As filed with the Securities and Exchange Commission on February 22, 2008

No. 333-147611

No. 811-22147

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


 

FORM N-1A

 

REGISTRATION STATEMENT

 

 

UNDER THE SECURITIES ACT OF 1933

 

x

 

Pre-Effective Amendment No. 1

 

x

 

Post-Effective Amendment No.

 

o

 

 

and/or

 

 

 

REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY

 

 

ACT OF 1940

 

x

Amendment No. 1

 

x

(Check appropriate box or boxes)

 

 

 


 

PowerShares India Exchange-Traded Fund Trust

(Exact Name of Registrant as Specified in Charter)

 

301 West Roosevelt Road
Wheaton, IL 60187
(Address of Principal Executive Office)

 

Registrant’s Telephone Number, including Area Code:  (800) 983-0903

 

H. Bruce Bond

 

With a copy to:

301 West Roosevelt Road

 

Stuart M. Strauss

Wheaton, IL 60187

 

Clifford Chance US LLP

(Name and Address of Agent for Service)

 

31 West 52nd Street

 

 

New York, NY 10019

 

APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING: As soon as practicable after the effective date of this registration statement.

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that the registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said section 8(a), may determine.

 

 



The information in this Prospectus is not complete and may be changed. The Trust may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This Prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

Subject to Completion
Preliminary Prospectus dated February 22, 2008

PowerShares India Exchange-Traded Fund Trust

  PowerShares India Exchange-Traded Fund Trust

  PowerShares India Portfolio  –  PIN



PowerShares India Exchange-Traded Fund Trust (the "Trust") is a registered investment company that currently consists of one portfolio, the PowerShares India Portfolio, an exchange-traded index fund ("Fund"). Additional funds may be offered in the future.

The Fund has applied to list its shares (the "Shares") on the New York Stock Exchange Arca, Inc. (the "NYSE Arca"). The market prices for the Shares may be different from their net asset value ("NAV"). The Fund will issue and redeem Shares only in large blocks consisting of 100,000 Shares ("Creation Units").

Except when aggregated in Creation Units, the Shares are not redeemable securities of the Fund.

The Securities and Exchange Commission ("SEC") has not approved or disapproved these securities or passed upon the adequacy or accuracy of this Prospectus. Any representation to the contrary is a criminal offense.

Prospectus dated , 2008

NOT FEDERAL DEPOSIT INSURANCE
CORPORATION ("FDIC") INSURED. MAY LOSE VALUE.
NO BANK GUARANTEE.




TABLE OF CONTENTS

  4     Introduction – PowerShares India Exchange-Traded Fund Trust  
  4     Who Should Invest in the Fund  
  5     PowerShares India Portfolio  
  16     Additional Investment Strategies  
  16     Additional Risks  
  19     Portfolio Holdings  
  19     Management of the Fund  
  21     How to Buy and Sell Shares  
  23     Frequent Purchases and Redemptions of Fund Shares  
  23     Creations, Redemptions and Transaction Fees  
  26     Dividends, Distributions and Taxes  
  31     Distributor  
  31     Net Asset Value  
  33     Fund Service Providers  
  33     Index Provider  
  33     Disclaimers  
  34     Other Information  

 


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INTRODUCTION – POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST

The Trust is an investment company that currently consists of one portfolio, the PowerShares India Portfolio, an exchange-traded "index fund." The investment objective of the Fund is to replicate as closely as possible, before fees and expenses, the price and yield of the Indus India Index. This Prospectus relates to the PowerShares India Portfolio. PowerShares Capital Management LLC (the "Adviser") is the investment adviser for the Fund.

The Fund anticipates that the Shares of the Fund will be listed on the NYSE Arca. The market prices for the Shares may be different from their NAV. Unlike conventional mutual funds, the Fund issues and redeems Shares on a continuous basis, at NAV, only in large specified blocks, each called a "Creation Unit." Except when aggregated in Creation Units, Shares of the Fund are not redeemable securities of the Fund.

WHO SHOULD INVEST IN THE FUND

The Fund is designed for investors who seek a relatively low-cost approach for investing in a portfolio of equity securities of companies in a specified index. The Fund may be suitable for long-term investment in the market represented in the relevant index and may also be used as an asset allocation tool or as a speculative trading instrument.

Unlike interests in conventional mutual funds, the Shares are traded throughout the day on a national securities exchange, whereas mutual fund interests are typically only bought and sold at closing NAVs. The Shares have been designed to be tradable in the secondary market on a national securities exchange on an intra-day basis, and to be created and redeemed in Creation Units at each day's next calculated NAV.


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PowerShares India Portfolio

Investment Objective, Strategies and Risks

Investment Objective

The Fund seeks investment results that correspond (before fees and expenses) generally to the price and yield of the Indus India Index (the "India Index" or "Underlying Index").

Principal Investment Strategies

The Fund will carry out its investment strategies by investing substantially all of its assets in a wholly-owned subsidiary in Mauritius (the "Subsidiary"), which in turn, will invest at least 90% of its total assets in securities that comprise the India Index and American Depository Receipts ("ADRs") based on the securities in the India Index. The Fund anticipates that the majority of its investments will be in securities that comprise the India Index rather than ADRs. The Adviser will serve as investment adviser to both the Fund and the Subsidiary. Through such investment structure, the Fund expects to obtain benefits under the tax treaty between Mauritius and India. For simplicity, except where otherwise indicated, this Prospectus uses the term "Fund" to mean the Fund and/or the Subsidiary, as applicable.

The Adviser will seek to match the performance of the India Index compiled by Indus Advisors LLC ("Indus" or the "Index Provider"). The India Index is comprised of Indian equity securities traded on regulated stock exchanges in India. The India Index is designed to represent the Indian equity markets as a whole. As of January 31, 2008, the India Index consisted of 50 stocks issued by companies domiciled in India with market capitalizations of between $3.4 billion and $91.5 billion. The Fund's investment objective and 90% investment policy noted above are non-fundamental and require 60 days' prior written notice to shareholders before they can be changed.

The India Index is generally adjusted quarterly on the last days of January, April, July and October and the Fund, using an "indexing" investment approach, attempts to replicate, before fees and expenses, the performance of the India Index. The Adviser seeks correlation over time of 0.95 or better between the Fund's performance and the performance of the India Index; a figure of 1.00 would represent perfect correlation. The Fund generally will invest in all of the stocks comprising the India Index in proportion to their weightings in the India Index. However, under various circumstances, it may not be possible or practicable to purchase all of those stocks in those weightings. In those circumstances, the Fund may purchase a sample of stocks in the India Index as a whole. There may also be instances in which the Adviser may choose to overweight another stock in the India Index, purchase securities not in the India


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Index which the Adviser believes are appropriate to substitute for certain securities in the India Index or utilize various combinations of other available investment techniques, in seeking to track the India Index. The Fund may sell stocks that are represented in the India Index in anticipation of their removal from the India Index or purchase stocks not represented in the India Index in anticipation of their addition to the India Index.

Index Methodology

The India Index is designed to represent the Indian equity markets as a whole. The India Index has 50 constituents, spread among the following sectors: Information Technology, Health Sciences, Financial Services, Heavy Industry, Consumer Products and Other. The India Index is supervised by an index committee, comprised of representatives of the Index Provider and members of academia specializing in emerging markets.

The India Index is constructed using a rules-based methodology. An important criterion for ranking the companies for potential selection within the India Index is a proprietary methodology developed by the Index Provider, known as "IndusCap." The Reserve Bank of India ("RBI"), the counterpart of the Federal Reserve Bank in the U.S., imposes certain limits on the foreign ownership of Indian securities. The general limit on the ownership by foreign persons of the outstanding securities of Indian companies is 24%. Some companies have a limit of 10%, however, many companies have higher limits, some with no limit at all. The Securities and Exchange Board of India ("SEBI"), the counterpart of the SEC in the U.S., monitors foreign holdings and periodically announces current foreign holdings and changes to foreign holdings limits. IndusCap measures the capitalization in a company which is available for foreign ownership derived from: (a) total capitalization, (b) percent foreign holdings limits if any, (c) foreign holdings outside of the Fund, if any, (d) locked-in stock (held by government agencies, founders and others) not available in the secondary markets, if any, and (e) related factors.

As of each quarterly reconstitution and rebalance, the initial universe of components (the "Indus Universe") from which the 50 components of the Underlying Index are selected includes the 200 companies with the largest market capitalization listed on the National Stock Exchange in India and the 200 companies with the largest market capitalization listed on the Bombay Stock Exchange in India. The 50 companies with the largest IndusCap values are chosen as the components of the Underlying Index.


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The 50 companies in the India Index are chosen, and the weight of each security in the India Index is calculated, based on: (a) the respective IndusCaps of the securities in the investible universe, (b) certain diversification rules under U.S. tax laws and European Union laws and (c) sector limits (no more than 40% of the India Index's assets will be invested in any one of the above-named sectors).

Pursuant to the IndusCap methodology, at each quarterly reconstitution and rebalance of the Underlying Index, the IndusCap values of the companies in the Indus Universe on that day are recomputed based on the then current foreign ownership limits, foreign ownership levels and locked-in stock. The IndusCap value of a certain company, and its proportionate weighting in the Underlying Index, may increase or decrease depending on changes to these elements.

Calculation of Index Value

Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies, Inc. ("S&P" or the "Calculating Agent") will calculate the value of the India Index at the end of each Indian business day, which has no time overlap with the U.S. business day. During the U.S. business day, the Exchange will publish, at 15-second intervals, the indicative index values taking into account the fluctuations in the exchange rates between the Indian Rupee and the U.S. dollar.

Index Reconstitution, Rebalancing and Maintenance

The India Index is reconstituted and rebalanced quarterly on the last days of January, April, July and October by the Index Provider utilizing the methodology described above, and the constituents of the Underlying Index may change.

Pursuant to the IndusCap methodology, at each quarterly reconstitution and rebalance of the Underlying Index, the IndusCap values of the companies in the Indus Universe on that day are recomputed based on the then current foreign ownership limits, foreign ownership levels and locked-in stock (held by government agencies and founders' stock). The IndusCap value of a certain company, and its proportionate weighting in the Underlying Index, may increase or decrease depending on changes to these elements. If a security in the Underlying Index reaches its limit on foreign ownership on any day during the quarter, the security will be removed from the Underlying Index on that day and its weight on that day will be distributed among all remaining securities in the Underlying Index in proportion to their weights in the Underlying Index on that day.


7



The Underlying Index began operations in February 2007. Valuation Data regarding the Underlying Index is available via Bloomberg, L.P. and Reuters.

Principal Risks of Investing in the Fund

The following specific risk factors have been identified for the Fund. See also the section on "Additional Risks" for other risk factors.

Market Trading Risk

Risk is inherent in all investing. An investment in the Fund involves risks similar to those of investing in any fund of equity securities traded on an exchange. You should anticipate that the value of the Shares will decline, more or less, in correlation with any decline in value of the Underlying Index.

Market Risk

The Shares are subject to market fluctuations caused by such factors as economic, political, regulatory or market developments, changes in interest rates and perceived trends in securities prices. Overall securities values could decline generally or could underperform other investments.

Indian Securities Risk

The value of the Fund's assets may be adversely affected by political, economic, social and other factors, changes in Indian law or regulations and the status of India's relations with other countries. In addition, the economy of India may differ favorably or unfavorably from the U.S. economy in such respects as the rate of growth of gross domestic product, the rate of inflation, capital reinvestment, resource self-sufficiency and balance of payments position. Agriculture occupies a more prominent position in the Indian economy than in the United States, and the Indian economy therefore is more susceptible to adverse changes in weather. Monsoons and other natural disasters in India and surrounding regions also can affect the value of Fund investments. The Indian government has exercised and continues to exercise significant influence over many aspects of the economy, and the number of public sector enterprises in India is substantial. Accordingly, Indian government actions in the future could have a significant effect on the Indian economy, which could affect private sector companies and the Fund, market conditions, and prices and yields of securities in the Fund's portfolio.


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There is the possibility of nationalization, expropriation or confiscatory taxation, political changes, government regulation, social instability or diplomatic developments (including war or terrorist attacks) which could affect adversely the economy of India or the value of the Fund's investments.

The laws relating to limited liability of corporate shareholders, fiduciary duties of officers and directors, and the bankruptcy of state enterprises are generally less well developed than or different from such laws in the United States. In addition, it may be difficult to obtain and enforce a judgment in a court in India, including in a case where there is a default with respect to the security of an Indian issuer or with respect to any other claim that the Fund may have against an issuer or its directors and officers. As a result, even if the Fund initiates a suit against the issuer in a U.S. court, it may not be possible for the Fund to effect service of process in India. Furthermore, if the Fund obtains a judgment in a U.S. court, it may be difficult to enforce such judgment in India as India is not a party to any international treaty with respect to the recognition or enforcement of foreign judgments. Provisions of Indian law regulate the enforcement of foreign judgments and such laws contain broad exceptions. In addition, a party seeking to enforce a foreign judgment in India is also required to obtain approval from the Reserve Bank of India to execute such judgment or to repatriate any amount recovered outside of India.

The Indian population is comprised of diverse religious, linguistic and ethnic groups and religious and border disputes continue to be a problem in India. Moreover, India has, from time to time, experienced civil unrest and hostility with neighboring countries such as Pakistan. The Indian government has confronted separatist movements in several Indian states. If the Indian government is unable to control the violence and disruption associated with these tensions, the results could have a negative effect on the economy and, consequently, adversely affect the Fund's investments.

Investing in the securities of Indian companies involves certain risks not associated with investment in U.S. securities, including government controls placed on foreign investment, government limitation on the repatriation of invested capital and currency conversion, market volatility and illiquidity, and securities with smaller market capitalizations. Additionally, uncertainty regarding inflation and currency exchange rates, as well the possibility that future harmful political actions will be taken by the Indian Government and the


9



existence of religious and ethnic unrest could negatively impact the Indian economy, which would likely adversely affect the performance the Indian companies in which the Fund will invest. There is less governmental regulation of the securities industry in India than in the U.S. Indian issuers are subject to less regulation and scrutiny with regard to financial reporting, accounting and auditing than U.S. companies. Therefore, information regarding Indian corporations may be less reliable and all material information may not be available to the Fund. The Subsidiary may be subject to withholding taxes imposed by the Indian government on dividends, interest and realized capital gains should new legislation be passed to modify the current tax treaty with Mauritius. See "Tax Risk" below.

In addition, certain restrictions on foreign investment may decrease the liquidity of a Fund's portfolio or inhibit the Fund's ability to track the Underlying Index. The Fund may be unable to buy or sell securities or receive full value for such securities. Settlement of securities transactions in the Indian subcontinent are subject to risk of loss, may be delayed and are generally less efficient than in the United States. In addition, disruptions due to work stoppages and trading improprieties in these securities markets have caused such markets to close. If extended closings were to occur in the Indian market, the Fund's ability to redeem Fund shares could become correspondingly impaired. Each of these events could have a negative impact on the liquidity and value of the Fund's investments. To mitigate these risks, the Fund may maintain a higher cash position than it otherwise would, or the Fund may have to sell more liquid securities which it would not otherwise choose to sell, possibly diluting its return and inhibiting its ability to track the Underlying Index.

In recent years, exchange-listed companies in the technology sector and related sectors (such as software) have grown so as to represent a significant portion of the total capitalization of the Indian market. The value of these companies will generally fluctuate in response to technological and regulatory developments. The stock markets in the region are undergoing a period of growth and change, which may result in trading or price volatility and difficulties in the settlement and recording of transactions, and in interpreting and applying the relevant laws and regulations. The securities industries in these countries are comparatively underdeveloped, and stockbrokers and other intermediaries may not perform as well as their counterparts in the United States and other more developed securities markets. In some cases, physical delivery of securities in small lots has


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been required in India and a shortage of vault capacity and trained personnel has existed among qualified custodial Indian banks. These and other factors could have a negative impact on a Fund's performance.

Currency Risk

The Fund invests in equity securities of Indian issuers and substantially all of the income received by the Fund will be in Rupees. However, the Fund will compute and distribute its income in U.S. dollars, and the computation of income will be made on the date that the income is earned by the Fund at the foreign exchange rate in effect on that date. Therefore, if the value of the Rupee falls relative to the U.S. dollar between the earning of the income and the time at which the Fund converts the Rupees to U.S. dollars, the Fund may be required to liquidate securities in order to make distributions if the Fund has insufficient cash in U.S. dollars to meet distribution requirements.

Furthermore, the Fund may incur costs in connection with conversions between U.S. dollars and Rupees. Foreign exchange dealers realize a profit based on the difference between the prices at which they are buying and selling various currencies. Thus, a dealer normally will offer to sell a foreign currency to the Fund at one rate, while offering a lesser rate of exchange should the Fund desire immediately to resell that currency to the dealer. The Fund will conduct its foreign currency exchange transactions either on a spot (i.e., cash) basis at the spot rate prevailing in the foreign currency exchange market, or through entering into forward, futures or options contracts to purchase or sell foreign currencies.

Index Rebalancing Risk

Pursuant to the methodology of the Index Provider used to calculate and maintain the Underlying Index, when a security in the Underlying Index reaches its limitation on foreign ownership, it will be removed from the Underlying Index that day. As a result, the Fund may be forced to sell securities at inopportune times or for prices other than at current market values or may elect not to sell such securities on the day that they are removed from the Underlying Index, due to market conditions or otherwise. Due to these factors, the variation between the Fund's annual return and the return of its Underlying Index may increase.


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Tax Risk

The Fund currently operates through a wholly-owned subsidiary of the Trust (the "Subsidiary") in the Republic of Mauritius and will benefit from favorable tax treatment by the Indian government pursuant to a taxation treaty between India and Mauritius. The Supreme Court of India has upheld the validity of this tax treaty in response to a challenge in a lower court contesting the treaty's applicability to entities such as the Fund; however, there can be no assurance that any future challenge will result in a favorable outcome. In recent years, there has been discussion in the Indian press that the treaty may be re-negotiated. There can be no assurance that the terms of the treaty will not be subject to re-negotiation in the future or subject to a different interpretation or that the Fund will continue to be deemed a tax resident by Mauritius, allowing it favorable tax treatment. Any change in the provisions of this treaty or in its applicability to the Fund could result in the imposition of withholding and other taxes on the Subsidiary by India, which would reduce the return to the Fund on its investments.

The Fund intends to elect to "pass-through" to the Fund's shareholders as a deduction or credit the amount of foreign taxes paid by the Fund. The taxes passed through to shareholders are included in each shareholder's income. Certain shareholders, including some non-U.S. shareholders, are not entitled to the benefit of a deduction or credit with respect to foreign taxes paid by the Fund. Other foreign taxes, such as transfer taxes, may be imposed on the Fund, but would not give rise to a credit, or be eligible to be passed through to shareholders.

Tax Consequences of Redemption Proceeds Being Limited to Cash

Unlike most exchange-traded funds, the Fund does not and will not generally make in-kind redemptions. As such the Fund may be required to sell portfolio securities in order to obtain the cash needed to distribute redemption proceeds. Generally, this will cause the Fund to recognize gain it might not otherwise have recognized, or to recognize such gain sooner than would otherwise be required, if it were able to distribute the Shares in-kind. Based on the U.S. federal income tax rules applicable to the Fund and an investment in the Fund, this may cause particular shareholders to be subject to tax on gains they would not otherwise be subject to, or at an earlier date than, if they had made an investment in a different exchange-traded fund.


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Non-Correlation Risk

The Fund's return may not match the return of the Underlying Index for a number of reasons. For example, the Fund incurs operating expenses not applicable to the Underlying Index, and incurs costs in buying and selling securities, especially when rebalancing the Fund's securities holdings to reflect changes in the composition of the Underlying Index. In addition, the performance of the Fund and the Underlying Index may vary due to asset valuation differences and differences between the Fund's portfolio and the Underlying Index resulting from legal restrictions (such as diversification requirements that apply to the Fund but not to the Underlying Index).

The Fund may not be fully invested at times, either as a result of cash flows into the Fund or reserves of cash held by the Fund to meet redemptions and expenses. If the Fund utilizes a sampling approach or futures or other derivative positions, its return may not correlate as well with the return of the Underlying Index as would be the case if it purchased all of the securities in the Underlying Index with the same weightings as the Underlying Index.

Replication Management Risk

Unlike many investment companies, the Fund is not "actively" managed. Therefore, it would not necessarily sell a security because the security's issuer was in financial trouble unless that security is removed from the Underlying Index.

Industry Risk

The Fund does not invest 25% or more of the value of its total assets in securities of issuers in any one industry or group of industries, except to the extent that the Underlying Index concentrates in an industry or group of industries. To the extent that the Fund's investments are concentrated within any one industry or group of related industries, any factors detrimental to the performance of such industry will disproportionately impact the Fund's NAV. These detrimental factors may include additional governmental regulation, including the increased cost of compliance, inflation, an increase in the cost of raw materials, an increase in interest rates and technological advances. Investments focused in a particular industry are subject to greater risk, and are more greatly impacted by market volatility, than more diversified investments.


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Non-Diversified Fund Risk

The Fund is considered non-diversified and can invest a greater portion of assets in securities of individual issuers than a diversified fund. As a result, changes in the market value of a single investment could cause greater fluctuations in share price than would occur in a diversified fund.

The Fund's Shares will change in value, and you could lose money by investing in the Fund. The Fund may not achieve its objective. An investment in the Fund is not a deposit with a bank and is not insured or guaranteed by the FDIC or any other government agency.

How the Fund Has Performed

The Fund commenced operations on , 2008 and therefore does not have a performance history for a full calendar year.

What are the Costs of Investing?

This table describes the fees and expenses that you may pay if you buy and hold Shares of the Fund. Investors purchasing Shares in the secondary market will not pay the Creation/Redemption Transaction Fees shown below, but may be subject to costs (including customary brokerage commissions) charged by their broker.(1)

Shareholder Transaction Expenses (fees paid directly from your investments)     None*    
Standard Creation/Redemption Transaction Fee   $ 2,500    
Variable Creation/Redemption Transaction Fee     0.325 %  
Annual Fund Operating Expenses(2) (expenses that are deducted from the Fund's assets)  
Management Fees     0.78 %  
Other Expenses(3)     0.00 %  
Total Annual Fund Operating Expenses     0.78 %  

 

Example

This example is intended to help you compare the cost of investing in the Fund with the cost of investing in other funds. This example does not take into account brokerage commissions that you pay when purchasing or selling Shares of the Fund.

The example assumes that you invest $10,000 in the Fund for the time periods indicated and then sell all of your Shares at the end of those periods. The example also assumes that your investment has a 5% return each year and that


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the Fund's gross operating expenses remain the same. Although your actual costs may be higher or lower, your costs, based on these assumptions, would be:

1 YEAR   3 YEARS  
$ 80     $ 249    

 

(1)  The Fund had not commenced operations as of the date of this Prospectus. The expenses listed in the table are estimates based on the expenses the Fund expects to incur for the fiscal year ending October 31, 2008. The fee table and example above reflect expenses of both the Fund and the Subsidiary.

(2)  Expressed as a percentage of average net assets. The cost reflects the expenses at both the Fund and Subsidiary levels.

(3)  The Trust's Investment Advisory Agreement provides that the Adviser will pay all expenses of the Fund and the Subsidiary, except for the fee payments under the Investment Advisory Agreement, distribution fees, if any, brokerage expenses, taxes, interest and extraordinary expenses and the Subsidiary will pay for its brokerage expenses, taxes, interest and charges and extraordinary expenses.

*  See "Creation Transaction Fees and Redemption Transaction Fees" below.

Creation Transaction Fees and Redemption Transaction Fees

The Fund issues and redeems Shares at NAV only in large blocks of 100,000 Shares (each block of 100,000 Shares called a "Creation Unit") or multiples thereof. As a practical matter, only broker-dealers or large institutional investors with creation and redemption agreements and called authorized participants ("Authorized Participants," or "APs") can purchase or redeem these Creation Units. Purchasers of Creation Units at NAV must pay a standard Creation Transaction Fee consisting of a fixed fee equal to $2,500 per transaction (regardless of the number of Creation Units involved) and a variable fee equal to 0.325% of the value of each Creation Unit. An AP who holds Creation Units and wishes to redeem at NAV would also pay a standard Redemption Transaction Fee consisting of a fixed fee equal to $2,500 for each redemption transaction (regardless of the number of Creation Units involved) and a variable fee equal to 0.325% of the value of each Creation Unit.* APs who hold Creation Units in inventory will also pay the Annual Fund Operating Expenses described in the table above. Assuming an investment in a Creation Unit of $2,500,000 and a 5% return each year, and assuming that the Fund's operating expenses remain the same, the total costs would be $41,504 if the Creation Unit is redeemed after one year, and $84,613 if the Creation Unit is redeemed after three years.

The Creation Transaction Fee and Redemption Transaction Fee are not expenses of the Fund and do not impact the Fund's expense ratio. Subject to the approval of the Board of Trustees, the Adviser may adjust the transaction fees in order to protect the Fund's ongoing shareholders. In addition, from time to time, the Adviser may reimburse APs for all or a portion of Creation Transaction or Redemption Transaction Fees.

*  See "Creations, Redemptions and Transaction Fees" later in this Prospectus.


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Additional Investment Strategies

The Fund will normally invest at least 90% of its total assets in component securities that comprise the Underlying Index and in ADRs based on such component securities. The Fund may invest its remaining assets in money market instruments, including repurchase agreements or other funds which invest exclusively in money market instruments, convertible securities, structured notes (notes on which the amount of principal repayment and interest payments are based on the movement of one or more specified factors, such as the movement of a particular security or securities index), and in swaps, options and futures contracts. Swaps, options and futures contracts (and convertible securities and structured notes) may be used by the Fund in seeking performance that corresponds to the Underlying Index and in managing cash flows. The Fund will not invest in forward currency contracts and money market instruments as part of a temporary defensive strategy to protect against potential securities market declines. The Adviser anticipates that it may take approximately three business days (i.e., each day the NYSE is open) for additions and deletions to the Fund's Underlying Index to be reflected in the portfolio composition of the Fund.

Each of the policies described herein, including the investment objective of the Fund, constitutes a non-fundamental policy that may be changed by the Board of Trustees without shareholder approval. Certain fundamental policies of the Fund are set forth in the Statement of Additional Information under "Investment Restrictions."

Borrowing Money

The Fund may borrow money from a bank up to a limit of 10% of the value of its assets, but only for temporary or emergency purposes.

Securities Lending

The Fund may lend its portfolio securities. In connection with such loans, the Fund will receive liquid collateral equal to at least 102% of the value of the portfolio securities being lent. This collateral is marked to market on a daily basis.

Additional Risks

Trading Issues

Trading in Shares on the NYSE Arca may be halted due to market conditions or for reasons that, in the view of the NYSE Arca, make trading in Shares inadvisable. In addition, trading in Shares on the NYSE Arca is subject to trading halts caused by extraordinary market volatility pursuant to the NYSE


16



Arca "circuit breaker" rules. There can be no assurance that the requirements of the NYSE Arca necessary to maintain the listing of the Fund will continue to be met or will remain unchanged. Foreign exchanges may be open on days when Shares are not priced, and therefore, the value of the securities in the Fund's portfolio may change on days when shareholders will not be able to purchase or sell Shares.

Fluctuation of Net Asset Value

The NAV of the Fund's Shares will generally fluctuate with changes in the market value of the Fund's holdings. The market prices of the Shares will generally fluctuate in accordance with changes in NAV as well as the relative supply of and demand for the Shares on the NYSE Arca. The Adviser cannot predict whether the Shares will trade below, at or above their NAV. Price differences may be due, in large part, to the fact that supply and demand forces at work in the secondary trading market for the Shares will be closely related to, but not identical to, the same forces influencing the prices of the securities of the Fund's Underlying Index trading individually or in the aggregate at any point in time. However, given that the Shares can be purchased and redeemed in Creation Units (unlike shares of closed-end funds, which frequently trade at appreciable discounts from, and sometimes at premiums to, their NAV), the Adviser believes that large discounts or premiums to the NAV of the Shares should not be sustained.

Securities Lending

Although the Fund will receive collateral in connection with all loans of its securities holdings, the Fund would be exposed to a risk of loss should a borrower default on its obligation to return the borrowed securities (e.g., the loaned securities may have appreciated beyond the value of the collateral held by the Fund). In addition, the Fund will bear the risk of loss of any cash collateral that it invests.

Swaps Agreements Risk

The Fund may invest in swap agreements, including credit default swap agreements. Swap agreements are contracts between parties in which one party agrees to make periodic payments to the other party (the "Counterparty") based on the change in market value or level of a specified rate, index or asset. In return, the Counterparty agrees to make periodic payments to the first party based on the return of a different specified rate, index or asset. Swap agreements will usually be done on a net basis, the Fund receiving or paying only the net


17



amount of the two payments. The net amount of the excess, if any, of the Fund's obligations over its entitlements with respect to each swap is accrued on a daily basis and an amount of cash or highly liquid securities having a segregated aggregate value at least equal to the accrued excess is earmarked or maintained in an account at the Trust's custodian bank. The risk of loss with respect to swaps generally is limited to the net amount of payments that the Fund is contractually obligated to make. Swap agreements are also subject to the risk that the swap counterparty will default on its obligations. If such a default were to occur, the Fund will have contractual remedies pursuant to the agreements related to the transaction. However, such remedies may be subject to bankruptcy and insolvency laws which could affect the Fund's rights as a creditor (e.g., the Fund may not receive the net amount of payments that it contractually is entitled to receive).

The seller of a credit default swap contract is required to pay the par (or other agreed-upon) value of a referenced debt obligation to the purchaser in the event of a default by a third party, such as a U.S. or foreign corporate issuer, on the debt obligation. In return, the purchaser is required to pay the seller a periodic stream of payments over the term of the contract, provided that no event of default has occurred. If no default occurs, the seller would keep the stream of payments and would have no payment obligations. The seller is subject to investment exposure on the notional amount of the swap.

The purchase of a credit default swap incurs the risk that the investment may expire worthless and would generate income only in the event of an actual default by the issuer of the underlying obligation (as opposed to a credit downgrade or other indication of financial instability). It would also involve credit risk that the seller may fail to satisfy its payment obligations to the Fund in the event of a default.

The Fund will earmark or segregate assets in the form of cash and cash equivalents in an amount equal to the aggregate market value of the credit default swaps of which it is the seller, marked-to-market on a daily basis.

Regulatory Risk

The Adviser has qualified as a foreign institutional investor ("FII") with the Securities and Exchange Board of India and the Subsidiary has been registered as a sub-account with the Securities and Exchange Board of India in order to obtain certain benefits relating to the Fund's ability to make and dispose of investments. There can be no assurances that the Indian regulatory authorities will continue


18



to grant such qualifications, and the loss of such qualification could adversely impact the ability of the Fund to make investments in India.

The Subsidiary's investments will be made in accordance with investment restrictions prescribed under the FII regulation. If policy announcements or regulations in India are made subsequent to this offering, which require retrospective changes in the structure or operations of the Fund, these may adversely impact the performance of the Fund.

Portfolio Holdings

A description of the Trust's policies and procedures with respect to the disclosure of the Fund's portfolio holdings is available in the Fund's Statement of Additional Information.

Management of the Fund

PowerShares Capital Management LLC is a registered investment adviser with its offices at 301 West Roosevelt Road, Wheaton, Illinois 60187. PowerShares Capital Management LLC serves as the investment adviser to the PowerShares India Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II and the PowerShares Exchange-Traded Fund Trust, a family of exchange-traded funds, with combined assets under management of more than $12.57 billion as of January 31, 2008. PowerShares India Exchange-Traded Fund Trust is currently comprised of the PowerShares India Portfolio.

On September 18, 2006, Invesco Ltd. acquired PowerShares Capital Management LLC. Invesco Ltd. is an independent global investment manager. By delivering the combined power of its distinctive worldwide investment management capabilities, including AIM, Atlantic Trust, Invesco, Perpetual, PowerShares, Trimark, and WL Ross, Invesco Ltd. provides a comprehensive array of enduring investment solutions for retail, institutional and high net worth clients around the world. Operating in 20 countries, the company is listed on the New York Stock Exchange under the symbol "IVZ" and had approximately $475.6 billion in assets under management as of January 31, 2008.

PowerShares Capital Management LLC has overall responsibility as the Fund's investment adviser for the selection and ongoing monitoring of the Fund's investments and overseeing the maintenance of all books and records with respect to the securities transactions of the Fund and the computation of the net asset value and net income of the Fund.


19



The Adviser uses a team of portfolio managers, investment strategists and other investment specialists. This team approach brings together many disciplines and leverages the Adviser's resources.

John W. Southard Jr., CFA, MBA, oversees all research, portfolio management and trading operations of the Fund. In this capacity, Mr. Southard oversees a team of portfolio managers (with Mr. Southard, the "Portfolio Managers") who are responsible for the day-to-day management of the Fund. Peter Hubbard, who reports to Mr. Southard, is the member of the portfolio management team who is currently primarily responsible for the Fund's day-to-day management. Mr. Hubbard receives management assistance from Jason Stoneberg, Rudolf Reitmann and Travis Trampe, who perform various functions related to portfolio management, including investing cash flows, coordinating with other team members to focus on certain asset classes, implementing investment strategy and researching and reviewing investment strategy. Each member of the portfolio management team has appropriate limitations on his authority for risk management and compliance purposes.

Portfolio Managers

John Southard is a Managing Director at the Adviser and has been with the Adviser since its inception in August 2002. Mr. Southard has managed the Fund since inception. Prior to his current position, he was a Senior Equity Analyst at Charles Schwab & Company from May 2001 to August 2002. Prior to this, Mr. Southard was a Vice President, Portfolio Manager and Equity Analyst at First Trust Portfolios LP (formerly, Nike Securities LP) from October 1992 to May 2001.

Peter Hubbard is a Vice President of Portfolio Management of the Adviser and has been one of the Portfolio Managers primarily responsible for the day-to-day management of the Fund since inception. Mr. Hubbard was a Research Analyst for the Adviser from May 2005 to June 2007. Prior to joining the Adviser, Mr. Hubbard was a Research Analyst and Trader for Ritchie Capital from September 2003 to May 2005.

Jason Stoneberg is a Portfolio Manager of the Adviser and has been one of the Portfolio Managers primarily responsible for the day-to-day management of the Fund since inception. Mr. Stoneberg was a Research Analyst for the Adviser from January 2006 to June 2007.

Rudolf Reitmann is the Vice President of Operations Management of the Adviser and has been one of the Portfolio Managers primarily responsible for


20



the day-to-day management of the Fund since inception. Mr. Reitmann has been the Vice President of Operations Management of the Adviser since October 2006. Prior to joining the Adviser, Mr. Reitmann worked as Assistant Vice President of ETF Services for The Bank of New York Mellon from July 1996 to September 2006.

Travis Trampe is a Portfolio Manager of the Adviser and has been one of the Portfolio Managers primarily responsible for the day-to-day management of the Fund since inception. Mr. Trampe has been an employee of the Adviser since April 2006. Prior to joining the Adviser, Mr. Trampe was an Analyst for Principal Global Investors from December 1994 to September 2006 and Research Analyst for Quantitative Services Group LLC from October 2006 to May 2007.

The Fund's Statement of Additional Information provides additional information about the Portfolio Managers' compensation structure, other accounts managed by the Portfolio Managers and the Portfolio Managers' ownership of securities in the Trust.

Out of the unitary management fee, the Adviser pays substantially all expenses of the Fund and the Subsidiary, including the cost of transfer agency, custody, fund administration, legal, audit and other services, except for the fee payments under the Investment Advisory Agreement, distribution fees, if any, brokerage expenses, taxes, interest and extraordinary expenses and the Subsidiary will pay for its brokerage expenses, taxes, interest and charges and extraordinary expenses.

The Adviser's unitary management fee is designed to pay the Fund's expenses and to compensate the Adviser for providing services for the Fund.

A discussion regarding the Board of Trustees' basis for approving the Investment Advisory Agreement will be available in the Semi-Annual Report to shareholders for the period ending April 30, 2008.

How to Buy and Sell Shares

The Shares will be issued or redeemed by the Fund at NAV per Share only in Creation Units. See "Creations, Redemptions and Transaction Fees."

Most investors will buy and sell Shares of the Fund in secondary market transactions through brokers. Shares of the Fund will be listed for trading on the secondary market on the NYSE Arca. Shares can be bought and sold throughout the trading day like other publicly traded shares. There is no minimum


21



investment. Although Shares are generally purchased and sold in "round lots" of 100 Shares, brokerage firms typically permit investors to purchase or sell Shares in smaller "oddlots" at no per-share price differential. When buying or selling Shares through a broker, you will incur customary brokerage commissions and charges, and you may pay some or all of the spread between the bid and the offered price in the secondary market on each leg of a round trip (purchase and sale) transaction. The Fund has applied to list its Shares on the NYSE Arca under the symbol "PIN".

Share prices are reported in dollars and cents per Share.

Investors may acquire Shares directly from the Fund, and shareholders may tender their Shares for redemption directly to the Fund, only in Creation Units of 100,000, as discussed in the "Creations, Redemptions and Transaction Fees" section below.

Book Entry

Shares are held in book-entry form, which means that no stock certificates are issued. The Depository Trust Company ("DTC") or its nominee is the record owner of all outstanding Shares of the Funds and is recognized as the owner of all Shares for all purposes.

Investors owning Shares are beneficial owners as shown on the records of DTC or its participants. DTC serves as the securities depository for all Shares. Participants in DTC include securities brokers and dealers, banks, trust companies, clearing corporations and other institutions that directly or indirectly maintain a custodial relationship with DTC. As a beneficial owner of Shares, you are not entitled to receive physical delivery of stock certificates or to have Shares registered in your name, and you are not considered a registered owner of Shares. Therefore, to exercise any right as an owner of Shares, you must rely upon the procedures of DTC and its participants. These procedures are the same as those that apply to any other stocks that you hold in book entry or "street name" form.

Fund Share Trading Prices

The trading prices of Shares of the Fund on the NYSE Arca may differ from the Fund's daily NAV and can be affected by market forces of supply and demand, economic conditions and other factors.

The NYSE Arca or other market information provider intends to disseminate the approximate value of Shares of the Fund every fifteen seconds and such


22



information will be publicly available via Bloomberg, L.P. The approximate value of the Shares disseminated will reflect changes in the exchange rate between U.S. dollars and Indian Rupees. This approximate value should not be viewed as a "real-time" update of the NAV per Share of the Fund because the approximate value may not be calculated in the same manner as the NAV, which is computed once a day, generally at the end of the business day. The Fund is not involved in, or responsible for, the calculation or dissemination of the approximate value and the Fund does not make any warranty as to its accuracy.

Frequent Purchases and Redemptions of Fund Shares

The Board of Trustees has evaluated the risks of market timing activities by the Trust's shareholders. The Board noted that the Fund's Shares can only be purchased and redeemed directly from the Fund in Creation Units by Authorized Participants and that the vast majority of trading in the Fund's Shares occurs on the secondary market. Because the secondary market trades do not involve the Fund directly, it is unlikely that secondary market trading would cause many of the harmful effects of market timing, including dilution, disruption of portfolio management, increases in the Fund's trading costs and the realization of capital gains. With regard to the purchase or redemption of the Fund's Creation Units in exchange for cash, the Board noted that it was possible that such trades could result in dilution to the Fund and increased transaction costs, which could negatively impact the Fund's ability to achieve its investment objective. However, the Board noted that direct trading by Authorized Participants is critical to ensuring that the Fund's Shares trade at or close to NAV. The Fund also employs fair valuation pricing to minimize potential dilution from market timing. In addition, the Fund imposes significant fixed and variable transaction fees on purchases and redemptions of Creation Units to cover the custodial and other costs incurred by the Fund in effecting trades. Finally, the Adviser will monitor trades by Authorized Participants for patterns of or abusive trading and the Fund reserves the right to not accept orders from Author Participants that the Adviser has determined may be disruptive to the management of or otherwise not in the Fund's best interests.

Creations, Redemptions and Transaction Fees

Creation Units

Investors such as market makers, large investors and institutions who wish to deal in Creation Units directly with the Fund must have entered into an authorized


23



participant agreement with the principal underwriter and the transfer agent, or purchase through a dealer that has entered into such an agreement. Set forth below is a brief description of the procedures applicable to the purchase and redemption of Creation Units. For more detailed information, see "Creation and Redemption of Creation Unit Aggregations" in the Statement of Additional Information.

Purchase

Creation Units of the Fund generally will be sold for cash only, calculated based on the net asset value per share multiplied by the number of Shares representing a Creation Unit ("Deposit Cash"), plus a partially fixed and partially variable transaction fee as discussed below. The Fund also reserves the right to permit or require Creation Units to be issued in-kind. If in-kind creations are permitted or required, an investor must deposit a designated portfolio of equity securities constituting a substantial replication, or a representation, of the securities included in the Fund's Underlying Index ("Deposit Securities") and generally make a small cash payment referred to as the "Cash Component." The Cash Component represents the difference between the NAV of a Creation Unit as the market value of the Deposit Securities. The list of the names and the numbers of shares of the Deposit Securities is made available by the Fund's custodian through the facilities of the National Securities Clearing Corporation ("NSCC") immediately prior to the opening of business each day of the NYSE Arca. The Cash Component represents the difference between the NAV of a Creation Unit and the market value of the Deposit Securities. When accepting purchases of Creation Units for cash, the Fund may incur additional costs associated with the acquisition of portfolio securities that would otherwise be provided by an in-kind purchaser.

Orders must be placed in proper form by or through either (i) a "Participating Party," i.e., a broker-dealer or other participant in the Clearing Process of the Continuous Net Settlement System of the NSCC (the "Clearing Process") or (ii) a participant of DTC ("DTC Participant") that has entered into an agreement with the Distributor and the transfer agent, with respect to purchases and redemptions of Creation Units. All orders must be placed for one or more whole Creation Units of Shares of the Fund and must be received by the Distributor in proper form no later than the close of regular trading on NYSE (ordinarily 4:00 p.m. New York time) ("Closing Time") in order to receive that day's closing NAV per Share. In the case of custom orders, as further described in the Statement of Additional Information, the order must be received by the Distributor no later than 3:00 p.m. New York time. A custom order may be placed by an Authorized Participant in the event that the Trust permits or


24



requires in-kind creations and the Trust permits or requires the substitution of an amount of cash to be added to the Cash Component to replace any Deposit Security which may not be available in sufficient quantity for delivery or which may not be eligible for trading by such Authorized Participant or the investor for which it is acting or any other relevant reason. See "Creation and Redemption of Creation Unit Aggregations" in the Statement of Additional Information..

A fixed Creation Transaction Fee of $2,500 (regardless of the number of Creation Units involved) and a variable fee equal to 0.325% of the value of each Creation Unit is applicable to each transaction. Subject to the approval of the Board of Trustees, the Adviser may adjust the transaction fees in order to protect the Fund's ongoing shareholders.

The price for each Creation Unit will equal the daily NAV per Share times the number of Shares in a Creation Unit plus the fees described above and, if applicable, any transfer taxes.

If in-kind creations are permitted or required, Shares of the Fund may be issued in advance of receipt of all Deposit Securities subject to various conditions, including a requirement to maintain on deposit with the Fund cash at least equal to 115% of the market value of the missing Deposit Securities. See "Creation and Redemption of Creation Unit Aggregations" in the Statement of Additional Information.

Legal Restrictions on Transactions in Certain Securities

In the event that the in-kind creations are permitted or required, an investor subject to a legal restriction with respect to a particular security required to be deposited in connection with the purchase of a Creation Unit may, at the Fund's discretion, be permitted to deposit an equivalent amount of cash in substitution for any security which would otherwise be included in the Deposit Securities applicable to the purchase of a Creation Unit. For more details, see "Creation and Redemption of Creation Unit Aggregations" in the Statement of Additional Information.

Redemption

Creation Units of the Fund generally will be redeemed for cash only, calculated based on the Deposit Cash, less a partially fixed and partially variable transaction fee as discussed below. If in-kind redemptions are permitted or required, the Fund's custodian will make available immediately prior to the opening of business each day on the NYSE Arca, through the facilities of the NSCC, the list of the names and the numbers of shares of the Fund's portfolio securities that will be applicable that day to redemption requests in proper form ("Fund Securities"). If


25



in-kind redemptions are permitted or required, the Fund Securities received on redemption may not be identical to Deposit Securities which are applicable to purchases of Creation Units and the redemption proceeds will consist of the Fund Securities, plus cash in an amount equal to the difference between the NAV of the Shares being redeemed, as next determined after receipt by the transfer agent of a redemption request in proper form, and the value of the Fund Securities (the "Cash Redemption Amount"), less the applicable redemption fee and, if applicable, any transfer taxes. Should the Fund Securities have a value greater than the NAV of Shares being redeemed, a compensating cash payment to the Trust equal to the differential, plus the applicable redemption fee and, if applicable, any transfer taxes will be required to be arranged for by or on behalf of the redeeming shareholder. For more details, see "Creation and Redemption of Creation Unit Aggregations" in the Statement of Additional Information.

An order to redeem Creation Units of the Fund may only be effected by or through an Authorized Participant. An order to redeem must be placed for one or more whole Creation Units and must be received by the Distributor in proper form no later than the close of regular trading on the NYSE Arca (ordinarily 4:00 p.m. New York time) in order to receive that day's closing NAV per Share. If the Trust permits or requires in-kind redemptions, in the case of custom orders, as further described in the Statement of Additional Information, the order must be received by the transfer agent no later than 3:00 p.m. New York time.

A fixed Redemption Transaction Fee of $2,500 (regardless of the number of Creation Units involved) and a variable fee equal to 0.325% of the value of each Creation Unit is applicable to each redemption transaction. Subject to the approval of the Board of Trustees, the Adviser may adjust the transaction fees in order to protect the Fund's ongoing shareholders.

Dividends, Distributions and Taxes

Ordinarily, dividends from net investment income, if any, are declared and paid quarterly. The Fund distributes its net realized capital gains, if any, to shareholders annually.

Distributions in cash may be reinvested automatically in additional whole Shares only if the broker through whom you purchased Shares makes such option available.

Taxes

As with any investment, you should consider how your investment in Shares will be taxed. The tax information in this Prospectus is provided as general


26



information. You should consult your own tax professional about the tax consequences of an investment in Shares.

Unless your investment in Shares is made through a tax-exempt entity or tax-deferred retirement account, such as an IRA plan, you need to be aware of the possible tax consequences when:

•  Your Fund makes distributions,

•  You sell your Shares listed on the NYSE Arca, and

•  You purchase or redeem Creation Units.

Taxes on Distributions

Ordinarily, dividends from net investment income, if any, are declared and paid quarterly. The Fund may also pay a special distribution at the end of the calendar year to comply with federal tax requirements. In general, your distributions are subject to federal income tax when they are paid, whether you take them in cash or reinvest them in the Fund. Dividends paid out of the Fund's income and net short-term gains, if any, are taxable as ordinary income. Distributions of net long-term capital gains, if any, in excess of net short-term capital losses are taxable as long-term capital gains, regardless of how long you have held the Shares.

Long-term capital gains of non-corporate taxpayers are generally taxed at a maximum rate of 15% for taxable years beginning before January 1, 2011. In addition, for these taxable years, some ordinary dividends declared and paid by the Fund to non-corporate shareholders may qualify for taxation at the lower reduced tax rates applicable to long-term capital gains, provided that holding period and other requirements are met by the Fund and the shareholder. Without future congressional action, the maximum rate of long-term capital gains will return to 20% in 2011, and all dividends will be taxed at ordinary income rates.

Distributions in excess of the Fund's current and accumulated earnings and profits are treated as a tax-free return of capital to the extent of your basis in the Shares, and as capital gain thereafter. A distribution will reduce the Fund's NAV per Share and may be taxable to you as ordinary income or capital gain even though, from an investment standpoint, the distribution may constitute a return of capital.

By law, the Fund must withhold a percentage of your distributions and proceeds if you have not provided a taxpayer identification number or social security number.


27



Taxes on Exchange-Listed Share Sales

Currently, any capital gain or loss realized upon a sale of Shares is generally treated as long-term capital gain or loss if the Shares have been held for more than one year and as short-term capital gain or loss if the Shares have been held for one year or less. The ability to deduct capital losses may be limited.

Taxes on Purchase and Redemption of Creation Units

An AP who exchanges equity securities for Creation Units generally will recognize a gain or a loss. The gain or loss will be equal to the difference between the market value of the Creation Units at the time and the exchanger's aggregate basis. A person who exchanges Creation Units for equity securities will generally recognize a gain or loss equal to the difference between the exchanger's basis in the Creation Units and the amount of cash received. The Internal Revenue Service, however, may assert that a loss realized upon an exchange of securities for Creation Units cannot be deducted currently under the rules governing "wash sales," or on the basis that there has been no significant change in economic position. Persons exchanging securities should consult their own tax advisor with respect to whether wash sale rules apply and when a loss might be deductible.

Under current federal tax laws, any capital gain or loss realized upon redemption of Creation Units is generally treated as long-term capital gain or loss if the Shares have been held for more than one year and as a short-term capital gain or loss if the Shares have been held for one year or less.

If you purchase or redeem Creation Units, you will be sent a confirmation statement showing how many Shares you purchased or sold and at what price.

Foreign Income Taxes

The Fund intends to elect to pass its credits for foreign income taxes through to its shareholders for a taxable year if more than 50% of its assets at the close of the year, by value, consists of stock and securities of foreign corporations. If the Fund makes this election, each shareholder will be treated as having paid a proportionate share of the Fund's foreign income taxes, but the shareholder must include an equal amount in gross income. See the Statement of Additional Information section "Taxes."

The foregoing discussion summarizes some of the possible consequences under current federal tax law of an investment in the Fund. It is not a substitute for personal tax advice. You may also be subject to state and local tax on Fund distributions and sales of Fund Shares. Consult your personal tax advisor about the potential tax consequences of an investment in Fund Shares under all


28



applicable tax laws. For more information, please see the Statement of Additional Information section "Taxes."

Mauritius Tax Status

The Fund conducts its investment activities in India through the Subsidiary, a wholly-owned subsidiary which is a tax resident of Mauritius and as such expects to obtain benefits under the tax treaty between Mauritius and India, which is referred to as the "tax treaty" or "treaty". In the light of Circular 789 of April 13, 2000 issued by the Central Board of Direct Taxes in India, the Subsidiary will be eligible for the benefits under the treaty if it holds a valid tax residence certificate issued by the Mauritius income tax authorities. The validity of the circular was subsequently upheld by the Supreme Court of India in a judgment delivered on October 7, 2003. The Subsidiary has been issued a Category 1 Global Business License by the Financial Services Commission of Mauritius. It has applied for a tax residence certificate from the Mauritius Revenue Authority for the purpose of the Mauritius-India Double Taxation Avoidance Agreement and expects to obtain this certificate shortly following the effective date of this prospectus.

The Subsidiary is subject to tax in Mauritius at the rate of 15% on its net income. However, the Subsidiary will be entitled to a tax credit for foreign tax on its income which is not derived from Mauritius against the Mauritian tax computed by reference to that same income. If no written evidence is presented to the Mauritius Revenue Authority showing the amount of foreign tax charged on income derived by the Fund outside of Mauritius, the amount of the foreign tax will be conclusively presumed to be equal to eighty percent (80%) of the Mauritian tax chargeable with respect to that income, which could reduce the rate of tax effectively to three percent (3%). Further, the Subsidiary is not subject to capital gains tax in Mauritius nor is it liable to income tax on any gains from sale of units or securities. Any dividends and redemption proceeds paid by the Subsidiary to the Fund are exempt from Mauritius tax.

Provided that the Subsidiary does not have a permanent establishment in India, the tax treatment in India of income derived by the Subsidiary is as follows:

(i)  capital gains are not subject to tax in India by virtue of certain provisions of the treaty;

(ii)  dividends from Indian companies are paid to the Subsidiary free of Indian tax;

(iii)  any interest income earned on Indian securities is subject to withholding tax in India at the rate that may vary from 10% to 42.23%, depending on the nature of the underlying debt security.


29



The Fund continues to (i) comply with the requirements of the tax treaty, (ii) operate through a wholly-owned subsidiary that continues to be a tax resident of Mauritius and (iii) maintain that its wholly-owned subsidiary's central management and control resides in Mauritius, and therefore the Fund's management believes that the Fund will be able to obtain the benefits of the tax treaty. However, there can be no assurance that the Subsidiary will be granted a certificate of tax residency in the future.

While the validity of the treaty and its applicability to entities such as the Fund was upheld by the Supreme Court of India, no assurance can be given that the terms of the treaty will not be subject to re-intepretation and re-negotiation in the future. Any change in the treaty's application could have a material adverse affect on the returns of the Fund. Further, it is possible that the Indian tax authorities may seek to take the position that the Subsidiary is not entitled to the benefits of the treaty.

It is currently not clear whether income from entities such as the Subsidiary will be classified as "capital gains" income or as "business income" under Indian law. However, this distinction should not affect the ultimate tax consequences to the Subsidiary or the Fund. Under the treaty, capital gains from investment in Indian securities, global depositary receipts or ADRs issued with respect to Indian companies are exempt from tax, provided that the Subsidiary does not have a permanent establishment in India. Similarly, "business income" is not chargeable to tax in India under the treaty so long as the Subsidiary does not have a permanent establishment in India. The Subsidiary expects that it will be deemed a tax resident of Mauritius and does not expect to be deemed to have a permanent establishment in India because it will not maintain an office or place of management in India and the Adviser will make investment decisions regarding securities orders outside of India. If the Subsidiary were deemed to have such a permanent establishment, income attributable to that permanent establishment could be taxable in India at a rate of up to 42.23%.

Regardless of the application of the treaty, all transactions entered on a recognized stock exchange in India are subject to the Securities Transaction Tax ("STT"), which is levied on the value of a transaction at rates not exceeding 0.125%. The STT can be set off against business income tax calculated under the Indian Income Tax Act, provided that the gains on the transactions subject to the STT are taxed as business income and not as capital gains. It is currently not entirely clear whether the Indian Minimum Alternate Tax ("MAT") applies to the Subsidiary as a beneficiary of the treaty. Although the treaty should override the provisions of the Indian Income Tax Act and thus the application of the


30



MAT, this is not certain. If the MAT does apply, and the Indian income tax payable by the Subsidiary is less than 10% of its book profits, then the Subsidiary would be deemed to owe taxes of 11.33% of book profits. Such a fee would not be included in the fee charged by the Adviser.

