efforts to offer and sell Units on
the terms set forth in this Agreement, the Registration Statements, and the
Prospectus. It is understood that
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DWR has no commitment to offer and sell Units or to purchase Units, other than
to use its best efforts to offer and sell Units.
(b) DWR will make the public offering of Units at the offering
price and on the other terms and conditions set forth in the Registration
Statements, the Prospectus, and this Agreement. DWR will offer and sell Units
only to persons who satisfy the suitability and/or minimum investment
requirements set forth in the Prospectus and the Subscription Agreement and
who, to the General Partner's satisfaction, complete a Subscription Agreement.
DWR will conduct a thorough review of the suitability of each subscriber for
Units, of each Subscription Agreement authorizing the General Partner and DWR
to transfer the full subscription price from the subscriber's customer account
with DWR to the escrow account established with the Escrow Agent pursuant to
the Escrow Agreement (the "Escrow Account"), and of each Subscription
Agreement requesting a Series Exchange or a Non-Series Exchange as described
under "Summary of the Prospectus-Investment Requirements" and "Exchange
Privilege" in the Prospectus.
(c) All of DWR's branch offices will be required to forward
subscriptions to DWR's New York, New York branch office no later than noon of
the first business day following their receipt of an acceptable Subscription
Agreement from a subscriber for Units. Subsequent to its review of each
Subscription Agreement, the General Partner will notify DWR, and DWR shall
notify each subscriber by the business day following its receipt of notice
from the General Partner, of the General Partner's acceptance of all, a
portion, or none of the subscriber's subscription.
(d) All funds from subscriptions received by DWR during the Initial
Offering and the Continuing Offering and not rejected by the General Partner
will be promptly deposited by DWR in the Escrow Account as described below. A
subscriber whose Subscription Agreement is received by DWR and whose
subscription is not immediately rejected must have the full subscription
amount in his customer account with DWR on the first business day following
the date that his Subscription Agreement is received by DWR, and DWR will
transfer such subscription funds to the Escrow Agent on that date. DWR will
notify the General Partner of the subscription amount deposited with the
Escrow Agent on behalf of each subscriber for Units and the name and residence
address of each such subscriber.
(e) DWR will offer and sell Units in compliance with the
requirements set forth in the Registration Statements, the Prospectus
(particularly under the captions "Summary of the Prospectus - Investment
Requirements," "Plan of Distribution," "Subscription Procedure," and
"Purchases by Employee Benefit Plans-ERISA Considerations"), the
Subscription Agreement, and this Agreement. In connection with DWR's acting
as selling agent, DWR will comply fully at all times with all applicable
federal, state, and foreign securities and commodities laws (including,
without limitation, the 1933 Act, the 1934 Act, the CEAct, and the securities
("Blue Sky") laws of the jurisdictions in which DWR solicits subscriptions),
and all requirements of the NASD (particularly Conduct Rule 2810), the Board
of Governors of the Federal Reserve System, and the securities and commodities
exchanges and other governmental regulators and self-regulatory authorities
and organizations having
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jurisdiction over DWR. Specifically, (i) DWR will not permit the purchase of any
Units by a customer account over which DWR has discretionary authority without
the prior written approval by the customer owning such account; (ii) DWR
confirms that it has reasonable grounds to believe that all material facts are
adequately and accurately disclosed in the Prospectus, which provides a basis
for evaluating the Partnerships; (iii) DWR confirms that in determining the
adequacy of disclosed facts pursuant to clause (ii), it has obtained information
on material facts relating to: (A) items of compensation, (B) tax aspects, (C)
financial stability and experience of the General Partner, and (D) the
Partnerships' conflicts and risk factors; (iv) in recommending to a subscriber
the purchase or redemption of Units, a Series Exchange or a Non-Series Exchange,
DWR shall take such measures as are reasonably necessary to assure itself that
(A) its financial advisors have informed such subscriber of all pertinent facts
relating to the liquidity and marketability of the Units, and (B) its financial
advisors have reasonable grounds to believe, on the basis of information
obtained from such subscriber concerning his investment objectives, other
investments, financial situation and needs, and any other information known by
such financial advisors, that: (1) such subscriber is or will be in a financial
position appropriate to enable him to realize to a significant extent the
benefits described in the Prospectus, (2) such subscriber has a fair market net
worth sufficient to sustain the risks inherent in the purchase of Units,
including loss of investment and lack of liquidity, and (3) the purchase of
Units is otherwise suitable for such subscriber; (v) DWR shall take such
measures as are reasonably necessary to assure itself that each subscriber has
received a Prospectus at least five business days prior to the applicable
Closing; and (vi) the General Partner will maintain in its files, located c/o
Dean Witter Reynolds Inc., Two World Trade Center, New York, New York 10048,
each subscriber's Subscription Agreement for not less than six years, and DWR
will maintain, at its respective branch offices, any other documents disclosing
the basis upon which the determination of suitability was reached for each such
subscriber.
(f) All subscriptions received and accepted by the General Partner
will, upon the satisfaction at each Closing of the conditions set forth in
Sections 10 and 11 hereof, be delivered to the respective Partnerships at each
Closing, and any interest earned on a subscriber's subscription funds while
held in escrow will be promptly returned to DWR in accordance with the Escrow
Agreement for prompt credit to the subscriber's customer account with DWR.
Interest earned on any subscriptions deposited into the Escrow Account and
thereafter rejected by the General Partner will be credited to the
subscriber's customer account with DWR.
(g) Any amounts credited to a subscriber's customer account with
DWR for a returned subscription and/or for interest earned will be immediately
available for investment or withdrawal from such account. In the event a
subscriber's customer account with DWR has been closed, any subscription
returned and/or interest earned will be paid by check.
7. Blue Sky Filings. The Partnerships will use their best
efforts to qualify Units for offer and sale under the Blue Sky laws of such
jurisdictions as DWR may reasonably request, to make applications, file
documents, and furnish information as may be reasonably required for that
purpose, and to comply with such laws so as to permit the continuance of
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sales and dealings in such jurisdictions for as long as may be necessary to
complete the offer and sale of Units; provided, however, that neither the
Partnerships nor the General Partner will be required to qualify as or be
subject to taxation as a foreign partnership or corporation or to execute a
general consent to service of process in any jurisdiction. The Partnerships
further agree that their counsel will prepare and deliver to DWR Blue Sky
surveys which will set forth, for DWR's guidance, in what manner, at what time,
in what amounts, and by whom Units may be offered and sold in jurisdictions
requested by DWR as provided above.
8. Organizational and Offering Expenses. DWR shall pay all of
the costs incurred in connection with the organization of the Partnerships and
the Initial Offering. DWR will also pay all of the costs incurred in
connection with the Continuing Offering (collectively, the "Offering
Expenses"), including all legal, accounting, and auditing fees and expenses of
outside firms and all costs, disbursements, filing fees, fees and expenses of
the Escrow Agent, printing and duplication costs, marketing costs and
expenses, and other related costs and expenses. Legal, accounting, and
auditing fees and expenses of outside firms shall include the legal,
accounting, and auditing expenses of DWR, the Partnerships and the General
Partner relating to the offering of Units. Marketing costs and expenses shall
include, but not be limited to, the printing and preparation of Sales
Literature, the production of audio and video tapes for use in sales
presentations, and the staging of sales seminars and the travel of DWR and
General Partner personnel associated therewith. DWR shall not be reimbursed
for such expenses by the Partnerships. Such expenses will not include the
travel, legal, and other expenses of the Trading Advisors, including such
expenses incurred in connection with the marketing of Units, which expenses
shall be borne by the Trading Advisor (unless DWR agrees to pay same from its
own funds).
9. Closings.
(a) The Initial Closing, if any, for the acceptance of subscriptions
for Units in each Partnership is currently scheduled to be held on October 31,
1998. Thereafter, Monthly Closings in the Continuing Offering shall be
held as of the last day of each month. Each Closing will be held at such time,
and at such location or locations as the General Partner and DWR may mutually
agree upon.
(b) Subject to its right to reject any subscription in its sole
discretion in whole or in part at any time prior to acceptance, the General
Partner, on behalf of each Partnership, will accept subscriptions for Units
properly made and cause proper entry to be made in the Unit register to be
maintained by the General Partner. No certificate evidencing Units shall be
issued to any subscriber; rather, DWR will deliver confirmations in its
customary form to subscribers whose subscriptions have been accepted by the
General Partner at each Closing.
(c) At each Closing, the delivery, receipt, and acceptance of
subscriptions for Units will be subject to the terms and conditions set forth
in this Agreement, including the following: (i) payment of the full
subscription price for Units and delivery of a properly completed Subscription
Agreement by each subscriber; and (ii) compliance with Section 10
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hereof. Upon the satisfaction of such terms and conditions, the aggregate
subscription price for Units (exclusive of any interest earned on such
subscriptions while held in escrow and payable to the subscribers in accordance
with the Escrow Agreement) will be paid and delivered to the applicable
Partnership at each Closing.
10. Conditions of DWR's Obligations.
(a) DWR's obligations to proceed with the offering and sale of
Units and each Closing will be subject to: (i) the accuracy of the
representations and warranties by the Partnerships and the General Partner in
this Agreement as of the date hereof and as of the date of such Closing as if
such representations and warranties had been made on and as of the date
thereof; (ii) the performance by the Partnerships and the General Partner of
their respective covenants and agreements herein; and (iii) the additional
conditions precedent set forth below.
(b) At each Closing, the additional conditions precedent are as
follows:
(i) The Registration Statements will have become effective.
No stop order suspending the effectiveness of any of the Registration
Statements will have been issued and no proceedings for that purpose will
have been instituted or are pending or, to the knowledge of the
Partnerships or DWR, are contemplated or threatened by the SEC. No order
preventing or suspending the use of the Prospectus will have been issued
and no proceedings for that purpose will have been instituted or are
pending or, to the knowledge of the Partnerships or DWR, are contemplated
or threatened by the SEC, CFTC, NASD, or NFA. Any requests of the SEC,
CFTC, NASD, or NFA for additional information (to be included in any of
the Registration Statements or the Prospectus or otherwise) will have
been complied with to DWR's satisfaction.
(ii) Neither DWR nor any Trading Advisor will have advised the
Partnerships or the General Partner that, in its opinion, any of the
Registration Statements or the Prospectus contains any untrue statement
of a material fact or any omission to state a material fact required to
be stated therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which they
were made) not misleading.
(iii) At the request of DWR, the General Partner will have
furnished to DWR a certificate, dated the date of the Closing and in form
and substance satisfactory to DWR, to the effect that:
(A) The representations and warranties by the
Partnerships and the General Partner in this Agreement are true,
accurate, and complete on and as of the date of the Closing as if
made on the date of the Closing.
(B) No stop order suspending the effectiveness of any of
the Registration Statements has been issued by the SEC and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the General Partner, are contemplated or
threatened under the 1933 Act. No order
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preventing or suspending the use of the Prospectus has been issued by
the SEC, CFTC, NASD, or NFA and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the General
Partner, are contemplated or threatened under the 1933 Act or the
CEAct.
(C) The Partnerships and the General Partner have
performed all of their obligations and satisfied all of the
conditions on their part to be performed or satisfied under this
Agreement, the Management Agreements, the Escrow Agreement, the DWR
Customer Agreements, and the CFI Customer Agreements at or prior to
the date of the Closing.
(D) The General Partner has made its capital
contribution to each Partnership and has met the net worth standard
required of it by each Limited Partnership Agreement.
(iv) Cadwalader, Wickersham & Taft, counsel to the General
Partner and the Partnerships, shall deliver its opinion to the parties
hereto at such Closing, as requested by DWR, in form and substance
satisfactory to the parties hereto, to the effect that:
(A) Each Limited Partnership Agreement provides for the
subscription for and sale of the Units; all action required to be
taken by the General Partner and each Partnership as a condition to
the subscription for and sale of the Units to qualified subscribers
therefor has been taken; and, upon payment of the consideration
therefor specified in the accepted Subscription Agreements, the
Units will constitute valid limited partnership interests in the
applicable Partnership and each subscriber who purchases Units will
become a Limited Partner, subject to the requirements that each such
purchaser shall have duly completed, executed, and delivered to the
applicable Partnership a Subscription Agreement relating to the
Units purchased by such purchaser, that such purchaser meets all
applicable suitability standards, and that the representations and
warranties of such purchaser in the Subscription Agreement are true
and correct and that such purchaser is included as a Limited Partner
in the applicable Partnership's records. Such counsel need not
independently verify compliance with such requirements.
(B) Each Partnership is a limited partnership duly
formed pursuant to its Certificate of Limited Partnership, its
Limited Partnership Agreement and the DRULPA and is validly existing
under the laws of the State of Delaware with full partnership power
and authority to conduct the business in which it proposes to engage
as described in the applicable Registration Statement and the
Prospectus and to perform its obligations under its Limited
Partnership Agreement, its Management Agreement, its DWR Customer
Agreement, its CFI Customer Agreement, the Escrow Agreement, and
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this Agreement; and each Partnership has received a Certificate of
Authority to do business in the State of New York as contemplated
under Article 8-A of the New York Revised Limited Partnership Act
and need not effect any other filings or qualifications under the
laws of any other jurisdictions to conduct its business as described
in the applicable Registration Statement and the Prospectus.
(C) The General Partner is a corporation duly organized,
validly existing, and in good standing under the laws of the State
of Delaware and is qualified to do business and is in good standing
as a foreign corporation in the State of New York and in each other
jurisdiction in which the nature or conduct of its business requires
such qualification and where the failure to be so qualified might
reasonably be expected to result in material adverse consequences to
any Partnership or might materially adversely affect the General
Partner's ability to perform its obligations as described in the
Registration Statements and the Prospectus. The General Partner has
full corporate power and authority to conduct its business as
described in the Registration Statements and the Prospectus and to
perform its obligations under each Limited Partnership Agreement,
each Management Agreement, each DWR Customer Agreement, each CFI
Customer Agreement, the Escrow Agreement, and this Agreement, as
applicable.
(D) The General Partner and its "principals," as
defined in CFTC Rule 3.1(a), and each Partnership have all federal
and state governmental, regulatory, self-regulatory and exchange
approvals, licenses, registrations, and memberships, and have
effected all filings with federal and state governmental regulators,
self-regulatory organizations and exchanges required to conduct
their business and to act as described in the Registration
Statements and the Prospectus, or required to perform their
obligations under each Limited Partnership Agreement, each
Management Agreement, each DWR Customer Agreement, each CFI Customer
Agreement, the Escrow Agreement, and this Agreement, except for such
approvals, licenses, registrations, memberships, and filings the
absence of which would not have a material adverse effect on the
ability of the Partnerships or the General Partner to act as
described in the Registration Statements and the Prospectus, or to
perform their obligations under such agreements, and, to the best of
such counsel's knowledge, after due investigation, none of such
approvals, licenses, registrations, memberships, or filings has been
rescinded, revoked, or suspended.
(E) Each Limited Partnership Agreement, each Management
Agreement, each DWR Customer Agreement, each CFI Customer Agreement,
the Escrow Agreement, and this Agreement has been duly and validly
authorized, executed, and delivered by or on behalf of the General
Partner and/or each Partnership, as the case may be, and each
Limited Partnership Agreement constitutes a valid and binding
agreement of the General Partner, each Management Agreement
constitutes a valid and binding agreement of the
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General Partner and the applicable Partnership, the Escrow Agreement
constitutes a valid and binding agreement of each Partnership and DWR,
and this Agreement constitutes a valid and binding agreement of each
Partnership, the General Partner and DWR, and, in the case of each
valid and binding agreement above, the agreement is enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, or similar laws at the time in effect
affecting the enforceability generally of rights of creditors and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law),
and except as enforceability of the indemnification and exculpation
provisions may be limited by applicable law or public policy.
(F) The execution and delivery of the respective Limited
Partnership Agreements, the respective Management Agreements, the
respective DWR Customer Agreements, the respective CFI Customer
Agreements, the Escrow Agreement, and this Agreement, as applicable,
the offer and sale of the Units by each Partnership, the incurrence
of the obligations herein and therein set forth, and the
consummation of the transactions contemplated herein, therein, and
in the Prospectus, will not be in contravention of the General
Partner's certificate of incorporation or bylaws, any Certificate of
Limited Partnership, or any Limited Partnership Agreement, or the
certificate of incorporation or bylaws of DWR, and, to the best of
such counsel's knowledge, based upon due inquiry of certain officers
of the General Partner, will not violate, or constitute a breach of,
or default under, any other agreement or instrument known to such
counsel by which the General Partner or any Partnership is bound,
and will not violate any order known to such counsel, or any law,
rule, or regulation applicable to the General Partner or any
Partnership of any court, governmental body, administrative agency,
panel, or self-regulatory organization having jurisdiction over the
General Partner or any Partnership.
(G) To such counsel's knowledge, based upon due inquiry
of certain officers of the General Partner, except as disclosed in
the Prospectus, there are no actions, suits, or proceedings at law
or in equity pending or threatened before or by any court,
governmental body, administrative agency, panel, or self-regulatory
organization, nor have there been any such actions, suits, or
proceedings within the five years preceding the date of the
Prospectus against the General Partner or any Partnership which are
required to be disclosed in the Registration Statements or
Prospectus.
(H) The information in the Prospectus under the captions
"Summary of the Prospectus-Tax Considerations," "Risk Factors-
Taxation and Regulatory Risks," "Purchases by Employee Benefit
Plans-ERISA Considerations," "Material Federal Income Tax
Considerations," "State and Local Income Tax Aspects," and "The
Limited Partnership Agreements," to the
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extent that such information constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct.
(I) he Registration Statements are effective under the
1933 Act and, to the best of such counsel's knowledge, no
proceedings for a stop order are pending or threatened under
Section 8(d) of the 1933 Act or any Blue Sky laws.
(J) At the time the Registration Statements became
effective, the Registration Statements, and at the time the
Prospectus was issued and as of the Closing, the Prospectus,
complied as to form in all material respects with the requirements
of the 1933 Act, the SEC Regulations, the CEAct, the CFTC Rules, and
the rules of the NASD and NFA.
(K) Based upon reliance on certain SEC "no-action"
letters, as of the Closing, none of the Partnerships needs register
as an "investment company" under the Investment Company Act of
1940, as amended.
(L) Nothing has come to such counsel's attention that
would lead them to believe that the Registration Statements at the
time they became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus at the time it was issued or at
the Closing contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading; provided, however, that such counsel need express no
opinion or belief (a) as to the information in the Registration
Statements or the Prospectus regarding the Trading Advisors, the
Commodity Brokers, or their respective principals, (b) as to the
financial statements, notes thereto and other financial or
statistical data set forth in the Registration Statements and the
Prospectus, or (c) as to the performance data and notes or
descriptions thereto set forth in the Registration Statements and
the Prospectus.
In rendering its opinion, such counsel may rely on information
obtained from public officials, officers of the General Partner, and other
sources believed by it to be responsible, and may assume that signatures on all
documents examined by it are genuine, and that a Subscription Agreement in the
form referred to in the Prospectus, has been duly authorized, completed, dated,
executed, and delivered and funds representing the full subscription price for
the Units purchased have been delivered by each purchaser of Units in accordance
with the requirements set forth in the Prospectus.
(v) Cadwalader, Wickersham & Taft, counsel to the Non-Clearing
Broker, shall deliver an opinion to the parties hereto at such Closing as
requested by DWR, in form and substance satisfactory to the parties hereto, to
the effect that:
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(A) The Non-Clearing Broker is a corporation duly
organized, validly existing, and in good standing under the laws of
the State of Delaware and is qualified to do business and is in good
standing as a foreign corporation in the State of New York and in
each other jurisdiction in which the nature or conduct of its
business requires such qualification and where the failure to be so
qualified might reasonably be expected to result in material adverse
consequences to the Partnership or might materially adversely affect
the Non-Clearing Broker's ability to perform its obligations as
described in the Registration Statements and the Prospectus. The
Non-Clearing Broker has full corporate power and authority to
perform its obligations as described in the Registration Statements
and the Prospectus and to perform its obligations under the DWR
Customer Agreements, the CFI Customer Agreements and this Agreement.
(B) The DWR Customer Agreements, the CFI Customer
Agreements and this Agreement have been duly and validly authorized,
executed, and delivered by the Non-Clearing Broker, and the DWR
Customer Agreements, the CFI Customer Agreements and this Agreement
constitute valid and binding agreements of the Non-Clearing Broker,
enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium, or similar laws
at the time in effect affecting the enforceability generally of
rights of creditors and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law), and except as enforceability of indemnification,
exculpation, and contribution provisions may be limited by
applicable law or public policy.
(C) The Non-Clearing Broker has all federal and state
governmental, regulatory, self-regulatory and exchange approvals,
licenses, registrations, and memberships, and has effected all
filings with federal and state governmental regulators, self-
regulatory organizations and exchanges required to conduct its
business and to act as described in the Registration Statements and
the Prospectus, or required to perform its obligations under the DWR
Customer Agreements, the CFI Customer Agreements and this Agreement,
except for such approvals, licenses, registrations, memberships, and
filings the absence of which would not have a material adverse
effect on the ability of the Non-Clearing Broker to act as described
in the Registration Statements and the Prospectus, or to perform its
obligations under such agreements, and, to the best of such
counsel's knowledge, after due investigation, none of such
approvals, licenses, registrations, memberships, or filings has been
rescinded, revoked or suspended.
(D) The execution and delivery of the DWR Customer
Agreements, the CFI Customer Agreements and this Agreement, the
incurrence of the obligations herein and therein set forth, and the
consummation of the transactions contemplated herein, therein, and
in the Prospectus, will not be in
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contravention of the Non-Clearing Broker's certificate of
incorporation or bylaws, and to the best of such counsel's
knowledge, based upon due inquiry of certain officers of the
Non-Clearing Broker, will not violate, or constitute a breach
of, or default under, any other agreement or instrument known to
such counsel by which the Non-Clearing Broker is bound, and will not
violate any order known to such counsel or any law, rule, or
regulation applicable to the Non-Clearing Broker of any court,
governmental body, administrative agency, panel, or self-regulatory
organization having jurisdiction over the Non-Clearing Broker.
(E) To the best of such counsel's knowledge, based upon
due inquiry of certain officers of the Non-Clearing Broker, except
as disclosed in the Prospectus, there are no actions, suits, or
proceedings at law or in equity pending or threatened before or by
any court, governmental body, administrative agency, panel, or self-
regulatory organization, nor have there been any such actions,
suits, or proceedings within the five years preceding the date of
the Prospectus, against the Non-Clearing Broker which are required
to be disclosed in the Registration Statement or Prospectus.
(F) Nothing has come to such counsel's attention to lead
such counsel to believe that, as to the Non-Clearing Broker, (a) the
Registration Statements at the time they became effective contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (b) the Prospectus at the time
it was issued or at the Closing contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein relating to the Non-Clearing Broker,
in light of the circumstances under which they were made, not
misleading.
In rendering its opinion, such counsel may rely on information
obtained from public officials, officers of the Non-Clearing Broker, and
other sources believed by it to be responsible and may assume that
signatures on all documents examined by it are genuine.
(vi) Deloitte & Touche L.L.P., independent certified public
accountants for the Partnerships and the General Partner, will have
furnished to DWR a letter, at such Closing as requested by DWR, dated the
date of the Closing and in form and substance satisfactory to DWR, to the
effect that:
(A) Such accountant is an independent certified public
accountant within the meaning of the 1933 Act, the CEAct, and the
SEC Regulations with respect to the Partnerships and the General
Partner.
(B) In such accountant's opinion, the statements of
financial condition of the Partnerships and the General Partner and
the notes thereto included in the Prospectus and examined by it
comply as to form in all material
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respects with the applicable accounting requirements of the 1933 Act,
the CEAct, and the SEC Regulations.
(C) On the basis of limited procedures not constituting
an audit, including inquiries of officials of the General Partner
having responsibility for financial and accounting matters
pertaining to the Partnerships and such other inquiries and
procedures as may be specified in such letter, nothing has come to
such accountant's attention which causes it to believe that, as of a
specified date not more than five business days prior to the date of
the Closing, there has been any decrease in the Net Assets of any
Partnership as compared to the Net Assets set forth in the
respective statements of financial condition of the Partnerships
included in the Prospectus, except as may be disclosed in such
letter.
(D) On the basis of limited procedures, not constituting
an audit, including a reading of the latest available financial
statements of the General Partner, inspection of the minute book of
the General Partner since the date of the latest audited financial
statements of the General Partner, inquiries of officials of the
General Partner having responsibility for financial and accounting
matters, and such other inquiries and procedures as may be specified
in such letter, nothing has come to such accountant's attention that
causes it to believe that, as of a specified date not more than five
business days prior to the date of the Closing, there has been any
decrease in the General Partner's net worth as compared to net worth
set forth in the statement of financial condition of the General
Partner included in the Prospectus, except as may be disclosed in
such letter.
(vii) The Non-Clearing Broker shall deliver a certificate to
the parties hereto, in form and substance satisfactory to such parties,
at such Closing as requested by DWR, to the effect that the representations and
warranties of the Non-Clearing Broker contained herein are true and correct with
the same effect as though expressly made at such Closing.
(viii) Each Trading Advisor shall deliver, at such Closing
as requested by DWR, such certificate as specified in each such Trading
Advisor's respective Management Agreement.
(ix) Counsel to each Trading Advisor shall deliver, at such
Closing as requested by DWR, such legal opinion as specified in the
respective Management Agreement of each Trading Advisor.
(x) All agreements contemplated herein or in the Registration
Statements or the Prospectus shall have been duly executed and delivered.
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11. Indemnification.
(a) Each Partnership agrees to indemnify, defend, and hold
harmless DWR, the General Partner, each Additional Seller and their respective
"affiliates" (as defined in Section 11(c)) from and against any loss,
liability, damage, cost, and expense (including attorneys' and accountants'
fees and expenses incurred in investigating or defending any demands, claims,
or lawsuits), actually and reasonably incurred arising from any act, omission,
activity, or conduct undertaken pursuant to this Agreement by or on behalf of
the Partnership, including, without limitation, any demands, claims, or
lawsuits initiated by a Limited Partner (or assignee thereof), provided that
(1) DWR, the General Partner, or the Additional Seller, as applicable, has
determined, in good faith, that the act, omission, activity, or conduct giving
rise to the claim for indemnification was in the best interests of the
Partnership, and (2) the act, omission, activity, or conduct that was the
basis for such loss, liability, damage, cost, or expense was not the result of
misconduct or negligence. The indemnity in this Section 11(a) is in addition
to any liability that the Partnership may otherwise have and will extend, upon
the same terms and conditions, to each person, if any, who controls an
indemnified person within the meaning of the 1933 Act. Notwithstanding
anything to the contrary contained in the foregoing, neither DWR, the General
Partner, an Additional Seller, nor their respective affiliates shall be
indemnified by a Partnership for any losses, liabilities, or expenses arising
from or out of an alleged violation of federal or state securities laws unless
(1) there has been a successful adjudication on the merits of each count
involving alleged securities laws violations as to the particular indemnitee,
or (2) such claims have been dismissed with prejudice on the merits by a court
of competent jurisdiction as to the particular indemnitee, or (3) a court of
competent jurisdiction approves a settlement of the claims against the
particular indemnitee and finds that indemnification of the settlement and
related costs should be made, provided, with regard to such court approval,
the indemnitee must apprise the court of the position of the SEC, and the
positions of the respective securities administrators of Massachusetts,
Missouri, Tennessee, and/or those other states and jurisdictions in which the
plaintiffs claim that they were offered or sold Units, with respect to
indemnification for securities laws violations before seeking court approval
for indemnification. Furthermore, in any action or proceeding brought by a
Limited Partner in the right of a Partnership to which the General Partner,
DWR, an Additional Seller, or any affiliate of any of the foregoing is a party
defendant, any such person shall be indemnified only to the extent and subject
to the conditions specified in DRULPA and this Section 11(a). A Partnership
shall make advances to the General Partner, DWR, an Additional Seller, or
their respective affiliates hereunder only if: (1) the demand, claim, or
lawsuit relates to the performance of duties or services by such persons to
the Partnership; (2) such demand, claim, or lawsuit is not initiated by a
Limited Partner; and (3) such advances are repaid, with interest at the legal
rate under Delaware law, if the person receiving such advance is ultimately
found not to be entitled to indemnification hereunder.
(b) DWR agrees to indemnify, hold harmless, and defend each
Partnership, the General Partner, their respective "affiliates" (as defined
in Section 11(c)), and their respective successors and assigns, from and
against any loss, claim, damage, liability, cost, and expense, joint or
several (including attorneys' and accountants' fees and expenses incurred
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<PAGE>
in investigating or defending any demands, claims, or lawsuits), to which any
indemnified party may become subject under the 1933 Act, the 1934 Act, the
CEAct, the Blue Sky law of any jurisdiction, or otherwise (including in
connection with the settlement of claims approved in advance by DWR and in
connection with any administrative proceedings), in respect of the offer or
sale of Units, insofar as such loss, claim, damage, liability, cost, or
expense arises out of, or is based upon: (i) a breach by DWR of any
representation, warranty, or agreement in this Agreement or any certificate
delivered pursuant to this Agreement, or the failure by DWR to perform any
covenant made by DWR herein; or (ii) a misleading or untrue statement of a
material fact made in any of the Registration Statements, the Prospectus or
any Sales Literature, or an omission to state a material fact therein which is
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus and any Sales Literature, in light of the
circumstances under which they were made) not misleading, provided such
statement or omission relates specifically to DWR, or was made in reliance
upon, and in conformity with, written information or instructions furnished by
or on behalf of DWR or DWR's agents. The indemnity in this Section 11(b) is
in addition to any liability that DWR may otherwise have and will extend, upon
the same terms and conditions, to each person, if any, who controls an
indemnified person within the meaning of the 1933 Act.
(c) As used in this Section 11 the term "affiliate" of a person
shall mean: (i) any natural person, partnership, corporation, association, or
other legal entity directly or indirectly owning, controlling, or holding with
power to vote 10% or more of the outstanding voting securities of such person;
(ii) any partnership, corporation, association, or other legal entity 10% or
more of whose outstanding voting securities are directly or indirectly owned,
controlled, or held with power to vote by such person; (iii) any natural
person, partnership, corporation, association, or other legal entity directly
or indirectly controlling, controlled by, or under common control with, such
person; or (iv) any officer, director, or partner of such person.
Notwithstanding the foregoing, solely for purposes of determining eligibility
for indemnification under Section 11(a), the term "affiliate" shall include
only those persons performing services for the applicable Partnership.
(d) Promptly after receipt by an indemnified party under
Section 11(a) or (b) hereof of notice of the commencement of any action,
claim, or proceeding to which any of such subsections may apply, the
indemnified party will notify the indemnifying party in writing of the
commencement thereof if a claim in respect thereof is to be made against the
indemnifying party under any of such subsections; but the omission so to
notify the indemnifying party will not relieve the indemnifying party from any
liability which the indemnifying party may have to the indemnified party
otherwise than under any of such subsections, except where such omission has
materially prejudiced the indemnifying party. In case any action, claim, or
proceeding is brought against an indemnified party and the indemnified party
notifies the indemnifying party of the commencement thereof as provided above,
the indemnifying party will be entitled to participate therein and, to the
extent that the indemnifying party desires, to assume the defense thereof with
counsel selected by the indemnifying party and not unreasonably disapproved by
the indemnified party. After notice from the indemnifying party to the
indemnified party of the indemnifying party's election so to assume the
defense thereof as provided above, the indemnifying party will not be liable
to the
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indemnified party under any of such subsections for any legal and other
expenses subsequently incurred by the indemnified party in connection with
the defense thereof, other than reasonable costs of investigation.
(e) Notwithstanding Section 11(d), if, in any action, claim, or
proceeding as to which indemnification is or may be available under
Section 11(a) or (b) hereof, an indemnified party reasonably determines that
its interests are or may be adverse, in whole or in part, to the indemnifying
party's interests or that there may be legal defenses available to the
indemnified party which are different from, in addition to, or inconsistent
with, the defenses available to the indemnifying party, the indemnified party
may retain its own counsel in connection with such action, claim, or
proceeding, and will be indemnified by the indemnifying party for any legal
and other expenses reasonably incurred in connection with investigating or
defending such action, claim, or proceeding.
(f) In no event will the indemnifying party be liable for the fees
and expenses of more than one counsel for all indemnified parties in
connection with any one action, claim, or proceeding, or in connection with
separate but similar or related actions, claims, or proceedings, in the same
jurisdiction arising out of the same general allegations. The indemnifying
party will not be liable for any settlement of any action, claim, or
proceeding effected without the indemnifying party's express written consent,
but if any action, claim, or proceeding is settled with the indemnifying
party's express written consent or if there is a final judgment for the
plaintiff in any such action, claim, or proceeding, the indemnifying party
will indemnify, defend, and hold harmless an indemnified party as provided in
Section 11(a) or (b) hereof, as applicable.
(g) The exculpation provisions in each DWR Customer Agreement, and
each Limited Partnership Agreement shall not relieve any party thereto from
any liability it may have or incur to any party under this Agreement; nor
shall any party thereto be entitled to be indemnified by any party thereto
pursuant to the indemnification provisions contained in such agreements,
against any loss, liability, damage, cost, or expense it may incur under this
Agreement.
12. Termination. Each of the parties shall have the right to
terminate this Agreement as to itself at any time prior to a Closing by giving
written notice of such termination to the other parties.
13. Survival. The respective indemnities, agreements,
obligations, representations, warranties, and other statements of the parties
hereto set forth in this Agreement or in any certificates delivered pursuant
hereto will remain in full force and effect (regardless of any investigation
or any statement as to the results thereof made by, or on behalf of, DWR, any
Partnership, the General Partner or any officer, director, controlling person,
or agent of any of the foregoing) and will survive the delivery of and payment
for Units and the termination or expiration of this Agreement, and each
Closing.
