Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: ProFutures Diversified Fund, L.P.
Commission File Number 0-16898
Dear Sirs:
This filing contains Form 10-Q for the quarter ended June 30, 2002.
Very truly yours,
PROFUTURES DIVERSIFIED FUND, L.P.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X Quarterly Report Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Quarter Ended June 30, 2002
--------------
Commission File Number 0-16898
-------
PROFUTURES DIVERSIFIED FUND, L.P.
---------------------------------
(Exact name of Partnership)
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
--------------
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
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
PROFUTURES DIVERSIFIED FUND, L.P.
STATEMENTS OF FINANCIAL CONDITION
June 30, 2002 (Unaudited) and December 31, 2001 (Audited)
-----------
June 30, December 31,
2002 2001
---- ----
ASSETS
Equity in broker trading accounts
Cash $27,892,601 $33,194,404
Unrealized gain on open contracts 2,294,133 1,673,933
----------- -----------
Deposits with broker 30,186,734 34,868,337
Cash 1,599 1,115
----------- -----------
Total assets $30,188,333 $34,869,452
=========== ===========
LIABILITIES
Accounts payable $ 16,736 $ 22,660
Commissions and other trading fees
on open contracts 59,509 57,380
Incentive fees payable 55,816 0
Management fees payable 291,086 355,932
Redemptions payable 589,584 649,685
----------- -----------
Total liabilities 1,012,731 1,085,657
----------- -----------
PARTNERS' CAPITAL (Net Asset Value)
General Partner - 225 units
outstanding at June 30, 2002
and December 31, 2001 445,979 458,665
Limited Partners - 14,492 and
16,345 units outstanding
at June 30, 2002 and
December 31, 2001 28,729,623 33,325,130
----------- -----------
Total partners' capital
(Net Asset Value) 29,175,602 33,783,795
----------- -----------
$30,188,333 $34,869,452
=========== ===========
See accompanying notes.
PROFUTURES DIVERSIFIED FUND, L.P.
CONDENSED SCHEDULE OF INVESTMENTS
June 30, 2002
(Unaudited)
-----------
LONG FUTURES CONTRACTS
- ----------------------
% of Net
Description Value Asset Value
----------- ----- -----------
Agricultural $ 283,833 0.97%
Currency 1,543,913 5.29%
Energy 34,157 0.12%
Interest rate 1,254,875 4.30%
Metal 38,511 0.13%
Stock index (25,639) (0.08)%
---------- -----
Total long futures contracts $3,129,650 10.73%
---------- -----
SHORT FUTURES CONTRACTS
- -----------------------
Agricultural $ 16,687 0.06%
Currency (580,122) (1.99)%
Energy 3,870 0.01%
Interest rate 4,420 0.02%
Metal (265,039) (0.91)%
Stock index (15,333) (0.05)%
---------- -----
Total short futures contracts $ (835,517) (2.86)%
---------- -----
Total futures contracts $2,294,133 7.87%
========== =====
See accompanying notes.
PROFUTURES DIVERSIFIED FUND, L.P.
STATEMENTS OF OPERATIONS
For the Three Months Ended June 30, 2002 and 2001
(Unaudited)
-----------
Three Months Ended
June 30,
2002 2001
--------- ---------
INCOME
Trading gains (losses)
Realized $ 1,747,429 $(1,513,336)
Change in unrealized 558,023 (352,116)
----------- -----------
Gain (loss) from trading 2,305,452 (1,865,452)
Interest income 121,560 346,975
----------- -----------
Total income (loss) 2,427,012 (1,518,477)
----------- -----------
EXPENSES
Brokerage commissions 315,786 234,901
Incentive fees 55,816 82,479
Management fees 478,107 579,654
Operating expenses 35,695 47,078
----------- -----------
Total expenses 885,404 944,112
----------- -----------
NET INCOME (LOSS) $ 1,541,608 $(2,462,589)
=========== ===========
NET INCOME (LOSS) PER GENERAL AND LIMITED PARTNER UNIT
(based on weighted average number of units
outstanding during the period of 15,362 and
18,672, respectively) $ 100.35 $ (131.89)
=========== ===========
INCREASE (DECREASE) IN NET ASSET VALUE PER
GENERAL AND LIMITED PARTNER UNIT $ 105.99 $ (130.92)
=========== ===========
See accompanying notes.
PROFUTURES DIVERSIFIED FUND, L.P.
STATEMENTS OF OPERATIONS
For the Six Months Ended June 30, 2002 and 2001
(Unaudited)
-----------
Six Months Ended
June 30,
2002 2001
--------- ---------
INCOME
Trading gains (losses)
Realized $ (324,232) $ 614,944
Change in unrealized 620,200 (504,628)
----------- -----------
Gain from trading 295,968 110,316
Interest income 254,628 824,210
----------- -----------
Total income 550,596 934,526
----------- -----------
EXPENSES
Brokerage commissions 605,784 379,757
Incentive fees 55,816 399,241
Management fees 988,698 1,183,947
Operating expenses 79,045 87,588
----------- -----------
Total expenses 1,729,343 2,050,533
----------- -----------
NET (LOSS) $(1,178,747) $(1,166,007)
=========== ===========
NET (LOSS) PER GENERAL AND LIMITED PARTNER UNIT
(based on weighted average number of units
outstanding during the period of 15,810 and
19,192, respectively) $ (74.56) $ (58.15)
=========== ===========
(DECREASE) IN NET ASSET VALUE PER
GENERAL AND LIMITED PARTNER UNIT $ (56.39) $ (60.92)
=========== ===========
See accompanying notes.