Please note that the above description is based on current provisions of Mauritius and Indian law, and any change or modification made by subsequent legislation, regulation, or administrative or judicial decision could increase the Indian tax liability of the Subsidiary and thus reduce the return to Fund shareholders.

Distributor

A I M Distributors, Inc. (the "Distributor") serves as the distributor of Creation Units for the Fund on an agency basis. The Distributor does not maintain a secondary market in Shares.

Net Asset Value

Brown Brothers Harriman & Co. ("BBH") calculates the Fund's NAV at the close of regular trading (normally 4:00 p.m. New York time) every day the NYSE Arca is open. NAV is calculated by deducting all of the Fund's liabilities from the total value of its assets and dividing the result by the number of Shares outstanding, rounding to the nearest cent. All valuations are subject to review by the Trust's Board of Trustees or its delegate.

In determining NAV, expenses are accrued and applied daily and securities and other assets for which market quotations are available are valued at market value. Stocks and other equity securities are valued at the last sales price that day based on the official closing price of the exchange where the security is primarily traded. The NAV for the Fund will be calculated and disseminated daily.

The value of the Fund's portfolio securities is based on the securities' closing price on local markets when available. Securities included in the Underlying Index trade on the Bombay Stock Exchange or the National Stock Exchange. Due to the time difference between the U.S. and India, securities on these exchanges will not trade at times when Shares of the Fund will trade. If a security's closing price on local markets is not readily available or does not otherwise accurately reflect the fair value of the security, the security will be valued by another method that the Adviser believes will better reflect fair value in accordance with the Trust's valuation policies and procedures approved by the


31



Board of Trustees. The Fund may use fair value pricing in a variety of circumstances, including but not limited to, situations when the value of a security in the Fund's portfolio has been materially affected by events occurring after the close of the market on which the security is principally traded (such as a corporate action or other news that may materially affect the price of a security) or trading in a security has been suspended or halted. In addition, the Fund currently expects that it will fair value foreign equity securities held by the Fund each day the Fund calculates its NAV. Accordingly, the Fund's NAV is expected to reflect certain portfolio securities' fair values rather than their market prices. Fair value pricing involves subjective judgments and it is possible that a fair value determination for a security is materially different than the value that could be realized upon the sale of the security. In addition, fair value pricing could result in a difference between the prices used to calculate the Fund's NAV and the prices used by the Fund's Underlying Index. This may adversely affect the Fund's ability to track its Underlying Index. With respect to the securities in the Underlying Index, the value of the Fund's portfolio securities will change at times when you will not be able to purchase or sell your Shares.

The NYSE Arca will disseminate every 15 seconds throughout the trading day through the facilities of the Consolidated Tape Association the approximate value of Shares of the Fund, an amount representing on a per share basis the sum of the current value of the Deposit Cash or Deposit Securities, as applicable, based on their then current market price and the estimated Cash Component, if any. As the Indian markets close, the market value of the Deposit Cash or Deposit Securities, as applicable, will continue to be updated for foreign exchange rates for the remainder of the U.S. trading day at the prescribed 15 second interval. This approximate value should not be viewed as a "real-time" update of the NAV per Share of the Fund because the approximate value may not be calculated in the same manner as the NAV, which is computed once a day, generally at the end of the business day. The Fund is not involved in, or responsible for, the calculation or dissemination of the approximate value and the Fund does not make any warranty as to its accuracy. The value of the Underlying Index will not be calculated and disseminated intra day. The value and return of the Underlying Index is calculated once each trading day by the Index Provider based on prices received from the Indian markets.

Because securities included in the Underlying Index are not traded while the Fund's NAV is calculated, changes in the value of the Fund's investments in Indian securities that are calculated and disseminated throughout the trading day will reflect changes in exchange rates between the Indian Rupee and the U.S. dollar and will not reflect changes in the market prices of such securities.


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Fund Service Providers

Brown Brothers Harriman & Co., 40 Water Street, Boston, Massachusetts 02109-3661, is the administrator, custodian and fund accounting and transfer agent for the Fund. International Financial Services Limited serves as the Subsidiary's Mauritius administrator. Clifford Chance US LLP, 31 West 52nd Street, New York, NY 10019, serves as legal counsel to the Fund.

PricewaterhouseCoopers LLP, 300 Madison Avenue, New York, New York 10017, serves as the Fund's independent registered public accounting firm. The independent registered public accounting firm is responsible for auditing the annual financial statements of the Fund.

Index Provider

Indus is the Index Provider for the Fund. Indus is not affiliated with the Trust, the Adviser or the Distributor. The Adviser has entered into a license agreement with Indus to use the Underlying Index. The Fund is entitled to use the Underlying Index pursuant to a sub-licensing agreement with the Adviser.

Disclaimers

Indus' only relationship to the Adviser, the Fund or the Distributor is Indus' licensing to the Adviser of certain Indus trademarks, the Underlying Index and trade names, which are composed by Indus without regard to the Adviser, the Fund, the Distributor or any investor; and Indus makes no warranty or representation regarding the advisability of purchasing, holding or trading this product.

The Index Provider does not guarantee the accuracy and/or the completeness of the Underlying Index or any data included therein, and the Adviser shall have no liability for any errors, omissions, or interruptions therein. The Index Provider makes no warranty, express or implied, as to results to be obtained by the Fund, owners of the Shares of the Fund or any other person or entity from the use of the Underlying Index or any data included therein. The Index Provider makes no express or implied warranties, and expressly disclaims all warranties of merchantability, title or fitness for a particular purpose or use with respect to the Underlying Index or any data included therein. Without limiting any of the foregoing, in no event shall the Index Provider have any liability for any special, exemplary, punitive, direct, indirect or consequential damages (including lost profits), however caused and on any theory of liability, whether in contract,


33



strict liability or tort (including negligence or otherwise), resulting from the use of the Underlying Index or any data included therein, even if notified of the possibility of such damages.

The Adviser does not guarantee the accuracy and/or the completeness of the Underlying Index or any data included therein, and the Adviser shall have no liability for any errors, omissions, or interruptions therein. The Adviser makes no warranty, express or implied, as to results to be obtained by the Fund, owners of the Shares of the Fund or any other person or entity from the use of the Underlying Index or any data included therein. The Adviser makes no express or implied warranties, and expressly disclaims all warranties of merchantability, title or fitness for a particular purpose or use with respect to the Underlying Index or any data included therein. Without limiting any of the foregoing, in no event shall the Adviser have any liability for any special, exemplary, punitive, direct, indirect or consequential damages (including lost profits), however caused and on any theory of liability, whether in contract, strict liability or tort (including negligence or otherwise), resulting from the use of the Underlying Index or any data included therein, even if notified of the possibility of such damages.

Other Information

Section 12(d)(1) of the 1940 Act restricts investments by investment companies in the securities of other investment companies, including Shares of the Fund. Registered investment companies are permitted to invest in the Fund beyond the limits set forth in Section 12(d)(1) subject to certain terms and conditions set forth in an SEC exemptive order issued to the Trust, including that such investment companies enter into an agreement with the Trust.

Continuous Offering

The method by which Creation Unit Aggregations of Fund Shares are created and traded may raise certain issues under applicable securities laws. Because new Creation Unit Aggregations of Shares are issued and sold by the Fund on an ongoing basis, a "distribution," as such term is used in the Securities Act of 1933, as amended (the "Securities Act"), may occur at any point. Broker-dealers and other persons are cautioned that some activities on their part may, depending on the circumstances, result in their being deemed participants in a distribution in a manner which could render them statutory underwriters and subject them to the prospectus delivery requirement and liability provisions of the Securities Act.


34



For example, a broker-dealer firm or its client may be deemed a statutory underwriter if it takes Creation Unit Aggregations after placing an order with the Distributor, breaks them down into constituent Shares and sells such Shares directly to customers, or if it chooses to couple the creation of a supply of new Shares with an active selling effort involving solicitation of secondary market demand for Shares. A determination of whether one is an underwriter for purposes of the Securities Act must take into account all the facts and circumstances pertaining to the activities of the broker-dealer or its client in the particular case, and the examples mentioned above should not be considered a complete description of all the activities that could lead to a characterization as an underwriter.

Broker-dealer firms should also note that dealers who are not "underwriters" but are effecting transactions in Shares, whether or not participating in the distribution of Shares, are generally required to deliver a prospectus. This is because the prospectus delivery exemption in Section 4(3) of the Securities Act is not available in respect of such transactions as a result of Section 24(d) of the 1940 Act. As a result, broker-dealer firms should note that dealers who are not underwriters but are participating in a distribution (as contrasted with ordinary secondary market transactions) and thus dealing with the Shares that are part of an overallotment within the meaning of Section 4(3)(a) of the Securities Act would be unable to take advantage of the prospectus delivery exemption provided by Section 4(3) of the Securities Act. The Trust, however, has received from the SEC an exemption from the prospectus delivery obligation in ordinary secondary market transactions under certain circumstances, on the condition that purchasers are provided with a product description of the Shares. Firms that incur a prospectus delivery obligation with respect to Shares are reminded that, under the Securities Act Rule 153, a prospectus delivery obligation under Section 5(b)(2) of the Securities Act owed to an exchange member in connection with a sale on the NYSE Arca is satisfied by the fact that the prospectus is available at the NYSE Arca upon request. The prospectus delivery mechanism provided in Rule 153 is only available with respect to transactions on an exchange.


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For More Information

For more detailed information on the Trust, the Fund and the Shares, you may request a copy of the Fund's Statement of Additional Information ("SAI"). The SAI provides detailed information about the Fund, and is incorporated by reference into this Prospectus. This means that the SAI, for legal purposes, is a part of this Prospectus. If you have questions about the Fund or Shares or you wish to obtain the SAI free of charge, please:

Call:  A I M Distributors, Inc. at 1-800-337-4246
Monday through Friday
8:00 a.m. to 5:00 p.m. Central Time

Write:  PowerShares India Exchange-Traded Fund Trust
c/o A I M Distributors, Inc.
11 Greenway Plaza
Suite 100
Houston, Texas 77046-1173

  Visit: www.powershares.com

Information about the Fund (including the SAI) can be reviewed and copied at the SEC's Public Reference Room in Washington, D.C., and information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-202-942-8090. Reports and other information about the Fund will be available on the EDGAR Database on the SEC's Internet site at www.sec.gov, and copies of this information may be obtained, after paying a duplicating fee, by electronic request at the following e-mail address:

publicinfo@sec.gov

or by writing the SEC's Public Reference Section, Washington, D.C. 20549-0102.

No person is authorized to give any information or to make any representations about the Fund and its Shares not contained in this Prospectus and you should not rely on any other information. Read and keep the Prospectus for future reference.

DEALERS EFFECTING TRANSACTIONS IN THE FUND'S SHARES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, ARE GENERALLY REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO ANY OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS.

The Trust's registration number under the 1940 Act is 811-22147.


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PowerShares India Exchange-Traded Fund Trust
301 West Roosevelt Road
Wheaton, IL 60187

800.983.0903

www.powershares.com

P-PIN-PRO-1




The information in this Statement of Additional Information is not complete and may be changed. The Trust may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This Statement of Additional Information is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

Subject to Completion

Preliminary Statement of Additional Information dated February 22, 2008

Investment Company Act File No. 811-21977

PowerShares India Exchange-Traded Fund Trust

STATEMENT OF ADDITIONAL INFORMATION

Dated                     , 2008

This Statement of Additional Information is not a prospectus. It should be read in conjunction with the Prospectus dated     , 2008 for PowerShares India Portfolio, the sole series of the PowerShares India Exchange-Traded Fund Trust (the "Trust"), as it may be revised from time to time. Capitalized terms used herein that are not defined have the same meaning as in the Prospectus, unless otherwise noted. A copy of the Prospectus may be obtained without charge by writing to the Trust's Distributor, A I M Distributors, Inc., 11 Greenway Plaza, Suite 100, Houston, Texas 77046-1173, or by calling toll free (800) 337-4246.

TABLE OF CONTENTS

    Page  
General Description of the Trust and the Fund     1    
Exchange Listing and Trading     1    
Investment Restrictions and Policies     2    
Investment Restrictions     2    
Investment Policies and Risks     3    
General Considerations and Risks     7    
Management     9    
Brokerage Transactions     17    
Additional Information Concerning the Trust     17    
Creation and Redemption of Creation Unit Aggregations     21    
Taxes     26    
Federal Tax Treatment of Futures and Options Contracts     29    
Determination of NAV     29    
Dividends and Distributions     30    
Miscellaneous Information     30    
Financial Statements     31    

 



GENERAL DESCRIPTION OF THE TRUST AND THE FUND

The Trust was organized as a Massachusetts business trust on August 3, 2007 and is authorized to have multiple series or portfolios. The Trust is an open-end management investment company, registered under the Investment Company Act of 1940, as amended (the "1940 Act"). This Statement of Additional Information relates to the PowerShares India Portfolio (the "Fund"). The Fund is "non-diversified" and, as such, the Fund's investments are not required to meet certain diversification requirements under the 1940 Act. The shares of the Fund are referred to herein as "Shares" or "Fund Shares."

The Fund is managed by PowerShares Capital Management LLC (the "Adviser").

The Fund offers and issues Shares at net asset value ("NAV") only in aggregations of a specified number of Shares (each a "Creation Unit" or a "Creation Unit Aggregation"), for cash only, calculated based on the net asset value per share multiplied by the number of Shares representing a Creation Unit ("Deposit Cash"), plus a partially fixed and partially variable transaction fee. The Fund has applied to list its Shares on the New York Stock Exchange Arca, Inc. (the "NYSE Arca" or the "Exchange"). Fund Shares will trade on the Exchange at market prices that may be below, at or above NAV. Shares are redeemable only in Creation Unit Aggregations and, generally, in exchange for portfolio securities and a specified cash payment. Creation Units are aggregations of 100,000 Shares. In the event of the liquidation of the Fund, the Trust may lower the number of Shares in a Creation Unit.

The Fund also reserves the right to permit or require Creation Units to be issued in-kind. If in-kind creations are permitted or required, an investor must deposit a designated portfolio of equity securities constituting a substantial replication, or a representation, of the securities included in the Fund's Underlying Index ("Deposit Securities") and generally make a small cash payment referred to as the "Cash Component." The Cash Component represents the difference between the NAV of a Creation Unit as the market value of the Deposit Securities. The list of the names and the numbers of shares of the Deposit Securities is made available by the Fund's custodian through the facilities of the National Securities Clearing Corporation ("NSCC") immediately prior to the opening of business each day of the NYSE Arca. The Cash Component represents the difference between the NAV of a Creation Unit and the market value of the Deposit Securities. When accepting purchases of Creation Units for cash, the Fund may incur additional costs associated with the acquisition of portfolio securities that would otherwise be provided by an in-kind purchaser.

If the Fund were to permit or require Creation Units to be issued in-kind, Fund Shares may be issued in advance of receipt of Deposit Securities subject to various conditions including a requirement to maintain on deposit with the Trust cash at least equal to 115% of the market value of the missing Deposit Securities. See the "Creation and Redemption of Creation Unit Aggregations" section. In all cases, such fees will be limited in accordance with the requirements of the Securities and Exchange Commission (the "SEC") applicable to management investment companies offering redeemable securities.

Correlation is calculated at the Fund's fiscal year end by comparing the Fund's average monthly total returns, before fees and expenses, to its Underlying Index's average monthly total return over the prior one year period or since inception if the Fund has been in existence for less than one year.

EXCHANGE LISTING AND TRADING

There can be no assurance that the requirements of the Exchange necessary to maintain the listing of Shares of the Fund will continue to be met. The Exchange may, but is not required to, remove the Shares of the Fund from listing if (i) following the initial 12-month period beginning at the commencement of trading of the Fund, there are fewer than 50 beneficial owners of the Shares of the Fund for 30 or more consecutive trading days; (ii) the value of the Underlying Index is no longer calculated or available; or (iii) such other event shall occur or condition exist that, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable. The Exchange will remove the Shares of the Fund from listing and trading upon termination of the Fund.


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As in the case of other stocks traded on the Exchange, brokers' commissions on transactions will be based on negotiated commission rates at customary levels.

The Trust reserves the right to adjust the price levels of the Shares in the future to help maintain convenient trading ranges for investors. Any adjustments would be accomplished through stock splits or reverse stock splits, which would have no effect on the net assets of the Fund. The Fund seeks to achieve its objective by investing substantially all of its assets in a wholly-owned subsidiary in Mauritius (the "Subsidiary"), that has the same investment objective as the Fund. Since the investment characteristics of the Fund will correspond directly to those of the Subsidiary, the following applies to both the Fund and the Subsidiary, as applicable, and except where otherwise indicated, this Statement of Additional Information uses the term "Fund" to mean the Fund and/or the Subsidiary, as applicable.

INVESTMENT RESTRICTIONS AND POLICIES

Investment Objective

The investment objective of the PowerShares India Portfolio is to provide investment results that correspond generally to the price and yield (before the Fund's fees and expenses) of the Indus India Index (the "Underlying Index").

INVESTMENT RESTRICTIONS

The Board of Trustees of the Trust (the "Board" or the "Trustees") and the Board of Directors of the Subsidiary have adopted as fundamental policies the investment restrictions numbered (1) through (7) below. The Fund, as a fundamental policy, may not:

(1)  Invest 25% or more of the value of its total assets in securities of issuers in any one industry or group of industries, except to the extent that the Underlying Index that the Fund replicates, concentrates in an industry or group of industries. This restriction does not apply to obligations issued or guaranteed by the U.S. Government, its agencies or instrumentalities.

(2)  Borrow money, except that the Fund may (i) borrow money from banks for temporary or emergency purposes (but not for leverage or the purchase of investments) up to 10% of its total assets and (ii) make other investments or engage in other transactions permissible under the 1940 Act that may involve a borrowing, provided that the combination of (i) and (ii) shall not exceed 33 1 / 3 % of the value of the Fund's total assets (including the amount borrowed), less the Fund's liabilities (other than borrowings).

(3)  Act as an underwriter of another issuer's securities, except to the extent that the Fund may be deemed to be an underwriter within the meaning of the Securities Act of 1933 (the "Securities Act") in connection with the purchase and sale of portfolio securities.

(4)  Make loans to other persons, except through (i) the purchase of debt securities permissible under the Fund's investment policies, (ii) repurchase agreements or (iii) the lending of portfolio securities, provided that no such loan of portfolio securities may be made by the Fund if, as a result, the aggregate of such loans would exceed 33 1 / 3 % of the value of the Fund's total assets.

(5)  Purchase or sell physical commodities unless acquired as a result of ownership of securities or other instruments (but this shall not prevent the Fund (i) from purchasing or selling options, futures contracts or other derivative instruments, or (ii) from investing in securities or other instruments backed by physical commodities).

(6)  Purchase or sell real estate unless acquired as a result of ownership of securities or other instruments (but this shall not prohibit the Fund from purchasing or selling securities or other instruments backed by real estate or of issuers engaged in real estate activities).

(7)  Issue senior securities, except as permitted under the 1940 Act.


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Except for restriction (2), if a percentage restriction is adhered to at the time of investment, a later increase in percentage resulting from a change in market value of the investment or the total assets, or the sale of a security out of the portfolio, will not constitute a violation of that restriction.

The foregoing fundamental investment policies cannot be changed as to the Fund without approval by holders of a "majority of the Fund's outstanding voting securities." As defined in the 1940 Act, this means the vote of (i) 67% or more of the Fund's shares present at a meeting, if the holders of more than 50% of the Fund's shares are present or represented by proxy, or (ii) more than 50% of the Fund's shares, whichever is less. Similar voting requirements apply with respect to a change in the fundamental investment policies of the Subsidiary. If the Fund, as an investor in the Subsidiary, is requested to vote on a change in the fundamental investment policies of the Subsidiary, the Fund will either call a meeting of its shareholders and will vote its shares in the Subsidiary in accordance with instructions it receives from its shareholders or otherwise vote as required under the 1940 Act.

In addition to the foregoing fundamental investment policies, the Fund is also subject to the following non-fundamental restrictions and policies, which may be changed by the Board of Trustees without shareholder approval. The Fund may not:

(1)  Sell securities short, unless the Fund owns or has the right to obtain securities equivalent in kind and amount to the securities sold short at no added cost, and provided that transactions in options, futures contracts, options on futures contracts or other derivative instruments are not deemed to constitute selling securities short.

(2)  Purchase securities on margin, except that the Fund may obtain such short-term credits as are necessary for the clearance of transactions; and provided that margin deposits in connection with futures contracts, options on futures contracts or other derivative instruments shall not constitute purchasing securities on margin.

(3)  Purchase securities of open-end or closed-end investment companies except in compliance with the 1940 Act, although the Fund may not acquire any securities of registered open-end investment companies or registered unit investment trusts in reliance on Sections 12(d)(1)(F) or 12(d)(1)(G) of the 1940 Act.

(4)  Invest in direct interests in oil, gas or other mineral exploration programs or leases; however, the Fund may invest in the securities of issuers that engage in these activities.

(5)  Invest in illiquid securities if, as a result of such investment, more than 15% of the Fund's net assets would be invested in illiquid securities.

The investment objective of the Fund is a non-fundamental policy that can be changed by the Board of Trustees without approval by shareholders.

INVESTMENT POLICIES AND RISKS

Correlation and Tracking Error. Correlation measures the degree of association between the returns of the Fund and its Underlying Index. The Fund seeks a correlation over time of 0.95 or better between the Fund's performance and the performance of the Underlying Index; a figure of 1.00 would indicate perfect correlation. Correlation is calculated at the Fund's fiscal year-end by comparing the Fund's average monthly total returns, before fees and expenses, to the Underlying Index's average monthly total returns over the prior one-year period or since inception if the Fund has been in existence for less than one year. Another means of evaluating the degree of correlation between the returns of the Fund and its Underlying Index is to assess the "tracking error" between the two. Tracking error means the variation between the Fund's annual return and the return of its Underlying Index, expressed in terms of standard deviation. The Fund seeks to have a tracking error of less than 5%, measured on a monthly basis over a one year period by taking the standard deviation of the difference in the Fund's returns versus the Underlying Index's returns.


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Loans of Portfolio Securities. The Fund may lend its investment securities to approved borrowers. Any gain or loss on the market price of the securities loaned that might occur during the term of the loan would be for the account of the Fund. These loans cannot exceed 33 1 / 3 % of the Fund's total assets.

Approved borrowers are brokers, dealers, domestic and foreign banks, or other financial institutions that meet credit or other requirements as established by, and subject to the review of, the Trust's Board, so long as the terms, the structure and the aggregate amount of such loans are not inconsistent with the 1940 Act and the rules and regulations thereunder or interpretations of the SEC, which require that (a) the borrowers pledge and maintain with the Fund collateral consisting of cash, an irrevocable letter of credit issued by a bank, or securities issued or guaranteed by the U.S. Government having a value at all times of not less than 102% of the value of the securities loaned (on a "mark to market" basis); (b) the loan be made subject to termination by the Fund at any time; and (c) the Fund receives reasonable interest on the loan. From time to time, the Fund may return a part of the interest earned from the investment of collateral received from securities loaned to the borrower and/or a third party that is unaffiliated with the Fund and that is acting as a finder.

Repurchase Agreements. The Fund may enter into repurchase agreements, which are agreements pursuant to which securities are acquired by the Fund from a third party with the understanding that they will be repurchased by the seller at a fixed price on an agreed date. These agreements may be made with respect to any of the portfolio securities in which the Fund is authorized to invest. Repurchase agreements may be characterized as loans secured by the underlying securities. The Fund may enter into repurchase agreements with (i) member banks of the Federal Reserve System having total assets in excess of $500 million and (ii) securities dealers ("Qualified Institutions"). The Adviser will monitor the continued creditworthiness of Qualified Institutions.

The use of repurchase agreements involves certain risks. For example, if the seller of securities under a repurchase agreement defaults on its obligation to repurchase the underlying securities, as a result of its bankruptcy or otherwise, the Fund will seek to dispose of such securities, which action could involve costs or delays. If the seller becomes insolvent and subject to liquidation or reorganization under applicable bankruptcy or other laws, the Fund's ability to dispose of the underlying securities may be restricted. Finally, it is possible that the Fund may not be able to substantiate its interest in the underlying securities. To minimize this risk, the securities underlying the repurchase agreement will be held by the custodian at all times in an amount at least equal to the repurchase price, including accrued interest. If the seller fails to repurchase the securities, the Fund may suffer a loss to the extent proceeds from the sale of the underlying securities are less than the repurchase price.

The resale price reflects the purchase price plus an agreed upon market rate of interest. The collateral is marked to market daily.

Reverse Repurchase Agreements. The Fund may enter into reverse repurchase agreements, which involve the sale of securities with an agreement to repurchase the securities at an agreed upon price, date and interest payment and have the characteristics of borrowing. The securities purchased with the funds obtained from the agreement and securities collateralizing the agreement will have maturity dates no later than the repayment date. Generally the effect of such transactions is that the Fund can recover all or most of the cash invested in the portfolio securities involved during the term of the reverse repurchase agreement, while in many cases the Fund is able to keep some of the interest income associated with those securities. Such transactions are only advantageous if the Fund has an opportunity to earn a greater rate of return on the cash derived from these transactions than the interest cost of obtaining the same amount of cash. Opportunities to realize earnings from the use of the proceeds equal to or greater than the interest required to be paid may not always be available and the Fund intends to use the reverse repurchase technique only when the Adviser believes it will be advantageous to the Fund. The use of reverse repurchase agreements may exaggerate any interim increase or decrease in the value of the Fund's assets. The custodian bank will maintain a separate account for the Fund with securities having a value equal to or greater than such commitments. Under the 1940 Act, reverse repurchase agreements are considered loans.

Money Market Instruments. The Fund may invest a portion of its assets in high quality money market instruments on an ongoing basis to provide liquidity. The instruments in which the Fund may invest


4



include: (i) short term obligations issued by the U.S. Government; (ii) negotiable certificates of deposit ("CDs"), fixed time deposits and bankers' acceptances of U.S. and foreign banks and similar institutions; (iii) commercial paper rated at the date of purchase "Prime 1" by Moody's Investors Service, Inc. or "A-1+" or "A-1" by Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies, Inc., or, if unrated, of comparable quality as determined by the Adviser; (iv) repurchase agreements; and (v) money market mutual funds. CDs are short term negotiable obligations of commercial banks. Time deposits are non negotiable deposits maintained in banking institutions for specified periods of time at stated interest rates. Banker's acceptances are time drafts drawn on commercial banks by borrowers, usually in connection with international transactions.

Investment Companies. The Fund may invest in the securities of other investment companies (including money market funds). Under the 1940 Act, the Fund's investment in investment companies is limited to, subject to certain exceptions, (i) 3% of the total outstanding voting stock of any one investment company, (ii) 5% of the Fund's total assets with respect to any one investment company and (iii) 10% of the Fund's total assets of investment companies in the aggregate.

Illiquid Securities. The Fund may invest up to an aggregate amount of 15% of its net assets in illiquid securities. Illiquid securities include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets.

Futures and Options. The Fund may enter into U.S. futures contracts, options and options on futures contracts. These futures contracts and options will be used to simulate full investment in the Underlying Index, to facilitate trading or to reduce transaction costs. The Fund will only enter into futures contracts and options on futures contracts that are traded on a U.S. exchange. The Fund will not use futures or options for speculative purposes.

A call option gives a holder the right to purchase a specific security or an index at a specified price ("exercise price") within a specified period of time. A put option gives a holder the right to sell a specific security or an index at a specified price within a specified period of time. The initial purchaser of a call option pays the "writer," i.e., the party selling the option, a premium which is paid at the time of purchase and is retained by the writer whether or not such option is exercised. The Fund may purchase put options to hedge its portfolio against the risk of a decline in the market value of securities held and may purchase call options to hedge against an increase in the price of securities it is committed to purchase. The Fund may write put and call options along with a long position in options to increase its ability to hedge against a change in the market value of the securities it holds or is committed to purchase.

Futures contracts provide for the future sale by one party and purchase by another party of a specified amount of a specific instrument or index at a specified future time and at a specified price. Stock index contracts are based on indices that reflect the market value of common stock of the firms included in the indices. The Fund may enter into futures contracts to purchase security indices when the Adviser anticipates purchasing the underlying securities and believes prices will rise before the purchase will be made. Assets committed to futures contracts will be segregated by the custodian to the extent required by law.

An option on a futures contract, as contrasted with the direct investment in such a contract, gives the purchaser the right, in return for the premium paid, to assume a position in the underlying futures contract at a specified exercise price at any time prior to the expiration date of the option. Upon exercise of an option, the delivery of the futures position by the writer of the option to the holder of the option will be accompanied by delivery of the accumulated balance in the writer's futures margin account that represents the amount by which the market price of the futures contract exceeds (in the case of a call) or is less than (in the case of a put) the exercise price of the option on the futures contract. The potential for loss related to the purchase of an option on a futures contract is limited to the premium paid for the option plus transaction costs. Because the value of the option is fixed at the point of purchase, there are no daily cash payments by the purchaser to reflect changes in the value of the underlying contract; however, the value of the option changes daily and that change would be reflected in the NAV of the Fund. The potential for loss related to writing call options on equity securities or


5



indices is unlimited. The potential for loss related to writing put options is limited only by the aggregate strike price of the put option less the premium received.

The Fund may purchase and write put and call options on futures contracts as a hedge against changes in value of its portfolio securities, or in anticipation of the purchase of securities, and may enter into closing transactions with respect to such options to terminate existing positions. There is no guarantee that such closing transactions can be effected.

Restrictions on the Use of Futures Contracts and Options on Futures Contracts. The Commodity Futures Trading Commission has eliminated limitations on futures trading by certain regulated entities, including registered investment companies, and consequently registered investment companies may engage in unlimited futures transactions and options thereon provided that the investment adviser to the company claims an exclusion from regulation as a commodity pool operator. In connection with its management of the Trust, the Adviser has claimed such an exclusion from registration as a commodity pool operator under the Commodity Exchange Act (the "CEA"). Therefore, it is not subject to the registration and regulatory requirements of the CEA. There are no limitations on the extent to which the Fund may engage in non-hedging transactions involving futures and options thereon, except as set forth in the Fund's Prospectus and this Statement of Additional Information.

Upon entering into a futures contract, the Fund will be required to deposit with the broker an amount of cash or cash equivalents in the range of approximately 5% to 7% of the contract amount (this amount is subject to change by the exchange on which the contract is traded). This amount, known as "initial margin," is in the nature of a performance bond or good faith deposit on the contract and is returned to the Fund upon termination of the futures contract, assuming all contractual obligations have been satisfied. Subsequent payments, known as "variation margin," to and from the broker will be made daily as the price of the index underlying the futures contract fluctuates, making the long and short positions in the futures contract more or less valuable, a process known as "marking-to-market." At any time prior to expiration of a futures contract, the Fund may elect to close the position by taking an opposite position, which will operate to terminate the Fund's existing position in the contract.

Swap Agreements. Swap agreements are contracts between parties in which one party agrees to make periodic payments to the other party (the "Counterparty") based on the change in market value or level of a specified rate, index or asset. In return, the Counterparty agrees to make periodic payments to the first party based on the return of a different specified rate, index or asset. Swap agreements will usually be done on a net basis, the Fund receiving or paying only the net amount of the two payments. The net amount of the excess, if any, of the Fund's obligations over its entitlements with respect to each swap is accrued on a daily basis and an amount of cash or highly liquid securities having an aggregate value at least equal to the accrued excess is maintained in an account at the Trust's custodian bank.

The use of interest rate and index swaps is a highly specialized activity that involves investment techniques and risks different from those associated with ordinary portfolio security transactions. These transactions generally do not involve the delivery of securities or other underlying assets or principal.

The use of swap agreements involves certain risks. For example, if the Counterparty under a swap agreement defaults on its obligation to make payments due from it, as a result of its bankruptcy or otherwise, the Fund may lose such payments altogether, or collect only a portion thereof, which collection could involve costs or delays. See "Risk of Swap Agreements" below.

Currency Transactions. The Fund may engage in currency transactions with counterparties to hedge the value of portfolio securities denominated in particular currencies against fluctuations in relative value. Currency transactions include currency forward contracts, exchange-listed currency futures contracts, exchange-listed and over-the-counter options on currencies and currency swaps. A forward currency contract involves a privately negotiated obligation to purchase or sell (with delivery generally required) a specific currency at a future date, which may be any fixed number of days from the date of the contract agreed upon by the parties, at a price set at the time of the contract. A currency swap is an agreement to exchange cash flows based on the notional difference among two or more currencies and operates similarly to an interest rate swap


6



The Fund's dealings in forward currency contracts and other currency transactions such as futures contracts, options, options on futures contracts and swaps will be limited to hedging involving either specific transactions or portfolio positions. Transaction hedging is entering into a currency transaction with respect to specific assets or liabilities of the Fund, which will generally arise in connection with the purchase or sale of the Fund's portfolio securities or the receipt of income from them. Position hedging is entering into a currency transaction with respect to portfolio security positions denominated or generally quoted in that currency. The Fund will not enter into a transaction to hedge currency exposure to an extent greater, after netting all transactions intended wholly or partially to offset other transactions, than the aggregate market value (at the time of entering into the transaction) of the securities held in the Fund's portfolio that are denominated or generally quoted in or currently convertible into the currency, other than with respect to proxy hedging as described below.

The Fund may cross-hedge currencies by entering into transactions to purchase or sell one or more currencies that are expected to decline in value relative to other currencies to which the Fund has or in which the Fund expects to have portfolio exposure. To reduce the effect of currency fluctuations on the value of existing or anticipated holdings of portfolio securities, the Fund may also engage in proxy hedging. Proxy hedging is often used when the currency to which the Fund's portfolio is exposed is difficult to hedge or to hedge against the dollar. Proxy hedging entails entering into a forward contract to sell a currency, the changes in the value of which are generally considered to be linked to a currency or currencies in which some or all of the Fund's portfolio securities are or are expected to be denominated, and to buy dollars. The amount of the contract would not exceed the value of the Fund's securities denominated in linked currencies. Currency hedging involves some of the same risks and considerations as other transactions with similar instruments, Currency transactions can result in losses to the Fund if the currency being hedged fluctuates in value to a degree or in a direction that is not anticipated. Further, the risk exists that the perceived linkage between various currencies may not be present or may not be present during the particular time that the Fund is engaging in proxy hedging. If the Fund enters into a currency hedging transaction, the Fund will comply with the asset segregation requirements described below.

GENERAL CONSIDERATIONS AND RISKS

A discussion of the risks associated with an investment in the Fund is contained in the Prospectus in the "Principal Risks of Investing in the Fund" and "Additional Risks" sections. The discussion below supplements, and should be read in conjunction with, these sections of the Fund's Prospectus.

An investment in the Fund should be made with an understanding that the value of the Fund's portfolio securities may fluctuate in accordance with changes in the financial condition of the issuers of the portfolio securities, the value of securities in general and other factors that affect the market.

An investment in the Fund should also be made with an understanding of the risks inherent in an investment in equity securities, including the risk that the financial condition of issuers may become impaired or that the general condition of the securities market may deteriorate (either of which may cause a decrease in the value of the portfolio securities and thus in the value of Fund Shares). Securities are susceptible to general securities market fluctuations and to volatile increases and decreases in value as market confidence and perceptions of their issuers' change. These investor perceptions are based on various and unpredictable factors, including expectations regarding government, economic, monetary and fiscal policies, inflation and interest rates, economic expansion or contraction, and global or regional political, economic or banking crises.

Holders of common stock incur more risk than holders of preferred stock and debt obligations because common stockholders, as owners of the issuer, have generally inferior rights to receive payments from the issuer in comparison with the rights of creditors, or holders of debt obligations or preferred stock. Further, unlike debt securities which typically have a stated principal amount payable at maturity (whose value, however, is subject to market fluctuations prior thereto), or preferred stock which typically has a liquidation preference and which may have stated optional or mandatory redemption provisions, common stock has neither a fixed principal amount nor a maturity.


7



The existence of a liquid trading market for certain securities may depend on whether dealers will make a market in such securities. There can be no assurance that a market will be made or maintained or that any such market will be or remain liquid. The price at which securities may be sold and the value of the Fund's Shares will be adversely affected if trading markets for the Fund's portfolio securities are limited or absent, or if bid/ask spreads are wide.

Risks of Futures and Options Transactions. There are several risks accompanying the utilization of futures contracts and options on futures contracts. First, while the Fund plans to utilize futures contracts only if an active market exists for such contracts, there is no guarantee that a liquid market will exist for the contract at a specified time.

Furthermore, because, by definition, futures contracts project price levels in the future and not current levels of valuation, market circumstances may result in a discrepancy between the price of the stock index future and the movement in the Underlying Index. In the event of adverse price movements, the Fund would continue to be required to make daily cash payments to maintain its required margin. In such situations, if the Fund has insufficient cash, it may have to sell portfolio securities to meet daily margin requirements at a time when it may be disadvantageous to do so. In addition, the Fund may be required to deliver the instruments underlying futures contracts it has sold.

The risk of loss in trading futures contracts or uncovered call options in some strategies (e.g., selling uncovered stock index futures contracts) is potentially unlimited. The Fund does not plan to use futures and options contracts in this way. The risk of a futures position may still be large as traditionally measured due to the low margin deposits required. In many cases, a relatively small price movement in a futures contract may result in immediate and substantial loss or gain to the investor relative to the size of a required margin deposit. The Fund, however, intends to utilize futures and options contracts in a manner designed to limit their risk exposure to levels comparable to direct investment in stocks.

Utilization of futures and options on futures by the Fund involves the risk of imperfect or even negative correlation to the Underlying Index if the index underlying the futures contract differs from the Underlying Index.

There is also the risk of loss by the Fund of margin deposits in the event of bankruptcy of a broker with whom the Fund has an open position in the futures contract or option; however, this risk is substantially minimized because (a) of the regulatory requirement that the broker has to "segregate" customer funds from its corporate funds, and (b) in the case of regulated exchanges in the United States, the clearing corporation stands behind the broker to make good losses in such a situation. The purchase of put or call options could be based upon predictions by the Adviser as to anticipated trends, which predictions could prove to be incorrect and a part or all of the premium paid therefore could be lost.

Because the futures market imposes less burdensome margin requirements than the securities market, an increased amount of participation by speculators in the futures market could result in price fluctuations. Certain financial futures exchanges limit the amount of fluctuation permitted in futures contract prices during a single trading day. The daily limit establishes the maximum amount by which the price of a futures contract may vary either up or down from the previous day's settlement price at the end of a trading session. Once the daily limit has been reached in a particular type of contract, no trades may be made on that day at a price beyond that limit. It is possible that futures contract prices could move to the daily limit for several consecutive trading days with little or no trading, thereby preventing prompt liquidation of futures positions and subjecting the Fund to substantial losses. In the event of adverse price movements, the Fund would be required to make daily cash payments of variation margin.

Although the Fund intends to enter into futures contracts only if there is an active market for such contracts, there is no assurance that an active market will exist for the contracts at any particular time.

Risks of Swap Agreements. The risk of loss with respect to swaps generally is limited to the net amount of payments that the Fund is contractually obligated to make. Swap agreements are also subject to the risk that the swap counterparty will default on its obligations. If such a default were to occur, the Fund will have contractual


8



remedies pursuant to the agreements related to the transaction. However, such remedies may be subject to bankruptcy and insolvency laws which could affect the Fund's rights as a creditor (e.g., the Fund may not receive the net amount of payments that it contractually is entitled to receive). The Fund, however, intends to utilize swaps in a manner designed to limit its risk exposure to levels comparable to direct investments in stocks.

Foreign Currency Risk. The Fund's assets will be invested primarily in the equity securities of issuers in India and the income received by the Fund will be principally in rupees. Meanwhile, the Fund will compute and expects to distribute its income in U.S. dollars, and the computation of income will be made on the date that the income is earned by the Fund at the foreign exchange rate in effect on that date. Therefore, if the value of the rupee falls relative to the U.S. dollar between the earning of the income and the time at which the Fund converts the rupee to U.S. dollars, the Fund may be required to liquidate certain positions in order to make distributions if the Fund has insufficient cash in U.S. dollars to meet distribution requirements under the Internal Revenue Code. The liquidation of investments, if required, may also have an adverse impact on the Fund's performance.

Furthermore, the Fund may incur costs in connection with conversions between U.S. dollars and rupees. Foreign exchange dealers realize a profit based on the difference between the prices at which they are buying and selling various currencies. Thus, a dealer normally will offer to sell a foreign currency to the Fund at one rate, while offering a lesser rate of exchange should the Fund desire immediately to resell that currency to the dealer. The Fund will conduct its foreign currency exchange transactions either on a spot (i.e., cash) basis at the spot rate prevailing in the foreign currency exchange market, or through entering into forward, futures or options contracts to purchase or sell foreign currencies.

Risks of Currency Transactions. Currency transactions are subject to risks different from those of other portfolio transactions. Because currency control is of great importance to the issuing governments and influences economic planning and policy, purchases and sales of currency and related instruments can be adversely affected by government exchange controls, limitations or restrictions on repatriation of currency and manipulations or exchange restrictions imposed by governments. These forms of governmental actions can result in losses to the Fund if it is unable to deliver or receive currency or monies in settlement of obligations and could also cause hedges it has entered into to be rendered useless, resulting in full currency exposure as well as incurring transaction costs. Buyers and sellers of currency futures are subject to the same risks that apply to the use of futures generally. Further, settlement of a currency futures contract for the purchase of most currencies must occur at a bank based in the issuing nation. The ability to establish and close out positions on these options is subject to the maintenance of a liquid market that may not always be available. Currency exchange rates may fluctuate based on factors extrinsic to that country's economy.

MANAGEMENT

The general supervision of the duties performed by the Adviser for the Fund under the investment advisory agreement (the "Investment Advisory Agreement") is the responsibility of the Board of Trustees. The Trust currently has eight Trustees. Five Trustees have no affiliation or business connection with the Adviser or any of its affiliated persons and do not own any stock or other securities issued by the Adviser. These are the "non-interested" or "independent" Trustees ("Independent Trustees"). The other two Trustees that are affiliated with the Adviser and one Trustee that may not be deemed independent due to business reasons (the "Non-Independent Trustees").

The Independent Trustees of the Trust, their term of office and length of time served, their principal business occupations during the past five years, the number of portfolios in the Fund Complex (defined below) overseen by each Independent Trustee and other directorships, if any, held by the Trustee are shown below. The Fund Complex includes all open- and closed-end funds (including all of their portfolios) advised by the Adviser and any funds that have an investment adviser that is an affiliated person of the Adviser. As of the date of this Statement of Additional Information, the Fund Complex consists of the PowerShares India Exchange-Traded Fund Trust, two other exchange-traded funds with 99 portfolios advised by the Adviser and 225 other portfolios advised by an affiliated person of the Adviser.


9



Name, Address and Age
of Independent Trustee
  Position(s) Held
with Trust
  Term of
Office and
Length of
Time Served*
  Principal Occupation(s)
During Past 5 Years
  Number of
Portfolios in
Fund
Complex
Overseen by
Independent
Trustees
  Other Directorships
Held by Independent
Trustees
 
Ronn R. Bagge (49)
YQA Capital
Management LLC
1755 S. Naperville Rd.
Suite 100
Wheaton, IL 60187
  Trustee   Since 2008   YQA Capital Management LLC (July 1998-Present); formerly Owner/CEO of Electronic Dynamic Balancing Co., Inc. (high-speed rotating equipment service provider)     100     None  
Marc M. Kole (47)
c/o PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Trustee   Since 2008   Controller, Priority Health (September 2005-Present); formerly, Interim CFO, Priority Health (July 2006-April 2007); Senior Vice President of Finance, United Healthcare (health insurance) (July 2004-July 2005); Senior Vice President of Finance, Oxford Health Plans (June 2000-July 2004)     100     None  
D. Mark McMillan (44)
c/o PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Trustee   Since 2008   Member, Bell, Boyd & Lloyd LLP (1989-Present)     100     None  
Philip M. Nussbaum (45)
c/o PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Trustee   Since 2008   Chairman, Performance Trust Capital Partners (formerly Betzold, Berg, Nussbaum & Heitman, Inc.) (November 2004-Present); formerly Managing Director, Communication Institute (May 2002-August 2003); Executive Vice President of Finance, Betzold, Berg, Nussbaum & Heitman, Inc. (March 1994-July 1999)     100     None  
Donald H. Wilson (47)
c/o PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Trustee   Since 2008   President and Chief Operating Officer and Chief Financial Officer, AMCORE Financial, Inc. (August 2007-Present); Executive Vice President and Chief Financial Officer, AMCORE Financial, Inc. (bank holding company) (February 2006-August 2007); formerly, Senior Vice President and Treasurer, Marshall & Ilsley Corp. (bank holding company) (May 1995-February 2006)     100     None  

 

*  This is the period for which the Trustee began serving the Trust. Each Trustee serves an indefinite term, until his successor is elected.


10



The Trustees who are affiliated with the Adviser or an affiliate of the Adviser or have business connections with the Adviser and the executive officers of the Trust, their term of office and length of time served, their principal business occupations during the past five years, the number of portfolios in the Fund Complex overseen by the Non-Independent Trustees and the other directorships, if any, held by the Trustees, are shown below.

Name, Address and Age
of Non-Independent Trustee
  Position(s) Held
with Trust
  Term of
Office and
Length of
Time Served*
  Principal Occupation(s)
During Past 5 Years
  Number of
Portfolios in
Fund
Complex
Overseen by
Management
Trustees
  Other Directorships Held
by Non-Independent Trustees
 
H. Bruce Bond (44)
PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Trustee and Chief Executive Officer   Since 2007   Managing Director, PowerShares Capital Management LLC (August 2002-Present); Manager, Nuveen Investments (April 1998 August 2002)     100     None  
Paul Kilcullen (33)
c/o PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Trustee   Since 2008   General Manager, Invesco PLC (June 1997-Present); Director, Invesco Asset Management Ireland Limited (July 2002-Present); Director, Invesco Global Distributors Limited (mutual funds distributor) (September 2004-Present); Director, Investment Fund Administrators Limited (June 2002-Present); Director, Invesco Asset Management Ireland Holdings Limited (June 2004-Present; Director, Invesco Properties Limited (property holding company)(July 2002-Present); Director, AIM Global Management Company Limited (asset management)(May 2004-Present); Director, Short-Term Investments Company (Global Series) plc Limited (asset management)(May 2004-Present); Director, INVESCO India (Mauritius) Limited (asset management) (July 2004-Present); Director, Invesco Funds SICAV (June 2004-Present); Director, Invesco Absolute Return Master Fund Plc (May 2004-Present); Director Invesco Global Tactical Asset Allocation (GTAA) Fund Plc (December 2005-Present)     1     None  
Couldip Basanta Lala (57)
c/o PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Trustee   Since 2008   Director, International Financial Services Limited (international tax and business advisory services) (December 1993-Present); Director of various Global Business Companies     1     None  

 

*  This is the period for which the Trustee/officer began serving the Trust. Each Trustee/Officer serves an indefinite term, until his successor is elected.


11



Name, Address and Age
of Executive Officer
  Position(s) Held
with Trust
  Term of
Office and
Length of
Time Served*
  Principal Occupation(s) During Past 5 Years  
Bruce T. Duncan (52)
PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Chief Financial Officer   Since 2008   Senior Vice President of Finance, PowerShares Capital Management LLC (September 2005-Present); Private Practice Attorney (2000-2005); Vice President of Investor Relations, The ServiceMaster Company (1994-2000); Vice President of Taxes, The ServiceMaster Company (1990-2000)  
Kevin R. Gustafson (41)
PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Chief Compliance Officer   Since 2008   General Counsel and Chief Compliance Officer, PowerShares Capital Management LLC (September 2004-Present); Attorney, Nyberg & Gustafson (2001-2004); Attorney, Burke, Warren, McKay & Serritella, P.C. (1997-2000)  
Keith Ovitt (44)
PowerShares Capital
Management LLC
301 West Roosevelt Road
Wheaton, IL 60187
  Secretary   Since 2008   Managing Director, PowerShares Capital Management LLC (April 2003-Present); President, Ovitech (2002-2003); Vice President of Information Systems for DFG Foods, LLC (Division of FoodBrands America/Tyson Foods) (1999-2002); Systems Manager, Nabisco Biscuit Company (1997-1999)  

 

*  This is the period for which the officer began serving the Trust. Each officer serves an indefinite term, until his successor is elected.

For each Trustee, the dollar range of equity securities beneficially owned by the Trustee in the Trust and in all registered investment companies in the family of investment companies overseen by the Trustee is shown below.

Name of Trustee   Dollar Range of Equity
Securities in the PowerShares
India Portfolio
(As of December 31, 2007)
  Aggregate Dollar Range of
Equity Securities in All
Registered Investment
Companies Overseen by
Trustee in Family of
Investment Companies
(As of December 31, 2007)
 
Ronn R. Bagge   None   Over $100,000  
Marc M. Kole   None   Over $100,000  
D. Mark McMillan   None   None  
Philip M. Nussbaum   None   Over $100,000  
Donald H. Wilson   None   Over $100,000  
Paul Kilcullen   None   None  
Couldip Basanta Lala   None   None  
H. Bruce Bond   None   Over $100,000  

 

As of the date of this Statement of Additional Information, as to each Independent Trustee and his immediate family members, no person owned beneficially or of record securities in an investment adviser or principal underwriter of the Fund, or a person (other than a registered investment company) directly or indirectly controlling, controlled by or under common control with an investment adviser or principal underwriter of the Fund.

The Trust, the PowerShares Exchange Traded Fund Trust II ("Trust II") and the PowerShares Exchange-Traded Fund Trust (the "Initial Trust") pay each Independent Trustee an annual retainer of $130,000 for their service as Trustee, half of which is allocated pro rata between the funds of the Trust, the Initial Trust and Trust II, and the other half of which is allocated between the funds of the Trust and the funds of the Initial Trust and Trust II based on average net assets. Each committee chair receives an additional fee of $10,000 per year, allocated in the same manner as the retainer. The Trust also reimburses each Trustee for travel and other out-of-pocket expenses incurred in attending Board and committee meetings.

The Board has an Audit Committee consisting of the five Independent Trustees. Messrs. Bagge, Kole, McMillan, Nussbaum and Wilson currently serve as members of the Audit Committee. The Audit Committee has the responsibility, among other things, to: (i) approve and recommend to the Board the selection of the Trust's


12



independent registered public accounting firm, (ii) review the scope of the independent registered public accounting firm's audit activity, (iii) review the audited financial statements and (iv) review with such independent registered public accounting firm the adequacy and the effectiveness of the Trust's internal controls.

The Board also has a Nominating and Governance Committee consisting of the five Independent Trustees. Messrs. Bagge, Kole, McMillan, Nussbaum and Wilson currently serve as members of the Nominating and Governance Committee. The Nominating and Governance Committee has the responsibility, among other things, to identify and recommend individuals for Board membership, and evaluate candidates for Board membership. The Board will consider recommendations for trustees from shareholders. Nominations from shareholders should be in writing and sent to the Secretary of the Trust to the attention of the Chairman of the Nominating and Governance Committee as described below under the caption "Shareholder Communications."

The following sets forth the fees expected to be paid to each Trustee for the fiscal year ending October 31, 2008:

Name of Trustee   Aggregate
Compensation From
Trust
  Pension or Retirement
Benefits accrued as part of
Fund Expenses
  Total Compensation Paid
From Fund Complex
 
Ronn R. Bagge   *   N/A   $ 140,000    
Marc M. Kole   *   N/A   $ 130,000    
D. Mark McMillan   *   N/A   $ 130,000    
Philip M. Nussbaum   *   N/A   $ 140,000    
Donald H. Wilson   *   N/A   $ 130,000    
Paul Kilcullen   N/A   N/A     N/A    
Couldip Basanta Lala   N/A   N/A     N/A    
H. Bruce Bond   N/A   N/A     N/A    

 

*  Each Independent Trustee receives an annual retainer of $130,000, half of which is allocated pro rata between the Trust, the Initial Trust and Trust II, and the other half of which is allocated between the funds of the Trust, the Initial Trust and Trust II based on average net assets. Each committee chair receives an additional fee of $10,000 per year, allocated in the same manner.

As of the date of this SAI, the officers and Trustees of the Trust, in the aggregate, own less than 1% of the shares of the Fund.

The general management of the Subsidiary is the responsibility of its Board of Directors, a majority of which are also Trustees of the Trust.

Shareholder Communications. Shareholders may send communications to the Trust's Board of Trustees by addressing the communications directly to the Board (or individual Board members) and/or otherwise clearly indicating in the salutation that the communication is for the Board (or individual Board members). The shareholder may send the communication to either the Trust's office or directly to such Board members at the address specified for each Trustee. Other shareholder communications received by the Trust not directly addressed and sent to the Board will be reviewed and generally responded to by management. Such communications will be forwarded to the Board at management's discretion based on the matters contained therein.

Investment Adviser. The Adviser provides investment tools and portfolios for advisers and investors. The Adviser is committed to theoretically sound portfolio construction and empirically verifiable investment management approaches. Its asset management philosophy and investment discipline is deeply rooted in the application of intuitive factor analysis and model implementation to enhance investment decisions. All investment decisions relating to the Fund will be made outside of India.

The Adviser acts as investment adviser for, and manages the investment and reinvestment of, the assets of the Fund. The Adviser also administers the Trust's business affairs, monitoring the Fund's investments and overseeing the maintenance of all books and records with respect to the securities transactions of the Fund and the


13



computation of the net asset value and net income of the Fund, and permits any of its officers or employees to serve without compensation as Trustees or officers of the Trust if elected to such positions.

