March 27, 2002
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: ProFutures Diversified Fund, L.P.
Commission File #0-16898
Dear Sirs:
The filing contains Form 10-K for the year ended December 31, 2001.
Very truly yours,
ProFutures Diversified Fund, L.P.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 2001
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Commission File number 0-16898
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ProFutures Diversified Fund, L.P.
---------------------------------
(Exact name of Partnership as specified in charter)
Delaware 75-2197831
- ----------------------- ------------------------------------
(State of organization) (I.R.S. Employer Identification No.)
ProFutures, Inc.
11612 Bee Cave Road
Suite 100
Austin, Texas 78738
--------------------
Address of principal executive offices)
Partnership's telephone number
(800) 348-3601
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Securities registered pursuant to Section 12(b) of the Act
Title of each class. Name of each exchange on which registered.
-------------------- ------------------------------------------
Securities registered pursuant to Section 12(g) of the Act
Units of Limited Partnership Interest
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(Title of Class)
Indicate by check mark whether the Partnership (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the Partnership was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days.
Yes X
No
State the aggregate market value of the voting stock held by non-affiliates
of the Partnership. The aggregate market value shall be computed by reference
to the price at which the stock was sold, or the average bid and asked prices
of such stock, as of a specified date within 60 days prior to the date of
filing. (See definition of affiliate in Rule 405, 17 CFR 230.405.)
Not applicable
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Partnership's Prospectus dated July 31, 1994 and
Supplement dated January 31, 1995
Post-Effective Amendment No. 3 dated June 23, 1995
are incorporated by reference in
Part I, Part II, Part III and Part IV of this Form 10-K
PART I
Item 1. Business.
General
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ProFutures Diversified Fund, L.P. (the "Partnership") is a limited
partnership organized on March 10, 1987, under the laws of the State
of Delaware. The business of the Partnership is the speculative
trading of futures contracts on U.S. and non-U.S. exchanges, option
contracts, forward contracts on foreign currencies, and other commodity
interests. The Partnership commenced its business operation in
August 1987 under the name ATA Research/ProFutures Diversified Fund, L.P.
Effective June 1, 2000, the Partnership changed its name from ATA Research/
ProFutures Diversified Fund, L.P. to ProFutures Diversified Fund, L.P.
Effective October 1, 2000, ATA Research, Inc., the Partnership's co-general
partner, withdrew as co-general partner. ProFutures, Inc. remains as the
sole General Partner.
The office of the Partnership is located at 11612 Bee Cave Road, Suite 100,
Austin, Texas 78738; the telephone number is (800) 348-3601.
Trading Activity
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ProFutures, Inc., a Texas corporation, is the General Partner of the
Partnership which administers the business and affairs of the Partnership
(exclusive of its trading operations). Trading decisions are made by
independent Commodity Trading Advisors chosen by the General Partner. At
December 31, 2001, there are four Commodity Trading Advisors: Campbell &
Company, Inc., Crabel Capital Management, LLC, Grinham Managed Funds Pty.
Ltd. and Winton Capital Management Limited (collectively, the "Advisors").
All advisory fees are paid by the Partnership. Advisors may be changed
from time to time by the General Partner.
ProFutures, Inc. is registered with the CFTC as a Commodity Trading Advisor
and Commodity Pool Operator and is a member of the NFA. Gary D. Halbert is
the Chairman and President, and principal stockholder, of ProFutures, Inc.,
which was incorporated and began operation in December, 1984, and specializes
in speculative managed futures accounts.
The objective of the Partnership is to achieve appreciation of its assets
through speculative trading in futures and option contracts and other
commodity interests. It ordinarily maintains open positions for a
relatively short period of time. The Partnership's ability to make a
profit depends largely on the success of the Advisors in identifying
market trends and price movements and buying or selling accordingly.
The Partnership's Trading Policies are set forth on Page 59 of the
Partnership's Prospectus dated July 31, 1994, which is incorporated herein
by reference.
Material changes in the Trading Policies described in the Prospectus must
be approved by a vote of a majority of the outstanding Units of Limited
Partnership Interest. A change in contracts traded, however, will not be
deemed to be a material change in the Trading Policies.
Trading Methods and Advisors
- ----------------------------
Futures traders basically rely on either or both of two types of analysis
for their trading decisions, "technical" or "fundamental". Technical
analysis uses the theory that a study of the markets will provide a means
of anticipating price changes. Technical analysis generally will include a
study of actual daily, weekly and monthly price fluctuations, volume
variations and changes in open interest, utilizing charts and/or computers
for analysis of these items. Fundamental analysis, on the other hand,
relies on a study and evaluation of external factors which affect the price
of a futures contract in order to predict prices. These include political
and economic events, weather, supply and demand and changes in interest
rates.
The respective Advisors' trading strategies attempt to detect trends in
price movements for the commodities monitored by them. They normally seek
to establish positions and maintain such positions while the particular
market moves in favor of the position and to exit the particular market
and/or establish reverse positions when the favorable trend either reverses
or does not materialize. These trading strategies are not normally
successful if a particular market is moving in an erratic and non-trending
manner.
Because of the nature of the commodities markets, prices frequently appear
to be trending when a particular market is, in fact, without a trend. In
addition, the trading strategies may identify a particular market as
trending favorably to a position even though actual market performance
thereafter is the reverse of the trend identified.
None of the Advisors or their respective principals own any Units of the
Partnership. The Partnership's Advisors are independent Commodity Trading
Advisors and are not affiliated with the General Partners; however, all are
also Advisors to other commodity pools with which the General Partner is
currently associated and may own an interest in those pools. Each Advisor
is registered with the CFTC and is a member in such capacity with the NFA.
Because of their confidential nature, proprietary trading records of the
Advisors and their respective principals are not available for inspection
by the Limited Partners of the Partnership.
Fees, Compensation and Expenses
- -------------------------------
The General Partner(s) receive monthly management fees paid by the
Partnership. ProFutures, Inc. receives 1/4 of 1% of month-end Net Asset
Value (approximately 3% annually). ATA Research, Inc. received 1/12 of 1%
of month-end Net Asset Value (approximately 1% annually) through May 31,
2000.
Effective June 1, 2000, Kenmar Global Strategies Inc. (Kenmar) serves as a
consultant and performs similar functions as those previously performed by
ATA. Kenmar assists the General Partner in making decisions about which
commodity trading advisors to hire, the allocations among the advisors and
the day-to-day monitoring and risk management of the Partnership's trading
activities. Kenmar receives a monthly management fee of 1/12 of 1% of
month-end Net Asset Value (approximately 1% annually).
The current Advisors receive management fees ranging from 1% to 2% annually
of Allocated Net Asset Value (as defined in the trading advisory contracts).
Each of the four Advisors receives a quarterly incentive fee ranging from
20% to 23% of Trading Profits (as defined). The quarterly incentive fees
are payable only on cumulative profits achieved by each Advisor. For
example, if one of the Advisors to the Partnership experiences a loss after
an incentive fee payment is made, that Advisor retains such payments but
receives no further incentive fees until such Advisor has recovered the loss
and then generated subsequent Trading Profits since the last incentive fee
was paid such Advisor. An incentive fee may be paid to one Advisor but the
Partnership may experience no change or a decline in its Net Asset Value
because of the performance of another Advisor. The General Partner may
allocate or reallocate the Partnership's assets at any time among the
current Advisors or any others that may be selected. Upon termination of
an Advisor's contract, or at any other time in the discretion of the
General Partner, the Partnership may employ other advisors whose
compensation may be calculated without regard to the losses which may
be incurred by the present Advisors. Similarly, the Partnership may renew
its relationship with each Advisor on the same or different terms.
Notional Funding Note: As of December 31, 2001, the Partnership has
allocated notional funds to Advisors equal to approximately 49.3% of the
Partnership's cash and/or other margin - qualified assets. Of course, this
percentage may be higher or lower over any given 12 month period. The
management fees paid to an Advisor, if any, are a percentage of the nominal
account size of the account if an account had been notionally funded. The
nominal account size is equal to a specific amount of funds initially
allocated to an Advisor which increases by profits and decreases by losses
in the account, but not by additions to or withdrawals of actual funds from
the account. Some, but not all, Advisors are expected to be allocated
notional funds, and not all of the Advisors allocated notional funds are
expected to be paid management fees. Further, the amount of cash and/or
other margin-qualified assets in an account managed by an Advisor will vary
greatly at various times in the course of the Partnership's business,
depending on the General Partner's general allocation strategy and
pertinent margin requirements for the trading strategies undertaken by an
Advisor.
The Partnership is obligated to pay its periodic operating expenses,
consisting substantially of preparation of the limited partners' tax return
information, filing and recording charges, legal, printing, accounting and
auditing fees plus non-recurring expenses. Those periodic recurring
expenses are estimated at approximately .5% of the Partnership's average
annual Net Asset Value. Non-recurring expenses, not included within these
estimates, include expenses associated with significant litigation
including, but not limited to, class action suits, suits involving the
indemnification provisions of the Agreement of the Limited Partnership or
any other agreement to which the Partnership is a party; by their nature,
the dollar amount of non-recurring expenses cannot be estimated.
Additional descriptions and definitions are set forth in "Fees,
Compensation and Expenses" on Pages 30-35 of the Partnership's Prospectus,
dated July 31, 1994, which is incorporated herein by reference.
Brokerage Arrangements
- ----------------------
The General Partner, among other responsibilities, has the duty to select the
brokerage firms through which the Partnership's trading will be executed.
The General Partner has selected ABN AMRO Incorporated (ABN), (formerly ING
(U.S.) Securities, Futures & Options Inc.) as the Partnership's primary
clearing broker. ABN is registered with the CFTC as a Futures Commission
Merchant. It is a member of the NFA and a clearing member of the Chicago
Board of Trade and the International Monetary Market of the Chicago
Mercantile Exchange.
Regulation
- ----------
The U.S. futures markets are regulated under the Commodity Exchange Act
(CEA), which is administered by the Commodity Futures Trading Commission
(CFTC), a federal agency created in 1974. The CFTC licenses and regulates
commodity exchanges, commodity brokerage firms (referred to in the industry
as "Futures Commission Merchants"), Commodity Pool Operators, Commodity
Trading Advisors and others. The General Partner is registered with the
CFTC as a Commodity Pool Operator and each Advisor is registered as a
Commodity Trading Advisor.
Futures professionals such as the General Partner and the Advisors are
also regulated by the National Futures Association (NFA), a self-regulatory
organization for the futures industry that supervises the dealings between
futures professionals and their customers. If the pertinent CFTC
registrations or NFA memberships were to lapse, be suspended or be revoked,
the General Partner would be unable to act as the Partnership's Commodity
Pool Operator, and the respective Advisors as Commodity Trading Advisors,
to the Partnership.
The CFTC has adopted disclosure, reporting and recordkeeping requirements
for Commodity Pool Operators (such as the General Partner) and disclosure
and recordkeeping requirements for Commodity Trading Advisors. The
reporting rules require pool operators to furnish to the participants in
their pools a monthly statement of account, showing the pool's income or
loss and change in Net Asset Value and an annual financial report, audited
by an independent certified public accountant.
The CFTC and the exchanges have pervasive powers over the futures markets,
including the emergency power to suspend trading and order trading for
liquidation only (i.e., traders may liquidate existing positions but not
establish new positions). The exercise of such powers could adversely
affect the Partnership's trading.
Competition
- -----------
The Partnership may experience increased competition for the same futures or
option contracts. The Advisors may recommend similar or identical trades
to other accounts which they may manage; thus, the Partnership may be in
competition with such accounts for the same or similar positions. Such
competition may also increase due to the widespread utilization of
computerized trend-based trading methods similar to the methods used by
some of the Advisors. This Partnership may also compete with other funds
organized by the General Partner.
Item 2. Properties.
The Partnership does not own or lease any real property. The General
Partner currently provides all necessary office space at no additional
charge to the Partnership.
Item 3. Legal Proceedings.
The Partnership is not aware of any material pending legal proceedings to
which it is a party or to which any of its assets are subject.
Item 4. Submission of Matters to a Vote of Security Holders.