PROFUTURES DIVERSIFIED FUND, L.P.
STATEMENTS OF CHANGES IN PARTNERS' CAPITAL (NET ASSET VALUE)
For the Six Months Ended June 30, 2002 and 2001
(Unaudited)
-----------
Total Partners' Capital
Number of --------------------------------------
Units General Limited Total
--------- ---------- ------------ ------------
Balances at
December 31, 2001 16,570 $ 458,665 $ 33,325,130 $ 33,783,795
Net (loss) for the
six months ended
June 30, 2002 (12,686) (1,166,061) (1,178,747)
Redemptions (1,853) 0 (3,429,446) (3,429,446)
------ ---------- ------------ ------------
Balances at
June 30, 2002 14,717 $ 445,979 $ 28,729,623 $ 29,175,602
====== ========== ============ ============
Balances at
December 31, 2000 19,974 $ 455,817 $ 40,014,820 $ 40,470,637
Net (loss) for the
six months ended
June 30, 2001 (13,705) (1,102,302) (1,116,007)
Redemptions (1,997) 0 (4,026,216) (4,026,216)
------ ---------- ------------ ------------
Balances at
June 30, 2001 17,977 $ 442,112 $ 34,886,302 $ 35,328,414
====== ========== ============ ============
Net asset value
per unit at
December 31, 2000 $ 2,026.18
===========
June 30, 2001 $ 1,965.26
===========
December 31, 2001 $ 2,038.84
===========
June 30, 2002 $ 1,982.45
===========
See accompanying notes.
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
-----------
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.
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
-----------
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. Interim Financial Statements
In the opinion of management, the unaudited interim financial
statements reflect all adjustments, which were of a normal and
recurring nature, necessary for a fair presentation of financial
position as of June 30, 2002, and the results of operations for the
three and six months ended June 30, 2002 and 2001.
Note 2. GENERAL PARTNER
---------------
The General Partner of the Partnership is ProFutures, Inc., which
conducts and manages the business of the Partnership. The Agreement
of Limited Partnership requires the General Partner 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.
The Agreement of Limited Partnership also requires that the General
Partner 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 it acts 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 it acts as general partner and which are
capitalized at greater than $2,500,000.
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
-----------
Note 2. GENERAL PARTNER (CONTINUED)
---------------------------
ProFutures, Inc. has callable subscription agreements with ABN AMRO
Incorporated (ABN), the Partnership's broker, whereby ABN has
subscribed to purchase (up to $7,000,000 subject to conditions set
forth in the subscription agreement as amended effective May 20, 2002)
the number of shares of common stock of ProFutures, Inc. necessary to
maintain the General Partner's net worth requirements.
The Partnership pays the General Partner a monthly management fee of
1/4 of 1% (3% annually) of month-end Net Asset Value.
Total management fees earned by ProFutures, Inc. for the six months
ended June 30, 2002 and 2001 were $443,842 and $583,693, respectively.
Such management fees earned for the three months ended June 30, 2002
and 2001 were $215,230 and $280,196, respectively. Management fees
payable to ProFutures, Inc. as of June 30, 2002 and December 31, 2001
were $74,965 and $86,255, respectively.
Note 3. CONSULTANT
----------
Kenmar Global Strategies Inc. (Kenmar) serves as a consultant and
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 23% of
Trading Profits (as defined).
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.
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
-----------
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.
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.
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
-----------
Note 7. TRADING ACTIVITIES AND RELATED RISKS (CONTINUED)
------------------------------------------------
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.
PROFUTURES DIVERSIFIED FUND, L.P.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
-----------
Note 8. FINANCIAL HIGHLIGHTS
--------------------
The following information presents per unit operating performance data
and other supplemental financial data for the three months and six
months ended June 30, 2002 and 2001. This information has been
derived from information presented in the financial statements.
Three months ended
June 30,
2002 2001
(Unaudited) (Unaudited)
----------- -----------
Per Unit Performance
(for a unit outstanding throughout the entire period)
-----------------------------------------------------
Net asset value per unit at
beginning of period $1,876.46 $2,096.18
--------- ---------
Income (loss) from operations:
Net investment (loss) (1), (3) (29.17) (19.40)
Net realized and change in unrealized
gain (loss) from trading (2), (3) 135.16 (111.52)
--------- ---------
Total income (loss) from operations 105.99 (130.92)
--------- ---------
Net asset value per unit at
end of period $1,982.45 $1,965.26
========= =========
Total Return (4) 5.65% (6.25)%
======= ======
Supplemental Data
Ratios to average net asset value: (5)
Expenses prior to incentive fees (1) (7.26)% (6.72)%
Incentive fees (0.79)% (0.89)%
------ -------
Total expenses (1) (8.05)% (7.61)%
======= =======
Net investment (loss) (1) (6.33)% (3.88)%
======= =======
Six months ended
June 30,
2002 2001
(Unaudited) (Unaudited)
----------- -----------
Per Unit Performance
(for a unit outstanding throughout the entire period)
-----------------------------------------------------
Net asset value per unit at
beginning of period $2,038.84 $2,026.18
--------- ---------
Income (loss) from operations:
Net investment (loss) (1), (3) (54.96) (44.11)
Net realized and change in unrealized
(loss) from trading (2), (3) (1.43) (16.81)
--------- ---------
Total (loss) from operations (56.39) (60.92)
--------- ---------
Net asset value per unit at
end of period $1,982.45 $1,965.26
========= =========
Total Return (4) (2.77)% (3.01)%
======= =======
Supplemental Data
Ratios to average net asset value: (5)
Expenses prior to incentive fees (1) (7.23)% (6.63)%
Incentive fees (0.37)% (2.09)%
------- -------
Total expenses (1) (7.60)% (8.72)%
======= =======
Net investment (loss) (1) (5.88)% (4.42)%
======= =======
Total return is calculated based on the change in value of a unit
during the period. 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 period. The net realized and change in unrealized
gain (loss) from trading is a balancing amount necessary to
reconcile the change in net asset value per unit with the other
per unit information. Such balancing amount for the six months
ended June 30, 2002 differs from the calculation of net trading
(loss) per unit due to the timing of trading gains and losses
during the period relative to the number of units outstanding.