Portfolio Managers. The Adviser uses a team of portfolio managers (the "Portfolio Managers"), investment strategists and other investment specialists. This team approach brings together many disciplines and leverages the Adviser's resources. John W. Southard Jr., CFA, MBA, oversees all research, portfolio management and trading operations of the Adviser. In this capacity, he oversees the team of Portfolio Managers responsible for the day-to-day management of the Fund. The Portfolio Manager who leads the team of Portfolio Managers in the day-to-day management of the Fund is Mr. Hubbard.

As of January 31, 2008, Mr. Southard managed 71 portfolios of the Initial Trust and 25 portfolios of Trust II with a total of approximately $12.58 billion in assets and no other pooled investment vehicles other than 15 exchange-traded funds traded in Europe with a total of approximately $524 million in assets.

As of January 31, 2008, Mr. Hubbard managed 71 portfolios of the Initial Trust and 25 portfolios of Trust II with a total of approximately $12.58 billion in assets and no other pooled investment vehicles other than 15 exchange-traded funds traded in Europe with a total of approximately $524 million in assets.

As of January 31, 2008, Mr. Reitmann managed 71 portfolios of the Initial Trust and 25 portfolios of Trust II with a total of approximately $12.58 billion in assets and no other pooled investment vehicles other than 15 exchange-traded funds traded in Europe with a total of approximately $524 million in assets.

As of January 31, 2008, Mr. Stoneberg managed 71 portfolios of the Initial Trust and 17 portfolios of Trust II with a total of approximately $12.4 billion in assets and no other pooled investment vehicles other than 15 exchange-traded funds traded in Europe with a total of approximately $524 million in assets.

As of January 31, 2008, Mr. Trampe managed 71 portfolios of the Initial Trust and 17 portfolios of Trust II with a total of approximately $12.4 billion in assets and no other pooled investment vehicles other than 15 exchange-traded funds traded in Europe with a total of approximately $524 million in assets.

Although the funds that are managed by the Portfolio Managers may have different investment strategies, each has a portfolio objective of replicating its Underlying Index. The Adviser does not believe that management of the different funds presents a material conflict of interest for the Portfolio Managers or the Adviser.

The Portfolio Managers are compensated with a fixed salary amount by the Adviser. The Portfolio Managers are eligible, along with other senior employees of the Adviser, to participate in a year-end discretionary bonus pool. The Compensation Committee of the Adviser will review management bonuses and, depending upon the size, the bonuses may be approved in advance by the Committee. There is no policy regarding, or agreement with, the Portfolio Managers or any other senior executive of the Adviser to receive bonuses or any other compensation in connection with the performance of any of the accounts managed by the Portfolio Managers. As of January 31, 2008, Messrs. Southard, Hubbard, Trampe, Reitmann and Stoneberg did not own any securities of the Trust.

Investment Advisory Agreements. Pursuant to the Investment Advisory Agreement, the Adviser is responsible for all expenses of the Fund and the Subsidiary, including the cost of transfer agency, custody, fund administration, legal, audit and services, except the Fund will pay interest, taxes, brokerage expenses, distribution fees, if any and other extraordinary expenses and the Subsidiary will pay its brokerage expenses, taxes, interest and charges and extraordinary expenses. The Fund has agreed to pay an annual fee equal to a percentage of its average daily net assets to the Adviser, set forth in the chart below (the "Advisory Fee").

Fund   Fee  
PowerShares India Portfolio     0.78 %  

 

The Adviser provides an investment program for the Fund and manages the investment of the Fund's assets.

Under the Investment Advisory Agreement, the Adviser will not be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the performance of the Investment Advisory Agreement, except a loss resulting from willful misfeasance, bad faith or gross negligence on the part of the Adviser in the performance of its duties or from reckless disregard of its duties and obligations thereunder.


14



The Investment Advisory Agreement continues until April 30, 2009, and thereafter only if approved annually by the Board, including a majority of the Independent Trustees. The Investment Advisory Agreement terminates automatically upon assignment and is terminable at any time without penalty as to the Fund by the Board, including a majority of the Independent Trustees, or by vote of the holders of a majority of the Fund's outstanding voting securities on 60 days' written notice to the Adviser, or by the Adviser on 60 days' written notice to the Fund.

Pursuant to a management agreement between the Adviser and the Subsidiary (the "Subsidiary Advisory Agreement"), the Adviser is responsible for all expenses of the Subsidiary, including the cost of legal, audit and other services, except interest, taxes, brokerage expenses, distribution fees, if any, litigation expenses and other extraordinary expenses. The Adviser does not receive any fees from the Subsidiary in addition to the Advisory Fee.

Subject to the discretion of the directors of the Subsidiary, the Adviser has overall responsibility for the general management of the Subsidiary. The Adviser provides an investment program for the Subsidiary and manages the investment of the Subsidiary's assets.

Under the Subsidiary Advisory Agreement, the Adviser will not be liable for any error of judgment or mistake of law or for any loss suffered by the Subsidiary in connection with the performance of the Subsidiary Advisory Agreement, except a loss resulting from willful misfeasance, bad faith, fraud or gross negligence on the part of the Adviser in the performance of its duties or from reckless disregard of its duties and obligations thereunder. The Subsidiary Advisory Agreement continues until April 30, 2009, and thereafter only if approved annually by the board of the Subsidiary. The Subsidiary Advisory Agreement terminates automatically upon assignment and is terminable at any time without penalty as to the Subsidiary by the board of the Subsidiary, the Fund's Independent Trustees or by vote of the holders of a majority of the Subsidiary's outstanding voting securities on 60 days' written notice to the Adviser, or by the Adviser on 60 days' written notice to the Subsidiary.

PowerShares Capital Management LLC, organized February 7, 2003, is located at 301 West Roosevelt Road, Wheaton, Illinois 60187. On September 18, 2006, Invesco PLC acquired PowerShares Capital Management LLC. Invesco PLC is an independent global investment manager.

Administrator. Brown Brothers Harriman & Co. ("BBH" or the "Administrator") serves as administrator for the Fund. Its principal address is 40 Water Street, Boston, Massachusetts 02109-3661. BBH serves as administrator for the Trust pursuant to an administrative services agreement (the "Administrative Services Agreement"). Under the Administrative Services Agreement, BBH is obligated on a continuous basis, to provide such administrative services as the Board reasonably deems necessary for the proper administration of the Trust and the Fund. BBH will generally assist in all aspects of the Trust's and the Fund's operations, including supply and maintain office facilities (which may be in BBH's own offices), statistical and research data, data processing services, clerical, accounting, bookkeeping and record keeping services (including, without limitation, the maintenance of such books and records as are required under the 1940 Act and the rules thereunder, except as maintained by other agency agents), internal auditing, executive and administrative services, and stationery and office supplies; prepare reports to shareholders or investors; prepare and file tax returns; supply financial information and supporting data for reports to and filings with the SEC; supply supporting documentation for meetings of the Board; provide monitoring reports and assistance regarding compliance with the Declaration of Trust, by-laws, investment objectives and policies and with federal and state securities laws; and negotiate arrangements with, and supervise and coordinate the activities of, agents and others to supply services.

As compensation for the foregoing services, BBH receives certain out-of-pocket costs and asset-based fees which are accrued daily and paid monthly by the Adviser from the Advisory Fee.

Mauritius Administrator. International Financial Services Limited serves as the Subsidiary's Mauritius administrator. The Subsidiary pays International Financial Services a fee for its services and providing shareholder services, including processing subscriptions, redemptions and distributions; providing appropriate office facilities in Mauritius; providing advise on matters of Mauritian company law; keeping statutory books and maintaining records to comply with Mauritian Company Law and the Financial Services Commission of Mauritius' requirements; preparing and filing certain regulatory filings; calculating NAV; providing taxation and regulatory


15



advisory services; and providing treasury services. The Subsidiary also reimburses International Financial Services Limited for all reasonable out-of-pocket expenses reasonably incurred by it in the performance of its duties.

Custodian, Transfer Agent and Fund Accounting Agent. BBH, located at 40 Water Street, Boston, Massachusetts 02109-3661, also serves as custodian for the Fund and the Subsidiary pursuant to a custodian agreement (the "Custodian Agreement"). As custodian, BBH holds the Fund's and the Subsidiary's assets, calculates the NAV of the Shares and calculates net income and realized capital gains or losses. BBH also serves as transfer agent of the Fund pursuant to the Administration Agreement. Further, BBH serves as Fund accounting agent pursuant to the Administrative Services Agreement. As compensation for the foregoing services, BBH receives certain out-of-pocket costs and asset-based fees which are accrued daily and paid monthly by the Adviser from the Advisory Fee.

Distributor. A I M Distributors, Inc. (the "Distributor") is the distributor of the Fund's Shares. Its principal address is 11 Greenway Plaza, Suite 100, Houston, Texas 77046-1173. The Distributor has entered into a distribution agreement (the "Distribution Agreement") with the Trust pursuant to which it distributes Fund Shares. Shares are continuously offered for sale by the Fund through the Distributor only in Creation Unit Aggregations, as described in the Prospectuses and below under the heading "Creation and Redemption of Creation Units."

Aggregations. Fund Shares in less than Creation Unit Aggregations are not distributed by the Distributor. The Distributor will deliver the Prospectus and, upon request, this Statement of Additional Information to persons purchasing Creation Unit Aggregations and will maintain records of both orders placed with it and confirmations of acceptance furnished by it. The Distributor is a broker-dealer registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and a member of the Financial Industry Regulatory Authority ("FINRA").

The Distribution Agreement provides that it may be terminated as to the Fund at any time, without the payment of any penalty, on at least 60 days' written notice by the Trust to the Distributor (i) by vote of a majority of the Independent Trustees or (ii) by vote of a majority of the outstanding voting securities (as defined in the 1940 Act) of the Fund. The Distribution Agreement will terminate automatically in the event of its assignment (as defined in the 1940 Act).

The Distributor may also enter into agreements with securities dealers ("Soliciting Dealers") who will solicit purchases of Creation Unit Aggregations of Fund Shares. Such Soliciting Dealers may also be Participating Parties (as defined in "Procedures for Creation of Creation Unit Aggregations" below) and DTC Participants (as defined in "DTC Acts as Securities Depository" below).

Index Provider. The Fund is based on the Indus India Index. The Indus India Index is compiled by Indus Advisors LLC.

The Index Provider does not guarantee the accuracy and/or the completeness of the Underlying Index or any data included therein, and the Adviser shall have no liability for any errors, omissions, or interruptions therein. The Index Provider makes no warranty, express or implied, as to results to be obtained by the Fund, owners of the Shares of the Fund or any other person or entity from the use of the Underlying Index or any data included therein. The Index Provider makes no express or implied warranties, and expressly disclaims all warranties of merchantability, title or fitness for a particular purpose or use with respect to the Underlying Index or any data included therein. Without limiting any of the foregoing, in no event shall the Index Provider have any liability for any special, exemplary, punitive, direct, indirect or consequential damages (including lost profits), however caused and on any theory of liability, whether in contract, strict liability or tort (including negligence or otherwise), resulting from the use of the Underlying Index or any data included therein, even if notified of the possibility of such damages.

Indus' only relationship to the Adviser, the Fund or the Distributor is Indus' licensing to the Adviser of certain Indus trademarks, the Index and trade names, which are composed by Indus without regard to the Adviser, the Fund, the Distributor or any investor; and Indus makes no warranty or representation regarding the advisability of purchasing, holding or trading this product.

The Adviser does not guarantee the accuracy and/or the completeness of the Underlying Index or any data included therein, and the Adviser shall have no liability for any errors, omissions, or interruptions therein. The


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Adviser makes no warranty, express or implied, as to results to be obtained by the Fund, owners of the Shares of the Fund or any other person or entity from the use of the Underlying Index or any data included therein. The Adviser makes no express or implied warranties, and expressly disclaims all warranties of merchantability, title or fitness for a particular purpose or use with respect to the Underlying Index or any data included therein. Without limiting any of the foregoing, in no event shall the Adviser have any liability for any special, exemplary, punitive, direct, indirect or consequential damages (including lost profits), however caused and on any theory of liability, whether in contract, strict liability or tort (including negligence or otherwise), resulting from the use of the Underlying Index or any data included therein, even if notified of the possibility of such damages.

BROKERAGE TRANSACTIONS

The policy of the Trust regarding purchases and sales of securities is that primary consideration will be given to obtaining the most favorable prices and efficient executions of transactions. Consistent with this policy, when securities transactions are effected on a stock exchange, the Trust's policy is to pay commissions that are considered fair and reasonable without necessarily determining that the lowest possible commissions are paid in all circumstances. In seeking to determine the reasonableness of brokerage commissions paid in any transaction, the Adviser relies upon its experience and knowledge regarding commissions generally charged by various brokers. The sale of Fund Shares by a broker-dealer is not a factor in the selection of broker-dealers.

In seeking to implement the Trust's policies, the Adviser effects transactions with those brokers and dealers that the Adviser believes provide the most favorable prices and are capable of providing efficient executions. The Adviser and its affiliates do not currently participate in soft dollar transactions.

The Adviser assumes general supervision over placing orders on behalf of the Fund for the purchase or sale of portfolio securities. If purchases or sales of portfolio securities by the Fund and one or more other investment companies or clients supervised by the Adviser are considered at or about the same time, transactions in such securities are allocated among the Fund, the several investment companies and clients in a manner deemed equitable to all by the Adviser. In some cases, this procedure could have a detrimental effect on the price or volume of the security as far as the Fund is concerned. However, in other cases, it is possible that the ability to participate in volume transactions and to negotiate lower brokerage commissions will be beneficial to the Fund. The primary consideration is prompt execution of orders at the most favorable net price.

ADDITIONAL INFORMATION CONCERNING THE TRUST

The Trust is an open-end management investment company registered under the 1940 Act. The Trust was organized as a Massachusetts business trust on August 3, 2007, pursuant to a Declaration of Trust.

The Trust is authorized to issue an unlimited number of shares in one or more series or "funds." The Trust currently is comprised of one fund. The Board of Trustees of the Trust has the right to establish additional series in the future, to determine the preferences, voting powers, rights and privileges thereof and to modify such preferences, voting powers, rights and privileges, and terminate any series without shareholder approval.

Each Share issued by the Fund has a pro rata interest in the assets of the Fund. Fund Shares have no preemptive, exchange, subscription or conversion rights except as may be determined by the Trustees and are freely transferable. Each Share of the Fund is entitled to participate equally in dividends and distributions declared by the Board with respect to the Fund, and in the net distributable assets of the Fund on liquidation.

Shareholders are entitled to vote on any matter as required by the 1940 Act or other applicable laws but otherwise the Trustees are permitted to take any action without seeking the consent of shareholders. The Trustees may, without shareholder approval, amend the Trust's Declaration of Trust in any respect or authorize the merger or consolidation of the Trust or the Fund into another trust or entity, reorganize the Trust, or the Fund into another trust or entity or a series or class of another entity, sell all or substantially all of the assets of the Trust or the Fund to another entity, or a series or class of another entity, or terminate the Trust or the Fund.

The Fund is not required to hold an annual meeting of shareholders, but the Fund will call special meetings of shareholders whenever required by the 1940 Act or by the terms of the Declaration of Trust.


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Each Share has one vote with respect to matters upon which a shareholder vote is required consistent with the requirements of the 1940 Act and the rules promulgated thereunder. Shares of all funds, including the Fund, of the Trust vote together as a single class except as otherwise required by the 1940 Act, or if the matter being voted on affects only a particular fund, and, if a matter affects a particular fund differently from other funds, the shares of that fund will vote separately on such matter.

The Trust's Declaration of Trust provides that by becoming a shareholder of the Fund, each shareholder shall be expressly held to have agreed to be bound by the provisions of the Declaration. The holders of Fund shares are required to disclose information on direct or indirect ownership of Fund shares as may be required to comply with various laws applicable to the Fund or as otherwise determined by the Trustees, and ownership of Fund shares may be disclosed by the Fund if so required by law or regulation or as the Trustees may otherwise determine.

Under Massachusetts law applicable to Massachusetts business trusts, shareholders of such a trust may, under certain circumstances, be held personally liable as partners for its obligations. However, the Declaration of Trust of the Trust contains an express disclaimer of shareholder liability for acts or obligations of the Trust and requires that notice of this disclaimer be given in each agreement, obligation or instrument entered into or executed by the Trust or the Trustees. The Trust's Declaration of Trust further provides for indemnification out of the assets and property of the Trust for all losses and expenses of any shareholder held personally liable for the obligations of the Trust. Thus, the risk of a shareholder incurring financial loss on account of shareholder liability is limited to circumstances in which both inadequate insurance existed and the Trust or Fund itself was unable to meet its obligations. The Trust believes the likelihood of the occurrence of these circumstances is remote.

The Trust's Declaration also provides that a Trustee acting in his or her capacity of trustee is not personally liable to any person other than the Trust or its shareholders, for any act, omission, or obligation of the Trust. The Declaration further provides that a Trustee or officer is liable to the Trust or its shareholders only for his or her bad faith, willful misfeasance, gross negligence or reckless disregard of his or her duties, and shall not be liable for errors of judgment or mistakes of fact or law. The Declaration requires the Trust to indemnify any persons who are or who have been Trustees, officers or employees of the Trust for any liability for actions or failure to act except to the extent prohibited by applicable federal law. In making any determination as to whether any person is entitled to the advancement of expenses in connection with a claim for which indemnification is sought, such person is entitled to a rebuttable presumption that he or she did not engage in conduct for which indemnification is not available.

The Declaration provides that any Trustee who serves as chair of the Board or of a committee of the Board, lead independent Trustee, or audit committee financial expert, or in any other similar capacity will not be subject to any greater standard of care or liability because of such position.

The Trust's Declaration provides a detailed process for the bringing of derivative actions by shareholders in order to permit legitimate inquiries and claims while avoiding the time, expense, distraction, and other harm that can be caused to the Fund or its shareholders as a result of spurious shareholder demands and derivative actions. Prior to bringing a derivative action, a demand by the complaining shareholder must first be made on the Trustees. The Declaration details various information, certifications, undertakings and acknowledgements that must be included in the demand. Following receipt of the demand, the Trustees have a period of 90 days, which may be extended by an additional 60 days, to consider the demand. If a majority of the Trustees who are considered independent for the purposes of considering the demand determine that maintaining the suit would not be in the best interests of the Fund, the Trustees are required to reject the demand and the complaining shareholder may not proceed with the derivative action unless the shareholder is able to sustain the burden of proof to a court that the decision of the Trustees not to pursue the requested action was not a good faith exercise of their business judgment on behalf of the Fund. Trustees are not considered to have a personal financial interest by virtue of being compensated for their services as Trustees.

If a demand is rejected, the complaining shareholder will be responsible for the costs and expenses (including attorneys' fees) incurred by the Fund in connection with the consideration of the demand, if a court determines that the demand was made without reasonable cause or for an improper purpose. If a derivative action is brought in violation of the Declaration, the shareholders bringing the action may be responsible for the Fund's costs, including attorneys' fees.


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The Declaration further provides that the Fund shall be responsible for payment of attorneys' fees and legal expenses incurred by a complaining shareholder only if required by law, and any attorneys' fees that the fund is obligated to pay on the basis of hourly rates shall be calculated using reasonable hourly rates. The Declaration also requires that actions by shareholders against the Fund be brought only in a certain federal court in Illinois, or if not permitted to be brought in federal court, then in an Illinois state court, and that the right to jury trial be waived to the full extent permitted by law.

The Trust does not have information concerning the beneficial ownership of Shares held by DTC Participants (as defined below).

Shareholders may make inquiries by writing to the Trust, c/o the Distributor, A I M Distributors, Inc., 11 Greenway Plaza, Suite 100, Houston, Texas 77046-1173.

Control Persons. As of the date of this Statement of Additional Information, the Adviser beneficially owned all of the voting securities of the Fund.

Book Entry Only System. The following information supplements and should be read in conjunction with the section in the Prospectus entitled "Book Entry."

DTC Acts as Securities Depository for Fund Shares. Shares of the Fund are represented by securities registered in the name of DTC or its nominee and deposited with, or on behalf of, DTC.

DTC, a limited purpose trust company, was created to hold securities of its participants (the "DTC Participants") and to facilitate the clearance and settlement of securities transactions among the DTC Participants in such securities through electronic book entry changes in accounts of the DTC Participants, thereby eliminating the need for physical movement of securities certificates. DTC Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom (and/or their representatives) own DTC. More specifically, DTC is owned by a number of its DTC Participants and by the NYSE, the AMEX and FINRA. Access to the DTC system is also available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a DTC Participant, either directly or indirectly (the "Indirect Participants").

Beneficial ownership of Shares is limited to DTC Participants, Indirect Participants and persons holding interests through DTC Participants and Indirect Participants. Ownership of beneficial interests in Shares (owners of such beneficial interests are referred to herein as "Beneficial Owners") is shown on, and the transfer of ownership is effected only through, records maintained by DTC (with respect to DTC Participants) and on the records of DTC Participants (with respect to Indirect Participants and Beneficial Owners that are not DTC Participants). Beneficial Owners will receive from or through the DTC Participant a written confirmation relating to their purchase and sale of Shares.

Conveyance of all notices, statements and other communications to Beneficial Owners is effected as follows. Pursuant to the Depositary Agreement between the Trust and DTC, DTC is required to make available to the Trust upon request and for a fee to be charged to the Trust a listing of the Shares of the Fund held by each DTC Participant. The Trust shall inquire of each such DTC Participant as to the number of Beneficial Owners holding Shares, directly or indirectly, through such DTC Participant. The Trust shall provide each such DTC Participant with copies of such notice, statement or other communication, in such form, number and at such place as such DTC Participant may reasonably request, in order that such notice, statement or communication may be transmitted by such DTC Participant, directly or indirectly, to such Beneficial Owners. In addition, the Trust shall pay to each such DTC Participant a fair and reasonable amount as reimbursement for the expenses attendant to such transmittal, all subject to applicable statutory and regulatory requirements.

Fund distributions shall be made to DTC or its nominee, Cede & Co., as the registered holder of all Fund Shares. DTC or its nominee, upon receipt of any such distributions, shall immediately credit DTC Participants' accounts with payments in amounts proportionate to their respective beneficial interests in Shares of the Fund as shown on the records of DTC or its nominee. Payments by DTC Participants to Indirect Participants and Beneficial Owners of Shares held through such DTC Participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in a "street name," and will be the responsibility of such DTC Participants.


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The Trust has no responsibility or liability for any aspect of the records relating to or notices to Beneficial Owners, or payments made on account of beneficial ownership interests in such Shares, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests, or for any other aspect of the relationship between DTC and the DTC Participants or the relationship between such DTC Participants and the Indirect Participants and Beneficial Owners owning through such DTC Participants.

DTC may decide to discontinue providing its service with respect to Shares at any time by giving reasonable notice to the Trust and discharging its responsibilities with respect thereto under applicable law. Under such circumstances, the Trust shall take action to find a replacement for DTC to perform its functions at a comparable cost.

Proxy Voting. The Board of Trustees of the Trust has delegated responsibility for decisions regarding proxy voting for securities held by the Fund to the Adviser. The Adviser will vote such proxies in accordance with its proxy policies and procedures, which are included in Appendix A to this Statement of Additional Information. The Board of Trustees will periodically review the Fund's proxy voting record.

The Trust is required to disclose annually the Fund's complete proxy voting record on Form N-PX covering the period July 1 through June 30 and file it with the SEC no later than August 31. Form N-PX for the Fund also will be available at no charge upon request by calling 800.983.0903 or by writing to PowerShares India Exchange-Traded Fund Trust at 301 West Roosevelt Road, Wheaton, Illinois 60187. The Fund's Form N-PX will also be available on the SEC's website at www.sec.gov.

Quarterly Portfolio Schedule. The Trust is required to disclose, after its first and third fiscal quarters, the complete schedule of the Fund's portfolio holdings with the SEC on Form N-Q. The Trust will also disclose a complete schedule of the Fund's portfolio holdings with the SEC on Form N-CSR after its second and fourth quarters. Form N-Q for the Fund will be available on the SEC's website at http://www.sec.gov. The Fund's Form N-Q, when available, may also be reviewed and copied at the SEC's Public Reference Room in Washington, D.C. and information on the operation of the Public Reference Room may be obtained by calling 202.942.8090. The Fund's Form N-Q and Form N-CSR will be available without charge, upon request, by calling 630.933.9600 or 800.983.0903 or by writing to PowerShares India Exchange-Traded Fund Trust at 301 West Roosevelt Road, Wheaton, Illinois 60187.

Portfolio Holdings Policy. The Trust has adopted a policy regarding the disclosure of information about the Trust's portfolio holdings. The Board of Trustees of the Trust must approve all material amendments to this policy.

The Fund's portfolio holdings are publicly disseminated each day the Fund is open for business through financial reporting and news services, including publicly accessible Internet web sites. In addition, a basket composition file, which includes the security names and share quantities to deliver in exchange for Fund shares, together with estimates and actual cash components, is publicly disseminated daily prior to the opening of the NYSE Arca via the National Securities Clearing Corporation ("NSCC"). The basket represents one Creation Unit of the Fund. The Trust, the Adviser and the NYSE Arca will not disseminate non-public information concerning the Trust.

Codes of Ethics. Pursuant to Rule 17j-1 under the 1940 Act, the Board of Trustees has adopted a Code of Ethics for the Trust and approved Codes of Ethics adopted by the Adviser and the Distributor (collectively the "Codes"). The Codes are intended to ensure that the interests of shareholders and other clients are placed ahead of any personal interest, that no undue personal benefit is obtained from the person's employment activities and that actual and potential conflicts of interest are avoided.

The Codes apply to the personal investing activities of Trustees and officers of the Trust, the Adviser and the Distributor ("Access Persons"). Rule 17j-1 and the Codes are designed to prevent unlawful practices in connection with the purchase or sale of securities by Access Persons. Under the Codes, Access Persons are permitted to engage in personal securities transactions, but are required to report their personal securities transactions for monitoring purposes. The Codes permit personnel subject to the Codes to invest in securities subject to certain limitations, including securities that may be purchased or held by the Fund. In addition, certain Access Persons are required to obtain approval before investing in initial public offerings or private placements. The Codes are on file with the SEC, and are available to the public.


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CREATION AND REDEMPTION OF CREATION UNIT AGGREGATIONS

Creation. The Trust issues and sells Shares of the Fund only in Creation Unit Aggregations on a continuous basis through the Distributor, without a sales load, at their NAVs next determined after receipt, on any Business Day (as defined below), of an order in proper form.

Creation Units of the Fund generally will be sold for cash only, calculated based on the net asset value per share multiplied by the number of Shares representing a Creation Unit ("Deposit Cash"), plus a partially fixed and partially variable transaction fee as discussed below. The Fund also reserves the right to permit or require Creation Units to be issued in-kind. If in-kind creations are permitted or required, an investor must deposit a designated portfolio of equity securities (the "Deposit Securities") per each Creation Unit Aggregation constituting a substantial replication of the securities included in the Underlying Index ("Fund Securities") and an amount of cash (the "Cash Component"). Together, the Deposit Securities and the Cash Component constitute the "Fund Deposit," which represents the minimum initial and subsequent investment amount for a Creation Unit Aggregation of the Fund. If in-kind Creations are permitted or required, the Adviser expects that the Deposit Securities should correspond pro rata, to the extent practicable to the securities held by the Fund.

The Cash Component represents the difference between the NAV of a Creation Unit as the market value of the Deposit Cash or Deposit Securities, as applicable. If the Cash Component is a positive number (i.e., the NAV per Creation Unit Aggregation exceeds the Deposit Amount), the creator will deliver the Cash Component. If the Cash Component is a negative number (i.e., the NAV per Creation Unit Aggregation is less than the Deposit Amount), the creator will receive the Cash Component.

If the Fund were to permit or require Creation Units to be issued in-kind, the Custodian, through the NSCC (discussed below), will make available on each Business Day, prior to the opening of business on the NYSE Arca (currently 9:30 a.m., Eastern time), the list of the names and the required number of shares of each Deposit Security to be included in the current Fund Deposit (based on information at the end of the previous Business Day) for the Fund. The Deposit Securities and the Cash Component would constitute the Fund Deposit, which represents the minimum initial and subsequent investment amount for a Creation Unit.

Such Fund Deposit would be applicable, subject to any adjustments as described below, in order to effect creations of Creation Unit Aggregations of the Fund until such time as the next announced composition of the Deposit Securities is made available.

If applicable, the identity and number of shares of the Deposit Securities required for the Fund Deposit for the Fund changes as rebalancing adjustments and corporate action events are reflected within the Fund from time to time by the Adviser, with a view to the investment objective of the Fund. The composition of the Deposit Securities may also change in response to adjustments to the weighting or composition of the securities of the Underlying Index. In addition, the Trust reserves the right to permit or require the substitution of an amount of cash—i.e., a "cash in lieu" amount—to be added to the Cash Component to replace any Deposit Security that may not be available in sufficient quantity for delivery or which might not be eligible for trading by an Authorized Participant (as defined below) or the investor for which it is acting or other relevant reason. The adjustments described above will reflect changes known to the Adviser on the date of announcement to be in effect by the time of delivery of the Fund Deposit, in the composition of the Underlying Index or resulting from certain corporate actions.

If the Fund were to permit or require Creation Units to be issued in-kind, in addition to the list of names and numbers of securities constituting the current Deposit Securities of a Fund Deposit, the Custodian, through the NSCC, would make available on each Business Day, the estimated Cash Component, effective through and including the previous Business Day, per outstanding Creation Unit Aggregation of the Fund.

Procedures for Creation of Creation Unit Aggregations. To be eligible to place orders with the Distributor and to create a Creation Unit Aggregation of the Fund, an entity must be (i) a "Participating Party," i.e., a broker dealer or other participant in the clearing process through the Continuous Net Settlement System of the NSCC (the "Clearing Process"), a clearing agency that is registered with the SEC; or (ii) a DTC Participant (see the Book Entry Only System section), and, in each case, must have executed an agreement with the Distributor and


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Transfer Agent, with respect to creations and redemptions of Creation Unit Aggregations ("Participant Agreement") (discussed below). A Participating Party and DTC Participant are collectively referred to as an "Authorized Participant." Investors should contact the Distributor for the names of Authorized Participants that have signed a Participant Agreement. All Fund Shares, however created, will be entered on the records of DTC in the name of Cede & Co. for the account of a DTC Participant.

All orders to create Creation Unit Aggregations must be received by the Distributor no later than the closing time of the regular trading session on the NYSE Arca ("Closing Time") (ordinarily 4:00 p.m., Eastern time) in each case on the date such order is placed in order for creation of Creation Unit Aggregations to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form. If in-kind creations are permitted or required by the Fund, in the case of custom orders, the order must be received by the Distributor no later than 3:00 p.m. Eastern time on the trade date. A custom order may be placed by an Authorized Participant in the event that the Trust permits or requires the substitution of an amount of cash to be added to the Cash Component to replace any Deposit Security which may not be available in sufficient quantity for delivery or which may not be eligible for trading by such Authorized Participant or the investor for which it is acting or other relevant reason. The date on which an order to create Creation Unit Aggregations (or an order to redeem Creation Unit Aggregations, as discussed below) is placed is referred to as the "Transmittal Date." Orders must be transmitted by an Authorized Participant by telephone or other transmission method acceptable to the Distributor pursuant to procedures set forth in the Participant Agreement, as described below. Severe economic or market disruptions or changes, or telephone or other communication failure may impede the ability to reach the Distributor or an Authorized Participant.

All orders from investors who are not Authorized Participants to create Creation Unit Aggregations shall be placed with an Authorized Participant, as applicable, in the form required by such Authorized Participant. In addition, the Authorized Participant may request the investor to make certain representations or enter into agreements with respect to the order, e.g., to provide for payments of cash, when required. Investors should be aware that their particular broker may not have executed a Participant Agreement and that, therefore, orders to create Creation Unit Aggregations of the Fund have to be placed by the investor's broker through an Authorized Participant that has executed a Participant Agreement. In such cases there may be additional charges to such investor. At any given time, there may be only a limited number of broker dealers that have executed a Participant Agreement.

Placement of Creation Orders. A standard creation order must be placed by 4:00 p.m., Eastern time, for purchases of Shares. If in-kind creations are permitted or required by the Fund, in the case of custom orders, the order must be received by the Distributor no later than 3:00 p.m., Eastern time. The Distributor will inform the Transfer Agent, the Adviser and the Custodian upon receipt of a creation order. The Custodian will then provide such information to the appropriate sub-custodian.

The Custodian shall cause the sub-custodian for the Fund to maintain an account into which the Authorized Participant shall deliver the Deposit Cash, on behalf of itself or the party on whose behalf it is acting, the (or the securities included in the Fund Deposit, in the case of a permitted or required purchase), with any appropriate adjustments as advised by the Trust. If in-kind creations are permitted or required by the Fund, Deposit Securities must be delivered to an account maintained at the applicable local sub-custodian(s). Orders to purchase Creation Unit Aggregations must be received by the Distributor from an Authorized Participant on its behalf or another investor's behalf by the closing time of the regular trading session on the NYSE Arca on the relevant Business Day. However, when a relevant local market is closed due to local market holidays, the local market settlement process will not commence until the end of the local holiday period. Settlement must occur by 2:00 p.m., Eastern time, on the contractual settlement date.

If the Fund were to permit or require Creation Units to be issued in-kind, the Authorized Participant must also make available no later than 2:00 p.m., Eastern time, on the contractual settlement date, by means approved by the Trust, immediately available or same day funds sufficient to the Trust to pay the Cash Component next determined after acceptance of the purchase order, together with the applicable purchase transaction fee. Any excess funds will be returned following settlement of the issue of the Creation Unit Aggregation.


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In accordance with the Fund's Participant Agreement, if in-kind creations are permitted or required by the Fund, Creation Unit Aggregations will be issued to an Authorized Participant, notwithstanding the fact that the corresponding Fund Deposits have not been received in part or in whole, in reliance on the undertaking of the Authorized Participant to deliver the missing Deposit Securities as soon as possible, which undertaking shall be secured by the Authorized Participant's delivery and maintenance of collateral consisting of cash in the form of U.S. dollars in immediately available funds having a value (marked-to-market daily) at least equal to 115%, which the Adviser may change from time to time of the value of the missing Deposit Securities. Such cash collateral must be delivered no later than 2:00 p.m., Eastern time, on the contractual settlement date. The Participant Agreement will allow the Fund to purchase the missing Deposit Securities at any time and will subject the Authorized Participant to liability for any shortfall between the cost to the Trust of purchasing such securities and the value of the collateral.

Acceptance of Orders for Creation Unit Aggregations. The Trust reserves the absolute right to reject a creation order transmitted to it by the Distributor in respect of the Fund if: (i) the order is not in proper form; (ii) the investor(s), upon obtaining the Fund Shares ordered, would own 80% or more of the currently outstanding shares of the Fund; (iii) the Deposit Cash or Fund Deposits delivered are not as disseminated for that date by the Custodian, as described above; (iv) acceptance of the Deposit Cash or Fund Deposits would have certain adverse tax consequences to the Fund; (v) acceptance of the Deposit Cash or Fund Deposits would, in the opinion of counsel, be unlawful; (vi) acceptance of the Deposit Cash or Fund Deposits would otherwise, in the discretion of the Trust or the Adviser, have an adverse effect on the Trust or the rights of beneficial owners; or (vii) in the event that circumstances outside the control of the Trust, the Custodian, the Distributor and the Adviser make it for all practical purposes impossible to process creation orders. Examples of such circumstances include acts of God; public service or utility problems such as fires, floods, extreme weather conditions and power outages resulting in telephone, telecopy and computer failures; market conditions or activities causing trading halts; systems failures involving computer or other information systems affecting the Trust, the Adviser, the Distributor, DTC, NSCC, the Custodian or sub-custodian or any other participant in the creation process, and similar extraordinary events. The Distributor shall notify a prospective creator of a Creation Unit and/or the Authorized Participant acting on behalf of such prospective creator of its rejection of the order of such person. The Trust, the Custodian, any sub-custodian and the Distributor are under no duty, however, to give notification of any defects or irregularities in the delivery of Fund Deposits nor shall any of them incur any liability for the failure to give any such notification.

All questions as to the number of shares of each security in the Deposit Securities and the validity, form, eligibility, and acceptance for deposit of any securities to be delivered shall be determined by the Trust, and the Trust's determination shall be final and binding.

Creation Transaction Fee. Investors will be required to pay a partially fixed and partially variable creation transaction fee, described below, payable to BBH regardless of the number of creations made each day. If the Fund were to permit or require Creation Units to be issued in-kind, investors will be responsible for the costs of transferring the securities constituting the Deposit Securities to the account of the Trust.

The fixed Creation/Redemption Transaction Fee for the PowerShares India Portfolio of $2,500 (regardless of the number of Creation Units involved) and a variable fee equal to 0.325% of the value of each Creation Unit is applicable to each Creation/Redemption Transaction. Subject to the approval of the Board of Trustees, the Adviser may adjust the transaction fees in order to protect the Fund's ongoing shareholders. In addition, from time to time, the Adviser may reimburse APs for all or a portion of Creation Transaction or Redemption Transaction Fees.

Redemption of Fund Shares in Creation Units Aggregations. Creation Units of the Fund generally will be redeemed for cash only. Fund Shares may be redeemed only in Creation Unit Aggregations at their NAV next determined after receipt of a redemption request in proper form by the Fund through the Transfer Agent and only on a Business Day. The Fund will not redeem Shares in amounts less than Creation Unit Aggregations. Beneficial owners must accumulate enough Shares in the secondary market to constitute a Creation Unit Aggregation in order to have such Shares redeemed by the Trust. There can be no assurance, however, that there will be sufficient liquidity in the public trading market at any time to permit assembly of a Creation Unit Aggregation. Investors


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should expect to incur brokerage and other costs in connection with assembling a sufficient number of Fund Shares to constitute a redeemable Creation Unit Aggregation.

If the Fund were to permit or require Creation Units to be redeemed in-kind, the Custodian, through the NSCC, will make available prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern time) on each Business Day, the identity of the Fund Securities that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form (as described below) on that day. Fund Securities received on redemption may not be identical to Deposit Securities that are applicable to creations of Creation Unit Aggregations.

If the Fund were to permit or require Creation Units to be redeemed in-kind, the redemption proceeds for a Creation Unit Aggregation generally will consist of Fund Securities—as announced on the Business Day of the request for redemption received in proper form—plus or minus cash in an amount equal to the difference between the NAV of the Fund Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Fund Securities (the "Cash Redemption Amount"), less a redemption transaction fee as listed above. In the event that the Fund Securities have a value greater than the NAV of the Fund Shares, a compensating cash payment equal to the difference is required to be made by or through an Authorized Participant by the redeeming shareholder.

The right of redemption may be suspended or the date of payment postponed (i) for any period during which the NYSE Arca is closed (other than customary weekend and holiday closings); (ii) for any period during which trading on the NYSE Arca is suspended or restricted; (iii) for any period during which an emergency exists as a result of which disposal of the Shares of the Fund or determination of the Fund's NAV is not reasonably practicable; or (iv) in such other circumstances as is permitted by the SEC.

Redemption Transaction Fee. A fixed and variable redemption transaction fee is imposed to offset transfer and other transaction costs that may be incurred by the Fund. If the Fund were to permit or require Creation Units to be issued in-kind, investors will also bear the costs of transferring the Fund Securities from the Trust to their account or on their order. The redemption transaction fees for the Fund are the same as the creation fees set forth above.

Placement of Redemption Orders. A standard order for redemption must be received by 4:00 p.m., Eastern time, for redemptions of Shares. If in-kind Redemptions are permitted or required, in the case of custom redemptions, the order must be received by the Distributor no later than 3:00 p.m., Eastern time. Arrangements satisfactory to the Trust must be in place for the Participating Party to transfer the Creation Units through DTC on or before the settlement date. Redemptions of Shares for Fund Securities will be subject to compliance with applicable U.S. federal and state securities laws.

The delivery of redemption cash to redeeming investors generally will be made within four Business Days. However, due to the schedule of holidays in certain countries, the delivery of redemption proceeds may take longer than four Business Days after the day on which the redemption request is received in proper form. In such cases, the local market settlement procedures will not commence until the end of the local holiday periods. See "Regular Holidays" for a list of the local holidays in India.

A redeeming Beneficial Owner, or Authorized Participant action on behalf of such Beneficial Owner, when taking delivery of shares of Fund Securities upon redemption of shares of the Fund must maintain appropriate security arrangements with a qualified broker-dealer, bank or other custody provider in each jurisdiction in which any of the Fund Securities are customarily traded, to which account the Fund Securities will be delivered.

In accordance with the relevant Authorized Participant's agreement, in the event that the Authorized Participant has submitted a redemption request in proper form but is unable to transfer all or part of the Creation Unit Aggregation to be redeemed to the Fund's Transfer Agent, the Distributor will nonetheless accept the redemption request in reliance on the undertaking by the Authorized Participant to deliver the missing shares as soon as possible. Such undertaking shall be secured by the Authorized Participant to deliver the missing shares as soon as possible. Such understanding shall be secured by the Authorized Participant's delivery and maintenance of collateral consisting of cash having a value (marked-to-market daily) at least equal to 115% of the value of the missing shares, which the Investment Adviser may change from time to time.


24



The current procedures for collateralization of missing shares require, among other things, that any cash collateral shall be in the form of U.S. dollars in immediately-available funds and shall be held by the Custodian and marked-to-market daily, and that the fees of the Custodian and any relevant sub-custodians in respect of the delivery, maintenance and redelivery of the cash collateral shall be payable by the Authorized Participant. The Authorized Participant's agreement will permit the Trust, on behalf of the relevant Fund, to purchase the missing shares or, if in-kind redemptions are permitted or required, acquire the Deposit Securities and the Cash Component underlying such shares at any time and will subject the Authorized Participant to liability for any shortfall between the cost to the Trust of purchasing such shares, Deposit Securities or Cash Component and the value of the collateral.

The calculation of the value of the Fund Securities and/or the Cash Redemption Amount to be delivered/received upon redemption will be made by the Custodian according to the procedures set forth under Determination of NAV computed on the Business Day on which a redemption order is deemed received by the Trust. Therefore, if a redemption order in proper form is submitted to the Transfer Agent by a DTC Participant not later than Closing Time on the Transmittal Date, and the requisite number of Shares of the Fund are delivered to the Custodian prior to the DTC Cut-Off-Time, then the value of the Fund Securities and the Cash Redemption Amount to be delivered/received will be determined by the Custodian on such Transmittal Date. If, however, a redemption order is submitted to the Custodian by a DTC Participant not later than the Closing Time on the Transmittal Date, but either (i) the requisite number of Shares of the relevant Fund are not delivered by the DTC Cut-Off-Time, as described above, on the Transmittal Date, or (ii) the redemption order is not submitted in proper form, then the redemption order will not be deemed received as of the Transmittal Date. In such case, the value of the Fund Securities and the Cash Redemption Amount to be delivered/received will be computed on the Business Day that the order is deemed received by the Trust, i.e., the Business Day on which the Fund Shares of the relevant Fund are delivered through DTC to the Custodian by the DTC Cut-Off-Time on such Business Day pursuant to a properly submitted redemption order.

Investors will receive a cash payment equal to the NAV of its Fund Shares based on the NAV of Shares of the relevant Fund next determined after the redemption request is received in proper form (minus a redemption transaction fee to offset the Fund's brokerage and other transaction costs associated with the disposition of Fund Securities). If in-kind redemptions are permitted or required, the Fund may, in its sole discretion, upon request of a shareholder, provide such redeemer a portfolio of securities that differs from the exact composition of the Fund Securities, or cash-in-lieu of some securities added to the Cash Component, but in no event will the total value of the securities delivered and the cash transmitted differ from the NAV. Redemptions of Fund Shares for Fund Securities will be subject to compliance with applicable federal and state securities laws and the Fund (whether or not it otherwise permits cash redemptions) reserves the right to redeem Creation Unit Aggregations for cash to the extent that the Trust could not lawfully deliver specific Fund Securities upon redemptions or could not do so without first registering the Fund Securities under such laws. An Authorized Participant or an investor for which it is acting subject to a legal restriction with respect to a particular security included in the Fund Securities applicable to the redemption of a Creation Unit Aggregation may be paid an equivalent amount of cash. The Authorized Participant may request the redeeming Beneficial Owner of the Fund Shares to complete an order form or to enter into agreements with respect to such matters as compensating cash payment, beneficial ownership of shares or delivery instructions.

Regular Holidays. The Fund generally intends to effect deliveries of Creation Units on a basis of "T" plus one Business Day and redemption cash on a basis of "T" plus four Business Days (i.e., days on which the national securities exchange is open). The Fund may effect deliveries of Creation Units and redemption cash on a basis other than T plus one or T plus four, as the case may be, in order to accommodate local holiday schedules, to account for different treatment among foreign and U.S. markets of dividend record dates and ex-dividend dates or under certain other circumstances. If in-kind creations are permitted or required by the Fund, the ability of the Trust to effect in-kind creations and redemptions within one Business Day and four Business Days, respectively, of receipt of an order in good form is subject, among other things, to the condition that, within the time period from the date of the order to the date of delivery of the securities, there are no days that are holidays in the applicable foreign market. For every occurrence of one or more intervening holidays in the applicable foreign market that are not holidays observed in the U.S. equity market, the redemption settlement cycle will be extended


25



by the number of such intervening holidays. In addition to holidays, other unforeseeable closings in a foreign market due to emergencies may also prevent the Trust from delivering securities within normal settlement period.

If in-kind creations are permitted or required by the Fund, the securities delivery cycles currently practicable for transferring portfolio securities to redeeming investors, coupled with foreign market holiday schedules, may require a delivery process longer than seven calendar days for the Fund, in certain circumstances. The holidays applicable to the Fund during such periods are listed below. Although certain holidays may occur on different dates in subsequent years, the number of days required to deliver redemption proceeds in any given year is not expected to exceed the maximum number of days listed below for the Fund. The proclamation of new holidays, the treatment by market participants of certain days as "informal holidays" (e.g., days on which no or limited securities transactions occur, as a result of substantially shortened trading hours), the elimination of existing holidays or changes in local securities delivery practices, could affect the information set forth herein at some time in the future.

The dates in calendar year 2008 in which the regular holidays affecting the Indian and Mauritian markets are as follows:

HOLIDAYS IN INDIA

03 /06/08   04 /18/08   09 /03/08   10 /30/08  
03 /20/08   05 /01/08   10 /02/08   11 /13/08  
03 /21/08   05 /19/08   10 /09/08   12 /09/08  
04 /14/08   08 /15/08   10 /28/08   12 /25/08  

 

HOLIDAYS IN MAURITIUS

02/01/2008   03/05/2008   04/07/2008   08/15/2008  
02/07/2008   03/12/2008   05/01/2008   09/04/2008  

 

TAXES

The Fund intends to qualify for and to elect to be treated as a regulated investment company (a "RIC") under Subchapter M of the Internal Revenue Code. To qualify for treatment as a RIC, a company must annually distribute at least 90% of its net investment company taxable income (which includes dividends, interest and net capital gains) and meet several other requirements relating to the nature of its income and the diversification of its assets. The Fund intends to make an election to cause the Subsidiary to be treated as a disregarded entity or otherwise as a "pass-through" entity for U.S. federal tax purposes.

The Fund is treated as a separate corporation for federal income tax purposes. The Fund, therefore, is considered to be a separate entity in determining its treatment under the rules for RICs described herein and in the Prospectus. Losses in one Fund do not offset gains in another fund of the Trust and the requirements (other than certain organizational requirements) for qualifying for RIC status are determined at the Fund level rather than the Trust level.

The Fund will be subject to a 4% excise tax on certain undistributed income if it does not distribute to its shareholders in each calendar year at least 98% of its ordinary income for the calendar year plus 98% of its net capital gains for twelve months ended October 31 of such year. The Fund intends to declare and distribute dividends and distributions in the amounts and at the times necessary to avoid the application of this 4% excise tax.

As a result of tax requirements, the Trust on behalf of the Fund has the right to reject an order to purchase Shares if the purchaser (or group of purchasers) would, upon obtaining the Shares so ordered, own 80% or more of the outstanding Shares of the Fund and if, pursuant to section 351 of the Internal Revenue Code, the Fund would have a basis in the Deposit Securities different from the market value of such securities on the date of deposit. The Trust also has the right to require information necessary to determine beneficial Share ownership for purposes of the 80% determination.

The Fund may make investments that are subject to special federal income tax rules, such as investments in structured notes, swaps, options, futures contracts and non-U.S. corporations classified as "passive foreign investment companies." Those special tax rules can, among other things, affect the timing of income or gain, the


26



treatment of income as capital or ordinary and the treatment of capital gain or loss as long-term or short-term. The application of these special rules would therefore also affect the character of distributions made by the Fund. The Fund may need to borrow money or dispose of some of its investments earlier than anticipated in order to meet their distribution requirements.

Distributions from a Fund's net investment income, including any net short-term capital gains, if any, and distributions of income from securities lending, are taxable as ordinary income. Distributions reinvested in additional Shares of a Fund through the means of a dividend reinvestment service will be taxable dividends to Shareholders acquiring such additional Shares to the same extent as if such dividends had been received in cash. Distributions of net long-term capital gains, if any, in excess of net short-term capital losses are taxable as long-term capital gains, regardless of how long Shareholders have held the Shares.

Long-term capital gains of noncorporate taxpayers generally are taxed at a maximum rate of 15% for taxable years beginning before January 1, 2011. In addition, for these tax years, some ordinary dividends declared and paid by the Fund to noncorporate shareholders may qualify for taxation at the lower reduced tax rates applicable to long-term capital gains, provided that holding period and other requirements are met by the Fund and the shareholder. Without future congressional action, the maximum rate of long-term capital gains will return to 20% in 2011, and all dividends will be taxed at ordinary income rates. The Fund will report to shareholders annually the amounts of dividends received from ordinary income, the amount of distributions received from capital gains and the portion of dividends which may qualify for the dividends received deduction. In addition, the Fund will report the amount of dividends to individual shareholders eligible for taxation at the lower reduced tax rates applicable to long-term capital gains.

If, for any calendar year, the total distributions made exceed the Trust's current and accumulated earnings and profit, the excess will, for U.S. federal income tax purposes, be treated as a tax free return of capital to each shareholder up to the amount of the shareholder's basis in his or her shares, and thereafter as gain from the sale of shares. The amount treated as a tax free return of capital will reduce the shareholder's adjusted basis in his or her shares, thereby increasing his or her potential gain or reducing his or her potential loss on the subsequent sale of his or her shares.

The sale, exchange or redemption of Shares may give rise to a gain or loss. In general, any gain or loss realized upon a taxable disposition of Shares will be treated as long-term capital gain or loss if the Shares have been held for more than one year. Otherwise, the gain or loss on the taxable disposition of Shares will be treated as short-term capital gain or loss. A loss realized on a sale or exchange of Shares of the Fund may be disallowed if other substantially identical Shares are acquired (whether through the automatic reinvestment of dividends or otherwise) within a sixty-one (61) day period beginning thirty (30) days before and ending thirty (30) days after the date that the Shares are disposed of. In such a case, the basis of the Shares acquired must be adjusted to reflect the disallowed loss. Any loss upon the sale or exchange of Shares held for six (6) months or less is treated as long-term capital loss to the extent of any capital gain dividends received by the shareholders. Distribution of ordinary income and capital gains may also be subject to state and local taxes.

Distributions of ordinary income paid to shareholders who are nonresident aliens or foreign entities that are not effectively connected to the conduct of a trade or business within the United States will generally be subject to a 30% United States withholding tax unless a reduced rate of withholding or a withholding exemption is provided under applicable treaty law. However, shareholders who are nonresident aliens or foreign entities will generally not be subject to United States withholding or income tax on gains realized on the sale of Shares or on dividends from capital gains unless (i) such gain or capital gain dividend is effectively connected with the conduct of a trade or business within the United States, or (ii) in the case of an individual shareholder, the shareholder is present in the United States for a period or periods aggregating 183 days or more during the year of the sale or capital gain dividend and certain other conditions are met. Gains on the sale of Shares and dividends that are effectively connected with the conduct of a trade or business within the United States will generally be subject to United States federal net income taxation at regular income tax rates. Dividends paid by the Fund to shareholders who are nonresident aliens or foreign entities that are derived from short-term capital gains and qualifying net interest income (including income from original issue discount and market discount), and that are properly


27



designated by the Fund as "short-term capital gain dividends" or "interest-related dividends" will generally not be subject to United States withholding tax, provided that the income would not be subject to federal income tax if earned directly by the foreign shareholder. These provisions relating to distributions to shareholders who are nonresident aliens or foreign entities generally would apply to distributions with respect to taxable years of the Fund beginning before January 1, 2008. Nonresident shareholders are urged to consult their own tax advisors concerning the applicability of the United States withholding tax.

Some shareholders may be subject to a withholding tax on distributions of ordinary income, capital gains and any cash received on redemption of Creation Units ("backup withholding"). Generally, shareholders subject to backup withholding will be those for whom no certified taxpayer identification number is on file with the Fund or who, to the Fund's knowledge, have furnished an incorrect number. When establishing an account, an investor must certify under penalty of perjury that such number is correct and that such investor is not otherwise subject to backup withholding.

Dividends and interest received by the Fund may give rise to withholding and other taxes imposed by foreign countries. Tax conventions between certain countries and the United States may reduce or eliminate such taxes.

The Fund may be subject to certain taxes imposed by the foreign country or countries in which it invests with respect to dividends, capital gains and interest income. Under the Internal Revenue Code, if more than 50% of the value of the Fund's total assets at the close of any taxable year consists of stocks or securities of foreign corporations, the Fund may elect, for U.S. federal tax purposes, to treat any foreign country's income or withholding taxes paid by the Fund that can be treated as income taxes under U.S. income tax principles, as paid by its shareholders. The Fund expects to qualify for and may make this election. For any year that the Fund makes such an election, each shareholder will be required to include in its income an amount equal to its allocable share of such taxes paid by the Fund to the foreign government and the shareholder will be entitled, subject to certain limitations, to either deduct its allocable share of such foreign income taxes in computing their taxable income or to use it as a foreign tax credit against U.S. income taxes, if any. Generally, foreign investors will be subject to an increased U.S. tax on their income resulting from the Fund's election to "pass-through" amounts of foreign taxes paid by the Fund, and will not be able to claim a credit or deduction with respect to the foreign taxes paid by the Fund treated as having been paid by them.