During the fiscal year ended December 31, 2001, no matters were submitted
to a vote of the holders of Units of Limited Partnership Interest ("Units")
through the solicitation of proxies or otherwise.
PART II
Item 5. Market for the Registrant's Securities and Related Security Holder
Matters.
The Partnership has filed a registration statement with the Securities and
Exchange Commission for the sale of up to $38,547,364 in Units of Limited
Partnership Interest. Such registration statement became effective as of
July 31, 1994. This offering was extended on January 31, 1995 and
continued through April 30, 1995. On June 23, 1995, Post-Effective
Amendment No. 3 was filed to deregister $20,721,920 of Units of Limited
Partnership Interest. As of December 31, 2001, a total of 16,570 Units
are outstanding and held by 1,243 Unit holders, including 225 Units held by
the General Partner. During the calendar year 2001 a total of 3,404 Units
were redeemed.
The General Partner has sole discretion in determining what distributions,
if any, the Partnership will make to its Unit holders. The General Partner
made no distributions as of December 31, 2001, or as of the date hereof. A
Limited Partner may request and receive redemption of Units subject to
restrictions in the limited partnership agreement.
Item 6. Selected Financial Data.
Following is a summary of certain financial information for the Partnership
for the calendar years 2001, 2000, 1999, 1998 and 1997.
2001
----
Realized Gains (Losses) $ 2,875,708
Change in Unrealized
Gains (Losses) on
Open Contracts 365,300
Interest Income 1,309,764
Management Fees 2,385,535
Incentive Fees 656,540
Net Income (loss) 201,219
General Partner Capital 458,665
Limited Partner Capital 33,325,130
Partnership Capital 33,783,795
Net Asset Value per General
and Limited Partner Unit
at End of Year 2,038.84
Net Income (loss) per Unit* 11.05
2000
----
Realized Gains (Losses) $ (8,292,461)
Change in Unrealized
Gains (Losses) on
Open Contracts (2,089,239)
Interest Income 3,045,014
Management Fees 2,906,733
Incentive Fees 1,049,494
Net Income (loss) (13,427,731)
General Partner Capital 455,817
Limited Partner Capital 40,014,820
Partnership Capital 40,470,637
Net Asset Value per General
and Limited Partner Unit
at End of Year 2,026.18
Net Income (loss) per Unit* (548.00)
1999
----
Realized Gains $ 1,352,473
Change in Unrealized
Gains (Losses) on
Open Contracts 2,464,741
Interest Income 3,582,696
Management Fees 4,167,022
Incentive Fees 1,765,210
Net Income (loss) (1,300,309)
General Partner Capital 1,075,348
Limited Partner Capital 69,348,028
Partnership Capital 70,423,376
Net Asset Value per General
and Limited Partner Unit
at End of Year 2,515.07
Net Income (loss) per Unit* (41.89)
1998
----
Realized Gains $ 19,109,408
Change in Unrealized
Gains (Losses) on
Open Contracts (3,138,069)
Interest Income 4,335,995
Management Fees 4,309,041
Incentive Fees 4,355,728
Net Income (loss) 8,077,921
General Partner Capital 1,111,029
Limited Partner Capital 84,445,470
Partnership Capital 85,556,499
Net Asset Value per General
and Limited Partner Unit
at End of Year 2,559.49
Net Income (loss) per Unit* 224.08
1997
----
Realized Gains $ 12,910,062
Change in Unrealized
Gains (Losses) on
Open Contracts 2,218,892
Interest Income 4,917,717
Management Fees 4,544,748
Incentive Fees 3,224,784
Net Income (loss) 8,533,713
General Partner Capital 1,328,151
Limited Partner Capital 87,741,893
Partnership Capital 89,070,044
Net Asset Value per General
and Limited Partner Unit
at End of Year 2,313.44
Net Income (loss) per Unit* 208.27
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* based on weighted average units outstanding during the year.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
The Partnership commenced trading on August 3, 1987. The success of the
Partnership is dependent on the ability of the Advisors to generate profits
through speculative trading sufficient to produce substantial capital
appreciation after payment of all fees and expenses. Future results will
depend in large part upon the futures markets in general, the performance
of the Advisors for the Partnership and the amount of redemptions and
changes in interest rates. Due to the highly leveraged nature of futures
trading, small price movements may result in substantial losses. Because
of the nature of these factors and their interaction, it is impossible to
predict future operating results.
(a) Liquidity. Substantially all of the Partnership's assets are held
in cash or cash equivalents. There are no restrictions on the liquidity
of these assets except for amounts on deposit with the broker needed to
meet margin requirements on open futures contracts.
Most United States exchanges (but generally not foreign exchanges, or banks
or broker-dealer firms in the case of foreign currency forward contracts)
limit by regulation the amount of fluctuation limits. The daily limits
establish the maximum amount the price of a futures contract may vary
either up or down from the previous day's settlement price at the end of
the trading session. Once the "daily limit" has been reached in a
particular commodity, no trades may be made at a price beyond the limit.
Positions in the commodity can then be taken or liquidated only if traders
are willing to effect trades at or within the limit during the period for
trading on such day. Because the "daily limit" rule only governs price
movement for a particular trading day, it does not limit losses. The rule
may, in fact, substantially increase losses because it may prevent the
liquidation of unfavorable positions. Futures prices have occasionally
moved the daily limit for several consecutive trading days, and thereby
prevented prompt liquidation of futures positions on one side of the
market, subjecting those futures traders involved to substantial losses.
Liquidity will be of concern to the Partnership primarily in that the futures
markets in which the Advisors take positions may have periods in which
illiquidity makes it impossible or economically undesirable to execute
trades which its respective trading strategy would otherwise suggest.
Other than in respect of the functioning of the markets in which it trades,
liquidity will be of little relevance to the operation of the Partnership
except insofar as the General Partner is relatively thinly capitalized.
Nonetheless, the General Partner believes it has sufficient funding to
meet both its capital contribution and net worth requirements based on
capital contributions from the principals of the General Partner, or
alternative funding sources, including the stock subscription from the
Clearing Broker to ProFutures, Inc.
(b) Capital Resources. The Partnership's initial offering and sale of Units
of Limited Partnership Interest commenced on May 27, 1987 and ended on
July 31, 1987 after having sold $6,130,568 of units at the initial
offering price of $1,000. The Partnership commenced trading August 3,
1987. The Partnership continued offering Units through February 29,
1988. Thereafter additional offerings of the Partnership's Units of
Limited Partnership Interest occurred on April 15, 1988, August 24,
1991, May 14, 1992, November 30, 1992, August 30, 1993 and July 31,
1994. The offering effective July 31, 1994 was extended on January 31,
1995 and continued through April 30, 1995. In June 1995, Post-Effective
Amendment No. 3 was filed to deregister the Partnership's remaining
$20,721,920 of Units of Limited Partnership Interest.
Since the Partnership's business is the purchase and sale of various
commodity interests, it will make few, if any, capital expenditures.
(c) Results of Operations. The Partnership's net income (loss) for each
quarter of the year ended December 31, 2001 and 2000 consisted of the
following:
1st Qtr. 2nd Qtr. 3rd Qtr. 4th Qtr.
2001 2001 2001 2001
-------- -------- -------- --------
Gain (loss) from
trading $ 1,975,768 $(1,865,452) $ 3,802,265 $ (671,573)
Total income (loss) 2,453,003 (1,518,477) 4,099,977 (483,731)
Net income (loss) 1,346,582 (2,462,589) 2,838,829 (1,521,603)
Net income (loss)
per Unit 68.31 (131.89) 162.14 (89.66)
Increase (decrease)
in Net Asset Value
per Unit 70.00 (130.92) 164.26 (90.68)
Net Asset Value per
Unit at end of
period 2,096.18 1,965.26 2,129.52 2,038.84
1st Qtr. 2nd Qtr. 3rd Qtr. 4th Qtr.
2000 2000 2000 2000
-------- -------- -------- --------
Gain (loss) from
trading $(10,722,425) $ (953,860) $ (911,992) $ 2,206,577
Total income (loss) (9,869,878) (200,724) (169,592) 2,903,508
Net income (loss) (11,669,245) (1,957,177) (1,460,688) 1,659,379
Net income (loss)
per Unit (424.52) (77.22) (62.18) 76.51
Increase (decrease)
in Net Asset Value
per Unit (426.28) (77.83) (62.87) 78.09
Net Asset Value per
Unit at end of
period 2,088.79 2,010.96 1,948.09 2,026.18
Due to the speculative nature of trading commodity interests, the
Partnership's income or loss from operations may vary widely from period to
period. Management cannot predict whether the Partnership's future Net Asset
Value per Unit will increase or experience a decline.
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS.
Year Ended December 31, 2001
----------------------------
2001 had net income of $201,219 or $11.05 per Unit. At December 31, 2001,
partners' capital totaled $33,783,795, a net decrease of $6,686,842 from
December 31, 2000. Net Asset Value per Unit at December 31, 2001 amounted
to $2,038.84, as compared to $2,026.18 at December 31, 2000, an increase of
0.62%.
The net income for 2001 resulted primarily from trading gains in the
interest rate, equity, metals and currencies markets, partially offset by
losses in the agricultural and energy markets. Partners' capital was
further reduced by redemptions of $6,888,061 during 2001.
Fourth Quarter 2001
-------------------
The fourth quarter of 2001 was marked by very volatile markets in the
aftermath of the events of September 11th, especially in terms of interest
rates. The Fund had an 8.65% gain in October. This was mostly attributed
to large gains in long-term interest rates, especially Euro Bond Futures and
U.S. Treasury Bond Futures. The Fund also had significant gains in short-
term interest rates, and medium-term interest rates.
In November, many of the October gains were reversed. There was a loss of
10.76%. The losses were mainly in short, medium and long-term interest
rates. There were also some losses in currencies. The Fed's continued
aggressive rate cutting policy resulted in very volatile markets for
interest rate futures.
In December, the Fund had a small loss of 1.26%. Although there were large
gains in currencies, especially Japanese Yen contracts, these gains were
offset by losses in interest rate futures. There were also losses in
agriculture, metals and energy.
Third Quarter 2001
------------------
The Partnership's net trading gains for the quarter ended September 30, 2001
resulted from gains in the agricultural, equities, metals and interest rates
market sectors, offset slightly by losses in the energies markets.
The quarter ended September 30, 2001 started out with gains in July in base
metals, precious metals, stock index futures and short-term interest rates.
The Fed's continuing loose monetary policy kept both short-term and long-term
interest rates somewhat volatile. August brought large gains in interest
rates and smaller gains in the base metals.
September 2001 was a very volatile month for the Fund due to the events of
September 11th. Although the U.S. markets were closed for the remainder of
the week, most overseas markets remained open, and significant gains were
made during this period. The Fund had significant profits in short-term
interest rate futures (mostly overseas). There were also large gains made in
medium-term interest rates, which were partially offset by losses in long-
term interest rates. There were also some significant gains in base metals
and losses in energy, which was especially volatile after the attacks on the
World Trade Center and the Pentagon. The Fund was able to end the quarter
with a profit of 8.36% and 5.10% for the nine months ended September 30,
2001.
Second Quarter 2001
-------------------
Those sectors which gained in March of 2001 showed losses of similar
magnitude in April 2001. A large part of the loss was a direct result of a
sudden and unexpected cut in U.S. interest rates by the Federal Reserve on
April 18th. This caused stock indexes as well as other markets to sharply
reverse their previous trends. May brought a small gain from a variety of
markets.
As of June 1, 2001, the General Partner made two significant changes to the
Fund. First, Gamma Capital Management was terminated as a Trading Advisor
and replaced with Winton Capital Management, Ltd. Second, the Fund's
leverage was increased through the use of notional funds to approximately
150% of assets. The General Partner instructed Winton to move into the
market in stages during the month of June rather than establish all positions
at once. The Fund ended the second quarter 2001 with a loss of 6.25% and the
first half of 2001 was a loss of 3.01%.