(4) Not annualized.
(5) Annualized.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
A. LIQUIDITY: Substantially all of the Partnership's assets are highly
liquid, such as cash and open futures and option contracts. It is
possible that extreme market conditions or daily price fluctuation
limits at certain exchanges could adversely affect the liquidity of
open futures and option contracts. There are no restrictions on the
liquidity of these assets except for amounts on deposit with the
brokers needed to meet margin requirements on open futures contracts.
B. CAPITAL RESOURCES: Since the Partnership's business is the purchase
and sale of various commodity interests, it will make few, if any,
capital expenditures.
The Partnership's offering of Units of Limited Partnership Interest
terminated in 1995.
C. RESULTS OF OPERATIONS: The Partnership's net income (loss) for the
six months ended June 30, 2002 and 2001 consisted of the following:
2002 2001
---- ----
Three months ended March 31 $(2,720,355) $ 1,346,582)
Three months ended June 30 1,541,608 (2,462,589)
----------- -----------
Six months ended June 30 $(1,178,747) $(1,116,007)
=========== ===========
As of June 30, 2002, 14,717 Units are outstanding, including 225
General Partner Units, with an aggregate Net Asset Value of
$29,175,602 ($1,982.45 per Unit). This represents a decrease in Net
Asset Value of $4,608,193 compared with December 31, 2001. The
decrease is caused by redemptions of limited partner units and
a net loss for the six months ended June 30, 2002.
As of June 30, 2001, 17,977 Units are outstanding, including 225
General Partner Units, with an aggregate Net Asset Value of
$35,328,414 ($1,965.26 per Unit). This represents a decrease in Net
Asset Value of $5,142,223 compared with December 31, 2000. The
decrease is caused by redemptions of limited partner units and net
losses.
Second Quarter 2002
-------------------
The futures markets continued to be volatile in the second quarter of
2002, though there was a surge at the end of the quarter. The extreme
volatility of the equity markets, mainly on the downside, had a major
impact on the commodities markets. Many of the US and overseas stock
indexes and foreign currencies were very active. Some of this was the
result of the corporate scandals that continue to rock the markets.
In April, the Partnership lost 4.43%. Although there were gains in
Swiss Francs, natural gas, and Euros, they were more than offset by
losses in the German Stock Index, the Canadian Dollar, the NASDAQ 100,
and various bond futures.
In May, the Partnership was essentially flat, with a gain of .26%.
There were gains in foreign currencies due to the drop of the U.S.
dollar. There were also gains in precious metals and agricultural
commodities. The gains were offset by losses in the energy complex,
interest rates and some metals.
In June, the Partnership had a gain of 10.26%. There were gains in
Euro futures, and a gain in EuroDollar futures. There were also gains
in various stock indexes. There were losses in British Pounds, the
Nikkei Stock Index, and Gold, but these were more than offset by the
gains.
The Partnership had a total return of 5.65% for the quarter and
(2.77)% for the six months ended June 30, 2002. For the second
quarter 2002, the majority of the Partnership's trading gains were in
foreign currencies and the largest loss was in the energy markets.
First Quarter 2002
------------------
The futures markets remained choppy in the first quarter of 2002.
While the economy was showing some signs of improvement, there were
also some negative signs that caused uncertainty. The troubles in the
Middle East lead to large increases in oil and gas prices. Gold
prices also moved higher early in the quarter, but gave back some of
their gains at the end of the quarter.
In January 2002, the Partnership lost 6.25%. There were large losses
in stock indexes and agricultural commodities. Large losses were also
incurred in interest rates and metals. Many of the other sectors were
essentially flat.
In February 2002, the Partnership lost 5.58%. The Partnership once
again experienced losses in stock indexes and interest rates. In
addition, there were also losses in the energy complex and foreign
currencies. There were some gains in agricultural commodities and
precious metals. These however, were not enough to offset the losses.
In March 2002, the Partnership managed to gain 3.97%. There were
gains in the energy complex, including Brent Crude Oil and Unleaded
Gas. There were also some gains in bonds and stock indexes. There
were losses in currencies, including the Japanese Yen and the Swiss
Franc. There were also some small losses in cotton and aluminum.
These losses however were not enough to offset the gains.
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 Partnership's Trading Advisors had small losses during January and
February 2001. 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 Partnership's net result was a gain of 3.45%.
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.
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.
D. POSSIBLE CHANGES: The General Partner reserves the right to terminate
certain and/or engage additional trading advisors or change any of the
Partnership's clearing arrangements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
There has been no material change during the three and six months
ended June 30, 2002, in the sources of the Partnership's exposure to
market risk. The relationship of the total Value at Risk as a
percentage of total capitalization changed in the first quarter from
12.8% at December 31, 2001 to 19.2% at March 31, 2002 and in the second
quarter to 16.1% at June 30, 2002.