Each shareholder will be notified within 60 days after the close of the Fund's taxable year whether, pursuant to the election described above, any foreign taxes paid by the Fund will be treated as paid by its shareholders for that year and, if so, such notification will designate (i) such shareholder's portion of the foreign taxes paid to such country and (ii) the portion of the Fund's dividends and distributions that represents income derived from sources within such country. The amount of foreign taxes that may be credited against a shareholder's U.S. federal income tax liability generally will be limited, however, to an amount equal to the shareholder's U.S. federal income tax rate multiplied by its foreign source taxable income. For this purpose, the Fund's gains and losses from the sale of securities, and currency gains and losses, will generally be treated as derived from U.S. sources. In addition, this limitation must be applied separately to certain categories of foreign source income. As a consequence, certain shareholders may not be able to claim a foreign tax credit for the full amount of their proportionate share of foreign taxes paid by the Fund. A shareholder's ability to claim a credit for foreign taxes paid by the Fund may also be limited by applicable holding period requirements.

The foregoing discussion is a summary only and is not intended as a substitute for careful tax planning. Purchasers of Shares should consult their own tax advisors as to the tax consequences of investing in such Shares, including under federal, state, local and other tax laws. Finally, the foregoing discussion is based on applicable provisions of the Internal Revenue Code, regulations, judicial authority and administrative interpretations in effect on the date hereof. Changes in applicable authority could materially affect the conclusions discussed above, and such changes often occur.


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FEDERAL TAX TREATMENT OF FUTURES AND OPTIONS CONTRACTS

The Fund is required for federal income tax purposes to mark to market and recognize as income for each taxable year its net unrealized gains and losses on certain futures contracts as of the end of the year as well as those actually realized during the year. Gain or loss from futures and options contracts on broad-based indexes required to be marked to market will be 60% long-term and 40% short-term capital gain or loss. Application of this rule may alter the timing and character of distributions to shareholders. The Fund may be required to defer the recognition of losses on futures contracts, options contracts and swaps to the extent of any unrecognized gains on offsetting positions held by the Fund.

In order for the Fund to continue to qualify for federal income tax treatment as a RIC, at least 90% of its gross income for a taxable year must be derived from qualifying income, i.e., dividends, interest, income derived from loans or securities, gains from the sale of securities or of foreign currencies or other income derived with respect to the Fund's business of investing in securities (including net income derived from an interest in certain "qualified publicly traded partnerships"). It is anticipated that any net gain realized from the closing out of futures or options contracts will be considered gain from the sale of securities or derived with respect to the Fund's business of investing in securities and therefore will be qualifying income for purposes of the 90% gross income requirement.

The Fund distributes to shareholders at least annually any net capital gains which have been recognized for U.S. federal income tax purposes, including unrealized gains at the end of the Fund's fiscal year on futures or options transactions. Such distributions are combined with distributions of capital gains realized on the Fund's other investments and shareholders are advised on the nature of the distributions.

DETERMINATION OF NAV

BBH calculates the Fund's NAV at the close of regular trading (normally 4:00 p.m. New York time) every day the NYSE Arca is open. NAV is calculated by deducting all of the Fund's liabilities from the total value of its assets and dividing the result by the number of Shares outstanding, rounding to the nearest cent. All valuations are subject to review by the Trust's Board of Trustees or its delegate.

In determining NAV, expenses are accrued and applied daily and securities and other assets for which market quotations are available are valued at market value. Stocks and other equity securities are valued at the last sales price that day based on the official closing price of the exchange where the security is primarily traded. The NAV for the Fund will be calculated and disseminated daily.

The value of the Fund's portfolio securities is based on the securities' closing price on local markets when available. Securities included in the Underlying Index trade on the Bombay Stock Exchange or the National Stock Exchange. Due to the time difference between the U.S. and India, securities on these exchanges will not trade at times when Shares of the Fund will trade. If a security's closing price on local markets is not readily available or does not otherwise accurately reflect the fair value of the security, the security will be valued by another method that the Adviser believes will better reflect fair value in accordance with the Trust's valuation policies and procedures approved by the Board of Trustees. The Fund may use fair value pricing in a variety of circumstances, including but not limited to, situations when the value of a security in the Fund's portfolio has been materially affected by events occurring after the close of the market on which the security is principally traded (such as a corporate action or other news that may materially affect the price of a security) or trading in a security has been suspended or halted. In addition, the Fund currently expects that it will fair value foreign equity securities held by the Fund each day the Fund calculates its NAV. Accordingly, the Fund's NAV is expected to reflect certain portfolio securities' fair values rather than their market prices. Fair value pricing involves subjective judgments and it is possible that a fair value determination for a security is materially different than the value that could be realized upon the sale of the security. In addition, fair value pricing could result in a difference between the prices used to calculate the Fund's NAV and the prices used by the Fund's Underlying Index. This may adversely affect the Fund's ability to track its Underlying Index. With respect to the securities in the Underlying Index, the value of the Fund's portfolio securities will change at times when you will not be able to purchase or sell your Shares.


29



The NYSE Arca will disseminate every 15 seconds throughout the trading day through the facilities of the Consolidated Tape Association the approximate value of Shares of the Fund, an amount representing on a per share basis the sum of the current value of the Deposit Cash or Deposit Securities, as applicable, based on their then current market price and the estimated Cash Component. As the respective international local markets close, the market value of the Deposit Cash or Deposit Securities, as applicable, will continue to be updated for foreign exchange rates for the remainder of the U.S. trading day at the prescribed 15 second interval. The value of the Underlying Index will not be calculated and disseminated intra day. The value and return of the Underlying Index is calculated once each trading day by the Index Provider based on prices received from the respective international local markets.

Because securities included in the Underlying Index are not traded while the Fund's NAV is calculated, changes in the value of the Fund's investments in Indian securities that are calculated and disseminated throughout the trading day will reflect changes in exchange rates between the Indian Rupee and the U.S. dollar and will not reflect changes in the market prices of such securities.

DIVIDENDS AND DISTRIBUTIONS

The following information supplements and should be read in conjunction with the section in the Prospectuses entitled "Dividends, Distributions and Taxes."

General Policies. Ordinarily, dividends from net investment income, if any, are declared and paid quarterly. Distributions of net realized securities gains, if any, generally are declared and paid once a year, but the Trust may make distributions on a more frequent basis. The Trust reserves the right to declare special distributions if, in its reasonable discretion, such action is necessary or advisable to preserve the status of the Fund as a RIC or to avoid imposition of income or excise taxes on undistributed income.

Dividends and other distributions on Fund Shares are distributed, as described below, on a pro rata basis to Beneficial Owners of the Shares. Dividend payments are made through DTC Participants and Indirect Participants to Beneficial Owners then of record with proceeds received from the Fund.

Dividend Reinvestment Service. No reinvestment service is provided by the Trust. Broker-dealers may make available the DTC book-entry Dividend Reinvestment Service for use by Beneficial Owners of the Fund for reinvestment of their dividend distributions. Beneficial Owners should contact their broker to determine the availability and costs of the service and the details of participation therein. Brokers may require Beneficial Owners to adhere to specific procedures and timetables.

MISCELLANEOUS INFORMATION

Counsel. Clifford Chance US LLP, 31 West 52nd Street, New York, New York 10019, is counsel to the Trust.

Independent Registered Public Accounting Firm. PricewaterhouseCoopers LLP, 300 Madison Avenue, New York, New York 10017, serves as the Fund's independent registered public accounting firm. They audit the Fund's financial statements and perform other related audit services.


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FINANCIAL STATEMENTS

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Trustees and Shareholders of
PowerShares India Exchange-Traded Fund Trust:

In our opinion, the accompanying statement of assets and liabilities presents fairly, in all material respects, the financial position of the PowerShares India Portfolio (the "Fund") at February 20, 2008, in conformity with accounting principles generally accepted in the United States of America. This financial statement is the responsibility of the Fund's management; our responsibility is to express an opinion on this financial statement based on our audit. We conducted our audit of this financial statement in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statement is free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statement, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

/s/ PricewaterhouseCoopers LLP

PricewaterhouseCoopers LLP
New York, New York
February 21, 2008


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POWERSHARES INDIA EXCHANGE-TRADED TRUST
STATEMENT OF ASSETS AND LIABILITIES

February 20, 2008

    PowerShares
India
Portfolio
 
AS SETS:  
Cash:   $ 100,000    
Net Assets:   $ 100,000    
COMPOSITION OF NET ASSETS:  
Paid in Capital:   $ 100,000    
Net Assets:   $ 100,000    
Net asset value (offering price and redemption price per share)   $ 25.00    
Shares issued and outstanding     4,000    

 

See Notes to Financial Statements.
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POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST
NOTES TO FINANCIAL STATEMENTS

February 20, 2008

NOTE 1. ORGANIZATION

PowerShares India Exchange-Traded Fund Trust (the "Trust") was organized as a Massachusetts business trust on August 3, 2007 and is authorized to have multiple series or portfolios. The Trust is an open-end management investment company, registered under the Investment Company Act of 1940, as amended (the "1940 Act"). The Trust currently consists of one portfolio:

PowerShares India Portfolio (the "Fund")

The Fund is "non-diversified" and, as such, the Fund's investments are not required to meet certain diversification requirements under the 1940 Act. The shares of the Fund are referred to herein as "Shares" or "Fund Shares." The Fund is managed by PowerShares Capital Management LLC (the "Adviser").

The Fund offers and issues Shares at net asset value ("NAV") only in aggregations of a specified number of Shares (each a "Creation Unit" or a "Creation Unit Aggregation"), for cash only, calculated based on the net asset value per share multiplied by the number of Shares representing a Creation Unit ("Deposit Cash"), plus a partially fixed and partially variable transaction fee. The Fund also reserves the right to permit or require Creation Units to be issued in-kind. If in-kind creations are permitted or required, an investor will be required to deposit a designated portfolio of equity securities constituting a substantial replication, or a representation, of the securities included in the Indus India Index ("Deposit Securities") and generally make a small cash payment referred to as the "Cash Component." The Fund anticipates that its Shares will be listed on the New York Stock Exchange Arca, Inc.

The investment objective of the Fund is to seek investment results that correspond generally to the price and yield (before the Fund's fees and expenses) of the Indus India Index.

NOTE 2. ACCOUNTING POLICIES

The preparation of the financial statements in accordance with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts and disclosures in the financial statements. Actual results could differ from these estimates.

NOTE 3. INVESTMENT ADVISORY AGREEMENT AND OTHER AGREEMENTS

Pursuant to an Investment Advisory Agreement (the "Advisory Agreement") between PowerShares Capital Management LLC ("the Adviser") and the Trust, the Adviser has overall responsibility as the Fund's investment adviser for the selection and ongoing monitoring of the Fund's investments, managing the Fund's business affairs and providing certain clerical, bookkeeping and other administrative services. As compensation for its services, the Fund has agreed to pay the Adviser an annual unitary management fee equal to 0.78% of its average daily net assets.

The management fee is a unitary fee by which the Adviser has agreed to pay substantially all expenses of the Fund, including the cost of transfer agency, custody, fund administration, legal, audit and other services, except for distribution fees, brokerage expenses, taxes, interest and other extraordinary expenses. The Adviser has agreed to assume all organizational costs and offering costs on behalf of the Fund.

Brown Brothers Harriman is the administrator, custodian and fund accounting and transfer agent for each Fund.


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INDEX PROVIDER

Indus Advisors LLC is the Index Provider. Indus Advisors LLC is not affiliated with the Trust, the Advisor or the Distributor. The Advisor has entered into a license agreement with Indus Advisors LLC to use the Indus India Index.

The Fund is not sponsored, endorsed, sold or promoted Indus Advisors LLC and it does not make any representation regarding the advisability of investing in Shares of this Fund.

DISTRIBUTION PLAN

A I M Distributors, Inc. serves as the Distributor of Creation Units for the Fund on an agency basis. The Distributor does not maintain a secondary market in Shares. No distribution fees are currently paid by the Fund.

NOTE 4. FEDERAL INCOME TAXES

The Fund intends to comply with the provisions of the Internal Revenue Code applicable to regulated investment companies and will distribute all net investment income and net taxable capital gains to their shareholders. Therefore, no provision for Federal income taxes is required.

NOTE 5. CAPTIAL

The Fund will issue and redeem Shares at NAV only in large blocks of 100,000 Shares (each block of 100,000 Shares called a "Creation Unit") or multiples thereof. As a practical matter, only broker-dealers or large institutional investors with creation and redemption agreements and called Authorized Participants ("APs") can purchase or redeem these Creation Units. Purchasers of Creation Units at NAV must pay a standard Creation Transaction Fee of $2,500, plus a variable creation transaction fee of 0.325% of the value of each creation unit. An AP who holds Creation Units and wishes to redeem at NAV would also pay a standard Redemption Fee of $2,500, plus a variable transaction fee of 0.325% of the value of each redemption unit for each redemption transaction.


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APPENDIX A

POWERSHARES CAPITAL MANAGEMENT LLC

PROXY AND CORPORATE ACTION VOTING
POLICIES AND PROCEDURES

I.  POLICY

PowerShares Capital Management LLC (the "Adviser") may act as discretionary investment adviser for various clients, including clients governed by the Employee Retirement Income Security Act of 1974 ("ERISA") and registered open-end investment companies ("mutual funds"). The Adviser's authority to vote proxies or act with respect to other shareholder actions is established through the delegation of discretionary authority under our investment advisory contracts. Therefore, unless a client (including a "named fiduciary" under ERISA) specifically reserves the right, in writing, to vote its own proxies or to take shareholder action with respect to other corporate actions requiring shareholder actions, the Adviser will vote all proxies and act on all other actions in a timely manner as part of its full discretionary authority over client assets in accordance with these Policies and Procedures. Corporate actions may include, for example and without limitation, tender offers or exchanges, bankruptcy proceedings, and class actions.

When voting proxies or acting with respect to corporate actions for clients, the Adviser's utmost concern is that all decisions be made solely in the best interest of the client (and for ERISA accounts, plan beneficiaries and participants, in accordance with the letter and spirit of ERISA). Adviser will act in a prudent and diligent manner intended to enhance the economic value of the assets of the client's account.

II.  PURPOSE

The purpose of these Policies and Procedures is to memorialize the procedures and policies adopted by Adviser to enable it to comply with its fiduciary responsibilities to clients and the requirements of Rule 206(4)-6 under the Investment Advisers Act of 1940, as amended ("Advisers Act"). These Policies and Procedures also reflect the fiduciary standards and responsibilities set forth by the Department of Labor for ERISA accounts.

III.  PROCEDURES

John Southard is ultimately responsible for ensuring that all proxies received by the Adviser are voted in a timely manner and in a manner consistent with the Adviser's determination of the client's best interests. Although many proxy proposals can be voted in accordance with the Adviser's established guidelines (see Section V. below, "Guidelines"), the Adviser recognizes that some proposals require special consideration which may dictate that the Adviser makes an exception to the Guidelines.

John Southard is also responsible for ensuring that all corporate action notices or requests which require shareholder action received by Adviser are addressed in a timely manner and consistent action is taken across all similarly situated client accounts.

IV.  PROCEDURES FOR ADDRESSING CONFLICTS OF INTEREST

Examples of potential conflicts of interest include situations where the Adviser or an affiliate, or personnel of either entity:

—Manages a pension plan of a company whose management is soliciting proxies;

—Has a material business relationship with a proponent of a proxy proposal and this business relationship may influence how the proxy vote is cast;

—Has a business or personal relationship with participants in a proxy contest, corporate directors or candidates for directorships.


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Where a proxy proposal raises a material conflict between the Adviser's interests and a client's interest, including a mutual fund client, the Adviser will resolve such a conflict in the manner described below.

The Adviser shall review each proxy to assess the extent, if any, to which there may be a material conflict between the interests of the applicable client on the one hand and the Adviser and its affiliates, directors, officers, employees (and other similar persons) on the other hand (a "potential conflict"). The Adviser shall perform this assessment on a proposal-by-proposal basis, and a potential conflict with respect to one proposal in a proxy shall not indicate that a potential conflict exists with respect to any other proposal in such proxy. If the Adviser determines that a potential conflict may exist, it shall resolve any such conflict in a manner that is in the collective best interests of the applicable client and the Adviser's other clients (excluding any client that may have a potential conflict).

Without limiting the generality of the foregoing, the Adviser may resolve a potential conflict in any of the following manners: (i) If the proposal that gives rise to a potential conflict is specifically addressed in the Adviser's Proxy Voting Policies and Procedures, the Adviser may vote the proxy in accordance with the predetermined policies and guidelines set forth in such Proxy Voting Policies and Procedures; provided that such predetermined policies and guidelines involve little discretion on the part of the Adviser; (ii) the Adviser may disclose the potential conflict to the client and obtain the client's consent before directing the Adviser to vote in the manner approved by the client; (iii) the Adviser may engage an independent third-party to determine how the proxy should be voted; or (iv) the Adviser may establish an ethical wall or other informational barriers between the person(s) that are involved in the potential conflict and the person(s) making the voting decision in order to insulate the potential conflict from the decision maker. The Adviser shall use commercially reasonable efforts to determine whether a potential conflict may exist, and a potential conflict shall be deemed to exist if and only if one or more of the Adviser's senior account representatives actually knew or reasonably should have known of the potential conflict.

In certain circumstances, in accordance with a client's investment advisory contract (or other written directive) or where the Adviser has determined that it is in the client's best interest, the Adviser will not vote proxies received. The following are certain circumstances where the Adviser will limit its role in voting proxies:

1.   Client Maintains Proxy Voting Authority: Where client specifies in writing that it will maintain the authority to vote proxies itself or that it has delegated the right to vote proxies to a third party, the Adviser will not vote the securities and will direct the relevant custodian to send the proxy material directly to the client. If any proxy material is received by the Adviser, it will promptly be forwarded to the client or specified third party.

2.   Terminated Account: Once a client account has been terminated with the Adviser in accordance with its investment advisory agreement, the Adviser will not vote any proxies received after the termination. However, the client may specify in writing that proxies should be directed to the client (or a specified third party) for action.

3.   Limited Value: If the Adviser determines that the value of a client's economic interest or the value of the portfolio holding is indeterminable or insignificant, Adviser may abstain from voting a client's proxies. The Adviser also will not vote proxies received for securities that are no longer held by the client's account. In addition, the Adviser generally will not vote securities where the economic value of the securities in the client account is less than $500.

4.   Securities Lending Programs: When securities are out on loan, they are transferred into the borrower's name and are voted by the borrower, in its discretion. However, where the Adviser determines that a proxy vote (or other shareholder action) is materially important to the client's account, the Adviser may recall the security for purposes of voting.

5.   Unjustifiable Costs: In certain circumstances, after doing a cost-benefit analysis, the Adviser may abstain from voting where the cost of voting a client's proxy would exceed any anticipated benefits to the client of the proxy proposal.

V.  RECORD KEEPING

In accordance with Rule 204-2 under the Advisers Act, the Adviser will maintain for the time periods set forth in the Rule (i) these proxy voting procedures and policies, and all amendments thereto; (ii) all proxy statements


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received regarding client securities (provided however, that the Adviser may rely on the proxy statement filed on EDGAR as its records); (iii) a record of all votes cast on behalf of clients; (iv) records of all client requests for proxy voting information and a copy of any written response by the Adviser to any such client request; (v) any documents prepared by the Adviser that were material to making a decision how to vote or that memorialized the basis for the decision; and (vi) all records relating to requests made to clients regarding conflicts of interest in voting the proxy.

Adviser will describe in its Part II of Form ADV (or other brochure fulfilling the requirement of Rule 204-3) its proxy voting policies and procedures and will inform clients how they may obtain information on how the Adviser voted proxies with respect to the clients' portfolio securities. Clients may obtain information on how their securities were voted or a copy of the Adviser's Policies and Procedures by written request addressed to the Adviser. The Adviser will coordinate with all mutual fund clients to assist in the provision of all information required to be filed by such mutual funds on Form N-PX.

VI.  GUIDELINES

Each proxy issue will be considered individually. The following guidelines are a partial list to be used in voting proposals contained in the proxy statements, but will not be used as rigid rules.

A.  Oppose

The Adviser will generally vote against any management or shareholder proposal that potentially has the effect of restricting the ability of shareholders to realize the full potential value of their investment. Proposals in this category would include:

1.  Issues regarding the issuer's Board entrenchment and anti-takeover measures such as the following:

a.  Proposals to stagger board members' terms;

b.  Proposals to limit the ability of shareholders to call special meetings;

c.  Proposals to require super majority votes;

d.  Proposals requesting excessive increases in authorized common or preferred shares where management provides no explanation for the use or need of these additional shares;

e.  Proposals regarding "fair price" provisions;

f.  Proposals regarding "poison pill" provisions; and

g.  Permitting "green mail".

2.  Restrictions related to social, political or special interest issues that potentially may have a negative effect on the ability of shareholders to realize the full potential value of their investment, unless specific client guidelines supersede.

B.  Approve

When voting on common management sponsored initiatives, the Adviser generally votes in support of management. These issues include:

1.  Election of directors recommended by management, except if there is a proxy fight.

2.  Election of auditors recommended by management, unless seeking to replace if there exists a dispute over policies.

3.  Date and place of annual meeting.

4.  Limitation on charitable contributions or fees paid to lawyers.

5.  Ratification of directors' actions on routine matters since previous annual meeting.


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6.  Confidential voting is most often proposed by shareholders as a means of eliminating undue management pressure on shareholders regarding their vote on proxy issues.

The Adviser will generally approve these proposals as shareholders can later divulge their votes to management on a selective basis if a legitimate reason arises.

7.  Limiting directors' liability and allowing indemnification of directors and/or officers after reviewing the applicable laws and extent of protection requested.

8.  Eliminate preemptive rights. Preemptive rights give current shareholders the opportunity to maintain their current percentage ownership through any subsequent equity offerings. These provisions are no longer common in the U.S., and can restrict management's ability to raise new capital.

The Adviser generally approves the elimination of preemptive rights, but will oppose the elimination of limited preemptive rights, e.g., on proposed issues representing more than an acceptable level of total dilution.

9.  Employee Stock Purchase Plan

10.  Establish 401(k) Plan

C.  Case-by-Case

The Adviser will review each issue in this category on a case-by-case basis. These matters include:

1.  Director compensation.

2.  Eliminate director mandatory retirement policy.

3.  Rotate annual meeting location/date.

4.  Option and stock grants to management and directors.

5.  Proposals to reincorporate into another state.

D.  Special Policy with Respect to the PowerShares Listed Private Equity Portfolio, PowerShares International Listed Private Equity Portfolio, PowerShares Autonomic Growth NFA Global Asset Portfolio, the PowerShares Autonomic Balanced Growth NFA Global Asset Portfolio and the PowerShares Autonomic Balanced NFA Global Asset Portfolio

With respect to the PowerShares Listed Private Equity Portfolio, PowerShares International Listed Private Equity Portfolio, PowerShares Autonomic Growth NFA Global Asset Portfolio, the PowerShares Autonomic Balanced Growth NFA Global Asset Portfolio and the PowerShares Autonomic Balanced NFA Global Asset Portfolio, the Adviser will vote proxies in accordance with Section 12(d)(1)(F), which requires that the Adviser vote the shares in the portfolio of the PowerShares Listed Private Equity Portfolio, PowerShares International Listed Private Equity Portfolio, PowerShares Autonomic Growth NFA Global Asset Portfolio, the PowerShares Autonomic Balanced Growth NFA Global Asset Portfolio and the PowerShares Autonomic Balanced NFA Global Asset Portfolio in the same proportion as the vote of all other holders of such security.


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POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST

 

PART C. OTHER INFORMATION

 

(a)

Declaration of Trust of the Registrant dated August 3, 2007.*

 

 

(b)

By-laws of the Registrant.*

 

 

(d)

 

 

 

 

(1)                                  Form of Investment Advisory Agreement between the Registrant and PowerShares Capital Management LLC.*

 

 

 

(2)                                  Form of Management Agreement between PowerShares Mauritius and PowerShares Capital Management LLC.*

 

 

(g)

 

 

 

 

(1)           Form of Custody Agreement.*

 

 

(h)

 

 

 

 

(1)           Form of Fund Administration and Accounting Agreement. *

 

(2)           Form of Participant Agreement. *

 

(3)           Form of Sublicensing Agreement.*

 

 

(i)

 

 

 

 

(1)           Opinion and Consent of Clifford Chance US LLP.*

 

 

 

(2)           Opinion and Consent of Bingham McCutchen, LLP.*

 

 

(j)

 

 

 

(a)

Consent of Independent Registered Public Accounting Firm.*

 

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(p)

 

 

 

 

(1)           Code of Ethics of the Registrant and PowerShares Capital Management LLC.*

 

(2)           Code of Ethics of A I M Distributors, Inc.*

 

 

Other.

 

 

 

(q)

Powers of Attorney.*

 


* Filed herewith.  

 

Item 24 . Persons Controlled by or Under Common Control with the Fund.

 

PROVIDE A LIST OR DIAGRAM OF ALL PERSONS DIRECTLY OR INDIRECTLY CONTROLLED BY OR UNDER COMMON CONTROL WITH THE REGISTRANT. FOR ANY PERSON CONTROLLED BY ANOTHER PERSON, DISCLOSE THE PERCENTAGE OF VOTING SECURITIES OWNED BY THE IMMEDIATELY CONTROLLING PERSON OR OTHER BASIS OF THAT PERSON’S CONTROL. FOR EACH COMPANY, ALSO PROVIDE THE STATE OR OTHER SOVEREIGN POWER UNDER THE LAWS OF WHICH THE COMPANY IS ORGANIZED.

 

None.

 

Item 25. Indemnification.

 

STATE THE GENERAL EFFECT OF ANY CONTRACT, ARRANGEMENTS OR STATUTE UNDER WHICH ANY DIRECTOR, OFFICER, UNDERWRITER OR AFFILIATED PERSON OF THE REGISTRANT IS INSURED OR INDEMNIFIED AGAINST ANY LIABILITY INCURRED IN THEIR OFFICIAL CAPACITY, OTHER THAN INSURANCE PROVIDED BY ANY DIRECTOR, OFFICER, AFFILIATED PERSON, OR UNDERWRITER FOR THEIR OWN PROTECTION.

 

Reference is made to Article IX of the Registrant’s Declaration of Trust:

 

The Registrant (also, the “Trust”) is organized as a Massachusetts business trust and is operated pursuant to a Declaration of Trust, dated August 3, 2007 (the “Declaration of Trust”), that subject to the exceptions and limitations contained in Section 9.5, every person who is, or has been, a Trustee, officer, or employee of the Trust, including persons who serve at the request of the Trust as directors, trustees, officers, employees or agents of another organization in which the Trust has an interest as a shareholder, creditor or otherwise (hereinafter referred to as a “Covered Person”), shall be indemnified by the Trust to the fullest extent permitted by law against liability and against all expenses reasonably incurred or paid by him or in connection with any claim, action, suit or proceeding in which he becomes involved as a party or otherwise by virtue of his being or having been such a Trustee, director, officer, employee or agent and against amounts paid or incurred by him in settlement thereof. No indemnification shall be provided hereunder to a Covered Person to the extent such indemnification is prohibited by applicable federal law. The rights of indemnification herein provided may be insured against by policies maintained by the Trust, shall be severable, shall not affect any other rights to which any Covered Person may now or hereafter be entitled, shall continue as to a person who has ceased to be such a Covered Person and shall inure to the benefit of the heirs, executors and administrators of such a person. Subject to applicable federal law, expenses of preparation and presentation of a defense to any claim, action, suit or proceeding subject to a claim for indemnification under this Section 9.5 shall be advanced by the Trust prior to final disposition thereof upon receipt of an undertaking by or on behalf of the recipient to repay such amount if it is ultimately determined that he is not entitled to indemnification under this Section 9.5. To the extent that any determination is required to be made as to whether a Covered Person engaged in conduct for which indemnification is not provided as described herein, or as to whether there is reason to believe that a Covered Person ultimately will be found entitled to indemnification, the Person or Persons making the determination shall afford the Covered Person a rebuttable presumption that the Covered Person has not engaged in such conduct and that there is reason to believe that the Covered Person ultimately will be found entitled to indemnification. As used in this Section 9.5, the words “claim,” “action,” “suit” or “proceeding” shall apply to all claims, demands, actions, suits, investigations, regulatory inquiries, proceedings or any other occurrence of a similar nature, whether actual or threatened and whether civil, criminal, administrative or other, including appeals, and the words “liability” and “expenses” shall include without limitation, attorneys’ fees, costs, judgments, amounts paid in settlement, fines, penalties and other liabilities.

 

Further Indemnification. Nothing contained herein shall affect any rights to indemnification to which any Covered Person or other Person may be entitled by contract or otherwise under law or prevent the Trust from entering into any contract to provide indemnification to any Covered Person or other Person. Without limiting the foregoing, the Trust may, in connection with the acquisition of assets subject to liabilities pursuant to Section 4.2 hereof or a reorganization or consolidation pursuant to Section 10.2 hereof, assume the obligation to indemnify any Person including a Covered Person or otherwise contract to provide such indemnification, and such indemnification shall not be subject to the terms of this Article IX.

 

Amendments and Modifications. Without limiting the provisions of Section 11.1(b) hereof, in no event will any amendment, modification or change to the provisions of this Declaration or the By-laws adversely affect in any manner the rights of any Covered Person to (a) indemnification under Section 9.5 hereof in connection with any proceeding in which such Covered Person becomes involved as a party or otherwise by virtue of being or having been a Trustee, officer or employee of the Trust or (b) any insurance payments under policies maintained by the Trust, in either case with respect to any act or omission of such Covered Person that occurred or is alleged to have occurred prior to the time such amendment, modification or change to this Declaration or the By-laws.

 

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Item 26. Business and Other Connections of the Investment Adviser.

 

DESCRIBE ANY OTHER BUSINESS, PROFESSION, VOCATION OR EMPLOYMENT OF A SUBSTANTIAL NATURE IN WHICH THE INVESTMENT ADVISER AND EACH DIRECTOR, OFFICER OR PARTNER OF THE INVESTMENT ADVISER, IS OR HAS BEEN, ENGAGED WITHIN THE LAST TWO FISCAL YEARS FOR HIS OR HER OWN ACCOUNT OR IN THE CAPACITY OF DIRECTOR, OFFICER, EMPLOYEE, PARTNER OR TRUSTEE. (DISCLOSE THE NAME AND PRINCIPAL BUSINESS ADDRESS OF ANY COMPANY FOR WHICH A PERSON LISTED ABOVE SERVES IN THE CAPACITY OF DIRECTOR, OFFICER, EMPLOYEE, PARTNER OR TRUSTEE, AND THE NATURE OF THE RELATIONSHIP.)

 

Reference is made to the caption “Management of the Funds” in the Prospectus constituting Part A which is included in this Registration Statement and “Management” in the Statement of Additional Information constituting Part B which is included in this Registration Statement.

 

LISTED BELOW ARE THE OFFICERS AND TRUSTEES OF POWERSHARES CAPITAL MANAGEMENT LLC:

 

The information as to the trustees and executive officers of PowerShares Capital Management LLC is set forth in PowerShares Capital Management LLC’s Form ADV filed with the Securities and Exchange Commission on February 21, 2003 (Accession No.: 429865831611B82) and amended through the date hereof, is incorporated herein by reference.

 

Item 27. Principal Underwriters.

 

The sole principal underwriter for the Fund is A I M Distributors, Inc. which acts as distributor for the Registrant and the following other funds:

 

AIM CORE ALLOCATION PORTFOLIO SERIES

Series C

Series M

 

AIM COUNSELOR SERIES TRUST

AIM Advantage Health Sciences Fund

AIM Floating Rate Fund

AIM Multi-Sector Fund

AIM Structured Core Fund

AIM Structured Growth Fund

AIM Structured Value Fund

 

AIM EQUITY FUNDS

AIM Capital Development Fund

AIM Charter Fund

AIM Constellation Fund

AIM Diversified Dividend Fund

AIM Large Cap Basic Value Fund

AIM Large Cap Growth Fund

AIM Select Basic Value Fund

 

AIM FUNDS GROUP

AIM Basic Balanced Fund

AIM European Small Company Fund

AIM Global Value Fund

AIM International Small Company Fund

 

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AIM Mid Cap Basic Value Fund

AIM Select Equity Fund

AIM Small Cap Equity Fund

 

AIM GROWTH SERIES

AIM Basic Value Fund

AIM Conservative Allocation Fund

AIM Global Equity Fund

AIM Growth Allocation Fund

AIM Income Allocation Fund

AIM International Allocation Fund

AIM Mid Cap Core Equity Fund

AIM Moderate Allocation Fund

AIM Moderate Growth Allocation Fund

AIM Moderately Conservative Allocation Fund

AIM Small Cap Growth Fund

 

AIM INTERNATIONAL MUTUAL FUNDS

AIM Asia Pacific Growth Fund

AIM European Growth Fund

AIM Global Aggressive Growth Fund

AIM Global Growth Fund

 

AIM International Core Equity Fund

AIM International Growth Fund

 

AIM INVESTMENT FUNDS

AIM China Fund

AIM Developing Markets Fund

AIM Enhanced Short Bond Fund

AIM Global Health Care Fund

AIM International Bond Fund

AIM Japan Fund

AIM Trimark Endeavor Fund

AIM Trimark Fund

AIM Trimark Small Companies Fund

 

AIM INVESTMENT SECURITIES FUNDS

AIM Global Real Estate Fund

AIM High Yield Fund

AIM Income Fund

AIM Intermediate Government Fund

AIM Limited Maturity Treasury Fund

AIM Money Market Fund

AIM Municipal Bond Fund

AIM Real Estate Fund

AIM Short Term Bond Fund

AIM Total Return Bond Fund

 

AIM SECTOR FUNDS

AIM Energy Fund

AIM Financial Services Fund

AIM Gold & Precious Metals Fund

AIM Leisure Fund

AIM Technology Fund

AIM Utilities Fund

 

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AIM SUMMIT FUND

 

AIM TAX-EXEMPT FUNDS

AIM High Income Municipal Fund

AIM Tax-Exempt Cash Fund

AIM Tax-Free Intermediate Fund

 

AIM TREASURER’S SERIES TRUST

Premier Portfolio

Premier Tax-Exempt Portfolio

 

Premier U.S. Government Money Portfolio

 

AIM VARIABLE INSURANCE FUNDS

AIM V.I. Basic Balanced Fund

AIM V.I. Basic Value Fund

AIM V.I. Capital Appreciation Fund

AIM V.I. Capital Development Fund

AIM V.I. Core Equity Fund

AIM V.I. Demographic Trends Fund

AIM V.I. Diversified Dividend Fund

AIM V.I. Diversified Income Fund

AIM V.I. Dynamics Fund

AIM V.I. Financial Services Fund

AIM V.I. Global Equity Fund

AIM V.I. Global Health Care Fund

AIM V.I. Global Real Estate Fund

AIM V.I. Government Securities Fund

AIM V.I. High Yield Fund

AIM V.I. International Core Equity Fund

AIM V.I. International Growth Fund

AIM V.I. Large Cap Growth Fund

AIM V.I. Leisure Fund

AIM V.I. Mid Cap Core Equity Fund

AIM V.I. Money Market Fund

AIM V.I. Small Cap Equity Fund

AIM V.I. Small Cap Growth Fund

AIM V.I. Technology Fund

AIM V.I. Utilities Fund

 

NAME AND PRINCIPAL

 

POSITIONS AND OFFICES WITH

 

POSITIONS AND OFFICES WITH

 

BUSINESS ADDRESS*

 

REGISTRANT

 

UNDERWRITER

 

Gary K. Wendler

 

None

 

Director

 

John M. Zerr

 

Senior Vice President, Secretary and Chief Legal Officer

 

Director

 

John Cooper

 

None

 

Executive Vice President

 

Brian Lee

 

None

 

Executive Vice President

 

 

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Philip A. Taylor

 

Trustee, President and Principal Executive Officer, The AIM Family of Funds® (other than AIM Treasurer’s Series Trust, Short-Term Investments Trust and Tax-Free Investments Trust); and Trustee and Executive Vice President, AIM Treasurer’s Series Trust, Short- and Tax-Free Investments Trust only

 

Director

 

 


* The principal business address for all directors and executive officers is A I M Distributors, Inc., 11 Greenway Plaza, Suite 100, Houston, Texas 77046-1173

 

PROVIDE THE INFORMATION REQUIRED BY THE FOLLOWING TABLE FOR ALL COMMISSIONS AND OTHER COMPENSATION RECEIVED DIRECTLY, OR INDIRECTLY, FROM THE FUND DURING THE LAST FISCAL YEAR BY EACH PRINCIPAL UNDERWRITER WHO IS NOT AN AFFILIATED PERSON OF THE FUND OR ANY AFFILIATED PERSON OF AN AFFILIATED PERSON:

 

Not applicable.

 

Item 28. Location of Accounts and Records.

 

STATE THE NAME AND ADDRESS OF EACH PERSON MAINTAINING PRINCIPAL POSSESSION OF EACH ACCOUNT, BOOK OR OTHER DOCUMENT REQUIRED TO BE MAINTAINED BY SECTION 31(A) OF THE 1940 ACT [15 U.S.C.
80A-30(A)] AND THE RULES UNDER THAT SECTION.

 

The books, accounts and other documents required by Section 31(a) under the Investment Company Act of 1940, as amended, and the rules promulgated thereunder are maintained in the physical possession of Brown Brothers Harriman & Co. at 40 Water Street, Boston, Massachusetts 02109-3661 . The books, accounts and other documents pertaining to the Subsidiary are maintained in the physical possession of International Financial Services Limited, IFS Court at Twenty Eight, Cybercity, Ebene, Mauritius.

 

Item 29. Management Services.

 

PROVIDE A SUMMARY OF THE SUBSTANTIVE PROVISIONS OF ANY MANAGEMENT-RELATED SERVICE CONTRACT NOT DISCUSSED IN PART A OR PART B, DISCLOSING THE PARTIES TO THE CONTRACT AND THE TOTAL AMOUNT PAID AND BY WHOM, FOR THE FUND’ S LAST THREE FISCAL YEARS.

 

Not applicable.

 

Item 30. Undertakings.

 

None.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, duly authorized, in the City of Wheaton and State of Illinois, on the 22nd day of February, 2008.

 

 

PowerShares India Exchange-Traded Fund Trust

 

 

 

 

 

By:

/s/ H. Bruce Bond

 

 

Title: H. Bruce Bond, President

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated on the dates indicated.

 

SIGNATURE

 

TITLE

 

DATE

 

 

 

 

 

/s/ H. Bruce Bond

 

President and Chairman

 

February 22, 2008

H. Bruce Bond

 

 

 

 

 

 

 

 

 

/s/ Bruce T. Duncan

 

Chief Financial Officer and Treasurer

 

February 22, 2008

Bruce T. Duncan

 

 

 

 

 

 

 

 

 

*/s/ Ronn R. Bagge

 

Trustee

 

February 22, 2008

Ronn R. Bagge

 

 

 

 

 

 

 

 

 

*/s/ Marc M. Kole

 

Trustee

 

February 22, 2008

Marc M. Kole

 

 

 

 

 

 

 

 

 

*/s/ D. Mark McMillan

 

Trustee

 

February 22, 2008

D. Mark McMillan

 

 

 

 

 

 

 

 

 

*/s/ Philip M. Nussbaum

 

Trustee

 

February 22, 2008

Philip M. Nussbaum

 

 

 

 

 

 

 

 

 

*/s/ Paul Kilcullen

 

Trustee

 

February 22, 2008

Paul Kilcullen

 

 

 

 

 

 

 

 

 

*/s/ Couldip Basanta Lala

 

Trustee

 

February 22, 2008

Couldip Basanta Lala

 

 

 

 

 

 

 

 

 

*/s/ Donald H. Wilson

 

Trustee

 

February 22, 2008

Donald H. Wilson

 

 

 

 

 

 

 

 

 

 


*By: /s/ Stuart M. Strauss

 

 

 

February 22, 2008

Stuart M. Strauss

 

 

 

 

Attorney-In-Fact

 

 

 

 

 



 

EXHIBIT INDEX

 

(a)

Declaration of Trust of the Registrant dated August 3, 2007.

 

 

(b)

By-laws of the Registrant.

 

(d)

 

 

 

 

(1)                                  Form of Investment Advisory Agreement between the Registrant and PowerShares Capital Management LLC.

 

 

(2)                                  Form of Management Agreement between PowerShares Mauritius and PowerShares Capital Management LLC.

 

(g)

 

 

 

 

(1)           Form of Custody Agreement.

 

(h)

 

 

 

(1)           Form of Fund Administration and Accounting Agreement.

 

(2)           Form of Participant Agreement.

 

 

(3)           Form of Sublicensing Agreement.

 

(i)

 

 

 

 

(1)           Opinion and Consent of Clifford Chance US LLP.

 

 

 

(2)           Opinion and Consent of Bingham McCutchen, LLP.

 

 

(j)

 

 

 

(a)

Consent of Independent Registered Public Accounting Firm.

 

 

(p)

 

 

 

 

(1)           Code of Ethics of the Registrant and PowerShares Capital Management LLC.

 

(2)           Code of Ethics of A I M Distributors, Inc.

 

 

Other.

 

 

 

(q)

Powers of Attorney.

 


Exhibit 99.(a)

 

DECLARATION OF TRUST

OF

POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST

 

(a Massachusetts Business Trust)

 

Dated as of August 3, 2007

 



 

TABLE OF CONTENTS

 

ARTICLE I – Name and Definitions

 

Section 1

Name

1

Section 2

Definitions

1

 

 

 

ARTICLE II – Nature and Purpose of Trust

3

 

 

ARTICLE III – Principal Place of Business; Registered Agent

3

 

 

ARTICLE IV – Beneficial Interests; Shareholders

 

Section 4.1

Shares of Beneficial Interest

4

Section 4.2

Issuance of Shares

4

Section 4.3

Rights of Shareholders

4

Section 4.4

Ownership and Transfer of Shares; Small Accounts

5

Section 4.5

Voting by Shareholders

6

Section 4.6

Meetings

6

Section 4.7

Quorum and Action

7

Section 4.8

Action by Written Consent in Lieu of Meeting of Shareholders

7

Section 4.9

Series and Classes of Shares

7

Section 4.10

Disclosure of Shareholder Holdings

10

Section 4.11

Access to Trust Records

10

Section 4.12

Communications with Shareholders

10

 

 

 

ARTICLE V – The Trustees

 

Section 5.1

Management of the Trust

10

Section 5.2

Qualification and Number

10

Section 5.3

Term and Election

11

Section 5.4

Resignation, Retirement and Removal

11

Section 5.5

Vacancies

11

Section 5.6

Ownership of Assets of the Trust

11

 

 

 

ARTICLE VI – Powers of Trustees

 

Section 6.1

General Powers

12

Section 6.2

Certain Specific Powers

12

Section 6.3

Issuance and Repurchase of Shares

15

Section 6.4

Delegation; Committees

16

Section 6.5

Collection and Payment

15

Section 6.6

Expenses

16

Section 6.7

Manner of Acting

16

 

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Section 6.8

By-laws

16

Section 6.9

Principal Transactions

16

Section 6.10

Effect of Trustees’ Determination

16

 

 

 

ARTICLE VII – Service Providers

 

Section 7.1

Investment Adviser and Administrators

17

Section 7.2

Underwriting; Transfer Agent; Shareholder Servicing Agent; Custodian

17

Section 7.3

Parties to Contract

17

Section 7.4

Further Authority of Trustees

17

 

 

 

ARTICLE VIII – Distributions; Redemptions; Determination of Net Asset Value

 

Section 8.1

Distributions

18

Section 8.2

Redemption of Shares

18

Section 8.3

Redemption Price

18

Section 8.4

Payment

19

Section 8.5

Redemption of Shareholder’s Interest by Action of Trust

19

Section 8.6

Suspension of Right of Redemption

20

Section 8.7

Determination of Net Asset Value; Valuation of Portfolio Assets

20

Section 8.8

Constant Net Asset Value

20

Section 8.9

Reserves

20

Section 8.10

Determination by Trustees

20

 

 

 

ARTICLE IX – Limitation of Liability and Indemnification

 

Section 9.1

No Personal Liability of and Indemnification of Shareholders

21

Section 9.2

Limitation of Liability of Trustees and Others

21

Section 9.3

Experts; No Bond or Surety

22

Section 9.4

Liability of Third Persons Dealing with the Trust or Trustees

22

Section 9.5

Indemnification and Advancement of Expenses

23

Section 9.6

Further Indemnification

24

Section 9.7

Amendments and Modifications

24

Section 9.8

Derivative Actions

24

 

 

 

ARTICLE X – Termination; Mergers and Sale of Assets

 

Section 10.1

Termination of Trust

27

Section 10.2

Sale of Assets; Reorganization

28

Section 10.3

Combination of Classes

28

 

 

 

ARTICLE XI – Amendments; Filings; Copies; Miscellaneous

 

Section 11.1

Amendments to Declaration

28

Section 11.2

Filings; Copies of Declaration; Counterparts; Headings

29

Section 11.3

Trustees May Resolve Ambiguities

29

Section 11.4

Applicable Law; Forum Selection; Jury Waiver

29

Section 11.5

Provisions in conflict with Law or Regulations

30

Section 11.6

Writings

30

 

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DECLARATION OF TRUST

OF

POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST

 

                THIS DECLARATION OF TRUST is made as of this 3rd day August, 2007 by the initial Trustee hereunder;

 

                NOW, THEREFORE, the Trustee and any successor Trustees elected or appointed in accordance with Article V hereof hereby declare that they will hold all cash, securities and other assets and properties, which the Trust may from time to time acquire in any manner, IN TRUST, and that they will manage and dispose of the same and manage the affairs and business of the Trust upon the following terms and conditions for the benefit of the holders from time to time of shares of beneficial interest in this Trust as hereinafter set forth.

 

ARTICLE I

 

NAME AND DEFINITIONS

 

                Section 1.1.  Name This Trust shall be known as “PowerShares India Exchange-Traded Fund Trust” and the Trustees shall conduct the business of the Trust under that name or any other name as they may from time to time determine.

 

                Section 1.2.  Definitions Whenever used herein, unless otherwise required by the context or specifically provided, the following terms have the following respective meanings:

 

(a) “By-laws” means the By-laws of the Trust referred to in Section 6.8 hereof, as from time to time amended.

 

(b) “Class” means the one or more Shares (as defined below) of the Trust as may be established and designated as a Class from time to time by the Trustees pursuant to Section 4.9 hereof.

 

(c) “Code” means the Internal Revenue Code of 1986 (or any successor statute), as amended from time to time, and the rules and regulations thereunder, as adopted or amended from time to time.

 

(d) “Commission” shall have the same meaning given to such term in the 1940 Act (as defined below).

 

(e) “Declaration” means this Declaration of Trust as amended, supplemented or amended and restated from time to time.  Reference in this Declaration of Trust to

 



 

“Declaration,” “hereof,” “herein,” and “hereunder” shall be deemed to refer to this Declaration rather than exclusively to the article or section in which such words appear.

 

(f) “He,” “Him” and “His” shall include the feminine and neuter, as well as the masculine, genders.

 

(g) “Interested Person” shall have the same meaning given to such term in the 1940 Act (as defined below).

 

 (h) “1940 Act” refers to the Investment Company Act of 1940 (and any successor statute) and the rules thereunder, all as amended from time to time, as may apply to the Trust or a Class thereof, including pursuant to any exemptive, interpretive or other relief or guidance issued by the Commission or the staff of the Commission under such Act.

 

(i) “Outstanding Shares” means those Shares (as defined below) shown from time to time on the books of the Trust or its transfer agent as then issued and outstanding, but shall not include Shares which have been redeemed, repurchased, cancelled or terminated by the Trust.

 

(j) “Person” means and includes natural persons, corporations, partnerships, limited partnerships, business trusts, limited liability partnerships, statutory trusts, limited liability companies, trusts, associations, joint ventures, estates, nominees and any other entity in its own or any representative capacity, whether or not legal entities, and governments and agencies and political subdivisions thereof, in each case whether domestic or foreign.

 

(k) “Prospectus” means the prospectus and statement of additional information with respect to the Trust or one or more Series or Classes thereof as the context shall require, as contained in the most recent effective registration statement filed with the Commission with respect to the Trust or one or more such Series or Classes thereof, as the same may be supplemented or modified from time to time in accordance with the requirements of the federal securities laws.

 

(l) “Shareholder” means a record owner of Outstanding Shares.

 

(m) “Shares” means the units of interest into which the beneficial interest in the Trust shall be divided from time to time, including the Shares of any and all Series and Classes which may be established and designated by the Trustees, and includes fractions of Shares as well as whole Shares.

 

(n) “Series” individually or collectively means each Series of Shares as may be established and designated from time to time by the Trustees pursuant to Section 4.9 hereof.

 

(o) “Trust” refers to the voluntary association with transferable shares established by this Declaration, as the same may be amended from time to time.

 

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(p) “Trust Property” means any and all property, real or personal, tangible or intangible, which is owned or held by or for the account of the Trust or any Series.

 

(q) “Trustees” means, at any time, the person or persons who have signed this Declaration and all other persons who may from time to time be duly qualified and serving as Trustees in accordance with the provisions of Article V hereof, in each case if they shall at that time continue in office in accordance with the terms hereof, and reference herein to a Trustee or the Trustees shall refer to such person or persons in his capacity or their capacities as Trustees hereunder.

 

ARTICLE II

 

NATURE AND PURPOSE OF TRUST

 

                The Trust set forth in this instrument shall be deemed made in the Commonwealth of Massachusetts, and it is created under and is to be governed by and construed and administered according to the laws of said Commonwealth as a voluntary association with transferable shares (commonly known as a business trust) of the type referred to in Chapter 182 of the General Laws of the Commonwealth of Massachusetts.  The Trust is not intended to be, shall not be deemed to be, and shall not be treated as, a general or a limited partnership, joint venture, corporation or joint stock company, nor shall the Trustees or Shareholders or any of them for any purpose be deemed to be, or be treated in any way whatsoever as though they were, liable or responsible hereunder as partners or joint venturers.  The purpose of the Trust is to engage in, operate and carry on the business of an open-end management investment company through one or more Series, and to do any and all acts or things as are necessary, convenient, appropriate, incidental or customary in connection therewith and without limiting the foregoing or the other provisions hereof, the Trust may exercise all powers which are ordinarily exercised by a Massachusetts business trust.

 

ARTICLE III

 

REGISTERED AGENT; PRINCIPAL PLACE OF BUSINESS

 

                The name of the registered agent of the Trust is CT Corporation, 101 Federal Street, Boston, MA 02110.  The principal place of business of the Trust is 301 West Roosevelt Road, Wheaton, Illinois 60187.  The Trustees may, from time to time, change the registered agent of the Trust and the principal place of business of the Trust.

 

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ARTICLE IV

 

BENEFICIAL INTERESTS; SHAREHOLDERS

 

                Section 4.1.    Shares of Beneficial Interest .    The beneficial interest in the Trust shall be divided into such Shares of beneficial interest, of such Series or Classes, and of such designations and par values (if any) and with such rights, preferences, privileges, limitations, restrictions and such other relative terms as shall be determined by the Trustees from time to time.  The number of Shares is unlimited.  The Trustees shall have full power and authority to take such action with respect to the Shares as the Trustees may deem desirable.

 

                Section 4.2.  Issuance of Shares.   (a)    Shares may be issued from time to time to such Persons (including, without limitation, any Trustee, officer, or agent of the Trust or any Person in which a Trustee, officer or agent of the Trust has an interest) either for cash or for such other consideration (which may be in any one or more instances a certain specified consideration or certain specified considerations) and on such terms as the Trustees, from time to time, may deem advisable, and the Trust may, in connection with an issuance of Shares, acquire other assets (including the acquisition of assets subject to, and in connection with, the assumption of liabilities), and all Shares so issued hereunder, including without limitation Shares issued in connection with a dividend in Shares or a split or reverse split of Shares, shall be fully paid and nonassessable.  The Trust shall have the right to refuse to issue Shares to any Person at any time and without any reason therefor whatsoever.  Notwithstanding anything contained herein to the contrary, the Trustees may in their sole discretion determine to issue Shares of any Series or Class only in lots of such aggregate number of Shares as shall be determined by the Trustees, to be called creation units or such other term as the Trustees shall determine (as so defined, “Creation Units”), and in connection with the issuance of such Creation Units, to charge such transaction fees or other fees as the Trustees shall determine, provided however that the Trustees may from time to time, in their sole discretion determine to alter the number of Shares constituting a Creation Units.  The Trust shall have the right to refuse to issue Shares to any Person at any time and without any reason therefor whatsoever.

 

                (b)    The Trust may issue Shares in fractional denominations to the same extent as its whole Shares, and Shares in fractional denominations shall be Shares having proportionately to the respective fractions represented thereby all the rights of whole Shares, including, without limitation, the right to vote, the right to receive dividends and distributions and the right to participate upon termination of the Trust.

 

                (c)    Any Shares issued by the Trust which have been purchased, redeemed or otherwise reacquired by the Trust shall be retired automatically and shall have the status of unissued Shares.