First Quarter 2001
------------------
The dominant economic force in the first quarter of 2001 was a series of
interest rate cuts by the U.S. Federal Reserve. This proved helpful in some
markets and created difficulty in others, yielding a relatively flat period
for the Fund early in 2001. The Fund's Trading Advisors had small losses
during January and February. March 2001 was a much more active month, and
the Advisors were able to show gains in almost all market sectors,
particularly foreign currencies, stock indexes, and interest rates. The only
negative sector in March was energy. For the first quarter of 2001, the
Fund's net result was a gain of 3.45%.
Year Ended December 31, 2000
----------------------------
2000 had a net loss of $(13,427,731) or $(488.89) per Unit. At
December 31, 2000, partners' capital totaled $40,470,637, a net decrease
of $29,952,739 from December 31, 1999. Net Asset Value per Unit at
December 31, 2000 amounted to $2,026.18, as compared to $2,515.07 at
December 31, 1999, a decrease of 19.44%.
The net loss for 2000 resulted primarily from trading losses in all market
sectors except the energy markets. The interest rates and metals market
sectors incurred the largest trading losses. Partners' capital was
further reduced by the large number of redemptions during 2000.
Year Ended December 31, 1999
----------------------------
1999 had a net loss of $(1,300,309) or $(41.89) per Unit. At December 31,
1999, partners' capital totaled $70,423,376, a net decrease of $15,133,123
from December 31, 1998. Net Asset Value per Unit at December 31, 1999
amounted to $2,515.07, as compared to $2,559.49 at December 31, 1998, a
decrease of 1.74%.
The net loss for 1999 resulted primarily from losses in the foreign
currencies and agricultural commodities markets and were only slightly
offset by gains in the energy, equities and metals markets. Partners'
capital was further reduced due to the high volume of redemptions during
1999.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Introduction
The Partnership is a commodity investment pool engaged in the trading of U.S.
and foreign futures contracts, options on U.S. and foreign futures contracts
and other commodity interests, including forward contracts on currencies
(collectively, "commodity interests"). These market sensitive derivative
instruments are acquired for speculative trading purposes. All, or
substantially all, of the Partnership's assets are, accordingly, subject to
the risk of trading loss. Unlike an operating company, the risk involved in
trading market sensitive derivative instruments is integral, not incidental,
to the Partnership's business.
Market movements result in frequent changes in the fair market value of the
Partnership's open positions and, consequently, in its earnings and cash flow.
The Partnership's market risk is influenced by a wide variety of factors,
including commodity price levels, the level and volatility of interest rates,
foreign currency exchange rates, equity price levels, the market value of
financial instruments and contracts, the diversification effects among the
Partnership's open positions and the liquidity of the markets in which it
trades.
The Partnership acquires and liquidates, generally on a short-term basis, both
long and short positions in a wide range of commodities markets.
Consequently, it is not possible to predict how a particular market scenario
projected into the future will affect performance, and the Partnership's past
performance is not necessarily indicative of its future results.
Value at Risk is a measure of the maximum amount which the Partnership could
reasonably be expected to lose in a given market sector. However, the
inherent uncertainty of the Partnership's speculative trading and the
recurrence in the markets traded by the Partnership of market movements far
exceeding expectations could result in actual trading or non-trading losses
far beyond the indicated Value at Risk or the Partnership's experience to
date. In light of the foregoing, as well as the risks and uncertainties
intrinsic to all future projections, the inclusion of the quantitative
disclosure included in this section should not be considered to constitute
any assurance or representation that the Partnership's losses in any market
sector will be limited to the Value at Risk or by the Partnership's attempts
to manage its market risk.
Materiality, as used in this section, is based on an assessment of reasonably
possible market movements and the potential losses caused by such movements,
taking into account the leverage, optionality and multiplier features of the
Partnership's market sensitive commodity interests.
Quantitative Disclosures About Trading Risk
The following quantitative disclosures regarding the Partnership's market risk
exposures contain "forward-looking statements" within the meaning of the safe
harbor from civil liability provided for such statements by the Private
Securities Litigation Reform Act of 1995 (set forth in Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934). All quantitative disclosures in this section are deemed to be
forward-looking statements for purposes of the safe harbor, except for
statements of historical fact (such as the terms and amounts related to
particular contracts and commodity interests held during or at the end of
the reporting period).
Risk exposure in the various market sectors traded by the Partnership's
Advisors is quantified below in terms of Value at Risk. Commodity interests
are recorded in the financial statements at fair market value; therefore, any
loss in the fair value of the Partnership's open positions is directly
reflected in the Partnership's earnings (realized or unrealized) and cash
flow.
The Partnership has used commodity exchange maintenance margin requirements as
the measure of its Value at Risk in a given market sector. Maintenance margin
requirements are set by exchanges to equal or exceed the maximum losses
reasonably expected to be incurred in the fair value of any given contract in
95% - 99% of any one-day intervals. The maintenance margin levels are
established by brokers and exchanges using historical price studies as well
as an assessment of current market volatility (including the implied
volatility of the options on a given futures contract) and economic
fundamentals to provide a probabilistic estimate of the maximum expected
near-term one-day price fluctuation. Maintenance margin has been used rather
than the more generally available initial margin, because initial margin
includes a credit risk component which is not relevant to Value at Risk.
The following table indicates the trading Value at Risk associated with the
Partnership's open positions by market category as of December 31, 2001 and
2000. All open position trading risk exposures of the Partnership have
been included in calculating the figures set forth below. As of December 31,
2001 and 2000, the Partnership's total capitalization was approximately
$33.8 million and $40.5 million, respectively.
December 31, December 31,
2001 2000
---------------------- ----------------------
% of % of
Total Total
Value at Capital- Value at Capital-
Market Sector Risk ization Risk ization
------------- ---------- ------- ---------- -------
Agriculture $ 660,000 1.9% $ 59,000 0.1%
Currencies 656,000 1.9% 229,000 0.6%
Energy and other 453,000 1.3% 549,000 1.4%
Stock indices 907,000 2.7% 552,000 1.4%
Interest rates 1,368,000 4.1% 737,000 1.8%
Metals 289,000 0.9% 100,000 0.2%
---------- ----- ---------- -----
Total $4,333,000 12.8% $2,226,000 5.5%
========== ===== ========== =====
The following table indicates the highest and lowest quarterly returns and
the average and total annual returns for 2001 by market category based on
trading gains and losses earned during the year. These returns are calculated
based on the net asset value per unit at the beginning of the fiscal year 2001.
HIGH LOW AVERAGE ANNUAL
---- --- ------- ------
Agriculture 0.40% (1.41)% (0.16)% (0.66)%
Currencies 1.43% (0.67)% 0.33% 1.33%
Energy and Other 0.97% (0.05)% (0.84)% (3.37)%
Stock Indices 1.61% (0.62)% 0.37% 1.47%
Interest Rates 7.41% (4.46)% 2.26% 9.05%
Metals 2.93% (2.53)% 0.25% 0.98%
The face value of the market sector instruments held by the Partnership is
typically many times the applicable maintenance margin requirement
(maintenance margin requirements generally range between approximately 1%
and 10% of contract face value) as well as many times the capitalization of
the Partnership. The magnitude of the Partnership's open positions creates
a risk of loss not typically found in most other financial instruments.
Because of the size of its positions, certain market conditions - unusual,
but historically recurring from time to time - could cause the Partnership to
incur severe losses over a short period of time. The foregoing Value at Risk
table - as well as the past performance of the Partnership - give no
indication of the magnitude of this risk of loss.
Qualitative Disclosures About Trading Risk
The following qualitative disclosures regarding the Partnership's market risk
exposures - except for (i) those disclosures that are statements of historical
fact and (ii) the descriptions of how the Partnership manages its primary
market risk exposures - constitute forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act. The Partnership's primary market risk exposures as well as the
strategies used and to be used by the General Partner and the Advisors for
managing such exposures are subject to numerous uncertainties, contingencies
and risks, any one of which could cause the actual results of the
Partnership's risk controls to differ materially from the objectives of such
strategies. Government interventions, defaults and expropriations, illiquid
markets, the emergence of dominant fundamental factors, political upheavals,
changes in historical price relationships, an influx of new market
participants, increased regulation and many other factors could result in
material losses as well as in material changes to the risk exposures and the
risk management strategies of the Partnership. There can be no assurance that
the Partnership's current market exposure and/or risk management strategies
will not change materially or that any such strategies will be effective in
either the short- or long-term. Investors must be prepared to lose all or
substantially all of their investment in the Partnership.
The following were the primary trading risk exposures of the Partnership as
of and during the year ended December 31, 2001, by market sector.
Stock Indices
- -------------
The Partnership's primary equity exposure is to fluctuations in equity prices.
The stock index futures traded by the Partnership are by law limited to
futures on broadly based indices. As of December 31, 2001, the Partnership's
primary exposure was to stock indices in the European and Australian markets.
The General Partner anticipates that the Partnership will primarily be exposed
to the risk of adverse price trends or static markets in the major U.S. and
global equity indices.
Metals
- ------
The Partnership's primary metals market exposure is to fluctuations in the
price of both precious and base metals. As of December 31, 2001, the
Partnership's primary exposures were to copper, platinum, gold and silver.
The General Partner anticipates that the Partnership will continue to be
exposed to the metals markets.
Agriculture
- -----------
The Partnership's primary agriculture commodities exposure is to agricultural
price movements which are often directly affected by severe or unexpected
weather conditions. The Partnership's agriculture commodities exposure was
primarily to coffee, cocoa, grains and soy bean products as of December 31,
2001. The General Partner anticipates that agriculture commodities such as
meats and fibers may also be a potential market exposure.
Currencies
- ----------
The Partnership's currency exposure is to exchange rate fluctuations,
primarily fluctuations which disrupt the historical pricing relationships
between different currencies and currency pairs. These fluctuations are
influenced by interest rate changes as well as political and general economic
conditions. The Partnership trades long and short positions in a large number
of currencies, including cross-currency positions between two currencies other
than the U.S. dollar. As of December 31, 2001, the Partnership's primary
exposures were in British pounds, Canadian dollars, Japanese Yen and Mexican
Pesos. The General Partner anticipates that the risk profile of the
Partnership's currency sector will predominantly relate to the U.S. and major
European and Asian countries. The currency trading Value at Risk figure
includes foreign margin amounts converted into U.S. dollars with an incremental
adjustment to reflect the exchange rate risk inherent to the dollar-based
Partnership in expressing Value at Risk in a functional currency other than
dollars.
Interest Rates
- --------------
Interest rate movements directly affect the value of commodity interests
related to U.S. and foreign bonds and bond indices, and indirectly affect the
value of its equity index and currency positions. Interest rate movements in
one country, as well as relative interest rate movements between countries, can
materially impact the Partnership's profitability. The Partnership's primary
interest rate exposure is to interest rate fluctuations in the United States
and the major European and Asian countries. However, the Partnership may also
take positions affected by interest rates on the government debt of smaller
nations, such as Australia. The General Partner anticipates that interest
rates in such major countries will be a primary market exposure of the
Partnership for the foreseeable future. The changes in interest rates which
would likely have the most effect on the Partnership are changes in long-term,
as opposed to short-term, rates. Most of the financial instruments underlying
the commodity interests held by the Partnership during the year were medium- to
long-term instruments. Consequently, even a material change in short-term
rates might have little effect on the Partnership if medium- to long-term
rates were to remain steady.
Energy
- ------
The Partnership's energy market exposure is to gas and oil price movements,
often resulting from political developments in the Middle East.
Disclosures About Non-Trading Risk
The Partnership has non-trading market risk on its foreign cash balances not
needed to maintain margin requirements. However, these balances (as well as
the market risk they represent) are immaterial.
The Partnership also has non-trading cash flow risk as a result of investing
a substantial portion of its assets in interest-bearing deposits with brokers.
If short-term interest rates decline, then cash flow from interest income
related to broker deposits will also decline.