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.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
None.
Item 2. Changes in Securities.
None.
Item 3. Defaults Upon Senior Securities.
Not Applicable.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
Item 5. Other Information.
None.
Item 6. Exhibits and Reports on Form 8-K.
There were no reports filed on Form 8-K.
Exhibits filed herewith:
10.6. Form of Amended and Restated Stock Subscription Agreement by
and between ABN AMRO Incorporated and ProFutures, Inc.
99.1 Form of Certification Pursuant to Section 1350 of Chapter 63
of Title 18 of the United States Code.
99.2 Form of Certification Pursuant to Section 1350 of Chapter 63
of Title 18 of the United States Code.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PROFUTURES DIVERSIFIED FUND, L.P.
(Registrant)
/s/ Gary D. Halbert
---------------------------------
Gary D. Halbert, President
ProFutures, Inc., General Partner
ProFutures Diversified Fund, L.P.
EXHIBIT 10.6.
AMENDED AND RESTATED
STOCK SUBSCRIPTION AGREEMENT
----------------------------
THIS STOCK SUBSCRIPTION AGREEMENT (as it may be amended from time to time,
the "Agreement"), by and between ABN AMRO Incorporated ("AAI") and ProFutures,
Inc. ("ProFutures"), is made as of this 20th day of May, 2002.
WHEREAS, ProFutures is the general partner of ProFutures Diversified Fund,
L.P., a Delaware limited partnership ("PDF"), Alternative Asset Growth Fund,
L.P., a Delaware limited partnership ("AAGF"), and ProFutures Long/Short Growth
Fund, L.P., a Delaware limited partnership ("PLSGF"), and is the managing owner
of ProFutures Strategic Allocation Trust, a Delaware business trust ("PSAT");
WHEREAS, pursuant to separate customer agreements (the "Brokerage
Agreements"), AAI is the futures commission merchant and clearing broker for
each of PDF, AAGF, PLSGF and PSAT (collectively, the "Funds");
WHEREAS, ProFutures is obligated by the Amended and Restated Agreement of
Limited Partnership of PDF dated as of December 1, 1993 (the "PDF Limited
Partnership Agreement") to maintain a 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 shall act as general partner and which are
capitalized at less than $2.5 million and (ii) 10% of the aggregate initial
capital contributions of any limited partnerships for which it shall act as
general partner and which are capitalized at greater than $2.5 million (the
"PDF Net Worth Requirement");
WHEREAS, ProFutures is obligated by the Amended and Restated Limited
Partnership Agreement of AAGF dated as of September 25, 1989 (the "AAGF Limited
Partnership Agreement") to maintain a net worth equal to at least the sum of
(i) the lesser of $250,000 or 15% of the aggregate capital contributions of any
limited partnerships for which it shall act as general partner and which are
capitalized at less than $2.5 million and (ii) 10% of the aggregate capital
contributions of any limited partnerships for which it acts as general partner
and which are capitalized at greater than $2.5 million (the "AAGF Net Worth
Requirement");
WHEREAS, ProFutures is obligated by the Second Amended and Restated
Limited Partnership Agreement of PLSGF dated as of February 16, 1999 (the
"PLSGF Limited Partnership Agreement") to maintain a net worth of not less than
the greater of $50,000 or at least 5% of the total contributions to PLSGF and
all other partnerships of which ProFutures is general partner, but in no event
shall ProFutures be required to maintain a net worth in excess of $1,000,000
(the "PLSGF Net Worth Requirement");
WHEREAS, ProFutures is obligated by the First Amended and Restated
Declaration of Trust and Trust Agreement of PSAT dated as of August 1, 2000
(the "PSAT Trust Agreement") to maintain a net worth of not less than the
greater of $50,000 or at least 5% of the total contributions to PSAT and all
other partnerships of which ProFutures is manager, but in no event shall
ProFutures be required to maintain a net worth in excess of $1,000,000 (the
"PSAT Net Worth Requirement");
WHEREAS, AAI has agreed to subscribe for common stock of ProFutures to
enable ProFutures to continue to meet each Net Worth Requirement pursuant to
the terms and conditions set forth herein;
WHEREAS, AAI and ProFutures are party to Stock Subscription Agreement
dated as of May 20, 2002; and
WHEREAS, AAI and ProFutures desire to amend and restate such Stock
Subscription Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Purchase of Shares. AAI hereby agrees to subscribe for and purchase
shares of the [$.01] par value common stock of ProFutures (the "Shares") upon
call therefor by ProFutures and upon receipt of a certificate substantially in
the form attached hereto as Exhibit A (the "Certificate"). AAI's obligation to
purchase the Shares is subject to the conditions set forth herein. The
purchase price for the Shares subscribed for by AAI pursuant to this Agreement
shall equal the book value per share as determined by ProFutures' regularly
employed independent certified public accountants in accordance with generally
accepted accounting principles consistently applied on the date the
subscription is called (as to each Fund, the "Call Date"), but in no event less
than $.01 per share. Payment for the subscription shall be made by wire
transfer within thirty (30) days after the Call Date in exchange for the Shares
(the "Closing Date").