 

                Section 4.3  Rights of Shareholders .  The ownership of the Trust Property of every description and the right to conduct any business herein described is vested exclusively in the Trustees.  The Shareholders shall have no right or title in or to the Trust

 

4



 

Property or to call for any partition or division of any property, profits, rights or interests of the Trust or any Series thereof and the Shareholders shall have no interest therein other than the beneficial interest conferred by their Shares.  The death, incapacity, dissolution, termination, or bankruptcy of a Shareholder during the continuance of the Trust shall neither operate to terminate the Trust or any Series thereof nor entitle the representative of any such Shareholder to an accounting or to take any action in court or elsewhere against the Trust, any Series thereof or the Trustees, but shall entitle such representative only to the rights of said Shareholder under this Declaration.  Neither the Trust nor the Trustees, nor any officer, employee or agent of the Trust shall have any power to bind personally any Shareholder, or to call upon any Shareholder for the payment of any sum of money or assessment whatsoever other than such as the Shareholder may at any time personally agree to pay, provided however that any sales loads or charges, redemption fees, account fees or any other fees or charges not prohibited as charges to Shareholders under applicable law shall not be deemed to be an assessment for the purposes of this Declaration.  The Shares shall be personal property giving only the rights specifically set forth in this Declaration.  The holders of Shares shall not, as such holders, have any right to acquire, purchase or subscribe for any Shares or securities of the Trust that it may hereafter issue or sell, or have any preference, preemptive, appraisal, conversion or exchange rights, except as the Trustees may determine from time to time.  Every Shareholder, by virtue of purchasing Shares and becoming a Shareholder, shall be held to have expressly assented and agreed to the terms of this Declaration and shall be bound thereby.

 

                Section 4.4.  Ownership and Transfer of Shares; Small Accounts (a)    The ownership and transfer of Shares shall be recorded on the books of the Trust or, if there is a transfer or similar agent with respect to such Shares, on the books and records of such transfer or similar agent with respect to such Shares, which records shall be maintained separately for the Shares of each Series or Class of the Trust.  No certificates representing the ownership of Shares shall be issued except as the Trustees may otherwise determine from time to time.  The Trustees may make such rules or impose such restrictions as they consider necessary or appropriate for the issuance of Share certificates, transfer of Shares and similar matters.  The record books of the Trust, as kept by the Trust or any transfer or similar agent of the Trust, shall be conclusive as to who are the holders of Shares and as to the number of Shares held from time to time by each Shareholder.  No Shareholder shall be entitled to receive any payment of a dividend or distribution, or to have notice given to him as provided herein or in the By-laws, until he has provided such information as shall be required to the Trust or, as applicable, the Trust’s transfer or similar agent with respect to his Shares.

 

                (b)    In the event any certificates representing Outstanding Shares are at any time outstanding, the Trustees may at any time or from time to time determine that Shares shall no longer be represented by certificates, and in connection therewith, upon written notice to any Shareholder holding certificates representing Outstanding Shares, such certificates shall be cancelled, provided that such cancellation shall not affect the ownership by such Shareholder of such Shares, and following such cancellation,

 

5



 

ownership and transfer of such Shares shall be recorded by book entry on the books of the Trust or its transfer or similar agent.

 

(c)    The Trustees may establish, from time to time, one or more minimum investment amounts for Shareholder accounts, which may differ within and among any Series or Classes, and may impose account fees on (which may be satisfied by involuntarily redeeming the requisite number of Shares in any such account in the amount of such fee), and/or require the involuntary redemption of Shares held in, those accounts the net asset value of which for any reason falls below such established minimum investment amounts, or may authorize the Trust to convert any such Shares in such account to Shares of another Class or Series, or take any other such action with respect to minimum investment amounts as may be deemed necessary or appropriate by the Trustees, in each case upon such terms as shall be established by the Trustees.

 

                Section 4.5.  Voting by Shareholders.   (a)    Shareholders shall not have the power to vote on any matter except: (i) for the election or removal of Trustees to the extent and as provided in Article V hereof, and (ii) with respect to such additional matters relating to the Trust as may be required by law or as the Trustees may consider and determine necessary or desirable.

 

                (b)    Each whole Share shall entitle the holder thereof to one vote as to any matter on which the holder in entitled to vote, and each fractional Share shall be entitled to a proportionate fractional vote.  There shall be no cumulative voting in the election of Trustees or on any other matter submitted to a vote of the Shareholders.  Shares may be voted in person or by proxy.  Until Shares of the Trust or any Series or Class are issued, the Trustees may exercise all rights of Shareholders of the Trust or such Series or Class and may take any action required or permitted by law, this Declaration or the By-laws of the Trust to be taken by Shareholders of the Trust, such Series or Class.

 

                (c)    On any matter submitted to a vote of the Shareholders of the Trust, all Shares of all Series and Classes then entitled to vote shall be voted together, except that (i) when required by the 1940 Act to be voted by individual Series or Class, Shares shall be voted by individual Series or Class, and (ii) when the Trustees have determined that the matter affects only the interests of Shareholders of one or more Series or Classes, only Shareholders of such one or more Series or Classes shall be entitled to vote thereon.

 

                Section 4.6.  Meetings .    Meetings of the Shareholders of the Trust or any one or more Series or Classes thereof may be called and held from time to time for the purpose of taking action upon any matter requiring the vote or authority of the Shareholders as herein provided or upon any other matter deemed by the Trustees to be necessary or desirable.  The Trustees may set in the By-laws provisions relating to the calling and holding of meetings (including the holding of meetings by electronic or other similar means), notice of meetings, record dates, place of meetings, conduct of meetings, voting by proxy, postponement or adjournment of meetings and related matters.

 

6



 

                Section 4.7.  Quorum and Action .    (a)    The Trustees shall set forth in the By-laws the quorum required for the transaction of business by the Shareholders at a meeting, which quorum shall in no event be less than the holders of thirty percent (30%) of the Shares entitled to vote at such meeting.  If a quorum is present when a duly called and held meeting is convened, the Shareholders present may continue to transact business until adjournment, even though the withdrawal of a number of Shareholders originally present leaves less than the proportion or number otherwise required for a quorum.

 

                (b)    The Shareholders shall take action by the affirmative vote of the holders of Shares representing a majority, except in the case of the election of Trustees which shall only require a plurality, of votes cast at a meeting of Shareholders at which a quorum is present, except as may be otherwise required by applicable law or any provision of this Declaration or the By-laws.

 

                Section 4.8.  Action by Written Consent in Lieu of Meeting of Shareholders.   Any action required or permitted to be taken at a meeting of the Shareholders may be taken, if so directed by the Trustees, without a meeting by written action executed by Shareholders, as of a record date specified in accordance with the By-Laws, holding not less than the minimum number of Shares that would have been necessary to take the action at a meeting, assuming that all of the Shareholders entitled to vote on that action were present and voting at that meeting.  The written action shall be effective when it has been executed by the requisite number of Shareholders and delivered to the Secretary of the Trust, unless a different effective time is provided in the written action.  Such a consent may be executed and delivered by electronic means in accordance with any procedures that may be adopted by the Trustees from time to time.

 

                Section 4.9.  Series and Classes of Shares.

 

                (a)  Series.    The Trustees hereby establish the Series listed on Schedule A hereto and the Trustees may from time to time authorize the division of Shares into additional Series.  The relative rights, preferences, privileges, limitations, restrictions and other relative terms of any Series shall be established and designated by the Trustees, and may be modified by the Trustees from time to time, upon and subject to the following provisions:

 

                (i)    Subject to variations between Classes of Shares of a Series, all Shares shall be identical except that there may be such variations as shall be fixed and determined by the Trustees from time to time between different Series, including, without limitation, as to qualifications for ownership, minimum purchase amounts, minimum account size, purchase price, fees and expenses, redemptions, conversions and exchanges, and special and relative rights as to dividends and on liquidation, and each Series shall have such business purpose or investment objective as shall be determined by the Trustees.  Each Share of a Series shall represent a beneficial interest in the net assets allocated or belonging to such Series only, and such interest shall not extend to the assets of the Trust generally (except to the extent that General Assets (as defined below) are allocated to such

 

7



 

Series).  All references to Shares in this Declaration shall be deemed to include references to Shares of any or all Series as the context may require.

 

                (ii)    The number of authorized Shares of each Series and the number of Shares of each Series that may be issued shall be unlimited.  The Trustees may divide or combine any issued or unissued Shares of any Series into a greater or lesser number; classify or reclassify any issued or unissued Shares into one or more Series; terminate any one or more Series; change the name of a Series; and take such other action with respect to the Series as the Trustees may deem desirable.

 

                (iii)    All consideration received by the Trust for the issue or sale of Shares of a particular Series, together with all assets in which such consideration is invested or reinvested, all income, earnings, profits and proceeds thereof, including any proceeds derived from the sale, exchange or liquidation of such assets, and any funds or payments derived from any reinvestment of such proceeds in whatever form the same may be (collectively, the “Assets”), shall irrevocably belong to that Series for all purposes, subject only to the rights of creditors of such Series, and shall be so recorded upon the books of the Trust.  Such Assets, together with any General Assets (as hereinafter defined) allocated to that Series as provided in the following sentence, are herein referred to as “Assets belonging to” that Series.  In the event that there are any assets, income, earnings, profits or proceeds thereof, funds or payments which are not readily identifiable as Assets belonging to any particular Series (collectively, the “General Assets”), the Trustees shall allocate such General Assets to and among any one or more of the Series created from time to time in such manner and on such basis as they deem fair and equitable; and any General Assets allocated to a particular Series shall be Assets belonging to that Series.  Each such allocation by the Trustees shall be conclusive and binding upon the Shareholders of all Series for all purposes.  Separate and distinct records shall be maintained for each Series and the Assets belonging to each Series shall be held and accounted for in such separate and distinct records separately from the Assets belonging to all other Series and the General Assets of the Trust not allocated to such Series.

 

                (iv)    The Assets belonging to a particular Series shall be charged with the debts, liabilities and obligations of the Trust in respect of that Series and with all expenses, costs, charges and reserves attributable to that Series (collectively, the “Liabilities”), which Liabilities shall be recorded upon the books of the Trust.  Such Liabilities together with any General Liabilities (as hereinafter defined) allocated to that Series as provided in the following sentence, are herein referred to as “Liabilities belonging to” that Series.  In the event there are any debts, liabilities, obligations, expenses, costs, charges or reserves of the Trust that are not readily identifiable as belonging to any particular Series (collectively, the “General Liabilities”), the Trustees shall allocate and charge such General Liabilities to and among any one or more of the Series created from time to time in such manner and on such basis as they deem fair and equitable; and any

 

8



 

General Liabilities so allocated to a particular Series shall belong to that Series.  Each such allocation by the Trustees shall be conclusive and binding upon all concerned for all purposes.  Without limiting the foregoing, but subject to the right of the Trustees to allocate General Liabilities as herein provided, the Liabilities belonging to a particular Series shall be enforceable only against the Assets belonging to such Series and not against the assets of the Trust generally or against the Assets belonging to any other Series, and none of the General Liabilities incurred, contracted for or otherwise existing with respect to the Trust generally or any Liabilities incurred, contracted for or otherwise existing with respect to any other Series shall be enforceable against the Assets belonging to such Series.  Any person extending credit to, contracting with or having any claim against any Series may look only to the Assets belonging to that Series to satisfy or enforce any Liability belonging to that Series.  No Shareholder or former Shareholder of any Series, in such capacity, shall have a claim on or any right to any Assets belonging to any other Series.

 

                (b)   Classes .    The Trustees may from time to time authorize the division of Shares of the Trust or any Series thereof into Classes.  The relative rights, preferences, privileges, limitations, restrictions and other relative terms of a Class shall be established and designated by the Trustees and may be modified by the Trustees from time to time.  All Shares of a Class of a Series shall be identical with each other and with the Shares of each other Class of the same Series except for such variations between Classes as may be authorized by the Trustees from time to time and not prohibited by the 1940 Act, including, without limitation, as to qualifications for ownership, minimum purchase amounts, minimum account size, purchase price, fees and expenses, right of redemption, and the price, terms and manner of redemption, conversion and exchange rights and features and special and relative rights as to dividends and on liquidation.  The number of authorized Shares of each Class and the number of Shares of each Class that may be issued shall be unlimited.  The Trustees may divide or combine the issued or unissued Shares of any Class into a greater or lesser number; classify or reclassify any issued or unissued Shares of any Class into one or more Classes; combine two or more Classes of a Series into a single Class of such Series; terminate any one or more Classes of Shares; change the name or other designation of a Class; and take such other action with respect to the Classes as the Trustees may deem desirable.  To the extent necessary or appropriate to give effect to the preferences and special or relative rights and privileges of any Classes, the Trustees may allocate assets, liabilities, income and expenses of a Series to a particular Class of that Series or apportion the same among two or more Classes of that Series.  All references to Shares in this Declaration shall be deemed to include references to Shares of any or all Classes as the context may require.

 

                (c)    Establishment and Designation of Series and Classes    The establishment and designation of any Series or Class of Shares shall be made either by the vote of a majority of the Trustees or upon the execution by a majority of the Trustees of an instrument, in each case setting forth such establishment and designation, the effective date of such establishment and establishment and designation and the relative rights, preferences, privileges, limitations, restrictions and other relative terms of such Series and/or Class,

 

9



 

whether directly in such resolution or instrument or by reference to one or more documents or instruments outside this Declaration and outside the resolutions, as the same may be in effect from time to time, including any Prospectus relating to such Series or Class.  Any such instrument executed by a majority of the Trustees, or, with respect to an establishment and designation made by vote of the Trustees, an instrument setting forth such resolutions and certified by either the Secretary or an Assistant Secretary of the Trust (in each case, a “Designation”), shall further be filed in accordance with the provisions of Section 11.2 hereof.  Additions or modifications to a Designation, including, without limitation any termination of an existing Series or Class, shall be made in the same manner as is permitted for the establishment and designation of such Series or Class.

 

                Section 4.10.  Disclosure of Shareholder Holdings .    The holders of Shares or other securities of the Trust shall upon demand disclose to the Trust in writing such information with respect to direct and indirect ownership of Shares or other securities of the Trust as the Trustees deem necessary to comply with the provisions of the Code; to comply with the requirements of any other law or regulation; or as the Trustees may otherwise decide, and ownership of Shares may be disclosed by the Trust if so required by applicable law or as the Trustees may otherwise decide.

 

                Section 4.11.  Access to Trust Records.   Except to the extent otherwise required by law, Shareholders shall only have such right to inspect the records, documents, accounts and books of the Trust as may be granted from time to time by the Trustees.

 

                Section 4.12.  Communications with Shareholders.   Any notices, reports, statements, or communications with Shareholders of any kind required under this Declaration, including any such communications with Shareholders or their counsel or other representatives required under Section 9.8 hereof, or otherwise made by the Trust or its agents on behalf of the Trust shall be governed by the provisions pertaining thereto in the By-laws.

 

ARTICLE V

 

THE TRUSTEES

 

                Section 5.1.  Management of the Trust .    The business and affairs of the Trust shall be managed under the direction of the Trustees, and they shall have all powers necessary and desirable to carry out that responsibility, including, without limitation, those powers described more fully in Article VI hereof.

 

                Section 5.2.  Qualification and Number .    Each Trustee shall be a natural person.  A Trustee need not be a citizen of the United States or a resident of the Commonwealth of Massachusetts.  By a majority vote or consent of the initial Trustee or by the Trustees as may then be in office, the Trustees may from time to time establish the number of Trustees.  No decrease in the number of Trustees shall have the effect of removing any

 

10



 

Trustee from office prior to the expiration of his term, but the number of Trustees may be decreased in conjunction with the removal of a Trustee pursuant to Section 5.4 hereof.

 

                Section 5.3.  Term and Election .    Except as provided in Section 5.4 below , each Trustee shall hold office until the next meeting of Shareholders called for the purpose of considering the election or re-election of such Trustee or of a successor to such Trustee, and until his successor, if any, is elected, qualified and serving as a Trustee hereunder.  Any Trustee vacancy may be filled by the affirmative vote or consent of a majority of the Trustees then in office, except as prohibited by the 1940 Act, or, if for any reason there are no Trustees then in office, vacancies may be filled by the officers of the Trust elected pursuant to Section 6.2(b)(iii) hereof, or may be filled in any other manner permitted by the 1940 Act.

 

                Section 5.4.  Resignation, Retirement and Removal .    Any Trustee may resign or retire as a Trustee by an instrument in writing signed by him and delivered or mailed to the Chair, if any, the President or the Secretary, and such resignation or retirement shall be effective upon such delivery, or at a later date according to the terms of the instrument.  The Trustees may adopt policies from time to time relating to the terms of office and or retirement of the Trustees.  Any Trustee who has who has become incapacitated by illness or injury as determined by a majority of the other Trustees or declared incompetent by a court of appropriate jurisdiction, may be retired by written instrument signed by a majority of the other Trustees.  Except as aforesaid, any Trustee may be removed from office only (i) by action of at least two-thirds (2/3) of the voting power of the Outstanding Shares, or (ii) by the action of at least two-thirds (2/3) of the remaining Trustees, specifying the date when such removal shall become effective.  Except to the extent expressly provided in a written agreement to which the Trust is a party or in a written policy adopted by the Trustees, no resigning, retiring or removed Trustee shall have any right to any compensation for any period following his resignation, retirement or removal, or any right to damages on account of such resignation, retirement or removal.

 

                Section 5.5.  Vacancies.   The death, resignation, retirement, removal, or incapacity of one or more of the Trustees, or all of them, shall not operate to annul the Trust or to revoke any existing agency created pursuant to the terms of this Declaration.  Whenever a vacancy in the number of Trustees shall occur, until such vacancy is filled as provided herein, or the number of Trustees as fixed is reduced, the Trustees in office, regardless of their number, shall have all the powers granted to the Trustees, and during the period during which any such vacancy shall occur, only the Trustees then in office shall be counted for the purposes of the existence of a quorum or any action to be taken by such Trustees.

 

                Section 5.6.   Ownership of Assets of the Trust.  The assets of the Trust shall be held separate and apart from any assets now or hereafter held in any capacity other than as Trustee hereunder by the Trustees or any successor Trustees.  All right, title and interest in the assets of the Trust shall at all times be considered as automatically vested in the Trustees as shall be from time to time in office.  Upon the resignation, retirement,

 

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removal, incapacity or death of a Trustee, such Trustee shall automatically cease to have any right, title or interest in any of the Trust Property, and the right, title and interest of such Trustee in the Trust Property shall vest automatically in the remaining Trustees.  Such vesting and cessation of title shall be effective without the execution or delivery of any conveyancing or other instruments.  No Shareholder shall be deemed to have a severable ownership in any individual asset of the Trust or any Series thereof or any right of partition or possession thereof.

 

ARTICLE VI

 

POWERS OF TRUSTEES

 

                Section 6.1.  General Powers.   The Trustees shall have exclusive and absolute control over the Trust Property and over the business of the Trust but with full powers of delegation, except as may otherwise be expressly prohibited by this Declaration.  The Trustees shall have the power to direct the business and affairs of the Trust and carry on the Trust’s operations and maintain offices both within and outside the Commonwealth of Massachusetts, and to do or authorize all such other things and execute or authorize the execution of all such instruments as they deem necessary, proper or desirable in order to promote the interests of the Trust.  With respect to any power or authority of the Trustees hereunder, whether stated or implied, the Trustees shall have all further powers and authority as may be necessary, incidental, relative, conductive, appropriate or desirable for the accomplishment, carrying out or attainment of any action authorized by the Trustees.  In construing the provisions of this Declaration, the presumption shall be in favor of a grant of power to the Trustees.  Without limiting the foregoing, the Trustees shall have power and authority to operate and carry on the business of an investment company and the Trustees shall exercise all the powers as are necessary, convenient, appropriate, incidental or customary in connection therewith and may exercise all powers which are ordinarily exercised by the trustees of a business trust.  The enumeration of any specific power herein shall not be construed as limiting the aforesaid general powers.  Whenever in this Declaration the Trustees are given authority to act on behalf of the Trust or to direct, authorize or cause the Trust to take any action, such power and authority shall apply, mutatis mutandis , to any action of the Trust on behalf of any Series or Class.

 

                Section 6.2.   Certain Specific Powers    (a)  Investments .    The Trustees shall not in any way be bound or limited by present or future laws, rules, regulations, or customs in regard to investments by fiduciaries, but shall have full authority and power to authorize the Trust to make, invest and reinvest in, to buy or otherwise acquire, to hold, for investment or otherwise, to borrow, to sell, terminate, exercise or otherwise dispose of, to lend or to pledge, to write, enter into, engage, trade or deal in any and all investments or investment strategies as they may deem proper at any time and from time to time to accomplish the purpose of the Trust.  In furtherance of, and in no way limiting, the foregoing, the Trustees shall have power and authority to authorize the Trust:

 

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                (i)    to exercise powers and rights of subscription or otherwise which in any manner arise out of ownership of securities or other assets;

 

                (ii)    to hold any security or property in a form not indicating any trust, whether in bearer, unregistered or other negotiable form or either in the Trust’s name or in the name of a custodian or a nominee or nominees;

 

(iii)    to exercise all rights, powers and privileges of ownership or interest in all securities and other assets included in the Trust Property, including the right to vote thereon and otherwise act with respect thereto and to do all acts for the preservation, protection, improvement and enhancement in value of all such assets;

 

                (iv) to acquire (by purchase, lease or otherwise) and to hold, use, maintain, develop and dispose of (by sale or otherwise) any property, real or personal, tangible or intangible, including cash, securities, currencies, any commodities, and any interest therein;

 

                (v)    to borrow money for any purpose and in this connection issue notes or other evidence of indebtedness;

 

                (vi)    to secure borrowings by mortgaging, pledging or otherwise subjecting as security all or any portion of the Trust Property;

 

                (vii)    to endorse, guarantee, or undertake the performance of any obligation or engagement of any other Person;

 

                (viii)    to lend money or any other Trust Property;

 

                (ix)    to aid by further investment any corporation, company, trust, association or firm, any obligation of or interest in which is included in the Trust Property or in the affairs of which the Trustees have any direct or indirect interest and to do all acts and things designed to protect, preserve, improve or enhance the value of such obligation or interest;

 

                (x)    to guarantee or become surety on any or all of the contracts, stocks, bonds, notes, debentures and other obligations of any such corporation, company, trust, association or firm;

 

                (xi)    to consent to or participate in any plan for the reorganization, consolidation or merger of any corporation or issuer, any security or property of which is held in the Trust;

 

                (xii)    to consent to any contract, lease, mortgage, purchase, or sale of property by such corporation or issuer;

 

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                (xiii)    to pay calls or subscriptions with respect to any security held in the Trust; and

 

                (xiv)    to join with other security holders in acting through a committee, depositary, voting trustee or otherwise, and in that connection to deposit any security with, or transfer any security to, any such committee, depositary or trustee, and to delegate to them such power and authority with relation to any security (whether or not so deposited or transferred) as the Trustees shall deem proper, and to agree to pay, and to pay, such portion of the expenses and compensation of such committee, depositary or trustee as the Trustees shall deem proper.

 

(b)    Additional Powers .    The Trustees shall have the power and authority on behalf of the Trust:

 

(i)    to employ, engage or contract with, or make payments to, such Persons as the Trustees may deem desirable for the transaction of the business of the Trust or any Series thereof, including, without limitation, any Trustee or officer of the Trust or any firm of which any such Trustee or officer is a member , whether as agents or independent contractors of the Trust or any Series thereof, or as delegates of the Trustees, officers, or any other Person who may be involved with the management of the business affairs of the Trust or any Series thereof, to have such titles, and such rights, powers and duties as the Trustees may determine from time to time, and to terminate any such  employment, engagement or contract or other relationship;

 

(ii)    to authorize the Trust to enter into joint ventures, partnerships and any other combinations or associations;

 

(iii)    to elect and remove such officers as they consider appropriate;

 

(iv)    to authorize the Trust to indemnify any Person with whom the Trust has dealings, including, without limitation, any service provider employed pursuant to Article VII hereof, to such extent as the Trustees shall determine;

 

(v)    to authorize the Trust to purchase, and pay for out of Trust Property, (A) insurance policies insuring the Shareholders, Trustees, officers, employees and any other  Persons, including, without limitation, service provider employed pursuant to Article VII hereof, against any or all claims arising by reason of holding any such position or by reason of any action taken or omitted by any such Person in such capacity whether or not the Trust would have the power to indemnify such Person against such liability, (B) insurance for the protection of Trust Property, (C) insurance as may be required by applicable law, or (D) such other insurance as the Trustees shall deem advisable, in each case as the Trustees shall determine;

 

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(vi)    to authorize the Trust to establish pension, profit-sharing, share purchase, and other retirement, incentive and benefit plans, including the purchasing of life insurance and annuity contracts as a means of providing such retirement and other benefits, for any Trustees, officers, employees and agents of the Trust;

 

(vii)    to authorize the Trust to guarantee indebtedness or contractual obligations of others;

 

(viii)    to determine and change the fiscal year of the Trust or any Series therein and the method by which its accounts shall be kept;

 

(ix)    to adopt a seal for the Trust, but the absence of such seal shall not impair the validity of any instrument executed on behalf of the Trust; and

 

(x)    to engage in any other lawful act or activity in connection with or incidental to any of the powers enumerated in this Declaration, to do everything necessary, suitable or proper for the accomplishment of any purpose or the attainment of any object or the furtherance of any power herein set forth, either alone or in association with others, and to do every other act or thing incidental or appurtenant to or growing out of or connected with the aforesaid business or purposes, objects or powers.

 

(c)    The foregoing enumeration of the powers and authority of the Trustees shall be read as broadly and liberally as possible, it being the intent of the foregoing in no way to limit the Trustees’ powers and authority.

 

                Section 6.3.   Issuance and Repurchase of Shares.   The Trustees shall have the power to authorize the Trust to issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell, reissue, dispose of, transfer, and otherwise deal in Shares and in any options, warrants or other rights to purchase Shares or any other interests in the Trust other than Shares.

 

                Section 6.4.    Delegation; Committees.   The Trustees shall have power to delegate from time to time to one or more of their number or to officers, employees or agents of the Trust the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Trustees or otherwise as the Trustees may deem expedient, except to the extent such delegation is prohibited by applicable law.  Without limiting the foregoing, and notwithstanding any provisions herein to the contrary, the Trustees may by resolution appoint committees consisting of one or more, but less than the whole number of, Trustees then in office and such other members as the Trustees shall approve, which committees may be empowered to act for and bind the Trustees and the Trust, as if the acts of such committees were the acts of all the Trustees then in office.

 

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                Section 6.5.    Collection and Payment.   The Trustees shall have the power to authorize the Trust or its agents to:  collect all money or other property due to the Trust; to pay all claims, including taxes, against the Trust Property; to prosecute, defend, arbitrate, compromise or abandon any claims relating to the Trust Property; to foreclose any security interest securing any obligations, by virtue of which any money or other property is owed to the Trust; and to enter into releases, agreements and other instruments; but the Trustees shall have no liability for failing to authorize any of the foregoing.

 

                Section  6.6.    Expenses   The Trustees shall have the power to authorize the Trust to incur and pay any expenses which, in the opinion of the Trustees, are necessary or incidental to carry out any of the purposes of this Declaration, to pay compensation from the funds of the Trust to themselves as Trustees and to reimburse themselves from the funds of the Trust for their expenses and disbursements.  The Trustees shall fix the compensation of all officers, employees and Trustees.

 

                Section 6.7.    Manner of Acting.    Except as otherwise provided herein, under applicable law or in the By-laws, any action to be taken or determination made by the Trustees may be taken or made by a majority of the Trustees present at a meeting of Trustees (a quorum being present), including any meeting held by means of a conference telephone circuit or similar communications equipment by means of which all persons participating in the meeting can hear each other, or by written consents of a majority of Trustees then in office.  Any such action or determination may be made by reference to one or more documents or instruments or policies or procedures outside this Declaration and outside the resolutions of the Trustees.  Except as set forth specifically in this Declaration, any action that may be taken by the Trustees may be taken by them in their sole discretion and without the vote or consent of Shareholders.

 

                Section 6.8.    By-laws.   The Trustees may adopt By-laws not inconsistent with this Declaration to provide for the conduct of the business of the Trust and shall have the exclusive power to amend or repeal such By-laws.

 

                Section 6.9.    Principal Transactions.   Except in transactions not permitted by the 1940 Act, the Trustees may authorize the Trust to buy any securities or other assets from or sell or lend any securities or other assets of the Trust to, any affiliate of the Trust or any account managed by an affiliate of the Trust, any Trustee or officer of the Trust or any firm of which any such Trustee or officer is a member acting as principal, or have any such dealings with any service provider employed pursuant to Article VII hereof.

 

                Section 6.10.  Effect of Trustees’ Determination .   Any action taken or determination made by or pursuant to the direction of the Trustees in good faith and consistent with the provisions of this Declaration shall be final and conclusive and shall be binding upon the Trust, every holder at any time of Shares and any other Person.

 

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ARTICLE VII

 

SERVICE PROVIDERS

 

                Section 7.1.  Investment Adviser and Administrator The Trust may enter into contracts with one or more Persons, to act as investment adviser, investment sub-adviser, manager, administrator, sub-administrator or other agent to the Trust or Series, and as such to perform such functions as the Trustees may deem reasonable and proper, including, without limitation, investment advisory, management, research, valuation of assets, clerical and administrative functions, under such terms and conditions, and for such compensation, as the Trustees may deem advisable.  The Trustees may also authorize any adviser or sub-adviser to employ one or more sub-advisers from time to time and any administrator to employ one or more sub-administrators from time to time, upon such terms and conditions as shall be approved by the Trustees.

 

                Section 7.2.  Underwriter; Transfer Agent; Shareholder Servicing Agent; Custodian.   The Trust may enter into a contract or contracts with one or more Persons to act as underwriters, distributors or placement agents whereby the Trust may either agree to sell Shares of the Trust or any Series or Class to the other party or parties to the contract or appoint such other party or parties its sales agent or agents for such Shares and with such other provisions as the Trustees may deem reasonable and proper, and the Trust may from time to time enter into transfer agency, sub-transfer agency and/or shareholder servicing contract(s), in each case with such terms and conditions, and providing for such compensation, as the Trustees may deem advisable.

 

                All securities and cash of the Trust shall be held pursuant to a written contract or contracts with one or more custodians and subcustodians or shall otherwise be held in accordance with the 1940 Act.

 

                Section 7.3.  Parties to Contract Any contract of the character described in this Article VII may be entered into with any Person, including, without limitation, the investment adviser, any investment sub-adviser or an affiliate of the investment adviser or sub-adviser, although one or more of the Trustees, officers, or Shareholders of the Trust may be an officer, director, trustee, shareholder, or member of such other party to the contract, or otherwise interested in such contract, and no such contract shall be invalidated or rendered voidable by reason of the existence of any such relationship, nor shall any Person holding such relationship be liable merely by reason of such relationship for any loss or expense to the Trust under or by reason of said contract or accountable for any profit realized directly or indirectly therefrom, provided that the contract when entered into was not inconsistent with the provisions of this Article VII or the By-laws.  The same Person may be a party to more than one contract entered into pursuant to this Article VII and any individual may be financially interested or otherwise affiliated with Persons who are parties to any or all of the contracts mentioned in this Article VII.

 

                Section 7.4.  Further Authority of Trustees .   The authority of the Trustees hereunder to authorize the Trust to enter into contracts or other agreements or

 

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arrangements shall include the authority of the Trustees to modify, amend, waive any provision of, supplement, assign all or a portion of, novate, or terminate such contracts, agreements or arrangements.  The enumeration of any specific contracts in this Article VII shall in no way be deemed to limit the power and authority of the Trustees as set forth in Section 6.2 hereof to authorize the Trust to employ, contract with or make payments to such Persons as the Trustees may deem desirable for the transaction of the business of the Trust.

 

ARTICLE VIII

 

DISTRIBUTIONS; REDEMPTIONS; DETERMINATION OF NET ASSET VALUE

 

                Section 8.1.  Distributions.   The Trustees may from time to time declare and authorize the payment of, or may prescribe and set forth in a duly adopted vote or votes of the Trustees, the bases and time or frequency, which may be monthly or otherwise, for the declaration and payment of, such dividends and distributions on Shares of a particular Series as they may deem necessary or desirable, after providing for actual and accrued expenses and liabilities (including such reserves as the Trustees may establish) determined in accordance with good accounting practices.  All dividends and distributions on Shares of a particular Series shall be distributed only from the Assets belonging to that Series, as such term is defined in Section 4.9 hereof, and shall be distributed pro rata to the Shareholders of that Series in proportion to the number of Shares of that Series held by such Shareholders at the date and time of record for the payment of such dividends or distributions, subject to any variations with respect to Classes of Shares of such Series, if any, and in a manner consistent with the 1940 Act and the Code.  Such distributions may be paid in cash and/or in securities or other property, and the composition of any such distribution shall be determined by the Trustees and may be different among Shareholders (including differences among Shareholders in the same Series or Class).

 

                Section 8.2.  Redemption of Shares .  All shares of the Trust shall be redeemable, at the redemption price determined in the manner set out in this Declaration, provided however that if the Trustees determine, pursuant to Section 4.2 hereof, to issue Shares of any Series or Class in Creation Units, then only Shares of such Series or Class aggregating a Creation Unit shall be redeemable hereunder, and unless the Trustees otherwise determine, there shall be no redemption of partial or fractional Creation Units.  The Trust shall redeem the Shares of the Trust or any Series or Class thereof at the price determined as hereinafter set forth, at such offices or agencies and in accordance with such conditions, not inconsistent with the 1940 Act, regarding the redemption of Shares as may be described in the applicable Prospectus.

 

                Section 8.3.  Redemption Price .   Shares of each Series and Class thereof shall be redeemed at their net asset value determined as set forth in Section 8.7 hereof as of such time as the Trustees shall have theretofore prescribed, less such fees and/or charges, if any, as may be established by the Trustees from time to time.

 

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Section 8.4.   Payment .  Payment of the redemption price of Shares of any Series or Class thereof shall be made in cash or in property or any combination thereof, out of the Assets belonging to such Series, as such term is defined in Section 4.9 hereof, and the composition of any such payment may be different among Shareholders (including differences among Shareholders in the same Series or Class), at such time and in the manner as may be specified from time to time in the applicable Prospectus.  In no event shall the Trust be liable for any delay of any other person in transferring securities or other property selected for delivery as all or part of any such payment.

 

Section 8.5.  Redemption of Shareholder’s Interest By Action of Trust.   Subject to the provisions of the 1940 Act, the Trust may redeem some or all of the Shares of the Trust or one or more Series or Classes held by any Shareholder for any reason and under terms set by the Trustees, including by way of illustration, for the following reasons:

 

(a)    the value of such Shares held by such Shareholder being less than the minimum amount established from time to time by the Trustees;

 

(b)    the determination that direct or indirect ownership of Shares by any person has become concentrated in such Shareholder to any extent that would disqualify that Series as a regulated investment company under the Code;

 

(c)    the failure of a Shareholder to supply a tax identification or other identification or if the Trust is unable to verify a Shareholder’s identity,

 

(d)    the failure of a Shareholder to pay when due for the purchase of Shares issued to such Shareholder;

 

(e)    the failure of a Shareholder to meet or maintain the qualifications for ownership of a particular Class or Series of Shares;

 

(f)    the payment of account fees or other charges, expenses and/or fees as set by the Trustees, including without limitation any small account fees permitted by Section 4.4 hereof;

 

(g)    the determination that ownership of Shares by a particular Shareholder is not in the best interests of the remaining Shareholders of the Trust or applicable Series or Class;

 

(h)    the failure of a holder of Shares or other securities of the Trust to comply with a demand pursuant to Section 4.10 hereof;

 

(i)    in connection with the termination of any Series or Class of Shares; or

 

(j)    when the Trust is requested or compelled to do so by governmental authority or applicable law.

 

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                Section 8.6.  Suspension of Right of Redemption Notwithstanding the foregoing, the Trust may postpone payment of the redemption price and may suspend the right of the holders of Shares to require the Trust to redeem Shares to the extent permissible under the 1940 Act.

 

                Section 8.7.  Determination of Net Asset Value; Valuation of Portfolio Assets.   The Trustees may from time to time prescribe such bases and times for determining the per Share net asset value of the Shares of the Trust or any Series or Class thereof and may prescribe or approve the procedures and methods for determining the value of portfolio assets as they may deem necessary or desirable.

 

                The Trust may suspend the determination of net asset value during any period when it may suspend the right of the holders of Shares to require the Trust to redeem Shares.

 

                Section 8.8.  Constant Net Asset Value .  With respect to any Series that holds itself out as a money market or stable value fund, the Trustees shall have the power to reduce the number of Outstanding Shares of the Series by reducing the number of Shares in the account of each Shareholder on a pro rata basis, or to take such other measures as are not prohibited by the 1940 Act, so as to maintain the net asset value per share of such Series at a constant dollar amount.

 

                Section 8.9   Reserves .   The Trustees may set apart, from time to time, out of any funds of the Trust or Series or of funds allocable to a Class thereof a reserve or reserves for any proper purpose, and may abolish any such reserve.

 

                Section 8.10.  Determination by Trustees .   The Trustees may make any determinations they deem necessary with respect to the provisions of this Article VIII, including, but not limited to, the following matters: the amount of the assets, obligations, liabilities and expenses of the Trust; the amount of the net income of the Trust from dividends, capital gains, interest or other sources for any period and the amount of assets at any time legally available for the payment of dividends or distributions; which items are to be treated as income and which as capital; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges were created shall have been paid or discharged); the market value, or any other price to be applied in determining the market value, or the fair value, of any security or other asset owned or held by the Trust; the number of Shares of the Trust issued or issuable; the net asset value per Share; and any of the foregoing matters as it may pertain to any Series or Class.

 

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ARTICLE IX

 

LIMITATION OF LIABILITY AND INDEMNIFICATION

 

                Section 9.1.  No Personal Liability of and Indemnification of Shareholders No personal liability for any debt, liability or obligation or expense incurred by, contracted for, or otherwise existing with respect to, the Trust or any Series or Class shall attach to any Shareholder or former Shareholder of the Trust.  In case any Shareholder or former Shareholder of the Trust shall be held to be personally liable solely by reason of his being or having been a Shareholder and not because of his acts or omissions or for some other reason, the Shareholder or former Shareholder (or his heirs, executors, administrators or other legal representatives or in the case of a corporation or other entity, its corporate or other general successor) shall be entitled out of the assets of the Trust or, if the Trust has more than one Series, the applicable Series, to be held harmless from and indemnified against all loss and expense arising from such liability; provided, however, there shall be no liability or obligation of the Trust arising hereunder to reimburse any Shareholder for taxes paid by reason of such Shareholder’s ownership of any Shares or for losses suffered by reason of any changes in value of any Trust assets.  The Trust shall, upon request by the Shareholder or former Shareholder, assume the defense of any claim made against the Shareholder for any act or obligation of the Trust and satisfy any judgment thereon.

 

                Section 9.2.  Limitation of Liability of Trustees and Others.   (a)    No Liability to Third Parties.   No person who is or has been a Trustee, officer, or employee of the Trust shall be subject to any personal liability whatsoever to any person, other than the Trust or its Shareholders, in connection with the affairs of the Trust; and all persons shall look solely to the Trust Property or Property of a Series for satisfaction of claims of any nature arising in connection with the affairs of the Trust or such Series.

 

                Every note, bond, contract, instrument, certificate, Share or undertaking and every other act or thing whatsoever executed or done by or on behalf of the Trust or the Trustees or any of them in connection with the Trust shall be conclusively deemed to have been executed or done only in or with respect to their or his or her capacity as Trustees or Trustee and neither such Trustees or Trustee nor the Shareholders shall be personally liable thereon.

 

                All persons extending credit to, contracting with or having any claim against the Trust shall look only to the assets of the Trust for payment under such credit, contract or claim; and neither the Shareholders nor the Trustees, nor any of the Trust’s officers, employees or agents, whether past, present or future, shall be personally liable therefore.

 

                (b)  Limitation of Liability to Trust and Shareholders.    No person who is or has been a Trustee, officer or employee of the Trust shall be liable to the Trust or to any Shareholder, Trustee, officer, employee, or agent of the Trust for any action or failure to act (including without limitation the failure to compel in any way any former or acting Trustee to redress any breach of trust) except for his or her own bad faith, willful misfeasance, gross negligence or reckless disregard of his or her duties involved in the

 

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conduct of the individual’s office, and for nothing else and shall not be liable for errors of judgment or mistakes of fact or law.

 

                (c)    No Liability for Acts of Others.   Without limiting the foregoing limitations of liability contained in this Section 9.2, a Trustee shall not be responsible for or liable in any event for any neglect or wrongdoing of any officer, employee, investment adviser, sub-adviser, principal underwriter, custodian or other agent of the Trust, nor shall any Trustee be responsible or liable for the act or omission of any other Trustee (or for the failure to compel in any way any former or acting Trustee to redress any breach of trust), except in the case of such Trustee’s own willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office.

 

                (d)  Notice in Instruments.  Every note, bond, contract, instrument, certificate or undertaking made or issued by the Trustees or by any officers or officer on behalf of the Trust shall give notice that this Declaration is on file with the Secretary of State of the Commonwealth of Massachusetts, shall recite that the same was executed or made by or on behalf of the Trust by them as Trustees or as officers and not individually and that the obligations of such instrument are not binding upon any of them or the Shareholders individually but are binding only upon the assets and property of the Trust, and may contain such further recitals as they or he or she may deem appropriate, but the omission thereof shall not operate to bind any Trustees or officers or Shareholders  individually.

 

Section 9.3.   Experts; No Bond or Surety.   The Trustees may rely upon advice of counsel or other experts with respect to the meaning and operation of this Declaration and their duties as Trustees hereunder, and shall be under no liability for any act or omission in accordance with such advice or for failing to follow such advice.  In discharging their duties, the Trustees, when acting in good faith, shall be entitled to rely upon the books of account of the Trust and upon written reports made to the Trustees by any officer appointed by them, any independent registered public accounting firm and (with respect to the subject matter of the contract involved) any officer, partner or responsible employee of any other party to any contract entered into hereunder.  The appointment, designation or identification of a Trustee as chair of the Trustees, a member or chair of a committee of the Trustees, an expert on any topic or in any area (including an audit committee financial expert), or the lead independent Trustee, or any other special appointment, designation or identification of a Trustee, shall not impose on that person any standard of care or liability that is greater than that imposed on that person as a Trustee in the absence of the appointment, designation or identification, and no Trustee who has special skills or expertise, or is appointed, designated or identified as aforesaid, shall be held to a higher standard of care by virtue thereof.  In addition, no appointment, designation or identification of a Trustee as aforesaid shall affect in any way that Trustee’s rights or entitlement to indemnification or advancement of expenses.  The Trustees shall not be required to give any bond as such, nor any surety if a bond is required.

 

                Section 9.4.    Liability of Third Persons Dealing with the Trust or Trustees.   No person dealing with the Trust or the Trustees shall be bound to make any inquiry

 

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concerning the validity of any transaction made or to be made by the Trust or Trustees or to see to the application of any payments made or property transferred to the Trust or upon its order.

 

                Section 9.5.  Indemnification and Advancement of Expenses Subject to the exceptions and limitations contained in this Section 9.5, every person who is, or has been, a Trustee, officer, or employee of the Trust, including persons who serve at the request of the Trust as directors, trustees, officers, employees or agents of another organization in which the Trust has an interest as a shareholder, creditor or otherwise (hereinafter referred to as a “Covered Person” ), shall be indemnified by the Trust to the fullest extent permitted by law against liability and against all expenses reasonably incurred or paid by him or in connection with any claim, action, suit or proceeding in which he becomes involved as a party or otherwise by virtue of his being or having been such a Trustee, director, officer, employee or agent and against amounts paid or incurred by him in settlement thereof.

 

                No indemnification shall be provided hereunder to a Covered Person to the extent such indemnification is prohibited by applicable federal law.

 

                The rights of indemnification herein provided may be insured against by policies maintained by the Trust, shall be severable, shall not affect any other rights to which any Covered Person may now or hereafter be entitled, shall continue as to a person who has ceased to be such a Covered Person and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

                Subject to applicable federal law, expenses of preparation and presentation of a defense to any claim, action, suit or proceeding subject to a claim for indemnification under this Section 9.5 shall be advanced by the Trust prior to final disposition thereof upon receipt of an undertaking by or on behalf of the recipient to repay such amount if it is ultimately determined that he is not entitled to indemnification under this Section 9.5.

 

                To the extent that any determination is required to be made as to whether a Covered Person engaged in conduct for which indemnification is not provided as described herein, or as to whether there is reason to believe that a Covered Person ultimately will be found entitled to indemnification, the Person or Persons making the determination shall afford the Covered Person a rebuttable presumption that the Covered Person has not engaged in such conduct and that there is reason to believe that the Covered Person ultimately will be found entitled to indemnification.

 

                As used in this Section 9.5, the words “claim,” “action,” “suit” or “proceeding” shall apply to all claims, demands, actions, suits, investigations, regulatory inquiries, proceedings or any other occurrence of a similar nature, whether actual or threatened and whether civil, criminal, administrative or other, including appeals, and the words “liability” and “expenses” shall include without limitation, attorneys’ fees, costs, judgments, amounts paid in settlement, fines, penalties and other liabilities.

 

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                Section 9.6.  Further Indemnification.  Nothing contained herein shall affect any rights to indemnification to which any Covered Person or other Person may be entitled by contract or otherwise under law or prevent the Trust from entering into any contract to provide indemnification to any Covered Person or other Person.  Without limiting the foregoing, the Trust may, in connection with the acquisition of assets subject to liabilities pursuant to Section 4.2 hereof or a reorganization or consolidation pursuant to Section 10.2 hereof, assume the obligation to indemnify any Person including a Covered Person or otherwise contract to provide such indemnification, and such indemnification shall not be subject to the terms of this Article IX.

 

                Section 9.7.  Amendments and Modifications.  Without limiting the provisions of Section 11.1(b) hereof, in no event will any amendment, modification or change to the provisions of this Declaration or the By-laws adversely affect in any manner the rights of any Covered Person to (a) indemnification under Section 9.5 hereof in connection with any proceeding in which such Covered Person becomes involved as a party or otherwise by virtue of being or having been a Trustee, officer or employee of the Trust or (b) any insurance payments under policies maintained by the Trust, in either case with respect to any act or omission of such Covered Person that occurred or is alleged to have occurred prior to the time such amendment, modification or change to this Declaration or the By-laws.

 

                Section 9.8.  Derivative Actions.   (a)    The purpose of this Section 9.8 is to protect the interests of the Trust and its Shareholders by establishing a process that will permit legitimate inquiries and claims to be made and considered while avoiding the time, expense, distraction and other harm that can be caused to the Trust and its Shareholders as a result of spurious shareholder demands and derivative actions.

 

                (b)    No Shareholder may bring a derivative or similar action or proceeding in the right of the Trust or any Series to recover a judgment in its favor (a “derivative action”) unless each of the following conditions is met:

 

                (i)    The complaining Shareholder was a Shareholder of the Series on behalf of or in the right of which the derivative action is proposed to be brought (the “affected Series”) at the time of the action or failure to act complained of, or acquired the Shares afterwards by operation of law from a Person who was a Shareholder at that time;

 

                (ii)    The complaining Shareholder was a Shareholder of the affected Series at the time the demand required by subparagraph (iii) below was made;

 

                (iii)    Prior to the commencement of such derivative action, the complaining Shareholder has made a written demand on the Trustees requesting that the Trustees cause the Trust to file the action itself on behalf of the affected Series (a “demand”), which demand shall include at least the following:

 

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                (1)    a detailed description of the action or failure to act complained of, the facts upon which each such allegation is made and the reasonably estimated damages or other relief;

 

                (2)    a statement to the effect that the complaining Shareholder believes in good faith that the Shareholder will fairly and adequately represent the interests of similarly situated Shareholders in enforcing the rights of the affected Series and an explanation of why the complaining Shareholder believes that to be the case;

 

                (3)    a certification that the requirements of sub-paragraphs (i) and (ii) of this paragraph (b) have been met, as well as information reasonably designed to allow the Trustees to verify that certification;

 

                (4)    a list of all other derivative or class actions in which the complaining Shareholder is or was a named plaintiff, the court in which such action was filed, the date of filing, the name of all counsel to any plaintiffs and the outcome or current status of such actions;

 

                (5)    a certification of the number of Shares of the affected Series owned beneficially or of record by the complaining Shareholder at the time set forth in clauses (i), (ii) and (iii) of this subsection (b) and an undertaking that the complaining Shareholder will be a Shareholder of the affected Series as of the commencement of and throughout the derivative action and will notify the Trust in writing of any sale, transfer or other disposition by the complaining Shareholder of any such Shares within three business days thereof; and

 

                (6)    an acknowledgment of the provisions of paragraphs (d) and (e) of this Section 9.8 below; and

 

(iv)    A copy of the proposed derivative complaint must be served on the Trust, assuming the requirements of sub-paragraphs (i) through (iii) above have already been met and the derivative action has not been barred in accordance with paragraph (c)(1) below.

 

(c)    Within 90 calendar days of the receipt of a Shareholder demand submitted in accordance with the requirements above, those Trustees who are independent for purposes of considering the demand (the “independent Trustees”) will consider, with the assistance of counsel who may be retained by such Trustees on behalf and at the expense of the Trust, the merits of the claim and determine whether maintaining a suit would be in the best interests of the Trust or the affected Series, as applicable.  If, during this 90-day period, those independent Trustees conclude that a determination as to the maintenance of a suit cannot reasonably be made within the 90-day period, those independent Trustees may extend the 90-day period by a period of time that the independent Trustees consider will be sufficient to permit them to make such a determination, not to exceed 60 calendar

 

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days from the end of the initial 90-day period (such 90-day period, as may be extended as provided hereunder, the “review period”).  Notice of any such decision to extend the review period shall be sent in accordance with the provisions of Section 4.12 hereof to the complaining Shareholder, or, the Shareholder’s counsel if represented by counsel, in writing within five business days of any decision to extend the period.  Trustees who are not deemed to be Interested Persons of the Trust are deemed independent for all purposes, including for the purpose of approving or dismissing a derivative action.  A Trustee otherwise independent for purposes of considering the demand shall not be considered not to be independent solely by virtue of (i) the fact that such Trustee receives remuneration for his service as a Trustee of the Trust or as a trustee or director of one or more investment companies with the same or an affiliated investment adviser or underwriter, (ii) the amount of such remuneration, (iii) the fact that such Trustee was identified in the demand as a potential defendant or witness, or (iv) the fact that the Trustee approved the act being challenged in the demand if the act resulted in no material personal benefit to the Trustee or, if the Trustee is also a Shareholder, no material personal benefit that is not shared pro rata with other Shareholders.

 

                (1)    If the demand has been properly made under paragraph (b) of this Section 9.8, and a majority of the independent Trustees have considered the merits of the claim and have determined that maintaining a suit would not be in the best interests of the Trust or the affected Series, as applicable, the demand shall be rejected and the complaining Shareholder shall not be permitted to maintain a derivative action unless the Shareholder first sustains the burden of proof to the court that the decision of the Trustees not to pursue the requested action was not a good faith exercise of their business judgment on behalf of the Trust.  If upon such consideration a majority of the independent Trustees determine that such a suit should be maintained, then the appropriate officers of the Trust shall either cause the Trust to commence that suit and such suit shall proceed directly rather than derivatively, or permit the complaining Shareholder to proceed derivatively, provided however that any counsel representing the interests of the Trust or the affected Series shall be approved by the Trustees.  The Trustees, or the appropriate officers of the Trust, shall inform the complaining Shareholder of any decision reached under this sub-paragraph (1) by sending in accordance with the provisions of Section 4.12 hereof written notice to the complaining Shareholder, or the Shareholder’s counsel, if represented by counsel, within five business days of such decision having been reached.

 

                (2)    If notice of a decision has not been sent to the complaining Shareholder or the Shareholder’s counsel within the time permitted by paragraph (1) above, and sub-paragraphs (i) through (iv) of paragraph (b) above have been complied with, the complaining Shareholder shall not be barred by this Declaration from commencing a derivative action.

 

                (d)    A complaining Shareholder whose demand is rejected pursuant to paragraph (c)(1) above shall be responsible for the costs and expenses (including attorney fees) incurred by the Trust in connection with the Trust’s consideration of the demand if a

 

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court determines that the demand was made without reasonable cause or for an improper purpose.  A Shareholder who commences or maintains a derivative action in violation of this Section 9.8 shall reimburse the Trust for the costs and expenses (including attorneys’ fees) incurred by the Trust in connection with the action if the action is dismissed on the basis of the failure to comply with this Section 9.8.  If a court determines that any derivative action has been brought without reasonable cause or for an improper purpose, the costs and expenses (including attorneys’ fees) incurred by the Trust in connection with the action shall be borne by the Shareholder who commenced the action.

 

                (e)    The Trust shall be responsible for payment of attorneys’ fees and legal expenses incurred by a complaining Shareholder in any circumstances only if required by law.  Any attorneys’ fees so incurred by a complaining Shareholder that the Trust is obligated to pay on the basis of hourly rates shall be calculated using reasonable hourly rates.

 

                (f)  A Shareholder of a particular Series of the Trust shall not be entitled in such capacity to commence a derivative action on behalf of any other Series of the Trust.

 

ARTICLE X

 

TERMINATION; MERGERS AND SALE OF ASSETS

 

                Section 10.1.  Termination of Trust or Series .    (a)    Unless terminated as provided herein, the Trust shall continue without limitation of time.  The Trust or any Series of the Trust may be terminated at any time by the Trustees by written notice to the Shareholders of the Trust or such Series as the case may be.

 

                (b)    Upon the requisite action of the Trustees to terminate the Trust or such Series, after paying or otherwise providing for all charges, taxes, expenses and liabilities, whether due or accrued or anticipated, as may be determined by the Trustees, which may include the establishment of a liquidating trust or similar vehicle, the Trust shall, in accordance with such procedures as the Trustees consider appropriate, reduce the remaining assets of the Trust or assets of the particular Series thereof to distributable form in cash or other securities, or any combination thereof, and distribute the proceeds to the Shareholders of the Shares of the Trust or such Series in the manner determined by the Trustees, provided that Shareholders of a particular Series shall be entitled to receive a pro rata share of the net assets of such Series only, subject to any variations with respect to Classes of Shares of such Series, if any.  Thereupon, the Trust or any affected Series shall terminate, and the Trustees and the Trust shall be discharged of any and all further liabilities and duties relating thereto or arising therefrom, and the right, title, and interest of all parties with respect to the Trust or such Series shall be canceled and discharged.  The Trustees shall file or cause to be filed any instruments as may be required to be filed with the Commonwealth of Massachusetts or any other governmental office where such filing may be required in connection with the termination of the Trust or any Series thereof.