14. Notices. All notices required or desired to be given under
this Agreement must be in writing and will be effective when given personally
on the date
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delivered or, when given by mail, on the date of receipt,
addressed as follows (or to such other address as the party entitled to notice
hereafter designates in accordance with the terms hereof):
if to the Partnerships or the General Partner:
Morgan Stanley Dean Witter Charter Graham L.P.
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mr. Mark J. Hawley
President
Morgan Stanley Dean Witter Charter Millburn L.P.
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mr. Mark J. Hawley
President
Morgan Stanley Dean Witter Charter Welton L.P.
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mr. Mark J. Hawley
President
if to DWR:
Dean Witter Reynolds Inc.
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mr. Robert E. Murray
Senior Vice President
15. Successors. This Agreement will be binding upon and inure
solely to the benefit of DWR, each Partnership and the General Partner (and to
the extent provided in Section 11 hereof, any Additional Sellers, the
"affiliates" of each Partnership, the General Partner, DWR, any Additional
Sellers, and the respective heirs, executors, administrators, successors, and
assigns of such persons), and no other person will acquire or have any rights
under or by virtue of this Agreement. No purchaser of Units will be deemed to
be a successor or assign to any party hereto merely by reason of such
purchase.
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16. Assignment; Amendment. This Agreement may not be assigned by
any party hereto without the prior express written consent of all other
parties. This Agreement may not be amended except by the express written
consent of all parties hereto.
17. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of laws. If any action or proceeding shall be
brought by a party to this Agreement to enforce any right or remedy under this
Agreement, each party hereto hereby consents and will submit to the
jurisdiction of the courts of the State of New York or any federal court
sitting in the County, City and State of New York. Any action or proceeding
brought by any party to this Agreement to enforce any right, assert any claim
or obtain any relief whatsoever in connection with this Agreement shall be
brought by such party exclusively in the courts of the State of New York or
any federal court sitting in the County, City and State of New York.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
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If the foregoing Agreement is satisfactory to you, please so
indicate by signing at the place provided below.
Accepted and Agreed: MORGAN STANLEY DEAN WITTER
CHARTER GRAHAM L.P.
DEAN WITTER REYNOLDS INC. By: Demeter Management Corporation,
General Partner
By: _____________________________ By: _____________________________
Robert E. Murray Mark J. Hawley
Senior Vice President President
MORGAN STANLEY DEAN WITTER CHARTER
MILLBURN L.P.
By: Demeter Management Corporation,
General Partner
By: _____________________________
Mark J. Hawley
President
MORGAN STANLEY DEAN WITTER CHARTER
WELTON L.P.
By: Demeter Management Corporation,
General Partner
By: ______________________________
Mark J. Hawley
President
DEMETER MANAGEMENT CORPORATION
By: ______________________________
Mark J. Hawley
President
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<PAGE>
EXHIBIT 1.02
<PAGE>
ADDITIONAL SELLER AGREEMENT
(Date)
Dean Witter Reynolds Inc.
Two World Trade Center, 62nd Floor
New York, New York 10048
Gentlemen:
Morgan Stanley Dean Witter Charter Graham L.P. ("Charter Graham"),
Morgan Stanley Dean Witter Charter Millburn L.P. ("Charter Millburn"), and
Morgan Stanley Dean Witter Charter Welton L.P. ("Charter Welton"; collectively
with Charter Graham and Charter Millburn, the "Partnerships," and each
individually, a "Partnership"), each a limited partnership organized under the
Delaware Revised Uniform Limited Partnership Act, are each proposing
concurrently to offer and sell, and issue, up to 3,000,000 units of limited
partnership interest (the "Units"), in accordance with the terms and conditions
set forth in the Selling Agreement, dated as of , 1998 (the "Selling
Agreement"), among you, the Partnerships, and Demeter Management Corporation, a
Delaware corporation which is the general partner of the Partnerships (the
"General Partner"), and in the effective registration statements on Form S-1
listed in Schedule A attached hereto, including the exhibits and any amendments
thereto, as filed by the Partnerships with the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the "1933
Act"). Such registration statements, in the form in which they have become
effective under the 1933 Act, are herein referred to each individually as a
"Registration Statement," and collectively as the "Registration Statements," and
the prospectus constituting a part of the last Registration
<PAGE>
Statement under the 1933 Act in the form last filed with the SEC pursuant to
Rule 424 under the 1933 Act, together with any supplements thereto, is herein
referred to as the "Prospectus."
Pursuant to the Selling Agreement, you were appointed the selling
agent for the Units to use your best efforts to offer and sell Units and, in
that connection, you were authorized under the Selling Agreement to appoint,
with the written approval of the General Partner, as your agent to make offers
and sales of Units, certain securities brokers or dealers (each such broker or
dealer, an "Additional Seller"). All capitalized terms used herein shall have
the meanings ascribed to them in the Selling Agreement unless otherwise defined
herein or unless the context indicates otherwise.
On the basis of the terms, conditions, and agreements contained in
this Agreement, we agree with you as follows:
1. We agree to become an Additional Seller, to use our best efforts
to offer and sell the Units on the terms stated in this Agreement, the Selling
Agreement, the Registration Statements, and the Prospectus, and to comply with
the terms and conditions of this Agreement and the Selling Agreement in making
offers and sales of Units.
2. We, as an Additional Seller, represent and warrant to you, as
follows:
(a) We are a corporation, partnership, or other entity duly
organized, validly existing, and in good standing under the laws of the
jurisdiction indicated on the signature page hereof, and are qualified to do
business and are in good standing in each jurisdiction in which the nature or
conduct of our business requires such qualification and where the failure to be
so qualified could materially adversely affect our ability to perform our
obligations hereunder. We have full power and authority under applicable law to
conduct our business and perform our obligations under this Agreement.
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<PAGE>
(b) We have all U.S. federal and state, and non-U.S. regulatory and
self-regulatory approvals, licenses, registrations, and memberships, and have
effected all filings with U.S. federal and state, and non-U.S. governmental
regulators and self-regulatory organizations required to conduct our business
and required to perform our obligations under this Agreement. Specifically, we
are either: (i) a broker or dealer who is (A) registered and in good standing
as such with the SEC under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), (B) registered or licensed and in good standing as such under the
respective securities laws of the 50 states, the District of Columbia, and
Puerto Rico where such registration or licensing is required for us to
consummate offers and sales of Units as contemplated by this Agreement, and (C)
a member in good standing of the National Association of Securities Dealers,
Inc. (the "NASD"); or (ii) a non-U.S. broker or dealer not eligible for
membership in the NASD, in which case we agree (A) to make no offers or sales of
Units within the United States, its territories or possessions, or areas subject
to its jurisdiction, or to persons who are citizens thereof or residents
therein, (B) that in making offers and sales of Units, we will comply with the
"Free-Riding and Withholding Interpretation" in IM-2110-1 to NASD Conduct Rule
2110, and NASD Conduct Rules 2730 and 2750, as if we were a member of the NASD,
and NASD Conduct Rule 2420 as it applies to a non-member non-U.S. broker or
dealer, (C) that we will not offer or sell any Units in any non-U.S.
jurisdiction until we effect, at our cost and expense, any and all registration
or qualification filings with regard to the Units, the Partnerships or the
General Partner as may be required under the securities or other laws of such
jurisdiction (we will provide you, at our cost and expense, an opinion of
qualified counsel, satisfactory in form and substance to you, confirming that
any such filings have been properly effected, or that no such filings were
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<PAGE>
required, prior to the time any Subscription Agreement is delivered by a
resident of any non-U.S. jurisdiction), and (D) that because limited partners in
the Partnerships have a right of exchange (redemption of Units and purchase of
Units with the proceeds of the redemption) among the Partnerships, we will
maintain and update as necessary, at our cost and expense, any required
registration or qualification filings effected pursuant to the immediately
preceding clause (C) so long as any person resident in such non-U.S.
jurisdiction remains a Limited Partner.
(c) This Agreement has been duly and validly authorized, executed,
and delivered by us and constitutes our valid and binding agreement, enforceable
against us in accordance with its terms.
(d) The execution and delivery of this Agreement, the incurrence of
the obligations set forth herein, and the consummation of the transactions
contemplated herein will not violate, or constitute a breach of, or default
under, our certificate of incorporation or bylaws, partnership certificate or
agreement, or other organizational document, or any other agreement or
instrument by which we are bound or any order, law, rule, or regulation
applicable to us of any court, governmental body, administrative agency, panel,
or self-regulatory organization having jurisdiction over us.
3. It is understood and agreed that we shall not, without your prior
written approval, publish, circulate, distribute, or otherwise use any
advertisement or solicitation material relating to the Units, other than the
Prospectus and any other selling literature supplied by you to us expressly for
such purpose ("Selling Literature"). We understand and acknowledge that we are
not authorized by you, the General Partner, or any Partnership to make any
representations in connection with the offering of Units other than those
contained in
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<PAGE>
the Prospectus. It is agreed that, upon our written request, you shall
provide us with copies of the Registration Statements.
4. We will offer and sell Units only to persons who satisfy the
suitability and/or minimum investment requirements set forth in the Prospectus
and the Subscription Agreement (and as may be required by the law of any non-
U.S. jurisdiction in which we may offer Units) and who, to the General Partner's
satisfaction, complete a Subscription Agreement. We will conduct a thorough
review of the suitability of each subscriber for Units. We will forward
subscriptions to the General Partner's office at Two World Trade Center, 62nd
Floor, New York, New York 10048-0026 (or such other office as you may notify
us), no later than noon of the first business day following our receipt of an
acceptable Subscription Agreement from a subscriber for Units, by mail or
courier, so that the General Partner should receive such Subscription Agreement
at least five business days prior to the Initial Closing or the applicable
Monthly Closing, as the case may be. We will arrange for the opening of a
customer account with you for each such subscriber for the purpose of paying for
subscriptions, crediting of interest thereon, redemptions of Units, and receipt
of any distributions thereon. We understand that subsequent to its review of
each Subscription Agreement, the General Partner will notify us, and we shall
notify each subscriber by the business day following our receipt of notice from
the General Partner, of the General Partner's acceptance of all, a portion, or
none of the subscriber's subscription. We understand that the General Partner
may reject subscriptions, in whole or in part, for any reason, and we agree that
we shall not be entitled to commissions with respect to any rejected
subscriptions. All payments for subscriptions by subscribers shall be made as
provided under the heading "Subscription Procedure" in the Prospectus. You
shall be responsible for the deposit of
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<PAGE>
subscription funds into the Escrow Account as described under the heading "Plan
of Distribution" in the Prospectus. You shall be responsible for issuance and
delivery of interim receipts to subscribers.
5. We will offer and sell Units in compliance with the requirements
set forth in the Registration Statements, the Prospectus (particularly under the
captions "Summary of the Prospectus -- Investment Requirements," "Plan of
Distribution," "Subscription Procedure," and "Purchases by Employee Benefit
Plans -- ERISA Considerations"), the Subscription Agreement, the Selling
Agreement, and this Agreement. We will comply fully at all times with all
applicable U.S. federal and state, and non-U.S. securities and commodities laws
(including, without limitation, the 1933 Act, the 1934 Act, the Commodity
Exchange Act, as amended (the "CEAct"), and the securities laws of the
jurisdictions in which we solicit subscriptions), and all applicable
requirements of the NASD (including NASD Conduct Rule 2810, particularly
paragraphs (b)(2) and (3) thereof), the Board of Governors of the Federal
Reserve System, and all other securities and commodities exchanges, governmental
regulators and self-regulatory organizations that have jurisdiction over us or
over the offer and sale of Units by us.
6. Specifically, if we are a member of the NASD, (a) we will not
permit the purchase of any Units by a customer account over which we have
discretionary authority without the prior written approval by the customer
owning such account; (b) we confirm that we have reasonable grounds to believe
that all material facts are adequately and accurately disclosed in the
Prospectus, which provides a basis for evaluating the Partnerships; (c) we
confirm that in determining the adequacy of disclosed facts pursuant to clause
(b), we have obtained information on material facts relating to: (i) items of
compensation, (ii) tax aspects,
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<PAGE>
(iii) financial stability and experience of the General Partner, and (iv) the
Partnerships' conflicts and risk factors; (d) we will take such measures as are
reasonably necessary to assure ourselves that (i) our registered principals and
representatives have informed each subscriber of all pertinent facts relating to
the liquidity and marketability of the Units, and (ii) in recommending the
purchase or redemption of Units, or the exchange of Units in one Partnership for
Units in another Partnership, as described under "Exchange Privilege" in the
Prospectus (an "Exchange"), our registered principals and representatives have
reasonable grounds to believe, on the basis of information obtained from each
subscriber concerning his investment objectives, other investments, financial
situation and needs, and any other information known by such registered
principal or representative, that: (A) such subscriber is or will be in a
financial position appropriate to enable him to realize to a significant extent
the benefits described in the Prospectus, (B) such subscriber has a fair market
net worth sufficient to sustain the risks inherent in the purchase of Units,
including loss of investment and lack of liquidity, and (C) the purchase of
Units is otherwise suitable for such subscriber; and (e) it is understood that
the General Partner will maintain in its files, located c/o Dean Witter Reynolds
Inc., Two World Trade Center, New York, New York 10048, each subscriber's
Subscription Agreement for not less than six years, and we will maintain, at our
respective branch offices, any other documents disclosing the basis upon which
the determination of suitability was reached for each such subscriber.
7. Promptly after each Closing, you shall pay to us for each Unit
subscribed, accepted, and paid for through our efforts, a commission of ___% of
the Net Asset Value of each such Unit as of the Closing as of which the Unit is
issued (the Net Asset Value per Unit at the Initial Closing is $10.00). Your
determination of the amount payable to us, if
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<PAGE>
any, shall be conclusive. In addition, if we are legally qualified or permitted
to receive additional compensation, as provided in Section 5(h) of the Selling
Agreement, you agree to pay to us, as additional compensation, an amount equal
to _____% of the monthly brokerage fees received by you from each Partnership
and attributable to the outstanding Units sold by us. Such additional
compensation shall be in consideration of and is contingent upon our agreement
(which we hereby undertake to perform) to provide additional services in
connection with Units sold by us, including: (i) inquiring of the General
Partner from time to time, at the request of a Limited Partner, as to the Net
Asset Value of a Unit; (ii) inquiring of the General Partner, at the request of
a Limited Partner, as to the futures markets and the activities of the
Partnerships; (iii) responding to questions of Limited Partners from time to
time with respect to monthly account statements, annual reports, financial
statements, and annual tax information furnished periodically to Limited
Partners; (iv) providing advice to Limited Partners from time to time as to when
and whether to make additional investments or to redeem or Exchange Units; (v)
assisting Limited Partners in the redemption or Exchange of Units; and (vi)
providing such other services as Limited Partners from time to time may
reasonably request. We understand and agree that no portion of such additional
compensation may be paid to our employees unless such employees meet the
qualifications set forth in Section 5(g) of the Selling Agreement and have
actually performed the above services for the Limited Partners holding Units
sold by us. Acceptance of compensation hereunder shall constitute a
representation by us that we have complied with all of the provisions of this
Paragraph 7 and this Agreement, and that we shall comply with the provisions of
this Paragraph 7 so long as we shall continue to receive any additional
compensation hereunder as specified in this Paragraph 7. We shall not be
entitled to a commission in any case in which it is determined by you or the
General
- 8 -
<PAGE>
Partner that the solicitation by us was made in violation of the securities
or commodities laws of any applicable jurisdiction. It is understood that
any compensation payable to us hereunder is payable solely from your funds,
and neither any Partnership, the General Partner, any subscriber, nor any
Limited Partner shall be liable or responsible therefor.
8. This Agreement shall terminate upon the termination of the
Initial Offering or the Continuing Offering pursuant to the Selling Agreement,
and may be terminated by either party upon ten (10) days' prior written notice
to the other. Upon termination of this Agreement, all authorizations, rights
and obligations hereunder shall cease, except (a) the indemnities set forth in
Paragraph 10 hereof, (b) the obligations to settle accounts hereunder, (c) our
obligations under Paragraph 2(b)(ii)(D) and Paragraph 9 hereof, and (d) your
agreement to provide additional compensation and our obligations in connection
therewith set forth in Paragraph 7 hereof.
9. We authorize you to deduct from any compensation that we may
receive under Paragraph 7 all transfer taxes, if any, paid by you for our
account with respect to sales of Units made through our efforts. We agree to
pay our proportionate share of any amount asserted against and discharged by you
and the other Additional Sellers, or any of them, based on the claim that you
and the Additional Sellers constitute an association, unincorporated business,
or other separate entity, including any expense incurred in defending against
such claim.
10. (a) We agree to indemnify, hold harmless, and defend you, the
General Partner, each Partnership, each Trading Advisor, and any other Commodity
Broker for a Partnership against any loss, claim, damage, liability, cost, and
expense, joint or several (including attorneys' and accountants' fees and
expenses reasonably incurred in investigating
- 9 -
<PAGE>
or defending any demands, claims, or lawsuits), to which you or any indemnified
party may become subject under the 1933 Act, the 1934 Act, the CEAct, the
securities law of any jurisdiction, or otherwise (including in connection with
the settlement of claims approved in advance by us and in connection with any
administrative proceedings), in respect of the offer or sale of Units, insofar
as such loss, claim, damage, liability, cost, or expense arises out of, or is
based upon a breach by us of any representation, warranty, or agreement in this
Agreement, or the failure by us to perform any covenant made by us herein. The
indemnity agreement in this subparagraph (a) shall be in addition to any
liability that we may otherwise have and will extend, upon the same terms and
conditions, to each person, if any, who would be deemed a controlling person
(within the meaning of Section 15 of the 1933 Act) of you, the General Partner,
any Partnership, any Trading Advisor, or any other Commodity Broker.
(b) Promptly after receipt by an indemnified party under subparagraph
(a) above of notice of the commencement of any action, claim, or proceeding to
which such subparagraph may apply, the indemnified party shall notify the
indemnifying party in writing of the commencement thereof if a claim in respect
thereof is to be made against the indemnifying party thereunder; but the
omission so to notify the indemnifying party shall not relieve the indemnifying
party from any liability which the indemnifying party may have to the
indemnified party otherwise than under such subparagraph, except to the extent
that such omission has materially prejudiced the indemnifying party. If any
action, claim, or proceeding is brought against an indemnified party and the
indemnified party notifies the indemnifying party of the commencement thereof as
provided above, the indemnifying party shall be entitled to participate therein
and, to the extent that the indemnifying party desires, to assume the defense
thereof with counsel selected by the indemnifying party and approved by the
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<PAGE>
indemnified party, such approval not to be unreasonably withheld. After notice
from the indemnifying party to the indemnified party of the indemnifying party's
election so to assume the defense thereof as provided above, the indemnifying
party shall not be liable to the indemnified party under subparagraph (a) for
any legal and other expenses subsequently incurred by the indemnified party in
connection with the defense thereof, other than reasonable costs of
investigation.
(c) Notwithstanding subparagraph (b), if, in any action, claim, or
proceeding as to which indemnification is or may be available under subparagraph
(a) above, an indemnified party reasonably determines that its interests are or
may be adverse, in whole or in part, to the indemnifying party's interests or
that there may be legal defenses available to the indemnified party which are
inconsistent with the defenses available to the indemnifying party, the
indemnified party may retain its own counsel in connection with such action,
claim, or proceeding, and shall be indemnified by the indemnifying party for any
legal and other expenses reasonably incurred in connection with investigating or
defending such action, claim, or proceeding.
(d) In no event will an indemnifying party under this Agreement be
liable for the fees and expenses of more than one counsel for any one
indemnified party in connection with any one action, claim, or proceeding or in
connection with separate but similar or related actions, claims, or proceedings
in the same jurisdiction arising out of the same general allegations. The
indemnifying party will not be liable for any settlement of any action, claim,
or proceeding effected without the indemnifying party's express written consent,
but if any action, claim, or proceeding is settled with the indemnifying party's
express written consent or if there is a final judgment for the plaintiff in any
such action, claim, or proceeding, the
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<PAGE>
indemnifying party shall indemnify, defend, and hold harmless an indemnified
party as provided in subparagraph (a) above.
11. We agree that under no circumstances shall we engage in any
activities hereunder in any jurisdiction unless (a) the Units have been
registered or qualified for sale under the securities laws thereof, and (b) we
may lawfully so engage in such activities therein.
12. We acknowledge receipt of copies of the Selling Agreement, the
Prospectus, and any Selling Literature provided to us pursuant to Paragraph 3
hereof, and confirm that in executing this Agreement we have relied thereon and
upon no other representations whatsoever, either written or oral. We hereby
confirm (a) that we have examined the Selling Agreement, the Prospectus and any
such Selling Literature, and we are familiar with the terms of the Units and
other terms of the offering, (b) that the information, if any, relating to us
which has been furnished by us or on our behalf expressly for use in connection
with the Registration Statements, the Prospectus, and any Selling Literature
does not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus and any Selling Literature, in light of
the circumstances under which such statements were made) not misleading, (c)
that we are willing to accept the responsibilities of an Additional Seller under
the 1933 Act and the CEAct, and (d) that we are willing to proceed with the
offering of Units in the manner contemplated. Further, we understand that you
may approve of or object to any further amendments to the Registration
Statements, the filing of one or more additional registration statements and
amendments thereto, or amendments or supplements to the Prospectus and any
Selling Literature, without our consent or approval. With respect to the
Selling Agreement, we understand that you may in your discretion exercise any
right of
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<PAGE>
cancellation or termination and consent to such other changes in the Selling
Agreement as you may approve without our consent or approval. You agree
that you will: (a) notify us of any such amendment to the Registration
Statements, any additional registration statement and any amendment thereto, and
shall provide a copy of same to us upon our written request; (b) notify us of
any amendment or supplement to the Prospectus or any Selling Literature, and
cause a copy of same to be furnished to us; and (c) notify us of any material
change in the Selling Agreement.
13. e agree that you shall be under no liability (except for your
own lack of good faith and for obligations expressly assumed by you hereunder)
to us in respect of any matters connected herewith or action taken by you
pursuant hereto for, or in respect of, the form of or the statements contained
in the Registration Statements, any additional registration statement, the
Prospectus, any Selling Literature, or any amendment or supplement to any of the
Foregoing documents; the qualification of the Units for sale under the laws of
Any jurisdiction; or any matter in connection with any of the foregoing;
provided, however, that nothing in this Paragraph 13 shall be deemed to relieve
you from any liability imposed by the 1933 Act.
14. Nothing contained herein shall constitute us as partners with you
or with other Additional Sellers, and the obligations of ourselves and of all
other Additional Sellers are several and not joint.
15. Any notice from you to us at the address set forth below shall be
deemed to have been duly given if mailed, telexed, telegraphed, telecopied, or
telephoned and subsequently confirmed in writing to us.
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<PAGE>
16. This Agreement shall be construed in accordance with the internal
laws of the State of New York, without regard to principles of conflicts of
laws.
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<PAGE>
Your acceptance of this Agreement and approval hereof shall be
indicated below, whereupon this Agreement shall constitute a binding agreement
between us.
Very truly yours,
________________________________________
Print or Type Name of Additional Seller
By: ___________________________________
(Signature of Authorized Signatory)
Name: ___________________________
Title: __________________________
Address:
________________________________________
________________________________________
Attention: ____________________________
Telephone No.: ________________________
Telex No.: ____________________________
Telecopier No.: _______________________
Type of Organization (Corporation,
Partnership or Other Entity): _________
________________________________________
State or Other Jurisdiction Where
Organized: __________________________
Accepted as of ______________:
Dean Witter Reynolds Inc.
By: _____________________________
(Signature of Authorized Officer)
Name: ___________________________
Title: __________________________
<PAGE>
Schedule A to Additional Seller Agreement
No.of Units
SEC File No. Effective Date Partnership Registered
- ----------- -------------- ----------- -----------
333- /__/98 Charter Graham 3,000,000
333- /__/98 Charter Millburn 3,000,000
333- /__/98 Charter Welton 3,000,000
<PAGE>
EXHIBIT 3.02
<PAGE>
CERTIFICATE OF LIMITED PARTNERSHIP
OF
MORGAN STANLEY DEAN WITTER CHARTER GRAHAM L.P.
The undersigned, in order to form a limited partnership under and
pursuant to the provisions of the Delaware Revised Uniform Limited Partnership
Act, hereby certifies as follows:
First. Name of Limited Partnership. The name of the limited
partnership is Morgan Stanley Dean Witter Charter Graham L.P. (the
"Partnership").
Second. Registered Office and Agent. The address of the
Partnership's registered office in the State of Delaware is c/o The
Corporation Trust Company, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the Partnership's
registered agent is The Corporation Trust Company.
Third. General Partner. The name and mailing address of the
sole general partner of the Partnership is Demeter Management
Corporation, Two World Trade Center, 62nd Floor, New York, New York
10048.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited
Partnership on July 15, 1998.
DEMETER MANAGEMENT CORPORATION,
General Partner
By: /s/ Mark J. Hawley
Mark J. Hawley
President
<PAGE>
EXHIBIT 5.01
<PAGE>
CADWALADER, WICKERSHAM & TAFT
100 Maiden Lane
New York, NY 10038
July 29, 1998
Dean Witter Reynolds Inc.
Demeter Management Corporation
Two World Trade Center
62nd Floor
New York, NY 10048
Re: Morgan Stanley Dean Witter Charter Graham L.P.;
Morgan Stanley Dean Witter Charter Millburn L.P.; and
Morgan Stanley Dean Witter Charter Welton L.P.
Ladies and Gentlemen:
We have acted as your counsel in connection with the organization of
Morgan Stanley Dean Witter Charter Graham L.P., Morgan Stanley Dean Witter
Charter Millburn L.P., and Morgan Stanley Dean Witter Charter Welton L.P.,
each a Delaware limited partnership (collectively, the "Partnerships";
individually a "Partnership"), and the preparation and filing with the
Securities and Exchange Commission of Registration Statements on Form S-1
(each a "Registration Statement") relating to the registration under the
Securities Act of 1933, as amended, of 3,000,000 units of limited partnership
interest of each Partnership ("Units"). In such connection, we have assisted
in the preparation of each Partnership's Limited Partnership Agreement and in
the preparation and filing with the Secretary of State of the State of
Delaware of the Certificate of Limited Partnership for each Partnership. We
have also examined such other documents, records, and applicable law as we
have deemed necessary or appropriate for purposes of rendering this opinion.
Based upon the foregoing, and with regard to each Partnership, we
are of the opinion that upon (1) the sale of the Units described in each
Registration Statement in the manner and on the terms and conditions set forth
therein, and (2) the identification of the purchasers of Units as limited
partners on the books and records of the applicable Partnership, the Units
will be validly issued, fully-paid, and non-assessable. We are also of the
opinion that a limited partner's liability for the losses and obligations of
each Partnership in which such limited partner purchases Units, solely by
reason of such person being a limited partner of such Partnership, will not
exceed such limited partner's unredeemed capital contribution, undistributed
profits, if any, and any distributions and amounts received upon redemption of
Units of such Partnership, with interest thereon.
<PAGE>
Dean Witter Reynolds Inc.
Demeter Management Corporation July 29, 1998
We hereby consent to the filing of this opinion as an exhibit to
each Registration Statement.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft
CADWALADER, WICKERSHAM & TAFT
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<PAGE>
EXHIBIT 8.01
<PAGE>
CADWALADER, WICKERSHAM & TAFT
100 Maiden Lane
New York, NY 10038
July 29, 1998
Dean Witter Reynolds Inc.
Demeter Management Corporation
Two World Trade Center
62nd Floor
New York, NY 10048
Re: Morgan Stanley Dean Witter Charter Graham L.P.;
Morgan Stanley Dean Witter Charter Millburn L.P.; and
Morgan Stanley Dean Witter Charter Welton L.P.
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation and
filing with the Securities and Exchange Commission of Registration Statements
on Form S-1 (each a "Registration Statement") relating to the registration
under the Securities Act of 1933, as amended, of 3,000,000 units of limited
partnership interest ("Units") of each of Morgan Stanley Dean Witter Charter
Graham L.P., Morgan Stanley Dean Witter Charter Millburn L.P., and Morgan
Stanley Dean Witter Charter Welton L.P., each a Delaware limited partnership
(each, a "Partnership"). We have also examined such documents, records, and
applicable law as we have deemed necessary for purposes of rendering this
opinion.
Based upon the foregoing, we hereby confirm our opinion under the
heading "Material Federal Income Tax Considerations" in the common prospectus
constituting a part of each Registration Statement (the "Prospectus") that
each Partnership will be taxed as a partnership for federal income tax
purposes. We also confirm our opinion that the descriptions set forth under
the heading "Material Federal Income Tax Considerations" in the Prospectus
correctly describes the material federal income tax consequences to United
States taxpayers who are individuals of acquiring, owning, and disposing of
Units.
<PAGE>
Dean Witter Reynolds Inc. July 29, 1998
Demeter Management Corporation
We hereby consent to the filing of this opinion as an exhibit to
each Registration Statement, and to the references made to us in the
Prospectus under the captions "Summary of the Prospectus--Tax
Considerations," "Risk Factors -- Taxation and Regulatory Risks,"
"Purchases by Employee Benefit Plans -- ERISA Considerations," "Material
Federal Income Tax Considerations," "State and Local Income Tax Aspects,"
and "Legal Matters."
Very truly yours,
/s/ Cadwalader, Wickersham & Taft
CADWALADER, WICKERSHAM & TAFT
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<PAGE>
EXHIBIT 10.01
<PAGE>
CUSTOMER AGREEMENT
THIS CUSTOMER AGREEMENT (this "Agreement"), made as of the
______ day of _______________, 1998, by and between MORGAN STANLEY DEAN
WITTER CHARTER __________ L.P., a Delaware limited partnership (the
"Customer"), and DEAN WITTER REYNOLDS INC., a Delaware corporation
("DWR");
W I T N E S S E T H :
WHEREAS, the Customer was organized pursuant to a Certificate
of Limited Partnership filed in the office of the Secretary of State of
the State of Delaware on _____________________, 1998, and a Limited
Partnership Agreement dated as of ________________, 1998, between Demeter
Management Corporation, a Delaware corporation ("Demeter"), acting as
general partner (in such capacity, the "General Partner"), and the
limited partners of the Customer to trade, buy, sell, spread or otherwise
acquire, hold, or dispose of commodities (including, but not limited, to
foreign currencies, mortgage-backed securities, money market instruments,
financial instruments, and any other securities or items which are, or
may become, the subject of futures contract trading), domestic and
foreign commodity futures contracts, commodity forward contracts, foreign
exchange commitments, options on physical commodities and on futures
contracts, spot (cash) commodities and currencies, and any rights
pertaining thereto (hereinafter referred to collectively as "futures
interests") and securities (such as United States Treasury bills)
approved by the Commodity Futures Trading Commission (the "CFTC") for
investment of customer funds and other securities on a limited basis, and
to engage in all activities incident thereto;
WHEREAS, the Customer (which is a commodity pool) and the
General Partner (which is a registered commodity pool operator) have
entered into a management agreement (the "Management Agreement") with a
certain trading advisor (the "Trading Advisor"), which provides that the
Trading Advisor has authority and responsibility, except in certain
limited situations, to direct the investment and reinvestment of the
assets of the Customer in futures interests under the terms set forth in
the Management Agreement;
WHEREAS, the Customer and DWR wish to set forth the terms and
conditions upon which DWR will perform certain non-clearing futures
interests brokerage and certain other services for the Customer;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not defined herein
shall have the meaning given to them in the Customer's most recent prospectus
as filed with the Securities and Exchange Commission (the "Prospectus")
relating to the offering of units of limited partnership interest of the
Customer (the "Units") and in any amendment or supplement to the
Prospectus.
2. Duties of DWR. DWR agrees to act as a non-clearing
commodity broker for the Customer and introduce the Customer's account to
Carr Futures, Inc. ("CFI") for execution and clearing of futures
interests transactions on behalf of the Customer in accordance with instructions
provided by the Trading Advisor, and the Customer agrees to retain DWR as
a non-clearing commodity broker for the term of this Agreement.
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DWR agrees to furnish to the Customer as soon as practicable
all of the information from time to time in its possession which Demeter, as
the general partner of the Customer, is required to furnish to the
Limited Partners pursuant to the Limited Partnership Agreement as from time to
time in effect and as required by applicable law, rules, or regulations
and to perform such other services for the Customer as are set forth
herein and in the Prospectus.
3. Obligations and Expenses. Except as otherwise set forth
herein and in the Prospectus, the Customer, and not DWR, shall be
responsible for all taxes, management and incentive fees to the Trading
Advisor, brokerage fees to DWR, and all extraordinary expenses incurred
by it. DWR shall pay all of the organizational, initial and continuing
offering, and ordinary administrative expenses of the Customer
(including, but not limited to, legal, accounting, and auditing fees, printing
costs, filing fees, escrow fees, marketing costs and expenses and other related
expenses) and all charges of CFI for executing and clearing the
Customer's futures interests trades (as described in paragraph 5 below), and
shall not be reimbursed therefor.
4. Agreement Nonexclusive. DWR shall be free to render
services of the nature to be rendered to the Customer hereunder to other
persons or entities in addition to the Customer, and the parties
acknowledge that DWR may render such services to additional entities
similar in nature to the Customer, including other partnerships organized
with Demeter as their general partner. It is expressly understood and
agreed that this Agreement is nonexclusive and that the Customer has no
obligation to execute any or all of its trades for futures interests
through DWR. The parties acknowledge that the Customer may utilize such
other broker or brokers as Demeter may direct from time to time.
The Customer's utilization of an additional commodity broker shall
neither terminate this Agreement nor modify in any regard the respective rights
and obligations of the Customer and DWR hereunder.