(a) PDF. In the event that PDF suspends trading pursuant to its
trading suspension policy (as set forth in the PDF Limited Partnership
Agreement) and exhausts all of its assets to satisfy its obligations, AAI
agrees to subscribe for the Shares and pay to ProFutures such amount as it may
from time to time call pursuant to this Agreement, up to the PDF Subscription
Amount (as defined). The PDF Subscription Amount shall be determined as of the
first PDF Call Date and shall mean: (i) the PDF Net Worth Requirement as of
such date, but in no event more than $7,000,000; minus (ii) the net worth of
ProFutures (excluding AAI's obligations under this Agreement) as of such date,
as determined by ProFutures' regularly employed independent certified public
accountants in accordance with generally accepted accounting principles
consistently applied.
(b) AAGF. In the event that AAGF suspends trading pursuant to its
trading suspension policy (as set forth in the AAGF Trust Agreement) and
exhausts all of its assets to satisfy its obligations, AAI agrees to subscribe
for the Shares and pay to ProFutures such amount as it may from time to time
call pursuant to this Agreement, up to the AAGF Subscription Amount (as
defined). The AAGF Subscription Amount shall be determined as of the first
AAGF Call Date and shall mean: (i) the AAGF Net Worth Requirement as of such
date, but in no event more than $7,000,000; minus (ii) the net worth of
ProFutures (excluding AAI's obligations under this Agreement) as of such date,
as determined by ProFutures' regularly employed independent certified public
accountants in accordance with generally accepted accounting principles
consistently applied.
(c) PLSGF. In the event that PLSGF suspends trading pursuant to its
trading suspension policy (as set forth in the PLSGF Limited Partnership
Agreement) and exhausts all of its assets to satisfy its obligations, AAI
agrees to subscribe for the Shares and pay to ProFutures such amount as it may
from time to time call pursuant to this Agreement, up to the PLSGF Subscription
Amount (as defined). The PLSGF Subscription Amount shall be determined as of
the first PLSGF Call Date and shall mean: (i) the PLSGF Net Worth Requirement
as of such date; minus (ii) the net worth of ProFutures (excluding AAI's
obligations under this Agreement) as of such date, as determined by ProFutures'
regularly employed independent certified public accountants in accordance with
generally accepted accounting principles consistently applied.
(d) PSAT. In the event that PSAT suspends trading pursuant to its
trading suspension policy (as set forth in the PSAT Trust Agreement) and
exhausts all of its assets to satisfy its obligations, AAI agrees to subscribe
for the Shares and pay to ProFutures such amount as it may from time to time
call pursuant to this Agreement, up to the PSAT Subscription Amount (as
defined). The PSAT Subscription Amount shall be determined as of the first
PSAT Call Date and shall mean: (i) the PSAT Net Worth Requirement as of such
date; minus (ii) the net worth of ProFutures (excluding AAI's obligations under
this Agreement) as of such date, as determined by ProFutures' regularly
employed independent certified public accountants in accordance with generally
accepted accounting principles consistently applied.
2. Calls with Respect to Multiple Funds. In the event that ProFutures
makes a call pursuant to two or more of (a) through (d) above, the aggregate
subscription requirement with respect to all such Funds shall not exceed the
highest Subscription Amount of any such Fund.
3. Amendment of Fund Net Worth Requirements. In the event that, at any
time, the PDF Net Worth Requirement, the PLSGF Net Worth Requirement, the AAGF
Net Worth Requirement or the PSAT Net Worth Requirement are reduced, ProFutures
shall immediately notify AAI and this Agreement shall be deemed to be amended
and restated, effective as of the date of such reduction, to reflect the change
in such Fund's Net Worth Requirement.
4. Termination of Brokerage Relationship. In the event that, at any
time, AAI ceases to act as the exclusive futures commission merchant and
clearing broker for any of the Funds, this Agreement shall be deemed to be
amended and restated, effective as of the date of such reduction, to reflect
the deletion of all references to such Fund(s).
5. Preservation of Business. During the term of this Agreement,
ProFutures shall operate only in the ordinary and usual course of business and
shall attempt to preserve intact the present business organization, good will
and advantageous relationships with the Funds, and shall not permit any action
or omission which would cause any of its representations or warranties
contained herein to become inaccurate or any of its covenants to be breached.
Without limiting the generality of the foregoing, ProFutures will not, without
the prior written consent of AAI which consent shall not be unreasonably
withheld or delayed:
(a) incur any obligation or enter into any contract which requires a
payment by any party in excess of, or a series of payments which in the
aggregate exceed, $250,000 or provides for the delivery of goods or performance
of services, or any combination thereof, having a value in excess of $250,000
other than contracts entered into in the ordinary course of ProFutures'
business consistent with past practice;
(b) sell, transfer, convey, assign or otherwise dispose of any of
its material assets or properties with a value in excess of $100,000, except to
existing affiliated companies for which notice will be provided to AAI.
(c) waive, release or cancel any material claims against third
parties or material debts owing to it, or any rights which are in excess of
$100,000;
(d) authorize for issuance, issue, sell, deliver or agree or commit
to issue, sell or deliver (whether through the issuance or granting of options,
warrants, convertible or exchangeable securities, commitments, subscriptions,
rights to purchase or otherwise) any shares of capital stock or any other
securities of ProFutures, or amend any of the terms of any such capital stock
or other securities;
(e) split, combine, or reclassify any shares of its capital stock,
declare any stock dividend in respect of its capital stock, or redeem or
otherwise acquire any capital stock or other securities of ProFutures;
(f) make any borrowings, incur any debt (other than trade payables
in the ordinary course of business and consistent with past practice), or
assume, guarantee, endorse (except for the negotiation or collection of
negotiable instruments in the ordinary course of business and consistent with
past practice) or otherwise become liable (whether directly, contingently or
otherwise) for the obligations of any other person, or make any payment or
repayment in respect of any indebtedness (other than trade payables and accrued
expenses in the ordinary course of business and consistent with past practice)
in excess of $250,000;
(g) make any loans, advances or capital contributions to, or
investments in, any other person, except in the ordinary course of business
consistent with past practices in excess of $100,000;
(h) acquire, lease or encumber any assets outside the ordinary
course of business or any assets in excess of $100,000;
(i) pay any material amount, perform any material obligation or
agree to pay any material amount or perform any material obligation, in
settlement or compromise of any suits or claims of liability against ProFutures
or any of its directors, officers, controlling persons, employees or agents.