 

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                (c)  Any Class of the Trust may be terminated by the Trustees as provided in Article IV hereof.

 

                Section 10.2.  Sale of Assets; Reorganization .    The Trustees may authorize the Trust or any Series or Class thereof to sell, lease, transfer, pledge, exchange, convey or dispose of all or substantially all of the Trust Property (or all or substantially all of the Trust Property allocated or belonging to a particular Series or Class), including its good will, to any one or more business trusts or other business entities or series or classes thereof (including another Series or Class of the Trust) upon such terms and conditions and for such consideration (which may include the assumption of some or all of the outstanding obligations and liabilities, accrued or contingent, whether known or unknown, of the Trust or such Series or Class).  Without limiting the generality of the foregoing, this provision may be utilized to permit the Trust or any Class thereof to pursue its investment program through one or more subsidiary vehicles or to operate in a master-feeder or fund of funds structure.

 

                Section 10.3.  Combination of Classes .   The authority of the Trustees under this Article X with respect to the merger, consolidation, sale of assets or reorganization of any Class of the Trust or any Series thereof is in addition to the authority of the Trustees under Section 4.9 hereof to combine two or more Classes of a Series into a single Class.

 

ARTICLE XI

 

AMENDMENTS; FILINGS; MISCELLANEOUS

 

                Section 11.1.  Amendments to Declaration.   (a)    The Trustees may by vote of a majority of the Trustees then in office amend or otherwise supplement the Declaration by making an amendment, a Declaration supplemental hereto or an amended and restated Declaration, provided, however, that an amendment to any provision of Article V hereof shall require the vote of two-thirds (2/3) of the Trustees then in office.

 

(b)    Nothing contained in this Declaration shall permit the amendment of this Declaration to impair the exemption from personal liability of any Person who is or has been a Shareholder, Trustee, officer, or employee of the Trust, or limit the rights to indemnification or insurance provided in Article IX with respect to actions or omissions of persons entitled to indemnification under such Article prior to such amendment.

 

                Section 11.2.  Filings; Copies of Declaration; Counterparts; Headings.   The original or a copy of this instrument and of each amendment and/or restatement hereto shall be kept in the office of the Trust where it may be inspected by any Shareholder.  A copy of this instrument, any amendment thereto, and any Designation executed in accordance with Section 4.9 hereof shall be filed by the Trustees with the Secretary of the Commonwealth of Massachusetts, as well as any other governmental office where such filing may from time to time be required, provided, however, that the failure to so file

 

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will not invalidate this instrument, any properly authorized amendment hereto, or Designation.  Anyone dealing with the Trust may rely on a certificate by an officer or Trustee of the Trust as to whether or not any such amendments, restatements or Designations have been made and as to any matters in connection with the Trust hereunder, and with the same effect as if it were the original, may rely on a copy certified by an officer or Trustee of the Trust to be a copy of this instrument or of any such amendments, restatements or Designations.  This instrument may be executed in any number of counterparts, each of which shall be deemed an original.  Headings are placed herein for convenience of reference only, and in case of any conflict, the text of this instrument, rather than the headings, shall control.

 

                Section 11.3.  Trustees May Resolve Ambiguities.   The Trustees may construe any of the provisions of this Declaration insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof, and any such construction hereof by the Trustees in good faith shall be conclusive as to the meaning to be given to such provisions.

 

                Section 11.4.  Applicable Law; Jury Waiver .  (a)    The Trust set forth in this instrument is created under and is to be governed by and construed and administered according to the laws of the Commonwealth of Massachusetts, without reference to its conflicts of law rules, as a Massachusetts business trust, and without limiting the provisions hereof, the Trust specifically reserves the right to exercise any of the powers and privileges afforded to business trusts or actions that may be engaged in by business trusts, and the absence of a specific reference herein to any such power, privilege, or action shall not imply that the Trust may not exercise such power or privilege or take such actions.

 

                (b)    Notwithstanding the first sentence of Section 11.4(a) hereof, there shall not be applicable to the Trust, the Trustees, or this Declaration any provisions of the laws (statutory or common) of the Commonwealth of Massachusetts (other than Chapter 182 of the Massachusetts General Laws) or any other state pertaining to trusts, including by way of illustration and without limitation, laws that relate to or regulate:  (i) the filing with any court or governmental body or agency of trustee accounts or schedules of trustee fees and charges; (ii) affirmative requirements to post bonds for trustees, officers, agents, or employees of a trust; (iii) the necessity for obtaining a court or other governmental approval concerning the acquisition, holding, or disposition of real or personal property; (iv) fees or other sums applicable to trustees, officers, agents or employees of a trust; (v) the allocation of receipts and expenditures to income or principal; (vi) restrictions or limitations on the permissible nature, amount, or concentration of trust investments or requirements relating to the titling, storage, or other manner of holding of trust assets; or (vii) the establishment of fiduciary or other standards or responsibilities or limitations on the acts or powers or liabilities or authorities and powers of trustees, if such laws are inconsistent with the authorities and powers or limitation on liability of the Trustees set forth or referenced in this Declaration.

 

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                (c)    No provision of this Declaration shall be effective to require a waiver of compliance with any provision of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended or the 1940 Act, or of any valid rule, regulation or order of the Commission thereunder.

 

                (d)    Any action commenced by a Shareholder, directly or derivatively, against the Trust or a Series or Class thereof, its Trustees or officers, shall be brought only in the U.S. District Court for the Northern District of Illinois, or if such action may not be brought in that court, then such action shall be brought in Illinois state court (the “Chosen Courts”).  The Trust, its Trustees and officers, and its Shareholders (a) waive any objection to venue in either Chosen Court and (b) waive any objection that either Chosen Court is an inconvenient forum.

 

                (e)    In any action commenced by a Shareholder against the Trust or any Class thereof, its Trustees or officers, or as a derivative action on behalf of the Trust, or any Class thereof, there shall be no right to a jury trial.  THE RIGHT TO A TRIAL BY JURY IS EXPRESSLY WAIVED TO THE FULLEST EXTENT PERMITTED BY LAW.

 

                Section 11.5.  Provisions in Conflict with Law or Regulations.   (a)     The provisions of this Declaration are severable, and if the Trustees shall determine, with the advice of counsel, that any such provision, in whole or in part, is in conflict with the 1940 Act, the regulated investment company provisions of the Code, and the regulations thereunder, or with other applicable laws and regulations, the conflicting provision, or the conflicting part or parts thereof, shall be deemed not to constitute a part of this Declaration; provided, however, that such determination shall not affect any of the remaining provisions of this Declaration or render invalid or improper any action taken or omitted prior to such determination.

 

                (b)    If any provision of this Declaration shall be held invalid or unenforceable, in whole or in part, in any jurisdiction, such invalidity or unenforceability shall attach only to such provision, or such part or parts thereof, in such jurisdiction and shall not in any manner affect such provision in any other jurisdiction or any other provision of this Declaration in any jurisdiction.

 

                Section 11.6.  Writings.   To the fullest extent permitted by applicable law, except as the Trustees may otherwise determine:

 

                (a)    any requirements in this Declaration or in the By-laws that any action be taken by means of any writing, including, without limitation, any written instrument, any written consent or any written agreement, shall be deemed to be satisfied by means of any electronic record in such form that is acceptable to the Trustees provided such form is capable of conversion into a written form within a reasonable time; and

 

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                (b)    any requirements in this Declaration or in the By-laws that any writing be signed shall be deemed to be satisfied by any electronic signature in such form that is acceptable to the Trustees.

 

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                IN WITNESS WHEREOF, the undersigned, being the sole Trustee of the Trust, has executed this instrument as of the date first written above.

 

 

 

/s/ H. Bruce Bond

 

H. Bruce Bond, as Trustee

 

301 West Roosevelt Road

 

Wheaton, Il 60187

 

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SCHEDULE A

Series

(Effective as of August 3, 2007)

 

                WHEREAS, the Trustee(s) of the Trust, acting pursuant to Section 4.9 of the Declaration, desire to divide the Shares of the Trust into one Series;

 

                NOW THEREFORE, the Trustee(s) of the Trust do hereby establish and designate the following Series of the Trust, with such relative rights, preferences, privileges, limitations, restrictions and other relative terms as are set forth below:

 

PowerShares India Portfolio

 

1.             Each Share of each Series is entitled to all the rights and preferences accorded to Shares under the Declaration.

 

2.             The number of authorized Shares of each Series is unlimited.

 

3.             Each Series shall be authorized to hold cash, invest in securities, instruments and other property, use investment techniques, and have such goals or objectives as from time to time described in the prospectus and statement of additional information contained in the Trust’s then currently effective registration statement under the Securities Act of 1933 to the extent pertaining to the offering of Shares of the Series, as the same may be amended and supplemented from time to time (“Prospectus”).  Each Share of a Series shall represent a beneficial interest in the net assets allocated or belonging to such Series only, and such interest shall not extend to the assets of the Trust generally (except to the extent that General Assets (as defined in the Declaration) are allocated to such Series), and shall be entitled to receive its pro rata share of the net assets of the Series upon liquidation of the Series, all as set forth in Section 4.9 of the Declaration.

 

4.             With respect to each Series, (a) the purchase price of the Shares, (b) fees and expenses, (c) qualifications for ownership, if any, (d) the method of determination of the net asset value of the Shares, (e) minimum purchase amounts, if any, (f) minimum account size, if any, (g) the price, terms and manner of redemption of the Shares, (h) any conversion or exchange feature or privilege, (i) the relative dividend rights, and (j) any other relative rights, preferences, privileges, limitations, restrictions and other relative terms have been established by the Trustees in accordance with the Declaration and are set forth in the Prospectus with respect to such Series.

 

5.             The Trustees may from time to time modify any of the relative rights, preferences, privileges, limitations, restrictions and other relative terms of a Series that have been established by the Trustees or redesignate any of the Series without any action or consent of the Shareholders.

 

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6.             The designation of any Series hereby shall not impair the power of the Trustees from time to time to designate additional Series of Shares of the Trust.

 

7.             Capitalized terms not defined herein have the meanings given to such terms in the Declaration.

 

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Exhibit 99.(b)

 

BY-LAWS

OF

POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST

Dated: August 6, 2007

 

ARTICLE 1

Declaration of Trust and Principal Office

 

1.1  Declaration of Trust.  These By-laws are adopted pursuant to Section 6.8 of the Declaration of Trust, as from time to time in effect (the “Declaration”), of PowerShares India Exchange-Traded Fund Trust (the “Trust”) and shall be subject to the terms of the Declaration.  Any capitalized term not otherwise defined herein shall have the same meaning given to such term in the Declaration.  In the event of any inconsistency between the terms of these By-Laws and the terms of the Declaration, the terms of the Declaration shall control.

 

1.2  Principal Office of the Trust.   The principal office of the Trust is 301 West Roosevelt Road, Wheaton Il 60187, or such other place as shall be determined by the Trustees from time to time.

 

ARTICLE 2

Trustees

 

2.1 Chair .  The Trustees may elect from their own number a Chair to hold office until his or her successor shall have been duly elected and qualified or until his or her earlier death, resignation, removal or disqualification.  The Chair (or, if the Chair is unable to attend any such meeting, the Chair’s designee) shall preside at all meetings of the Trustees and the Shareholders.  The Chair shall have such other duties and powers as the Trustees may from time to time determine.

 

2.2  Regular Meetings.   Regular meetings of the Trustees may be held without call or notice at such places (including for these purposes, by means of conference telephone circuit, video conferencing or similar communications equipment by means of which all persons participating in the meeting can hear each other as provided for in the Declaration) as the Trustees may from time to time determine.

 

2.3  Special Meetings.   Special meetings of the Trustees may be held at any time and at any place (including for these purposes, by means of conference telephone circuit, video conferencing or similar communications equipment by means of which all persons participating in the meeting can hear each other as provided for in the Declaration) designated in the call of the meeting when called by the Chair, the President or the Secretary or by two or more Trustees, sufficient notice thereof as described in Section 2.4 below being given to each Trustee by the Secretary or an Assistant Secretary or by the person calling the meeting.

 

2.4  Notice of Special Meetings.   It shall be sufficient notice to a Trustee of a special meeting to send notice by overnight mail at least two days or by email or facsimile at least one day before the meeting addressed to the Trustee at his or her usual or last known business or residence address, email address or facsimile number as applicable, or to give notice in person or by telephone one day before the meeting.  Notice may be sent on the day of the special meeting by email, facsimile or other electronic means, or given by telephone or in person, if under the

 



 

circumstances the party calling the meeting deems more immediate action to be necessary or appropriate.  Notice of a special meeting need not be given to any Trustee if a written waiver of notice, executed by him or her before or after the meeting, is filed with the records of the meeting, or to any Trustee who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him or her.  Neither notice of a meeting nor a waiver of a notice need specify the purposes of the meeting.

 

2.5  Quorum and Manner of Acting.   At any meeting of the Trustees a majority of the Trustees then in office shall constitute a quorum.  Any meeting may be adjourned from time to time by a majority of the votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice.  A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal from the meeting of one or more Trustees if any action taken is approved by at least a majority of the required quorum for that meeting.  The Declaration contains further provisions relating to the manner of acting by the Trustees.

 

2.6  Actions by Consent.   If in accordance with the provisions of the Declaration any action is taken by the Trustees by a written consent of fewer than all of the Trustees, prompt notice of any such action shall be furnished to each Trustee who did not execute such written consent, provided that the effectiveness of such action shall not be impaired by any delay or failure to furnish such notice.  Any written consents may be executed and delivered by electronic means.  The Declaration contains further provisions relating to action by consent of the Trustees.

 

2.7.  Counsel and Experts.   The Trustees who are not Interested Persons may, by vote of a majority of such Trustees, at the Trust’s expense, hire such employees and retain such counsel, accountants, appraisers or other experts or consultants whose services such Trustees may, in their discretion, determine to be necessary or desirable from time to time, including services to one or more committees established by the Trustees, and may execute any agreements, contracts, instruments or other documents in connection therewith.

 

ARTICLE 3

Committees

 

3.1  Establishment and Authority.  The Declaration contains provisions relating to the establishment of committees by the Trustees.  Each committee shall have such powers and authority as shall be authorized by the Trustees, and may fix its own rules and procedures, and adopt its own charter, in each case subject to approval by the Trustees.  The Trustees may abolish any such committee at any time in their sole discretion.  Any committee to which the Trustees delegate any of their powers shall maintain records of its meetings and shall report its actions to the Trustees.  The Trustees shall have the power to rescind any action of any committee, but no such rescission shall have retroactive effect.  The Trustees shall have the power at any time to fill vacancies in the committees.  The Trustees may designate one or more Trustees as alternate members of any committee who may replace any absent member at any meeting of the committee.

 

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3.2  Quorum; Voting. Unless the specific rules and procedures adopted by a committee in accordance with Section 3.1 provide otherwise, a majority of the members of any committee of the Trustees shall constitute a quorum for the transaction of business, and any action of such a committee may be taken at a meeting by a vote of a majority of the members present (a quorum being present) or evidenced by one or more writings signed by such a majority (which writings may be executed and/or delivered by electronic means).  Members of a committee may participate in a meeting of such committee by means of a conference telephone circuit, video conferencing or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting.

 

3.3  Compensation of Members.  The chair, if any, and members of any duly appointed committee shall receive such compensation and/or fees and reimbursement for expenses as from time to time may be determined by the Trustees.

 

ARTICLE 4

Officers

 

4.1  Enumeration; Qualification.   The officers of the Trust shall be a President, a Treasurer, a Secretary, and such other officers as the Trustees from time to time may in their discretion elect, appoint or authorize in accordance with Section 4.2 below.  Any officer of the Trust may but need not be a Trustee or a Shareholder.  Any two or more offices, except those of President and Vice-President, may be held by the same person.

 

4.2  Election.   The President, the Treasurer and the Secretary shall be elected by the Trustees upon the occurrence of a vacancy in any such office.  Other officers, if any, may be elected or appointed by the Trustees at any time, or the Trustees may delegate to the President the power to appoint such other officers as the Trustees shall at any time or from time to time deem advisable.  Vacancies in any such other office may be filled at any time.  Each officer shall hold office at the pleasure of the Trustees.

 

4.3  Powers.   Subject to the other provisions of these By-Laws, each officer shall have, in addition to the duties and powers herein and in the Declaration set forth, such duties and powers as are commonly incident to the office occupied by him or her as if the Trust were organized as a Massachusetts business corporation and such other duties and powers as the Trustees may from time to time designate.

 

4.4  President.   Unless the Trustees otherwise provide, the President shall be the chief executive officer of the Trust.

 

4.5  Treasurer.   Unless the Trustees provide otherwise, the Treasurer shall be the chief financial and accounting officer of the Trust, and shall, subject to the provisions of the Declaration and to any arrangement made by the Trustees with a custodian, investment adviser or manager, or transfer, shareholder servicing or similar agent, be in charge of the valuable papers, books of

 

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account and accounting records of the Trust, and shall have such other duties and powers as may be designated from time to time by the Trustees or by the President.

 

4.6  Secretary.   The Secretary shall record all proceedings of the Shareholders and the Trustees in books to be kept therefor.  In the absence of the Secretary from any meeting of the shareholders or Trustees, an Assistant Secretary, or if there be none or if he or she is absent, a temporary Secretary chosen at such meeting shall record the proceedings thereof in the aforesaid books.

 

4.7  Resignations and Removals.   Any officer may resign at any time by written instrument signed by him or her and delivered to the Chair, the President or the Secretary or to a meeting of the Trustees.  Such resignation shall be effective upon receipt unless specified to be effective at some other time.  The Trustees may by action of a majority of the Trustees then in office, remove any officer with or without cause.  Except to the extent expressly provided in a written agreement with the Trust, no officer resigning and no officer removed shall have any right to any compensation for any period following his or her resignation or removal, or any right to damages on account of such removal.

 

ARTICLE 5

Shareholders

 

5.1  Meetings.   There shall be no annual meetings of Shareholders except as required by law.  A meeting of the Shareholders of the Trust or of any Series shall be called by the Secretary whenever ordered by (i) a majority of Trustees then in office, (ii) the Chair or (iii) the President.  Meetings of the Shareholders of the Trust or of any Series shall also be called by the Secretary upon the order of the Trustees upon the written request of the Shareholders holding not less than one-third of the Outstanding Shares entitled to vote on the matters specified in such written request provided that (1) such request shall state the purposes of such meeting and the matters proposed to be acted on, and (2) the Shareholders requesting such meeting shall have paid to the Trust the reasonably estimated cost of preparing and mailing the notice thereof, which the Secretary shall determine and specify to such Shareholders.  If the meeting is a meeting of Shareholders of any one or more Series, but not a meeting of all Shareholders of the Trust, then only a special meeting of Shareholders of such Series need be called and, in such case, only Shareholders of such Series shall be entitled to notice of and to vote at such meeting.  The Trustees may determine, or may authorize the officers of the Trust to determine, the date, time and place for any meeting of Shareholders, which place may be within or outside the Commonwealth of Massachusetts.  Any meeting so called may be postponed or cancelled prior to the meeting, provided that notice of such postponement or cancellation is given to the Shareholders entitled to vote at that meeting , if notice of such meeting had been given to Shareholders.

 

5.2  Record Dates.   For the purpose of determining the Shareholders of the Trust or any Series who are entitled to vote or act at any meeting or any adjournment or postponement thereof, or who are entitled to receive payment of any dividend or of any other distribution, the Trustees may from time to time fix a time, or may authorize the officers to fix a time, which shall be not

 

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more than 120 days before the date set for any meeting of Shareholders (without regard to any adjournments or postponements thereof) or more than 60 days before the date of payment of any dividend or of any other distribution, as the record date for determining the Shareholders of the Trust or such Series having the right to notice of and to vote at such meeting and any adjournment or postponements thereof or the right to receive such dividend or distribution, and in such case only Shareholders on such record date shall have such right notwithstanding any transfer of shares on the books of the Trust after the record date; or without fixing such record date the Trustees may for any such purposes close the register or transfer books for all or part of such period.

 

5.3  Notice of Meetings .  Notice of all meetings of Shareholders and any postponements thereof, stating the time, place and purposes of the meeting, shall be given by the Secretary or the Trustees in accordance with Section 5.9 hereof at least seven days and not more than 120 days before the date for the meeting set forth in such notice, to each Shareholder of record of the applicable Series on the date set in accordance with Section 5.2 hereof.  Any adjourned meeting may be held as adjourned without further notice, even if the date of such adjourned meeting is more than 120 days after the notice of the original meeting or the postponement thereof, was mailed or sent.  Where separate meetings are held for Shareholders of one or more individual Series to vote on a matter required to be voted on by Shareholders of the Trust in the aggregate, notice of each such separate meeting shall be provided in the manner described above in this Section.

 

5.4  Quorum .  The holders of thirty percent (30%) of the Outstanding Shares entitled to vote and present in person or by proxy at the meeting shall constitute a quorum at any meeting of the Shareholders, except that where pursuant to any provision of law, the Declaration or these By-Laws a vote shall be taken by individual Series, then holders of thirty percent (30%) of the Outstanding Shares of that Series entitled to vote and present in person or by proxy shall be necessary to constitute a quorum for the transaction of business by that Series.  For the purposes of establishing whether a quorum is present, all Shares present and entitled to vote, including abstentions and broker non-votes, shall be counted.

 

5.5  Adjournments .  Any meeting of Shareholders may, by action of the person presiding thereat, be adjourned without further notice with respect to one or more matters to be considered at such meeting to a designated time and place, if a quorum is not present with respect to such matter; any meeting of Shareholders may, by motion of the person presiding thereat, be adjourned with respect to one or more matters to be considered at such meeting, even if a quorum is present with respect to such matters, to a designated time and place, when such adjournment is approved by the vote of holders of Shares representing a majority of the voting power of the Shares present and entitled to vote with respect to the matter or matters adjourned, and without further notice.  Unless a proxy is otherwise limited in this regard, any Shares present and entitled to vote at a meeting that are represented by broker non-votes, may, at the discretion of the proxies named therein, be voted in favor of such an adjournment.

 

5.6  Proxies .  At any meeting of Shareholders, any holder of Shares entitled to vote thereat may vote by proxy, provided that no proxy shall be voted at any meeting unless it shall have been placed on file with the Secretary, or with such other officer or agent of the Trust as the Trustees

 

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or officers may direct, for verification prior to the time at which such vote shall be taken.  In connection with the solicitation of proxies by the Trustees, a Shareholder may give instructions through telephonic or electronic methods of communication or via the Internet for another person to execute his or her proxy, if in each case such method has been authorized by the Trust by its officers, and pursuant in each case to procedures established or approved by the officers of the Trust or agents employed by the Trust for such purpose as reasonably designed to verify that such instructions have been authorized by such Shareholder; and the placing of a Shareholder’s name on a proxy pursuant to such instructions shall constitute execution of such proxy by or on behalf of such Shareholder.  Proxies may also be submitted via facsimile if such method has been authorized by the Trust by its officers, and pursuant to procedures established or approved by the officers of the Trust or agents employed by the Trust for such purpose.  Pursuant to a vote of the Trustees, proxies may be solicited in the name of one or more Trustees and/or one or more of the officers of the Trust.  When any Share is held jointly by several persons, any one of them may vote at any meeting in person or by proxy in respect of such Share, but if more than one of them shall be present at such meeting in person or by proxy and such joint owners or their proxies so present disagree as to any vote to be cast, such vote shall not be received in respect of such Share, but shall be counted as present at the meeting for all other purposes.  A proxy purporting to be executed by or on behalf of a Shareholder shall be deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger.  If the holder of any such Share is a minor or a person of unsound mind, and subject to guardianship or to the legal control of any other person as regards the charge or management of such Share, such Share may be voted by such guardian or such other person appointed or having such control, and such vote may be given in person or by proxy.  Unless otherwise specifically limited by their terms, proxies shall entitle the holder thereof to vote at any postponement or adjournment of a meeting, and no proxy shall be valid after eleven months from its date.  A Shareholder who has submitted a proxy may revoke or withdraw the proxy with respect to any matter to be considered at a meeting or any adjournment or postponement thereof if such revocation or withdrawal is properly received prior to the vote on that matter, by delivering a duly executed proxy bearing a later date or by attending the meeting or the adjournment or postponement thereof and voting in person on the matter or matters.

 

5.7  Conduct of Meetings.  For any matter to be properly before any meeting of Shareholders, the matter must be either specified in the notice of meeting given by or at the direction of a majority of the Trustees then in office or otherwise brought before the meeting by or at the direction of the Chair or other presiding officer.  With the exception of Shareholder proposals submitted in accordance with the requirements of Rule 14a-8 under the Securities Exchange Act of 1934, as amended, or any successor provisions, only matters proposed by the Trustees may be included in the Trust’s proxy materials.  The Trustees may from time to time in their discretion provide for procedures by which Shareholders may, prior to any meeting at which Trustees are to be elected, submit the names of potential candidates for Trustee, to be considered by the Trustees, or any proper committee thereof.  At all meetings of Shareholders, unless voting is conducted by inspectors, all questions relating to the qualification of voters and the validity of proxies and the acceptance or rejection of votes shall be decided by the Chair or other presiding officer.

 

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5.8  Inspectors of Election.  In advance of any meeting of Shareholders the Trustees, or at any such meeting the Trustees or the chair or other presiding officer, may appoint Inspectors of Election to act at the meeting or any adjournment thereof.  If any person appointed as inspector fails to appear or fails or refuses to act, the Chair or other presiding officer may appoint a person to fill the vacancy.  Unless otherwise instructed by the Trustees, or by the Chair or other presiding officer at the meeting, the Inspectors of Election shall determine the number of Shares outstanding, the Shares represented at the meeting, the existence of a quorum, the authenticity, validity and effect of proxies, shall receive votes, ballots or consents, shall hear and determine all challenges and questions in any way arising in connection with the right to vote, shall count and tabulate all votes and consents, determine the results, and do such other acts as may be proper to conduct the election or vote.

 

5.9  Communications with Shareholders.  Any notices, reports, statements or other communications with Shareholders of any kind required under the Declaration, these By-Laws or applicable law may be sent, delivered or made available in any reasonable manner as may be determined by the Trustees if not otherwise prohibited by applicable law, including, without limitation, by email or other electronic means or by posting on a website; and such communications may be sent, delivered or otherwise made available to Shareholders in accordance with householding or other similar rules under which a single copy of such notice or report may be sent to Shareholders who reside at the same address.  No communication need be given to any Shareholder who shall have failed to inform the Trust of the Shareholder’s current address and the Trustees may from time to time adopt, or may authorize the officers or agents of the Trust to adopt, procedures or policies with respect to communications to Shareholders that are returned to the Trust or its agents as undeliverable and similar matters.  Any Shareholder may waive receipt of any notice or other communication.  Communications shall be deemed to have been given at the time when delivered personally or deposited in the mail or with another carrier or sent by any means of written or electronic communication or, where notice is given by posting on a website or by publication, on the date of posting or publication.  An affidavit of the mailing or other means of giving any notice of any meeting of Shareholders shall be filed and maintained with the records of the Trust.

 

The foregoing provisions shall apply mutatis mutandis to any communications given to a Shareholder’s counsel under Section 9.8 of the Declaration, provided however that communications provided to either a Shareholder or Shareholder’s counsel under Section 9.8 may not by made by means of posting on a website or by publication.

 

ARTICLE 6

Shares and Share Certificates

 

6.1  Share Certificates.  Unless the issuance of certificates is authorized by the Trustees, Shares shall be held on the books of the Trust by one or more transfer agents appointed in accordance with Section 7.2 of the Declaration (each, a “Transfer Agent”) in uncertificated form, and the record holders of such shares shall be treated for all purposes as Shareholders under the Declaration.

 

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The Trustees may at any time authorize the issuance of share certificates for Shares of any Series in such form as the Trustees may prescribe from time to time.  Each such certificate shall bear a distinguishing number, shall exhibit the holder’s name and the number of whole shares owned by such holder, and shall be signed by the President or a Vice President and by the Treasurer or an Assistant Treasurer.  Such signatures may be facsimile, printed or engraved if the certificate is signed by the Transfer Agent with respect to such Shares or by a registrar.  In case any officer who has signed or whose facsimile signature has been placed on such certificate shall cease to be such officer before such certificate is issued, it may be issued by the Trust with the same effect as if he were such officer at the time of its issue.

 

6.2  Share Transfers.  Transfers of Shares of the Trust shall be made only on the books of the Trust, as maintained by the Transfer Agent with respect to such Shares, by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Transfer Agent for such Shares and upon surrender of any certificate or certificates representing such Shares, if any, properly endorsed and the payment of all taxes thereon.  Except as may be otherwise provided by law or these By-Laws, the person in whose name Shares stand on the books of the Trust shall be deemed the owner thereof for all purposes as regards the Trust; provided that properly documented pledges of Shares as collateral security may be accounted for by the Transfer Agent in accordance with its standard procedures with respect thereto.

 

6.3  Loss of Certificates.   The Transfer Agent for any Series, with the approval of any two officers of the Trust, is authorized to issue and countersign replacement certificates for Shares which have been lost, stolen or destroyed upon (i) receipt of an affidavit or affidavits of loss or non receipt and of an indemnity agreement executed by the registered holder or his legal representative and supported by an open penalty surety bond, said agreement and said bond in all cases to be in form and content satisfactory to and approved by the President or the Treasurer, or (ii) receipt of such other documents and assurances as may be approved by the Trustees.

 

6.4.  Regulations .  The Trustees may make such additional rules and regulations, not inconsistent with these By-Laws, as they may deem expedient concerning the issue, certification, transfer and registration of Shares.

 

ARTICLE 7

Miscellaneous

 

7.1 Books and Records.  The books and records of the Trust and any Series thereof, including the share ledger or ledgers, may be kept in or outside the Commonwealth of Massachusetts at such office or offices of the Trust and/or its agents as may from time to time be determined by the officers of the Trust.

 

7.2  Access to Book and Records.  The Shareholders shall only have such right to inspect the records, documents, accounts and books of the Trust or any Series thereof as may be granted from time to time by the Trustees in their sole discretion.

 

7.3  Seal.  The Trustees may adopt a seal of the Trust which shall be in such form and shall have such inscription thereon as the Trustees may from time to time prescribe, but unless otherwise

 

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required by the Trustees, the seal shall not be necessary to be placed on, and its absence shall not impair the validity of, any document, instrument or other paper executed and delivered by or on behalf of the Trust.

 

7.4  Execution of Papers.  All deeds, leases, contracts, notes and other obligations made by the Trustees shall be signed by the President, any Vice President elected by the Trustees, the Treasurer, the Secretary or any other officer elected by the Trustees, except as the Trustees may generally or in particular cases authorize the execution thereof in some other manner, or as otherwise provided in these By-Laws.

 

7.5  Severability.  The provisions of these By-Laws are severable.  If the Trustees determine, with the advice of counsel, that any provision hereof conflicts with the 1940 Act, the regulated investment company or other provisions of the Code or with other applicable laws and regulations, the conflicting provision shall be deemed never to have constituted a part of these By-Laws; provided, however, that such determination shall not affect any of the remaining provisions of these By-Laws or render invalid or improper any action taken or omitted prior to such determination.  If any provision hereof shall be held invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall attach only to such provision only in such jurisdiction and shall not affect any other provision of these By-Laws.

 

7.6  Headings.   Headings are placed in these By-Laws for convenience of reference only and in case of any conflict, the text of these By-Laws rather than the headings shall control.

 

ARTICLE 8

Amendments to the Bylaws

 

8.1  General.   These By-Laws may be amended, supplemented, amended and restated, or repealed, in whole or in part, by a majority of the Trustees then in office at any meeting of the Trustees, or by one or more writings signed by such a majority.

 

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Exhibit 99.(d)(1)

 

FORM OF INVESTMENT ADVISORY AGREEMENT

 

Agreement made as of February     , 2008, between POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST, a Massachusetts business trust (“ Trust ”), and POWERSHARES CAPITAL MANAGEMENT LLC (“ PowerShares Capital Management ”), a Delaware limited liability company registered as an investment adviser under the Investment Advisers Act of 1940, as amended (“ Advisers Act ”).

 

WHEREAS, the Trust is registered under the Investment Company Act of 1940, as amended (“ 1940 Act ”), as an open-end management investment company; and

 

WHEREAS, the Trust is authorized to issue shares in separate series, with each such series representing interests in a separate portfolio of securities and other assets; and

 

WHEREAS, the Trust intends to initially offer shares of PowerShares India Portfolio (the “Fund”); and

 

WHEREAS, the Trust desires to retain PowerShares Capital Management as investment adviser, to furnish certain investment advisory and portfolio management services to the Trust with respect to the Fund, and PowerShares Capital Management is willing to furnish such services.

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, it is agreed between the parties hereto as follows:

 

1.              Appointment .  The Trust hereby appoints PowerShares Capital Management as investment adviser of the Trust and the Fund for the period and on the terms set forth in this Agreement.  PowerShares Capital Management accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.

 

2.              Duties as Investment Adviser .

 

(a)    Subject to the supervision and direction of the Trust’s Board of Trustees (“ Board ”), PowerShares Capital Management will provide a continuous investment program for the Fund, including investment research and management with respect to all securities and investments and cash equivalents in the Fund.  PowerShares Capital Management will determine, from time to time, what securities and other investments will be purchased, retained or sold by the Fund.  For in-kind purchases and redemptions, PowerShares Capital Management shall initially determine and make such modifications to the identity and number of shares of the securities to be accepted pursuant to the Fund’s benchmark index in exchange for creation units for the Fund and the securities that will be applicable that day to redemption requests received for the Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust’s custodian with respect to such designations).

 

(b)            PowerShares Capital Management agrees that, in placing orders with brokers, it will attempt to obtain the best net result in terms of price and execution; provided that, on behalf of the Fund, PowerShares Capital Management may, in its discretion, use brokers who provide PowerShares Capital Management with research, analysis, advice and similar services, and PowerShares Capital Management may cause the Fund to pay to those brokers in return for brokerage and research services a higher commission than may be charged by other brokers, subject to PowerShares Capital Management’s determining in good faith that such commission is reasonable in relation to the research and execution services received.  In no instance will portfolio securities be purchased from or sold to PowerShares

 



 

Capital Management, or any affiliated person thereof, except in accordance with the federal securities laws and the rules and regulations thereunder, or any applicable exemptive orders.  PowerShares Capital Management may aggregate sales and purchase orders with respect to the assets of the Fund with similar orders being made simultaneously for other accounts advised by PowerShares Capital Management or its affiliates.  Whenever PowerShares Capital Management simultaneously places orders to purchase or sell the same security on behalf of the Fund and one or more other accounts advised by PowerShares Capital Management, such orders will be allocated as to price and amount among all such accounts in a manner believed to be equitable, over time, to each account.  The Trust recognizes that in some cases this procedure may adversely affect the results obtained for the Fund.

 

(c)            PowerShares Capital Management will oversee the maintenance of all books and records with respect to the securities transactions of the Fund, and will furnish the Board with such periodic and special reports as the Board reasonably may request.  In compliance with the requirements of Rule 31a-3 under the 1940 Act, PowerShares Capital Management hereby agrees that all records which it maintains for the Fund are the property of the Trust, agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any records which it maintains for the Trust and which are required to be maintained by Rule 31a-l under the 1940 Act, and further agrees to surrender promptly to the Trust any records which it maintains for the Fund upon request by the Trust.

 

(d)            PowerShares Capital Management will oversee the computation of the net asset value and the net income of the Fund as described in the currently effective registration statement of the Trust under the Securities Act of 1933, as amended, and the 1940 Act, and any amendments or supplements thereto (“ Registration Statement ”) or as more frequently requested by the Board.

 

(e)            The Trust hereby authorizes PowerShares Capital Management and any entity or person associated with PowerShares Capital Management which is a member of a national securities exchange to effect any transaction on such exchange for the account of the Fund, which transaction is permitted by Section 11(a) of the Securities Exchange Act of 1934 and the rules thereunder, and the Trust hereby consents to the retention of compensation by PowerShares Capital Management or any person or entity associated with PowerShares Capital Management for such transaction.

 

3.              Use of Name .  The Trust may use the name “PowerShares” or any variant thereof in connection with the name of the Trust or the Fund, only for so long as this Agreement or any extension, renewal or amendment hereof remains in effect.  At such time as this Agreement shall no longer be in effect, the Trust shall cease to use such a name or any other similar name.

 

In no event shall the Trust use the name “PowerShares” or any variant thereof if PowerShares Capital Management’s functions are transferred or assigned to a company over which PowerShares Capital Management does not have control or with which it is not affiliated.  In the event that this Agreement shall no longer be in effect or PowerShares Capital Management’s functions are transferred or assigned to a company over which PowerShares Capital Management does not have control or with which it is not affiliated, the Trust shall use its best efforts to legally change its name by filing the required documentation with appropriate state and federal agencies.

 

4.              Further Duties .  In all matters relating to the performance of this Agreement, PowerShares Capital Management will act in conformity with the Declaration of Trust, By-Laws, and Registration Statement of the Trust and with the instructions and directions of the Board and will comply with the requirements of the 1940 Act, the rules thereunder, and all other applicable federal and state laws and regulations applicable to the Trust and the Fund.

 



 

5.              Services Not Exclusive .  The services furnished by PowerShares Capital Management hereunder are not to be deemed exclusive and PowerShares Capital Management shall be free to furnish similar services to others so long as its services under this Agreement are not impaired thereby or unless otherwise agreed to by the parties hereunder in writing.  Nothing in this Agreement shall limit or restrict the right of any director, officer or employee of PowerShares Capital Management, who may also be a Trustee (“ Board member ”), officer or employee of the Trust, to engage in any other business or to devote his or her time and attention in part to the management or other aspects of any other business, whether of a similar nature or a dissimilar nature.

 

6.              Expenses .  During the term of this Agreement, the Adviser shall pay all of the expenses of the Fund and any Subsidiary authorized pursuant to Section 9 of this Agreement, except that the Fund will pay the fee payment under this Agreement, payments under the Fund’s 12b-1 plan, if any, brokerage expenses, taxes, interest and extraordinary expenses, and the Subsidiary will pay for its brokerage expenses, taxes, interest and charges and extraordinary expenses.

 

7.              Compensation .  For the services to be provided by PowerShares Capital Management hereunder, the Fund shall pay to PowerShares Capital Management a fee at the annual rate of [      ]% of the Fund’s average daily net assets, accrued daily at the rate of 1/365th of the fee rate, payable monthly on the first business day of each month, so long as the Adviser has not waived all or a portion of such compensation.

 

8.              Engagement of Sub-Advisers .  Subject to the prior approval of a majority of the members of the Trust’s Board, including a majority of the Trustees who are not “interested persons,” as defined in the 1940 Act (“ Independent Board Members ”), PowerShares Capital Management may, through a sub-advisory agreement or other arrangement, delegate to any other company under PowerShares Capital Management’s control, or under common control with PowerShares Capital Management, or to specified employees of any such companies, or to more than one such company, to the extent permitted by applicable law, certain of PowerShares Capital Management’s duties enumerated in section 2 hereof; provided, that PowerShares Capital Management shall continue to supervise and oversee the services provided by such company or employees and any such delegation shall not relieve PowerShares Capital Management of any of its obligations hereunder.

 

Subject to the prior approval of a majority of the members of the Trust’s Board, including a majority of the Independent Board Members, PowerShares Capital Management may, through a sub-advisory agreement, delegate to any other company that is not an “affiliated person” (as defined in the 1940 Act) of PowerShares Capital Management or of the Trust (other than by reason of serving as an investment adviser to the Trust) (each a “sub-adviser”), to the extent permitted by applicable law, certain of the duties enumerated in section 2 hereof; provided, that PowerShares Capital Management shall continue to supervise and oversee the services provided by such sub-adviser and any such delegation shall not relieve PowerShares Capital Management of any of its obligations hereunder.

 

Subject to the provisions of this Agreement, the duties of any sub-adviser or delegate, the portion of portfolio assets of the Trust that the sub-adviser or delegate shall manage and the fees to be paid to the sub-adviser or delegate by PowerShares Capital Management under and pursuant to any sub-advisory agreement or other arrangement entered into in accordance with this Agreement may be adjusted from time to time by PowerShares Capital Management, subject to the prior approval of a majority of the Independent Board Members.

 

9.              Investment through a Wholly-Owned Subsidiary.   Subject to the prior approval of a majority of the members of the Trust’s Board, including a majority of the Independent Board Members,

 



 

PowerShares Capital Management may invest all of the Fund’s assets in a wholly-owned subsidiary (“Subsidiary”).

 

10.            Limitation of Liability .

 

(a)            PowerShares Capital Management shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Fund, the Trust or any of its shareholders, in connection with the matters to which this Agreement relates, except to the extent that such a loss results from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement.  Any person, even though also an officer, director, employee, or agent of PowerShares Capital Management, who may be or become an officer, Board member, employee or agent of the Trust shall be deemed, when rendering services to the Fund or the Trust or acting with respect to any business of the Fund or the Trust, to be rendering such service to or acting solely for the Fund or the Trust and not as an officer, director, employee, or agent or one under the control or direction of PowerShares Capital Management even though paid by it.

 

(b)            PowerShares Capital Management is expressly put on notice of, and hereby acknowledges and agrees to, the limitation of shareholder liability as set forth in the Declaration of Trust of the Trust and agrees that the obligations assumed by the Trust under this contract shall be limited in all cases to the Trust and its assets.  PowerShares Capital Management shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Trust, nor shall PowerShares Capital Management seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Trust.  PowerShares Capital Management understands that the rights and obligations of each series of shares of the Trust under the Declaration of Trust are separate and distinct from those of any and all other series.

 

11.            Duration and Termination .

 

(a)            This Agreement shall become effective upon the date hereabove written.

 

(b)            Unless sooner terminated as provided herein, this Agreement shall continue in effect until April 30, 2009.  Thereafter, if not terminated, this Agreement shall continue automatically for successive periods of twelve months each, provided that such continuance is specifically approved at least annually:  (i) by a vote of a majority of the Independent Board Members of the Trust, cast in person at a meeting called for the purpose of voting on such approval, and (ii) by the Board or by vote of a majority of the outstanding voting securities of the Fund.

 

(c)            Notwithstanding the foregoing, this Agreement may be terminated at any time, without the payment of any penalty, by vote of the Board or by a vote of a majority of the outstanding voting securities of the Fund, on sixty days’ written notice to PowerShares Capital Management or by PowerShares Capital Management at any time, without the payment of any penalty, on sixty days’ written notice to the Trust.  This Agreement will automatically terminate in the event of its assignment.

 

12.            Amendment of this Agreement .  No provision of this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought, and no amendment of this Agreement shall be effective until approved by vote of a majority of the Fund’s outstanding voting securities.

 

13.            Governing Law .  This Agreement shall be construed in accordance with the laws of the State of Illinois, without giving effect to the conflicts of laws principles thereof, and in accordance with

 



 

the 1940 Act, provided, however, that to the extent that the applicable laws of the State of Illinois conflict with the applicable provisions of the 1940 Act, the latter shall control.

 

14.            Miscellaneous .  The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect.  If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors.  As used in this Agreement, the terms “majority of the outstanding voting securities,” “affiliated person,” “interested person,” “assignment,” “broker,” “investment adviser,” “national securities exchange,” “net assets,” “prospectus,” “sale,” “sell” and “security” shall have the same meaning as such terms have in the 1940 Act, subject to such exemption as may be granted by the Securities and Exchange Commission by any rule, regulation or order.  Where the effect of a requirement of the 1940 Act reflected in any provision of this Agreement is relaxed by a rule, regulation or order of the Securities and Exchange Commission, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order.

 



 

IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their officers designated as of the day and year first above written.

 

 

POWERSHARES INDIA EXCHANGE-
TRADED FUND TRUST

Attest:

 

 

By:

 

By:

 

 

 

Name:

Harold Bruce Bond

 

Name:

Bruce Duncan

 

 

Title

Chairman and CEO

 

Title:

Treasurer
PowerShares India
Exchange-Traded Fund Trust

 

 

 

 

 

 

 

 

POWERSHARES CAPITAL
MANAGEMENT LLC

 

 

Attest:

 

 

By:

 

By:

 

 

 

Name

Harold Bruce Bond

 

Name:

Bruce Duncan

 

 

Title:

President

 

Title:

Vice President
PowerShares Capital Management LLC

 

 

 


Exhibit 99.(d)(2)

 

POWERSHARES MAURITIUS

(the “Fund”)

 

and

 

POWERSHARES CAPITAL MANAGEMENT LLC

(the “Fund Manager”)

 

FORM OF MANAGEMENT AGREEMENT

 

relating to

 

POWERSHARES MAURITIUS

 

Dated this [day] of [month] 2008

 



 

TABLE OF CONTENTS

 

1.

Appointment

 

 

2.

Duties of the Fund Manager

 

 

3.

Powers of the Fund Manager

 

 

4.

Restrictions on the Fund Manager

 

 

5.

Compliance with Investment Strategy, Constitution, Resolutions … etc

 

 

6.

Provision of Information, Explanations and Reports

 

 

7.

Sub-Advisors

 

 

8.

Restrictions on Dealing

 

 

9.

Remuneration of Fund Manager

 

 

10.

Voting Rights of Investments

 

 

11.

Costs

 

 

12.

Variation of terms of Agreement

 

 

13.

Duration

 

 

14.

Termination

 

 

15.

Consequences of Termination

 

 

16.

Use of Name

 

 

17.

Notices

 

 

18.

Indemnity

 

 

19.

Non-Exclusivity

 

 

20.

Miscellaneous

 

 

21.

Proper Law and Jurisdiction

 

2



 

FORM OF MANAGEMENT AGREEMENT

 

THIS MANAGEMENT AGREEMENT , dated as of       , 2008 (this “Agreement”), by and between PowerShares Mauritius, a private Category 1 Global Business Company organised under the laws of Mauritius and licensed as a Collective Investment Scheme (the “Fund”) and PowerShares Capital Management LLC, (the “Fund Manager”), a limited liability company organized in Delaware in the United States of America and registered as an investment adviser under the Investment Advisers Act of 1940, as amended, under the laws of the United States of America;

 

W I T N E S S E T H:

 

WHEREAS , the Fund was organized pursuant to a constitution governing the affairs and conduct of the business of the Fund (as the same may be amended or supplemented from time to time, the “Constitution”);

 

WHEREAS , the Fund wishes to engage the Fund Manager to provide certain management services, and the Fund Manager is willing to provide such management services to the Fund, on the terms and conditions set forth in this Agreement;

 

WHEREAS , the Fund will be managed by its board of directors (together with any duly constituted committees thereof acting within their authority, the “Directors”);

 

NOW , THEREFORE , in consideration of the foregoing and the mutual covenants and agreements of the parties hereto as herein set forth, the parties agree as follows:

 

INTERPRETATION

 

In this Agreement the following expressions shall, save where otherwise defined or the context otherwise requires, bear the meanings set out opposite them respectively:-

 

‘Act’ means the Companies Act of 2001 of Mauritius, as amended from time to time.

 

‘Administrator’ means International Financial Services Limited, or such other corporation appointed and for the time being acting as administrator of the Fund.

 

‘Business Day’ means any day (except Saturday and Sunday) on which banks in the Republic of Mauritius and The New York Stock Exchange in New York City, New York, United States of America are open for business.

 

‘Code of Ethics’ means the code of ethics adopted by the Fund Manager in accordance with the Investment Company Act of 1940 Act, as amended, under the laws of the United States of America (the “1940 Act”).

 

‘Custodian’ means Brown Brothers Harriman & Co., 40 Water Street, Boston, Massachusetts, and HSBC (Bank) Mauritius Ltd. with a registered office at HSBC Offshore Banking Unit, 5th Floor, Les Cascades, Edith Cavell Street, Port Louis, Mauritius , acting as sub-custodian in Mauritius and Citibank, Mumbai, acting as sub-custodian in India or such other corporation appointed and for the time being acting as, custodian of the assets of the Fund.

 

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‘Independent Director’ has the same meaning given to that term in the 1940 Act.

 

‘Investment’ means any investment of the Fund made in accordance with the Investment Objective and the Investment Policy.

 

‘Investment Objective’ means to replicate as closely as possible, before fees and expenses, the price and yield of the Indus India Index (the “Index”) .

 

‘Investment Policy’ means the investment policy of the Fund (including its investment restrictions) as set forth from time to time with respect to PowerShares India Portfolio in the then current Prospectus (as defined below).

 

‘Management Fee’ means a fee payable to the Fund Manager in accordance with Clause 9.1 hereof.

 

‘Net Asset Value of the Fund’ means the Net Asset Value calculated in accordance with the Constitution.

 

‘PowerShares India Portfolio’ refers to a series of PowerShares India Exchange-Traded Fund, a business trust organized under the laws of the Commonwealth of Massachusetts in the United States of America (the “Trust”), and registered as an investment company under the 1940 Act.

 

‘PowerShares India Portfolio Management Agreement’ refers to the Investment Advisory Agreement made as of [February 22, 2008, between the Trust on behalf of PowerShares India Portfolio”, and PowerShares Capital Management LLC.

 

‘Prospectus’ means the then current prospectus and statement of additional information contained in the registration statement of PowerShares India Portfolio, filed with the United States Securities and Exchange Commission pursuant to the Securities Act of 1933 under the laws of the United States of America, as the same may be supplemented from time to time.

 

‘Shares’ means Participating Shares issued by the Fund.

 

‘Shareholder’ means PowerShares India Portfolio as the holder of Shares.

 

‘US$’ means the lawful currency of the United States of America.

 

Unless the context otherwise requires, and except as varied or otherwise specified in this Agreement, words and expressions defined in the Constitution shall have the same respective meanings when used in this Agreement.

 

Words denoting the singular number only shall include the plural number and vice versa; words denoting the masculine gender only shall include the feminine and neuter genders, words denoting persons shall include corporations and other bodies of persons.

 

The headings in this Agreement are inserted for convenience and ease of reference only and shall not be used for the purpose of interpretation of this Agreement.

 

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1.              APPOINTMENT

 

1.1            The Fund hereby appoints PowerShares Capital Management LLC as the Fund Manager to manage the Fund for the period and on the terms set forth in this Agreement , and the Fund Manager hereby accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided .

 

2.              DUTIES OF THE MANAGER

 

2.1            The Fund Manager shall (subject to the overall supervision of the Directors and subject to Clause 4) have full power, authority and right to exercise all powers, duties, discretions and functions exercisable by the Directors under the Constitution (other than the power to issue shares or forfeit shares and powers which may not be delegated under the Act), and without prejudice to the generality of the foregoing, the Fund Manager either itself or wholly or in part through its authorised agents or delegates approved for the purpose by such Directors shall provide a continuous investment program for the Fund, including investment research and management with respect to all securities and investments and cash equivalents in the Fund.  The Fund Manager will determine, from time to time, what securities and other investments will be purchased, retained or sold by the Fund.

 

2.2            The Fund Manager shall have and is hereby granted the authority, power and right for the account and in the name of the Fund, but subject to the supervision of the Directors:

 

2.2.1   to issue orders and instructions with respect to the disposition of Investments of the Fund;

 

2.2.2   to purchase or otherwise acquire, sell or otherwise dispose of and invest in the Investments for the account of the Fund and effect foreign exchange transactions on behalf of the Fund and for the account of the Fund in connection with any such purchase, other acquisition, sale or other disposal or the protection of the value of Investments; place orders with the same with brokers, provided that, in placing orders with brokers, it will attempt to obtain the best net result in terms of price and execution; provided further that, the Fund Manager may, in its discretion, use brokers who provide the Fund Manager with research, analysis, advice and similar services, and the Fund Manager may cause the Fund to pay to those brokers in return for brokerage and research services a higher commission than may be charged by other brokers, subject to the Fund Manager’s determining in good faith that such commission is reasonable in relation to the research and execution services received;

 

2.2.3   to apply to the relevant, authorities for, and to obtain from such authorities, all confirmations or consents relating to the taxation status of the Fund and all tax rebates and other payments which may be due to the Fund from time to time in respect of the Investments and in connection therewith the Fund Manager shall have and is hereby granted the authority to disclose to any such relevant

 

5



 

authorities such information in its possession regarding the Fund or its affairs as may be necessary or required; and

 

2.2.4   to negotiate in accordance with the instructions of the Directors all borrowing arrangements of the Fund and to supervise the implementation of such arrangements.

 

3.              POWERS OF FUND MANAGER

 

3.1            The Fund Manager shall pursue the Investment Objective and the Investment Policy in accordance therewith and shall have and is hereby granted the following authority, power and right for the account and in the name of the Fund but subject to the Act and the supervision of the Directors:

 

3.1.1   upon making its appropriate investment decisions, to issue orders or instructions to the Custodian, the Administrator and to such brokers as it may employ from time to time (or other agent or agents) with respect to the purchase, sale, dealing in and investment in Investments by the Fund and the disposition of Investments of the Fund; and

 

3.1.2   to enter into, make, and perform all contracts, agreements and other undertakings as may in the opinion of the Fund Manager be necessary or advisable or incidental to the carrying out of the objectives of this Agreement.

 

3.2            The authorities herein contained are continuing ones and shall remain in full force and effect until revoked by termination of this Agreement, provided that such revocation shall not affect any liability in any way resulting from transactions initiated prior to such revocation.

 

4.              RESTRICTIONS ON THE FUND MANAGER

 

The Fund Manager shall observe and comply with the Constitution as from time to time amended and with such other documents relating to the Fund distributed from time to time by or on behalf of the Fund and all resolutions of the Directors of which it has notice and other lawful orders and directions given to it from time to time by the Directors.  All activities engaged in by the Fund Manager hereunder shall at all times be subject to the control of and review by the Directors.  The Fund Manager shall not exercise on behalf of the Fund any of the powers which may not, under the Act, be delegated by the Directors.