Qualitative Disclosures About Managing Risk Exposure
The means by which the General Partner and the Advisors attempt to manage
the risk of the Partnership's open positions is essentially the same in all
market categories traded. The General Partner attempts to manage market
exposure by (i) diversifying the Partnership's assets among different
Advisors whose strategies focus on different market sectors and trading
approaches, and (ii) monitoring the Partnership's actual market exposures on
a daily basis and reallocating assets away from Advisors, as necessary, if an
over-concentration develops and persists in any one market sector or market
sensitive commodity interest. Each Advisor applies its own risk management
policies to its trading. These Advisor policies generally limit the total
exposure that may be taken per "risk unit" of assets under management. In
addition, many Advisors follow diversification guidelines (often formulated
in terms of the maximum margin which they will commit to positions in any one
contract or group of related contracts), as well as imposing "stop-loss"
points at which open positions must be closed out. Certain Advisors treat
their risk control policies as strict rules; others only as general
guidelines for controlling risk.
Item 8. Financial Statements and Supplementary Data.
Financial statements meeting the requirements of Regulation S-X are listed
on page F-1 of this report. The Supplementary Financial information
specified by Item 302 of Regulation S-K is included in Item 7(c), Results
of Operations.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None.
PART III
Item 10. Directors and Executive Officers of the Partnership.
The Partnership is a limited partnership and therefore does not have any
directors or officers. The Partnership's General Partner, ProFutures, Inc.,
administers and manages the affairs of the Partnership.
Item 11. Executive Compensation.
As discussed above, the Partnership does not have any officers, directors or
employees. The General Partner received monthly management fees which
aggregated $1,127,522 for 2001, or approximately 3% of the Partnership's Net
Asset Value.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
(a) As of December 31, 2001, a total of 16,570 Units are issued and
outstanding, representing 1 General Partner and 1,242 Limited
Partners. The Partnership knows of no one person who owns
beneficially more than 5% of the Limited Partners' Units.
(b) The General Partner and its principals owned 225 Units as of
December 31, 2001, having an aggregate value of $458,665, which is
approximately 1% of the Net Asset Value of the Partnership.
(c) Changes in control. None have occurred and none are expected.
Item 13. Certain Relationships and Related Transactions.
The Partnership's Prospectus, dated July 31, 1994, Pages 16-18, which is
incorporated herein by reference, contains information concerning the
relationships and transactions between the General Partner(s), the Clearing
Broker and the Partnership.
PART IV
Item 14. Exhibits, Financial Statements, Schedules and Reports on Form 8-K.
(a)(1) Financial Statements.
See Index to Financial Statements on page F-1.
The Financial Statements begin on page F-3.
(a)(2) Schedules are omitted for the reason that all required information
is contained in the financial statements included in (a)(1) above
or are not applicable.
(a)(3) Exhibits as required by Item 601 of Regulation S-K.
*1.1 Form of Selling Agreement between the Partnership and
ProFutures Financial Group, Inc.
*1.2 Form of Additional Selling Agents Agreement between
ProFutures Financial Group, Inc. and certain
Additional Selling Agents.
*3.1 Agreement of Limited Partnership (attached to the
Prospectus as Exhibit A).
*3.2 Subscription Agreement and Power of Attorney (attached
to the Prospectus as Exhibit B).
*3.3 Request for Redemption Form (attached to the
Prospectus as Exhibit C).
*5.1 Opinion of Counsel as to the legality of the Units.
*8.1 Tax Opinion of Counsel
- -----------------------
* The foregoing forms of exhibits were filed in the April 6, 1987
Registration Statement No. 33-13008 and/or Post-Effective Amendment No. 1
thereto filed March 11, 1988, and/or the June 5, 1991 Registration
Statement No. 33-41073, and/or Pre-Effective Amendment No. 1 thereto filed
August 8, 1991, and/or Post-Effective Amendment No. 1 thereto filed
March 26, 1992; and/or the October 14, 1992 Registration Statement
No. 33-53324, and/or the November 17, 1992 Pre-effective Amendment No. 1
thereto and/or the July 2, 1993 Registration Statement No. 33-65596, and/
or the Pre-Effective Amendment No. 1 thereto filed August 16, 1993, and
Supplement dated December 3, 1993, Post-Effective Amendment No. 2 thereto
filed June 30, 1994 and Supplement dated January 31, 1995, and/or Post-
Effective Amendment No. 3 dated June 23, 1995. Accordingly, such exhibits
are incorporated herein by reference and notified herewith.
(b) Reports on Form 8-K.
None.
(c) Exhibits.
10.4 Form of Consulting Agreement between the Registrant and Kenmar
Global Strategies Inc.
10.5 Form of Stock Subscription Agreement by and between ABN AMRO
Incorporated and ProFutures, Inc.
(d) Financial Statement Schedules.
Not Applicable or information included in the financial statements.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Partnership has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PROFUTURES DIVERSIFIED FUND, L.P.
(Partnership)
By /s/ GARY D. HALBERT
- -------------------------- ----------------------------------
Date Gary D. Halbert, President
ProFutures, Inc., General Partner
ProFutures Diversified Fund, L.P.
PROFUTURES DIVERSIFIED FUND, L.P.
-----------------
TABLE OF CONTENTS
-----------------
PAGES
-----
Independent Auditors' Reports F-2
Financial Statements
Statements of Financial Condition
December 31, 2001 and 2000 F-3
Condensed Schedule of Investments
December 31, 2001 F-4
Statements of Operations For the Years
Ended December 31, 2001, 2000 and 1999 F-5
Statements of Changes in Partners' Capital (Net Asset Value)
For the Years Ended December 31, 2001, 2000 and 1999 F-6
Notes to Financial Statements F-7 - F-12
F-1
INDEPENDENT AUDITOR'S REPORT
----------------------------
To the Partners
ProFutures Diversified Fund, L.P.
We have audited the accompanying statements of financial condition of
ProFutures Diversified Fund, L.P. as of December 31, 2001 and 2000, including
the December 31, 2001 condensed schedule of investments, and the related
statements of operations and changes in partners' capital (net asset value) for
the years ended December 31, 2001, 2000 and 1999. These financial statements
are the responsibility of the Partnership's management. Our responsibility is
to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit 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 financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of ProFutures Diversified Fund,
L.P. as of December 31, 2001 and 2000, and the results of its operations and
the changes in its net asset values for the years ended December 31, 2001, 2000
and 1999, in conformity with accounting principles generally accepted in the
United States of America.
/s/ ARTHUR F. BELL, JR. & ASSOCIATES, L.L.C.
Hunt Valley, Maryland
February 20, 2002
F-2
PROFUTURES DIVERSIFIED FUND, L.P.
STATEMENTS OF FINANCIAL CONDITION
December 31, 2001 and 2000
-------------
2001 2000
---- ----
ASSETS
Equity in broker trading accounts
Cash $33,194,404 $41,325,905
Unrealized gain on open contracts 1,673,933 1,308,633
----------- -----------
Deposits with broker 34,868,337 42,634,538
Cash 1,115 2,643
----------- -----------
Total assets $34,869,452 $42,637,181
=========== ===========
LIABILITIES
Accounts payable $ 22,660 $ 21,133
Commissions and other trading fees
on open contracts 57,380 17,533
Incentive fees payable 0 365,030
Management fees payable 355,932 350,217
Redemptions payable 649,685 1,412,631
----------- -----------
Total liabilities 1,085,657 2,166,544
----------- -----------
PARTNERS' CAPITAL (Net Asset Value)
General Partner - 225 units outstanding
at December 31, 2001 and 2000 458,665 455,817
Limited Partners - 16,345 and 19,749 units
outstanding at December 31, 2001 and 2000 33,325,130 40,014,820
----------- -----------
Total partners' capital
(Net Asset Value) 33,783,795 40,470,637
----------- -----------
$34,869,452 $42,637,181
=========== ===========
See accompanying notes.
F-3
PROFUTURES DIVERSIFIED FUND, L.P.
CONDENSED SCHEDULE OF INVESTMENTS
December 31, 2001
------------
LONG FUTURES CONTRACTS
- ----------------------
% of Net
Description Value Asset Value
----------- ----- -----------
Agricultural $ 70,628 0.21%
Currency 229,655 0.68%
Energy (7,795) (0.02)%
Interest rate 127,974 0.38%
Metal (42,537) (0.13)%
Stock index 200,725 0.59%
---------- -----
Total long futures contracts $ 578,650 1.71%
---------- -----
SHORT FUTURES CONTRACTS
- ----------- -----------
Agricultural $ 284,152 0.84%
Currency 865,713 2.56%
Energy (76,514) (0.23)%
Interest rate 193,029 0.57%
Metal (191,203) (0.56)%
Stock index 20,106 0.06%
---------- -----
Total short futures contracts $1,095,283 3.24%
---------- -----
Total futures contracts $1,673,933 4.95%
========== =====
See accompanying notes.
F-4
PROFUTURES DIVERSIFIED FUND, L.P.
STATEMENTS OF OPERATIONS
For the Years Ended December 31, 2001, 2000 and 1999
-------------
2001 2000 1999
---- ---- ----
INCOME
Trading gains (losses)
Realized $ 2,875,708 $ (8,292,461) $ 1,352,473
Change in unrealized 365,300 (2,089,239) 2,464,741
------------ ------------ ------------
Gain (loss) from trading 3,241,008 (10,381,700) 3,817,214
Interest income 1,309,764 3,045,014 3,582,696
------------ ------------ ------------
Total income (loss) 4,550,772 (7,336,686) 7,399,910
------------ ------------ ------------
EXPENSES
Brokerage commissions 1,142,855 1,924,222 2,572,880
Incentive fees 656,540 1,049,494 1,765,210
Management fees 2,385,535 2,906,733 4,167,022
Operating expenses 164,623 210,596 195,107
------------ ------------ ------------
Total expenses 4,349,553 6,091,045 8,700,219
------------ ------------ ------------
NET INCOME (LOSS) $ 201,219 $(13,427,731) $ (1,300,309)
============ ============ ============
NET INCOME (LOSS) PER GENERAL
AND LIMITED PARTNER UNIT
(based on weighted average
number of units outstanding
during the year of 18,216,
24,503 and 31,041,
respectively) $ 11.05 $ (548.00) $ (41.89)
============ ============ ============
INCREASE (DECREASE) IN NET ASSET
VALUE PER GENERAL AND LIMITED
PARTNER UNIT $ 12.66 $ (488.89) $ (44.42)
============ ============ ============
See accompanying notes.
F-5
PROFUTURES DIVERSIFIED FUND, L.P.
STATEMENTS OF CHANGES IN PARTNERS' CAPITAL (NET ASSET VALUE)
For the Years Ended December 31, 2001, 2000 and 1999
-------------
Total Partners' Capital
Number of ----------------------------------------
Units General Limited Total
--------- ---------- ------------ ------------
Balances at
December 31, 1998 33,427 $1,111,029 $ 84,445,470 $ 85,556,499
Net (loss) for
the year ended
December 31, 1999 (19,570) (1,280,739) (1,300,309)
Redemptions (5,427) (16,111) (13,816,703) (13,832,814)
------ ---------- ------------ ------------
Balances at
December 31, 1999 28,000 1,075,348 69,348,028 70,423,376
Net (loss) for
the year ended
December 31, 2000 (202,864) (13,224,867) (13,427,731)
Redemptions (8,026) (416,667) (16,108,341) (16,525,008)
------ ---------- ------------ ------------
Balances at
December 31, 2000 19,974 455,817 40,014,820 40,470,637
Net income for
the year ended
December 31, 2001 2,848 198,371 201,219
Redemptions (3,404) 0 (6,888,061) (6,888,061)
------ ---------- ------------ ------------
Balances at
December 31, 2001 16,570 $ 458,665 $ 33,325,130 $ 33,783,795
====== ========== ============ ============
Net Asset Value Per Unit
---------------------------------
December 31,
2001 2000 1999
---- ---- ----
$2,038.84 $2,026.18 $2,515.07
========= ========= =========
See accompanying notes.
F-6
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS
-------------
Note 1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
-----------------------------------------------------------
A. General Description of the Partnership
ProFutures Diversified Fund, L.P. (the Partnership) is a Delaware
limited partnership which operates as a commodity investment pool.
The Partnership engages in the speculative trading of futures
contracts and other financial instruments.