5. Compensation of DWR. The Customer will pay brokerage fees
to DWR at a monthly flat-rate. The Customer will pay to DWR a monthly
flat-rate fee of 1/12 of 7.0% of the Customer's Net Assets (a 7.0% annual
rate) as of the first day of each month. DWR will receive such brokerage
fees irrespective of the number of trades executed on the Customer's
behalf.
DWR will pay, from brokerage fees received by it, all charges
of CFI for executing and clearing trades for the Customer, including floor
brokerage fees, exchange fees, clearinghouse fees, NFA fees, "give up"
fees, any taxes (other than income taxes), any third party clearing costs
incurred by CFI, costs associated with taking delivery of futures
interests, and fees for execution of forward contract transactions.
From time to time, DWR may increase or decrease brokerage fees
to be charged to the Customer; provided, however, that: (i) notice of any
such increase is mailed to each Limited Partner at least five business
days prior to the last date on which a "Request for Redemption" must be
received by the General Partner with respect to the applicable Redemption
Date; and (ii) such notice shall describe the redemption and voting
rights of Limited Partners.
Notwithstanding the foregoing, the Customer's expenses are
subject to the following limits: (a) if the Customer were to pay
roundturn brokerage commissions, the brokerage commissions (excluding
transaction fees and costs) payable by the Customer to DWR shall not exceed 80%
of DWR's published non-member rates for speculative accounts and (b) the
aggregate of (i) brokerage commissions (or fees) payable to DWR, (ii)
transaction fees and costs payable by the Customer, and (iii) net excess
interest and compensating balance benefits to DWR (after crediting the
Customer with interest as described below) shall not exceed 14% annually
of the Customer's average month-end Net Assets during each calendar year.
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6. Investment Discretion. The parties recognize that DWR
shall have no authority to direct the futures interests investments to be made
for the Customer's account. However, the parties agree that DWR, and not
the Trading Advisor, shall have the authority and responsibility with
regard to the investment, maintenance, and management of the Customer's
assets that are held in segregated or secured accounts, as provided in
Section 7 hereof.
7. Investment of Customer Funds. The Customer shall deposit
its assets in accounts with DWR. The Customer's assets deposited with
DWR will be segregated or secured in accordance with the Commodity Exchange
Act and CFTC regulations and the Customer's funds will either be invested
along with other customer segregated and secured funds of DWR or held in
non-interest bearing bank accounts. DWR shall credit the Customer with
interest income at month-end at the rate earned by DWR on its U.S.
Treasury Bill investments with customer segregated funds as if 100% of
the Customer's average daily funds (including cash and securities) held in
the Customer's account with DWR during the month were invested in U.S.
Treasury Bills at such rate. All of such funds will be available for
margin for the Customer's trading. In addition, DWR shall credit the
Customer with 100% of the interest income DWR receives from CFI, as
agreed from time to time by DWR and CFI, on the Customer's assets deposited as
margin with CFI. The Customer understands that it will not receive any
other interest income on its assets. The Customer's assets held by DWR
may be used solely as margin for the Customer's trading.
Ownership of the right to receive interest on the Customer's
assets pursuant to the preceding paragraph shall be reflected and
maintained and may be transferred only on the books and records of DWR.
Any purported transfer of such ownership shall not be effective or
recognized until such transfer shall have been recorded on the books and
records of DWR.
8. Standard of Liability and Indemnity. Subject to Section 2
hereof, DWR and its affiliates (as defined below) shall not be liable to
the Customer, the General Partner or Limited Partners, or any of its or
their respective successors or assigns, for any act, omission, conduct,
or activity undertaken by or on behalf of the Customer pursuant to this
Agreement which DWR determines, in good faith, to be in the best
interests of the customer, unless such act, omission, conduct, or activity by
DWR or its affiliates constituted misconduct or negligence.
The Customer shall indemnify, defend and hold harmless DWR and
its affiliates from and against any loss, liability, damage, cost or
expense (including attorneys' and accountants' fees and expenses incurred
in the defense of any demands, claims, or lawsuits) actually and
reasonably incurred arising from any act, omission, conduct or activity
undertaken by DWR on behalf of the Customer pursuant to this Agreement,
including, without limitation, any demands, claims or lawsuits initiated
by a Limited Partner (or assignee thereof), provided that (i) DWR has
determined, in good faith, that the act, omission, conduct, or activity
giving rise to the claim for indemnification was in the best interests of
the Customer, and (ii) the act, omission, conduct, or activity that was
the basis for such loss, liability, damage, cost, or expense was not the
result of misconduct or negligence. Notwithstanding anything to the
contrary contained in the foregoing, neither DWR nor any of its
affiliates shall be indemnified by the Customer for any losses, liabilities, or
expenses arising from or out of an alleged violation of federal or state
securities laws unless (a) there has been a successful adjudication on
the merits of each count involving alleged securities law violations as to
the particular indemnitee, or (b) such claims have been dismissed with
prejudice on the merits by a court of competent jurisdiction as to the
particular indemnitee, or (c) a court of competent jurisdiction approves a
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<PAGE>
settlement of the claims against the particular indemnitee and finds that
indemnification of the settlement and related costs should be made,
provided, with regard to such court approval, the indemnitee must apprise
the court of the position of the SEC, and the positions of the respective
securities administrators of Massachusetts, Missouri, Tennessee and/or
those other states and jurisdictions in which the plaintiffs claim they
were offered or sold Units, with respect to indemnification for
securities laws violations before seeking court approval for indemnification.
Furthermore, in any action or proceeding brought by a Limited Partner in
the right of the Customer to which DWR or any affiliate thereof is a
party defendant, any such person shall be indemnified only to the extent and
subject to the conditions specified in this Section 8. The Customer
shall make advances to DWR or its affiliates hereunder only if: (i) the demand,
claim, lawsuit, or legal action relates to the performance of duties or
services by such persons to the Customer; (ii) such demand, claim,
lawsuit, or legal action is not initiated by a Limited Partner; and (iii)
such advances are repaid, with interest at the legal rate under Delaware
law, if the person receiving such advance is ultimately found not to be
entitled to indemnification hereunder.
DWR shall indemnify, defend and hold harmless the Customer and
its successors or assigns from and against any losses, liabilities,
damages, costs, or expenses (including in connection with the defense or
settlement of claims; provided DWR has approved such settlement) incurred
as a result of the activities of DWR or its affiliates, provided,
further, that the act, omission, conduct, or activity giving rise to the claim
for indemnification was the result of bad faith, misconduct or negligence.
The indemnities provided in this Section 8 by the Customer to
DWR and its affiliates shall be inapplicable in the event of any losses,
liabilities, damages, costs, or expenses arising out of, or based upon,
any material breach of any warranty, covenant, or agreement of DWR
contained in this Agreement to the extent caused by such breach.
Likewise, the indemnities provided in this Section 8 by DWR to the
Customer and any of its successors and assigns shall be inapplicable in
the event of any losses, liabilities, damages, costs, or expenses arising
out of, or based upon, any material breach of any warranty, covenant, or
agreement of the Customer contained in this Agreement to the extent
caused by such breach.
As used in this Section 8, the term "affiliate" of DWR shall
mean: (i) any natural person, partnership, corporation, association, or
other legal entity directly or indirectly owning, controlling, or holding
with power to vote 10% or more of the outstanding voting securities of
DWR; (ii) any partnership, corporation, association, or other legal
entity 10% or more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held with power to vote by DWR; (iii)
any natural person, partnership, corporation, association, or other legal
entity directly or indirectly controlling, controlled by, or under common
control with, DWR; or (iv) any officer or director of DWR.
Notwithstanding the foregoing, "affiliates" for purposes of this Section
8 shall include only those persons acting on behalf of DWR within the scope
of the authority of DWR, as set forth in this Agreement.
9. Term. This Agreement shall continue in effect until
terminated by either party giving not less than 60 days' prior written
notice of termination to the other party. Any such termination by either
party shall be without penalty.
10. Complete Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the matters referred to
herein, and no other agreement, verbal or otherwise, shall be binding as
between the parties unless in writing and signed by the party against
whom enforcement is sought.
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<PAGE>
11. Assignment. This Agreement may not be assigned by either
party without the express written consent of the other party.
12. Amendment. This Agreement may not be amended except by
the written consent of the parties and provided such amendment is consistent
with the Prospectus.
13. Notices. All notices required or desired to be delivered
under this Agreement shall be in writing and shall be effective when
delivered personally on the day delivered, or when given by registered or
certified mail, postage prepaid, return receipt requested, on the day of
receipt, addressed as follows (or to such other address as the party
entitled to notice shall hereafter designate in accordance with the terms
hereof):
if to the Customer:
MORGAN STANLEY DEAN WITTER CHARTER __________ L.P.
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Robert E. Murray
if to DWR:
DEAN WITTER REYNOLDS INC.
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Robert E. Murray
Senior Vice President
14. Survival. The provisions of this Agreement shall survive
the termination of this Agreement with respect to any matter arising
while this Agreement was in effect.
15. Headings. Headings of Sections herein are for the
convenience of the parties only and are not intended to be a part of or
to affect the meaning or interpretation of this Agreement.
16. Incorporation by Reference. The Futures Customer Agreement
annexed hereto is hereby incorporated by reference herein and made a part
hereof to the same extent as if such document were set forth in full
herein. If any provision of this Agreement is or at any time becomes
inconsistent with the annexed document, the terms of this Agreement shall
control.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
MORGAN STANLEY DEAN WITTER CHARTER
__________ L.P.
By: Demeter Management
Corporation,
General Partner
By: _______________________________
Mark J. Hawley
President
DEAN WITTER REYNOLDS INC.
By: _______________________________
Mark J. Hawley
Executive Vice President
<PAGE>
Futures Customer Agreement
In consideration of the acceptance by Dean Witter Reynolds Inc. ("DWR")
of one or more accounts of the undersigned ("Customer") (if more than one
account is carried by DWR, all are covered by this Agreement and are
referred to collectively as the "Account") and DWR's agreement to act as
Customer's broker for the execution, clearance and/or carrying of
transactions for the purchase and sale of commodity interests, including
commodities, commodity futures contracts and commodity options, Customer
agrees as follows:
1. APPLICABLE RULES AND REGULATIONS - The Account and each transaction
therein shall be subject to the terms of this Agreement and to (a) all
applicable laws and the regulations, rules and orders (collectively
"regulations") of all regulatory and self-regulatory organizations
having jurisdiction and (b) the constitution, by-laws, rules,
regulations, orders, resolutions, interpretations and customs and
usages (collectively "rules") of the market and any associated
clearing organization (each an "exchange") on or subject to the rules
of which such transaction is executed and/or cleared. The reference in
the preceding sentence to exchange rules is solely for DWR's
protection and DWR's failure to comply therewith shall not constitute
a breach of this Agreement or relieve Customer of any obligation or
responsibility under this Agreement. DWR shall not be liable to
Customer as a result of any action by DWR, its officers, directors,
employees or agents to comply with any rule or regulation.
2. PAYMENTS TO DWR - Customer agrees to pay to DWR immediately on request
(a) commissions, fees and service charges as are in effect from time
to time together with all applicable regulatory and self- regulatory
organization and exchange fees, charges and taxes; (b) the amount of
any debit balance or any other liability that may result from
transactions executed for the account; and (c) interest on such debit
balance or liability at the prevailing rate charged by DWR at the time
such debit balance or liability arises and service charges on any such
debit balance or liability together with any reasonable costs and
attorney's fees incurred in collecting any such debit balance or
liability. Customer acknowledges that DWR may charge commissions at
other rates to other customers.
3. CUSTOMER'S DUTY TO MAINTAIN ADEQUATE MARGIN - Customer shall at all
times and without prior notice or demand from DWR maintain adequate
margins in the account so as continually to meet the original and
maintenance margin requirements established by DWR for Customer. DWR
may change such requirements from time to time at DWR's discretion.
Such margin requirements may exceed the margin requirements set by any
exchange or other regulatory authority and may vary from DWR's
requirements for other customers. Customer agrees, when so requested,
immediately to wire transfer margin funds and to furnish DWR with
names of bank officers for immediate verification of such transfers.
Customer acknowledges and agrees that DWR may receive and retain as
its own any interest, increment, profit, gain or benefit directly or
indirectly, accruing from any of the funds DWR receives from Customer.
<PAGE>
4. DELIVERY; OPTION EXERCISE
(a) Customer acknowledges that the making or accepting of delivery
pursuant to a futures contract may involve a much higher degree
of risk than liquidating a position by offset. DWR has no control
over and makes no warranty with respect to grade, quality or
tolerances of any commodity delivered in fulfillment of a
contract.
(b) Customer agrees to give DWR timely notice and immediately o On
request to inform DWR if Customer intends to make or take
delivery under a futures contract or to exercise an option
contract. If so requested, Customer shall provide DWR with
satisfactory assurances that Customer can fulfill Customer's
obligation to make or take delivery under any contract. Customer
shall furnish DWR with property deliverable by it under any
contract in accordance with DWR's instructions.
(c) DWR shall not have any obligation to exercise any long option
contract unless Customer has furnished DWR with timely exercise
instructions and sufficient initial margin with respect to each
underlying futures contract.
5. FOREIGN CURRENCY - If DWR enters into any transaction for Customer
effected in a currency other than U.S. dollars: (a) any profit or loss
caused by changes in the rate of exchange for such currency shall be
for Customer's account and risk and (b) unless another currency is
designated in DWR's confirmation of such transaction, all margin for
such transaction and the profit or loss on the liquidation of such
transaction shall be in U.S. dollars at a rate of exchange determined
by DWR in its discretion on the basis of then prevailing market rates
of exchange for such foreign currency.
6. DWR MAY LIMIT POSITIONS HELD - Customer agrees that DWR, at its
discretion, may limit the number of open positions (net or gross)
which Customer may execute, clear and/or carry with or acquire through
it. Customer agrees (a) not to make any trade which would have the
effect of exceeding such limits, (b) that DWR may require Customer to
reduce open positions carried with DWR and (c) that DWR may refuse to
accept orders to establish new positions. DWR may impose and enforce
such limits, reduction or refusal whether or not they are required by
applicable law, regulations or rules. Customer shall comply with all
position limits established by any regulatory or self-regulatory
organization or any exchange. In addition, Customer agrees to notify
DWR promptly if customer is required to file position reports with any
regulatory or self-regulatory organization or with any exchange.
7. NO WARRANTY AS TO INFORMATION OR RECOMMENDATION - Customer
acknowledges that:
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(a) Any market recommendations and information DWR may communicate to
Customer, although based upon information obtained from sources
believed by DWR to be reliable, may be incomplete and not subject
to verification;
(b) DWR makes no representation, warranty or guarantee as to, and
shall not be responsible for, the accuracy or completeness of any
information or trading recommendation furnished to Customer;
(c) recommendations to Customer as to any particular transaction at
any given time may differ among DWR's personnel due to diversity
in analysis of fundamental and technical factors and may vary
from any standard recommendation made by DWR in its market
letters or otherwise; and
(d) DWR has no obligation or responsibility to update any market
recommendations or information it communicates to Customer.
Customer understands that DWR and its officers, directors,
affiliates, stockholders, representatives or associated persons may have
positions in and may intend to buy or sell commodity interests which are the
subject of market recommendations furnished to Customer, and that the market
positions of DWR or any such officer, director, affiliate, stockholder,
representative or associated person may or may not be consistent with the
recommendations furnished to Customer by DWR.
8. LIMITS ON DWR DUTIES; LIABILITY - Customer agrees:
(a) that DWR has no duty to apprise Customer of news or of the value
of any commodity interests or collateral pledged or in any way to
advise Customer with respect to the market;
(b) that the commissions which DWR receives are consideration solely
for the execution, reporting and carrying of Customer's trades;
(c) that if Customer has authorized any third party or parties to
place orders or effect transactions on behalf of Customer in any
Account, each such party has been selected by Customer based on
its own evaluation and assessment of such party and that such
party is solely the agent of Customer, and if any such party
allocates commodity interests among its customers, Customer has
reviewed each such party's commodity interest allocation system,
has satisfied itself that such allocation system is fair and will
seek recovery solely from such party to recover any damages
sustained by Customer as the result of any allocation made by
such party; and
(d) to waive any and all claims, rights or causes of action which
Customer has or may have against DWR or its officers, employees
and agents (i) arising in whole or in part, directly or
indirectly, out of any act or omission of any person, whether or
not legally deemed
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<PAGE>
an agent of DWR, who refers or introduces Customer to DWR or
places orders for Customer and (ii) for any punitive damages and
to limit any claims arising out of this Agreement or the Account
to Customer's direct out-of-pocket damages.
9. EXTRAORDINARY EVENTS - Customer shall have no claim against DWR for any
loss, damage, liability, cost, charge, expense, penalty, fine or tax
caused directly or indirectly by (a) governmental, court, exchange,
regulatory or self-regulatory organization restrictions, regulations,
rules, decisions or orders, (b) suspension or termination of trading,
(c) war or civil or labor disturbance, (d) delay or inaccuracy in the
transmission or reporting of orders due to a breakdown or failure of
computer services, transmission or communication facilities, (e) the
failure or delay by any exchange to enforce its rules or to pay to DWR
any margin due in respect of Customer's Account, (f) the failure or
delay by any bank, trust company, clearing organization or other person
which, pursuant to applicable exchange rules, is holding Customer funds,
securities or other property to pay or deliver the same to DWR or (g)
any other cause or causes beyond DWR's control.
10. INDEMNIFICATION OF DWR - Customer agrees to indemnify, defend and hold
harmless DWR and its officers, employees and agents from and against any
loss, cost, claim, damage (including any consequential cost, loss or
damage), liability or expense (including reasonable attorneys' fees) and
any fine, sanction or penalty made or imposed by any regulatory or self-
regulatory authority or any exchange as the result, directly or
indirectly, of:
(a) Customer's failure or refusal to comply with any provision of this
Agreement or perform any obligation on its part to be performed
pursuant to this Agreement; and
(b) Customer's failure to timely deliver any security, commodity or
other property previously sold by DWR on Customer's behalf.
11. NOTICES; TRANSMITTALS - DWR shall transmit all communications to
Customer at Customer's address, telefax or telephone number set forth in
the accompanying Futures Account Application or to such other address as
Customer may hereafter direct in writing. Customer shall transmit all
communications to DWR (except routine inquiries concerning the Account)
to 130 Liberty Street, New York, NY 10006, Attention: Futures Compliance
Officer. All payments and deliveries to DWR shall be made as instructed
by DWR from time to time and shall be deemed received only when actually
received by DWR.
12. CONFIRMATION CONCLUSIVE - Confirmation of trades and any other notices
sent to Customer shall be conclusive and binding on Customer unless
Customer or Customer's agent notifies DWR to the contrary (a) in the
case of an oral report, orally at the time received by Customer or its
agent or (b) in the case of a written report or notice, in writing prior
to opening of trading on the business day next following receipt of the
report. In
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<PAGE>
addition, if Customer has not received a written confirmation that a
commodity interest transaction has been executed within three business
days after Customer has placed an order with DWR to effect such
transaction, and has been informed or believes that such order has been
or should have been executed, then Customer immediately shall notify DWR
thereof. Absent such notice, Customer conclusively shall be deemed
estopped to object and to have waived any such objection to the failure
to execute or cause to be executed such transaction. Anything in this
Section 12 withstanding, neither Customer nor DWR shall be bound by any
transaction or price reported in error.
13. SECURITY INTEREST - All money and property ("collateral") now or at any
future time held in Customer's Account, or otherwise held by DWR for
Customer, is subject to a security interest in DWR's favor to secure any
indebtedness at any time owing to it by Customer. DWR, in its
discretion, may liquidate any collateral to satisfy any margin or
Account deficiencies or to transfer the collateral to the general ledger
account of DWR.
14. TRANSFER OF FUNDS - At any time and from time to time and without prior
notice to Customer, DWR may transfer from one account to another account
in which Customer has any interest, such excess funds, equities,
securities or other property as in DWR's judgment may be required for
margin, or to reduce any debit balance or to reduce or satisfy any
deficits in such other accounts except that no such transfer may be made
from a segregated account subject to the Commodity Exchange Act to
another account maintained by Customer unless either Customer has
authorized such transfer in writing or DWR is effecting such transfer to
enforce DWR's security interest pursuant to Section 13. DWR promptly
shall confirm all transfers of funds made pursuant hereto to Customer in
writing.
15. DWR'S RIGHT TO LIQUIDATE CUSTOMER POSITIONS - In addition to all
other rights of DWR set forth in this Agreement:
(a) when directed or required by a regulatory or self-regulatory
organization or exchange having jurisdiction over DWR or the
Account;
(b) whenever, in its discretion, DWR considers it necessary for its
protection because of margin requirements or otherwise;
(c) if Customer or any affiliate of Customer repudiates, violates,
breaches or fails to perform on a timely basis any term, covenant
or condition on its part to be performed under this Agreement or
another agreement with DWR;
(d) if a case in bankruptcy is commenced or if a proceeding under any
insolvency or other law for the protection of creditors or for the
appointment of a receiver, liquidator, trustee, conservator,
custodian or similar officer is filed by or against Customer or any
affiliate of Customer, or if Customer or any affiliate of Customer
makes or proposes to make any arrangement or composition for the
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<PAGE>
benefit of its creditors, or if Customer (or any such affiliate) or
any or all of its property is subject to any agreement, order,
judgment or decree providing for Customer's dissolution,
winding-up, liquidation, merger, consolidation, reorganization or
for the appointment of a receiver, liquidator, trustee,
conservator, custodian or similar officer of Customer, such
affiliate or such property;
(e) DWR is informed of Customer's death or mental incapacity; or
(f) if an attachment or similar order is levied against the Account or
any other account maintained by Customer or any affiliate of
Customer with DWR;
DWR shall have the right to (i) satisfy any obligations due DWR out of
any Customer's property in DWR's custody or control, (ii) liquidate any
or all of Customer's commodity interest positions, (iii) cancel any or
all of Customer's outstanding orders, (iv) treat any or all of
Customer's obligations due DWR as immediately due and payable, (v) sell
any or all of Customer's property in DWR's custody or control in such
manner as DWR determines to be commercially reasonable, and/or (vi)
terminate any or all of DWR's obligations for future performance to
Customer, all without any notice to or demand on Customer. Any sale
hereunder may be made in any commercially reasonable manner. Customer
agrees that a prior demand, call or notice shall not be considered a
waiver of DWR's right to act without demand or notice as herein
provided, that Customer shall at all times be liable for the payment of
any debit balance owing in each account upon demand whether occurring
upon a liquidation as provided under this Section 15 or otherwise under
this Agreement, and that in all cases Customer shall be liable for any
deficiency remaining in each Account in the event of liquidation thereof
in whole or in part together with interest thereon and all costs
relating to liquidation and collection (including reasonable attorneys'
fees).
16. CUSTOMER REPRESENTATIONS, WARRANTIES AND AGREEMENTS - Customer
represents and warrants to and agrees with DWR that:
(a) Customer has full power and authority to enter into this Agreement
and to engage in the transactions and perform its obligations
hereunder and contemplated hereby and (i) if a corporation or a
limited liability company, is duly organized under the laws of the
jurisdiction set forth in the accompanying Futures Account
Application, or (ii) if a partnership, is duly organized pursuant
to a written partnership agreement and the general partner
executing this Agreement is duly authorized to do so under the
partnership agreement;
(b) Neither Customer nor any partner, director, officer, member,
manager or employee of Customer nor any affiliate of Customer is a
partner, director, officer, member, manager or employee of a
futures commission merchant introducing broker, exchange or
self-regulatory organization or an employee or commissioner of the
Commodity Futures Trading Commission (the "CFTC"), except as
previously disclosed in writing to DWR;
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<PAGE>
(c) The accompanying Futures Account Application and Personal Financial
Statements, if applicable, (including any financial statements
furnished in connection therewith) are true, correct and complete.
Except as disclosed on the accompanying Futures Account Application
or otherwise provided in writing, (i) Customer is not a commodity
pool or is exempt from registration under the rules of the
Commission, and (ii) Customer is acting solely as principal and no
one other than Customer has any interest in any Account of
Customer. Customer hereby authorizes DWR to contact such banks,
financial institutions and credit agencies as DWR shall deem
appropriate for verification of the information contained herein.
(d) Customer has determined that trading in commodity interests is
appropriate for Customer, is prudent in all respects and does not
and will not violate Customer's charter or by-laws (or other
comparable governing document) or any law, rule, regulation,
judgment, decree, order or agreement to which Customer or its
property is subject or bound;
(e) As required by CFTC regulations, Customer shall create, retain and
produce upon request of the applicable contract market, the CFTC or
the United States Department of Justice documents (such as
contracts, confirmations, telex printouts, invoices and documents
of title) with respect to cash transactions underlying exchanges of
futures for cash commodities or exchange of futures in connection
with cash commodity transactions;
(f) Customer consents to the electronic recording, at DWR's discretion,
of any or all telephone conversations with DWR (without automatic
tone warning device), the use of same as evidence by either party
in any action or proceeding arising out of the Agreement and in
DWR's erasure, at its discretion, of any recording as part of its
regular procedure for handling of recordings;
(g) Absent a separate written agreement between Customer and DWR with
respect to give-ups, DWR, in its discretion, may, but shall have no
obligation to, accept from other brokers commodity interest
transactions executed by such brokers on an exchange for Customer
and proposed to be "given-up" to DWR for clearance and/or carrying
in the Account;
(h) DWR, for and on behalf of Customer, is authorized and empowered to
place orders for commodity interest transactions through one or
more electronic or automated trading systems maintained or operated
by or under the auspices of an exchange, that DWR shall not be
liable or obligated to Customer for any loss, damage, liability,
cost or expense (including but not limited to loss of profits, loss
of use, incidental or consequential damages) incurred or sustained
by Customer and arising in whole or in part, directly or
indirectly, from any fault, delay, omission, inaccuracy or
termination of a
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<PAGE>
system or DWR's inability to enter, cancel or modify an order on
behalf of Customer on or through a system. The provisions of this
Section 16(h) shall apply regardless of whether any customer claim
arises in contract, negligence, tort, strict liability, breach of
fiduciary obligations or otherwise; and
(i) If Customer is subject to the Financial Institution Reform,
Recovery and Enforcement Act of 1989, the certified resolutions set
forth following this Agreement have been caused to be reflected in
the minutes of Customer's Board of Directors (or other comparable
governing body) and this Agreement is and shall be, continuously
from the date hereof, an official record of Customer.
Customer agrees to promptly notify DWR in writing if any of the
warrantie and representations contained in this Section 16 becomes
inaccurate or in any way ceases to be true, complete and correct.
17. SUCCESSORS AND ASSIGNS - This Agreement shall inure to the benefit of
DWR, its successors and assigns, and shall be binding upon Customer and
Customer's executors, trustees, administrators, successors and assigns,
provided, however, that this Agreement is not assignable by Customer
without the prior written consent of DWR.
18. MODIFICATION OF AGREEMENT BY DWR; NON-WAIVER PROVISION - This
Agreement may only be altered, modified or amended by mutual written
consent of the parties, except that if DWR notifies Customer of a change
in this Agreement and Customer thereafter effects a commodity interest
transaction in an account, Customer agrees that such action by Customer
will constitute consent by Customer to such change. No employee of DWR
other than DWR's General Counsel or his or her designee, has any
authority to alter, modify, amend or waive in any respect any of the
terms of this Agreement. The rights and remedies conferred upon DWR
shall be cumulative, and its forbearance to take any remedial action
available to it under this Agreement shall not waive its right at any
time or from time to time thereafter to take such action.
19. SEVERABILITY - If any term or provision hereof or the application
thereof to any persons or circumstances shall to any extent be contrary
to any exchange, government or self-regulatory regulation or contrary to
any federal, state or local law or otherwise be invalid or
unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as
to which it is contrary, invalid or unenforceable, shall not be affected
thereby.
20. CAPTIONS - All captions used herein are for convenience only, are not a
part of this Agreement, and are not to be used in construing or
interpreting any aspect of this Agreement.
21. TERMINATION - This Agreement shall continue in force until written
notice of termination is given by Customer or DWR. Termination shall not
relieve
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<PAGE>
either party of any liability or obligation incurred prior to such
notice. Upon giving or receiving notice of termination, Customer will
promptly take all action necessary to transfer all open positions in
each account to another futures commission merchant.
22. ENTIRE AGREEMENT - This Agreement constitutes the entire agreement
between Customer and DWR with respect to the subject matter hereof and
supersedes any prior agreements between the parties with respect to such
subject matter.
23. GOVERNING LAW; CONSENT TO JURISDICTION -
(a) In case of a dispute between Customer and DWR arising out of or
relating to the making or performance of this Agreement or any
transaction pursuant to this Agreement (i) this Agreement and its
enforcement shall be governed by the laws of the State of New
York without regard to principles of conflicts of laws, and (ii)
Customer will bring any legal proceeding against DWR in, and
Customer hereby consents in any legal proceeding by DWR to the
jurisdiction of, any state or federal court located within the
State and City of New York in connection with all legal
proceedings arising directly, indirectly or otherwise in
connection with, out of, related to or from Customer's Account,
transactions contemplated by this Agreement or the breach
thereof. Customer hereby waives all objections Customer, at any
time, may have as to the propriety of the court in which any such
legal proceedings may be commenced. Customer also agrees that any
service of process mailed to Customer at any address specified to
DWR shall be deemed a proper service of process on the
undersigned.
(b) Notwithstanding the provisions of Section 23 (a)(ii), Customer
may elect at this time to have all disputes described in this
Section resolved by arbitration. To make such election, Customer
must sign the Arbitration Agreement set forth in Section 24.
Notwithstanding such election, any question relating to whether
Customer or DWR has commenced an arbitration proceeding in a
timely manner, whether a dispute is within the scope of the
Arbitration Agreement or whether a party (other than Customer or
DWR) has consented to arbitration and all proceedings to compel
arbitration shall be determined by a court as specified in
Section 23 (a)(ii).
24. ARBITRATION AGREEMENT (OPTIONAL) - Every dispute between Customer and
DWR arising out of or relating to the making or performance of this
Agreement or any transaction pursuant to this Agreement, shall be
settled by arbitration in accordance with the rules, then in effect, of
the National Futures Association, the contract market upon which the
transaction giving rise to the claim was executed, or the National
Association of Securities Dealers as Customer may elect. If Customer
does not make such election by registered mail addressed to DWR at 130
Liberty Street, 29th Floor, New York, NY 10006; Attention: Deputy
General Counsel, within 45 days after demand by DWR that the Customer
make such election, then DWR may make such election. DWR agrees to pay
any incremental fees which may be assessed by a qualified forum for
making available a "mixed panel" of arbitrators, unless the arbitrators
determine that Customer has acted in bad faith in initiating or
conducting the proceedings. Judgment upon any award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
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<PAGE>
IN ADDITION TO FOREIGN FORUMS, THREE FORUMS EXIST FOR THE RESOLUTION OF
COMMODITY DISPUTES: CIVIL COURT LITIGATION, REPARATIONS AT THE COMMODITY
FUTURES TRADING COMMISSION ("CFTC") AND ARBITRATION CONDUCTED BY A SELF-
REGULATORY OR OTHER PRIVATE ORGANIZATION.
THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES BY
ARBITRATION MAY IN SOME CASES PROVIDE MANY BENEFITS TO CUSTOMERS,
INCLUDING THE ABILITY TO OBTAIN AN EXPEDITIOUS AND FINAL RESOLUTION OF
DISPUTES WITHOUT INCURRING SUBSTANTIAL COSTS. THE CFTC REQUIRES,
HOWEVER, THAT EACH CUSTOMER INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF
ARBITRATION AND THAT YOUR CONSENT TO THIS ARBITRATION AGREEMENT BE
VOLUNTARY.
BY SIGNING THIS AGREEMENT, YOU (1) MAY BE WAIVING YOUR RIGHT TO SUE IN A
COURT OF LAW AND (2) ARE AGREEING TO BE BOUND BY ARBITRATION OF ANY
CLAIMS OR COUNTERCLAIMS WHICH YOU OR DWR MAY SUBMIT TO ARBITRATION UNDER
THIS AGREEMENT. YOU ARE NOT, HOWEVER, WAIVING YOUR RIGHT TO ELECT
INSTEAD TO PETITION THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER
SECTION 14 OF THE COMMODITY EXCHANGE ACT WITH RESPECT TO ANY DISPUTE
WHICH MAY BE ARBITRATED PURSUANT TO THIS AGREEMENT. IN THE EVENT A
DISPUTE ARISES, YOU WILL BE NOTIFIED IF DWR INTENDS TO SUBMIT THE
DISPUTE TO ARBITRATION. IF YOU BELIEVE A VIOLATION OF THE COMMODITY
EXCHANGE ACT IS INVOLVED AND IF YOU PREFER TO REQUEST A SECTION 14
"REPARATIONS" PROCEEDINGS BEFORE THE CFTC, YOU WILL HAVE 45 DAYS FROM
THE DATE OF SUCH NOTICE IN WHICH TO MAKE THAT ELECTION.
YOU NEED NOT AGREE TO THIS ARBITRATION AGREEMENT TO OPEN AN ACCOUNT WITH
DWR. See 17 CFR 180.1-180.5. ACCEPTANCE OF THIS ARBITRATION AGREEMENT
REQUIRES A SEPARATE SIGNATURE ON PAGE 8.
25. CONSENT TO TAKE THE OTHER SIDE OF ORDERS (OPTIONAL) - Without its
prior notice, Customer agrees that when DWR executes sell or buy orders
on Customer's behalf, DWR, its directors, officers, employees, agents,
affiliates, and any floor broker may take the other side of Customer's
transaction through any account of such person subject to its being
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<PAGE>
executed at prevailing prices in accordance with and subject to the
limitations and conditions, if any, contained in applicable rules and
regulations.