For purposes of this section, material is defined as an amount in excess of
$100,000; or
(j) terminate (other than an expiration), modify, amend or otherwise
alter or change any of the terms or provisions of any agreement with a Fund.
6. Maintenance of Insurance. The Company shall continue to carry
insurance with substantially the same coverages and in reasonable amounts as
currently in effect, and shall use reasonable best efforts not to allow any
breach, default, termination or cancellation of such insurance policies or
agreements to occur or exist.
7. ProFutures' Activities. ProFutures agrees, for so long as this
Agreement is in effect, not to engage, without the prior written consent of
AAI, in any activities unrelated to its current activities of being: (a) a
commodity trading advisor; (b) general partner of PLSGF, AAGF and PDF; and (c)
managing owner of PSAT. Further, ProFutures agrees that AAI shall be its sole
clearing broker for all funds owned or controlled by ProFutures. ProFutures
shall use best efforts to conserve capital and avoid expenses to the extent
feasible to minimize the need of ProFutures to require AAI to purchase the
Shares. ProFutures also agrees to cooperate in good faith with AAI in the
conduct of its affairs including, without limitation, its full cooperation in
responding to any reasonable request for information by AAI.
8. AAI's Activities. AAI hereby agrees that it shall: (a) not purchase
or otherwise acquire any units of limited partnership interest or beneficial
interest of any of the Funds and (b) provide all information which in the
opinion of counsel for ProFutures is reasonably required for ProFutures to
comply with federal and state securities and tax laws, subject to ProFutures
maintaining strict confidentiality as to the information so provided.
9. Bank Holding Company Act. In the event a subscription payment is
called by ProFutures pursuant to Section 1, ProFutures agrees that it will (i)
operate each Fund in compliance with the Bank Holding Company Act of 1956, as
amended ("BHCA"), (ii) liquidate and prohibit the Funds from establishing any
positions that, in the reasonable judgment of AAI, may not be held by such
Funds under the BHCA, and (iii) upon AAI's request, cause the Funds to make,
constitute and appoint AAI as an attorney-in-fact of such Funds with the power
to liquidate any positions that in the reasonable judgment of AAI may not be
held by such Funds under the BHCA. ProFutures and AAI acknowledge and agree
that such positions shall be liquidated in a commercially reasonable manner
consistent with ProFutures' fiduciary duties to such Funds.
10. Representations and Warranties of ProFutures. ProFutures represents,
warrants and covenants to AAI as follows:
(a) ProFutures is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Texas, and has all
requisite corporate power and authority to carry on its business as proposed to
be conducted.
(b) True, accurate and complete copies of ProFutures' certificate or
articles of incorporation and bylaws are attached hereto as Exhibit B.
(c) ProFutures has all requisite legal and corporate power to enter
into this Agreement, to issue the Shares and to perform its other obligations
under the terms of this Agreement.
(d) The Shares shall, when issued, have been duly authorized and,
upon receipt of the purchase price therefor, will be (i) validly issued, fully
paid and nonassessable, (ii) free of preemptive rights and (iii) free and clear
of any and all liens.
(e) ProFutures has taken all corporate action necessary for its
authorization, execution, and delivery of, and its performance under, this
Agreement.
(f) This Agreement constitutes a legal, valid and binding obligation
of ProFutures, enforceable against ProFutures in accordance with its terms,
except that enforceability may be limited by (i) bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(g) The issuance of a Certificate shall constitute a representation
and warranty by ProFutures that the information contained therein is true and
complete as of the date of issuance.
11. Representations and Warranties of AAI. AAI represents and warrants
to ProFutures as follows (which representations and warranties shall be deemed
to be repeated at each Call Date and Closing Date):
(a) AAI is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of New York and has all requisite
corporate power and authority to carry on its business as conducted on the date
hereof.
(b) AAI has taken all actions required for its authorization,
execution, and delivery of, and its performance under, this Agreement.
(c) This Agreement constitutes a valid and binding obligation of
AAI, enforceable against AAI in accordance with its terms, except that
enforceability may be limited by (i) bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity regardless of whether such enforceability is considered
in a proceeding in equity or at law.
12. Conditions to AAI's Obligations at each Call Date and Closing Date.
AAI's obligation to purchase the Shares at the Closing is subject to the
fulfillment at each Call Date and Closing Date of the following conditions:
(a) The representations and warranties made by ProFutures herein
shall be true and correct when made, and shall be deemed to be repeated at each
Call Date and Closing Date;
(b) ProFutures shall have performed all obligations and conditions
herein required to be performed or observed by it on or prior to the Call Date
and all documents incident thereto shall be satisfactory in form and content to
AAI and its counsel;
(c) The conditions to the call set forth in Section 1 shall have
been met and the Certificate shall have been duly executed and delivered;
(d) The Shares shall have been delivered to AAI.