B. Regulation
As a registrant with the Securities and Exchange Commission, the
Partnership is subject to the regulatory requirements under the
Securities Act of 1933 and the Securities Exchange Act of 1934.
As a commodity investment pool, the Partnership is subject to the
regulations of the Commodity Futures Trading Commission, an agency
of the United States (U.S.) government which regulates most
aspects of the commodity futures industry; rules of the National
Futures Association, an industry self-regulatory organization; and
the requirements of commodity exchanges and Futures Commission
Merchants (brokers) through which the Partnership trades.
C. Method of Reporting
The Partnership's financial statements are presented in accordance
with accounting principles generally accepted in the United States
of America, which require the use of certain estimates made by the
Partnership's management. Transactions are accounted for on the
trade date. Gains or losses are realized when contracts are
liquidated. Unrealized gains or losses on open contracts (the
difference between contract trade price and quoted market price)
are reflected in the statement of financial condition as a net
gain or loss, as there exists a right of offset of unrealized
gains or losses in accordance with Financial Accounting Standards
Board Interpretation No. 39 - "Offsetting of Amounts Related to
Certain Contracts." Any change in net unrealized gain or loss
from the preceding period is reported in the statement of
operations.
For purposes of both financial reporting and calculation of
redemption value, Net Asset Value per Unit is calculated by
dividing Net Asset Value by the total number of units outstanding.
D. Brokerage Commissions
Brokerage commissions include other trading fees and are charged
to expense when contracts are opened.
F-7
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
-------------
Note 1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(CONTINUED)
-----------------------------------------------------------
E. Income Taxes
The Partnership prepares calendar year U.S. and applicable state
information tax returns and reports to the partners their
allocable shares of the Partnership's income, expenses and trading
gains or losses.
F. Foreign Currency Transactions
The Partnership's functional currency is the U.S. dollar; however,
it transacts business in currencies other than the U.S. dollar.
Assets and liabilities denominated in currencies other than the
U.S. dollar are translated into U.S. dollars at the rates in
effect at the date of the statement of financial condition.
Income and expense items denominated in currencies other than the
U.S. dollar are translated into U.S. dollars at the rates in
effect during the period. Gains and losses resulting from the
translation to U.S. dollars are reported in income currently.
G. Statement of Financial Accounting Standards No. 133
In June 1998, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards ("SFAS") No. 133,
"Accounting for Derivative Instruments and Hedging Activities"
(the "Statement"), effective for fiscal years beginning after
June 15, 2000, as amended by SFAS No. 137 and SFAS No. 138.
This Statement supersedes SFAS No. 119, "Disclosure about
Derivative Financial Instruments and Fair Value of Financial
Instruments," and SFAS No. 105, "Disclosure of Information about
Financial Instruments with Off-Balance Sheet Risk and Financial
Instruments with Concentrations of Credit Risk," whereby
disclosure of average aggregate fair values and contract/notional
values, respectively, of derivative financial instruments is no
longer required for an entity such as the Partnership which
carries its assets at fair value. The application of the
provisions of SFAS No. 133, as amended by SFAS No. 137 and SFAS
No. 138, did not have a significant effect on the financial
statements.
Note 2. GENERAL PARTNER(S)
------------------
The General Partner of the Partnership is ProFutures, Inc., which
conducts and manages the business of the Partnership. ATA Research,
Inc. (ATA) was Co-General Partner until its withdrawal effective
October 1, 2000. The Agreement of Limited Partnership requires the
General Partner(s) to contribute to the Partnership an amount in the
aggregate equal to at least the greater of (i) 3% of the aggregate
initial capital contributions of all partners or $100,000, whichever
is less, or (ii) 1% of the aggregate initial capital contributions of
all partners.
F-8
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
-------------
Note 2. GENERAL PARTNER(S) (CONTINUED)
------------------------------
The Agreement of Limited Partnership also requires that the General
Partner(s) maintain in the aggregate a net worth at least equal to
(i) the lesser of $250,000 or 15% of the aggregate initial capital
contributions of any limited partnerships for which they act as
general partner and which are capitalized at less than $2,500,000;
and (ii) 10% of the aggregate initial capital contributions of any
limited partnerships for which they act as general partner and which
are capitalized at greater than $2,500,000.
ProFutures, Inc. has callable subscription agreements with ABN AMRO
Incorporated (ABN) (formerly ING (U.S.) Securities, Futures & Options,
Inc.), the Partnership's broker, whereby ABN has subscribed to
purchase (up to $14,000,000) the number of shares of common stock of
ProFutures, Inc. necessary to maintain the General Partners' net worth
requirements.
A monthly management fee is paid by the Partnership to each General
Partner. ATA received 1/12 of 1% of month-end Net Asset Value
(approximately 1% annually) through May 31, 2000, and ProFutures, Inc.
receives 1/4 of 1% of month-end Net Asset Value (approximately 3%
annually).
Total management fees earned by ProFutures, Inc. for the years ended
December 31, 2001, 2000 and 1999 were $1,127,522, $1,538,392 and
$2,385,225, respectively. Management fees payable to ProFutures, Inc.
as of December 31, 2001 and 2000 were $86,255 and $105,563,
respectively. Total management fees earned by ATA for the years ended
December 31, 2000 and 1999 were $245,830 and $795,075, respectively.
Note 3. CONSULTANT
----------
Effective June 1, 2000, Kenmar Global Strategies Inc. (Kenmar) serves
as a consultant and performs similar functions as those previously
performed by ATA. Kenmar assists the General Partner in making
decisions about which commodity trading advisors to hire, the
allocations among the advisors and the day-to-day monitoring and risk
management of the Partnership's trading activities. Kenmar receives a
monthly management fee of 1/12 of 1% of month-end Net Asset Value
(approximately 1% annually).
Note 4. COMMODITY TRADING ADVISORS
--------------------------
The Partnership has trading advisory contracts with several commodity
trading advisors to furnish investment management services to the
Partnership. Certain advisors receive management fees ranging from
1% to 2% annually of Allocated Net Asset Value (as defined in each
respective trading advisory contract). In addition, the trading
advisors receive quarterly incentive fees ranging from 20% to 27.5%
of Trading Profits (as defined).
F-9
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
-------------
Note 5. DEPOSITS WITH BROKER
--------------------
The Partnership deposits funds with ABN to act as broker, subject to
Commodity Futures Trading Commission regulations and various exchange
and broker requirements. Margin requirements are satisfied by the
deposit of cash with such broker. The Partnership earns interest
income on its assets deposited with the broker.
Note 6. SUBSCRIPTIONS, DISTRIBUTIONS AND REDEMPTIONS
--------------------------------------------
Investments in the Partnership were made by subscription agreement,
subject to acceptance by the General Partner. The Partnership's most
recent offering of Units of Limited Partnership Interest terminated
on April 30, 1995.
The Partnership is not required to make distributions, but may do so
at the sole discretion of the General Partner. A Limited Partner may
request and receive redemption of units owned, subject to restrictions
in the Agreement of Limited Partnership.
Note 7. TRADING ACTIVITIES AND RELATED RISKS
------------------------------------
The Partnership engages in the speculative trading of U.S. and foreign
futures contracts and options on U.S. and foreign futures contracts
(collectively, "derivatives"). The Partnership is exposed to both
market risk, the risk arising from changes in the market value of the
contracts, and credit risk, the risk of failure by another party to
perform according to the terms of a contract.
Purchase and sale of futures and options on futures contracts requires
margin deposits with the broker. Additional deposits may be
necessary for any loss on contract value. The Commodity Exchange Act
requires a broker to segregate all customer transactions and assets
from such broker's proprietary activities. A customer's cash and
other property (for example, U.S. Treasury bills) deposited with a
broker are considered commingled with all other customer funds subject
to the broker's segregation requirements. In the event of a broker's
insolvency, recovery may be limited to a pro rata share of segregated
funds available. It is possible that the recovered amount could be
less than total cash and other property deposited.
For derivatives, risks arise from changes in the market value of the
contracts. Theoretically, the Partnership is exposed to a market risk
equal to the notional contract value of futures contracts purchased
and unlimited liability on such contracts sold short. As both a buyer
and seller of options, the Partnership pays or receives a premium at
the outset and then bears the risk of unfavorable changes in the price
of the contract underlying the option. Written options expose the
Partnership to potentially unlimited liability, and purchased options
expose the Partnership to a risk of loss limited to the premiums paid.
F-10
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
-------------
Note 7. TRADING ACTIVITIES AND RELATED RISKS (CONTINUED)
------------------------------------------------
The Partnership has a portion of its assets on deposit with a
financial institution in connection with its cash management
activities. In the event of a financial institution's insolvency,
recovery of Partnership assets on deposit may be limited to account
insurance or other protection afforded such deposits.
The General Partner has established procedures to actively monitor
market risk and minimize credit risk, although there can be no
assurance that it will, in fact, succeed in doing so. The General
Partner's basic market risk control procedures consist of continuously
monitoring the trading activity of the various commodity trading
advisors, with the actual market risk controls being applied by the
advisors themselves. The General Partner seeks to minimize credit
risk primarily by depositing and maintaining the Partnership's assets
at financial institutions and brokers which the General Partner
believes to be creditworthy. The Limited Partners bear the risk of
loss only to the extent of the market value of their respective
investments and, in certain specific circumstances, distributions and
redemptions received.
F-11
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
-------------
Note 8. FINANCIAL HIGHLIGHTS
--------------------
The following information presents per unit operating performance
data and other supplemental financial data for the year ended
December 31, 2001. This information has been derived from
information presented in the financial statements.
Per Unit Performance
(for a unit outstanding throughout the entire year)
---------------------------------------------------
Net asset value per unit at December 31, 2000 $2,026.18
---------
Income (loss) from operations:
Net investment (loss) (1), (3) (104.14)
Net realized and change in unrealized
gain from trading (2), (3) 116.80
---------
Total income from operations 12.66
---------
Net asset value per unit at December 31, 2001 $2,038.84
=========
Total Return 0.62%
=====
Supplemental Data
Ratios to average net asset value:
Expenses prior to incentive fees (4) (6.88)%
Incentive fees (1.77)%
-----
Total expenses and incentive fees (1) (8.65)%
=====
Net investment (loss) (1) (5.12)%
=====
Total return is calculated based on the change in value of a unit
during the year. An individual partner's total return and ratios may
vary from the above total return and ratios based on the timing of
additions and redemptions.
---------------
(1) Excludes brokerage commissions and other trading fees.
(2) Includes brokerage commissions and other trading fees.
(3) The net investment (loss) per unit is calculated by dividing the
net investment (loss) by the average number of units outstanding
during the year. The net realized and change in unrealized gain
from trading is a balancing amount necessary to reconcile the
change in net asset value per unit with the other per unit
information.
(4) Excludes brokerage commissions, other trading fees and incentive
fees.
F-12
Exhibit 10.4
CONSULTING AGREEMENT
This Consulting Agreement (as it may be amended from time-to-time, the
"Agreement") is made this June 1, 2000, by and between ATA Research/ProFutures
Diversified Fund, L.P. (the "Fund"), a Delaware limited partnership, and Kenmar
Global Strategies Inc., a Connecticut corporation (the "Consultant").
----------
PRELIMINARY STATEMENT
1. The Fund is engaged in the speculative trading of Commodity Interests
(as hereinafter defined) under the direction of multiple professional commodity
trading advisors.
2. The Fund will retain the Consultant to, among other things, recommend
the selection and termination of trading advisors to manage the Fund's trading
in Commodity Interests, and to recommend the allocation and reallocation of the
Fund's assets and notional funds among such trading advisors.
----------
Section 1. Glossary of Terms. In this Agreement, the following terms
shall have the meanings set forth below unless inconsistent with the subject or
context.
Business Day Weekdays, except for banking holidays in the United
States.
CEA The United States Commodity Exchange Act, as amended,
and regulations thereunder.
CFTC The Unites States Commodity Futures Trading Commission.
Commodity Interests Commodity futures contracts, spot and forward currency
contracts, cash commodities, swaps and rights and
options on any of the foregoing, whether executed on an
exchange or in over-the-counter transactions.
Disclosure Document The CFTC regulated disclosure document prepared by each
of the Trading Advisors.