26. AUTHORIZATION TO TRANSFER FUNDS (OPTIONAL) - Without limiting other
provisions herein, DWR is authorized to transfer from any segregated
account subject to the Commodity Exchange Act carried by DWR for the
Customer to any other account carried by DWR for the Customer such
amount of excess funds as in DWR's judgment may be necessary at any time
to avoid a margin call or to reduce a debit balance in said account. It
is understood that DWR will confirm in writing each such transfer of
funds made pursuant to this authorization within a reasonable time after
such transfer.
27. SUBORDINATION AGREEMENT (Applies only to Accounts with funds held
in foreign countries) - Funds of customers trading on United States
contract markets may be held in accounts denominated in a foreign
currency with depositories located outside the United States or its
territories if the customer is domiciled in a foreign country or if the
funds are held in connection with contracts priced and settled in a
foreign currency. Such accounts are subject to the risk that events
could occur which hinder or prevent the availability of these funds for
distribution to customers. Such accounts also may be subject to foreign
currency exchange rate risks.
If authorized below, Customer authorizes the deposit of funds into such
foreign depositories. For customers domiciled in the United States, this
authorization permits the holding of funds in regulated accounts
offshore only if such funds are used to margin, guarantee, or secure
positions in such contracts or accrue as a result of such positions. In
order to avoid the possible dilution of other customer funds, a customer
who has funds held outside the United States agrees by accepting this
subordination agreement that his claims based on such funds will be
subordinated as described below in the unlikely event both of the
following conditions are met: (1) DWR is placed in receivership or
bankruptcy, and (2) there are insufficient funds available for
distribution denominated in the foreign currency as to which the
customer has a claim to satisfy all claims against those funds.
By initialing the Subordination Agreement below, Customer agrees that if
both of the conditions listed above occur, its claim against DWR's
assets attributable to funds held overseas in a particular foreign
currency may be satisfied out of segregated customer funds held in
accounts denominated in dollars or other foreign currencies only after
each customer whose funds are held in dollars or in such other foreign
currencies receives its pro-rata portion of such funds. It is further
agreed that in no event may a customer whose funds are held overseas
receive more than its pro-rata share of the aggregate pool consisting of
funds held in dollars, funds held in the particular foreign currency,
and non-segregated assets of DWR.
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<PAGE>
OPTIONAL ELECTIONS
The following provisions, which are set forth in this agreement, need not be
entered into to open the Account. Customer agrees that its optional elections
are as follows:
Signature required for each election
ARBITRATION AGREEMENT:
(Agreement Paragraph 24) ____________________________________
CONSENT TO TAKE THE OTHER SIDE OF ORDERS:
(Agreement Paragraph 25) X___________________________________
AUTHORIZATION TO TRANSFER FUNDS:
(Agreement Paragraph 26) ____________________________________
ACKNOWLEDGEMENT TO SUBORDINATION AGREEMENT
(Agreement Paragraph 27) X___________________________________
(Required for accounts holding
non-U.S. currency)
HEDGE ELECTION
Customer confirms that all transactions in the Account will
represent bona fide hedging transactions, as defined by the
Commodity Futures Trading Commission, unless DWR is notified
otherwise not later than the time an order is placed for the
Account [check box if applicable]: /_ /
Pursuant to CFTC Regulation 190.06(d), Customer specifies and agrees, with
respect to hedging transactions in the Account, that in the unlikely event
of DWR's bankruptcy, it prefers that the bankruptcy trustee [check
appropriate box]:
A. Liquidate all open contracts without first seeking
instructions either from or on behalf of Customer. /_ /
B. Attempt to obtain instructions with respect to the
disposition of all open contracts.
(If neither box is checked, Customer shall be deemed
to elect A) /_ /
ACKNOWLEDGEMENT OF RECEIPT OF RISK DISCLOSURE STATEMENTS
The undersigned each hereby acknowledges its separate receipt from DWR, and its
understanding of each of the following documents prior to the opening of the
account:
O Risk Disclosure Statement for O Project ATM Customer Information
Futures and Options (in the form Statement
prescribed by CFTC
Regulation 1.55(c))
O LME Risk Warning Notice O Questions & Answers on Flexible
Options Trading at the CBOT
O Dean Witter Order Presumption for O CME Average Pricing System
After Hours Electronic Markets Disclosure Statement
O NYMEX ACCESSSM Risk Disclosure O Special Notice to Foreign Brokers
Statement and Foreign Traders
O Globex(r) Customer Information and
Risk Disclosure Statement
REQUIRED SIGNATURES
The undersigned has received, read, understands and agrees to all the provisions
of this Agreement and the separate risk disclosure statements enumerated above
and agrees to promptly notify DWR in writing if any of the warranties and
representations contained herein become inaccurate or in any way cease to be
true, complete and correct.
- -------------------------------------------------------------------------------
CUSTOMER NAME(S)
By: DEMETER MANAGEMENT CORPORATION
By:
- ------------------------------------------ --------------------------------
AUTHORIZED SIGNATURE(S) DATE
Mark J. Hawley, President
(If applicable, print name and title of signatory)
<PAGE>
Exhibit 10.01(a)
<PAGE>
CUSTOMER AGREEMENT
THIS CUSTOMER AGREEMENT (this "Agreement"), made as of the ____
day of ________________, 1998, by and among MORGAN STANLEY DEAN WITTER
CHARTER ____________ L.P., a Delaware limited partnership (the
"Customer"), CARR FUTURES INC., a Delaware corporation ("CFI"), and DEAN
WITTER REYNOLDS INC., a Delaware corporation ("DWR");
W I T N E S S E T H :
WHEREAS, the Customer was organized pursuant to a Certificate
of Limited Partnership filed in the office of the Secretary of State of
the State of Delaware on ________________, 1998, and a Limited Partnership
Agreement dated as of _______________, 1998 between Demeter Management
Corporation, a Delaware corporation ("Demeter"), acting as general partner
(in such capacity, the "General Partner"), and the limited partners of the
Customer, to trade, buy, sell, spread, or otherwise acquire, hold, or
dispose of commodities (including, but not limited to, foreign currencies,
mortgage-backed securities, money market instruments, financial
instruments, and any other securities or items which are, or may become,
the subject of futures contract trading), domestic and foreign commodity
futures contracts, commodity forward contracts, foreign exchange
commitments, options on physical commodities and on futures contracts,
spot (cash) commodities and currencies, and any rights pertaining thereto
(hereinafter referred to collectively as "futures interests"), and
securities (such as United States Treasury bills) approved by the
Commodity Futures Trading Commission (the "CFTC") for investment of
customer funds and other securities on a limited basis, and to engage in
all activities incident thereto;
WHEREAS, the Customer (which is a commodity pool) and the
General Partner (which is a registered commodity pool operator) have
entered into a management agreement (the "Management Agreement") with a
certain trading advisor (the "Trading Advisor"), which provides that the
Trading Advisor has authority and responsibility, except in certain
limited situations, to direct the investment and reinvestment of the
assets of the Customer in futures interests under the terms set forth in
the Management Agreement;
WHEREAS, the Customer and DWR have entered into that certain
Customer Agreement, dated as of _________________, 1998 (the "DWR Customer
Agreement"), whereby DWR agreed to perform certain non-clearing futures
interests brokerage and other services for the Customer; and
WHEREAS, the Customer, DWR and CFI wish to enter into this
Agreement to set forth the terms and conditions upon which CFI will
perform futures interests execution and clearing services for the
Customer;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not defined herein shall
have the meaning given to them in the Customer's most recent prospectus as
filed with the Securities and Exchange Commission (the "Prospectus")
relating to the offering of units of limited partnership interest of the
Customer (the "Units") and in any amendment or supplement to the
Prospectus.
<PAGE>
2. Duties of CFI. CFI agrees to execute and clear all futures
interests brokerage transactions on behalf of the Customer in accordance
with instructions provided by DWR or the Trading Advisor, and the Customer
agrees to retain CFI as its clearing broker for the term of this
Agreement. CFI agrees to maintain such number of subaccounts for the
Customer as DWR reasonably shall request. The execution and clearing
services of CFI provided hereunder shall be in accordance with applicable
exchange rules.
CFI agrees to furnish to the Customer as soon as practicable all
of the information from time to time in its possession which Demeter, as
the general partner of the Customer, is required to furnish to the Limited
Partners pursuant to the Limited Partnership Agreement as from time to
time in effect and as required by applicable law, rules, or regulations
and to perform such other services for the Customer as are set forth
herein and in the Prospectus. CFI shall disclose such information
(including, without limitation, financial statements) regarding itself and
its affiliates as may be required by the Customer for SEC, CFTC and state
blue sky disclosure purposes.
CFI agrees to notify the Trading Advisor and DWR immediately
upon discovery of any error committed by CFI or any of its agents with
respect to a trade executed or cleared by CFI on behalf of the Customer
and to notify DWR promptly of any order or trade for the Customer's
account which CFI believes was not executed or cleared in accordance with
proper instructions given by DWR, Demeter or the Trading Advisor or other
agent for the Customer's account. Notwithstanding any provision of this
Agreement to the contrary, CFI shall assume financial responsibility for
any errors committed or caused by it in executing or clearing orders for
the purchase or sale of futures interests for the Customer's account and
shall credit the Customer's account with any profit resulting from an
error of CFI. Errors made by floor brokers appointed or selected by CFI
shall constitute errors made by CFI. However, CFI shall not be
responsible for errors committed by the Trading Advisor.
CFI acknowledges that other partnerships of which the General
Partner is the general partner are not affiliates of the Customer.
3. Margins. The futures and futures option trades for the
Customer's account shall be margined at the applicable exchange or
clearinghouse minimum rates for speculative accounts; all subaccounts
shall be combined for determining such margin requirements. All margin
calls for the Customer's account shall be made to DWR by CFI, and each
such call for margin shall be met by Customer within three hours after DWR
has received such call. CFI shall accept as margin for the Customer's
account any instrument deemed acceptable under exchange or clearinghouse
rules pertaining to such account. Upon oral or written request by DWR, CFI
shall, within three hours after receipt of any such request, wire transfer
(by federal bank wire system) to DWR for Customer's account any funds in
the Customer's account with CFI in excess of the margin requirements for
such account.
4. Obligations and Expenses. Except as otherwise set forth
herein and in the Prospectus, the Customer, and not CFI, shall be
responsible for all taxes, management and incentive fees to the Trading
Advisor, the brokerage fees to DWR pursuant to the DWR Customer Agreement,
and all extraordinary expenses incurred by it. DWR shall pay all of the
organizational, initial and continuing offering, and ordinary
administrative expenses of the Customer (including, but not limited to,
legal, accounting, and auditing fees, printing costs, filing fees, escrow
fees, marketing costs and expenses, and other related expenses), and all
charges of CFI (as described in paragraph 6 below), and shall not be
reimbursed therefor.
5. Agreement Nonexclusive. CFI shall be free to render
services of the nature to be rendered to the Customer hereunder to other
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persons or entities in addition to the Customer, and the parties
acknowledge that CFI may render such services to additional entities
similar in nature to the Customer, including other partnerships organized
with Demeter as their general partner. It is expressly understood and
agreed that this Agreement is nonexclusive and that the Customer has no
obligation to execute any or all of its trades for futures interests
through CFI. The parties acknowledge that the Customer may execute and
clear trades for futures interests through such other broker or brokers as
Demeter may direct from time to time. The Customer's utilization of an
additional commodity broker shall neither terminate this Agreement nor
modify in any regard the respective rights and obligations of the Customer
and CFI hereunder.
6. Compensation of CFI. In compensation of CFI's services
pursuant to this Agreement, DWR shall pay to CFI such fees and costs as
DWR and CFI shall agree from time to time, and the Customer shall pay CFI
all floor brokerage fees, exchange fees, clearinghouse fees, NFA fees,
"give-up" fees, any taxes (other than income taxes), any third party
clearing costs incurred by CFI, costs associated with taking delivery of
futures interests, fees for execution of forward contract transactions (in
the aggregate, "Transaction Costs"). DWR shall reimburse the Customer at
each month-end for all Transaction Costs incurred by the Customer. The
Customer shall have no obligation to reimburse DWR for any payments made
by DWR to CFI.
7. Investment Discretion. The parties recognize that CFI shall
have no authority to direct the futures interests investments to be made
for the Customer's account, but shall execute only such orders for the
Customer's account as DWR, Demeter or the Trading Advisor may direct from
time to time. However, the parties agree that CFI, and not the Trading
Advisor, shall have the authority and responsibility with regard to the
investment, maintenance, and management of the Customer's assets that are
held in segregated or secured accounts, as provided in Section 8 hereof.
8. Interest on Customer Funds. The Customer's assets deposited
with CFI will be segregated or secured in accordance with the Commodity
Exchange Act and CFTC regulations. All of such funds will be available
for margin for the Customer's trading and may be used solely as margin for
the Customer's trading.
CFI shall pay interest to DWR monthly based upon a daily
calculation of the U.S. Dollar balance equity (i.e., cash and open trade
equity) in the Customer's account as principal and the then prevailing 13-
week Treasury bill weekly auction discount rate, less 10 basis points,
divided by 360 as the interest rate. CFI shall pay to or earn interest
from DWR, as the case may be, monthly based upon a daily calculation of
the positive or negative non-U.S. Dollar balance (in each currency) in the
account and any U.S. Dollar balance on deposit at a foreign clearinghouse
at the actual interest rate at which earned or borrowed by CFI less actual
haircuts applied by a third-party other than CFI. If CFI lends foreign
currency to the account, CFI shall be entitled to charge the account the
prevailing borrowing rate for such currency, plus 10 basis points, in
accordance with the schedule of such rates provided by CFI.
The Customer understands that it will not receive any interest
income on its assets held by CFI other than that required to be paid by
DWR to Customer pursuant to Section 7 of the DWR Customer Agreement.
9. Recording Conversations. CFI consents to the electronic
recording, at the discretion of the Customer, Customer's agents or DWR, of
any or all telephone conversations with CFI (without automatic tone
warning device), the use of same as evidence by either party in any action
or proceeding arising out of this Agreement, and in the Customer's,
Customer's agents' or DWR's erasure, at its discretion, of any recording
as a part of its regular procedure for handling of recordings.
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<PAGE>
10. Delivery; Option Exercise.
(a) The Customer acknowledges that the making or accepting of
delivery pursuant to a futures contract may involve a much higher degree
of risk than liquidating a position by offset. CFI has no control over
and makes no warranty with respect to grade, quality or tolerances of any
commodity delivered in fulfillment of a contract.
(b) The Customer agrees to give CFI timely notice and
immediately on request to inform CFI if the Customer intends to make or
take delivery under a futures contract or to exercise an option contract.
If so requested, the Customer shall provide CFI with satisfactory
assurances that the Customer can fulfill the Customer's obligation to make
or take delivery under any contract. The Customer shall furnish CFI with
property deliverable by it under any contract in accordance with CFI's
instructions.
(c) CFI shall not have any obligation to exercise any long
option contract unless the Customer has furnished CFI with timely exercise
instructions and sufficient initial margin with respect to each underlying
futures contract.
11. Standard of Liability and Indemnity. Subject to Section 2
hereof, CFI and its affiliates (as defined below) shall not be liable to
the Customer, the General Partner or Limited Partners, or any of its or
their respective successors or assigns, for any act, omission, conduct, or
activity undertaken by or on behalf of the Customer pursuant to this
Agreement which CFI determines, in good faith, to be in the best interests
of the Customer, unless such act, omission, conduct, or activity by CFI or
its affiliates constituted misconduct or negligence.
The Customer shall indemnify, defend and hold harmless CFI and
its affiliates from and against any loss, liability, damage, cost or
expense (including attorneys' and accountants' fees and expenses incurred
in the defense of any demands, claims, or lawsuits) actually and
reasonably incurred arising from any act, omission, conduct, or activity
undertaken by CFI on behalf of the Customer pursuant to this Agreement,
including, without limitation, any demands, claims or lawsuits initiated
by a Limited Partner (or assignee thereof), provided that (i) CFI has
determined, in good faith, that the act, omission, conduct, or activity
giving rise to the claim for indemnification was in the best interests of
the Customer, and (ii) the act, omission, conduct, or activity that was
the basis for such loss, liability, damage, cost, or expense was not the
result of misconduct or negligence. Notwithstanding anything to the
contrary contained in the foregoing, neither CFI nor any of its affiliates
shall be indemnified by the Customer for any losses, liabilities, or
expenses arising from or out of an alleged violation of federal or state
securities laws unless (a) there has been a successful adjudication on the
merits of each count involving alleged securities law violations as to the
particular indemnitee, or (b) such claims have been dismissed with
prejudice on the merits by a court of competent jurisdiction as to the
particular indemnitee, or (c) a court of competent jurisdiction approves a
settlement of the claims against the particular indemnitee and finds that
indemnification of the settlement and related costs should be made,
provided, with regard to such court approval, the indemnitee must apprise
the court of the position of the SEC, and the positions of the respective
securities administrators of Massachusetts, Missouri, Tennessee and/or
those other states and jurisdictions in which the plaintiffs claim they
were offered or sold Units, with respect to indemnification for securities
laws violations before seeking court approval for indemnification.
Furthermore, in any action or proceeding brought by a Limited Partner in
the right of the Customer to which CFI or any affiliate thereof is a party
defendant, any such person shall be indemnified only to the extent and
subject to the conditions specified in this Section 11. The Customer
shall make advances to CFI or its affiliates hereunder only if: (i) the
demand, claim, lawsuit, or legal action relates to the performance of
duties or services by such persons to the Customer; (ii) such demand,
claim, lawsuit, or legal action is not initiated by a Limited Partner; and
(iii) such advances are repaid, with interest at the legal rate under
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<PAGE>
Delaware law, if the person receiving such advance is ultimately found
not to be entitled to indemnification hereunder.
CFI shall indemnify, defend and hold harmless the Customer and
its successors or assigns from and against any losses, liabilities,
damages, costs or expenses (including in connection with the defense or
settlement of claims; provided CFI has approved such settlement) incurred
as a result of the activities of CFI or its affiliates, provided, further,
that the act, omission, conduct, or activity giving rise to the claim for
indemnification was the result of bad faith, misconduct or negligence.
The indemnities provided in this Section 11 by the Customer to
CFI and its affiliates shall be inapplicable in the event of any losses,
liabilities, damages, costs, or expenses arising out of, or based upon,
any material breach of any warranty, covenant, or agreement of CFI
contained in this Agreement to the extent caused by such breach.
Likewise, the indemnities provided in this Section 11 by CFI to the
Customer and any of its successors and assigns shall be inapplicable in
the event of any losses, liabilities, damages, costs, or expenses arising
out of, or based upon, any material breach of any warranty, covenant, or
agreement of the Customer contained in this Agreement to the extent caused
by such breach.
As used in this Section 11, the term "affiliate" of CFI shall
mean: (i) any natural person, partnership, corporation, association, or
other legal entity directly or indirectly owning, controlling, or holding
with power to vote 10% or more of the outstanding voting securities of
CFI; (ii) any partnership, corporation, association, or other legal entity
10% or more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held with power to vote by CFI; (iii) any
natural person, partnership, corporation, association, or other legal
entity directly or indirectly controlling, controlled by, or under common
control with, CFI; or (iv) any officer or director of CFI.
Notwithstanding the foregoing, "affiliates" for purposes of this Section
11 shall include only those persons acting on behalf of CFI within the
scope of the authority of CFI, as set forth in this Agreement.
12. Term. This Agreement shall continue in effect until
terminated by any party giving not less than 60 days' prior written notice
of termination to the other parties. The Customer shall have the right to
terminate this Agreement
(i) at any time, effective upon thirty (30) days' prior
written notice to CFI, in the event that:
(A) CFI announces plans to discontinue the provision
of execution and clearing services with respect
to futures contracts, options on futures
contracts or acting as a dealer counterparty for
foreign exchange cash and forward contracts; or
(B) CFI merges or consolidates with or into or
acquires or is acquired by, another entity or
entities acting in concert (excluding any
intergroup reorganizations with any affiliates of
CFI or any capital contributions by, or sale of
CFI stock to any affiliates of CFI, provided that
the guarantee agreement between DWR and Credit
Agricole Indosuez S.A. dated as of July 31, 1997
remains in place or a comparable guaranty is
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substituted by a bank with a net worth and credit
rating equal to Credit Agricole Indosuez S.A.) in
a transaction involving the purchase or sale of
stock or substantially all of the assets of the
acquired entity or which involves a capital
contribution to or by such entity or entities (in
an amount representing fifty percent (50%) or
more of the book value of CFI's or such entity's
(or their respective affiliate's) net worth), or
the purchase or sale of stock representing fifty
percent (50%) or more of CFI's or such entity's
(or their respective affiliate's) outstanding
equity securities; and
(ii) at any time effective immediately upon written
notice to CFI in the event:
(A) CFI ceases to be registered or conduct business
as a futures commission merchant or discontinues
its membership or clearing membership on any
major futures interest exchange in the United
States (or any affiliated clearing corporation)
or in the NFA; or
(B) a receiver, liquidator or trustee of CFI is
appointed by court order and such order remains
in effect for more than thirty (30) days; or CFI
is adjudicated bankrupt or insolvent; or any of
CFI's property is sequestered by court order and
such order remains in effect for more than thirty
(30) days; or a petition is filed against CFI
under any bankruptcy, reorganization,
arrangement, insolvency, readjustment or debt,
dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect,
and is not dismissed within thirty (30) days
after such filing; or CFI files a petition in
voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect,
or consents to the filing of any petition against
it under any such law; or
(C) CFI, DWR or the Customer is ordered or otherwise
directed to terminate this Agreement by any
governmental, regulatory, or self-regulatory
authority.
Any such termination by any party shall be without penalty.
13. Complete Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the matters referred to
herein, and no other agreement, verbal or otherwise, shall be binding as
among the parties unless in writing and signed by the party against whom
enforcement is sought.
14. Assignment. This Agreement may not be assigned by any
party without the express written consent of the other parties.
15. Amendment. This Agreement may not be amended except by the
written consent of the parties and provided such amendment is consistent
with the Prospectus.
16. Notices. All notices required or desired to be delivered
under this Agreement shall be in writing and shall be effective when
delivered personally on the day delivered, or when given by registered or
certified mail, postage prepaid, return receipt requested, on the day of
receipt, addressed as follows (or to such other address as the party
entitled to notice shall hereafter designate in accordance with the terms
hereof):
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if to the Customer:
MORGAN STANLEY DEAN WITTER CHARTER ____________ L.P.
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Robert E. Murray
if to DWR:
DEAN WITTER REYNOLDS INC.
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Robert E. Murray
Senior Vice President
if to CFI:
CARR FUTURES INC
10 South Wacker Drive, Suite 1125
Chicago, Illinois 60606
Attn: Legal/Compliance Department
17. Survival. The provisions of this Agreement shall survive
the termination of this Agreement with respect to any matter arising while
this Agreement was in effect.
18. Headings. Headings of Sections herein are for the
convenience of the parties only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
19. Incorporation by Reference. The Futures Account Agreement
annexed hereto is hereby incorporated by reference herein and made a part
hereof to the same extent as if such document were set forth in full
herein. If any provision of this Agreement is or at any time becomes
inconsistent with the annexed document, the terms of this Agreement shall
control.
20. Governing Law; Venue. This Agreement shall be governed by,
and construed in accordance with, the law of the State of New York
(without regard to its choice of law principles). If any action or
proceeding shall be brought by a party to this Agreement or to enforce any
right or remedy under this Agreement, each party hereto hereby consents
and will submit to the jurisdiction of the courts of the State of New York
or any federal court sitting in the County, City and State of New York.
Any action or proceeding brought by any party to this Agreement to enforce
any right, assert any claim, or obtain any relief whatsoever in connection
with this Agreement shall be brought by such party exclusively in the
courts of the State of New York or any federal court sitting in the
County, City and State of New York.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
MORGAN STANLEY DEAN WITTER CHARTER
____________ L.P.
By: Demeter Management Corporation,
General Partner
By: _______________________________
Mark J. Hawley
President
DEAN WITTER REYNOLDS INC.
By: _______________________________
Mark J. Hawley
Executive Vice President
CARR FUTURES INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
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CARR FUTURES INC.
FUTURES ACCOUNT AGREEMENT
In consideration of the acceptance by Carr Futures Inc. ("Carr") of one or more
accounts of the undersigned ("Customer") (if more than one account is at any
time opened or reopened with Carr, all are covered by this Agreement and are
referred to individually and collectively as the "Account"), and Carr's
agreement to act as broker, directly or indirectly, or as dealer, for the
execution, clearance and/or carrying of transactions for the purchase and sale
of commodity interests, including commodities, forward contracts, commodity
futures contracts, options on commodity futures contracts and transaction
involving the exchange of futures for cash commodities or the exchange of
futures in connection with cash commodity transactions, Customer agrees as
follows:
1. APPLICABLE RULES AND REGULATIONS
The Account and each transaction therein shall be subject to the terms
of this Agreement and to (a) all applicable laws and the regulations,
rules and orders (collectively "regulations") of all regulatory and
self-regulatory organizations having jurisdiction and (b) the
constitution, by-laws, rules, regulations, orders, resolutions,
interpretations and customs and usages (collectively "rules") of the
market and any associated clearing organization (each an "exchange") on
or subject to the rules of which such transaction is executed and/or
cleared. The reference in the preceding sentence to exchange rules is
solely for Carr's protection and Carr's failure to comply therewith
shall not constitute a breach of this Agreement or relieve Customer of
any obligation or responsibility under this Agreement. Carr shall not
be liable to Customer as a result of any action by Carr, its officers,
directors, employees or agents to comply with any rule or regulation.
2. PAYMENTS TO CARR
Customer agrees to pay to Carr immediately on request (a) commissions,
give-up charges, fees and service charges as are in effect from time to
time, together with all applicable regulatory and self-regulatory
organization and exchange fees, charges and taxes; (b) the amount of
any debit balance or any other liability that may result from
transactions executed for the Account; and (c) interest on such debit
balance or liability at the prevailing rate charged by Carr at the time
such debit balance or liability arises and service charges on any such
debit balance or liability together with any reasonable costs and
attorneys' fees incurred in collecting any such debit balance or
liability. Customer acknowledges that Carr may charge commissions at
other rates to other customers.
3. CUSTOMER'S DUTY TO MAINTAIN ADEQUATE MARGIN
Customer shall at all times, and without prior notice or demand from
Carr, maintain adequate margin (also known as "performance bond") in
the Account so as to continually to meet the original and maintenance
margin requirements established by Carr for Customer. Carr may change
<PAGE>
such requirements from time to time at Carr's discretion. Such margin
requirements may exceed the margin requirements set by any exchange or
other regulatory authority and may vary from Carr's requirements for
other customers. Customer agrees, when so requested, orally or by
written notice, immediately (in no less than one hour) to wire transfer
(by federal bank wire system to the account of Carr) margin funds, and
to furnish Carr with names of bank officers for immediate verification
of such transfers. Customer acknowledges and agrees that Carr may
receive and retain as its own any interest, increment, profit, gain or
benefit, directly or indirectly, accruing from any of the funds Carr
receives from Customer.
4. DELIVERY; OPTION EXERCISE
Liquidating instructions on open positions maturing in a current
delivery month must be given to Carr at least five business days prior
to the first notice day in the case of long positions, and at least
five business days prior to the last trading day in the case of short
positions. Alternatively, sufficient funds to take delivery or the
necessary delivery documents must be delivered to Carr within the same
period described above. If funds, documents or instructions are not
received, Carr may, without notice, either liquidate Customer's
position or make or receive delivery on behalf of Customer upon such
terms and by such methods as Carr, in its sole discretion, determines.
If, at any time, Customer fails to deliver to Carr any property
previously sold by Carr on Customer's behalf in compliance with
commodity interest contracts, or Carr shall deem it necessary (whether
by reason of the requirements of any exchange, clearing house or
otherwise) to replace any securities, commodity interest contracts,
financial instruments, or other property previously delivered by Carr
for the Account of Customer with other property of like or equivalent
kind or amount, Customer hereby authorizes Carr, in its sole judgment,
to borrow or to buy any property necessary to make delivery thereof, or
to replace any such property previously delivered, or to deliver the
same to such other party or to whom delivery is to be made. Carr may
subsequently repay any borrowing or purchase thereof with property
purchased or otherwise acquired for the amount of Customer. Customer
shall pay Carr for any cost, loss and damages from the foregoing,
including, but not limited to, consequential damages, penalties and
fines which Carr may incur or which Carr may sustain from its inability
to borrow or buy any such property.
Customer understands that some exchanges and clearing houses have
established cut-off times for the tender of exercise instructions, and
that an option will become worthless if instructions are not delivered
before such expiration time. Customer also understands that certain
exchanges and clearing houses automatically will exercise some
"in-the-money" options unless instructed otherwise. Customer
acknowledges full responsibility for taking action either to exercise
or to prevent the exercise of an option contract, as the case may be,
and Carr is not required to take any action with respect to an option
contract, including without limitations any action to exercise an
option prior to its expiration date, or to prevent the automatic
exercise of an option, except upon Customer's express instructions.
Customer further understands that Carr may establish exercise cut-off
times which may be different from the times established by exchanges
and clearing houses.
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<PAGE>
Customer understands that (a) all short option positions are subject
to assignment at any time, including positions established on the same
day that exercises are assigned, and (b) exercised assignment notices
are allocated randomly from among all Carr customer's short options
positions which are subject to exercise. A more detailed description of
Carr's allocation procedures is available upon request.
5. FOREIGN CURRENCY
If Carr enters into any transaction for Customer effected in a
currency other than U.S. dollars: (a) any profit or loss caused by
changes in the rate of exchange for such currency shall be for
Customer's Account and risk and (b) unless another currency is
designated in Carr's confirmation of such transaction, all margin for
such transaction and the profit or loss on the liquidation of such
transaction shall be in U.S. dollars at a rate of exchange determined
by Carr in its discretion on the basis of then prevailing market rates
of exchange for such foreign currency.
6. CARR MAY LIMIT POSITIONS HELD
Customer agrees that Carr, at its discretion, may limit the number of
open positions (net or gross) which Customer may execute, clear and/or
carry with or acquire through it. Customer agrees (a) not to make any
trade which would have the effect or exceeding such limits, (b) that
Carr may require Customer to reduce open positions carried with Carr
and (c) that Carr may refuse to accept orders to establish new
positions. Carr may impose and enforce such limits, reduction or
refusal whether or not they are required by applicable law, regulations
or rules. Customer shall comply with all position limits established by
any regulatory or self-regulatory organization or any exchange. In
addition, Customer agrees to notify Carr promptly if Customer is
required to file position reports with any regulatory or
self-regulatory organization or with any exchange.
7. NO WARRANTY AS TO INFORMATION OR RECOMMENDATION
Customer acknowledges that:
(a) Any market recommendations and information Carr may
communicate to Customer, although based upon information
obtained from sources believed by Carr to be reliable, may be
incomplete and not subject to verification;
(b) Carr makes no representation, warranty or guarantee as to, and
shall not be responsible for, the accuracy or completeness of
any information or trading recommendation furnished to
Customer;
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<PAGE>
(c) Recommendations to Customer as to any particular transaction
at any given time may differ among Carr's personnel due to
diversity in analysis of fundamental and technical factors and
may vary from any standard recommendation made by Carr in its
research reports or otherwise; and
(d) Carr has no obligation or responsibility to update any market
recommendations, research or information it communicates to
Customer.
Customer understands that Carr and its officers, directors,
affiliates, stockholders, representatives or associated persons may
have positions in and may intend to buy or sell commodity interests
that are the subject of market recommendations furnished to Customer,
and that the market positions of Carr or any such officer, director,
affiliate, stockholder, representative or associated person may or may
not be consistent with the recommendations furnished to Customer by
Carr.
8. LIMITS ON CARR DUTIES; LIABILITY
Customer agrees:
(a) That Carr has no duty to apprise Customer of news or of the
value of any commodity interests or collateral pledged or in
any way to advise Customer with respect to the market;
(b) That the commissions which Carr receives are consideration
solely for the execution, reporting and carrying of Customer's
trades;
(c) If there is an Account Manager, an Account Manager's Agreement
for the Account Manager will be provided to Carr. Customer
represents it has received: (1) a disclosure document
concerning such Account Manager's trading advice, including,
in the event the Account Manager will trade options, the
options strategies to be utilized, or (2) a written statement
explaining why Account Manager is not required under
applicable law to provide such a disclosure document to
Customer; and
(d) Customer acknowledges, understands and agrees that Carr is in
no way responsible for any loss to Customer occasioned by the
actions of the Account Manager and Carr does not by
implication or otherwise endorse the operating methods or
trading strategies or programs of the Account Manager.
9. EXTRAORDINARY EVENTS
Customer agrees that Carr shall have no liability for damages, claims,
losses or expenses caused by any errors, omissions or delays resulting
from an act, condition or cause beyond the reasonable control of Carr,
including, but not limited to: war; insurrection; riot; strike; act of
God; fire; flood; extraordinary weather conditions; accident; action of
government authority; action of exchange, clearinghouse or clearing
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<PAGE>
organization; communications or power failure; equipment or software
malfunction; error, omission or delay in the report of transactions;
prices, exchange rates or other market or transaction information; or
the insolvency, bankruptcy, receivership, liquidation or other
financial difficulty of any bank, clearing broker, exchange, market,
clearinghouse or clearing organization.
10. INDEMNIFICATION OF CARR, CONTRIBUTION AND REIMBURSEMENT
(a) To the extent permitted by law, Customer agrees to indemnify
and hold harmless Carr and its shareholders, directors,
officers, employees, agents, affiliates and controlling persons
against any liability for damages, claims, losses or expenses
which they may incur as the result of: (x) Customer's violation
of federal or state laws or regulations, or of rules of any
exchange or self-regulatory organization; (y) any other breach
of this Agreement by Customer; or (z) any breach by Carr of
federal or state laws or regulations, or of the charter
provisions, by-laws, rules, margin or other requirements, of
the exchanges or self-regulatory organizations, provided that
such violation was caused by Carr's acting in good faith on
Customer's behalf. Such damages, claims, losses or expenses
shall include legal fees and expenses, costs of settling
claims, interest, and fines or penalties imposed by the
exchanges, self-regulatory organization or governmental
authority.