(e) Information Requirements of ProFutures. During the term of this
Agreement, AAI shall have the right, upon reasonable notice and during normal
business hours, to review and, at its expense, copy the books and records of
ProFutures at the offices of ProFutures. In addition, ProFutures shall furnish
to AAI:
(f) The Subscription Amount of each Fund on the date hereof, within
twenty (20) days of each month-end, and upon reasonable request by AAI;
(g) Immediate notice of a suspension of trading in any Fund;
(h) Immediate notice in the event that any of the Funds' assets have
declined as of the close of business on any business day to a level less than
80% of the net assets of such Fund at the end of the preceding month (adjusted
for contributions, redemptions and distributions);
(i) Quarterly and annual unaudited financial statements and annual
and other audited statements of ProFutures, promptly following their
completion;
(j) A monthly statement of the net worth of ProFutures (excluding
AAI's obligations under this Agreement) determined in accordance with generally
accepted accounting principles consistently applied, within twenty (20) days of
each month-end;
(k) Copies of all regulatory notices, complaints, legal actions or
proceedings, and other claims involving or in any way relating to ProFutures or
any Fund including, without limitation, claims by any limited partner or
unitholder, as the case may be, of a Fund, as soon as practicable following
filing or receipt thereof by ProFutures;
(l) Copies of all financial statements required to be delivered to
participants in the Funds pursuant to the rules of the Commodity Futures
Trading Commission or National Futures Association, promptly and in no event
later than the date of distribution to the participants in the Fund; and
(m) Copies of marketing material used in connection with any Fund,
promptly following their use.
13. Other Conditions. In the event ProFutures either makes a general
assignment of its assets to creditors under applicable state law; is placed
into receivership under any governing state or federal law; or made subject to
any foreign insolvency proceeding, this Agreement shall terminate without any
further notice or action of AAI being necessary or required (collectively, an
"Insolvency Event"); provided, however, that AAI, in its sole and absolute
discretion, may elect within ten (10) days of receipt of written notice of an
Insolvency Event to continue the term of the Agreement by providing written
notice of such election to ProFutures (and any assignee or receiver, as the
case may be), subject to whatever additional or other terms and conditions as
AAI may reasonably request. In the event an order for relief is entered
against ProFutures under any chapter of Title 11 of the United States Code,
(the "Bankruptcy Code") and a case is commenced in a United States Bankruptcy
Court (a "Bankruptcy Proceeding"), ProFutures or (if applicable) its trustee
may request, but shall not be entitled to require, cash contributions from AAI
under this Agreement. AAI, in its sole and absolute discretion, may elect to
make such cash contribution in the Bankruptcy Proceeding, subject to
satisfaction of the following conditions: First, in lieu of issuing any shares
in exchange for such a requested cash contribution, ProFutures or (if
applicable) its trustee shall obtain entry of an order under Section 363 of the
Bankruptcy Code, in form and substance satisfactory to AAI (the "Sale Order")
authorizing the sale to AAI of so much of the assets of the estate of
ProFutures as AAI determines in its reasonable discretion to have a value that
is at least equal in amount to the cash contribution that it has agreed to make
(the "Purchase Price"). Second, any assets so transferred to AAI in
consideration for the Purchase Price shall be conveyed pursuant to Section 363
of the Bankruptcy Code free and clear of all liens, claims or encumbrances.
Third, the Sale Order shall provide a finding that AAI is a "good faith"
purchaser and is entitled to the protections of Section 363(m). Fourth, AAI
shall be entitled to reasonable overbid procedures in connection with any such
asset sale, including, but not necessarily limited to entry of an order in the
Bankruptcy Proceeding authorizing ProFutures to reimburse AAI, as an
administrative expense under Section 503(b) of the Bankruptcy Code, for any
fees, costs or expenses, including attorneys' fees, reasonably incurred by AAI
in connection with its offer to pay the Purchase Price.
14. Term. This Agreement shall continue in effect for a period of one
(1) year from the date hereof and shall be automatically renewed for additional
one (1) year terms. Notwithstanding the foregoing, (i) either party may
terminate this Agreement at any time after having given the other party at
least sixty (60) days' prior written notice of its intent to terminate, and
(ii) AAI may, in its sole discretion, terminate this Agreement immediately
following a capital call made pursuant to Section 1 hereof, provided that AAI's
obligation to make payment pursuant to such call shall survive the termination
of this Agreement. In the event of any such termination, AAI will provide
ProFutures with prompt written notice.
15. Amendments; Waiver; Assignments; Beneficiaries. Except as otherwise
provided in Section 3 and Section 4 above, none of the provisions of this
Agreement may be amended or waived except by a written instrument duly executed
by the party to be charged therewith. No waiver of any right or remedy or any
breach of or default under any provision of this Agreement shall constitute a
waiver of any other right or remedy for any breach of or default under any
other provision or of any other breach of or default under the same provision.
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. This Agreement and the conditions and provisions hereof
are intended to be and are for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and for the benefit of no
other person or entity.
16. Governing Law; Jurisdiction; Venue. This Agreement shall be governed
by and construed in accordance with the laws of the State of Illinois
(excluding conflict of laws principles). All disputes, claims, actions or
proceedings arising directly or indirectly from or in connection with this
Agreement shall be litigated only in a court located in the State of Illinois.
The parties hereby consent and submit to the jurisdiction of any state or
federal court located in the County of Cook, State of Illinois. The parties
hereby waive any right to transfer or change the venue of any such litigation.