Effective Date June 1, 2000.
General Partner ProFutures, Inc., the General Partner of the Fund.
Net Asset Value Net Asset Value means the Fund's total assets less
total liabilities, determined according to the
following principles, and where no such principle is
governing, then on the basis of Generally Accepted
accounting Principles, consistently applied. For
purposes of this calculation.
(a) Net Asset Value includes any realized or
unrealized profit or loss on open securities and open
commodity positions.
(b) All open securities and open commodity positions
are valued at their then market value, which means with
respect to open commodity position, the settlement
price as determined by the exchange on which the
transaction is effected or the most recent appropriate
quotation as supplied by the Broker or banks through
which the transaction is effected except the United
States Treasury Bills (not futures contracts thereon)
shall be carried at their cost plus accrued interest.
If there are no trades on the date of the calculation
due to the operation of the daily price fluctuation
limits or due to a closing of the exchange on which the
transaction is executed, the contract is valued at the
nominal settlement price as determined by the exchange.
1
Interest, if any, shall be accrued monthly. The
liquidating or market value of a commodity futures or
options contract not traded on a United States
commodity exchange shall mean its liquidating value
determined by the General Partner on a basis
consistently applied for each different variety of
contract.
(c) Brokerage commissions on open positions shall be
accrued in full as a liability of the Fund upon the
initiation of such open positions. Management and
incentive fees paid to the trading advisors shall be
accrued monthly for purposes of calculating Net Asset
Value only, even if not paid until the end of the
quarter, incentive fees are calculated without regard
to the fees paid to any consultant and the General
Partner.
NFA The United States National Futures Association.
Trading Level The aggregate amount of assets which the trading
advisors are instructed to treat as equity under
management regardless of the actual level of Fund
assets held in the accounts), which includes any
notional funds, plus or minus increases or decreases in
the allocated Net Asset Value since the most recent
designation of the trading Level by the General
Partner.
Units The Fund's Units of Limited Partnership Interest.
Section 2. Duties of the Consultant. Beginning with the Effective Date
and throughout the term of this Agreement, the Consultant shall perform
services for the Fund as follows:
a. From time-to-time, as reasonably requested by the General Partner or
more frequently if the Consultant sees fit, Consultant shall recommend to the
General Partner the selection and termination of trading advisors for the Fund,
and the allocation and reallocation of the Trading Level and Net Asset Value
among the trading advisors. The Consultant will use its best efforts to
provide the Fund with trading advisors which the Consultant believes it is in
the best interests of the Fund to retain from time to time, subject to:
(i) the availability of such trading advisors, (ii) the fees which the Fund
will pay the trading advisors and (iii) due consideration to the overall
portfolio objectives of the Fund. Notwithstanding the foregoing, Consultant
shall not have any discretionary authority with respect to the Fund whatsoever
and all decisions regarding the selection and termination of trading advisors
and the allocation and reallocation of the Fund's assets and notional funds
shall be the exclusive responsibility of the Fund.
b. Upon making any recommendations to the General Partner, the
Consultant shall deliver to the Fund a reasonably detailed analysis of the
Consultant's recommendations and how they are expected to affect the Fund's
portfolio, along with a copy of the current Disclosure Document of each trading
advisor recommended by the Consultant (it being understood that the Consultant
shall have no liability for the accuracy or completeness of such Disclosure
Documents or any other information furnished or representation made by the
trading advisors).
c. The Consultant is hereby authorized to negotiate fees with the trading
advisors selected by the General Partner. Consultant shall not agree to any
management fee in excess of 3% of allocated Trading Level per annum or an
incentive fee in excess of 30% of trading profits without the approval of the
General Partner. Consultant is not authorized to negotiate other advisory
terms or conditions with trading advisors without advance written consent of
the General Partner.
d. The Consultant shall monitor the performance of the accounts of the
Fund traded by each trading advisor. The Consultant will promptly advise and
consult with the General Partner if it becomes aware of any material
discrepancy between the performance of the Fund's account and the performance
of other accounts managed by a trading advisor which are monitored by the
Consultant. In providing such information, the Consultant may take such steps
as are necessary to assure the confidentiality of the identity of each of the
trading advisor's clients. The Consultant shall also monitor the risk of the
individual and aggregate Commodity Interest positions of the accounts of the
Fund. The Consultant will promptly advise and consult with the Fund if it
becomes aware of any risk that Consultant believes, in its sole determination,
is material to the Fund's performance posed by its trading positions.
2
e. The Consultant shall provide the Fund with such non-proprietary and
non-confidential information concerning any trading advisor as the General
partner may reasonably request and which the Consultant is able to obtain
without undue effort or expense, and shall provide the Fund will all
information (including, without limitation, change in control, personnel,
trading approach or financial condition) concerning any trading advisor of
which the Consultant has knowledge and which the Consultant believes is
material to the trading of the Fund's account by such trading advisor.
f. The Consultant shall monitor the trading policies and restrictions
applicable to the Fund as set forth in Exhibit A, attached hereto and
incorporated herein by reference, and use reasonable care to ensure that the
Fund's positions conform thereto. In the event that the Fund's positions do
not so conform, the Consultant will promptly instruct the trading advisors to
liquidate positions so as to bring the Fund's outstanding positions into
conformity; provided that the Consultant shall not be responsible for selecting
the specific Commodity Interest positions to be liquidated so as to effect
compliance.
g. The Consultant shall deliver to the Fund such periodic reports
regarding the Fund's Commodity Interest trading as are reasonably requested by
the General Partner. The Consultant shall recommend to the General Partner how
and when to reallocate the Fund's Net Asset Value among the trading advisors or
terminate the trading advisors if the Fund must pay expenses or redemption
proceeds out of allocated assets.
h. The Consultant shall provide such information about the Fund's trading
or trading advisors as reasonably requested by the General Partner for the
purpose of the General Partner preparing (i) information to be distributed to
the partners of the Fund, (ii) offering materials for an offering of the Fund's
Units, or (iii) information requested by a regulator or self-regulatory
organization.
i. Neither Consultant nor any of its principals or affiliates will
receive any compensation or remuneration from or share in any of fees paid to,
any of the Fund's trading advisors with respect to the Fund's account.
Notwithstanding the foregoing, the Fund acknowledges that an affiliate of
Consultant will continue to share fees paid by the Fund to Dennis Trading
Group, Inc., a trading advisor engaged by the Fund before the date hereof, but
that such share of fees will be paid by that affiliate only to persons who are
not owners of the Consultant.
Section 3. Additions and Withdrawals. The Fund may make withdrawals from
or additions to its trading accounts; provided that the Fund shall use its best
efforts to give the Consultant at least two (2) Business Days advance notice of
all additions and withdrawals (or such shorter notice as is acceptable to the
Consultant). The Fund shall endeavor to make all additions and withdrawals as
of month end.
Section 4. Notification Levels. The Consultant will use its best efforts
to notify the General Partner in the event a trading advisor's Fund account
suffers a 35% or more peak-to-valley decline from its highest month-end level
in allocated Net Asset Value, after adjustment for additions and withdrawals to
and from such trading advisor. If the Fund's overall Net Asset Value suffers a
40% or more peak-to-valley decline from its highest month-end level, after
adjustment for additions, withdrawals and any Trading Level adjustments, the
Consultant will promptly so notify the General Partner and recommend to it what
the Consultant feels is the best course to reduce or reallocate the allocated
Trading Level among the trading advisors.
Section 5. Fees to the Consultant. The Fund will pay to the Consultant a
monthly consulting fee equal to 1/12 of 1% of the month-end Net Asset Value
(after reduction for operational and administrative expenses, brokerage
commissions and associated expenses, and trading advisor fees), a 1% annual
rate. The consulting fee shall be pro rated for any time period less than a
month. The consulting fee shall be paid to the Consultant as soon as
practicable after each calendar month-end, but no later than thirty (30) days
thereafter.
Section 6. Representation and Warranties of the Consultant. The
Consultant represents and warrants to the Fund as follows:
a. The Consultant is a corporation duly organized and validly existing
under the laws of the State of Connecticut and is qualified to do business and
is 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 Fund. The Consultant has full power and
authority to perform its obligations under this Agreement.
3
b. This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Consultant and is a valid and binding agreement of
the Consultant enforceable in accordance with its terms.
c. The Consultant and each principal of the Consultant have all federal
and state governmental, regulatory and exchange licenses and approvals and have
effected all filings and registrations with federal and state governmental and
regulatory and self-regulatory agencies required to conduct their business and
to perform their obligations under this Agreement. The Consultant is
registered as a commodity trading advisor under the CEA and is a member of the
NFA in such capacity, and each of the Consultant's principals is duly
identified as such on the Consultant's Form 7-R, as amended.
d. The execution and delivery of this Agreement, the incurrence of the
obligations herein set forth and the consummation of the transactions
contemplated herein will not violate, or constitute a breach of, or default
under, the constituent documents of the Consultant or any order, rule, law or
regulation binding on the Consultant of any court or any governmental body,
administrative agency or self-regulatory organization having jurisdiction over
the Consultant.
e. There is not pending or, to the best of the Consultant's knowledge,
threatened, any action, suit or proceeding before or by any court or other
governmental body to which the Consultant is a party, or to which any of the
assets of the Consultant is subject, which might reasonably be expected to
result in any material adverse change in the condition, financial or otherwise,
of the Consultant. Neither the Consultant nor any principal of the Consultant
has received any notice of an investigation by the NFA or the CFTC regarding
noncompliance by the Consultant or any of the Consultant's principals with the
CEA.
f. With respect to any description of the Consultant in the Memorandum
approved in writing by the Consultant for inclusion in the Memorandum, the
Memorandum does not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements set forth therein not
misleading, in each case in light of the circumstances under which such
statements are made.
Section 7. Representations and Warranties of the Fund. The fund
represents and warrants to the Consultant as follows:
a. The Fund is a limited partnership organized, validly existing and in
good standing under the laws of the State of Delaware. The Fund has full power
and authority under the laws of the State of Delaware to conduct its business,
to perform its obligations under this Agreement and to appoint the Consultant
as a consultant of the Fund pursuant hereto.
b. This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Fund and constitutes a valid and binding agreement
of the Fund and constitutes a valid and binding agreement of the Fund
enforceable in accordance with its terms.
c. 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, the constituent documents of the Fund or any order, rule, law or
regulation binding on the Fund of any court or any governmental body,
administrative agency or self-regulatory organization having jurisdiction over
the Fund.
d. There is not pending or, to the best of the Fund's knowledge,
threatened, any action, suit or proceeding before or by any court, arbitration
panel or other governmental body to which the Fund is a party, or to which any
of the assets of the Fund is subject which might reasonably be expected to
result in any material adverse change in the condition, financial or otherwise,
of the Fund. The Fund has not received any notice of an investigation, inquiry
or dispute by any governmental body, administrative agency, self-regulatory
organization or exchange regarding any activity of the Fund.
e. The Fund acknowledges that the Consultant has not made any
representation regarding the future profitability of the trading advisors it
recommends or their future ability to avoid losses, and that futures trading is
speculative and involves substantial risk of loss.
4
Section 8. Indemnification; Exculpation.
The Fund shall indemnify, defend and hold harmless the Consultant, its
affiliates and their respective shareholder, officers, directors, employees,
agents and controlling persons (the "consultant Parties" or a "Consultant
Party") from and against any and all losses, claims, damages, liabilities
(joint and several), costs and expenses (including reasonable investigatory,
legal and accounting fees and other expenses incurred in connection with, and
any amounts paid in, any settlement; provided that the Fund shall have approved
such settlement) resulting from a demand, claim, lawsuit, action or proceeding
relating to or arising in connection with the advisory contracts with the
trading advisors, the offering of the Fund's Units or the management or
operation of the Fund; provided that such losses, claims, damages, liabilities,
costs and expenses are not the result of a breach by the Consultant of this
Agreement or an act or omission of a Consultant party constituting gross
negligence, willful misconduct or bad faith.