(b) Customer agrees that if the indemnification provided in
paragraph (a) above is held to be unavailable to Carr, the
parties hereto shall share in and contribute to such damages,
claims, losses or expenses in proportion to their relative
benefits from the transactions involved and their relative
degree of fault in causing the liability.
(c) Customer agrees to reimburse Carr and its shareholders,
directors, officers, employees, agents, affiliates and
controlling persons on demand for any costs incurred in
collecting any sums Customer owes under this Agreement and any
costs of successfully defending against claims asserted
against them by Customer.
11. NOTICES; TRANSMITTALS
Carr shall transmit all communications to Customer at Customer's
address, facsimile or telephone number set forth below or to such other
address as Customer may hereafter direct in writing. Customer shall
transmit all communications to Carr regarding this Agreement (except
routine inquiries concerning the Account) to 10 South Wacker Drive,
Suite 1100, Chicago, Illinois 60606; facsimile, (312) 441-4201,
Attention: Legal/Compliance Department. All payments and deliveries to
Carr shall be made as instructed by Carr from time to time and shall be
deemed received only when actually received by Carr.
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12. CONFIRMATION CONCLUSIVE
Confirmation of trades and any other notices sent to Customer shall be
conclusive and binding on Customer unless customer or Customer's agent
notifies Carr to the contrary (a) in the case of an oral report, orally
at the time received by Customer or its agent; or (b) in the case of a
written report or notice, in writing prior to opening of trading on the
business day next following receipt of the report. In addition, if
Customer has not received a written confirmation that a commodity
interest transaction has been executed within three business days after
Customer has placed an order with Carr to effect such transaction, and
has been informed or believes that such order has been or should have
been executed, then Customer immediately shall notify Carr thereof.
Absent such notice, Customer conclusively shall be deemed estopped to
object and to have waived any such objection to the failure to execute
or cause to be executed such transaction. Anything in this Section 12
notwithstanding, neither Customer nor Carr shall be bound by any
transaction or price reported in error.
13. SECURITY INTEREST
Customer hereby grants to Carr a first lien upon and a security
interest in any and all cash, securities, whether certificated or
uncertificated, security entitlements, investment property, financial
assets, foreign currencies, commodity interests and other property
(including securities and options) and the proceeds of all of the
foregoing (together the "Collateral") belonging to Customer or in which
Customer may have an interest, now or in the future, and held by Carr
or in Carr's control or carried in any of Customer's Accounts, or in
Customer's accounts carried under other agreements with Carr or its
affiliates. Such security interest is granted as security for the
performance by Customer of its obligations hereunder and for the
payment of all loans and other liabilities which Customer has or may in
the future have to Carr, whether under this Agreement or any other
agreement between the parties hereto. Customer agrees to execute such
further instruments, documents, filings and agreements as may be
requested at any time by Carr in order to perfect and maintain
perfected the foregoing lien and security interest. Carr, in its
discretion, may liquidate any Collateral to satisfy any margin or
Account deficiencies or to transfer the Collateral to the general
ledger account of Carr.
In the event that the provisions of Section 13, which relate to
Collateral in any account carried by Carr for Customer other than an
Account instituted hereunder, conflict with the agreement under which
such other account was instituted, such other agreement between Carr
and Customer shall take precedence over the provisions of this Section
13.
14. TRANSFER OF FUNDS
At any time and from time to time and without prior notice to
Customer, Carr may transfer from one Account to another Account in
which Customer has any interest, such excess funds, equities,
securities or other property as in Carr's judgment may be required for
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margin, or to reduce any debit balance or to reduce or satisfy any
deficits in such other Accounts except that no such transfer may be
made from a segregated Account subject to the Commodity Exchange Act to
another Account maintained by Customer unless either Customer has
authorized such transfer in writing or Carr is effecting such transfer
to enforce Carr's security interest pursuant to Section 13. Carr
promptly shall confirm all transfers of funds made pursuant hereto to
Customer in writing.
15. CARR'S RIGHT TO LIQUIDATE CUSTOMER POSITIONS
In addition to all other rights of Carr set forth in this Agreement:
(a) When directed or required by a regulatory or self-regulatory
organization or exchange having jurisdiction over Carr or
the Account;
(b) Whenever Carr reasonably considers it necessary for its
protection because of margin requirements or otherwise;
(c) If Customer or any affiliate of Customer repudiates, violates,
breaches or fails to perform on a timely basis any term,
covenant or condition on its part to be performed under this
Agreement or another agreement with Carr;
(d) If a case in bankruptcy is commenced or if a proceeding under
any insolvency or other law for the protection of creditors or
for the appointment of a receiver, liquidator, trustee,
conservator, custodian or similar officer is filed by or
against Customer or any affiliate of Customer, or if Customer
or any affiliate of Customer makes or proposes to make any
arrangement or composition for the benefit of its creditors,
or if Customer (or any such affiliate) or any or all of its
property is subject to any agreement, order, judgment or
decree providing for Customer's dissolution, winding-up,
liquidation, merger, consolidation, reorganization or for the
appointment of a receiver, liquidator, trustee, conservator,
custodian or similar officer of Customer, such affiliate or
such property;
(e) Carr is informed of Customer's death or mental incapacity; or
(f) If an attachment or similar order is levied against the
Account or any other account maintained by a Customer or any
affiliate of Customer with Carr;
Carr shall have the right to (i) satisfy any obligations due Carr out
of any Customer's property (also referred to as "Collateral") in Carr's
custody or control, (ii) liquidate any or all of Customer's commodity
interest positions, such liquidation shall include transactions
involving the exchange of futures for cash commodities or the exchange
of futures in connection with cash commodity transactions, (iii) cancel
any or all of Customer's outstanding orders, (iv) treat any or all of
Customer's obligations due Carr as immediately due and payable, (v)
sell any or all of Customer's property in Carr's custody or control in
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such manner as Carr determines to be commercially reasonable, and/or
(vi) terminate any or all of Carr's obligations for future performance
to Customer, all without any notice to or demand on Customer if deemed
necessary by Carr. Any sale hereunder may be made in any commercially
reasonable manner. Customer agrees that a prior demand, call or notice
shall not be considered a waiver of Carr's right to act without demand
or notice as herein provided, that Customer shall at all times be
liable for the payment of any debit balance owing in each Account upon
demand whether occurring upon a liquidation as provided under this
Section 15 or otherwise under this Agreement, and that in all cases
Customer shall be liable for any deficiency remaining in each Account
in the event of liquidation thereof in whole or in part together with
interest thereon and all costs relating to liquidation and collection
(including reasonable attorneys' fees). In the event that the
provisions of Section 15, which relate to Collateral in any account
carried by Carr for Customer other than an Account instituted
hereunder, conflict with the agreement under which such other account
was instituted, such other agreement between Carr and Customer shall
take precedence over the provisions of this Section 15.
16. CUSTOMER REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Customer represents and warrants to and agrees with Carr that:
(a) Customer has full power and authority to enter into this
Agreement and to engage in the transactions and perform its
obligations hereunder and contemplated hereby, and:
(1) If Customer is a corporation or partnership, Customer
represents and warrants that (a) it is duly organize
and in good standing under the laws of the
jurisdiction in which it is established and in every
state in which it does business; (b) is empowered to
enter into and perform this Agreement and to
effectuate transactions in commodity interests,
financial instruments and foreign currency as
contemplated hereby; (c) that Customer has determined
that trading in commodity interests is appropriate
for Customer, is prudent in all respects and does not
and will not violate any statute, rule, regulation,
judgment or decree to which Customer is subject or
bound; (d) that Customer has had a least one year's
prior experience in effectuating transactions in
commodity interests, financial instruments, and
foreign currency as contemplated hereby; and (e) no
person or entity has any interest in or control of
the Account to which this Agreement pertains except
as disclosed by Customer to Carr in writing.
(2) If Customer is a trust, Customer represents and
warrants that (a) it is a duly formed and existing
trust under the laws of the state of its formation or
such other laws as are applicable, including ERISA or
similar state law, and the party or parties
designated as trustee or trustees by Customer to Carr
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<PAGE>
in writing submitted herewith constitute the only or
all of the proper trustees thereof; (b) the trustee
or trustees are empowered to enter into and perform
this Agreement and to effectuate transactions in
commodity interests, financial instruments, and
foreign currency as contemplated hereby; (c) the
trustee or trustees make the representations set
forth in Section 1 hereof as if the term trustee(s)
were substituted for the term Customer therein; and
(d) no person or entity has any interest in or
control of the Account to which this Agreement
pertains except as disclosed by Customer to Carr in
writing.
(b) Neither Customer nor any partner, director, officer, member,
manager or employee of Customer nor any affiliate of Customer
is a partner, director, officer, member, manager or employee
of a futures commission merchant, introducing broker, bank,
broker-dealer, exchange or self-regulatory organization or an
employee or commissioner of the Commodity Futures Trading
Commission (the "CFTC"), except as previously disclosed in
writing to Carr;
(c) Any financial statements or other information furnished in
connection therewith are true, correct and complete. Except as
disclosed in writing, (i) Customer is not a commodity pool or
is exempt from registration under the rules of the CFTC, and
(ii) Customer is acting solely as principal and no one other
than Customer has any interest in any Account of Customer.
Customer hereby authorizes Carr to contact such banks,
financial institutions and credit agencies as Carr shall deem
appropriate for verification of the information contained
herein;
(d) Customer has determined that trading in commodity interests is
appropriate for Customer, is prudent in all respects and does
not and will not violate Customer's charter or by-laws (or
other comparable governing document) or any law, rule,
regulation, judgment, decree, order or agreement to which
Customer or its property is subject or bound;
(e) As required by CFTC regulations, Customer shall create, retain
and produce upon request of the applicable contract market,
the CFTC or other regulatory authority documents (such as
contracts, confirmations, telex printouts, invoices an
documents of title) with respect to cash transactions
underlying exchanges of futures for cash commodities or
exchange of futures in connection with cash commodity
transactions;
(f) Customer consents to the electronic recording, at Carr's
discretion, of any or all telephone conversations with Carr
(without automatic tone warning device); the use of same as
evidence by either party in any action or proceeding arising
out of the Agreement and in Carr's erasure, at its discretion,
of any recording as part of its regular procedure for handling
of recordings;
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(g) Absent a separate written agreement between Customer and Carr
with respect to give-ups, Carr, in its discretion, may, but
shall have no obligation to, accept from other brokers
commodity interest transactions executed by such brokers on an
exchange for Customer and proposed to be "given-up" to Carr
for clearance and/or carrying in the Account;
(h) Carr, for an on behalf of Customer, is authorized and
empowered to place orders for commodity interest transactions
through one or more electronic or automated trading systems
maintained or operated by or under the auspices of an
exchange, that Carr shall not be liable or obligated to
Customer for any loss, damage, liability, cost or expense
(including but not limited to loss of profits, loss of use,
incidental or consequential damages) incurred or sustained by
Customer and arising in whole or in part, directly or
indirectly, from any fault, delay, omission, inaccuracy or
termination of a system or Carr's inability to enter, cancel
or modify an order on behalf of Customer on or through a
system. The provisions of this Section 16(h) shall apply
regardless of whether any customer claim arises in contract,
negligence, tort, strict liability, breach or fiduciary
obligations or otherwise; and
(i) If Customer is subject to the Financial Institution Reform,
Recovery and Enforcement Act of 1989, the certified
resolutions set forth following this Agreement have been
caused to be reflected in the minutes of Customer's Board of
Directors (or other comparable governing body) and this
Agreement is and shall be, continuously from the date hereof,
an official record of Customer.
Customer agrees to promptly notify Carr in writing if any of the
warranties and representations contained in this Section 16 become
inaccurate or in any way cease to be true, complete and correct.
17. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of the parties hereto, their
successors and assigns, and shall be binding upon the parties hereto,
their successors and assigns, provided, however, that this Agreement is
not assignable by any party without the prior written consent of the
other parties..
18. MODIFICATION OF AGREEMENT BY CARR; NON-WAIVER PROVISION
This Agreement may only be altered, modified or amended by mutual
written consent of the parties. The rights and remedies conferred upon
Carr shall be cumulative, and its forbearance to take any remedial
action available to it under this Agreement shall not waive its right
at any time or from time to time thereafter to take such action.
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<PAGE>
19. SEVERABILITY
If any term or provision hereof or the application thereof to any
persons or circumstances shall to any extent be contrary to any
exchange, government or self-regulatory regulation or contrary to any
federal, state or local law or otherwise be invalid or unenforceable,
the remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those as to which it
is contrary, invalid or unenforceable, shall not be affected thereby.
20. CAPTIONS
All captions used herein are for convenience only, are not a part of
this Agreement, and are not to be used in construing or interpreting
any aspect of this Agreement.
21. TERMINATION
This Agreement shall continue in force until written notice of
termination is given by Customer or Carr. Termination shall not relieve
either party of any liability or obligation incurred prior to such
notice. Upon giving or receiving notice of termination, Customer will
promptly take all action necessary to transfer all open positions in
each Account to another futures commission merchant.
22. ENTIRE AGREEMENT
This Agreement (as amended by the attached Customer Agreement dated
the date hereof into which this Agreement is incorporated by reference)
constitutes the entire agreement between Customer and Carr with respect
to the subject matter hereof and supersedes any prior agreements
between the parties with respect to such subject matter.
23. GOVERNING LAW; CONSENT TO JURISDICTION
(a) In case of a dispute between Customer and Carr arising out of
or relating to the making or performance of this Agreement or
any transaction pursuant to this Agreement (i) this Agreement
and its enforcement shall be governed by the laws of the State
of Illinois without regard to principles of conflicts of laws,
and (ii) Customer will bring any legal proceeding against Carr
in, and Customer hereby consents in any legal proceeding by
Carr to the jurisdiction of, any state or federal court
located within Chicago, Illinois, in connection with all legal
proceedings arising directly, indirectly or otherwise in
connection with, out of, related to or from Customer's
Account, transactions contemplated by this Agreement or the
breach thereof. Customer hereby waives all objections
Customer, at any time, may have as to the propriety of the
court in which any such legal proceedings may be commenced.
Customer also agrees that any service of process mailed to
Customer at any address specified to Carr shall be deemed a
proper service of process on the undersigned. Customer agrees
that venue of all proceedings shall be in Chicago, Illinois.
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<PAGE>
(b) Notwithstanding the provisions of Section 23(a)(ii), Customer
may elect at this time to have all disputes described in this
Section resolved by arbitration. To make such election,
Customer must sign the Arbitration Agreement set forth in
Section 24. Notwithstanding such election, any question
relating to whether Customer or Carr has commenced an
arbitration proceeding in a timely manner, whether a dispute
is within the scope of the Arbitration Agreement or whether a
party (other than Customer or Carr) has consented to
arbitration and all proceedings to compel arbitration shall be
determined by a court as specified in Section 23(a)(ii).
24. ARBITRATION AGREEMENT (OPTIONAL)
Every dispute between Customer and Carr arising out of or relating to
the making or performance of this Agreement or any transaction pursuant
to this Agreement, shall be settled by arbitration in accordance with
the rules, then in effect, of the National Futures Association, the
contract market upon which the transacting giving rise to the claim was
executed, or the National Association of Securities Dealers as Customer
may elect. If Customer does not make such election by registered mail
addressed to Carr at 10 South Wacker Drive, Suite 1100, Chicago,
Illinois 60606, Attention: Legal/Compliance Department, within 45 days
after demand by Carr that the Customer make such election, then Carr
may make such election. Carr agrees to pay any incremental fees which
may be assessed by a qualified forum for making available a "mixed
panel" of arbitrators, unless the arbitrators determine that Customer
has acted in bad faith in initiating or conducting the proceedings.
Judgment upon any aware rendered by the arbitrators may be entered in
any court having jurisdiction thereof.
THREE FORUMS EXIST FOR THE RESOLUTION OF COMMODITY DISPUTES: CIVIL
COURT LITIGATION, REPARATIONS AT THE COMMODITY FUTURES TRADING
COMMISSION("CFTC") AND ARBITRATION CONDUCTED BY A SELF-REGULATORY OR
OTHER PRIVATE ORGANIZATION.
THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES BY
ARBITRATION MAY IN SOME CASES PROVIDE MANY BENEFITS TO CUSTOMERS,
INCLUDING THE ABILITY TO OBTAIN AN EXPEDITIOUS AND FINAL RESOLUTION OF
DISPUTES WITHOUT INCURRING SUBSTANTIAL COSTS. THE CFTC REQUIRES,
HOWEVER, THAT EACH CUSTOMER INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF
ARBITRATION AND THAT YOUR CONSENT OT THIS ARBITRATION AGREEMENT BE
VOLUNTARY.
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<PAGE>
BY SIGNING THIS AGREEMENT, YOU (1) MAY BE WAIVING YOUR RIGHT TO SUE IN
A COURT OF LAW AND (2) ARE AGREEING TO BE BOUND BY ARBITRATION OF ANY
CLAIMS OR COUNTERCLAIMS WHICH YOU OR CARR MAY SUBMIT TO ARBITRATION
UNDER THIS AGREEMENT. YOU ARE NOT HOWEVER, WAIVING YOUR RIGHT TO ELECT
INSTEAD TO PETITION THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER
SECTION 14 OF THE COMMODITY EXCHANGE ACT WITH RESPECT TO ANY DISPUTE
WHICH MAY BE ARBITRATED PURSUANT TO THIS AGREEMENT. IN THE EVENT A
DISPUTE ARISES, YOU WILL BE NOTIFIED IF CARR INTENDS TO SUBMIT THE
DISPUTE TO ARBITRATION. IF YOU BELIEVE A VIOLATION OF THE COMMODITY
EXCHANGE ACT IS INVOLVED AND IF YOU PREFER TO REQUEST A SECTION 14
"REPARATIONS" PROCEEDINGS BEFORE THE CFTC, YOU WILL HAVE 45 DAYS FROM
THE DATE OF SUCH NOTICE IN WHICH TO MAKE THAT ELECTION.
YOU NEED NOT AGREE TO THIS ARBITRATION AGREEMENT TO OPEN AN ACCOUNT
WITH CARR.
See 17 CFR 1890.1-180.5.
Acceptance of this arbitration agreement requires a separate signature
on page 15.
25. CONSENT TO TAKE THE OTHER SIDE OF ORDERS (OPTIONAL)
Without its prior notice, Customer agrees that when Carr executes sell
or buy orders on Customer's behalf, Carr, its directors, officers,
employees, agents, affiliates, and any floor broker may take the other
side of customer's transaction through any Account of such person
subject to its being executed a prevailing prices in accordance with
and subject to the limitations and conditions, if any, contained in
applicable rules and regulations.
26. AUTHORIZATION TO TRANSFER FUNDS (OPTIONAL)
Without limiting other provisions herein, Carr is authorized to
transfer from any segregated Account subject to the Commodity Exchange
Act carried by Carr for the Customer to any other Account carried by
Carr for the Customer such amount of excess funds as in Carr's judgment
may be necessary at any time to avoid a margin call or to reduce a
debit balance in said Account. It is understood that Carr will confirm
in writing each such transfer of funds made pursuant to this
authorization within a reasonable time after such transfer.
27. ELECTRONIC TRANSMISSION OF STATEMENTS (OPTIONAL)
Customer elects and consents to receive transmission of statements of
transactions and statements of account solely by electronic means,
including without limitation, by electronic mail or facsimile. Customer
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<PAGE>
shall not incur any costs or fees in connection with the receipt of
such statements by electronic transmission. Customer shall receive such
statements by electronic transmission until such time as it revokes its
consent in writing to Carr.
28. SUBORDINATION AGREEMENT
(Applies only to Accounts with funds held in foreign currencies)
Funds of customers trading on United States contract markets may be
held in accounts denominated in a foreign currency with depositories
located outside or inside the United States or its territories if the
customer is domiciled in a foreign country or if the funds are held in
connection with contracts priced and settled in a foreign currency.
Such accounts are subject to the risk that events could occur which
hinder or prevent the availability of these funds for distribution to
customers. Such accounts also may be subject to foreign currency
exchange rate risks.
If authorized below, Customer authorizes the deposit of funds into
such depositories. For customer domiciled in the United States, this
authorization permits the holding of funds in regulated accounts only
if such funds are used to margin, guarantee, or secure positions in
such contracts or accrue as a result of such positions. In order to
avoid the possible dilution of other customer funds, a customer agrees
by accepting this subordination agreement that his claims based on such
funds will be subordinated as described below in the unlikely event
both of the following conditions are met: (1) Carr is placed in
receivership or bankruptcy, and (2) there are insufficient funds
available for distribution denominated in the foreign currency as to
which the customer has a claim to satisfy all claims against those
funds.
By initialing the Subordination Agreement below, Customer agrees that
if both of the conditions listed above occur, its claim against Carr's
assets attributable to funds held overseas in a particular foreign
currency may be satisfied out of segregated customer funds held in
accounts denominated in dollars or other foreign currencies only after
each customer whose funds are held in dollars or in such other foreign
currencies receives its pro-rata portion of such funds. It is further
agreed that in no event may a customer whose funds are so held receive
more than its pro-rata share of the aggregate pool consisting of funds
held in dollars, funds held in the particular foreign currency, and
non-segregated assets of Carr.
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<PAGE>
OPTIONAL ELECTIONS/ACKNOWLEDGMENT
The following provisions, which are set forth in this Agreement, need not be
entered into to open the Account. Customer agrees that its optional elections
are as follows:
SIGNATURE REQUIRED FOR EACH ELECTION
<TABLE>
<S> <C>
ARBITRATION AGREEMENT --------------------------------------------------
(Agreement Paragraph 24) (Date)
CONSENT TO TAKE THE OTHER SIDE OF ORDERS (Agreement
Paragraph 25) X 12-1-97
--------------------------------------------------
(Date)
AUTHORIZATION TO TRANSFER FUNDS (Agreement Paragraph 26)
--------------------------------------------------
(Date)
CONSENT TO RECEIVE STATEMENTS BY ELECTRONIC TRANSMISSION
(Agreement Paragraph 27)
--------------------------------------------------
(Date)
ACKNOWLEDGMENT OF SUBORDINATION AGREEMENT
(Agreement Paragraph 28) (Required for
accounts holding non-U.S. currency) X 12-1-97
--------------------------------------------------
(Date)
</TABLE>
HEDGE ELECTION
|_| Customer confirms that all transactions in the Account will represent
bona fide hedging transactions, as defined by the Commodity Futures
Trading Commission, unless Carr is notified otherwise not later than
the time an order is placed for the Account:
Pursuant to CFTC Regulation 190.06(d), Customer specifies and agrees, with
respect to hedging transactions in the Account, that in the unlikely event of
Carr's bankruptcy, it prefers that the bankruptcy trustee [check appropriate
box]:
A) |_| Liquidate all open contracts without first seeking instructions either
from or on behalf of Customer.
B) |_| Attempt to obtain instructions with respect to the disposition of all
open contracts.
(If neither box is checks, Customer shall be deemed to elect A).)
<PAGE>
ACKNOWLEDGMENT OF RECEIPT OF RISK DISCLOSURE STATEMENTS
The undersigned hereby acknowledges its separate receipt from Carr, and its
understanding of each of the following documents prior to opening of the
Account:
* Risk Disclosure Statement for Futures and Options
* LME Risk Warning Notice
* NYMEX ACCESSSM Risk Disclosure Statement
* Globex(R) Customer Information and Risk Disclosure Statement
* Project A(TM) Customer Information Statement
* Questions & Answers on Flexible Options Trading at the CBOT
* CME Average Pricing System Disclosure Statement
* Special Notice to Foreign Brokers and Foreign Traders
REQUIRED SIGNATURES
CUSTOMER
The undersigned has received, read, understands and agrees to all the provisions
of this Agreement and the separate risk disclosure statements enumerated above
and agrees to promptly notify Carr in writing if any of the warranties and
representations contained herein become inaccurate or in any way cease to be
true, complete and correct.
- ------------------------------------------------------------------------------
Customer name(s)
By: DEMETER MANAGEMENT CORPORATION
December 1, 1997
By: ______________________________________________________ ________________
Authorized signature(s) Date
Mark J. Hawley, President
[If applicable, print name and title of signatory]
CARR FUTURES INC.
Accepted and Agreed:
Carr Futures Inc.
By: _________________________________ By: _________________________________
Title: _______________________________ Title: _______________________________
Date: December 1, 1997 Date: ________________________________
<PAGE>
Exhibit 10.01(b)
<PAGE>
CARR FUTURES INC.
10 South Wacker Drive, Suite 1100
Chicago, IL 60606
Facsimile (312) 441-4201
INTERNATIONAL FOREIGN EXCHANGE MASTER AGREEMENT
MASTER AGREEMENT dated as of __________________, by and
between CARR FUTURES INC., a Delaware corporation and MORGAN STANLEY DEAN WITTER
CHARTER L.P.
SECTION 1. DEFINITIONS
Unless otherwise required by the context, the following
terms shall have the following meanings in the Agreement:
"Agreement" has the meaning given to it in Section 2.2.
"Base Currency", as to a Party, means the Currency agreed to
as such in relation to it in Part VII of the Schedule.
"Base Currency Rate" means as to a Party and any amount the
cost (expressed as a percentage rate per annum) at which
that Party would be able to fund that amount from such
sources and for such periods as it in its reasonable
discretion from time to time decide, as determined in good
faith by it.
"Business Day" means (i) a day which is a Local Banking day
for the applicable Designated Office of both Parties, or
(ii) solely in relation to delivery of a Currency, a day
which is a Local Banking Day in relation to that Currency.
"Close-Out Amount" has the meaning given to it in Section
5.1.
"Close-Out Date" means a day on which, pursuant to the
provisions of Section 5.1, the Non-Defaulting Party closes
out and liquidates Currency Obligations or such a close-out
and liquidation occurs automatically.
"Closing Gain" means, as to the Non-Defaulting Party, the
difference described as such in relation to a particular
Value Date under the provisions of Section 5.1.
"Closing Loss" means, as to the Non-Defaulting Party, the
difference described as such in relation to a particular
Value Date under the provisions of Section 5.1.
<PAGE>
"Confirmation" means a writing (including telex, facsimile,
or other electronic means from which it is possible to
produce a hard copy) evidencing an FX Transaction governed
by the Agreement which shall specify (i) the Parties thereto
and their Designated Offices through which they are
respectively acting, (ii) the amounts of the Currencies
being bought or sold and by which Party, (iii) the Value
Date, and (iv) any other term generally included in such a
writing in accordance with the practice of the relevant
foreign exchange market.
"Credit Support Document" means, as to a Party (the "first
Party") a guaranty, hypothecation agreement, margin or
security agreement or document, or any other document
containing an obligation of a third party ("Credit Support
Provider") or of the first Party in favor of the other Party
supporting any obligations of the first Party hereunder.
"Credit Support Provider" has the meaning given to it in the
definition of Credit Support Document.
"Currency" means money denominated in the lawful currency of
any country or the Ecu.
"Currency Obligation" means any obligation of a Party to
deliver a Currency pursuant to an FX Transaction governed by
the Agreement, or pursuant to the application of Sections
3.3(a) or 3.3(b).
"Custodian" has the meaning given to it in the definition of
Event of Default.
"Defaulting Party" has the meaning given to it in the
definition of Event of Default.
"Designated Office(s)" means, as to a Party, the office(s)
specified in Part II of the Schedule hereto, as such
Schedule may be modified from time to time by agreement of
the Parties.
"Effective Date" means the date of this Master agreement.
"Event of Default" means the occurrence of any of the
following with respect to a Party (the "Defaulting Party",
the other Party being the "Non-Defaulting Party"):
(i) the Defaulting Party shall default in
any payment under the Agreement to the
Non-Defaulting Party with respect to any
sum when due under any Currency
Obligation or pursuant to the Agreement
and such failure shall continue for two
(2) Business Days after written notice
of non-payment given by the
Non-Defaulting Party to the Defaulting
Party;
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<PAGE>
(ii) the Defaulting Party shall commence a
voluntary case or other proceeding
seeking liquidation, reorganization or
other similar relief with respect to
itself or to its debts under any
bankruptcy, insolvency or similar law,
or seeking the appointment of a trustee,
receiver, liquidator, conservator,
administrator, custodian or other
similar official (each, a "Custodian")
of it or any substantial part of its
assets; or shall take any corporate
action to authorize any of the
foregoing;
(iii) an involuntary case or other proceeding
shall be commenced against the
Defaulting Party seeking liquidation,
reorganization or other similar relief
with respect to it or its debts under
any bankruptcy, insolvency or similar
law or seeking the appointment of a
Custodian of it or any substantial part
of its assets, and such involuntary case
or other proceeding is not dismissed
within five (5) days of its institution
or presentation;
(iv) the Defaulting Party is bankrupt or
insolvent, as defined under any
bankruptcy or insolvency law applicable
to such party;
(v) the Defaulting Party shall otherwise be
unable to pay its debts as they become
due;
(vi) the Defaulting Party or any Custodian
acting on behalf of the Defaulting Party
shall disaffirm, disclaim or repudiate
any Currency Obligation;
(vii) (a) any representation or warranty made
or deemed made by the Defaulting Party
pursuant to the Agreement or pursuant to
any Credit Support Documents shall prove
to have been false or misleading in any
material respect as at the time it was
made or given and one (1) Business Day
has elapsed after the Non-Defaulting
Party has given the Defaulting Party
written notice thereof, or (b) the
Defaulting Party fails to perform or
comply with any obligation assumed by it
under the Agreement (other than an
obligation to make payment of the kind
referred to in clause (i) of this
definition of Event of Default), and
such failure is continuing thirty (30)
days after the Non-Defaulting Party has
given the Defaulting Party written
notice thereof;
(viii) the Defaulting Party consolidates or
amalgamates with or merges into or
transfers all or substantially all its
assets to another entity and (a) the
creditworthiness of the resulting,
surviving or transferee entity is
materially weaker than that of the
Defaulting Party prior to such action,
or (b) at the time of such
consolidation, amalgamation, merger or
transfer the resulting, surviving or
transferee entity fails to assume all
the obligations of the Defaulting Party
under the Agreement by operation of law
or pursuant to an agreement satisfactory
to the Non-Defaulting Party;
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<PAGE>
(ix) by reason of any default, or event of
default or other similar condition or
event, any Specified Indebtedness (being
Specified Indebtedness of an amount
which, when expressed in the Currency of
the Threshold Amount, is in aggregate
equal to or in excess of the Threshold
amount) of the Defaulting Party or any
Credit Support Provider in relation to
it; (a) is not paid on the due date
therefor and remains unpaid after any
applicable grace period has elapsed, or
(b) becomes, or becomes capable at any
time of being declared, due and payable
under agreements or instruments
evidencing such Specified Indebtedness
before it would otherwise have been due
and payable.
(x) the Defaulting Party is in breach of or
default under any Specified Transaction
and any applicable grace period has
elapsed, and there occurs any
liquidation or early termination of, or
acceleration of obligations under that
Specified Transaction or the Defaulting
Party (or any Custodian on its behalf)
disaffirms, disclaims or repudiates the
whole or any part of a Specified
Transaction; or
(xi) (a) any Credit Support Provider in
relation to the Defaulting Party or the
Defaulting Party itself fails to comply
with or perform any agreement or
obligation to be complied with or
performed by it in accordance with the
applicable Credit Support Document and
such failure is continuing after any
applicable grace period has elapsed; (b)
any Credit Support Document relating to
the Defaulting Party expires or ceases
to be in full force and effect prior to
the satisfaction of all obligations of
the Defaulting Party under the
Agreement, unless otherwise agreed in
writing by the Non-Defaulting Party; (c)
the Defaulting Party or its Credit
Support Provider (or, in either case,
any Custodian acting on its behalf)
disaffirms, disclaims or repudiates, in
whole or in part, or challenges the
validity of, the Credit Support
Document; (d) any representation or
warranty made or deemed made by any
Credit Support Provider pursuant to any
Credit Support Document shall prove to
have been false or misleading in any
material respect as at the time it was
made or given or deemed made or given
and one (1) Business Day has elapsed
after the Non-Defaulting Party has given
the Defaulting Party written notice
thereof; or (e) any event set out in
(ii) to (vi) or (viii) to (x) above
occurs in respect of the Credit Support
Provider.
"FX Transaction" means any transaction between the Parties
for the purchase by one Party of an agreed amount in one
Currency against the sale by it to the other of an agreed
amount in another Currency both such amounts being
deliverable on the same Value Date, and in respect of which
transaction the Parties have agreed (whether orally,
electronically or in writing): the Currencies involved, the
amounts of such Currencies to be purchased and sold, which
Party will purchase which Currency and the Value Date.
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<PAGE>
"Local Banking Day" means (i) for any Currency a day on
which commercial banks effect deliveries of that Currency in
accordance with the market practice of the relevant foreign
exchange market, and (ii) for any Party, a day in the
location of the applicable Designated Office of such Party
on which commercial banks in that location are not
authorized or required by law to close.
"Master Agreement" means the terms and conditions set forth
in this master agreement.
"Matched Pair Novation Netting Office(s)" means in respect
of a Party the Designated Office(s) specified in Part V of
the Schedule, as such Schedule may be modified from time to
time by agreement of the Parties.
"Non-Defaulting Party" has the meaning given to it in the
definition of Event of Default.
"Novation Netting Office(s)" means in respect of a Party the
Designated Office(s) specified in Part IV of the Schedule,
as such Schedule may be modified from time to time by
agreement of the Parties.
"Parties" means the parties to the Agreement and shall
include their successors and permitted assigns (but without
prejudice to the application of Clause (viii) of the
definition Event of Default); and the term "Party" shall
mean whichever of the Parties is appropriate in the context
in which such expression may be used.