 

5.             COMPLIANCE WITH INVESTMENT STRATEGY, CONSTITUTION, RESOLUTIONS ETC.

 

5.1            Without prejudice to the generality of Clause 4 hereof, the Fund Manager shall, in carrying out its duties, observe and comply with:

 

5.1.1   the overall Investment Objective and Investment Policy of the Fund and any changes to such Investment Objective and Investment Policy as communicated by the Directors to the Fund Manager from time to time in writing;

 

6



 

5.1.2   any reasonable specific or general instructions which the Directors may give in writing to the Fund Manager from time to time with regard to the acquisition, holding or disposal of Investments, or otherwise; and

 

5.1.3    any restrictions or policy statements with regard to investment, borrowing or otherwise for the time being contained in the Constitution.

 

6.              PROVISION OF INFORMATION, EXPLANATIONS AND REPORTS

 

6.1            The Fund Manager will oversee the maintenance of all books and records with respect to the securities transactions of the Fund, will furnish the Directors promptly with such periodic and special reports as the Directors may reasonably request, and the Fund Manager agrees to keep such books and records in accordance with applicable laws, including, without limitation, the requirements of Rule 31a-3 under the 1940 Act for the periods prescribed by Rule 31a-2 under the 1940 Act as if the Fund were subject to the requirements of such Act and the Fund Manager hereby agrees to preserve any records which it maintains for the Fund and which are required to be maintained by Rule 31a-l under the 1940 Act, and further agrees to surrender promptly to the Fund and the Shareholder copies or originals of any records which it maintains for the Fund upon request, provided that copies of any such records delivered to the Shareholder shall be provided to the Fund.

 

6.2            The Fund Manager will oversee the computation of the net asset value and the net income of the Fund in accordance with the Constitution and the Prospectus or as more frequently requested by the Board.

 

6.3            Whenever reasonably requested by the Board, the Fund Manager will delegate a representative to attend meetings of the Board, whether in person or by telephone or video link, to provide such reports to the Board.

 

7.              SUB-ADVISERS

 

7.1            Subject to the prior approval of a majority of the Fund’s Directors and the Shareholder’s Independent Directors, the Fund Manager may, through a sub-advisory agreement or other arrangement, delegate to any other company under PowerShares Capital Management’s control, or under common control with PowerShares Capital Management, or to specified employees of any such companies, or to more than one such company, to the extent permitted by applicable law, certain of the Fund Manager’s duties enumerated in Clause 2 and Clause 3 hereof; provided, that the Fund Manager shall continue to supervise and oversee the services provided by such company or employees and any such delegation shall not relieve the Fund Manager of any of its obligations hereunder and provided further that such company or employees shall not be resident in India.

 

7.2            Subject to the provisions of this Agreement, the duties of any sub-adviser or delegate, the portion of portfolio assets of the Fund that the sub-adviser or delegate shall manage and the fees to be paid to the sub-adviser or delegate

 

7



 

by the Fund Manager under and pursuant to any sub-advisory agreement or other arrangement entered into in accordance with this Agreement may be adjusted from time to time by the Fund Manager, subject to the prior approval of a majority of the Fund’s Directors and the Shareholder’s Independent Directors.

 

8.              RESTRICTION ON DEALING

 

8.1            In no instance will portfolio securities be purchased from or sold to the Fund Manager, or any affiliated person thereof, except in accordance with applicable laws and rules and regulations, including, without limitation, the 1940 Act, or any applicable exemptions therefrom.  The Fund Manager may aggregate sales and purchase orders with respect to the assets of the Fund with similar orders being made simultaneously for other accounts advised by the Fund Manager or its affiliates.  Whenever the Fund Manager simultaneously places orders to purchase or sell the same security on behalf of the Fund and one or more other accounts advised by the Fund Manager, such orders will be allocated as to price and amount among all such accounts in a manner believed to be equitable, over time, to each account.  The Fund recognizes that in some cases this procedure may adversely affect the results obtained for the Fund.

 

8.2            Nothing herein contained shall prevent the Fund Manager or any of its affiliates from buying, holding and dealing in any Investments upon their respective individual accounts notwithstanding the fact that similar investments may be held by the Custodian for the account of the Fund, provided that any such transaction will be carried out with due regard for the fiduciary responsibility of the Fund Manager and in accordance with its Code of Ethics.

 

9.              REMUNERATION OF FUND MANAGER

 

The Fund Manager acknowledges and agrees that it has entered into the PowerShares India Portfolio Management Agreement with the Shareholder, which provides compensation to the Fund Manager for the services to be provided by the Fund Manager hereunder with respect to the Fund, as well as for services provided thereunder to the Shareholder, and that such compensation shall constitute full and fair consideration for any services rendered hereunder.

 

10.           VOTING RIGHTS OF INVESTMENTS

 

10.1           All rights of voting conferred by any Investment of the Fund shall be exercised in such manner as the Fund Manager may determine in accordance with its proxy policies and procedures, which have been made available to the Directors, and the Fund Manager will keep all necessary records of the Fund’s proxy voting record and subject as aforesaid, the Fund Manager may in its discretion refrain from the exercise of such voting rights.

 

10.2           The Fund shall from time to time upon written request from the Fund Manager execute and deliver or cause to be executed and delivered to the Fund Manager or its nominees such powers of attorney or proxies as may reasonably be required authorising such attorneys or proxies to vote, consent

 

8



 

or otherwise act in respect of all or any part of the Investments of the Fund.  The term ‘right to vote’, and the word ‘vote’ as used in this Clause shall include not only a vote at a meeting, but any consent to or approval of any arrangement, scheme or resolution or any alteration in or abandonment of any right attaching to any part of the assets of the, relevant company and the right to requisition or convene a meeting or to give notice to any resolution or to circulate any statement.

 

11.           COSTS

 

11.1          Save as provided in Clause 11.2 below, the Fund Manager will bear all costs and expenses incurred by it and its agents (if any) in connection with its duties hereunder including, without limitation, the following:

 

11.1.1 professional fees and other expenses in connection with the incorporation and initial organisation of the Fund or the initial and further issue of Shares;

 

11.1.2  the Fund Manager’s legal and professional expenses incurred in relation to the negotiation, preparation and settling of any agreements in connection with the incorporation and initial organization of the Fund;

 

11.1.3 salaries, wages, fringe benefits, travel and accommodation (with the exception of travel expenses associated with attending shareholders and directors meetings of the Fund), communication and other expenses;

 

11.1.4 rentals and utilities payable in connection with the use of office space; and

 

11.1.5 except to the extent explicitly otherwise provided for in Clause 11.2, the costs of all consultants, other experts, and advisory services engaged by the Fund Manager to assist the Fund Manager in discharging its duties hereunder.

 

11.2          The following will be paid for by the Fund:

 

11.2.1 the fee payment, if any, under this Agreement;.

 

11.2.2 all brokerage fees and charges that are customary in the market concerned, incidental to any proposed purchase, holding, and/or proposed sale of the Fund’s Investments;

 

11.2.3 all interest on and charges and expenses of arranging, and arising out of, all borrowings made by the Fund;

 

11.2.4 all taxes and corporate fees payable by the Fund to any governmental or other authority or to any agency of such government or authority whether in Mauritius or elsewhere; and

 

11.2.5 all expenses or charges related to litigation, demand related to litigation, regulatory or other government investigations and

 

9



 

proceedings, “for cause” regulatory inspections and indemnification or advancement of related expenses or costs, to the extent any such expenses are considered extraordinary expenses and any other extraordinary expenses.

 

12.           VARIATION OF TERMS OF AGREEMENT

 

No provision of this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought and unless authorized by the Fund’s Directors and the Shareholder’s Independent Directors, and no amendment of this Agreement shall be effective (unless made before the initial offering of Shares) until approved by vote of a majority of the Fund’s outstanding voting securities.

 

13.     Duration .

 

13.1          This Agreement shall become effective upon the date hereabove written.

 

13.2          Unless sooner terminated as provided herein, this Agreement shall continue in effect until April 30, 2009.  Thereafter, if not terminated, this Agreement shall continue automatically for successive periods of twelve months each, provided that such continuance is specifically approved at least annually by the Fund’s Directors and the Shareholder’s Independent Directors and otherwise in accordance with applicable law.

 

14.           TERMINATION

 

14.1          This Agreement may be terminated at any time, without the payment of any penalty, by vote of the Directors, by a vote of the Shareholder’s Independent Directors, or by a vote of a majority of the outstanding voting securities of the Fund, on sixty days’ written notice to the Fund Manager or by the Fund Manager at any time, without the payment of any penalty, on sixty days’ written notice to the Fund.

 

14.2          This Agreement will automatically terminate in the event of its assignment.

 

14.3          This Agreement shall be terminated upon completion of the winding up of the Fund.

 

14.4          This Agreement shall be terminated at any time if the Fund Manager’s function as a fund manager becomes illegal.

 

14.5          This Agreement shall be terminated at any time if the operation of the Fund becomes illegal.

 

15.           CONSEQUENCES OF TERMINATION

 

Upon the termination of this Agreement, the Fund Manager shall be entitled to receive all fees and other monies accrued due up to the date of such termination but shall not be entitled to compensation in respect of such termination.

 

10



 

16.           USE OF NAME

 

16.1          The Fund may use the name “PowerShares” or any variant thereof in connection with the name of the Fund, only for so long as this Agreement or any extension, renewal or amendment hereof remains in effect.  At such time as this Agreement shall no longer be in effect, the Fund shall cease to use such a name or any other similar name.

 

16.2          In no event shall the Fund use the name “PowerShares” or any variant thereof if PowerShares Capital Management’s functions are transferred or assigned to a company over which PowerShares Capital Management does not have control or with which it is not affiliated.  In the event that this Agreement shall no longer be in effect or PowerShares Capital Management’s functions are transferred or assigned to a company over which PowerShares Capital Management does not have control or with which it is not affiliated, the Fund shall use its best efforts to legally change its name by passing the necessary resolutions and filing the required documentation with Mauritius agencies.

 

17.           NOTICES

 

Any notice or other communication under, or in connection with, any of the matters contemplated by this Agreement shall be addressed to the recipient and sent to it at its address set forth herein or to such other address as may from time to time be notified by the recipient in question to the other party to this Agreement in accordance with this Clause 17.  Unless otherwise herein provided any such notice or other communication to be given or made pursuant to this Agreement shall be in writing and be made by letter delivered personally or sent by a recognized expedited delivery service, or by email, telex or facsimile.

 

18.           INDEMNITY

 

18.1          The Fund Manager shall not be under any liability on account of anything done or suffered by it in good faith pursuant to this Agreement or in accordance with or in pursuance of any request or advice of the Directors.  Wherever pursuant to any provision of this Agreement any notice, instruction or other communication is to be given by the Fund to the Fund Manager, the Fund Manager may accept as sufficient evidence thereof a document signed or purporting to be signed on behalf of the Fund by such person whose signature the Fund Manager is for the time being authorised to accept. Copies of all notices and documents issued by or on behalf of the Fund shall be forwarded to the Fund Manager.

 

18.2          Notwithstanding anything in the Agreement to the contrary, the Fund Manager shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Fund or any of its shareholders, in connection with the matters to which this Agreement relates, except to the extent that such a loss results from willful misfeasance, fraud, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement.  Any person, even though also an officer, director, employee, or agent of the Fund Manager, who may be or become an officer, Director, employee or agent of the Fund shall be deemed,

 

11



 

when rendering services to the Fund or acting with respect to any business of the Fund, to be rendering such service to or acting solely for the Fund and not as an officer, director, employee, or agent or one under the control or direction of the Fund Manager even though paid by it.

 

18.3          The Fund Manager shall not be required to take any legal action on behalf of the Fund unless it will be fully indemnified to the reasonable satisfaction of the Fund Manager for costs and liabilities.  If the Fund requires the Fund Manager to take any action in any capacity which in the opinion of the Fund Manager might make the Fund Manager or its agents or nominees liable for the payment of money or liable in any other way, the Fund Manager shall be kept indemnified in any reasonable amount and form satisfactory to it as a prerequisite to taking such action.

 

18.4          For the avoidance of doubt, it is hereby agreed and declared that references to the Fund Manager in this Clause shall be deemed to include references to the officers, servants, agents or delegates of the Fund Manager.

 

18.5          Any indemnity expressly given to the Fund Manager in this Agreement is in addition to and without prejudice to any indemnity allowed by law.

 

18.6          It is expressly acknowledged and agreed that the obligations of the Fund hereunder shall not be binding upon any of its shareholders, Directors, officers, employees or agents, personally, but shall bind only the property of the Fund and the execution and delivery of this Agreement by the Directors shall not be deemed to have been made by any of them individually nor to impose any liability on any of them personally, but shall bind only the property of the Fund.

 

19.           NON-EXCLUSIVITY

 

The services furnished by the Fund Manager hereunder are not to be deemed exclusive and PowerShares Capital Management shall be free to furnish similar services to others so long as its services under this Agreement are not impaired thereby or unless otherwise agreed to by the parties hereunder in writing.  Nothing in this Agreement shall limit or restrict the right of any director, officer or employee of PowerShares Capital Management, who may also be a Director, officer or employee of the Fund, to engage in any other business or to devote his or her time and attention in part to the management or other aspects of any other business, whether of a similar nature or a dissimilar nature.

 

20.           MISCELLANEOUS

 

20.1          If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby.

 

20.2          This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors.

 

12



 

20.3          This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but each of which counterparts shall together constitute one and the same instrument.

 

20.4          No failure on the part of any party to exercise and no delay on its part in exercising any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other rights or remedy.  The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

 

20.5          The illegality, invalidity or unenforceability of any provision of this Agreement under the law of any jurisdiction shall not alter its legality, validity or enforceability under the law of any other jurisdiction.

 

21.           PROPER LAW AND JURISDICTION

 

21.1          This Agreement shall be governed by and construed in accordance with the laws of Mauritius.

 

21.2          The parties hereby irrevocably submit to the non-exclusive jurisdiction of the Courts of Mauritius.

 

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed and delivered in their names and on their behalf by the undersigned, thereunto duly authorized, in two (2) originals and on the day and year first above written.

 

 

 

POWERSHARES MAURITIUS

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

 

POWERSHARES CAPITAL MANAGEMENT LLC

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

14


Exhibit 99.(g)(1)

 

FORM OF CUSTODIAN AGREEMENT

 

THIS CUSTODIAN AGREEMENT (“ Agreement ”), dated as of February         , 2008, between POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST , a management investment company organized under the laws of the Commonwealth of Massachusetts and registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended (the “ 1940 Act ”) on behalf of itself and its wholly-owned subsidiary in Mauritius, POWERSHARES MAURITIUS (collectively, the “ Fund ”), and BROWN BROTHERS HARRIMAN & CO. , a limited partnership formed under the laws of the State of New York (“ BBH&Co. ” or the “ Custodian ”),

 

W I T N E S S E T H:

 

WHEREAS, the Fund wishes to retain BBH&Co. to act as custodian for the Fund and to provide related services, all as described herein, and BBH&Co. is willing to provide such services, subject to the terms and conditions herein set forth;

 

WHEREAS, the Securities and Exchange Commission has promulgated amendments to Rule 17f-5 and adopted Rule 17f-7 under the 1940 Act that establish rules regarding the custody of investment company assets held outside the United States; and

 

WHEREAS, BBH&Co. is willing to provide services in connection with such Rules in accordance with the terms of this Custodian Agreement;

 

NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, the Fund and BBH&Co. hereby agree as follows:

 

1.             Appointment of Custodian .  The Fund hereby appoints BBH&Co. as the Fund’s Custodian, and BBH&Co. hereby accepts such appointment.  All Investments of the Fund delivered to the Custodian or its agents or Subcustodians shall be dealt with as provided in this Agreement.  The duties of the Custodian with respect to the Fund’s Investments shall be only as set forth expressly in this Agreement.

 



 

2.                                       Representations, Warranties and Covenants of the Fund .  The Fund hereby represents, warrants and covenants each of the following:

 

2.1           This Agreement has been, and at the time of delivery of each Instruction such Instruction will have been, duly authorized, executed and delivered by the Fund.  Neither this Agreement nor any Instruction issued hereunder violates any Applicable Law or conflicts with or constitutes a default under the Fund’s prospectus, Declaration of Trust, or other constitutive document or any agreement, judgment, order or decree to which the Fund is a party or by which it or its Investments is bound.

 

2.2           The execution, delivery and performance by the Fund of this Agreement will not contribute to or result in a breach of or default under or conflict with any existing law, order, regulation or ruling of any governmental or regulatory agency or authority, or violate any provision of the Fund’s   Declaration of Trust or other organizational documents, by-laws, Prospectus or Statement of additional information, or any amendment thereof.

 

2.3           The Fund shall safeguard and shall be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it. In furtherance and not limitation of the foregoing, in the event the Fund utilizes any on-line service offered by the Custodian, the Fund and the Custodian shall be fully responsible for the security of each party’s connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof.  Additionally, if the Fund uses any on-line or similar communications service made available by the Custodian, the Fund shall be responsible for ensuring the security of its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian.  If the Custodian provides any computer software to the Fund relating to the services described in this Agreement, the Fund will only use the software for the purposes for which the Custodian provided the software to the Fund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund.

 

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3.                                       Representation and Warranty of BBH&Co.   BBH&Co. hereby represents and warrants that BBH & Co. is duly organized under the laws of its jurisdiction of organization and qualifies to act as a custodian to the Fund under the provisions of the 1940 Act and that this Agreement has been duly authorized, executed and delivered by BBH&Co. and the Agreement and performance hereunder do not and will not violate any Applicable Law or conflict with or constitute a default under BBH&Co.’s limited partnership agreement or any agreement, instrument, judgment, order or decree to which BBH&Co. is a party or by which it is bound.  BBH&Co. also warrants that it will comply with all applicable laws and regulations in performance of its duties under this Agreement.

 

4.                                       Instructions .  Unless otherwise explicitly indicated herein, the Custodian shall perform its duties pursuant to Instructions.  As used herein, the term “ Instruction ” shall mean a directive initiated by the Fund, acting directly or through its board of trustees, officers or other Authorized Person, which directive shall conform to the requirements of this Section 4.

 

4.1                                 Authorized Persons .  For purposes hereof, an “ Authorized Person ” shall be a person or entity authorized to give Instructions to the Custodian by written notices or otherwise for or on behalf of the Fund in accordance with any procedures delivered to the Custodian.  The Custodian may treat any Authorized Person as having the full authority of the Fund to issue Instructions hereunder unless the certificate of authorization contains explicit limitations as to said authority.  The Custodian shall be entitled to rely upon the authority of Authorized Persons until it receives appropriate written notice from the Fund to the contrary.

 

4.2                                 Form of Instruction .  Each Instruction shall be transmitted by such secured or authenticated electro-mechanical means as the Custodian shall make available to the Fund from time to time unless the Fund shall elect to transmit such Instruction in accordance with Subsections 4.2.1 through 4.2.3 of this Section.

 

4.2.1        Fund Designated Secured-Transmission Method .  Instructions may be transmitted through a secured or tested electro-mechanical means identified by the Fund or by an

 

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Authorized Person entitled to give Instructions and acknowledged and accepted by the Custodian, it being understood that such acknowledgment shall authorize the Custodian to receive and process such means of    delivery but shall not represent a judgment by the Custodian as to the reasonableness or security of the means utilized by the Authorized Person.

 

4.2.2        Written Instructions .  Instructions may be transmitted in a writing that bears the manual signature of Authorized Persons.

 

4.2.3        Other Forms of Instruction .  Instructions may also be transmitted by another means determined by the Fund or Authorized Persons and acknowledged and accepted by the Custodian (subject to the same limits as to acknowledgements as are contained in SubSection 4.2.1, above) including Instructions given orally or by SWIFT, telex or telefax (whether tested or untested).

 

When an Instruction is given by means established under Subsections 4.2.1 through 4.2.3, it shall be the responsibility of the Custodian to use reasonable care to adhere to any security or any other procedures established in writing between the Custodian and the Authorized Person with respect to such means of Instruction, but the Authorized Person shall be responsible for determining that the particular means chosen is reasonable under the circumstances.  Telephonic or other oral instructions or instructions provided by telefax transmission shall be considered instructions if the Custodial reasonably believes them to have been given by an Authorized Person.. If the Custodian believes that the means chosen are unreasonable, it shall promptly notify an Authorized Person. If the Custodian determines that a telefax Instruction is illegible, the Custodian shall promptly contact an Authorized Person and request a legible telefax Instruction.  The provisions of Section 4A of the Uniform Commercial Code shall apply to funds transfers performed in accordance with Instructions. In the event that a Funds Transfer Services Agreement is executed between the Fund or an Authorized Person and the Custodian, such an agreement   shall each comprise a designation of form of a means of delivering Instructions for purposes of this Section 4.2.

 

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4.3                                 Completeness and Contents of Instructions .  The Authorized Person shall be responsible for assuring the adequacy and accuracy of Instructions.  Particularly, upon any acquisition or disposition or other dealing in the Fund’s Investments and upon any delivery and transfer of any Investment or moneys, the person initiating the Instruction shall give the Custodian an Instruction with appropriate detail, including, without limitation:

 

4.3.1        The transaction date and the date and location of settlement;

 

4.3.2        The specification of the type of transaction;

 

4.3.3        A description of the Investments or moneys in question, including, as appropriate, quantity, price per unit, amount of money to be received or delivered and currency information.  Where an Instruction is communicated by electronic means, or otherwise where an Instruction contains an identifying number such as a CUSIP, SEDOL or ISIN number, the Custodian shall be entitled to rely on such number as controlling notwithstanding any inconsistency contained in the Instruction, particularly with respect to Investment description; and

 

4.3.4        The name of the broker or similar entity concerned with execution of the transaction.

 

If the Custodian shall reasonably determine that an Instruction, including a telefax instruction, is either unclear or incomplete, the Custodian shall give prompt notice of such determination to the Fund, and the Fund shall thereupon amend or otherwise reform the Instruction.  In such event, the Custodian shall have no obligation to take any action in response to the Instruction initially delivered until the redelivery of an amended or reformed Instruction. If the Custodian is aware of such an inconsistency in an Instruction, it shall give prompt notice of such inconsistency to an Authorized Person.

 

4.4           Timeliness of Instructions .  In giving an Instruction, the Fund shall take into consideration delays which may occur due to the involvement of a Subcustodian or agent, differences in time zones, and other factors particular to a given market, exchange or issuer.  When the Custodian has

 

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 established specific timing requirements or deadlines with respect to particular classes of Instruction and the Custodian has notified the Fund of such timing requirements and deadlines,, or when an Instruction is received by the Custodian at such a time that it could not reasonably be expected to have acted on such Instruction due to time zone differences or other factors beyond its reasonable control, the execution of any Instruction received by the Custodian after such deadline or at such time (including any modification or revocation of a previous Instruction) shall be at the risk of the Fund.

 

5.             Safekeeping of Fund Assets .  The Custodian shall hold Investments and cash delivered to it or Subcustodians for the Fund in accordance with the provisions of this Section.  The Custodian shall keep safely all cash and Investments of the Fund delivered to the Custodian during the term of this Agreement. The Custodian shall not be responsible for (a) the safekeeping of Investments not delivered or that are not caused to be issued to it or its Subcustodians; or, (b) pre-existing faults or defects in Investments that are delivered to the Custodian or its Subcustodians. The Custodian or Subcustodian shall give prompt notice to the Fund of any pre-existing faults or defects that it is aware of.  The Custodian is hereby authorized to hold with itself or a Subcustodian, and to record in one or more accounts, all    Investments delivered to the Custodian, any Subcustodian or their respective agents pursuant to an Instruction or in consequence of any corporate action.  Each such account is a “ Securities Account ” (as such term is defined in the Uniform Commercial Code as in effect from time to time in the State of New York (the “ UCC ”).  The Custodian shall hold Investments for the account of the Fund and shall segregate Investments from assets belonging to the Custodian and shall cause its Subcustodians to segregate Investments from assets belonging to the Subcustodian in an account held for the Fund or in an account maintained by the Subcustodian generally only for non-proprietary assets of the Custodian. Custodian shall identify on its books and records the Investments and cash belonging to the Fund whether held directly or indirectly through Subcustodians or their agents. The parties acknowledge that the Custodian and Subcustodians each are acting under this Agreement as a “Securities Intermediary” (as such term is used and defined in the UCC).  For the purposes of this Agreement, the parties hereto acknowledge and  

 

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agree that (i) any Investment held by the Custodian or any Subcustodian shall constitute a “Financial Asset” (as such term is used and defined in the UCC), (ii) the Fund may at any time issue one or more “ Entitlement Orders ” (as such term is used and defined in the UCC) with respect to the Fund’s Investments, (iii) upon the Custodian’s or Subcustodian’s receipt of an Investment for the benefit of the Fund, the Custodian or Subcustodian, as the case may be, shall credit to the Fund a “Security Entitlement” (as such term is used and defined in the UCC), and (iv) the Fund shall have a Security Entitlement with respect to all Investments held by the Custodian or Subcustodian.

 

5.1           Use of Securities Depositories .  The Custodian may deposit and maintain Investments in any Securities Depository, either directly or through one or more Subcustodians appointed by the Custodian.  Investments held in a Securities Depository shall be held (a) subject to the agreement, rules, statement of terms and conditions or other document or conditions effective between the Securities Depository and the Custodian or the Subcustodian, as the case may be, and (b) in an account for the Fund or in bulk segregation in an account maintained only for the non-proprietary assets of the entity holding   such Investments in the Depository.  If market practice or the rules and regulations of the Securities Depository prevent the Custodian, the Subcustodian or (any agent of either) from holding its client assets in such a separate account, the Custodian, the Subcustodian or other agent shall as appropriate segregate such Investments for benefit of the Fund or for the benefit of clients of the Custodian generally on its own books and records.

 

With respect to each Securities Depository, Custodian (i) shall exercise due care in accordance with reasonable commercial standards in discharging its duties as a securities intermediary to obtain and thereafter maintain Investments deposited or held in such Depository, and (ii) will provide, promptly upon request by the Fund, such reports as are available concerning the internal accounting controls and financial strength of such Securities Depository.

 

With respect to each Foreign Depository, Custodian shall exercise reasonable care, prudence, and diligence (I) to provide the Fund with an analysis of the custody risks associated with maintaining assets

 

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with the Foreign Depository, and (ii) to monitor such custody risks on a continuing basis and to promptly notify the Fund of any material change in such risks, all in accordance with Rule 17f-7(a)(1)(I) of the 1940 Act.  The Fund acknowledges and agrees that such analysis and monitoring shall be made on the basis of, and limited by, information gathered from Subcustodians or through publicly available information otherwise obtained by Custodian, and shall not include any evaluation of Country Risks.  As used herein the term “Country Risks” shall mean with respect to any Foreign Depository:  (a) the financial infrastructure of the country in which it is organized, (b) such country’s prevailing custody and settlement practices, (c) nationalization, expropriation or other governmental actions, (d) such country’s regulation of the banking or securities industry, (e) currency controls, restrictions, devaluations or fluctuations, and (f) market conditions which affect the order execution of securities transactions or affect the value of securities.

 

5.2           Certificated Assets .  Investments which are certificated may be held in registered or bearer form: (a) in the Custodian’s vault; (b) in the vault of a Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account maintained by the Custodian, Subcustodian or agent at a Securities Depository; all in accordance with customary market practice in the jurisdiction in which any Investments are held.

 

5.3           Registered Assets .  Investments which are registered may be registered in the name of the Custodian, a Subcustodian, or in the name of the Fund or a nominee for any of the foregoing, and may be held in any manner set forth in Section 5.2 above with or without any identification of fiduciary capacity in such registration.

 

5.4           Book Entry Assets .  Investments which are represented by book-entry may be so held in an account maintained by the Book-Entry Agent on behalf of the Custodian, a Subcustodian or another agent of the Custodian, or a Securities Depository.

 

5.5           Replacement of Lost Investments .  In the event of a loss of Investments for which loss the Custodian is responsible under the terms of this Agreement, the Custodian shall promptly

 

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replace such Investment, or in the event that such replacement cannot be effected, the Custodian shall pay to the Fund the fair market value of such Investment based on the greater of the last available price as of the close of business in the relevant market or the price at which the Investment is fair valued according to the Fund’s approved procedures on the date that a claim was first made to the Custodian with respect to such loss.

 

6.                                       Administrative Duties of the Custodian .  The Custodian shall perform the following administrative duties with respect to Investments of the Fund.

 

6.1           Purchase of Investments .  Pursuant to Instruction, Investments purchased for the account of the Fund shall be paid for (a) against delivery thereof to the Custodian or a Subcustodian, as the case may be, either directly or through a Clearing Corporation or a Securities Depository (in accordance with the rules of such Securities Depository or such Clearing Corporation), or (b) otherwise in accordance with an Instruction, Applicable Law, generally accepted trade practices, or the terms of the instrument representing such Investment.

 

6.2           Sale of Investments .  Pursuant to Instruction, Investments sold for the account of the Fund shall be delivered (a) against payment therefor in cash, by certified check or by bank wire transfer, (b) by credit to the account of the Custodian or the applicable Subcustodian, as the case may be, with a Clearing Corporation or a Securities Depository (in accordance with the rules of such Securities Depository or such Clearing Corporation), or (c) otherwise in accordance with an Instruction, Applicable Law, generally accepted trade practices, or the terms of the instrument representing such Investment.

 

6.3           Delivery and Receipt in Connection with Borrowings of the Fund or other Collateral and Margin Requirements .  Pursuant to Instruction, the Custodian may deliver Investments or cash of the Fund in connection with borrowings and other collateral and margin requirements.

 

6.4           Futures and Options .  If, pursuant to an Instruction, the Custodian shall become a party to an agreement with the Fund and a futures commission merchant regarding margin (“ Tri-Party

 

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Agreement ”), the Custodian shall (a) receive and retain, to the extent the same are provided to the    Custodian, confirmations or other documents evidencing the purchase or sale by the Fund of exchange-traded futures contracts and commodity options, (b) when required by such Tri-Party Agreement, deposit and maintain in an account opened pursuant to such Agreement (“ Margin Account ”), segregated either physically or by book-entry in a Securities Depository for the benefit of any futures commission merchant, such Investments as the Fund shall have designated as initial, maintenance or variation “margin” deposits or other collateral intended to secure the Fund’s performance of its obligations under the terms of any exchange-traded futures contracts and commodity options; and (c) thereafter pay, release or transfer Investments into or out of the margin account in accordance with the provisions of such Agreement. Alternatively, the Custodian may deliver Investments, in accordance with an Instruction, to a futures commission merchant for purposes of margin requirements in accordance with Rule 17f-6 under the 1940 Act.  The Custodian shall not be responsible for but shall give prompt notice to the Fund in the event it becomes aware of the acts and omissions of any futures commission merchant to whom Investments are delivered pursuant to this Section; for the sufficiency of Investments held in any Margin Account; or, for the performance of any terms of any exchange-traded futures contracts and commodity options unless any losses damages or expenses were caused by or resulted from the Custodian’s willful malfeasances, bad faith or negligence.

 

6.5           Contractual Obligations and Similar Investments .  From time to time, the Fund’s Investments may include Investments that are not ownership interests as may be represented by certificate (whether registered or bearer), by entry in a Securities Depository or by book-entry agent, registrar or similar agent for recording ownership interests in the relevant Investment.  If the Fund shall at any time acquire such Investments, including without limitation deposits, deposit obligations, loan participations, repurchase agreements and derivative arrangements, the Custodian shall (a) receive and retain, to the extent the same are provided to the Custodian, confirmations or other documents evidencing the arrangement; and (b) perform on the Fund’s account in accordance with the terms of the applicable

 

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arrangement, but only to the extent directed to do so by Instruction.  The Custodian shall have no responsibility for agreements running to the Fund as to which it is not a party other than to retain, to the extent the same are provided to the Custodian, documents or copies of documents evidencing the arrangement and, in accordance with an Instruction, to include such arrangements in reports made to the Fund.

 

6.6           Exchange of Securities .  Pursuant to Instruction, the Custodian shall:  (a) exchange securities held for the account of the Fund for other securities in connection with any reorganization, recapitalization, conversion, stock split, change of par value of shares or similar event, and (b) deposit any such securities in accordance with the terms of any reorganization or protective plan.

 

6.7           Surrender of Securities .  Pursuant to Instruction, the Custodian may surrender securities: (a) in temporary form for definitive securities; (b) for transfer into the name of an entity allowable under Section 5.3; and (c) for a different number of certificates or instruments representing the same number of shares or the same principal amount of indebtedness.

 

6.8           Rights, Warrants, Etc. Pursuant to Instruction, the Custodian shall:  (a) deliver warrants, puts, calls, rights or similar securities to the issuer or trustee thereof, or to any agent of the issuer or trustee, for purposes of exercising such rights or selling such securities, and (b) deposit securities in response to any invitation for the tender thereof.

 

6.9           Mandatory Corporate Actions .  Unless otherwise directed by Instruction, the Custodian shall: (a) comply with the terms of all mandatory or compulsory exchanges, calls, tenders, redemptions or similar rights of securities ownership affecting securities held on the Fund’s account and promptly notify the Fund of such action, and (b) collect all stock dividends, rights and other items of like nature with respect to such securities.

 

6.10         Income Collection .  Unless otherwise directed by Instruction, the Custodian shall collect any amount due and payable to the Fund with respect to Investments and promptly credit the

 

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amount collected to a Principal or Agency Account; provided, however, that the Custodian shall not be responsible for: (a) the collection of amounts due and payable with respect to Investments that are in default, or (b) the collection of cash or share entitlements with respect to Investments that are not registered in the name of the Custodian or its Subcustodians.  The Custodian is hereby authorized to endorse and deliver any instrument required to be so endorsed and delivered to effect collection of any amount due and payable to the Fund with respect to Investments.

 

6.11         Corporate Action Information .  In fulfilling the duties set forth in Sections 6.6 through 6.10 above, the Custodian shall promptly provide to the Company such material information pertaining to a corporate action which the Custodian actually receives; provided that the Custodian shall not be responsible for the completeness or accuracy of such information as long as the Custodian has shown due diligence in attempting to receive complete and accurate information.  Information relative to any pending corporate action made available to the Company via any of the services described in the Electronic and Online Services Schedule shall constitute the delivery of such information by the Custodian.  Any advance credit of cash or shares expected to be received as a result of any corporate action shall be subject to actual collection and may, when the Custodian deems collection unlikely, be reversed by the Custodian. The Custodian shall notify the Fund at least 48 hours prior to any such reversal.

 

6.12         Proxy Materials .  The Custodian shall deliver, or cause to be delivered promptly, to the Fund proxy forms, notices of meeting, and any other notices or announcements affecting or relating to Investments received by the Custodian, Subcustodian or their respective agents or any nominee.  Upon receipt of Instructions, the Custodian, Subcustodian or their respective agents shall execute and deliver such proxies or authorizations as may be required. Information relative to any pending corporate action   made available to the Company via any of the services described in the Electronic and Online Services Schedule shall constitute the delivery of such information by the Custodian.

 

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6.13         Ownership Certificates and Disclosure of the Fund’s Interest .  The Custodian is hereby authorized to execute on behalf of the Fund ownership certificates, affidavits or other disclosure required under Applicable Law or established market practice in connection with the receipt of income, capital gains or other payments by the Fund with respect to Investments, or in connection with the sale, purchase or ownership of Investments.

 

6.14         Tax Reclaim Service .  The Custodian will apply for a reduction of withholding tax and any refund of any tax paid or tax credits which apply in each applicable market in respect of income payments on Investments for the benefit of the Fund which the Custodian believes may be available to such Fund.  Where such reports are available, the Custodian shall periodically report to the Fund concerning the making of applications for a reduction of withholding tax and refund of any tax paid or tax credits which apply in each applicable market in respect of income payments on Investments for the benefit of the Fund.  The provision of tax reclaim services by the Custodian is conditional upon the Custodian receiving from the Fund or, where required, the beneficial owner of Investments (a) a declaration of its identity and place of residence and (b) certain other documentation (pro forma copies of which are available from the Custodian).  The Custodian shall use reasonable means to advise the Fund of the declarations, documentation and information which the Fund is to provide to the Custodian in order for the Custodian to provide the tax reclaim services described herein.  The Fund shall provide to the Custodian such documentation and information as it may require in connection with taxation, and warrants that, when given, this information shall be true and correct in every respect, not misleading in any way, and contain all material information.  The Fund undertakes to notify the Custodian immediately if any such information requires updating or amendment.  The Custodian shall perform tax reclaim    services only with respect to taxation by the revenue authorities of the countries notified to the Fund.  The Fund confirms that the Custodian is authorized to deduct from any cash received or credited to an account any taxes or levies required by any revenue or governmental authority for whatever reasons in respect of the accounts.  The Custodian and the Fund shall promptly notify the other regarding any change in the

 

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Fund’s tax status with respect to withholding taxes of which it becomes aware.  It is acknowledged that the Custodian does not offer tax advice and that the Fund should consult with its tax adviser as to tax matters.  The Custodian shall, where applicable, assist the Fund in the reclamation of taxes withheld on dividends and interest payments received by the Fund.  In the performance of its duties with respect to tax withholding and reclamation, the Custodian shall be entitled to rely on the written advice of Fund counsel and upon information and advice regarding the Fund’s tax status that is received from or on behalf of the Fund without duty of separate inquiry.

 

6.15         Other Dealings .  The Custodian shall otherwise act as directed by Instruction, including without limitation effecting the free payments of moneys or the free delivery of securities, provided that such Instruction shall indicate the purpose of such payment or delivery and that the Custodian shall record the party to whom the payment or delivery is made.

 

6.16         Nondiscretionary Details and Minor Expenses .  The Custodian shall attend to all nondiscretionary details in connection with the sale or purchase or other administration of Investments, except as otherwise directed by an Instruction., and may make payments to itself or others for minor expenses (of less than US$100 per instance) of administering Investments under this Agreement, provided that the Custodian shall provide an accounting to the Fund with respect to such expenses.

 

6.17         Use of Agents .  The Custodian may at any time in its discretion appoint (and may at any time remove) agents (other than Subcustodians) to carry out some or all of the administrative provisions of this Agreement (“ Agents ”), provided, however, that the appointment of an agent shall not relieve the Custodian of its administrative obligations under this Agreement.  The parties acknowledge and agree that International Financial Services Limited is not an Agent of the Custodian.

 

7.                                       Cash Accounts, Deposits and Money Movements .  Subject to the terms and conditions set forth in this Section 7, the Fund hereby authorizes the Custodian to open and maintain, with itself or with Subcustodians, cash accounts in United States Dollars, in such other currencies as are the currencies of

 

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the countries in which the Fund maintains Investments or in such other currencies as the Fund shall from time to time request by Instruction.

 

7.1                                 Types of Cash Accounts .  Cash accounts opened on the books of the Custodian (“ Principal Accounts ”) shall be opened in the name of the Fund.  Such accounts collectively shall be a deposit obligation of the Custodian and shall be subject to the terms of this Section 7 and the general liability provisions contained in Section 9.  Cash accounts opened on the books of a Subcustodian may be opened in the name of the Fund or the Custodian or in the name of the Custodian for its customers generally (“ Agency Accounts ”). Such deposits shall be obligations of the Subcustodian and shall be treated as an Investment of the Fund.  Accordingly, the Custodian shall be responsible for exercising reasonable care in the administration of such accounts, but shall not be liable for their repayment in the event the Subcustodian, by reason of its bankruptcy, insolvency or sovereign risk/force majeure, fails to make repayment.

 

7.1.1        Administrative Accounts .  In connection with the services provided hereunder, the Custodian is hereby directed to open cash accounts on its books and records from time to time for the purposes of receiving subscriptions and/or processing redemptions on behalf of the Fund and/or for the purposes of aggregating, netting and/or clearing transactions (including, without limitation foreign exchange, repurchase agreements, capital stock activity, expense payment) or other administrative purposes, each on behalf of the Fund (each an “ Account ”).  Each such Account shall be subject to the terms and conditions of this Agreement and the Fund shall be liable for the satisfaction of its own obligations in connection with each Account.

 

7.2                                 Payments and Credits with Respect to the Cash Accounts .  The Custodian shall make payments from or deposits to any of the cash accounts in the course of carrying out its administrative duties, including but not limited to income collection with respect to the Fund’s Investments, and otherwise in accordance with Instructions.  The Custodian and its Subcustodians shall be required to credit amounts to the cash accounts only when moneys are actually received in cleared

 

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funds in accordance with banking practice in the country and currency of deposit.  Any credit made to any Principal or Agency Account before actual receipt of cleared funds shall be provisional and may be reversed by the Custodian in the event such payment is not actually collected. The Custodian shall provide the Fund with at least 48 hours notice prior to any such reversal. Unless otherwise specifically agreed in writing by the Custodian or any Subcustodian, all deposits shall be payable only at the branch of the Custodian or Subcustodian where the deposit is made or carried.

 

7.3           Currency and Related Risks .  The Fund bears the risks of holding or transacting in any currency, including any mark to market exposure associated with a foreign exchange transaction.  The Custodian shall not be liable for any loss or damage arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, which may delay or affect the transferability, convertibility or availability of any currency in the country (a) in which such Principal or Agency Accounts are maintained or (b) in which such currency is issued, and in no event shall the Custodian be obligated to make payment of a deposit denominated in a currency during the period during which its transferability, convertibility or availability has been affected by any such law, regulation or event.  The Custodian shall notify the Fund in the event it is aware that the Fund is entering into a transaction that is, to its knowledge, illegal under local law. Without limiting the generality of the foregoing, neither the Custodian nor any Subcustodian shall be required to repay any deposit made at a foreign branch of either the Custodian or Subcustodian if such branch cannot repay the deposit due to a cause for which the Custodian would not be responsible in accordance with the terms of Section 9 of this Agreement unless the Custodian or such Subcustodian expressly agrees in writing to repay the deposit under such circumstances.  All currency transactions in any account opened pursuant to this Agreement are subject to exchange control regulations of the United States and of the country where such currency is the lawful currency or where the account is maintained. Any taxes, costs, charges or fees imposed on the convertibility of a currency held by the Fund shall be for the account of the Fund unless such taxes, costs,

 

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charges or fees resulted from the willful malfeasance, bad faith or negligence of the Custodian or Subcustodian or an error by the Custodian or Subcustodian.

 

7.4                                 Foreign Exchange Transactions .  The Custodian shall, subject to the terms of this Section, settle foreign exchange transactions (including contracts, futures, options and options on futures) on behalf and for the account of the Fund with such currency brokers or banking institutions, including Subcustodians, as the Fund may direct pursuant to Instructions.  The Custodian may act as principal in any foreign exchange transaction with the Fund in accordance with Section 7.4.2 of this Agreement.  The obligations of the Custodian in respect of all foreign exchange transactions (whether or not the Custodian shall act as principal in such transaction) shall be contingent on the free, unencumbered transferability of the currency transacted on the actual settlement date of the transaction.

 

7.4.1        Third Party Foreign Exchange Transactions . The Custodian shall process foreign exchange transactions (including without limitation contracts, futures, options, and options on futures), where any third party acts as principal counterparty to the Fund on the same basis it performs duties as agent for the Fund with respect to any other of the Fund’s Investments. Accordingly the Custodian shall only be responsible for delivering or receiving currency on behalf of the Fund in respect of such contracts pursuant to Instructions. The Custodian shall not be responsible for the failure of any counterparty (including any Subcustodian) in such agency transaction to perform its obligations thereunder unless (a) such counterparty is a parent, subsidiary or otherwise affiliate with the Custodian or (b) the Custodian’s negligence, bad faith or willful misconduct was the direct cause of the counterparty failing to perform its obligations or (c) a transaction or other matter between the Custodian and the counterparty unrelated to the Fund was the cause of the counterparty’s failure to perform. Under (a), (b) or (c) the Custodian shall be liable. The Custodian (a) shall transmit cash and Instructions to and from the currency broker or banking institution with which a foreign exchange contract or option has been executed pursuant hereto, (b) may make free outgoing payments of cash in the form of Dollars or foreign currency without receiving confirmation of a foreign exchange contract or option or confirmation that the

 

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countervalue currency completing the foreign exchange contract has been delivered or received or that the option has been delivered or received, and (c) shall hold confirmations, certificates and other documents and agreements received by the Custodian and evidencing or relating to such foreign exchange transactions in safekeeping.  The Fund accepts full responsibility for its use of third-party foreign exchange dealers and for execution of said foreign exchange contracts and options and understands that the Fund shall be responsible for any and all costs and interest charges which may be incurred by the Fund or the Custodian as a result of the failure or delay of third parties to deliver foreign exchange.

 

7.4.2        Foreign Exchange with the Custodian as Principal .  The Custodian shall be responsible for any failure or delay of third parties to deliver foreign exchange when either of those parties is a parent or subsidiary. The Custodian, as principal, may undertake foreign exchange transactions with the Fund as the Custodian and the Fund may agree from time to time.  In such event, the foreign exchange transaction will be performed in accordance with the particular agreement of the parties, or in the event a principal foreign exchange transaction is initiated by Instruction in the absence of specific agreement, such transaction will be performed in accordance with the usual commercial terms of the Custodian.  In the event that the Fund defaults on the settlement of any such foreign exchange transaction with the Custodian, the Fund shall be liable for contracted currency of the transaction together with any mark to market exposure associated with the replacement purchase of the contracted currency undertaken with the Custodian.

 

7.5                                 Delays .  If no event of Force Majeure shall have occurred and be continuing and in the event that a delay shall have been caused by the negligence, bad faith or willful misconduct of the Custodian in carrying out an Instruction to credit or transfer cash, the Custodian shall be liable to the Fund:  (a) with respect to Principal Accounts, for interest to be calculated at the rate customarily paid on such

 

18



 

deposit and currency by the Custodian on overnight deposits at the time the delay occurs for the period from the day when the transfer should have been effected until the day it is in fact effected; and, (b) with respect to Agency Accounts, for interest to be calculated at the rate customarily paid on such deposit and currency by the Subcustodian on overnight deposits at the time the delay occurs for the period from the day when the transfer should have been effected until the day it is in fact effected. The Custodian shall not be liable for delays in carrying out Instructions to transfer cash which are not due to the Custodian’s own negligence, bad faith or willful misconduct. The Custodian shall make reasonable attempts where possible to mitigate any such delays.

 

7.6                                 Advances .  If, for any reason in connection with this Agreement the Custodian or any Subcustodian makes an Advance to facilitate settlement or otherwise for the benefit of the Fund (whether or not any Principal or Agency Account shall be overdrawn either during, or at the end of, any Business Day), the Fund hereby does:

 

7.6.1        acknowledge that the Fund shall have no right, title or interest in or to any Investments purchased with such Advance or proceeds of such Investments, and that any credit to an account of Fund shall be provisional, until: (a) the debit of the Principal or Agency Account by Custodian for an amount equal to Advance Costs; and/or (b) if such debit produces an overdraft in such account, reimbursement to the Custodian or Subcustodian for the amount of such overdraft;

 

7.6.2        acknowledge that the Custodian has an automatically perfected statutory security interest in Investments purchased with any such Advance pursuant to Section 9-206 of the Uniform Commercial Code as in effect in the State of New York from time to time;

 

7.6.3        in addition, in order to secure the obligations of the Fund to pay or perform any and all obligations of the Fund pursuant to this Agreement, including without limitation to repay any Advance made pursuant to this Agreement, grant to the Custodian a security interest in all Investments and proceeds thereof (as defined in the Uniform Commercial Code as currently in effect in the State of New York); and agree to take, and agree that the Custodian may take, in respect of the security interest referenced above, any further actions that the Custodian may reasonably require.

 

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7.7           Custodian’s Rights .  Neither the Custodian nor any Subcustodian shall be obligated to make any Advance or to allow an Advance to occur to the Fund, and in the event that the    Custodian or any Subcustodian does make or allow an Advance, any such Advance and any transaction giving rise to such Advance shall be for the account and risk of the Fund and shall not be deemed to be a transaction undertaken by the Custodian for its own account and risk.  If such Advance shall have been made or allowed by a Subcustodian or any other person, the Custodian may assign all or part of its security interest referenced above and any other rights granted to the Custodian hereunder to such Subcustodian or other person.  If the Fund shall fail to repay the Advance Costs when due, the Custodian or its assignee, as the case may be, shall be entitled to a portion of the available cash balance in any Agency or Principal Account equal to such Advance Costs, and the Fund authorizes the Custodian, on behalf of the Fund, to pay an amount equal to such Advance Costs irrevocably to such Subcustodian or other person, and to dispose of any Investment to the extent necessary to make such payment.  Any Investments and funds credited to accounts subject to this Agreement created pursuant hereto shall be treated as financial assets credited to securities accounts under Articles 8 and 9 of the Uniform Commercial Code as in effect in the State of New York from time to time.  Accordingly, the Custodian and any Subcustodian shall have the rights and benefits of a secured creditor that is a securities intermediary under such Articles 8 and 9.

 

7.8           Integrated Account .  For purposes hereof, deposits maintained in all Principal Accounts (whether or not denominated in Dollars) shall collectively constitute a single and indivisible current account with respect to the Fund’s obligations to the Custodian or its assignee, and balances in the Principal Accounts shall be available for satisfaction of the Fund’s obligations under this Section 7.  The Custodian shall further have a right of offset against the balances in any Agency Account maintained hereunder to the extent that the aggregate of all Principal Accounts is overdrawn.

 

8.                                       Subcustodians and Securities Depositories .  Subject to the provisions hereinafter set forth in this Section 8, the Fund hereby authorizes the Custodian to utilize Securities Depositories to act on

 

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behalf of the Fund and to appoint from time to time and to utilize Subcustodians. For purposes hereof, Subcustodian is defined as a foreign bank. With respect to securities and funds held by a Subcustodian, either directly or indirectly (including by a Securities Depository or Clearing Corporation), notwithstanding any provisions of this Agreement to the contrary, payment for securities purchased and delivery of securities sold may be made prior to receipt of securities or payment, respectively, and securities or payment may be received in a form in accordance with (a) governmental regulations, (b) rules of Securities Depositories and clearing agencies or Clearing Corporations, (c) generally accepted trade practice in the applicable local market, (d) the terms and characteristics of the particular Investment, or (e) the terms of Instructions.

 

8.1           Domestic Subcustodians and Securities Depositories .  The Custodian may deposit and/or maintain, either directly or through one or more agents appointed by the Custodian, Investments of the Fund in any Securities Depository in the United States, including The Depository Trust Company, provided such Depository meets applicable requirements of the Federal Reserve Bank or of the Securities and Exchange Commission. The Custodian may, from time to time, appoint any bank as defined in Section 2(a)(5) of the 1940 Act meeting the requirements of a custodian under Section 17(f) of the 1940 Act and the rules and regulations thereunder, to act on behalf of the Fund as a Subcustodian for purposes of holding Investments of the Fund in the United States.

 

8.2           Foreign Subcustodians and Securities Depositories .  Unless instructed otherwise by the Fund, the Custodian may deposit and/or maintain non-U.S. Investments of the Fund in any non-U.S. Securities Depository provided such Securities Depository meets the requirements of an “eligible securities depository” under Rule 17f-7 promulgated under the 1940 Act, or any successor Rule or regulation (“ Rule 17f-7 ”) or which by order of the Securities and Exchange Commission is exempted therefrom.  Prior to the time that securities are placed with such depository and subject to the provisions of subSection 8.5 below, the Custodian shall have prepared an analysis of the custody risks associated with maintaining assets with the Securities Depository and shall have established a system to monitor

 

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such risks on a continuing basis in accordance with subSection 8.5 of this Section.  Additionally, the Custodian may, from time to time, appoint (a) pursuant to the provisions of the 17f-5 Delegation Schedule, any bank, trust company or other entity meeting the requirements of an eligible foreign custodian under Rule 17f-5 under the 1940 Act or which by order of the Securities and Exchange Commission is exempted therefrom, or (b) any bank as defined in Section 2(a)(5) of the 1940 Act meeting the requirements of a custodian under Section 17(f) of the 1940 Act and the rules and regulations thereunder, to act on behalf of the Fund as a Subcustodian for purposes of holding Investments of the Fund outside the United States; such Subcustodians shall be reflected in the Global Custody Network Listing, which may be amended from time to time.  Such appointment of foreign Subcustodians shall be subject to approval of the Fund in accordance with this Section 8, and the use of non-U.S. Securities Depositories shall be subject to the terms of this Section 8.  An Instruction to open an account in a given country shall comprise authorization of the Custodian to hold assets in such country in accordance with the terms of this Agreement.  The Custodian shall not be required to make independent inquiry as to the authorization of the Fund to invest in such country.

 

8.3           Delegation of Board Review of Subcustodians .  The Custodian agrees to perform certain reviews of Subcustodians and of Subcustodian Contracts as the delegate of the Fund’s Board, in accordance with the terms of the attached 17f-5 Delegation Schedule to this Agreement.

 

8.4           Board Approval of Foreign Subcustodians .  Unless and except to the extent that the Board has delegated to the Custodian the appointment of Subcustodians, the Custodian shall, prior to the appointment of any Subcustodian for purposes of holding Investments of the Fund outside the United States, obtain written confirmation signed be an Authorized Person of the approval of the Board of Trustees of the Fund with respect to (a) the identity of a Subcustodian, and (b) the Subcustodian agreement which shall govern such appointment.  Each such duly approved Subcustodian shall be listed on the Global Custody Network listing attached hereto as the same may from time to time be amended.

 

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The Custodian shall not be required to make independent inquiry as to the authorization of the Fund to invest in such country.