In respect of the Consultant's duties hereunder, neither the Consultant
nor any other Consultant Party shall be subject to any liability to any of the
Fund, its affiliates or any of their respective shareholders, officers,
directors, employees, agents or controlling persons ("Fund Parties") for any
loss, cost, damage or liability, including, without limitation, trading losses,
except as a result of a breach of the Consultant's duties or obligations under
this Agreement or by reason of an act or omission constituting gross
negligence, willful misconduct or bad faith by any Consultant Party.
The Consultant shall indemnify, defend and hold harmless the Fund Parties
from and against any and all losses, claims, damages, liabilities (joint and
several), costs and expenses (including any reasonable investigatory, legal and
accounting fees and other expenses incurred in connection with, and any amounts
paid in, any settlement; provided that the Consultant shall have approved such
settlement) resulting from a demand, claim, lawsuit, action or proceeding
incurred as a result of the breach by the Consultant of its duties or
obligations under this Agreement or an act or omission of any Consultant Party
constituting gross negligence, willful misconduct or bad faith.
In no case shall an indemnifying party be liable under this indemnity
agreement with respect to any claim made against it unless the indemnifying
party shall be notified in writing of the nature of the claim within a
reasonable time after the assertion thereof, but failure to so notify the
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. The indemnifying party
shall be entitled to participate at its own expense in the defense or, if it so
elects within a reasonable time after receipt of such notice, to assume the
defense of any suit so brought, which defense shall be conducted by counsel
chosen by it and satisfactory to the indemnified party defendant or defendants
therein. In the event that the indemnifying party elects to assume the defense
of any such suit and retain such counsel, the indemnified party defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel thereafter retained by it or them.
The foregoing agreement 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 party.
Section 9. Term. Unless sooner terminated pursuant to Section 10 hereof,
this Agreement shall continue in effect until the first anniversary of the
Effective Date and shall thereafter be renewed for successive one-year terms
unless a party gives written notice of non-renewal at least thirty (30) days
prior to a renewal date; provided, however, that the provisions set forth in
Section 8 of this Agreement shall survive any such termination (with respect to
matters which arose prior to such termination), as shall the obligation to
settle accounts hereunder.
Section 10. Termination.
a. The Fund shall be entitled to terminate this Agreement at any time,
upon notice to the Consultant, in the event that: (i) the Consultant's
registration with the CFTC as a commodity trading advisor is suspended or
terminated or its membership in NFA is suspended or revoked; (ii) the
Consultant become bankrupt or insolvent; or (iii) the Fund is liquidated or
dissolved.
b. The Consultant shall be entitled to terminate this Agreement at any
time, upon ten days prior written notice to the Fund, in the event that: (i
the Fund becomes bankrupt or insolvent; or (ii) the Net Assets of the Fund drop
below $3 million.
5
c. Either the Fund or the Consultant may, in its discretion, terminate
this Agreement if the other commits a material breach of any obligation or
representation and warranty under this Agreement and does not cure such breach
within fifteen (15) days following receipt of a notice from the non-breaching
party that such breach has occurred.
d. Either the Fund or the Consultant may, in its discretion, terminate
this Agreement on thirty (30) days prior written notice to the other party.
Section 11. Trading Advisor Information. Consultant agrees to provide
the Fund with any information (other than confidential or proprietary
information) reasonably requested by the Fund that the Consultant may obtain
without undue effort or expense concerning each trading advisor. The Fund
acknowledges and agrees that the trading approaches of the trading advisors, as
well as certain other information relating to the trading advisors, are
confidential and proprietary to each of the trading advisors. The Fund further
agrees to keep confidential and not to disseminate any information regarding
the trading advisors or the trading approaches used or specific trades made by
any of the Trading Advisors to any person or entity, except as necessary or
appropriate for the conduct of the business of the Fund or as required by law
(including CFTC regulations and NFA rules).
Section 12. Promotional Material. The Consultant shall reasonably
cooperate with the Fund and its counsel in preparing disclosures regarding the
Consultant for inclusion in selling material and offering documents for the
Fund. Neither offering documents nor any other promotional material regarding
the Fund may be distributed by the Fund or its agents without the prior
approval of Consultant; but only as to substantive descriptions of the
Consultant contained therein.
Section 13. Status of the Parties. The Consultant shall for all purposes
herein be deemed to be an independent contractor in respect of the Fund and the
General Partner, and shall, unless otherwise expressly provided or authorized,
have no authority to act for or represent the Fund. The parties acknowledge
that the Consultant is not a sponsor or promoter of the Fund.
Section 14. Notices. All notices required to be delivered under this
Agreement shall be in writing (including telegraphic communication, telex or
facsimile). All notices shall be effective upon receipt.
If to the Fund or General Partner to:
Gary D. Halbert, President
ProFutures, Inc., General Partner
ATA Research/ProFutures Diversified Fund, L.P.
11612 Bee Cave Road -- Suite 100
Austin, Texas 78738
If to the Consultant to:
Esther Goodman, Chief Operating Officer
Kenmar Global Strategies Inc.
Two American Lane
PO Box 5150
Greenwich, Connecticut 06831
Section 15. No Assignment. No party hereto may assign any of its rights
hereunder without the prior written consent of the other party.
Section 16. Amendment. This Agreement may not be amended except by the
prior written consent of the parties hereto.
Section 17. Repetition of Representations. All representations made
herein shall survive the execution of this Agreement and shall be deemed
repeated as of any futures date on which Units are sold.
6
Section 18. Services to Other Clients. It is understood and agreed that
(a) the Consultant may provide advisory services similar to or different from
those described herein to other clients so long as the Consultant continues to
satisfy all of its obligations to the Fund hereunder, (b) the Consultant may
select for or recommend to any other client a particular trading advisor which
the Consultant does not select for the Fund and (c) the persons employed by the
Consultant to assist in the performance of its duties hereunder will not devote
their full time to such performance.
Section 19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without regard to
principles of conflicts of laws.
Section 20. Entire Agreement; Counterparts. This Agreement sets forth
the entire agreement of the parties relating to the subject matter hereof.
This Agreement may be executed in one or more counterparts each of which shall,
however, together constitute one and the same document.
Section 21. No Waiver. No failure or delay on the part of any party
hereto in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise of any right, power or
remedy. Any waiver granted hereunder must be in writing and shall be valid
only in the specific instance in which given.
Section 22. Headings. Headings to sections and subsections in this
Agreement are for the convenience of the parties only and are not intended to
be a part of or to affect the meaning or interpretation hereof.
IN WITNESS WHEREOF, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, this Agreement has
been executed for and on behalf of the undersigned as of the day and year first
above written.
The "Fund":
ATA RESEARCH/PROFUTURES DIVERSIFIED FUND, L.P.,
a Delaware limited partnership
By: ProFutures, Inc., the General Partner
By: /s/ Gary D. Halbert
------------------------------------------
Gary D. Halbert, President
The "Consultant":
KENMAR GLOBAL STRATEGIES INC.,
a Connecticut corporation
By: /s/ Esther E. Goodman
------------------------------------------
Esther E. Goodman, Chief Operating Officer
7
EXHIBIT A
ATA RESEARCH/PROFUTURES DIVERSIFIED FUND, L.P.
TRADING POLICIES
(1) The Fund will attempt to diversify its market position to avoid
reliance on one or a few commodities. No Advisor may initiate additional
positions in any commodity if the margins (or its equivalent) therefor, when
added to the margins of all open positions in that commodity, would exceed
33 1/3% of the Allocated Net Asset Value (as defined) of the Fund attributable
to the Advisor's management.
(2) No Advisor may initiate positions if the margin (or its equivalent)
therefor, when added to the margins of all then open positions, would exceed
75% of the Allocated Net Asset Value of the Fund attributable to the Advisor's
management. In the event that, due to abrupt increases in required margins,
the Fund's then open positions require margins in excess of that percentage,
the total portfolio will be reduced as soon as practicable in light of market
conditions to an amount within such percentage.
(3) The Fund may not allocate more than ten percent (10%) of its assets
(calculated as of the date the allocation is made) to one or more Advisors for
the purpose of purchasing, selling, writing or trading in commodity options on
markets other than contract markets designated by the CFTC.
(4) The Fund will not purchase, sell or trade in securities to such
extent as to be required to be registered as an investment company under the
Investment Company Act of 1940, as amended.
(5) The Fund may trade in spreads or straddles in order to take
advantage of potential profit in spread relationships and to limit risks.
(6) The Fund does not intend to regularly make or take delivery of
commodities or to trade in cash commodities, other than forward contracts on
foreign currencies. Open positions in futures contracts are expected to be
closed prior to the delivery date and, as far as practicable, no new positions
will be opened during the delivery month.
(7) The Fund will not employ the trading technique, commonly known as
pyramiding, in which the speculator uses unrealized profits on existing
positions as margin for the purchase or sale of additional positions in the
same or a related commodity. However, an Advisor may take into account the
Fund's open trade equity in assets of the Fund in determining whether to
acquire additional commodity futures contracts on behalf of the Fund.
(8) No loans may be made by the Fund to any person, including the
General Partner and its affiliates.
(9) The Fund's assets will not be commingled with the assets of any
other person; funds used to satisfy margin requirements will not be considered
commingled for this purpose.
(10) No rebates or give-ups may be paid to or received by the General
Partner, nor may the General Partner participate in any reciprocal business
arrangements which could circumvent this prohibition.
(11) No Advisor may receive an incentive or management fee if it
participates, directly or indirectly, in any commodity brokerage commissions
generated by the Fund.
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(12) No agreement with the Advisors, the Clearing Broker or the General
Partner shall exceed one year and any such agreements are terminable without
penalty upon respectively 30 days, 60 days and 120 days written notice by the
Fund. Material changes in the trading policies described above must be
approved by a vote of a majority of the outstanding Units (not including Units
of General Partnership Interest but including Units of Limited Partnership
Interest held by affiliates of the General Partner). The General Partner does
not believe that action by the limited partners to authorize material changes
in the Fund's trading policies would constitute participation in the control of
the management of the Fund sufficient to cause the limited partners to lose
their limited liability for Fund obligations.
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Exhibit 10.5
STOCK SUBSCRIPTION AGREEMENT
BY AND BETWEEN
ABN AMRO INCORPORATED
AND
PROFUTURES, INC.
THIS STOCK SUBSCRIPTION AGREEMENT (as it may be amended from time to time,
the "Agreement"), by and between ABN AMRO Incorporated ("ABN") and ProFutures,
Inc. ("ProFutures"), is made as of this 30th day of April, 2001.
WHEREAS, ProFutures entered into Stock Subscription Agreements, dated
August 15, 1990, August 15, 1991, and September 1, 1991, respectively, each
substantially in the form hereof, with Virginia Trading Corporation ("VTC"),
and the Virginia Trading division of Quantum Financial Services, Inc.
("Quantum"), respectively;
WHEREAS, the issued and outstanding capital stock of VTC was acquired by
Quantum which operated VTC's business as the Virginia Trading division of
Quantum;
WHEREAS, the issued and outstanding capital stock of Quantum was acquired
by the ING Group on January 7, 1994 and the name of Quantum was ultimately
changed to ING Securities, Futures & Options Inc. ("ING");
WHEREAS, ProFutures entered into revised Stock Subscription Agreements
with ING as of August 1, 1998 with respect to each of ProFutures Long/Short
Growth Fund, L.P., a Delaware limited partnership ("PLSGF"), ProFutures
Diversified Fund, L.P., a Delaware limited partnership ("PDF") and Alternative
Asset Growth Fund, L.P., a Delaware limited partnership ("AAGF");
WHEREAS, ProFutures entered into a Stock Subscription Agreement with
respect to ProFutures Strategic Allocation Trust, a Delaware business trust
("PSAT"), as of August 31, 2000;
WHEREAS, ING sold certain customer accounts and related assets and
liabilities to ABN as of April 30, 2001;
WHEREAS, the parties desire to enter desire to enter into this Agreement
to reflect (a) that the respective rights and duties hereunder shall belong to
ABN, and (b) the current terms of the stock subscription obligation of ABN;
WHEREAS, pursuant to separate customer agreements (the "Brokerage
Agreement"), ABN is the futures commission merchant for each of PLSGF, PDF,
AAGF and PSAT (collectively, the "Funds");
WHEREAS, ProFutures is obligated by the Agreement of Limited Partnership
of PDF, as amended and restated on December 1, 1993 (the "PDF Agreement of
Limited Partnership"), to maintain a minimum net worth equal to: (i) the lesser
of $250,000 or 15% of the aggregate initial capital contributions of any
limited partnerships for which it acts as general partner capitalized at
$2,500,000 or less; or (ii) 10% of the aggregate capital contributions of the
limited partners of any limited partnerships for which it acts as general
partner capitalized at greater than $2,500,000 (which includes PDF, PLSGF and
AAGF) and with respect to PSAT, the greater of $50,000 or at least 5% of the
total contributions to PSAT (collectively, the "Net Worth Requirement");
WHEREAS, ProFutures has the responsibility for determining the adequacy of
its net worth and the application of this Agreement towards the Net Worth
Requirement; and
WHEREAS, ABN has agreed to subscribe for stock of ProFutures to enable
ProFutures to continue to meet the Net Worth Requirement.