"Proceedings" means any suit, action or other proceedings
relating to the Agreement.
"Settlement Netting Office(s)" means, in respect of a Party,
the Designated Office(s) specified in Part III of the
Schedule, as such Schedule may be modified from time to time
by agreement of the Parties.
"Specified Indebtedness" means any obligation (whether
present or future, contingent or otherwise, as principal or
surety or otherwise) in respect of borrowed money, other
than in respect of deposits received.
"Specified Transaction" means any transaction (including an
agreement with respect thereto) between one Party to the
Agreement (or any Credit Support Provider of such Party) and
the other Party to the Agreement (or any Credit Support
Provider of such Party) which is a rate swap transaction,
basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity linked swap, equity or
equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
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<PAGE>
cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect
to any of these transactions) or any combination of any of
the foregoing transactions.
"Split Settlement" has the meaning given to it in the
definition of Value Date.
"Threshold Amount" means the amount specified as such for
each Party in Part IX of the Schedule.
"Value Date" means, with respect to any FX Transaction, the
Business Day (or where market practice in the relevant
foreign exchange market in relation to the two Currencies
involved provides for delivery of one Currency on one date
which is a Local Banking Day in relation to that Currency
but not to the other Currency and for delivery of the other
Currency on the next Local Banking Day in relation to that
other Currency ("Split Settlement") the two Local Banking
Days in accordance with that market practice) agreed by the
Parties for delivery of the Currencies to be purchased and
sole pursuant to such FX Transaction, and, with respect to
any Currency Obligation, the Business Day (or, in the case
of Split Settlement, Local Banking Day) upon which the
obligation to deliver Currency pursuant to such Currency
Obligation is to be performed.
SECTION 2. FX TRANSACTIONS
2.1 Scope of the Agreement. (a) Unless otherwise agreed in
writing by the Parties, each FX Transaction entered into
between two Designated Offices of the Parties on or after
the Effective Date shall be governed by the Agreement. (b)
All FX Transaction between any two Designated Offices of the
Parties outstanding on the Effective Date which are
identified in Part I of the Schedule shall be FX
Transactions governed by the Agreement and every obligation
of the Parties thereunder to deliver a Currency shall be a
Currency Obligation under the Agreement.
2.2 Single Agreement. This Master Agreement, the particular
terms agreed between the Parties in relation to each and
every FX Transaction governed by this Master Agreement (and,
insofar as such terms are recorded in a Confirmation, each
such Confirmation), the Schedule to this Master Agreement
and all amendments to any of such items shall together form
the agreement between the Parties (the "Agreement") and
shall together constitute a single agreement between the
Parties. The Parties acknowledge that all FX Transactions
governed by the Agreement are entered into in reliance upon
the fact that all items constitute a single agreement
between the Parties.
2.3 Confirmations. FX Transactions governed by the Agreement
shall be promptly confirmed by the Parties by Confirmations
exchanged by mail, telex, facsimile or other electronic
means. The failure by a Party to issue a Confirmation shall
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<PAGE>
not prejudice or invalidate the terms of any FX Transaction
governed by the Agreement.
SECTION 3. SETTLEMENT AND NETTING
3.1 Settlement. Subject to Section 3.2, each Party shall
deliver to the other Party the amount of the Currency to be
delivered by it under each Currency Obligation on the Value
Date for such Currency Obligation.
3.2 Net Settlement/Payment Netting. If on any Value Date
more than one delivery of a particular Currency is to be
made between a pair of Settlement Netting Offices, then each
Party shall aggregate the amounts of such Currency
deliverable by it and only the difference between these
aggregate amounts shall be delivered by the Party owing the
larger aggregate amount to the other Party, and, if the
aggregate amounts are equal, no delivery of the Currency
shall be made.
3.3 Novation Netting.
(a) By Currency. If the Parties enter into an FX
Transaction governed by the Agreement through a pair of
Novation Netting Offices giving rise to a Currency
Obligation for the same Value Date and in the same
Currency as a then existing Currency Obligation between
the same pair of Novation Netting Offices, then
immediately upon entering into such FX Transaction,
each such Currency Obligation shall automatically and
without further action be individually canceled and
simultaneously replaced by a new Currency Obligation
for such Value Date determined as follows: the amounts
of such Currency that would otherwise have been
deliverable by each Party on such Value Date shall be
aggregated and the Party with the larger aggregate
amount shall have a new Currency Obligation to deliver
to the other Party the amount of such Currency by which
its aggregate amount exceeds the other Party's
aggregate amount, provided that if the aggregate
amounts are equal, no new Currency Obligation shall
arise. This Clause (a) shall not affect any other
Currency Obligation of a Party to deliver any different
Currency on the same Value Date.
(b) By Matched Pair. If the Parties enter into an FX
Transaction governed by the Agreement between a pair of
Matched Pair Novation Netting Offices then the
provisions of Section 3.3(a) shall apply only in
respect of Currency Obligations arising by virtue of FX
Transactions governed by the Agreement entered into
between such pair of Matched Pair Novation Netting
Offices and involving the same pair of Currencies and
the same Value Date.
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3.4 General.
(a) Inapplicability of Sections 3.2 and 3.3. The provisions
of Sections 3.2 and 3.3 shall not apply if a Close-Out
Date has occurred or an involuntary case or other
proceeding of the kind described in Clause (iii) of the
definition of Event of Default has occurred without
being dismissed in relation to either Party.
(b) Failure to Record. The provisions of Section 3.3 shall
apply notwithstanding that either Party may fail to
record the new Currency Obligations in its books.
(c) Cutoff Date and Time. The provisions of Section 3.3 are
subject to any cut-off date and cut-off time agreed
between the applicable Novation Netting Offices and
Matched Pair Novation Netting Offices of the Parties.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Representations and Warranties. Each Party represents
and warrants to the other Party as of the date of the
Agreement and as of the date of each FX Transaction governed
by the Agreement that: (i) it has authority to enter into
the Agreement and such FX Transaction; (ii) the persons
executing the Agreement and entering into such FX
Transaction have been duly authorized to do so; (iii) the
Agreement and the Currency Obligations created under the
Agreement are binding upon it and enforceable against it in
accordance with their terms (subject to applicable
principals of equity) and do not and will not violate the
terms of any agreements to which such Party is bound; (iv)
no Event of Default has occurred and is continuing with
respect to it; and (v) it acts as principal in entering into
each and every FX Transaction governed by the Agreement.
4.2 Covenants. Each Party covenants to the other Party that:
(i) it will at all times obtain and comply with the terms of
and do all that is necessary to maintain in full force and
effect all authorization, approvals, licenses and consents
required to enable it to lawfully perform its obligations
under the Agreement; and (ii) it will promptly notify the
other Party of the occurrence of any Event of Default with
respect to itself or any Credit Support Provider in relation
to it.
SECTION 5 CLOSE-OUT AND LIQUIDATION
5.1 Circumstances of Close-Out and Liquidation. If an Event
of Default has occurred and is continuing then the
Non-Defaulting Party shall have the right to close-out and
liquidate in the manner described below all, but not less
than all, outstanding Currency Obligations (except to the
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<PAGE>
extent that in the good faith opinion of the Non-Defaulting
Party certain of such Currency Obligations may not be
closed-out and liquidated under applicable law), by notice
to the Defaulting Party. If "Automatic Termination" is
specified as applying to a Party in Part VI of the Schedule,
then, in the case of an Event of Default specified in
Clauses (ii) or (iii) of the definition thereof with respect
to such Party, such close-out and liquidation shall be
automatic as to all outstanding Currency Obligations. Where
such close-out and liquidation is to be effected, it shall
be effected by:
(i) closing out each outstanding Currency Obligation
(including any Currency Obligation which has not been
performed and in respect of which the Value Date is
on or precedes the Close-Out Date) so that each such
Currency Obligation is canceled and the
Non-Defaulting Party shall calculate in good faith
with respect to each such canceled Currency
Obligation, the Closing Gain or, as appropriate, the
Closing Loss, as follows:
(x) for each Currency Obligation in a Currency other than
the Non-Defaulting Party's Base Currency calculate a
"Close-Out Amount" by converting:
(A) in the case of a Currency Obligation whose Value
Date is the same as or is later than the
Close-Out Date, the amount of such Currency
Obligation; or
(B) in the case of a Currency Obligation whose Value
Date precedes the Close-Out Date, the amount of
such Currency Obligation increased, to the extent
permitted by applicable law, by adding interest
thereto from the Value Date to the Close-Out Date
at the rate representing the cost (expressed as a
percentage rate per annum) at which the
Non-Defaulting Party would have been able, on
such Value Date, to fund the amount of such
Currency Obligation for the period from the Value
Date to the Close-Out Date
into such Base Currency at the rate of exchange at
which the Non-Defaulting Party can buy or sell, as
appropriate, such Base Currency with or against the
Currency of such Currency Obligation for delivery on
the Value Date of that Currency Obligation, or if such
Value Date precedes the Close-Out Date, for delivery on
the Close-Out Date; and
(y) determine in relation to each Value Date: (A) the sum
of all Close-Out Amounts relating to Currency
Obligations under which, and of all Currency
Obligations in the Non-Defaulting Party's Base Currency
under which, the Non-Defaulting Party would otherwise
have been obliged to deliver the relevant amount to the
Defaulting Party on that Value Date, adding (to the
extent permitted by applicable law), in the case of a
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Currency Obligation in the Non-Defaulting Party's Base
Currency whose Value Date precedes the Close-Out Date,
interest for the period from the Value Date to the
Close-Out Date at the Non-Defaulting Party's Base
Currency Rate as at such Value Date for such period;
and (B) the sum of all Close-Out Amounts relating to
Currency Obligations under which, and of all Currency
Obligations in the Non-Defaulting Party's Base Currency
under which, the Non-Defaulting Party would otherwise
have been entitled to receive the relevant amount on
that Value Date, adding (to extent permitted by
applicable law), in the case of a Currency Obligation
in the Non-Defaulting Party's Base Currency whose Value
Date precedes the Close-Out Date, interest for the
period from the Value Date to the Close-Out Date at the
Non-Defaulting Party's Base Currency Rate as at such
Value Date for such period;
(z) if the sum determined under (y)(A) is greater than the
sum determined under (y)(B), the differences shall be
the Closing Loss for such Value Date; if the sum
determined under (y)(A) is less than the sum under
(y)(B), the difference shall be the Closing Gain for
such Value Date;
(ii) to the extent permitted by applicable law, adjusting
the Closing Gain or Closing Loss for each Value Date
falling after the Close-Out Date to present value by
discounting the Closing Gain or Closing Loss from the
Value Date to the Close-Out Date, at the Non-Defaulting
Party's Base Currency Rate, or at such other rate as
may be prescribed by applicable law;
(iii) aggregating the following amounts so that all such
amounts are netted into a single liquidated amount
payable by or to the Non-Defaulting Party: (x) the sum
of the Closing Gains for all Value Dates (discounted to
present value, where appropriate, in accordance with
the provisions of Clause (ii) of this Section 5.1)
which for the purposes of this aggregation shall be a
positive figure) and (y) the sum of the Closing Losses
for all Value Dates (discounted to present value, where
appropriate, in accordance with the provision of Clause
(ii) of the Section 5.1) (which for the purposes of the
aggregation shall be negative figure); and
(iv) if the resulting net amount is positive, it shall be
payable by the Defaulting Party to the Non-Defaulting
Party, and if it is negative, then the absolute value
of such amount shall be payable by the Non-Defaulting
Party to the Defaulting Party.
5.2 Calculation of Interest. Any addition of interest or
discounting required under Clause (i) or (ii) or Section 5.1
shall be calculated on the basis of the actual number of
days elapsed and of a year of such number of days as is
customary for transactions involving the relevant Currency
in the relevant foreign exchange market.
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<PAGE>
5.3 Other FX Transactions. Where close-out and liquidation
occurs in accordance with Section 5.1, the Non-Defaulting
Party shall also be entitled to close-out and liquidate, to
the extent permitted by applicable law, any other FX
Transactions entered into between the Parties which are then
outstanding in accordance with provisions of Section 5.1, as
if each obligation of a Party to deliver a Currency
thereunder were a Currency Obligation.
5.4 Payment and Late Interest. The amount payable by one
Party to the other Party pursuant to the provisions of
Sections 5.1 and 5.3 shall be paid by the close of business
on the Business Day following such close-out and liquidation
(converted as required by applicable law into any other
Currency, any costs of such conversion to be borne by, and
deducted from any payment to, the Defaulting Party). To the
extent permitted by applicable law, any amount required to
be paid under Sections 5.1 or 5.3 and not paid on the due
date therefor, shall bear interest at the Non-Defaulting
Party's Base Currency Rate plus 1% per annum (or, if
conversion is required by applicable law into some other
Currency, either (x) the average rate at which overnight
deposits in such other Currency are offered by major banks
in the London interbank market as of 11:00 a.m. (London
time) plus 1% per annum or (y) such other rate as may be
prescribed by such applicable law) for each day for which
such amount remains unpaid.
5.5 Suspension of Obligations. Without prejudice to the
foregoing, so long as a Party shall be, in default in
payment or performance to the Non-Defaulting Party under the
Agreement and so long as the Non-Defaulting Party has not
exercised its rights under Section 5.1, the Non-Defaulting
Party may, at its election and without penalty, suspend its
obligation to perform under the Agreement.
5.6 Expenses. The Defaulting Party shall reimburse the
Non-Defaulting Party in respect of all out-of-pocket
expenses incurred by the Non-Defaulting Party (including
fees and disbursements of counsel, including attorneys who
may be employees of the Non-Defaulting Party) in connection
with any reasonable collection or other enforcement
proceedings related to the payments required under this
Section 5.
5.7 Reasonable Pre-Estimate. The Parties agree that the
amounts recoverable under this Section 5 are a reasonable
preestimate of loss and not a penalty. Such amounts are
payable for the loss of bargain and the loss of protection
against future risks and, except as otherwise provided in
the Agreement, neither Party will be entitled to recover any
additional damages as a consequence of such losses.
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<PAGE>
5.8 No Limitation of Other Rights; Set-Off. The
Non-Defaulting Party's rights under this Section 5 shall be
in addition to, and not in limitation or exclusion of, any
other rights which the Non-Defaulting Party may have
(whether by agreement, operation of law or otherwise). To
the extent not prohibited by applicable law, the
Non-Defaulting Party shall have a general right of set-off
with respect to all amounts owed by each Party to the other
Party, whether due and payable or not due and payable
(provided that any amount not due and payable at the time of
such set-off shall, if appropriate, be discounted to present
value in a commercially reasonable manner by the
Non-Defaulting Party). The Non-Defaulting Party's rights
under this Section 5.8 are subject to Section 5.7.
SECTION 6. ILLEGALITY, IMPOSSIBILITY AND FORCE MAJEURE
If either Party is prevented from or hindered or delayed by
reason of force majeure or act of State in the delivery or
receipt of any Currency in respect of a Currency Obligation
or if it becomes or, in the good faith judgment of one of
the Parties, may become unlawful or impossible for either
Party to deliver or receive any Currency which is the
subject of a Currency Obligation, then either Party may, by
notice to the other Party, require the close-out and
liquidation of each affected Currency Obligation in
accordance with the provisions of Sections 5.1, 5.2 and 5.4
and, for the purposes of enabling the calculations
prescribed by Sections 5.1, 5.2 and 5.4 to be effected, the
Party unaffected by such force majeure, act of State,
illegality or impossibility (or if both Parties are so
affected, whichever Party gave the relevant notice) shall
effect the relevant calculations as if it were the
Non-Defaulting Party. Nothing in this Section 6 shall be
taken as indicating that the Party treated as the Defaulting
Party for the purposes of calculations required hereby has
committed any breach or default.
SECTION 7. PARTIES TO RELY ON THEIR OWN EXPERTISE
Each Party shall enter into each FX Transaction governed by
the Agreement in reliance only upon its own judgment.
Neither Party holds itself out as advising, or any of its
employees or agents as having the authority to advise, the
other Party as to whether or not it should enter into any
such FX Transaction or as to any subsequent actions relating
thereto or on any other commercial matters concerned with
any FX Transaction governed by the Agreement, and neither
Party shall have any responsibility or liability whatsoever
in respect of any advice of this nature given, or views
expressed, by it or any of such persons to the other Party,
whether or not such advice is given or such views are
expressed at the request of the other Party.
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<PAGE>
SECTION 8. MISCELLANEOUS
8.1 Currency Indemnity. The receipt or recovery by either
Party (the "first Party") of any amount in respect of an
obligation of the other Party (the "second Party") in a
Currency other than that in which such amount was due,
whether pursuant to a judgment of any court or pursuant to
Section 5 or 6, shall discharge such obligation only to the
extent that on the first day on which the first Party is
open for business immediately following such receipt, the
first Party shall be able, in accordance with normal banking
practice, to purchase the Currency in which such amount was
due with the Currency received. If the amount so purchasable
shall be less than the original amount of the Currency in
which such amount was due, the second party shall, as a
separate obligation and notwithstanding any judgment of any
court, indemnify the first Party against any loss sustained
by it. The second Party shall in any event indemnify the
first Party against any costs incurred by it in making any
such purchase of Currency.
8.2 Assignments. Neither Party may assign, transfer or
charge, or purport to assign, transfer or charge, its rights
or its obligations under the Agreement or any interest
therein without the prior written consent of the other
Party, and any purported assignment, transfer or charge in
violation of this Section 8.2 shall be void.
8.3 Telephonic Recording. The Parties agree that each may
electronically record all telephonic conversations between
them and that any such tape recordings may be submitted in
evidence in any Proceedings relating to the Agreement. In
the event of any dispute between the Parties as to the terms
of an FX Transaction governed by the Agreement or the
Currency Obligations thereby created, the Parties may use
electronic recordings between the persons who entered into
such FX Transaction as the preferred evidence of the terms
of such FX Transaction, notwithstanding the existence of any
writing to the contrary.
8.4 No Obligation. Neither Party to this Agreement shall be
required to enter into any FX Transaction with the other.
8.5 Notices. Unless otherwise agreed, all notices,
instructions and other communications to be given to a Party
under the Agreement shall be given to the address, telex (if
confirmed by the appropriate answerback), facsimile
(confirmed if requested) or telephone number and to the
individual or department specified by such Party in Part VII
of the Schedule attached hereto. Unless otherwise specified,
any notice, instruction or other communication given in
accordance with this Section 8.5 shall be effective upon
receipt.
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<PAGE>
8.6 Termination. Each of the Parties hereto may terminate
this Agreement at any time by seven days' prior written
notice to the other Party delivered as prescribed above, and
termination shall be effective at the end of such seventh
day; provided, however, that any such termination shall not
affect any outstanding Currency Obligations, and the
provisions of the Agreement shall continue to apply until
all the obligations of each Party to the other under the
Agreement have been fully performed.
8.7 Severability. In the event any one or more of the
provisions contained in the Agreement should be held
invalid, illegal or unenforceable in any respect under the
law of any jurisdiction, the validity, legality and
enforceability of the remaining provisions under the law of
such jurisdiction, and the validity, legality and
enforceability of such and any other provisions under the
law of any other jurisdiction, shall not in any way be
affected or impaired thereby.
8.8 Waiver. No indulgence or concession granted by a Party
and no omission or delay on the part of a Party in
exercising any right, power or privilege under the Agreement
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
8.9 Master Agreement. Where one of the Parties to the
Agreement is domiciled in the United States, the Parties
intend that the Agreement shall be a master agreement as
defined in 11 U.S. C. Section 101(55) (C) and 12 U.S.C
Section 1821(e) (8) (D) (vii).
8.10 Time of Essence. Time shall be of the essence in the
Agreement.
8.11 Headings. Headings in the Agreement are for ease of
reference only.
8.12 Wire Transfers. Every payment or delivery of Currency
to be made by a Party under the Agreement shall be made by
wire transfer, or its equivalent, of same day (or
immediately available) and freely transferable funds to the
bank account designated by the other Party for such purpose.
8.13 Adequate Assurances. If the Parties have so agreed in
Part X of the Schedule, the failure by a Party ("first
Party") to give adequate assurances of its ability to
perform any of its obligations under the Agreement within
two (2) Business Days of a written request to do so when the
other Party ("second Party") has reasonable grounds for
insecurity shall be an Event of Default under the Agreement,
in which case during the pendency of a reasonable request by
the second party to the first Party for adequate assurances
of the first Party's ability to perform its obligations
under the Agreement, the second Party may, at its election
and without penalty, suspend its obligations under the
Agreement.
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<PAGE>
8.14 FDICIA Representation. If the Parties have so agreed in
Part XI of the Schedule, each Party represents and warrants
to the other Party that it is a financial institution under
the provisions of Title IV of the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA"), and the
Parties agree that this Agreement shall be a netting
contract, as defined in FDICIA, and each receipt or payment
or delivery obligation under the Agreement shall be a
covered contractual payment entitlement or covered
contractual payment obligation, respectively, as defined in
and subject to FDICIA.
8.15 Confirmation Procedures. In relation to Confirmations,
unless either Party objects to the terms contained in any
Confirmation within three (3) Business Days of receipt
thereof, or such shorter time as may be appropriate given
the Value Date of the FX Transaction, the terms of such
Confirmation shall be deemed correct and accepted absent
manifest error, unless a corrected Confirmation is sent by a
Party within such three Business Days, or shorter period, as
appropriate, in which case the Party receiving such
corrected Confirmation shall have three (3) Business Days,
or shorter period, as appropriate, after receipt thereof to
object to the terms contained in such corrected
Confirmation. In the event of any conflict between the terms
of a Confirmation and this Master Agreement, the terms of
this Master Agreement shall prevail and the Confirmation
shall not modify the terms of this Master Agreement.
8.16 Amendments. No amendment, modification or waiver of the
Agreement will be effective unless in writing executed by
each of the Parties.
SECTION 9. LAW AND JURISDICTION
9.1 Governing Law. The Agreement shall be governed by, and
construed in accordance with the laws of the State of New
York without giving effect to conflict of laws provisions.
9.2 Consent to Jurisdiction. With respect to any
Proceedings, each Party irrevocably (i) submits to the
non-exclusive jurisdiction or the courts of the State of New
York and the United States District Court located in the
Borough of Manhattan in New York City, and (ii) waives any
objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives
any claim that such court does not have jurisdiction over
such Party. Nothing in the Agreement precludes either Party
from bringing Proceedings in any other jurisdiction.
9.3 Waiver of Immunities. Each Party irrevocably waives to
the fullest extent permitted by applicable law, with respect
to itself and its revenues and assets (irrespective of their
use or intended use) all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any courts, (iii) relief by way of
injunction, order for specific performance or for recovery
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<PAGE>
of property, (iv) attachment of its assets (whether before
or after judgment) and (v) execution or enforcement of any
judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of
any jurisdiction, and irrevocably agrees to the extent
permitted by applicable law that it will not claim any such
immunity in any Proceedings. Each Party consents generally
in respect of any Proceedings to the giving of any relief or
the issue of any process in connection with such
Proceedings, including, without limitation, the making,
enforcement or execution against any property whatsoever of
any order or judgment which may be made or given in such
Proceedings.
9.4 Waiver of Jury Trial. Each Party hereby irrevocably
waives any and all right to trial by jury in any
Proceedings.
IN WITNESS WHEREOF, the Parties have caused the Agreement to
be duly executed by their respective authorized officers as of the date first
written above.
CARR FUTURES INC.
By ______________________________
Name:
Title:
MORGAN STANLEY DEAN WITTER CHARTER
___________________ L.P.
By_______________________________
Name:
Title:
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<PAGE>
SCHEDULE
Part I: Scope of Agreement
The Agreement shall apply to all FX Transactions outstanding
between any two Designated Offices of the Parties on the
Effective Date.
Part II: Designated Offices
Each of the following shall be Designated Office:
<TABLE>
<CAPTION>
Party A Part B
<S> <C> <C>
_________________________ L.P. Carr Futures Inc.
c/o Demeter Management Corporation ______________________________
Two World Trade Center ______________________________
62nd Floor ______________________________
New York, NY 10048 ______________________________
Attn: __________________________ Telephone No: (___) ____________
Telephone No.: (212) _____________ Facsimile No: (___) ____________
Facsimile No.: (212) _____________
</TABLE>
Part III: Settlement Netting Offices
Net settlement provisions of Section 3.2 shall apply to the
following Settlement Netting Offices:
Party A Part B
Same as above. Same as above.
Part IV: Novation Netting Offices
Netting by novation provisions of Section 3.3(a) shall apply
to the following Novation Netting Offices and shall apply to
all FX Transactions:
Party A Part B
Same as Part III Same as Part III
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Part V: Matched Pair Novation Netting Offices
Not applicable
Part VI: Automatic Termination
The "Automatic Termination" provision in Section 5.1 shall
not apply to _____________ and shall not apply to Dean
Witter Reynolds Inc.
Part VII: Notices
Address specified in the Confirmation or otherwise by the
Designated Office sending the same; provided that any notice
sent to _____________________ under Section 1 ("Event of
Default"), 5,6,8.6 or 9.2 shall be copied to:
Dean Witter Reynolds Inc., Two World Trade Center, 65th
Floor, New York, New York 10048, Attn: Deputy General
Counsel
Party A Part B
Same as in Part II Same as in Part II
Provided that any notice sent to Party B under Section 1
("Event of Default"), 5, 6, 8..6, or 9.2 shall be copied to:
Carr Futures Inc., ___________________
________________________________
Attn: __________________________
Part VIII: Base Currency
Party A Part B
U.S. Dollars U.S Dollars
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Exhibit 10.02
<PAGE>
FORM OF
MANAGEMENT AGREEMENT
THIS AGREEMENT, made as of the ___ day of ____, 1998 among
MORGAN STANLEY DEAN WITTER CHARTER ______________ L.P., a Delaware limited
partnership (the "Partnership"), DEMETER MANAGEMENT CORPORATION, a Delaware
corporation (the "General Partner"), and ___________________________, a
________________ (the "Trading Advisor").
WITNESSETH:
WHEREAS, the Partnership has been organized pursuant to the
Limited Partnership Agreement dated as of ______ ___, 1998 (the "Limited
Partnership Agreement"), to trade, buy, sell, spread, or otherwise acquire,
hold, or dispose of commodities (which may include foreign currencies,
mortgage-backed securities, money market instruments, financial instruments and
any other securities or items which are now, or may hereafter be, the subject of
futures contract trading) domestic and foreign commodity futures contracts,
commodity forward contracts, foreign exchange commitments, options on physical
commodities and on futures contracts, spot (cash) commodities and currencies,
and any rights pertaining thereto (hereinafter referred to collectively as
"futures interests") and securities (such as United States Treasury bills)
approved by the Commodity Futures Trading Commission (the "CFTC") for investment
of customer funds;
WHEREAS, the Partnership is a member partnership of the Morgan
Stanley Dean Witter Charter Series (the "Fund Group") pursuant to which units of
limited partnership interest ("Units") of such member partnerships will be sold
to investors in a common prospectus. Units of the Partnership are being offered
pursuant to a Registration Statement on Form S-1 (No. 333-_____) (as amended
from time to time, the "Registration Statement") filed under the Securities Act
of 1933, as amended (the "Securities Act"), and a final Prospectus dated _____
___, 1998, constituting a part thereof (as amended and supplemented from time to
time) (the "Prospectus). Such Units can be exchanged by a limited partner of a
member partnership of the Fund Group for Units of other member partnerships of
the Fund Group at 100% of the respective Net Asset Value thereof;
WHEREAS, the Trading Advisor has extensive experience trading
in futures interests and is willing to provide certain services and undertake
certain obligations as set forth herein;
WHEREAS, the Partnership desires the Trading Advisor to act as
trading advisor for the Partnership and to make investment decisions with
respect to futures interests for the Partnership's Net Assets and the Trading
Advisor desires so to act; and
<PAGE>
WHEREAS, the Partnership, the General Partner and the Trading
Advisor wish to enter into this Management Agreement which, among other things,
sets forth certain terms and conditions upon which the Trading Advisor will
conduct futures interests trading for the Partnership;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Undertakings in Connection with the Initial and
Continuing Offering of Units.
(a) The Trading Advisor agrees with respect to the initial and
continuing offering of Units: (i) to make all disclosures regarding itself, its
principals and affiliates, its trading performance, its trading programs,
systems, methods, and strategies (subject to the need, in the reasonable
discretion of the Trading Advisor, to preserve the secrecy of proprietary
information concerning such programs, systems, methods, and strategies), any
client accounts over which it has discretionary trading authority (other than
the names of any such clients), and otherwise, as the Partnership may reasonably
require to comply with any applicable federal or state law or rule or
regulation, including those of the Securities and Exchange Commission (the
"SEC"), the CFTC, the National Futures Association (the "NFA"), the National
Association of Securities Dealers, Inc. (the "NASD") or any other regulatory
body, exchange, or board; and (ii) otherwise to cooperate with the Partnership,
the General Partner, and Dean Witter Reynolds Inc., the selling agent for the
Partnership ("DWR") by providing information regarding the Trading Advisor in
connection with the preparation and filing of the Registration Statement and
Prospectus, including any pre-or post-effective amendments or supplements
thereto, with the SEC, CFTC, NFA, NASD, and with appropriate governmental
authorities as part of making application for registration of the Units under
the securities or Blue Sky laws of such jurisdictions as the Partnership may
deem appropriate. As used herein, the term "principal" shall have the meaning as
defined in Section 4.10(e) of the CFTC's Regulations and the term "affiliate"
shall mean an individual or entity that directly or indirectly controls, is
controlled by, or is under common control with, the Trading Advisor.
(b) The General Partner, in its sole discretion and at any
time may (i) withdraw the SEC registration of the Units, or (ii) discontinue the
offering of Units.
(c) If, while Units continue to be offered and sold, the
Trading Advisor becomes aware of any materially untrue or misleading statement
or omission regarding itself or any of its principals or affiliates in the
Registration Statement or Prospectus, or of the occurrence of any event or
change in circumstances which would result in there being any materially untrue
or misleading statement or omission in the Registration Statement or Prospectus
regarding itself or any of its principals or affiliates, the Trading Advisor
shall promptly notify the General Partner and shall cooperate with it in the
preparation of any necessary amendments or supplements to the Registration
Statement or Prospectus. Neither the Trading Advisor nor any of its principals,
or affiliates, or any stockholders, officers, directors, or employees thereof
shall distribute the Prospectus or selling literature or shall engage in any
selling activities whatsoever in connection with the continuing offering of
Units except as may be specifically requested by the General Partner.
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<PAGE>
2. Duties of the Trading Advisor.
(a) The Trading Advisor hereby agrees to act as Trading
Advisor for the Partnership and, as such, shall have sole authority and
responsibility for directing the investment and reinvestment of the Net Assets
of the Partnership on the terms and conditions and in accordance with the
prohibitions and trading policies set forth in this Agreement, or the Prospectus
or as otherwise provided in writing to the Trading Advisor; provided, however,
that the General Partner may override the instructions of the Trading Advisor to
the extent necessary (i) to comply with the trading policies of the Partnership
and with applicable speculative position limits, (ii) to pay the Partnership's
expenses, (iii) to the extent the General Partner believes doing so is necessary
for the protection of the Partnership, (iv) to terminate the futures interests
trading of the Partnership, or (v) to comply with any applicable law or
regulation. The General Partner agrees not to override any such instructions for
the reasons specified in clause (ii) of the preceding sentence unless the
Trading Advisor fails to comply with a request of the General Partner to make
the necessary amount of funds available to the Partnership within five calendar
days of such request. The Trading Advisor shall not be liable for the
consequences of any decision by the General Partner to override instructions of
the Trading Advisor, except to the extent that the Trading Advisor is in breach
of this Agreement. In performing services to the Partnership the Trading Advisor
may not materially alter the trading program(s) used by the Trading Advisor in
investing and reinvesting the Partnership's Net Assets in futures interests as
described in the Prospectus without the prior written consent of the General
Partner, it being understood that changes in the futures interests traded shall
not be deemed an alteration in the Trading Advisor's trading program(s).
(b) The Trading Advisor shall:
(i) Exercise good faith and due care in trading
futures interests for the account of the Partnership in accordance with
the prohibitions and trading policies of the Partnership described in
the Prospectus and as otherwise provided in writing to the Trading
Advisor. The Trading Advisor shall trade the Partnership's Net Assets
pursuant to the specified trading program(s) described in the
Prospectus (with such changes and additions to such trading program(s)
as the Trading Advisor, from time to time, incorporates into its
trading program(s) for accounts the size of the Partnership), unless
the Trading Advisor is instructed by the General Partner to trade the
Partnership's Net Assets pursuant to any one or more of the Trading
Advisor's other trading programs described in the Prospectus.
(ii) Subject to reasonable assurances of
confidentiality by the General Partner and the Partnership, provide the
General Partner, within 30 calendar days of a request therefor by the
General Partner, with information comparing the performance of the
Partnership's account and the performance of all other client accounts
directed by the Trading Advisor using the trading programs used by the
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Trading Advisor for the Partnership over a specified period of time. In
providing such information, the Trading Advisor may take such steps as
are necessary to assure the confidentiality of the Trading Advisor's
clients' identities. The Trading Advisor shall, upon the General
Partner's request, consult with the General Partner concerning any
discrepancies between the performance of such other accounts and the
Partnership's account. The Trading Advisor shall promptly inform the
General Partner of any material discrepancies of which the Trading
Advisor is aware. The General Partner acknowledges that different
trading programs, strategies or implementation methods may be utilized
for different accounts, accounts with different trading policies,
accounts experiencing differing inflows or outflows of equity, accounts
that commence trading at different times, accounts which have different
portfolios or different fiscal years and that such differences may
cause divergent trading results.