17. 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
facsimile (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
Fax:
------------------------------
If to AAI:
ABN AMRO Incorporated
208 South LaSalle Street
Chicago, Illinois 60604
Attn: Ben A. Witt, President
Fax: (312)
-----------------------
with a mandatory copy to:
ABN AMRO Incorporated
208 South LaSalle Street
Chicago, Illinois 60604
Attn: Maureen Guilfoile
Fax: (312) 855-5284
18. Severability of this Agreement. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
19. Counterparts. This Agreement may be executed in any number of
counterparts, all of such counterparts together to be deemed one instrument.
20. Captions. Any captions appearing in this Agreement are inserted as a
matter of convenience and for reference only and shall not define, limit, or
describe the scope and intent of this Agreement or any of the provisions
hereof.
21. Entire Agreement; Prior Agreements. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings (written and oral) of
the parties in connection herewith.
IN WITNESS WHEREOF, the parties have duly caused this Agreement to be
executed and delivered by their duly authorized agents as of the date first
above written.
ABN AMRO INCORPORATED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PROFUTURES, INC.
By:
------------------------------------
Gary D. Halbert, President
EXHIBIT A
CERTIFICATE
ProFutures, Inc. ("ProFutures") hereby certifies to ABN AMRO Incorporated
("AAI") pursuant to the Amended and Restated Stock Subscription Agreement dated
as of , 2002 by and between ProFutures and AAI (the
"Subscription Agreement") as follows:
1. Its Certificate or Articles of Incorporation and By-laws attached to
the Agreement as Exhibit B have not been amended in any respect and remain in
full force and effect as of the date hereof.
2. The representations and warranties of ProFutures set forth in Section
11 of the Subscription Agreement are true and correct in all respects as of the
date hereof.
3. At the date hereof, ProFutures has performed, satisfied and complied
with the covenants, agreements and conditions required by the Subscription
Agreement to be performed or satisfied by it or with which it is required to be
in compliance.
4. The undersigned represents and warrants that the following conditions
to the call have been met:
(a) The Fund to which the call relates is
(the "Call Fund");
(b) The Call Fund suspended trading in accordance with its trading
suspension policy (as set forth in its limited partnership agreement or trust
agreement) on , 20 ;
(c) The Call Fund has exhausted all of its assets to satisfy its
obligations;
(d) The net worth of ProFutures (excluding AAI's obligations under
the Subscription Agreement) as of the date hereof, as determined by ProFutures'
regularly employed independent certified public accountants in accordance with
generally accepted accounting principles consistently applied is $ .
(e) Subject to paragraph 5 hereof, the Subscription Amount
determined as of the date hereof is $ (which amount is equal to:
(i) the Call Fund's Net Worth Requirement as of the Fund's first Call Date;
minus (ii) the net worth of ProFutures (excluding AAI's obligations under the
Subscription Agreement) as of such date, as determined by ProFutures' regularly
employed independent certified public accountants in accordance with generally
accepted accounting principles consistently applied.
5. The Subscription Amount shall in no event exceed: (i) $7,000,000, if
the Call Fund is either ProFutures Diversified Fund, L.P. or Alternative Asset
Growth Fund, L.P.; or (ii) $1,000,000 if the Call Fund is either ProFutures
Long/Short Growth Fund, L.P. or ProFutures Strategic Allocation Trust. In the
event that ProFutures makes a call with respect to two or more Funds, the
aggregate subscription requirement with respect to all such Call Funds shall
not exceed the highest Subscription Amount of any such Call Fund.
6. Capitalized terms used herein but not defined herein have the same
meaning as in the Subscription Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed by its duly authorized officer on this day of ,
20 .
PROFUTURES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 99.1
CERTIFICATION PURSUANT TO SECTION 1350 OF
CHAPTER 63 OF TITLE 18 OF THE UNITED STATES CODE
------------------------------------------------
I, Gary D. Halbert, the President of ProFutures, Inc. as general partner of
ProFutures Diversified Fund, L.P., certify that (i) the Form 10Q for the
quarter ended June 30, 2002 of ProFutures Diversified Fund, L.P. fully complies
with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 and (ii) the information contained in the Form 10Q for the quarter
ended June 30, 2002 fairly presents, in all material respects, the financial
condition and results of operations of ProFutures Diversified Fund, L.P.
PROFUTURES DIVERSIFIED FUND, L.P.
By: ProFutures, Inc., general partner
By: /s/ Gary D. Halbert
---------------------------------
Gary D. Halbert
President
August 13, 2002
EXHIBIT 99.2
CERTIFICATION PURSUANT TO SECTION 1350 OF
CHAPTER 63 OF TITLE 18 OF THE UNITED STATES CODE
------------------------------------------------
I, Debi B. Halbert, the Chief Financial Officer of ProFutures, Inc. as general
partner of ProFutures Diversified Fund, L.P., certify that (i) the Form 10Q for
the quarter ended June 30, 2002 of ProFutures Diversified Fund, L.P. fully
complies with the requirements of Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 and (ii) the information contained in the Form 10Q for the
quarter ended June 30, 2002 fairly presents, in all material respects, the
financial condition and results of operations of ProFutures Diversified Fund,
L.P.
PROFUTURES DIVERSIFIED FUND, L.P.
By: ProFutures, Inc., general partner
By: /s/ Debi B. Halbert
---------------------------------
Debi B. Halbert
Chief Financial Officer
August 13, 2002