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NOW, THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the parties hereto agree as follows:
1. Purchase of Shares. On the date hereof and continuing on a regular
is as agreed upon by the parties, ABN and ProFutures shall determine the
aggregate amount of the subscription for shares of ProFutures' common stock
required to enable ProFutures to continue to meet the Net Worth Requirement.
Based upon such determination (as confirmed in writing in the form attached as
Exhibit A, each executed original of which is incorporated herein by
reference), ABN will subscribe for the total subscription required for
ProFutures to meet the Net Worth Requirement; provided, that in no event shall
the total aggregate subscription with respect to the PSAT and PLSGF exceed $7
million; and provided further that in no event shall the total aggregate
subscription with respect to PDF and AAGF exceed $7 million. The purchase
price for the shares of common stock subscribed for by ABN thereupon shall be
equal to book value per share as determined by an independent certified public
accountant selected and paid by ProFutures on the date(s) this obligation is
met, but in no event less than $.01 per share. In the event that any one of
the Funds both exceeds its Trading Suspension Level and, in fact, exhausts all
its assets to satisfy obligations of such Fund, the subscription required for
ProFutures to satisfy the Net Worth Requirement shall be callable by ProFutures
on demand; provided, however, that: (a) ProFutures shall use its own capital
first to meet the Net Worth Requirement; and (b) any such demand shall relate
only to capital deficiencies resulting solely from the ordinary, lawful and
necessary operations and activities of such Fund which cause ProFutures' net
worth to fall below the Net Worth Requirement. The parties expressly
acknowledge that, unless otherwise agreed in writing by both parties in their
sole and absolute discretion as to other specific projects or activities, ABN
shall not have to subscribe to satisfy capital deficiencies resulting from
activities and operations of ProFutures other than those associated with one of
the Funds. Payment for the subscription called shall be made by wire transfer
within thirty (30) days after the date of call. Upon payment, ProFutures shall
issue to ABN that number of shares for which full consideration has been paid.
ProFutures shall notify ABN promptly if a Fund reaches the Trading Suspension
Level (as set forth in such Fund's Agreement of Limited Partnership or
Declaration of Trust and Trust Agreement, as the case may be), which notice
shall be sent pursuant to Section 14 hereof and addressed to both ABN's General
Counsel and Chief Financial Officer.
2. Share Rights. Upon issuance, all shares of ProFutures' common stock
shall be fully paid and non-assessable and shall entitle the holder to all
rights applicable to such shares.
3. Computations. For purposes of meeting the Net Worth Requirement, all
subscriptions for common stock shall be carried at face amount without deduction
or discount. Any interests in the Funds owned by ProFutures or any of
ProFutures' interests in other entities of which it is the general partner or
managing owner shall not be included in the computation of its net worth for
compliance with the Net Worth Requirements.
4. Lower Net Worth. In the event that, at any time, the Net Worth
Requirement is amended pursuant thereto so that the Net Worth Requirement for
ProFutures is lowered, ProFutures shall promptly notify ABN and upon demand by
ABN effect a reduction in its net worth (but not below that required by the PDF
Agreement of Limited Partnership) by cancellation of such excess subscription
amount in appropriate fashion.
5. ProFutures Activities. ProFutures agrees, for so long as this
Agreement is in effect, not to engage in any activities unrelated to its
current activities of being: (a) a commodity trading advisor; (b) general
partner of PLSGF; (c) general partner of AAGF; (d) general partner of PDF;
(e) managing owner of PSAT; (f) engaged in a similar activity involving ABN or
an associated company thereof; and (g) an introducing broker, without the
consent of ABN. Such undertaking shall include ProFutures' best efforts to
conserve capital and avoid expenses to the extent feasible to minimize the need
of ProFutures to call the subscription, especially as it relates to the Net
Worth Requirement attributable to the Funds. ProFutures also agrees to
cooperate in good faith with ABN in the conduct of its affairs including,
without limitation, its full cooperation in responding to any reasonable
request for information by ABN.
6. Bank Holding Company Act. In the event this subscription amount is
called by ProFutures with respect to a Fund, ProFutures agrees to operate such
Fund in compliance with the Bank Holding Company Act of 1956, as amended (the
"Act"), liquidating any positions that, under the Act, may not be held by such
Fund. ProFutures and ABN acknowledge and agree that such positions shall be
liquidated in a commercially reasonable manner consistent with ProFutures'
fiduciary duties to such Funds.
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7. ABN's Activities. ABN hereby agrees that it shall: (a) not purchase
or otherwise acquire any units of limited partnership interest or beneficial
interest of a Fund; (b) provide all information which in the opinion of counsel
for ProFutures is required for ProFutures to comply with federal and state
securities and tax laws; and (c) cooperate in good faith with ProFutures in the
conduct of its affairs.
8. Amendments; Assignments. No change or modification to this Agreement
shall be effective unless the same shall be in writing and signed by each of
the parties hereto. However, this Agreement may not be assigned by either
party without the prior written consent of the other, and any attempted
assignment without such consent shall be void. No change in ownership of
either party shall in any way affect its obligation hereunder or in any related
agreements.
9. Third Party Beneficiaries. Third party beneficiary rights, if any,
under this Agreement are expressly limited to the limited partners or
unitholders, as the case may be, of a Fund, to the Net Worth Requirement for
the period commencing on the date of this Agreement until the termination of
this Agreement.
10. Term. This Agreement shall continue in effect for a period of one (1)
year from the date of this Agreement and shall be automatically renewed for
additional one (1) year terms. Notwithstanding the foregoing, either party may
terminate this Agreement at anytime after having given the other party at least
sixty (60) days prior written notice of its intent to terminate. In the event
a Fund terminates ABN as its clearing broker, this Agreement will terminate on
the same date as the relevant Brokerage Agreement terminates. In the event that
ABN terminates the Brokerage Agreement and ceases to serve as the clearing
broker to a Fund, or the Brokerage Agreement expires, this Agreement will
continue for up to thirty (30) days after the date such Brokerage Agreement
terminates or expires with respect to such Fund; provided, that ProFutures
shall provide ABN with copies of the daily statements from such Fund's other
clearing broker(s) during the period that ABN is not the clearing broker and
this Agreement is still in effect.
11. Information Requirements of ProFutures. During the term of this
Agreement, ProFutures shall promptly furnish to ABN the following:
(a) copies of all regulatory notices, complaints, legal actions or
proceedings, and other claims involving, relating to or against ProFutures or
against any Fund including, without limitation, claims by any limited partner
a unitholder, as the case may be, of a Fund;
(b) upon request by ABN, copies of the following financial statements for
any Fund: (i) monthly unaudited balance sheets and income statements; (ii)
monthly asset reports for all assets regardless of where located; (iii) annual
audited financial statements and any other interim audits available; and (iv)
copies of statements from the other holders of such Fund's assets when they are
received;
(c) upon request by ABN, copies of the following financial statements for
ProFutures: (i) quarterly and annual unaudited balance sheets and income
statements; and (ii) any audited statements available; and
(d) upon request by ABN, copies of marketing materials used in connection
with any Fund concurrent with their use.
ABN shall have the right to review the books and records of ProFutures
(excluding any information on its trading systems), at its office on reasonable
notice during normal business hours, and subject to ABN's maintaining strict
confidentiality as to the information so reviewed.
12. Other Conditions. In the event ProFutures shall voluntarily file (or
have involuntarily filed against it) a petition seeking protection from
creditors pursuant to the United States Bankruptcy Code, as amended (the
"Code"), or be subjected to the supervision of a receiver appointed by a state
or federal court of competent jurisdiction, and any debtor in possession,
trustee or receiver shall subsequently make a call upon ABN for any cash
contributions under this Agreement, the parties hereto specifically agree that
ABN shall be required to contribute such cash to ProFutures as is required to
satisfy the Net Worth Requirement only upon ProFutures' transfer (free and clear
of all liens and encumbrances) of such assets as are held in the name of
3
ProFutures having a fair market value equal to, or greater than, the value of
the purchase price required of ABN by such debtor in possession, trustee or
receiver. Such transfer of assets shall be in lieu of ProFutures' issuance of
shares in exchange for cash; and further provided, that the transfer of such
assets to ABN shall be first approved by a United States Bankruptcy Court
Judge, or the court officer having jurisdiction over any appointed receiver,
and ABN shall be awarded fee simple ownership and possession of such assets
pursuant to Section 363 of the Code.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts
made in that state without reference to its conflict of laws provisions.
14. Notices. Any notices required or desired to be given under this
Agreement shall be given in writing and shall be effective when given
personally on the date delivered or, when given by mail, overnight courier or
telefacsimile (provided receipt of the latter is orally confirmed), upon the
date 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 ProFutures:
ProFutures, Inc.
11612 Bee Cave Road - Suite 100
Austin, Texas 78738
Attn: Gary D. Halbert, President
If to ABN:
ABN AMRO Incorporated
208 S. LaSalle
Chicago, Illinois 60604
Attn: Ben A. Witt, President
15. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the matters covered hereby. All prior subscription
agreements and concomitant obligations of the parties and ING are superceded by
this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement under
seal as of the date first above written.
ABN AMRO INCORPORATED
By: /s/ Allan Zavarro
--------------------------------
Name:Allan Zavarro
Title: Senior Managing Director
PROFUTURES, INC.
By: /s/ Gary D. Halbert, President
--------------------------------
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EXHIBIT A
ABN AMRO INCORPORATED
208 S. LaSalle
Chicago, Illinois
April 30, 2001
Gary Halbert, President
ProFutures, Inc.
11612 Bee Cave Road - Suite 100
Austin Texas 78738
Dear Mr. Halbert:
This is to confirm to ProFutures, Inc. the obligation of the undersigned
ABN AMRO Incorporated ("ABN") pursuant to the April 30, 2001 Stock Subscription
Agreement (as amended from time to time, the "Agreement") between ProFutures,
Inc. ("ProFutures") and ABN, as outlined below. As of March 31, 2001, the
aggregate relevant capital contributions by the limited partners or
unitholders, as the case may be, of the following funds is as follows:
ProFutures Strategic Allocation Trust $ 1,889,200.77
ProFutures Long/Short Growth Fund, L.P. $23,192,851.05
ProFutures Diversified Fund, L.P. $35,094,366.91
Alternative Asset Growth Fund, L.P. $ 7,595,016.91
Aggregate $67,771,435.64
Pursuant to the Agreement, accordingly, ABN hereby subscribes to purchase
42,680 shares of ProFutures (at $145.16 per share), being that number of shares
which will enable ProFutures to maintain its Net Worth Requirement as defined
in the Agreement. It is our understanding under the Agreement that such
subscription will be called only if and subject to the conditions as set forth
in the Agreement occur. This subscription commitment supersedes all prior
subscription commitments pursuant to the Agreement.
ABN AMRO INCORPORATED
By: /s/ Allan Zavarro
--------------------------------
Name:Allan Zavarro
Title: Senior Managing Director
ADKNOWLEDGED:
PROFUTURES, INC.
By: /s/ Gary D. Halbert, President
--------------------------------
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