(iii) Upon request of the General Partner and subject
to reasonable assurances of confidentiality by the General Partner and
the Partnership, provide the General Partner with all material
information concerning the Trading Advisor other than proprietary
information (including, without limitation, information relating to
changes in control, personnel, trading approach, or financial
condition). The General Partner acknowledges that all trading
instructions made by the Trading Advisor will be held in confidence by
the General Partner, except to the extent necessary to conduct the
business of the Partnership or as required by law.
(iv) Inform the General Partner when the Trading
Advisor's open positions maintained by the Trading Advisor exceed the
Trading Advisor's applicable speculative position limits.
(c) All purchases and sales of futures interests pursuant to
this Agreement shall be for the account, and at the risk, of the Partnership and
not for the account, or at the risk, of the Trading Advisor or any of its
stockholders, directors, officers, or employees, or any other person, if any,
who controls the Trading Advisor within the meaning of the Securities Act. All
brokerage fees arising from trading by the Trading Advisor shall be for the
account of the Partnership. The Trading Advisor makes no representations as to
whether its trading will produce profits or avoid losses.
(d) Notwithstanding anything in this Agreement to the
contrary, the Trading Advisor shall assume financial responsibility for any
errors committed or caused by it in transmitting orders for the purchase or sale
of futures interests for the Partnership's account, including payment of the
floor brokerage commissions, exchange and NFA fees, and other transaction
charges and give-up charges incurred on such trades. The Trading Advisor's
errors shall include, but not be limited to, inputting improper trading signals
or communicating incorrect orders for execution. The Trading Advisor shall not
be responsible for errors committed or caused by DWR or Carr Futures, Inc.
("CFI"). In addition, the Trading Advisor shall not be responsible for errors
committed or caused by any other floor broker or futures commission merchant
executing trades unless such other floor broker or futures commission merchant
was selected by the Trading Advisor and the Partnership is unable, after
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reasonable effort, to recover from the floor broker or futures commission
merchant any losses or costs resulting from such errors, notwithstanding any
give-up agreement. The Trading Advisor shall have an affirmative obligation
promptly to notify the General Partner of its own errors, and the Trading
Advisor shall use its best efforts to identify and promptly notify the General
Partner of any order or trade which the Trading Advisor reasonably believes was
not executed in accordance with its instructions.
(e) Prior to the commencement of trading, the General Partner
on behalf of the Partnership shall deliver to the Trading Advisor a trading
authorization appointing the Trading Advisor the Partnership's attorney-in-fact
for such purpose.
3. Designation of Additional Trading Advisors and
Reallocation of Net Assets.
If the General Partner at any time deems it to be in the best
interests of the Partnership, the General Partner may designate an additional
trading advisor or advisors for the Partnership and may apportion to such
additional trading advisor(s) the management of such amounts of Net Assets (as
defined in Section 6(c) hereof) as the General Partner shall determine in its
absolute discretion. The designation of an additional trading advisor or
advisors and the apportionment of Net Assets to any such trading advisor(s)
pursuant to this Section 3 shall neither terminate this Agreement nor modify in
any regard the respective rights and obligations of the Partnership, the General
Partner and the Trading Advisor hereunder. In the event that an additional
trading advisor is so designated, the Trading Advisor shall thereafter receive
management and incentive fees based, respectively, on that portion of the Net
Assets managed by the Trading Advisor and that portion of the Net Profits
properly attributable to the trading done by the Trading Advisor.
4. Trading Advisor Independent.
For all purposes of this Agreement, the Trading Advisor shall
be deemed to be an independent contractor and shall, unless otherwise expressly
provided herein or authorized, have no authority to act for or represent the
Partnership in any way or otherwise be deemed an agent of the Partnership.
Nothing contained herein shall be deemed to require the Partnership to take any
action contrary to the Limited Partnership Agreement, the Certificate of Limited
Partnership of the Partnership as from time to time in effect (the "Certificate
of Limited Partnership"), or any applicable law or rule or regulation of any
regulatory body, exchange, or board. Nothing herein contained shall constitute
the Trading Advisor as a member of any partnership, joint venture, association,
syndicate or other entity with the Partnership or the General Partner, or be
deemed to confer on any of them any express, implied, or apparent authority to
incur any obligation or liability on behalf of any other. It is expressly agreed
that the Trading Advisor is neither a promoter, sponsor, or issuer with respect
to the Partnership.
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5. Commodity Brokers.
The Trading Advisor shall effect all transactions in futures
interests for the Partnership through, and shall maintain a separate account
with, such commodity broker or brokers as the General Partner shall direct. At
the present time, DWR shall act as the non-clearing commodity broker and CFI
shall act as the clearing commodity broker for the Partnership. The General
Partner shall provide the Trading Advisor with copies of brokerage statements.
Notwithstanding that CFI shall act as the clearing commodity broker for the
Partnership, the Trading Advisor may execute trades through floor brokers other
than those employed by CFI so long as arrangements are made for such floor
brokers to "give-up" or transfer the positions to CFI and provided that the
rates charged by such floor brokers have been approved in writing by DWR. The
Trading Advisor will not be responsible for paying give-up fees at rates
approved by DWR.
6. Fees.
(a) For the services to be rendered to the Partnership by the
Trading Advisor under this Agreement, the Partnership shall pay the Trading
Advisor the following fees:
(i) A monthly management fee, without regard to the
profitability of the Trading Advisor's trading for the Partnership's
account, equal to 1/12 of 2% (a 2% annual rate) of the Partnership's
"Net Assets" (as defined in Section 6(c)) as of the opening of business
on the first day of each calendar month, commencing with the month in
which the Partnership begins to receive trading advice from the Trading
Advisor pursuant to this Agreement.
(ii) A monthly incentive fee equal to 20% of the
"Trading Profits" (as defined in Section 6(d)) experienced by the
Partnership as of the end of each calendar month.
(b) If this Agreement is terminated on a date other than the
last day of a month, the incentive fee described above shall be determined as if
such date were the end of a month. If this Agreement is terminated on a date
other than the end of a month, the management fee described above shall be
determined as if such date were the end of a month, but such fee shall be
prorated based on the ratio of the number of trading days in the month through
the date of termination to the total number of trading days in the month. If,
during any month after the Partnership commences trading operations (including
the month in which the Partnership commences such operations), the Partnership
does not conduct business operations, or suspends trading for the account of the
Partnership managed by the Trading Advisor, or, as a result of an act or
material failure to act by the Trading Advisor, is otherwise unable to utilize
the trading advice of the Trading Advisor on any of the trading days of that
period for any reason, the management fee described above shall be prorated
based on the ratio of the number of trading days in the month which the
Partnership account managed by the Trading Advisor engaged in trading operations
or utilized the trading advice of the Trading Advisor to the total number of
trading days in the month.
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(c) As used herein, the term "Net Assets" shall have the same
meaning ascribed thereto in Section 7(d)(1) of the Limited Partnership
Agreement.
(d) As used herein, the term "Trading Profits" shall mean net
futures interests trading profits (realized and unrealized) earned on a
Partnership's Net Assets, decreased by the monthly management fees, brokerage
fees and any transaction fees and costs, if any, not included in the brokerage
fees; with such trading profits and items of decrease determined from the end of
the last calendar month in which an incentive fee was earned by the Trading
Advisor or, if no incentive fee has been earned previously by the Trading
Advisor, from the date that the Partnership commenced trading to the end of the
month as of which such incentive fee calculation is being made. Extraordinary
expenses of the Partnership, if any, will not be deducted in determining Trading
Profits. No incentive fee will be paid on interest income earned by the
Partnership.
(e) If any payment of incentive fees is made to the Trading
Advisor on account of Trading Profits and such Trading Advisor thereafter fails
to earn Trading Profits or experiences losses for any subsequent incentive
period, the Trading Advisor shall be entitled to retain such amounts of
incentive fees previously paid to the Trading Advisor in respect of such Trading
Profits. However, no subsequent incentive fees shall be payable to the Trading
Advisor until the Partnership has again earned Trading Profits; provided,
however, that if the Partnership's Net Assets are reduced or increased because
of redemptions or additions that occur at the end of, or subsequent to, an
incentive period in which the Trading Advisor experiences a futures interests
trading loss, the trading loss for that incentive period which must be recovered
before the Trading Advisor will be deemed to experience Trading Profits will be
equal to the amount determined by (x) dividing the Partnership's Net Assets
after such increase or decrease by the Partnership's Net Assets immediately
before such increase or decrease and (y) multiplying that fraction by the amount
of the unrecovered futures interests trading loss experienced in the month prior
to such increase or decrease. In the event that the Partnership experiences a
futures interests trading loss in more than one month without the payment of an
intervening incentive fee and the Partnership's Net Assets are increased or
reduced in more than one such month because of redemptions or additions, then
the trading loss for each such month shall be adjusted in accordance with the
formula described above and such increased or reduced amount of futures
interests trading loss shall be carried forward and used to offset subsequent
futures interests trading profits.
(f) The Partnership will remit the management and incentive
fees to the Trading Advisor as soon as practicable, but in no event later than
30 days, in the case of the management fee, or 45 days, in the case of the
incentive fee, of the month-end as of which they are due, together with an
itemized statement showing the calculations.
7. Term.
This Agreement shall continue in effect until _______ ___,
2001 (the "Initial Termination Date"). If this Agreement is not terminated on
the Initial Termination Date, as provided for herein, then, this Agreement shall
automatically renew for an additional one-year period and shall continue to
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renew for additional one-year periods until this Agreement is otherwise
terminated, as provided for herein. At least 30 calendar days prior to the
expiration of the Initial Termination Date or any subsequent one-year period, as
the case may be, the Trading Advisor may terminate this Agreement at the end of
the current period by providing written notice to the Partnership indicating
that the Trading Advisor desires to terminate this Agreement at the end of such
period. This Agreement shall also terminate if the Partnership terminates. The
Partnership shall have the right to terminate this Agreement at its discretion
(a) at any month-end upon 5 calendar days' prior written notice to the Trading
Advisor or (b) at any time upon written notice to the Trading Advisor upon the
occurrence of any of the following events: (i) if any person described as a
"principal" of the Trading Advisor in the Prospectus ceases for any reason to be
an active executive officer of the Trading Advisor; (ii) if the Trading Advisor
becomes bankrupt or insolvent; (iii) if the Trading Advisor is unable to use its
trading programs, systems or methods as in effect on the date hereof and as
refined and modified in the future for the benefit of the Partnership; (iv) if
the registration, as a commodity trading advisor, of the Trading Advisor with
the CFTC or its membership in the NFA is revoked, suspended, terminated, or not
renewed, or limited or qualified in any respect; (v) except as provided in
Section 12 hereof, if the Trading Advisor merges or consolidates with, or sells
or otherwise transfers its advisory business, or all or a substantial portion of
its assets, any portion of its futures interests trading programs, systems or
methods, or its goodwill, to any individual or entity; (vi) if the Net Asset
value of a Unit, after adjusting for distributions if any, shall be less than
$5.00; (vii) if, at any time, the Trading Advisor violates any trading or
administrative policy described in the Prospectus or otherwise provided in
writing to the Trading Advisor by the General Partner, except with the prior
express written consent of the General Partner; or (viii) if the Trading Advisor
fails in a material manner to perform any of its obligations under this
Agreement. The Trading Advisor may terminate this Agreement at any time, upon
written notice to the Partnership, in the event: (i) that the General Partner
imposes additional trading limitation(s) (not in effect on the date hereof) in
the form of one or more trading policies or administrative policies which the
Trading Advisor does not agree to follow in its management of the Partnership's
Net Assets; (ii) the General Partner objects to the Trading Advisor implementing
a proposed material change in the Trading Advisor's trading program(s) used by
the Partnership and Trading Advisor certifies to the General Partner in writing
that it believes such change is in the best interests of the Partnership; (iii)
the General Partner overrides a trading instruction of the Trading Advisor for
reasons unrelated to a determination by the General Partner that the Trading
Advisor has violated the Partnership's trading policies and the Trading Advisor
certifies to the General Partner in writing that as a result the Trading Advisor
believes the performance results of the Trading Advisor relating to the
Partnership will be materially adversely affected; (iv) the Partnership
materially breaches this Agreement and does not correct the breach within 10
business days of receipt of a written notice of such breach from the Trading
Advisor; or (v) the Trading Advisor has amended its trading program to include a
foreign futures or option contract which may lawfully be traded by the
Partnership under CFTC regulations and counsel, mutually acceptable to the
parties, has not opined that such inclusion would cause adverse tax consequences
to Limited Partners and the General Partner does not consent to the Trading
Advisor's trading such contract for the Partnership within 5 business days of a
written request by the Trading Advisor to do so, and, if
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such consent is given, does not make arrangements to facilitate such trading
within 90 calendar days of such notice; or (vi) the Partnership's Net Assets
fall below $1,000,000 at any time.
The indemnities set forth in Section 8 hereof shall survive
any termination of this Agreement.
8. Standard of Liability; Indemnifications.
(a) Limitation of Trading Advisor Liability. In respect of the
Trading Advisor's role in the futures interests trading of the Partnership's
assets, none of the Trading Advisor, or its controlling persons, its affiliates,
and their respective directors, officers, shareholders, employees or controlling
persons shall be liable to the Partnership or the General Partner or their
partners, officers, shareholders, directors or controlling persons except that
the Trading Advisor shall be liable for acts or omissions of any such person
provided that such act or omission constitutes a breach of this Agreement or a
representation, warranty or covenant herein, misconduct or negligence or is the
result of any such person not having acted in good faith and in the reasonable
belief that such actions or omissions were in, or not opposed to, the best
interests of the Partnership.
(b) Trading Advisor Indemnity in Respect of Management
Activities. The Trading Advisor shall indemnify, defend and hold harmless the
Partnership and the General Partner, their controlling persons, their affiliates
and their respective directors, officers, shareholders, employees, and
controlling persons from and against any and all losses, claims, damages,
liabilities (joint and several), costs, and expenses (including any reasonable
investigatory, legal, and other expenses incurred in connection with, and any
amounts paid in, any settlement; provided that the Trading Advisor shall have
approved such settlement) incurred as a result of any action or omission
involving the Partnership's futures interests trading by the Trading Advisor, or
any of its controlling persons or affiliates or their respective directors,
officers, partners, shareholders, or employees; provided that such liability
arises from an act or omission of the Trading Advisor, or any of its controlling
persons or affiliates or their respective directors, officers, partners,
shareholders, or employees which is found by a court of competent jurisdiction
upon entry of a final judgment (or, if no final judgment is entered, by an
opinion rendered by counsel who is approved by the Partnership and the Trading
Advisor, such approval not to be unreasonably withheld) to be a breach of this
Agreement or a representation, warranty or covenant herein, or the result of
misconduct or negligence or conduct not done in good faith in the reasonable
belief that it was in, or not opposed to, the best interests of the Partnership.
(c) Partnership Indemnity in Respect of Management Activities.
The Partnership shall indemnify, defend, and hold harmless the Trading Advisor,
its controlling persons, their affiliates and their respective directors,
officers, shareholders, employees, and controlling persons, from and against any
and all losses, claims, damages, liabilities (joint and several), costs, and
expenses (including any reasonable investigatory, legal, and other expenses
incurred in connection with, and any amounts paid in, any settlement; provided
that the Partnership shall have approved such settlement) resulting from a
demand, claim, lawsuit, action, or proceeding (other than those incurred as a
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result of claims brought by or in the right of an indemnified party) relating to
the futures interests trading activities of the Partnership undertaken by the
Trading Advisor; provided that a court of competent jurisdiction upon entry of a
final judgment finds (or, if no final judgment is entered, an opinion is
rendered to the Partnership by independent counsel reasonably acceptable to both
parties) to the effect that the action or inaction of such indemnified party
that was the subject of the demand, claim, lawsuit, action, or proceeding did
not constitute negligence, misconduct, or a breach of this Agreement or a
representation, warranty or covenant of the Trading Advisor herein and was done
in good faith and in a manner such indemnified party reasonably believed to be
in, or not opposed to, the best interests of the Partnership.
(d) Trading Advisor Indemnity in Respect of Sale of Units. The
Trading Advisor shall indemnify, defend and hold harmless DWR, Morgan Stanley &
Co., Incorporated ("MS&Co."), CFI, the Partnership, the General Partner, any
Additional Seller, and their affiliates and each of their officers, directors,
principals, shareholders, and controlling persons from and against any loss,
claim, damage, liability, cost, and expense, joint and several, to which any
indemnified person may become subject under the Securities Act, the Securities
and Exchange Act of 1934 Act, as amended (the "Exchange Act"), the Commodity
Exchange Act, as amended, and rules promulgated thereunder (the "CEAct"), the
securities or Blue Sky law of any jurisdiction, or otherwise (including any
reasonable investigatory, legal, and other expenses incurred in connection with,
and any amounts paid in, any settlement, provided that the Trading Advisor shall
have approved such settlement, and in connection with any administrative
proceedings), in respect of the offer or sale of Units, insofar as such loss,
claim, damage, liability, cost, or expense (or action in respect thereof) arises
out of, or is based upon: (i) a breach by the Trading Advisor of any
representation, warranty, or agreement in this Agreement relating to the
offering of Units or any certificate delivered pursuant to this Agreement at a
Closing (as such term is defined in the Prospectus); (ii) a misleading or untrue
statement or alleged misleading or untrue statement of a material fact made in
the Registration Statement, the Prospectus, or any related selling material or
an omission or alleged omission to state a material fact therein which is
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus and any selling material, in light of the
circumstances under which they were made) not misleading, and such statement or
omission relates specifically to the Trading Advisor, or its Trading Advisor
Principals (as defined below) (including the historical performance capsules) or
was made in reliance upon, and in conformity with, written information or
instructions furnished by the Trading Advisor (provided, however, that with
respect to any related selling material only such related selling material as
shall have been approved in writing by the Trading Advisor).
(e) Partnership Indemnity in Respect of Sale of Units. The
Partnership agrees to indemnify, defend and hold harmless the Trading Advisor
and each of its officers, directors, principals, shareholders, and controlling
persons from and against any loss, claim, damage, liability, cost, and expense,
joint and several, to which any indemnified person may become subject under the
Securities Act, the Exchange Act, the CEAct, the securities or Blue Sky law of
any jurisdiction, or otherwise (including any reasonable investigatory, legal,
and other expenses incurred in connection with, and any amounts paid in, any
settlement, provided that the Partnership shall have approved such settlement,
and in connection with any administrative proceedings), in respect of the offer
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or sale of Units, insofar as such loss, claim, damage, liability, cost, or
expense (or action in respect thereof) arises out of, or is based upon: (i) a
breach by the Partnership or the General Partner of any representation,
warranty, or agreement in this Agreement relating to the offering of Units; or
(ii) a misleading or untrue statement or alleged misleading or untrue statement
of a material fact made in the Registration Statement, the Prospectus, or any
related selling material or an omission or alleged omission to state a material
fact therein which is required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus or the selling material, in
light of the circumstances under which they were made) not misleading, provided
that such materially misleading or untrue statement or alleged materially
misleading or untrue statement or omission or alleged omission does not relate
to the Trading Advisor or its Trading Advisor Principals (including the
historical performance tables) or was not made in reliance upon, and in
conformity with, information or instructions furnished by the Trading Advisor
(provided, however, that with respect to any related selling material, only such
related selling material as shall have been approved in writing by the Trading
Advisor), or does not result from a breach by the Trading Advisor of any
representation, warranty, or agreement in this Agreement relating to the
offering of Units or any certificate delivered pursuant to this Agreement at a
Closing.
(f) The foregoing agreements of indemnity shall be in addition
to, and shall in no respect limit or restrict, any other remedies which may be
available to an indemnified person.
(g) Promptly after receipt by an indemnified person of notice
of the commencement of any action, claim, or proceeding to which any of the
indemnities may apply, the indemnified person will notify the indemnifying party
in writing of the commencement thereof if a claim in respect thereof is to be
made against the indemnifying party hereunder; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which the indemnifying party may have to the indemnified person hereunder,
except where such omission has materially prejudiced the indemnifying party. In
case any action, claim, or proceeding is brought against an indemnified person
and the indemnified person notifies the indemnifying party of the commencement
thereof as provided above, the indemnifying party will be entitled to
participate therein and, to the extent that the indemnifying party desires, to
assume the defense thereof with counsel selected by the indemnifying party and
not unreasonably disapproved by the indemnified person. After notice from the
indemnifying party to the indemnified person of the indemnifying party's
election so to assume the defense thereof as provided above, the indemnifying
party will not be liable to the indemnified person under the indemnity
provisions hereof for any legal and other expenses subsequently incurred by the
indemnified person in connection with the defense thereof, other than reasonable
costs of investigation.
Notwithstanding the proceeding paragraph, if, in any action,
claim, or proceeding as to which indemnification is or may be available
hereunder, an indemnified person reasonably determines that its interests are or
may be adverse, in whole or in part, to the indemnifying party's interests or
that there may be legal defenses available to the indemnified person which are
inconsistent with the defenses available to the indemnifying party, the
indemnified person may retain its own counsel in connection with such action,
claim, or proceeding and will be indemnified by the indemnifying party for any
legal and other expenses reasonably incurred in connection with investigating or
defending such action, claim, or proceeding.
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In no event will the indemnifying party be liable for the fees
and expenses of more than one counsel for all indemnified persons in connection
with any one action, claim, or proceeding or in connection with separate but
similar or related actions, claims, or proceedings in the same jurisdiction
arising out of the same general allegations. The indemnifying party will not be
liable for any settlement of any action, claim, or proceeding effected without
the indemnifying party's express written consent, but if any action, claim, or
proceeding is settled with the indemnifying party's express written consent, the
indemnifying party will indemnify, defend, and hold harmless an indemnified
person as provided in this Section 8.
9. Right to Advise Others and Uniformity of Acts and
Practices.
(a) The Trading Advisor is engaged in the business of advising
investors as to the purchase and sale of futures interests. During the term of
this Agreement, the Trading Advisor, its principals and affiliates, will be
advising other investors (including affiliates and the stockholders, officers,
directors, and employees of the Trading Advisor and its affiliates and their
families) and trading for their own accounts. However, under no circumstances
shall the Trading Advisor by any act or omission favor any account advised or
managed by the Trading Advisor over the account of the Partnership in any way or
manner (other than by charging different management and/or incentive fees). The
Trading Advisor agrees to treat the Partnership in a fiduciary capacity to the
extent recognized by applicable law, but, subject to that standard, the Trading
Advisor or any of its principals or affiliates shall be free to advise and
manage accounts for other investors and shall be free to trade on the basis of
the same trading programs, systems, methods, or strategies employed by the
Trading Advisor for the account of the Partnership, or trading programs,
systems, methods, or strategies which are entirely independent of, or materially
different from, those employed for the account of the Partnership, and shall be
free to compete for the same futures interests as the Partnership or to take
positions opposite to the Partnership, where such actions do not knowingly or
deliberately prefer any of such accounts over the account of the Partnership.
(b) The Trading Advisor shall not be restricted as to the
number or nature of its clients, except that: (i) so long as the Trading Advisor
acts as a trading advisor for the Partnership, neither the Trading Advisor nor
any of its principals or affiliates shall hold knowingly any position or control
any other account which would cause the Partnership, the Trading Advisor, or the
principals or affiliates of the Trading Advisor to be in violation of the CEAct
or any regulations promulgated thereunder, any applicable rule or regulation of
the CFTC or any other regulatory body, exchange, or board; and (ii) neither the
Trading Advisor nor any of its principals or affiliates shall render futures
interests trading advice to any other individual or entity or otherwise engage
in activity which shall knowingly cause positions in futures interests to be
attributed to the Trading Advisor under the rules or regulations of the CFTC or
any other regulatory body, exchange, or board so as to require the significant
modification of positions taken or intended for the account of the Partnership;
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provided that the Trading Advisor may modify its trading programs, systems,
methods or strategies to accommodate the trading of additional funds or
accounts. If applicable speculative position limits are exceeded by the Trading
Advisor in the opinion of (i) independent counsel (who shall be other than
counsel to the Partnership), (ii) the CFTC, or (iii) any other regulatory body,
exchange, or board, the Trading Advisor and its principals and affiliates shall
promptly liquidate positions in all of their accounts, including the
Partnership's account, as to which positions are attributed to the Trading
Advisor as nearly as possible in proportion to the accounts' respective amounts
available for trading (taking into account different degrees of leverage and
"notional" equity) to the extent necessary to comply with the applicable
position limits.
10. Representations, Warranties, and Covenants of the
Trading Advisor.
(a) Representations of the Trading Advisor. The Trading
Advisor with respect to itself and each of its principals represents and
warrants to and agrees with the General Partner and the Partnership as follows:
(i) It will exercise good faith and due care in using
the trading programs on behalf of the Partnership that are described in
the Prospectus (as modified from time to time) or any other trading
programs agreed to by the General Partner.
(ii) The Trading Advisor shall follow, at all times,
the trading policies of the Partnership (as described in the
Prospectus) or otherwise as furnished to the Trading Advisor in writing
from time to time.
(iii) The Trading Advisor shall trade: (A) the
Partnership's Net Assets pursuant to the specified trading program(s)
described in the Prospectus unless the Trading Advisor is instructed by
the General Partner to trade the Partnership's Net Assets pursuant to
any one or more of the Trading Advisor's other trading programs
described in the Prospectus; and (B) only in futures and option
contracts traded on U.S. contract markets, foreign currency forward
contracts traded with CFI, and such other futures interests that are
approved in writing by the General Partner and have been approved by
the CFTC for U.S. persons.
(iv) The Trading Advisor is duly organized, validly
existing and in good standing as a corporation under the laws of the
state of its incorporation and is qualified to do business as a foreign
corporation and in good standing in each other jurisdiction in which
the nature or conduct of its business requires such qualification and
the failure to so qualify would materially adversely affect the Trading
Advisor's ability to perform its duties under this Agreement. The
Trading Advisor has full corporate power and authority to perform its
obligations under this Agreement, and as described in the Registration
Statement and Prospectus. The only principals (as defined in Rule
4.10(e) under the CEAct) of the Trading Advisor are those set forth in
the Prospectus (the "Trading Advisor Principals").
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(v) All references to the Trading Advisor and each
Trading Advisor Principal, including the Trading Advisor's trading
programs, approaches, systems and performance, in the Registration
Statement and the Prospectus, and in any supplemental selling material
which has been approved in writing by the Trading Advisor, are accurate
and complete in all material respects. With respect to the information
relating to the Trading Advisor and each Trading Advisor Principal,
including the Trading Advisor's and the Trading Advisor Principals'
trading programs, approaches, systems, and performance information, as
applicable, (i) the Registration Statement and Prospectus contain all
statements and information required to be included therein under the
CEAct, (ii) the Registration Statement as of its effective date will
not contain any misleading or untrue statement of a material fact or
omit to state a material fact which is required to be stated therein or
necessary to make the statements therein not misleading and (iii) the
Prospectus at its date of issue and as of each monthly closing will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which such statements were made, not misleading.
(vi) This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Trading Advisor and
is a valid and binding agreement of the Trading Advisor enforceable in
accordance with its terms.
(vii) Each of the Trading Advisor and each
"principal" of the Trading Advisor, as defined in Rule 3.1 under the
CEAct, has all federal and state governmental, regulatory and exchange
licenses, registrations and approvals and has effected all filings with
federal and state governmental and regulatory agencies required to
conduct its or his business and to act as described in the Registration
Statement and Prospectus or required to perform its or his obligations
under this Agreement. The Trading Advisor is registered as a commodity
trading advisor under the CEAct and is a member of the NFA in such
capacity.
(viii) The execution and delivery of this Agreement,
the incurrence of the obligations set forth herein, the consummation of
the transactions contemplated herein and in the Prospectus and the
payment of the fees hereunder will not violate, or constitute a breach
of, or default under, the certificate of incorporation or bylaws of the
Trading Advisor or any agreement or instrument by which it is bound or
of any order, rule, law or regulation binding on it of any court or any
governmental body or administrative agency or panel or self-regulatory
organization having jurisdiction over it.
(ix) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as may otherwise be stated in or contemplated by the
Registration Statement and the Prospectus, there has not been any
material adverse change in the condition, financial or otherwise,
business or prospects of the Trading Advisor or any Trading Advisor
Principal.
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(x) Except as set forth in the Registration Statement
or Prospectus there has not been in the five years preceding the date
of the Prospectus and there is not pending, or to the best of the
Trading Advisor's knowledge threatened, any action, suit or proceeding
at law or in equity before or by any court or by any federal, state,
municipal or other governmental body or any administrative,
self-regulatory or commodity exchange organization to which the Trading
Advisor or any Trading Advisor Principal is or was a party, or to which
any of the assets of the Trading Advisor or any Trading Advisor
Principal is or was subject and which resulted in or might reasonably
be expected to result in any materially adverse change in the
condition, financial or otherwise, of the Trading Advisor or which is
required under the Securities Act or CEAct to be disclosed in the
Prospectus. None of the Trading Advisor or any Trading Advisor
Principal has received any notice of an investigation by the NFA or the
CFTC regarding noncompliance by the Trading Advisor or any of the
Trading Advisor Principals with the CEAct.
(xi) Neither the Trading Advisor nor any Trading
Advisor Principal has received, or is entitled to receive, directly or
indirectly, any commission, finder's fee, similar fee, or rebate from
any person in connection with the organization or operation of the
Partnership, other than as described in the Prospectus.
(xii) The actual performance of each discretionary
account of a client directed by the Trading Advisor and the Trading
Advisor Principals since at least the later of (i) the date of
commencement of trading for each such account or (ii) a date five years
prior to the effective date of the Registration Statement, is disclosed
in the Prospectus (other than such discretionary accounts the
performance of which are exempt from the CEAct disclosure
requirements); all of the information regarding the actual performance
of the accounts of the Trading Advisor and the Trading Advisor
Principals set forth in the Prospectus is complete and accurate in all
material respects and is in accordance with and in compliance with the
disclosure requirements under the CEAct and the Securities Act,
including the Division of Trading and Markets "notional equity"
advisories and interpretations and the rules and regulations of the
NFA.
(b) Covenants of the Trading Advisor. The Trading Advisor
covenants and agrees that:
(i) The Trading Advisor shall use its best efforts to
maintain all registrations and memberships necessary for the Trading
Advisor to continue to act as described herein and to at all times
comply in all material respects with all applicable laws, rules, and
regulations, to the extent that the failure to so comply would have a
materially adverse effect on the Trading Advisor's ability to act as
described herein.
(ii) The Trading Advisor shall inform the General
Partner immediately as soon as the Trading Advisor or any of its
principals becomes the subject of any investigation, claim or
proceeding of any regulatory authority having jurisdiction over such
person or becomes a named party to any litigation materially affecting
the business of the Trading Advisor. The Trading Advisor shall also
inform the General Partner immediately if the Trading Advisor or any of
its officers becomes aware of any breach of this Agreement by the
Trading Advisor.
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(iii) The Trading Advisor agrees reasonably to
cooperate by providing information regarding itself and its performance
in the preparation of any amendments or supplements to the Registration
Statement and the Prospectus.
(iv) The Trading Advisor agrees to participate, to
the extent that the General Partner may reasonably request, in "road
shows" and other promotional activities relating to the marketing of
the Units, provided that such participation shall not in the reasonable
judgment of the Trading Advisor require the registration of the Trading
Advisor or any of its principals or agents as a broker-dealer or
salesman or interfere materially with the trading activities of the
Trading Advisor. The Trading Advisor shall pay the costs of its
reasonably requested participation in such road shows.
11. Representations, Warranties, and Covenants of the
General Partner and the Partnership.
(a) Representations of the Partnership and the General
Partner. The General Partner and the Partnership represent and warrant to the
Trading Advisor, as follows:
(i) The Partnership has provided to the Trading
Advisor, and filed with SEC, the Registration Statement and has filed
copies thereof with: (i) the CFTC under the CEAct; (ii) the NASD
pursuant to its Conduct Rules; and (iii) the NFA in accordance with NFA
Compliance Rule 2-13. The Partnership will not file any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus unless the Trading Advisor has received reasonable prior
notice of and a copy of such amendments or supplements and has not
reasonably objected thereto in writing.
(ii) The Limited Partnership Agreement provides for
the subscription for and sale of the Units; all action required to be
taken by the General Partner and the Partnership as a condition to the
sale of the Units to qualified subscribers therefor has been, or prior
to each Closing will have been taken; and, upon payment of the
consideration therefor specified in each accepted Subscription and
Exchange Agreement and Power of Attorney, in such form as attached to
the Prospectus, the Units will constitute valid limited partnership
interests in the Partnership.
(iii) The Partnership is a limited partnership duly
organized pursuant to the Certificate of Limited Partnership, the
Limited Partnership Agreement and the Delaware Revised Uniform Limited
Partnership Act ("DRULPA") and is validly existing under the laws of
the State of Delaware with full power and authority to engage in the
trading of futures interests and to engage in its other contemplated
activities as described in the Prospectus; the Partnership has received
a certificate of authority to do business in the State of New York as
provided by Article 8-A of the New York Revised Limited Partnership Act
and is qualified to do business in each jurisdiction in which the
nature or conduct of its business requires such qualification and where
failure to be so qualified could materially adversely affect the
Partnership's ability to perform its obligations hereunder.
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(iv) The General Partner is duly organized and
validly existing and in good standing as a corporation under the laws
of the State of Delaware and in good standing and qualified to do
business as a foreign corporation under the laws of the State of New
York and is qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the nature or conduct
of its business requires such qualification and where the failure to be
so qualified could materially adversely affect the General Partner's
ability to perform its obligations hereunder.
(v) The Partnership and the General Partner have full
partnership or corporate power and authority under applicable law to
conduct their business and to perform their respective obligations
under this Agreement.
(vi) The Registration Statement and Prospectus
contain all statements and information required to be included therein
by the CEAct. When the Registration Statement becomes effective under
the Securities Act and at all times subsequent thereto up to and
including the Initial Closing and each Monthly Closing, the
Registration Statement and Prospectus will comply in all material
respects with the requirements of the Securities Act, the rules and
regulations promulgated thereunder (the "SEC Regulations"), the rules
of the NFA and the CEAct. The Registration Statement as of its
effective date will not contain any misleading or untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus as of its date of issue and at the Initial Closing and each
Monthly Closing will not contain any misleading or untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which such
statements were made, not misleading. The supplemental selling
material, when read in conjunction with the Prospectus, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which such statements were made, not misleading.
The supplemental selling material will comply with the CEAct and the
regulations and rules of the NFA and NASD. The representation, and
warranties in this clause (vi) shall not, however, apply to any
statement or omission in the Registration Statement, Prospectus or
supplemental selling material relating to the Trading Advisor, or its
Trading Advisor Principals or its trading programs or made in reliance
upon and in conformity with information furnished by the Trading
Advisor.
(vii) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any material adverse change in the condition,
financial or otherwise, business or prospects of the General Partner or
the Partnership, whether or not arising in the ordinary course of
business.
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(viii) This Agreement has been duly and validly
authorized, executed and delivered by the General Partner for itself
and on behalf of the Partnership and constitutes a valid, binding and
enforceable agreement of the Partnership and the General Partner in
accordance with its terms.
(ix) The execution and delivery of this Agreement,
the incurrence of the obligations set forth herein and the consummation
of the transactions contemplated herein and in the Registration
Statement and Prospectus will not violate, or constitute a breach of,
or default under, the General Partner's certificate of incorporation or
bylaws, the Certificate of Limited Partnership, the Limited Partnership
Agreement, or any agreement or instrument by which either the General
Partner or the Partnership, as the case may be, is bound or any order,
rule, law or regulation applicable to the General Partner or the
Partnership of any court or any governmental body or administrative
agency or panel or self-regulatory organization having jurisdiction
over the General Partner or the Partnership.
(x) Except as set forth in the Registration Statement
or Prospectus, there has not been in the five years preceding the date
of the Prospectus and there is not pending or, to the best of the
General Partner's knowledge, threatened, any action, suit or proceeding
at law or in equity before or by any court or by any federal, state,
municipal or other governmental body or any administrative,
self-regulatory or commodity exchange organization to which the General
Partner or the Partnership is or was a party, or to which any of the
assets of the General Partner or the Partnership is or was subject and
which resulted in or might reasonably be expected to result in any
materially adverse change in the condition, financial or otherwise, of
the General Partner or the Partnership or which is required under the
Securities Act or the CEAct to be disclosed in the Prospectus; and
neither the General Partner nor any of the principals of the General
Partner, as "principals" is defined under Rule 4.10 under the CEAct
("General Partner Principals") has received any notice of an
investigation by the NFA, NASD, SEC or CFTC regarding non-compliance by
the General Partner or the General Partner Principals or the
Partnership with the Securities Act or the CEAct which is required
under the Securities Act or the CEAct to be disclosed in the
Prospectus.
(xi) The General Partner and each principal of the
General Partner, as defined in Rule 3.1 under the CEAct, have all
federal and state governmental, regulatory and exchange approvals,
registrations, and licenses, and have effected all filings with federal
and state governmental agencies and regulatory agencies required to
conduct their business and to act as described in the Registration
Statement and Prospectus or required to perform their obligations under
this Agreement (including, without limitation, registration as a
commodity pool operator under the CEAct and membership in the NFA as a
commodity pool operator) and will maintain all such required approvals,
licenses, filings and registrations for the term of this Agreement. The
General Partner's principals identified in the Registration Statement
are all of the General Partner Principals.
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<PAGE>
(b) Covenants of the General Partner and the Partnership. The
General Partner for itself and the Partnership covenants and agrees that:
(i) The General Partner shall use its best efforts to
maintain all registrations and memberships necessary for the General
Partner to continue to act as described herein and in the Prospectus
and to all times comply in all material respects with all applicable
laws, rules, and regulations, to the extent that the failure to so
comply would have a materially adverse effect on the General Partner's
ability to act as described herein and in the Prospectus.
(ii) The General Partner shall inform the Trading
Advisor immediately as soon as the General Partner or any of its
principals becomes the subject of any investigation, claim, or
proceeding of any regulatory authority having jurisdiction over such
person or becomes a named party to any litigation materially affecting
the business of the General Partner. The General Partner shall also
inform the Trading Advisor immediately if the General Partner or any of
its officers become aware of any breach of this Agreement by the
General Partner.
(iii) The Partnership will furnish to the Trading
Advisor copies of the Registration Statement, the Prospectus, and all
amendments and supplements thereto, in each case as soon as available.
12. Merger or Transfer of Assets of Trading Advisor.
The Trading Advisor may merge or consolidate with, or sell or
otherwise transfer its advisory business, or all or a substantial portion of its
assets, any portion of its commodity trading programs, systems or methods, or
its goodwill, to any entity that is directly or indirectly controlled by,
controlling, or under common control with, the Trading Advisor, provided that
such entity expressly assumes all obligations of the Trading Advisor under this
Agreement and agrees to continue to operate the business of the Trading Advisor,
substantially as such business is being conducted on the date hereof.
13. Complete Agreement.
This Agreement constitutes the entire agreement between the
parties with respect to the matters referred to herein, and no other agreement,
verbal or otherwise, shall be binding as between the parties unless in writing
and signed by the party against whom enforcement is sought.
14. Assignment.
This Agreement may not be assigned by any party hereto without
the express written consent of the other parties hereto.
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15. Amendment.
This Agreement may not be amended except by the written
consent of the parties hereto.
16. Severability.
The invalidity or unenforceability of any provision of this
Agreement or any covenant herein contained shall not affect the validity or
enforceability of any other provision or covenant hereof or herein contained and
any such invalid provision or covenant shall be deemed to be severable.
17. Closing Certificates and Opinions.
(1) The Trading Advisor shall, at the Initial Closing and at
the request of the General Partner at any Monthly Closing, provide the
following:
(a) To DWR, the General Partner and the Partnership a
certificate, dated the date of any such closing and in form and substance
satisfactory to such parties, to the effect that:
(i) The representations and warranties by the Trading
Advisor in this Agreement are true, accurate, and complete on and as of
the date of the closing, as if made on the date of the closing.
(ii) The Trading Advisor has performed all of its
obligations and satisfied all of the conditions on its part to be
performed or satisfied under this Agreement, at or prior to the date of
such closing.
(b) To DWR, the General Partner and the Partnership an opinion
of counsel to the Trading Advisor, in form and substance satisfactory to such
parties, to the effect that:
(i) The Trading Advisor is a corporation duly
organized and validly existing under the laws of the state of its
incorporation and is qualified to do business and in good standing in
each other jurisdiction in which the nature or conduct of its business
requires such qualification and the failure to be duly qualified would
materially adversely affect the Trading Advisor's ability to perform
its obligations under this Agreement. The Trading Advisor has full
corporate power and authority to conduct its business as described in
the Registration Statement and Prospectus and to perform its
obligations under this Agreement.
(ii) The Trading Advisor (including the Trading
Advisor Principals) has all governmental, regulatory, self-regulatory
and commodity exchange and clearing association licenses,
registrations, and memberships required by law, and the Trading Advisor
(including the Trading Advisor Principals) has made all filings
necessary to perform its obligations under this Agreement and to
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conduct its business as described in the Registration Statement and
Prospectus, except for such licenses, memberships, filings and
registrations, the absence of which would not have a material adverse
effect on its ability to act as described in the Registration Statement
and Prospectus or to perform its obligations under this Agreement, and,
to the best of such counsel's knowledge, after due investigations, none
of such licenses, memberships or registrations have been rescinded,
revoked or suspended.
(iii) This Agreement has been duly authorized,
executed and delivered by or on behalf of the Trading Advisor and
constitutes a valid and binding agreement of the Trading Advisor
enforceable in accordance with its terms, subject only to bankruptcy,
insolvency, reorganization, moratorium or similar laws at the time in
effect affecting the enforceability generally of rights of creditors
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and
except as enforceability of the indemnification and exculpation
provisions contained in this Agreement may be limited by applicable law
or public policy.
(iv) To such counsel's knowledge, based upon due
inquiry of certain officers of the Trading Advisor, except as disclosed
in the Prospectus, there are no actions, suits or proceedings at law or
in equity pending or threatened before or by any court, governmental
body, administrative agency, panel or self-regulatory organization, nor
have there been any such actions, suits or proceedings within the five
years preceding the date of the Prospectus against the Trading Advisor
or any Trading Advisor Principal which are required to be disclosed in
the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement, the
incurrence of the obligations herein set forth and the consummation of
the transactions contemplated herein and in the Prospectus will not be
in contravention of any of the provisions of the certificate of
incorporation or bylaws of the Trading Advisor and, based upon due
inquiry of certain officers of the Trading Advisor, to the best of such
counsel's knowledge, will not constitute a breach of, or default under,
or a violation of any instrument or agreement known to such counsel by
which the Trading Advisor is bound and will not violate any order, law,
rule or regulation applicable to the Trading Advisor of any court or
any governmental body or administrative agency or panel or
self-regulatory organization having jurisdiction over the Trading
Advisor.
(vi) Based upon reliance of certain SEC "no-action"
letters, as of the closing, the performance by the Trading Advisor of
the transactions contemplated by this Agreement and as described in the
Prospectus will not require the Trading Advisor to be registered as an
"investment adviser" as that term is defined in the Investment Advisers
Act of 1940, as amended.
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<PAGE>
(vii) Nothing has come to such counsel's attention
that would lead them to believe that, (A) the Registration Statement at
the time it became effective, insofar as the Trading Advisor and the
Trading Advisor Principals are concerned, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or (B) the Prospectus at the time it was issued
or at the closing contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein relating to the Trading Advisor or the Trading
Advisor Principals, in light of the circumstances under which they were
made, not misleading; provided, however, that such counsel need express
no opinion or belief as to the performance data and notes or
descriptions thereto set forth in the Registration Statement and
Prospectus, except that such counsel shall opine, without rendering any
opinion as to the accuracy of the information in such tables, that the
actual performance tables of the Trading Advisor set forth in the
Prospectus comply as to form in all material respects with applicable
CFTC rules and all CFTC and NFA interpretations thereof, except as
disclosed in the Prospectus or as otherwise permitted by the CFTC
staff.
In giving the foregoing opinion, counsel may rely on
information obtained from public officials, officers of the Trading Advisor, and
other resources believed by it to be responsible and may assume that signatures
on all documents examined by it are genuine.
(c) To DWR, the General Partner and the Partnership, a report
dated the date of the closing which shall present, for the period from the date
after the last day covered by the historical performance capsules in the
Prospectus to the latest practicable day before closing, updated performance
information, and which shall certify that such information is, to the best of
such Trading Advisor's knowledge, accurate in all material respects.
(2) The General Partner shall, at the Initial Closing
following the effective date of the Registration Statement, provide the
following:
(a) To the Trading Advisor a certificate, dated the date of
such closing and in form and substance satisfactory to the Trading Advisor, to
the effect that:
(i) The representations and warranties by the
Partnership and the General Partner in this Agreement are true,
accurate, and complete on and as of the date of the closing as if made
on the date of the closing.
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued by the SEC and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the General Partner, are contemplated or threatened
under the Securities Act. No order preventing or suspending the use of
the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the General Partner, are contemplated or threatened
under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have
performed all of their obligations and satisfied all of the conditions
on their part to be performed or satisfied under this Agreement at or
prior to the date of the closing.
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<PAGE>
(b) To the parties hereto, an opinion of Cadwalader,
Wickersham & Taft, counsel to the General Partner and the Partnership, in form
and substance satisfactory to such parties, to the effect that:
(i) The Partnership is a limited partnership duly
formed pursuant to the Certificate of Limited Partnership, the Limited
Partnership Agreement and the DRULPA and is validly existing under the
laws of the State of Delaware with full partnership power and authority
to conduct the business in which it proposes to engage as described in
the Registration Statement and Prospectus and to perform its
obligations under this Agreement; the Partnership has received a
Certificate of Authority as contemplated under the New York Revised
Limited Partnership Act and is qualified to do business in New York and
need not affect any other filings or qualifications under the laws of
any other jurisdictions to conduct its business as described in the
Registration Statement and Prospectus.
(ii) The General Partner is duly organized and
validly existing and in good standing as a corporation under the laws
of the State of Delaware and is qualified to do business and is in good
standing as a foreign corporation in the State of New York and in each
other jurisdiction in which the nature or conduct of its business
requires such qualification and the failure to so qualify might
reasonably be expected to result in material adverse consequences to
the Partnership or the General Partner's ability to perform its
obligations as described in the Registration Statement and Prospectus.
The General Partner has full corporate power and authority to conduct
its business as described in the Registration Statement and Prospectus
and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals
as defined in Rule 3.1 under the CEAct, and the Partnership have all
federal and state governmental and regulatory licenses, registrations
and memberships required by law and have made all filings necessary in
order for the General Partner and the Partnership to perform their
obligations under this Agreement to conduct their business as described
in the Registration Statement and Prospectus, except for such licenses,
memberships, filings, and registrations, the absence of which would not
have a material adverse effect on the ability of the Partnership or the
General Partner to act as described in the Registration Statement and
Prospectus, or to perform their obligations under this Agreement, and,
to the best of such counsel's knowledge, after due investigation, none
of such licenses and memberships or registrations have been rescinded,
revoked or suspended.
(iv) This Agreement has been duly authorized,
executed and delivered by or on behalf of the General Partner and the
Partnership, and constitutes a valid and binding agreement of the
General Partner and the Partnership, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium or
similar laws at the time in effect affecting the enforceability
generally of rights of creditors and by general principals of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and except as enforceability of the
indemnification and exculpation provisions contained in this Agreement
may be limited by applicable law or public policy.
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(v) The execution and delivery of this Agreement and
the offer and sale of the Units by the Partnership and the incurrence
of the obligations herein set forth and the consummation of the
transactions contemplated herein and in the Prospectus will not be in
contravention of the General Partner's certificate of incorporation or
bylaws, the Certificate of Limited Partnership, or the Limited
Partnership Agreement and, to the best of such counsel's knowledge
based upon due inquiry of certain officers of the General Partner, will
not constitute a breach of, or default under, or a violation of any
agreement or instrument known to such counsel by which the General
Partner or the Partnership is bound and will not violate any order
known to such counsel or any law, rule or regulation applicable to the
General Partner or the Partnership of any court, governmental body,
administrative agency, panel or self-regulatory organization having
jurisdiction over the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due
inquiry of certain officers of the General Partner, except as disclosed
in the Prospectus, there are no actions, suits or proceedings at law or
in equity pending or threatened before or by any court, governmental
body, administrative agency, panel or self-regulatory organization, nor
have there been any such actions, suits or proceedings within the five
years preceding the date of the Prospectus against the General Partner
or the Partnership which are required to be disclosed in the
Registration Statement or Prospectus.
(vii) The Registration Statement is effective under
the Securities Act and, to the best of such counsel's knowledge, no
proceedings for a stop order are pending or threatened under Section
8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became
effective, the Registration Statement, and at the time the Prospectus
was issued and as of the closing, the Prospectus, complied as to form
in all material respects with the requirements of the Securities Act,
the Securities Regulations, the CEAct and the regulations of the NFA
and NASD.
(ix) Based upon reliance on certain SEC "no-action"
letters, as of the closing, the Partnership need not register as an
"investment company" under the Investment Company Act of 1940, as
amended.
(x) Nothing has come to such counsel's attention that
would lead them to believe that the Registration Statement at the time
it became effective contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus at the time it was issued or at the closing contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they where made, not misleading; provided, however, that
Cadwalader, Wickersham & Taft need express no opinion or belief (a) as
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to information in the Registration Statement or the Prospectus
regarding any Trading Advisor or its principals, or (b) as to the
financial statements, notes thereto and other financial or statistical
data set forth in the Registration Statement and Prospectus, or (c) as
to the performance data and notes or descriptions thereto set forth in
the Registration Statement and Prospectus.
In rendering its opinion, such counsel may rely on information
obtained from public officials, officers of the General Partner and other
sources believed by it to be responsible and may assume that signatures on all
documents examined by it are genuine, and that a Subscription and Exchange
Agreement and Power of Attorney in the form attached to the Prospectus has been
duly authorized, completed, dated, executed, and delivered and funds
representing the full subscription price for the Units purchased have been
delivered by each purchaser of Units in accordance with the requirements set
forth in the Prospectus.
18. Inconsistent Filings.
The Trading Advisor agrees not to file, participate in the
filing of, or publish any description of the Trading Advisor, or of its
respective principals or trading approaches that is materially inconsistent with
those in the Registration Statement and Prospectus, without so informing the
General Partner and furnishing to it copies of all such filings within a
reasonable period prior to the date of filing or publication.
19. Disclosure Document.
During the term of this Agreement, the Trading Advisor shall
furnish to the General Partner promptly copies of all disclosure documents filed
with the CFTC or NFA by the Trading Advisor. The General Partner acknowledges
receipt of the Trading Advisor's disclosure document dated ________ ___, _____.
20. Notices.
All notices required to be delivered under this Agreement
shall be in writing and shall be effective when delivered personally on the day
delivered, or when given by registered or certified mail, postage prepaid,
return receipt requested, on the day actually received, addressed as follows (or
to such other address as the party entitled to notice shall hereafter designate
in accordance with the terms hereof):
if to the Partnership:
Morgan Stanley Dean Witter Charter ____________ L.P.
c/o Demeter Management Corporation
Two World Trade Center
62nd Floor
New York, New York 10048
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<PAGE>
if to the General Partner:
Demeter Management Corporation
Two World Trade Center
62nd Floor
New York, New York 10048
Attn: Robert E. Murray
if to the Trading Advisor:
Attn:
21. Survival.
The provisions of this Agreement shall survive the termination
of this Agreement with respect to any matter arising while this Agreement was in
effect.
22. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. IF ANY ACTION OR PROCEEDING
SHALL BE BROUGHT BY A PARTY TO THIS AGREEMENT OR TO ENFORCE ANY RIGHT OR REMEDY
UNDER THIS AGREEMENT, EACH PARTY HERETO HEREBY CONSENTS AND WILL SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
IN THE COUNTY, CITY AND STATE OF NEW YORK. ANY ACTION OR PROCEEDING BROUGHT BY
ANY PARTY TO THIS AGREEMENT TO ENFORCE ANY RIGHT, ASSERT ANY CLAIM OR OBTAIN ANY
RELIEF WHATSOEVER IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT BY SUCH
PARTY EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE COUNTY, CITY AND STATE OF NEW YORK.
23. Remedies.
In any action or proceeding arising out of any of the
provisions of this Agreement, the Trading Advisor agrees not to seek any
prejudgment equitable or ancillary relief. The Trading Advisor agrees that its
sole remedy in any such action or proceeding shall be to seek actual monetary
damages for any breach of this Agreement.
24. Headings.
Headings to sections herein are for the convenience of the
parties only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed for and
on behalf of the undersigned as of the day and year first above written.
MORGAN STANLEY DEAN WITTER CHARTER
______________________ L.P.
by Demeter Management Corporation,
General Partner
By
DEMETER MANAGEMENT CORPORATION
By
[TRADING ADVISOR]
By
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<PAGE>
Exhibit 10.04
<PAGE>
FORM OF
ESCROW AGREEMENT
_________ __, 1998
The Chase Manhattan Bank
450 W. 33rd Street, 15th Floor
New York, New York 10001
Attn: Mr. Paul Gilkeson
Re: Morgan Stanley Dean Witter Charter Series
Escrow Account
Gentlemen:
In accordance with arrangements made by Demeter Management
Corporation, a Delaware corporation (the "General Partner"), on behalf of
Morgan Stanley Dean Witter Charter Graham L.P. ("Charter Graham"), Morgan
Stanley Dean Witter Charter Millburn L.P. ("Charter Millburn"), and Morgan
Stanley Dean Witter Charter Welton L.P. ("Charter Welton"; together with
Charter Graham and Charter Millburn, the "Partnerships" and individually, a
Partnership"), and Dean Witter Reynolds Inc., the selling agent for the
Partnerships (the "Depositor"; together with the Partnerships herein
sometimes collectively referred to as the "Parties" and, individually, as
a "Party"), the Depositor shall: (i) deliver to you, as escrow agent
("Escrow Agent"), all subscription funds (by the direct transfer of
immediately available funds into a non-interest-bearing escrow account
established by you for the Partnerships, for investment in your interest-
bearing money market account) received by the Depositor from each
subscriber ("Subscriber" or, collectively, the "Subscribers") during the
"Initial Offering Period" and thereafter during the "Continuing Offering"
Prospectus, as the same may be updated, supplemented, and amended from
ime to time (the "Prospectus")), in connection with the offering to the
public of Units of Limited Partnership Interest of the Partnerships (the
"Units"); and (ii) also promptly transmit to the General Partner a
complete report of all funds deposited with you during the Initial
Offering Period and the Continuing Offering. Except as otherwise
determined herein, all capitalized terms used in this Agreement are
defined in the Prospectus. You, as Escrow Agent, shall hold such
subscription funds, together with any additions, substitutions, or other
financial instruments in which such funds may be invested or for which
such funds may be exchanged (collectively referred to herein as the
"Fund"), IN ESCROW upon the following terms:
1. (a) Following receipt by you of written notice from the
General Partner that the General Partner has rejected a Subscriber's
subscription, in whole or in part, during the Initial Offering Period or
<PAGE>
the Continuing Offering, you shall transmit to the Depositor, as soon as
practicable but in no event later than three business days following
receipt by you of such notice (i) the amount of such Subscriber's
subscription funds that shall have been deposited with you hereunder and
that the General Partner shall have notified you of as having been
rejected, and (ii) any interest earned on the Fund and allocated to the
rejected amount of such subscription in accordance with Section 2 hereof.
You shall at the same time give notice to the Depositor of the amount of
aggregate subscription funds and/or interest so returned.
(b) On the second business day before the scheduled day of
each Closing during the Initial Offering Period and the Continuing
Offering, the General Partner shall notify you of the portion of the Fund
that represents subscriptions to be accepted by the General Partner for
each Partnership equal to the number of Units subscribed for, multiplied
by a price per Unit equal to $10 with respect to the Initial Closing, and
thereafter at 100% of the Net Asset Value per Unit thereof as of the
close of business on the date of the Monthly Closing. Upon receipt by
you of joint written notice from the General Partner and the Depositor on
the date of each such Closing to the effect that all of the terms and
conditions with respect to the release of subscription funds from escrow
set forth in the Prospectus have been fulfilled, you shall promptly pay
and deliver to each Partnership the portion of the Fund specified in the
General Partner's prior instructions (excluding any interest earned on
the Fund and funds relating to rejected subscriptions).
(c) On the date of each Closing, or as soon thereafter as
practicable, you shall transmit to the Depositor an amount
representing: (i) for each Subscriber whose subscription shall be
accepted by the General Partner in whole or in part, any interest earned
on the Fund and allocated to the accepted portion of such Subscriber's
subscription in accordance with Section 2 hereof, and (ii) for each
Subscriber whose subscription shall have been rejected by the General
Partner in whole or in part but whose subscription funds shall not have
been previously returned to the Depositor by you in accordance with the
first paragraph of this Section 1, such Subscriber's subscription funds
hat shall have been deposited with you hereunder and that shall have been
rejected by the General Partner, together with any interest earned on the
Fund and allocated to the rejected amount of such subscription in
accordance with Section 2 hereof. You shall at the same time give notice
to the Depositor of the aggregate amount of subscription funds and/or
interest so returned.
(d) Notwithstanding subparagraph (a) of this Paragraph 1, upon
receipt by you of written notice from the General Partner that a
Subscriber has been rejected (because good funds representing payment for
Units have not been deposited in the Subscriber's customer account with
the Depositor or because such Subscriber has provided bad funds in the
form of a bad check, draft, or otherwise to the Depositor), you shall
transmit to the Depositor, within three business days following receipt
by you of such notice, the amount of subscription funds deposited with
you hereunder relating to that amount (the portion of such Subscriber's
subscription for which good funds have not been provided), together with
any interest earned on the Fund and allocated to such portion of such a
subscription in accordance with Section 2 hereof to the date of such
return, and shall immediately notify the General Partner of the return of
such funds.
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<PAGE>
2. You shall hold the Fund (including any interest earned
thereon) for the account of the Partnerships pending delivery to either
the Partnerships or the Depositor, pursuant to Paragraphs 1 or 3 hereof,
as the case may be. On each day that subscription funds are transferred
to you hereunder in immediately available funds and receipt is confirmed
before 2:00 P.M., New York City time, you shall immediately invest such
subscription funds solely in your interest-bearing money market account.
If subscription funds are transferred to you in immediately available
funds and receipt is confirmed after 2:00 P.M., New York City time, you
shall so invest such funds on the next day. Interest earned on the Fund
shall be allocated by the Depositor among the subscribers proportionately
based on (A) the amount of their respective subscriptions on deposit in
the Fund, and (B) the period of time from the date that their respective
subscriptions shall have been deposited in the Fund to the earlier of the
delivery of the Fund to the Partnerships at a Closing or the Depositor in
accordance with Sections 1 or 3 hereof, as the case may be.
3. If, during the Initial Offering Period, you are notified in
writing jointly by the Parties that subscriptions for fewer than 400,000
Units of any of Charter Graham, Charter Millburn or Charter Welton have
been subscribed for and not rejected by the General Partner, that the
offering of Units for any such Partnership(s) have been terminated, and
that no Initial Closing with respect to any such Partnership(s) will be
held, you shall transmit to the Depositor, as soon as practicable but in
no event later than three business days after receipt by you of such
notice, an amount representing the full amount of all subscription funds
that shall have been deposited with you hereunder for any such
Partnership(s), together with any interest earned on the Fund in
accordance with Paragraph 2 hereof for any such Partnership(s). You
shall at the same time give notice to the Depositor of the aggregate
amounts of subscription funds and/or interest so returned.
4. The Parties further agree with you as follows:
(a) Your duties and responsibilities shall be limited solely
to those expressly set forth in this Agreement and are ministerial in
nature. You shall neither be subject to nor obliged to recognize any
other agreement between, or other direction or instruction of, any or all
of the Parties or any Subscriber even though reference thereto may be
made herein; provided, however, that with your written consent, this
Agreement may be amended at any time or times by an instrument in writing
signed by the Parties.
(b) You are authorized, in your sole discretion, to disregard
any and all notices or instructions given by any of the Parties or by any
other person, firm, or corporation, except only such notices or
instructions as are hereunder provided for and orders or process of any
court entered or issued with or without jurisdiction. If the Fund or any
part thereof is at any time attached, garnished, or levied upon under any
court order or in case the payment, assignment, transfer, conveyance, or
delivery of the Fund shall be stayed or enjoined by any court order, or
in case any order, judgment, or decree shall be made or entered by any
court affecting the Fund or any part thereof, then and in any such event
you are authorized, in your sole discretion, to rely upon and comply with
any such order, writ, judgment, or decree that you are advised by legal
counsel of your own choosing is binding upon you, and if you comply with
any such order, writ, judgment, or decree you
-3-
<PAGE>
shall not be liable to any of the Parties or to any other person, firm,
or corporation by reason of such compliance even though such order, writ,
judgment, or decree may be subsequently reversed, modified, annulled, set
aside, or vacated.
(c) You shall be fully protected in relying upon any written
notice, demand, certificate, document, or instrument believed by you in
good faith to be genuine and to have been signed or presented by the
proper person or persons or Party or Parties. The Parties shall provide
you with a list of officers and employees who shall be authorized to
deliver instructions hereunder. You shall not be liable for any action
taken or omitted by you in connection herewith in good faith and in the
exercise of your own best judgment.(d) Should any dispute arise with
respect to the delivery, ownership, right of possession, and/or
disposition of the subscription funds deposited with you hereunder, or
should any claim be made upon any such subscription funds by a third
party, you, upon receipt of written notice of such dispute by any of the
Parties or by a third party, are authorized and directed to retain in
your possession all or any of such subscription funds until such dispute
shall have been settled either by mutual agreement of the parties
involved or by final order, decree, or judgment of any court in the
United States.
(e) If for any reason funds are deposited in the escrow
account other than by transfer of immediately available funds, you shall
proceed as soon as practicable to collect checks, drafts, and other
collection items at any time deposited with you hereunder. All such
collections shall be subject to the usual collection agreement regarding
items received by your commercial banking department for deposit or
collection; provided, however, that if any check, draft, or other
collection item at any time deposited with you hereunder is returned to
you as being uncollectible (except by reason of an account closing), you
shall attempt a second time to collect such item before returning such
item to the Depositor as uncollectible. Subject to the foregoing, you
shall promptly notify the Parties of any uncollectible check, draft, or
other collection item deposited with you hereunder and shall promptly
return such uncollectible item to the Depositor, in which case you shall
not be liable to pay any interest on the subscription funds represented
by such uncollectible item. In no event, however, shall you be required
or have a duty to take any legal action to enforce payment of any check
or note deposited hereunder.
(f) You shall not be responsible for the sufficiency or
accuracy of the form, execution, validity, or genuineness of documents
now or hereafter deposited with you hereunder, or for any lack of
endorsement thereon or for any description therein, nor shall you be
responsible or liable in any respect on account of the identity,
authority, or rights of the persons executing or delivering or purporting
to execute or deliver any such document, or endorsement or this
Agreement. You shall not be liable for any loss sustained as a result of
any investment made pursuant to the instructions of the Parties or as a
result of any liquidation of an investment prior to its maturity, or the
failure of the Parties to give you any instructions to invest or reinvest
the Fund or any earnings thereon.
-4-
<PAGE>
(g) All notices required or desired to be delivered hereunder
shall be in writing and shall be effective when delivered personally on
the day delivered, or when given by registered or certified mail, postage
prepaid, return receipt requested, on the day of receipt, addressed as
follows (or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
if to a Partnership, the Partnerships or the General Partner:
Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mr. Mark J. Hawley
President
if to the Depositor:
Dean Witter Reynolds Inc.
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mr. Robert E. Murray
Senior Vice President
in either case with a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attn: Edwin L. Lyon, Esq.
if to you:
The Chase Manhattan Bank
450 W. 33rd Street, 15th Floor
New York, New York 10001
Attn: Mr. Paul Gilkeson
Whenever, under the terms hereof, the time for giving a notice or
performing an act falls on a Saturday, Sunday, or legal holiday, such
time shall be extended to the next business day.
(h) The Depositor agrees to indemnify, defend, and hold you
harmless from and against, any and all loss, damage, tax, liability, and
expense that may be incurred by you arising out of or in connection with
your duties hereunder, except as caused by your gross negligence, bad
faith, or willful misconduct, including the legal costs and expenses of
defending yourself against any claim or liability in connection with your
performance hereunder.
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<PAGE>
(i) You shall be paid by the Depositor a single fee of $3,000
in advance for your services with respect to the first year from the date
hereof or any portion thereof in connection herewith. In addition, the
Depositor shall pay an additional $3,000 fee for any services provided
hereunder in any subsequent year.
(j) It is understood that you may at any time resign hereunder
as Escrow Agent by giving written notice of your resignation to the
Parties at their address set forth above at least 20 days prior to the
date specified for such resignation to take effect, and upon the
effective date of such resignation, all property then held by you
hereunder shall be delivered by you to such person as may be designated
jointly by the Parties in writing, whereupon all your obligations
hereunder shall cease and terminate. If you shall resign prior to the
conclusion of the first 60 days of the Initial Offering Period, you shall
pay back to the Depositor an amount equal to the product of $50 and the
number of days remaining until the 60th day of the Initial Offering
Period. If you shall resign at or after the conclusion of the first 60
days of the Initial Offering Period, you shall have no obligation to pay
any amount back to the Depositor. If no successor Escrow Agent has been
appointed or has accepted such appointment by such date, all your
obligations hereunder shall nevertheless cease and terminate. Your sole
responsibility thereafter shall be to keep safely all property then held
by you and to deliver the same to a person designated by the Parties
hereto or in accordance with the directions of a final order or judgment
of a court of competent jurisdiction.
5. This Agreement shall be governed by and construed in
accordance with the law of the State of New York and any action brought
hereunder shall be brought in the courts of the State of New York,
sitting in the County of New York.
6. The undersigned Escrow Agent hereby acknowledges and agrees
to hold, deal with, and dispose of, the Fund (including any interest
earned thereon) and any other property at any time held by the Escrow
Agent hereunder in accordance with this Agreement.
-6-
<PAGE>
If the foregoing Agreement is satisfactory to you, please so indicate
by signing at the place provided below.
Sincerely,
MORGAN STANLEY DEAN WITTER CHARTER
GRAHAM L.P.
By: Demeter Management Corporation
By:________________________________
Mark J. Hawley
President
MORGAN STANLEY DEAN WITTER CHARTER
MILLBURN L.P.
By: Demeter Management Corporation
By:________________________________
Mark J. Hawley
President
MORGAN STANLEY DEAN WITTER CHARTER
WELTON L.P.
By: Demeter Management Corporation
By:________________________________
Mark J. Hawley
President
DEAN WITTER REYNOLDS INC.
By:________________________________
Robert E. Murray
Senior Vice President
<PAGE>
Accepted:
THE CHASE MANHATTAN BANK
By:________________________
Name: Paul Gilkeson
Title: Vice-President
<PAGE>
EXHIBIT 23.01
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Form S-1 Registration Statement of our report
dated July 21, 1998 relating to the statements of financial condition of
Morgan Stanley Dean Witter Charter Graham L.P., Morgan Stanley Dean
Witter Charter Millburn L.P., and Morgan Stanley Dean Witter Charter
Welton L.P. as of July 20, 1998 and our report dated January 12, 1998
relating to the statements of financial condition of Demeter Management
Corporation as of November 30, 1997 and December 31, 1996 appearing in
the Prospectus, which is part of such Registration Statement, and to the
reference to us under the heading "Experts" in such Prospectus.
/s/ Deloitte & Touche LLP
New York, New York
July 28, 1998