 

8.5            Monitoring and Risk Assessment of Securities Depositories .  Prior to the placement of any assets of the Fund with a Securities Depository, the Custodian:  (a) shall provide to the Fund or its Investment Adviser an assessment of the custody risks associated with maintaining assets within such Securities Depository; and (b) shall have established a system to monitor the custody risks associated with maintaining assets with such Securities Depository on a continuing basis and to promptly notify the Fund or its Investment Adviser of any material changes in such risk.  In performing its duties under this subsection, the Custodian shall use reasonable care, prudence and diligence and may rely on such reasonable sources of information as may be available including but not limited to:  (i) published ratings; (ii) information supplied by a Subcustodian that is a participant in such Securities Depository; (iii) industry surveys or publications; (iv) information supplied by the depository itself, by its auditors (internal or external) or by the relevant Foreign Financial Regulatory Authority.  It is acknowledged that information procured through some or all of these sources may not be independently verifiable by the Custodian and that direct access to Securities Depositories is limited under most circumstances. Accordingly, the Custodian shall not be responsible for errors or omissions in its duties hereunder provided that it has performed its monitoring and assessment duties with reasonable care.  The risk assessment shall be provided to the Fund or its Investment Advisor by such means as the Custodian shall reasonably establish.  Advices of material change in such assessment may be provided by the Custodian in the manner established as customary between the Fund and the Custodian for transmission of material market information.

 

8.5.1        Withdrawal of Assets From Eligible Securities Depository .  If the Fund or its authorized representative determines that a custody arrangement with an Eligible Securities Depository no longer meets the requirements of Rule 17f-7(a), the Fund or its Investment Adviser shall

 

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Instruct the Custodian to remove the Fund’s Assets from the Depository as soon as reasonably practicable.

 

8.6            Responsibility for Subcustodians .  The Custodian shall be liable to the Fund for any loss, expense or damage caused by or resulting from the acts or omissions of any Subcustodian to the extent that such acts or omissions would be deemed to be negligence, gross negligence or willful misconduct in accordance with the laws, circumstances and practices prevailing in the place where the act or omission occurred.

 

8.7            New Countries .  The Fund shall be responsible for informing the Custodian sufficiently in advance of a proposed investment which is to be held in a country in which no Subcustodian is authorized to act in order that the Custodian shall, if it deems appropriate to do so, have sufficient time to establish a subcustodial arrangement in accordance herewith. In the event the Custodian is unable to establish such arrangements prior to the time the investment is to be acquired, the Custodian is authorized to designate, upon notice to the Fund, a local safekeeping agent.  The use of the local safekeeping agent shall be at the sole risk of the Fund.  The Custodian shall be responsible to the Fund for the actions of such agent to the extent the Custodian shall have recovered from such agent for any damages caused the Fund by such agent provided the Custodian shall take all reasonable steps to enforce its rights against such agent and the Custodian shall be liable for any losses or damages or expenses caused by or resulting from the Custodian’s willful malfeasance, bad faith or negligence. Notwithstanding the above, the Custodian shall be liable to the extent (a) that the Custodian’s negligence, bad faith or willful misconduct is the cause of the local safekeeping agent failing to make the repayment or (b) a transaction or other matters between the Custodian and the local safekeeping agent unrelated to the Fund was the cause of the loss or damage. Under (a) or (b) the Custodian shall be liable.

 

9.              Responsibility of the Custodian .  In performing its duties and obligations hereunder, the Custodian shall exercise reasonable care, prudence and diligence.  Subject to the specific provisions of this Section, the Custodian shall be liable for any direct loss, damage or expense incurred by the Fund

 

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resulting from the Custodian’s negligence, bad faith or willful misconduct.  In no event shall the Custodian be liable hereunder for any special, indirect, punitive or consequential damages arising out of, pursuant to or in connection with this Agreement even if the Custodian has been advised of the possibility of such damages.  The Custodian shall indemnify the Fund against direct money damages arising out of the Custodian’s own negligence, bad faith or willful malfeasance.  It is agreed that the Custodian shall have no duty to assess the risks inherent in the Fund’s Investments or to provide investment advice with respect to such Investments and that the Fund as principal shall bear any risks attendant to particular Investments. The Custodian shall provide the Fund with its Market Practice Reports in respect of any foreign market where the Fund shall place and maintain Investments.  In addition, the Custodian shall provide the Fund with access to its Global Updates which address topical “market” events.

 

9.1            Limitations of Performance .  The Custodian shall not be responsible under this Agreement for any failure to perform its duties, and shall not be liable hereunder for any loss or damage in association with such failure to perform for or in consequence of the following causes:

 

9.1.1         Force Majeure .  “ Force Majeure ” shall mean any circumstance or event which is beyond the reasonable control of the Custodian, a Subcustodian or any agent of the Custodian or a Subcustodian and which adversely affects the performance by the Custodian of its obligations hereunder, by the Subcustodian of its obligations under its Subcustody Agreement or by any other Agent of the Custodian or the Subcustodian, including any event caused by, arising out of or involving (a) an act of God, (b) accident, fire, water or wind damage or explosion, (c) any third-party computer, system or other equipment failure or malfunction caused by any computer virus or the malfunction or failure of any communications medium, (d) third-party interruption of the power supply or other utility service, (e) any strike or other work stoppage, whether partial or total, (f) any delay or disruption resulting from or reflecting the occurrence of any Country or Sovereign Risk (as hereinafter provided), (g) any disruption of, or suspension of trading in, the securities, commodities or foreign exchange markets, whether or not resulting from or reflecting the occurrence of any Country or Sovereign Risk, (h) any encumbrance on the

 

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transferability of a currency or a currency position on the actual settlement date of a foreign exchange transaction, whether or not resulting from or reflecting the occurrence of any Country or Sovereign Risk, or (i) any other cause similarly beyond the reasonable control of the Custodian, provided always that this shall not affect the Custodian’s duty to indemnify the Fund for other losses, claims and liabilities for which the Custodian is bound to indemnify the Fund pursuant to Section 9.  The Custodian and the Subcustodian shall take reasonable steps to mitigate additional damages.  The Custodian shall notify the Fund when it becomes aware of a situation outlined above.  The Fund shall not be responsible for temporary delays in the performance of its duties and obligations and correspondingly shall not be liable for any loss, cost, damage or expense attributable to such delay in consequence of a Force Majeure event as described above affecting the Fund’s principal place of business operations or administration; provided always that this shall not affect the Fund’s duty to indemnify the Custodian for losses, claims and liabilities for which the Fund is bound to indemnify the Custodian pursuant to Section 10.

 

9.1.2        Country Risk .  “ Country Risk ” shall mean, with respect to the acquisition, ownership, settlement or custody of Investments in a jurisdiction, all risks relating to, or arising from, systemic and markets factors affecting the acquisition, payment for, or ownership of, Investments including (a) the prevalence of crime and corruption, (b) the inaccuracy or unreliability of business and financial information, (c) the instability or volatility of banking and financial systems, or the absence or inadequacy of an infrastructure to support such systems, (d) custody and settlement infrastructure of the market in which such Investments are transacted and held, (e) the acts, omissions solvency and operation of any Securities Depository, (f) the risk of the bankruptcy or insolvency of banking agents, counterparties to cash and securities transactions, registrars or transfer agents, and (g) the existence of market conditions which prevent the orderly execution or settlement of transactions or which affect the value of assets. The Market Practice Reports discussed in Section 9 may describe some of the Country Risks outlined above.  In addition, the Custodian shall provide the Fund with access to its Global Updates which may describe some timely Country Risks outlined above.

 

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9.1.3         Sovereign Risk .  “ Sovereign Risk ” shall mean, in respect of any jurisdiction, including the United States of America, where Investments are acquired or held hereunder or under a Subcustody Agreement, (a) any act of war, terrorism, riot, insurrection or civil commotion, (b) the imposition of any investment, repatriation or exchange control restrictions by any Governmental Authority, (c) the confiscation, expropriation or nationalization of any Investments by any Governmental Authority, whether de facto or de jure, (d) any devaluation or revaluation of the currency, (e) the imposition of taxes, levies or other charges affecting Investments, (f) any change in the Applicable Law, or (g) any other economic or political risk incurred or experienced. The Market Practice Reports discussed in Section 9 may describe some of the Sovereign Risks outlined above.  In addition, the Custodian shall provide the Fund with access to its Global Updates which may describe some timely Sovereign Risks outlined above.

 

9.2            Limitations on Liability .  The Custodian shall not be liable for any loss, claim, damage or other liability arising from the following causes:

 

9.2.1         Failure of Third Parties .  The failure of any third party including:  (a) any issuer of Investments or book-entry agent or other agent of an issuer; (b) any counterparty with respect to any Investment, including any issuer of exchange-traded or other futures, option, derivative or commodities contract; (c) failure of an Investment Advisor, or other agent of the Fund; provided however the Custodian shall be liable for any loss damage or expense caused by or resulting from such Custodian’s willful malfeasance, bad faith or negligence or (d) failure of other third parties similarly beyond the control or choice of the Custodian unless (a) any such third party is a subsidiary or parent of the Custodian or (b) the Custodian’s negligence, bad faith or willful misconduct was the cause of the failure of the third party or (c) a transaction or other matter between the Custodian and the third party unrelated to the Fund was the cause of the failure of the third party. Under (a), (b) or (c), the Custodian shall be liable for the failure of such third party.

 

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9.2.2        Information Sources .  The Custodian may reasonably rely upon information received from issuers of Investments or agents of such issuers, information received from Subcustodians and from other commercially reasonable sources such as commercial data bases and the like, but shall not be responsible for specific inaccuracies in such information, provided that the Custodian has relied upon such information in good faith, or for the failure of any commercially reasonable third-party information provider.

 

9.2.3        Reliance on Instruction .  Action by the Custodian or the Subcustodian in accordance with an Instruction, even when such action conflicts with, or is contrary to any provision of, the Fund’s declaration of trust, certificate of incorporation or by-laws or other constitutive document, Applicable Law, or actions by the trustees, directors or shareholders of the Fund. If the Custodian has actual knowledge of a conflict with the forgoing, it shall promptly inform an officer of the Fund.

 

9.2.4        Restricted Securities .  The limitations inherent in the rights, transferability or similar investment characteristics of a given Investment of the Fund.

 

10.           Indemnification .  Subject to the limitations set forth in this Agreement, the Fund hereby indemnifies and agrees to hold harmless the Custodian and each Subcustodian, and their respective agents, nominees, partners, employees, officers and directors, from and against all claims and liabilities, including reasonable counsel fees and taxes, incurred or assessed against any of them in connection with the performance, in good faith, of this Agreement and any Instruction not resulting from the willful malfeasance, bad faith or negligence of the Custodian, Sub Custodian and their respective Agents, nominees, partners, employees, officers and directors.

 

The Fund shall not be liable for indemnification unless the Custodian or Subcustodian, or their respective agents or nominees shall have promptly given written notice to the Fund.  The Custodian or Subcustodian shall not consent to the entry of any judgment or enter into any settlement without providing the Fund with adequate notice and without the Fund’s written consent, and shall provide the Fund with written evidence of any cost or expense for which it is seeking indemnification.

 

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The Custodian hereby indemnifies the Fund and agrees to hold the Fund harmless from and against all claims and liabilities, including counsel fees and taxes, incurred or assessed against the Fund to the extent that such claim or liability arises from the negligence, bad faith or willful misconduct on the part of the Custodian itself.

 

11.            Books and Records .  The Custodian shall:

 

11.1         create and maintain complete and accurate books and records relating to the performance of its obligations under this Agreement as required by the rules and regulations applicable to registered investment companies and as reasonably requested by the Fund;

 

11.2         make available to the Fund, its auditors, agents and employees, upon reasonable request and during normal business hours of the Custodian, all books and records maintained by the Custodian pursuant to Section 11.1 above, subject, however, to all reasonable security requirements of the Custodian then applicable to the books and records of its custody customers generally; and

 

11.3         provide any assistance reasonably requested by the Fund in the preparation of reports and shall provide to the Fund all Electronic Reports; the Custodian shall not be liable hereunder for the inaccuracy or incompleteness thereof or for errors in any information included therein unless such errors or inaccuracies resulted from the Custodian’s willful malfeasance, bad faith or negligence. All such reports and records shall, to the extent applicable, be maintained and preserved in conformity with the 1940 Act and the rules and regulations thereunder.

 

11.4         The Fund shall examine all records, however produced or transmitted, promptly upon receipt and shall notify the Custodian promptly of any discrepancy or error therein.  Unless the Fund delivers written notice of any such discrepancy or error within a reasonable time after its receipt of the records, the records shall be deemed to be true and accurate.

 

11.5         The Custodian obtains and will in the future obtain information on the value of assets from outside sources which may be utilized in certain reports made available to the Fund. The

 

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Custodian deems such sources to be reliable but the Fund acknowledges and agrees that the Custodian does not verify such information nor make any representations or warrantees as to its accuracy or completeness of such information and accordingly shall be without liability in selecting and using such sources and furnishing such information as long as the Custodian has shown due diligence in attempting to receive complete and accurate information.

 

11.6         All books and records created and maintained by the Custodian pursuant to this Agreement shall be the property of the Fund.

 

12.            Miscellaneous .

 

12.1         Proxies, Powers of Attorney, etc.   The Fund will promptly execute and deliver, upon request, such proxies, powers of attorney or other instruments as may be reasonable and necessary or desirable in order for the Custodian to provide, or to cause any Subcustodian to provide, custody services.

 

12.2         Entire Agreement; Amendment .  This Agreement constitutes the entire understanding and agreement of the parties hereto and supersedes any other oral or written agreements heretofore in effect between the Fund and the Custodian with respect to the Custody of the Fund’s Investments. No provision of this Agreement may be waived, amended or modified, and no addendum to this Agreement shall be or become effective, or be waived, amended or modified, except by an instrument in writing executed by the party against which enforcement of such waiver or modification is sought; provided, however, that an Instruction shall, whether or not such Instruction shall constitute a waiver, amendment or modification for purposes hereof, be deemed to have been accepted by the Custodian when it commences actions pursuant thereto or in accordance therewith. In the event of a conflict between the terms of this Agreement and the terms of a service level agreement or other operating agreement in place between the parties from time to time, the terms of this Agreement shall control.

 

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12.3         Binding Effect; Assignment .  This Agreement shall be binding upon and shall inure to the benefit of the Custodian and the Fund and their successors and assignees, provided that neither the Custodian nor the Fund may assign this Agreement without the prior written consent of the other party.  Each party agrees that only the parties to this Agreement and/or their successors in interest shall have a right to enforce the terms of this Agreement.  Accordingly, no client of the Company or other third party shall have any rights under this Agreement and such rights are explicitly disclaimed by the parties.

 

12.4         A copy of the Declaration of Trust is on file with the Secretary of State of the Commonwealth of Massachusetts, and notice is hereby given that this Agreement is not executed on behalf of the Trustees as individuals, and the obligations of this Agreement are not binding upon the Trustees, officers, or shareholders of the Fund individually, but are binding only upon the assets and property of the Fund. The Custodian agrees that no shareholder, Trustee or officer of the Fund may be held personally liable or responsible for any obligation of the Fund arising out of this Agreement.

 

12.4         GOVERNING LAW, JURISDICTION AND VENUE .  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.  THE PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY. THE FUND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING IN ANY OF THE AFORESAID COURTS AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  FURTHERMORE, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR

 

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COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

12.5         Notices .  Notices and other writings contemplated by this Agreement, other than Instructions, shall be delivered (a) by hand, (b) by first class registered or certified mail, postage prepaid, return receipt requested, (c) by a nationally recognized overnight courier, or (d) by facsimile transmission, provided that any notice or other writing sent by facsimile transmission shall also be mailed, postage prepaid, to the party to whom such notice is addressed.  All such notices shall be addressed, as follows:

 

If to the Fund:

 

 

PowerShares India Exchange-Traded Fund Trust

 

 

301 West Roosevelt Road

 

 

Wheaton, IL 60187

 

 

Attn: H. Bruce Bond

 

 

Telephone:

630.933.9600

 

Facsimile

630.933.9699

 

If to PowerShares Mauritius:

 

 

If to the Custodian:

 

 

Brown Brothers Harriman & Co.

 

 

40 Water Street

 

 

Boston, Massachusetts 02109

 

 

Attn: Senior Legal Officer, Investor Services

 

 

Telephone:

(617) 772-XXXX

 

Facsimile:

(617) 772-XXXX,

 

or such other address as the Fund or the Custodian may have designated in writing to the other.

 

12.6         Headings .  Paragraph headings included herein are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof.

 

12.7         Severability .  In the event any provision of this Agreement is determined to be void or unenforceable, such determination shall not affect the remainder of this Agreement, which shall continue to be in force.

 

12.8         Counterparts .  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original.  This Agreement shall become effective when one or more

 

32



 

counterparts have been signed and delivered by the Fund and the Custodian.  A photocopy or telefax of the Agreement shall be acceptable evidence of the existence of the Agreement and the Custodian may rely on the photocopy or telefax until the Custodian has received the original of the Agreement.

 

12.9         Confidentiality .  The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations.  All confidential information provided by a party hereto shall be used by any other party hereto solely for the purpose of rendering or obtaining services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party without the prior consent of such providing party.  The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed by or to any bank examiner of the Custodian or any Subcustodian, any Regulatory Authority, any auditor of the parties hereto, or by judicial or administrative process or otherwise by Applicable Law.

 

12.10       Tape-recording .  The Fund and the Custodian hereby agree that each may tape record any and all telephonic conversations between them.  This authorization will remain in effect until and unless revoked by either party in writing.  The parties further agree to solicit valid written or other consent from any of its respective employees with respect to telephone communications to the extent such consent is required by applicable law.

 

12.11       Counsel .  In fulfilling its duties hereunder, the Custodian may consult with the Fund’s counsel. The Fund shall indemnify the Custodian against and save the Custodian from any loss, damage or expense, or reasonable attorneys fees arising from any action reasonably taken or omitted to be taken by the Custodian in good faith in accordance with the written advice of opinion of counsel for the Fund (except to the extent that such action was due to the Custodian’s negligence, bad faith or willful misconduct).

 

33



 

12.12        Conflict .  Subject to the Custodian’s exercise of reasonable care, prudence and diligence, nothing contained in this Agreement shall prevent the Custodian and its associates from (i) acting as a custodian, a subcustodian, a trustee, an agent, securities dealer, an investment manager or in any other capacity for any other client whose interests may be adverse to the interest of the Fund; or (ii) buying, holding, lending, and dealing in any way in any assets for the benefit of its own account, or for the account of any other client whose interests may be adverse to the Fund notwithstanding that the same or similar assets may be held or dealt in by, or for the account of the Fund by the Custodian.  The Fund hereby voluntarily consents to, and waives any potential conflict of interest between the Custodian and/or its associates and the Fund, and agrees that:

 

(a)            the Custodian’s and/or its associates’ engagement in any such transaction shall not disqualify the Custodian from continuing to perform as the custodian of the Fund under this Agreement;

 

(b)            the Custodian and/or its associates shall not be under any duty to disclose any information in connection with any such transaction to the Fund;

 

(c)            the Custodian and/or its associates shall not be liable to account to the Fund for any profits or benefits made or derived by or in connection with any such transaction; and

 

(d)            the Fund shall use all reasonable efforts to disclose this provision, among other provisions in this Agreement, to its shareholders.

 

13.            Definitions .  The following defined terms will have the respective meanings set forth below.

 

13.1          Advance(s) ” shall mean any extension of credit by or through the Custodian or by or through any Subcustodian and shall include, without limitation, amounts due to the Custodian as the principal counterparty to any foreign exchange transaction with the Fund as described in Section 7.4.2

 

34



 

hereof, or paid to third parties for the account of the Fund or in discharge of any expense, tax or other item payable by the Fund.

 

13.2         “ Advance Costs ” shall mean any Advance, interest on the Advance and any related expenses, including without limitation any mark to market loss of the Custodian or Subcustodian on any Investment to which Section 7.6.1 applies.

 

13.3         “ Agency Account(s) ” shall mean any deposit account opened on the books of a Subcustodian or other banking institution in accordance with Section 7.1 hereof.

 

13.4         “ Agent(s) ” shall have the meaning set forth in the last paragraph of Section 6 hereof.

 

13.5         “ Applicable Law ” shall mean with respect to each jurisdiction, all (a) laws, statutes, treaties, regulations, guidelines (or their equivalents); (b) orders, interpretations, licenses and permits; and (c) judgments, decrees, injunctions, writs, orders and similar actions by a court of competent jurisdiction; compliance with which is required or customarily observed in such jurisdiction.

 

13.6         “ Authorized Person(s) ” shall mean any person or entity authorized to give Instructions on behalf of the Fund in accordance with Section 4.1 hereof. Authorized Persons shall be designated in a certificate the form of which is provided in Appendix A.

 

13.7         “ Book-Entry Agent(s) ” shall mean an entity acting as agent for the issuer of Investments for purposes of recording ownership or similar entitlement to Investments, including without limitation a transfer agent or registrar.

 

13.8         “ Clearing Corporation ” shall mean any entity or system established for purposes of providing securities settlement and movement and associated functions for a given market(s).

 

13.9         “ Delegation Schedule ” shall mean any separate schedule entered into between the Custodian and the Fund or its authorized representative with respect to certain matters concerning the

 

35



 

appointment and administration of Subcustodians delegated to the Custodian pursuant to Rule 17f-5 under the 1940 Act.

 

13.10       “ Electronic and Online Services Schedule ” shall mean any separate agreement entered into between the Custodian and the Fund or its authorized representative with respect to certain matters concerning certain electronic and online services as described therein and as may be made available from time to time by the Custodian to the Fund.

 

13.11       “ Electronic Reports ” shall mean any reports prepared by the Custodian and remitted to the Fund or its authorized representative via the internet or electronic mail.

 

13.12       “ Foreign Custody Manager ” shall mean the Fund’s foreign custody manager appointed pursuant to Rule 17f-5 under the 1940 Act.

 

13.13       “ Foreign Financial Regulatory Authority ” shall have the meaning given by Section 2(a)(50) of the 1940 Act.

 

13.14       “ Funds Transfer Services Schedule ” shall mean any separate schedule entered into between the Custodian and the Fund or its authorized representative with respect to certain matters concerning the processing of payment orders from Principal Accounts of the Fund.

 

13.15       “ Global Custody Network Listing ” shall mean the Countries and Subcustodians approved for Investments in non-U.S. Markets, included as Appendix B.

 

13.16       “ Instruction(s) ” shall have the meaning assigned in Section 4 hereof.

 

13.17       “ Investment Advisor ” shall mean PowerShares Capital Management LLC.

 

13.18       “ Investment(s) ” shall mean any investment asset of the Fund, including without limitation common stock and other equity securities, bonds, notes, mortgages or other obligations and debentures and other debt securities as well as receivables, derivatives, contractual rights or entitlements and other intangible assets.

 

36



 

13.19       “ Margin Account ” shall have the meaning set forth in Section 6.4 hereof.

 

13.20       “ Principal Account(s) ” shall mean deposit accounts of the Fund carried on the books of BBH&Co. as principal in accordance with Section 7 hereof.

 

13.21       “ Safekeeping Account ” shall mean an account established on the books of the Custodian or any Subcustodian for purposes of segregating the interests of the Fund (or clients of the Custodian or Subcustodian) from the assets of the Custodian or any Subcustodian.

 

13.22       “ Securities Depository ” shall mean a central or book entry system or agency established under Applicable Law for purposes of recording the ownership and/or entitlement to investment securities for a given market that, if a foreign Securities Depository, meets the definitional requirements of Rule 17f-7 under the 1940 Act.

 

13.23       “ Subcustodian(s) ” shall mean each foreign bank appointed by the Custodian pursuant to Section 8 hereof, but shall not include Securities Depositories.

 

13.24       “ Tri-Party Agreement ” shall have the meaning set forth in Section 6.4 hereof.

 

13.25       “ 1940 Act ” shall mean the Investment Company Act of 1940.

 

14.            Compensation .  The Fund agrees to pay to the Custodian (a) a fee in an amount set forth in the fee letter between the Fund and the Custodian in effect on the date hereof or as amended from time to time, and (b) all out-of-pocket expenses incurred by the Custodian, including the fees and expenses of all Subcustodians and other amounts paid by the Custodian to a third party for account or benefit of the Fund, and payable from time to time.  Amounts payable by the Fund under and pursuant to this Section 14 shall be payable by wire transfer to the Custodian at BBH&Co. in New York, New York.

 

15.            Termination .    This Agreement may be terminated by either party in accordance with the provisions of this Section.  The provisions of this Agreement and any other rights or obligations incurred or accrued by any party hereto prior to termination of this Agreement shall survive any termination of this Agreement.

 

37



 

15.1         Term, Notice and Effect .  This Agreement shall have an initial term of three (3) years from the date hereof.  Thereafter, this Agreement shall automatically renew for successive one (1) year periods unless either party terminates this Agreement by written notice effective no sooner than sixty (60) days’ following the date that notice to such effect shall be delivered to the other party at its address set forth in Section 12.5 hereof.  Notwithstanding the foregoing provisions, either party may terminate this Agreement at any time (a) for cause, which is a material breach of the Agreement not cured within 60 days, in which case termination shall be effective upon written receipt of notice by the non-terminating party, or (b) upon thirty (30) days’ written notice to the other party in the event that either party is adjudged bankrupt or insolvent, or there shall be commenced against such party a case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect.  Notwithstanding the foregoing, the Fund may terminate this Agreement without cause and for any reason upon sixty (60) days’ prior written notice to the Custodian.

 

15.2         Notice and Succession .  In the event a termination notice is given by a party hereto, all reasonable costs and expenses associated with any required systems, facilities, procedures, personnel, and other resourced modifications as well as the movement of records and materials and the conversion thereof shall be paid by the party for which services shall cease to be performed hereunder.  Furthermore, to the extent that it appears impracticable given the circumstances to effect an orderly delivery of the necessary and appropriate records of BBH to a successor within the time specified in the notice of termination as aforesaid, BBH and the Fund agree that this Agreement shall remain in full force and effect for such reasonable period as may be required to complete necessary arrangements with a successor.

 

15.3         Successor Custodian .  In the event of the appointment of a successor custodian, it is agreed that the Investments of the Fund held by the Custodian or any Subcustodian shall be delivered to the successor custodian in accordance with reasonable Instructions.  The Custodian agrees to cooperate with the Fund in the execution of documents and performance of other actions necessary or desirable in

 

38



 

order to facilitate the succession of the new custodian.  If no successor custodian shall be appointed, the Custodian shall in like manner transfer the Fund’s Investments in accordance with Instructions.

 

15.4          Delayed Succession .  If no Instruction has been given as of the effective date of termination, Custodian may at any time on or after such termination date and upon ten (10) consecutive calendar days written notice to the Fund either (a) deliver the Investments of the Fund held hereunder to the Fund at the address designated for receipt of notices hereunder; or (b) deliver any investments held hereunder to a bank or trust company having a capitalization of $2,000,000 USD equivalent and operating under the Applicable Law of the jurisdiction where such Investments are located, such delivery to be at the risk of the Fund.  In the event that Investments or moneys of the Fund remain in the custody of the Custodian or its Subcustodians after the date of termination owing to the failure of the Fund to issue Instructions with respect to their disposition or owing to the fact that such disposition could not be accomplished in accordance with such Instructions despite diligent efforts of the Custodian, the Custodian shall be entitled to compensation for its services with respect to such Investments and moneys during such period as the Custodian or its Subcustodians retain possession of such items and the provisions of this Agreement shall remain in full force and effect until disposition in accordance with this Section is accomplished.

 

16.            Compliance Policies and Procedures .  To assist the Fund in complying with Rule 38a-1 under the 1940 Act, BBH&Co. represents that it has adopted written policies and procedures reasonably designed to prevent violation of the federal securities laws in fulfilling its obligations under the Agreement and that it has in place a compliance program to monitor its compliance with those policies and procedures. BBH&Co will upon request provide the Fund with information about our compliance program as mutually agreed.

 

39



 

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first above written.

 

The undersigned acknowledges that (I/we) have received a copy of this document

 

BROWN BROTHERS HARRIMAN & CO.

POWERSHARES INDIA EXCHANGE-TRADED
FUND TRUST
and
POWERSHARES MAURITIUS

 

 

By:

 

 

By:

 

 

Name:

 

Name:

 

Title:

 

Title:

 

Date:

 

Date:

 

BBH&Co. is a limited partnership organized under the laws of the United States of America (“ US ”) and is subject to the US Treasury Regulations set forth under 31 CFR 500, et seq. BBH&Co. may not establish any relationship with any Prohibited Person or Entity as such term is defined under the regulations.  No customer of BBH&Co. may be owned or controlled by an entity or person: (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224, issued on September 24, 2001 (“ EO13224 ”) <www.treasury. gov/offices/ enforcement/ ofac/programs/terror/ terror.pdf>; (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designated National and Blocked Persons” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website; (iii) who commits, threatens to commit or supports “terrorism”, as such term is defined in EO13224; or (iv) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) through (iv) above are herein referred to as a “ Prohibited Person ”).

 

40



 

FUNDS TRANSFER SERVICES SCHEDULE TO CUSTODIAN AGREEMENT

 

1.             Execution of Payment Orders .  Brown Brothers Harriman & Co. (the “ Custodian ”) is hereby instructed by PowerShares India Exchange-Traded Fund Trust (the “ Fund ”) to execute each payment order, whether denominated in United States dollars or other applicable currencies, received by the Custodian in the Fund’s name as sender and authorized and confirmed by an Authorized Person as defined in a Custodian Agreement dated as of                             , 2008 by and between the Custodian and the Fund, as amended or restated from time thereafter (the “ Agreement ”), provided that the Fund has sufficient available funds on deposit in a Principal Account as defined in the Agreement and provided that the order (i) is received by the Custodian in the manner specified in this Funds Transfer Services Schedule or any amendment hereafter; (ii) complies with any written instructions and restrictions of the Fund as set forth in this Funds Transfer Services Schedule or any amendment hereafter; (iii) is authorized by the Fund or is verified by the Custodian in compliance with a security procedure set forth in Paragraph 2 below for verifying the authenticity of a funds transfer communication sent to the Custodian in the name of the Fund or for the detection of errors set forth in any such communication; and (iv) contains sufficient data to enable the Custodian to process such transfer.

 

2.             Security Procedure .  The Fund hereby elects to use the procedure selected below as its security procedure (the “ Security Procedure ”). The Security Procedure will be used by the Custodian to verify the authenticity of a payment order or a communication amending or canceling a payment order. The Custodian will act on instructions received provided the instruction is authenticated by the Security Procedure. The Fund agrees and acknowledges in connection with (i) the size, type and frequency of payment orders normally issued or expected to be issued by the Fund to the Custodian, (ii) all of the security procedures offered to the Fund by the Custodian, and (iii) the usual security procedures used by customers and receiving banks similarly situated, that authentication through the Security Procedure shall be deemed commercially reasonable for the authentication of all payment orders submitted to the Custodian.  The Fund hereby elects (please choose one) the following Security Procedure as described below:

 

o                                     BIDS and BIDS Worldview Payment Products .  BIDS and BIDS Worldview Payment Products, are on-line payment order authorization facilities with built-in authentication procedures. The Custodian and the Fund shall each be responsible for maintaining the confidentiality of passwords or other codes to be used by them in connection with BIDS. The Custodian will act on instructions received through BIDS without duty of further confirmation unless the Fund notifies the Custodian that its password is not secure.

 

o                                     SWIFT . The Custodian and the Fund shall comply with SWIFT’s authentication procedures. The Custodian will act on instructions received via SWIFT provided the instruction is authenticated by the SWIFT system.

 

o                                     Tested Telex .  The Custodian will accept payment orders sent by tested telex, provided the test key matches the algorithmic key the Custodian and Fund have agreed to use.

 

o                                     Computer Transmission .  The Custodian is able to accept transmissions sent from the Fund’s computer facilities to the Custodian’s computer facilities provided such transmissions are encrypted and digitally certified or are otherwise authenticated in a reasonable manner based on available technology.  Such procedures shall be established in an operating protocol between the Custodian and the Fund.

 

41



 

o                                     Telefax Instructions . A payment order transmitted to the Custodian by telefax transmission shall transmitted by the Fund to a telephone number specified from time to time by the Custodian for such purposes.  If it detects no discrepancies, the Custodian will follow one of the procedures below.

 

1.                                        If the telefax requests a repetitive payment order, the Custodian may call the Fund at its last known telephone number, request to speak to the Fund or Authorized Person, and confirm the authorization and the details of the payment order (a Callback); or

 

2.                                        If the telefax requests a non-repetitive order, the Custodian will perform a Callback.

 

All faxes must be accompanied by a fax cover sheet which indicates the sender’s name, company name, telephone number, fax number, number of pages, and number of transactions or instructions attached.

 

o                                     Telephonic . A telephonic payment order shall be called into the Custodian at the telephone number designated from time to time by the Custodian for that purpose. The caller shall identify herself/himself as an Authorized Person.  The Custodian shall obtain the payment order data from the caller.  The Custodian shall then:

 

1.                                        If a telephonic repetitive payment order, the Custodian may perform a Callback; or

 

2.                                        If a telephonic non-repetitive payment order, the Custodian will perform a Callback.

 

In the event the Fund chooses a procedure which is not a Security Procedure as described above, the Fund agrees to be bound by any payment order (whether or not authorized) issued in its name and accepted by the Custodian in compliance with the procedure selected by the Fund.

 

3.                                       Rejection of Payment Orders .  The Custodian shall give the Fund timely notice of the Custodian’s rejection of a payment order. Such notice may be given in writing or orally by telephone, each of which is hereby deemed commercially reasonable.  In the event the Custodian fails to execute a properly executable payment order and fails to give the Fund notice of the Custodian’s non-execution, the Custodian shall be liable only for the Fund’s actual damages and only to the extent that such damages are recoverable under UCC 4A (as defined in Paragraph 7 below).  Notwithstanding anything in this Funds Transfer Services Schedule and the Agreement to the contrary, the Custodian shall in no event be liable for any consequential or special damages under this Funds Transfer Services Schedule, whether or not such damages relate to services covered by UCC 4A, even if the Custodian has been advised of the possibility of such damages. Whenever compensation in the form of interest is payable by the Custodian to the Fund pursuant to this Funds Transfer Services Schedule, such compensation will be payable as specified in UCC 4A.

 

4.                                       Cancellation of Payment Orders .  The Fund may cancel a payment order but the Custodian shall have no liability for the Custodian’s failure to act on a cancellation instruction unless the Custodian has received such cancellation instruction at a time and in a manner affording the Custodian reasonable opportunity to act prior to the Custodian’s execution of the order.  Any cancellation shall be sent and confirmed in the manner set forth in Paragraph 2 above.

 

42



 

5.                                       Responsibility for the Detection of Errors and Unauthorized Payment Orders .  Except as may be provided, the Custodian is not responsible for detecting any Fund error contained in any payment order sent by the Fund to the Custodian. In the event that the Fund’s payment order to the Custodian either (I) identifies the beneficiary by both a name and an identifying or bank account number and the name and number identify different persons or entities, or (ii) identifies any bank by both a name and an identifying number and the number identifies a person or entity different from the bank identified by name, execution of the payment order, payment to the beneficiary, cancellation of the payment order or actions taken by any bank in respect of such payment order may be made solely on the basis of the number. The Custodian shall not be liable for interest on the amount of any payment order that was not authorized or was erroneously executed unless the Fund so notifies the Custodian within thirty (30) business days following the Fund’s receipt of notice that such payment order had been processed.  If a payment order in the name of the Fund and accepted by the Custodian was not authorized by the Fund, the liability of the parties will be governed by the applicable provisions of UCC 4A.

 

6.                                       Laws and Regulations .  The rights and obligations of the Custodian and the Fund with respect to any payment order executed pursuant to this Funds Transfer Services Schedule will be governed by any applicable laws, regulations, circulars and funds transfer system rules, the laws and regulations of the United States of America and of other relevant countries including exchange control regulations and limitations on dealings or other sanctions, and including without limitation those sanctions imposed under the law of the United States of America by the Office of Foreign Assets Control.  Any taxes, fines, costs, charges or fees imposed by relevant authorities on such transactions shall be for the account of the Fund.

 

7.                                       Miscellaneous .  All accounts opened by the Fund or its authorized agents at the Custodian subsequent to the date hereof shall be governed by this Funds Transfer Schedule.  All terms used in this Funds Transfer Services Schedule shall have the meaning set forth in Article 4A of the Uniform Commercial Code as currently in effect in the State of New York (UCC 4A) unless otherwise set forth herein. The terms and conditions of this Funds Transfer Services Schedule are in addition to, and do not modify or otherwise affect, the terms and conditions of the Agreement and any other agreement or arrangement between the parties hereto.

 

8.                                       Indemnification .  The Custodian does not recommend the sending of instructions by telefax or telephonic means as provided in Paragraph 2.  If such method is used, if the Custodian determines that a telefax Instruction is illegible, the Custodian shall promptly contact an Authorized Person and request a legible telefax Instruction.  Provided the Custodian has exercised the standard of care required herein with respect to receipt of Proper Instructions including but not limited to any applicable security or authorization procedures, the Custodian  BY ELECTING TO SEND INSTRUCTIONS BY TELEFAX OR TELEPHONIC MEANS, THE FUND AGREES TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM UNLESS SUCH LOSSES RESULT FROM THE WILLFUL MALFEASANCE, BAD FAITH OR NEGLIGENCE OF THE CUSTODIAN OR ITS PARTNERS, OFFICERS OR EMPLOYEES.

 


 

OPTIONAL :  The Custodian will perform a Callback if instructions are sent by telefax or telephonic means as provided in Paragraph 2 above. THE FUND MAY, AT ITS OWN RISK AND BY HEREBY AGREEING TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM, ELECT TO WAIVE A CALLBACK BY THE CUSTODIAN BY INITIALING HERE:

 


 

43



 

The undersigned acknowledges that (I/we) have received a copy of this document

 

Accepted and agreed:

 

BROWN BROTHERS HARRIMAN & CO.

 

POWERSHARES INDIA EXCHANGE-TRADED
FUND TRUST

and
POWERSHARES MAURITIUS

 

 

 

By:

 

 

By:

 

 

Name:

 

 

Name:

 

Title:

 

 

Title:

 

Date:

 

 

Date:

 

44



 

ELECTRONIC AND ON-LINE SERVICES
SCHEDULE

 

This Electronic and On-Line Services Schedule (this “ Schedule ”) to a Custodian Agreement dated as of                                           (as amended from time to time hereafter, the Agreement) by and between Brown Brothers Harriman & Co. (we, us our) and PowerShares India Exchange-Traded Fund Trust (you, your), provides general provisions governing your use of and access to the Services (as hereinafter defined) provided to you by us via the Internet (at www.bbhco.com or such other URL as we may instruct you to use to access our products ) and via a direct dial-up connection between your computer and our computers, as of                                 ,           , 2008 (the “ Effective Date ”). Use of the Services constitutes acceptance of the terms and conditions of this Schedule, any Appendices hereto, the Terms and Conditions posted on our web site, and any terms and conditions specifically governing a particular Service or our other products, which may be set forth in the Agreement or in a separate related agreement (collectively, the “ Related Agreements ”).

 

1.                                       General Terms .

 

You will be granted access to our suite of online products, which may include, but shall not be limited to the following services via the Internet or dial-up connection (each separate service is a Service; collectively referred to as the Services):

 

1.1.                             BIDS® and BIDS WorldView, a system for effectuating securities and fund trade instruction and execution, processing and handling instructions, and for the input and retrieval of other information;

 

1.2.                              F/X WorldView, a system for executing foreign exchange trades;

 

1.3.                              Fund WorldView, a system for receiving fund and prospectus information;

 

1.4.                               BBHCOnnect, a system for placing securities trade instructions and following the status and detail of trades;

 

1.5.                              ActionView SM , a system for receiving certain corporate action information;

 

1.6.                              Risk View, an interactive portfolio risk analysis tool; and

 

1.7.                              Such other services as we shall from time to time offer.

 

2.                                       Security / Passwords .

 

2.1.                              A digital certificate and/or an encryption key may be required to access certain Services.  You may apply for a digital certificate and/or an encryption key by following the procedures set forth at http://www.bbh.com/certs/.  You also will need an identification code (ID) and password(s) (Password) to access the Services.

 

2.2.                              You agree to safeguard your digital certificate and/or encryption key, ID, and Password and not to give or make available, intentionally or otherwise, your digital certificate, ID, and/or Password to any unauthorized person.  You must immediately notify us in writing if you believe that your digital certificate and/or encryption key, Password, or ID has been compromised or if you suspect unauthorized access to your account by means of the Services or otherwise, or when a person to whom a digital certificate and/or an

 

45



 

encryption key, Password, or ID has been assigned leaves or is no longer permitted to access the Services.

 

2.3.                              We will not be responsible for any breach of security, or for any unauthorized trading or theft by any third party, caused by your failure (be it intentional, unintentional, or negligent) to maintain the confidentiality of your ID and/or Password and/or the security of your digital certificate and/or encryption key.

 

3.                                       Instructions .

 

3.1.                             Proper instructions under this Schedule shall be provided as designated in the Related Agreements ( Instructions ).

 

3.2.                             The following additional provisions apply to Instructions provided via the Services:

 

a.                                      Instructions sent by electronic mail will not be accepted or acted upon.

 

b.                                     You authorize us to act upon Instructions received through the Services utilizing your digital certificate, ID, and/or Password as though they were duly authorized written instructions, without any duty of verification or inquiry on our part, and agree to hold us harmless for any losses you experience as a result.

 

c.                                      From time to time, the temporary unavailability of third party telecommunications or computer systems required by the Services may result in a delay in processing Instructions.  In such an event, we shall not be liable to you or any third party for any liabilities, losses, claims, costs, damages, penalties, fines, obligations, or expenses of any kind (including without limitation, reasonable attorneys’, accountants’, consultants’, or experts’ fees and disbursements) that you experience due to such a delay.

 

4.                                       Electronic Documents .

 

We may make periodic statements, disclosures, notices, and other documents available to you electronically, and, subject to any delivery and receipt verification procedures required by law, you agree to receive such documents electronically and to check the statements for accuracy.  If you believe any such statement contains incorrect information, you must follow the procedures set forth in the Related Agreement(s).

 

5.                                       Malicious Code .

 

You understand and agree that you will be responsible for the introduction (by you, your employees, agents, or representatives) into the Services, whether intentional or unintentional, of (i) any virus or other code, program, or sub-program that damages or interferes with the operation of the computer system containing the code, program or sub-program, or halts, disables, or interferes with the operation of the Services themselves; or (ii) any device, method, or token whose knowing or intended purpose is to permit any person to circumvent the normal security of the Services or the system containing the software code for the Services (Malicious Code).  You agree to take all necessary actions and precautions to prevent the introduction and proliferation of any Malicious Code into those systems that interact with the Services.

 

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6.                                       Indemnification .

 

For avoidance of doubt, you hereby agree that the provisions in the Related Agreement(s) related to your indemnification of us and any limitations on our liability and responsibilities to you shall be applicable to this Agreement, and are hereby expressly incorporated herein. You agree that the Services are comprised of telecommunications and computer systems, and that it is possible that Instructions, information, transactions, or account reports might be added to, changed, or omitted by electronic or programming malfunction, unauthorized access, or other failure of the systems which comprise the Services, despite the security features that have been designed into the Services. You agree that we will not be liable for any action taken or not taken in complying with the terms of this Schedule, except for our willful misconduct, bad faith or negligence.  The provisions of this paragraph shall survive the termination of this Schedule and the Related Agreements.

 

7.                                       Payment .

 

You may be charged for services hereunder as set forth in a fee schedule agreed to by the Fund and Custodian and signed by the Fund and the Custodian.

 

8.                                       Term/Termination .

 

8.1.                             This Schedule is effective as of the date you sign it or first use the Services, whichever is first, and continues in effect until such time as either you or we terminate the Schedule in accordance with this Section 8 and/or until your off-line use of the Services is terminated.

 

8.2.                             We may terminate your access to the Services at any time, for any reason, with five (5) business days prior notice; provided that we may terminate your access to the Services with no prior notice (i) if your account with us is closed, (ii) if you fail to comply with any of the terms of this Agreement and fail to rectify such breach within a reasonable time, (iii) if we believe that your continued access to the Services poses a security risk, or (iv) if we believe that you are violating or have violated applicable laws, and we will not be liable for any loss you may experience as a result of such termination.  You may terminate your access to the Services at any time by giving us ten (10) business days’ notice.  Upon termination, we will cancel all your Passwords and IDs and any in-process or pending Instructions will be carried out or cancelled, at our sole discretion.

 

9.                                       Miscellaneous .

 

9.1.                             Notices .  All notices, requests, and demands (other than routine operational communications, such as Instructions) shall be in such form and effect as provided in the Related Agreement(s).

 

9.2.                             Inconsistent Provisions .  Each Service may be governed by separate terms and conditions in addition to this Schedule and the Related Agreement(s).  Except where specifically provided to the contrary in this Schedule, in the event that such separate terms and conditions conflict with this Schedule and the Related Agreement(s), the provisions of this Schedule shall prevail to the extent this Schedule applies to the transaction in question.

 

9.3.                             Binding Effect; Assignment; Severability .  This Schedule shall be binding on the Fund.  We may assign or delegate our rights and duties under this Schedule with reasonable

 

47



 

prior written notice to you.  Your rights under this Schedule may not be assigned without our prior written consent, which consent shall not be unreasonably withheld. In the event that any provision of this Schedule conflicts with the law under which this Schedule is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over you and us, such provision shall be deemed to be restated to effectuate as nearly as possible the purposes of the Schedule in accordance with applicable law.  The remaining provisions of this Schedule and the application of the challenged provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision shall be valid and enforceable to the full extent permitted by law.

 

9.4.                               Choice of Law; Jury Trial .  This Schedule shall be governed by and construed, and the legal relations between the parties shall be determined, in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of laws. Each party agrees to waive its right to trial by jury in any action or proceeding based upon or related to this Agreement.  The parties agree that all actions and proceedings based upon or relating to this Schedule shall be litigated exclusively in the federal and state courts located within New York City, New York.

 

The undersigned acknowledges that (I/we) have received a copy of this document

 

 

POWERSHARES INDIA EXCHANGE-TRADED

 

FUND TRUST

 

 

 

By:

 

 

 

 

 

Title:

 

 

 

 

 

Date:

 

 

 

 

 

 

 

POWERSHARES MAURITIUS

 

 

 

By:

 

 

 

 

 

Title:

 

 

 

 

 

Date:

 

 

 

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17f-5 DELEGATION SCHEDULE

 

By its execution of this Delegation Schedule dated as of                           , 2008, PowerShares India Exchange-Traded Fund Trust, a management investment company registered with the Securities and Exchange Commission (the “ Commission ”) under the Investment Company Act of 1940, as amended (the “ 1940 Act ”), on behalf of itself and its wholly-owned subsidiary in Mauritius, PowerShares Mauritius (collectively, the “ Fund ”), hereby appoints BROWN BROTHERS HARRIMAN & CO., a New York limited partnership with an office in Boston, Massachusetts (the “ Delegate ”) as its delegate to perform certain functions with respect to the custody of Fund’s Assets outside the United States.

 

1.             Maintenance of Fund’s Assets Abroad .  The Fund, acting on its own behalf or through its duly authorized representative, hereby instructs the Delegate pursuant to the terms of the Custodian Agreement dated as of the date hereof executed by and between the Fund and the Delegate (the “ Custodian Agreement ”) to place and maintain the Fund’s Assets in countries outside the United States in accordance with Instructions received from the Fund or the Fund’s Investment Advisor.  Such instruction shall constitute an Instruction under the terms of the Custodian Agreement. The Fund acknowledges that (a) the Delegate shall perform services hereunder only with respect to the countries where it accepts delegation as Foreign Custody Manager as indicated on the Delegate’s Global Custody Network Listing; (b) depending on conditions in the particular country, advance notice may be required before the Delegate shall be able to perform its duties hereunder in or with respect to such country (such advance notice to be reasonable in light of the specific facts and circumstances attendant to performance of duties in such country); and (c) nothing in this Delegation Schedule shall require the Delegate to provide delegated or custodial services in any country, and there may from time to time be countries as to which the Delegate determines it will not provide delegation services; such countries shall be indicated in the BBH Global Custody Network Listing.

 

2.             Delegation .  Pursuant to the provisions of Rule 17f-5 under the 1940 Act as amended, the Board hereby delegates to the Delegate, and the Delegate hereby accepts such delegation and agrees

 

49



 

to perform only those duties set forth in this Delegation Schedule concerning the safekeeping of the Fund’s Assets in each of the countries as to which it acts as the Board’s delegate. The Delegate is hereby authorized to take such actions on behalf of or in the name of the Fund as are reasonably required to discharge its duties under this Delegation Schedule, including, without limitation, to cause the Fund’s Assets to be placed with a particular Eligible Foreign Custodian in accordance herewith. The Fund confirms to the Delegate that the Fund or its Investment Adviser has considered the Sovereign Risk and prevailing Country Risk as part of its continuing investment decision process, including such factors as may be reasonably related to the systemic risk of maintaining the Fund’s Assets in a particular country, including, but not limited to, financial infrastructure, prevailing custody and settlement systems and practices (including the use of any Securities Depository in the context of information provided by the Custodian in the performance of its duties as required under Rule 17f-7 under the 1940 Act and the terms of the Custodian Agreement governing such duties), and the laws relating to the safekeeping and recovery of the Fund’s Assets held in custody pursuant to the terms of the Custodian Agreement.

 

3.                                       Selection of Eligible Foreign Custodian and Contract Administration .  The Delegate shall perform the following duties with respect to the selection of Eligible Foreign Custodians and administration of certain contracts governing the Fund’s foreign custodial arrangements:

 

(a)                                  Selection of Eligible Foreign Custodian . The Delegate shall place and maintain the Fund’s Assets with an Eligible Foreign Custodian, provided that the Delegate shall have determined that the Fund’s Assets will be subject to reasonable care based on the standards applicable to custodians in the relevant market after considering all factors relevant to the safekeeping of such assets including without limitation:

 

(i)            The Eligible Foreign Custodian’s practices, procedures, and internal controls, including, but not limited to, the physical protections available for certificated securities (if applicable), the controls and procedures for dealing with any Eligible Securities Depository, the method of keeping custodial records, and the security and data protection practices;

 

50



 

(ii)            Whether the Eligible Foreign Custodian has the requisite financial strength to provide reasonable care for the Fund’s Assets;

 

(iii)           The Eligible Foreign Custodian’s general reputation and standing; and

 

(iv)           Whether the Fund will have jurisdiction over and be able to enforce judgments against the Eligible Foreign Custodian, such as by virtue of the existence of any offices of such Eligible Foreign Custodian in the United States or such Eligible Foreign Custodian’s appointment of an agent for service of process in the United States or consent to jurisdiction in the United States.

 

The Delegate shall be required to make the foregoing determination to the best of its knowledge and belief based only on information reasonably available to it.

 

(b)                                 Contract Administration .  The Delegate shall cause that the foreign custody arrangements with an Eligible Foreign Custodian shall be governed by a written contract that the Delegate has determined will provide reasonable care for Fund assets based on the standards applicable to custodians in the relevant market.  Each such contract shall, except as set forth in the last paragraph of this subSection (b), include provisions that provide:

 

(i)             For indemnification or insurance arrangements (or any combination of the foregoing) such that the Fund will be adequately protected against the risk of loss of assets held in accordance with such contract;

 

(ii)            That the Fund’s Assets will not be subject to any right, charge, security interest, lien or claim of any kind in favor of the Eligible Foreign Custodian or its creditors except a claim of payment for their safe custody or administration or, in the case of cash deposits, liens or rights in favor of creditors of such Custodian arising under bankruptcy, insolvency or similar laws;

 

51



 

(iii)           That beneficial ownership of the Fund’s Assets will be freely transferable without the payment of money or value other than for safe custody or administration;

 

(iv)           That adequate records will be maintained identifying the Fund’s Assets as belonging to the Fund or as being held by a third party for the benefit of the Fund;

 

(v)            That the Fund’s independent public accountants will be given access to those records described in (iv) above or confirmation of the contents of such records; and

 

(vi)           That the Fund will receive sufficient and timely periodic reports with respect to the safekeeping of the Fund’s Assets, including, but not limited to, notification of any transfer to or from the Fund’s account or a third party account containing the Fund’s Assets.

 

Such contract may contain, in lieu of any or all of the provisions specified in this Section 3(b), such other provisions that the Delegate determines will provide, in their entirety, the same or a greater level of care and protection for the Fund’s Assets as the specified provisions, in their entirety.

 

(c)            Limitation to Delegated Selection .  Notwithstanding anything in this Delegation Schedule to the contrary, the duties under this Section 3 shall apply only to Eligible Foreign Custodians selected by the Delegate and shall not apply to Securities Depositories or to any Eligible Foreign Custodian that the Delegate is directed to use pursuant to Section 7 of this Delegation Schedule.

 

4.              Monitoring .  The Delegate shall establish a system to monitor at reasonable intervals (but at least annually) the appropriateness of maintaining the Fund’s Assets with each Eligible Foreign Custodian that has been selected by the Delegate pursuant to Section 3 of this Delegation Schedule.  The Delegate shall monitor the continuing appropriateness of placement of the Fund’s Assets in accordance with the criteria established under Section 3(a) of this Delegation Schedule.  The Delegate shall monitor the continuing appropriateness of the contract governing the Fund’s arrangements in accordance with the criteria established under Section 3(b) of this Delegation Schedule.

 

52



 

5.              Reporting .  At least annually and more frequently as mutually agreed between the parties, the Delegate shall provide to the Fund’s Board written reports specifying placement of the Fund’s Assets with each Eligible Foreign Custodian selected by the Delegate pursuant to Section 3 of this Delegation Schedule and shall promptly report on any material changes to such foreign custody arrangements.  Delegate will prepare such a report with respect to any Eligible Foreign Custodian that the Delegate has been instructed to use pursuant to Section 7 of this Delegation Schedule only to the extent specifically agreed with respect to the particular situation. Upon request by the Fund, the Delegate will identify the name, address and principal place of business of any Eligible Foreign Custodian of the Fund’s investments and the name and address of the governmental agency or other regulatory authority that supervises or regulates such Eligible Foreign Custodian.

 

6.              Withdrawal of Fund’s Assets .  If the Delegate determines that an arrangement with a specific Eligible Foreign Custodian selected by the Delegate under Section 3 of this Delegation Schedule no longer meets the requirements of said Section, Delegate shall withdraw the Fund’s Assets from the non-complying arrangement as soon as reasonably practicable; provided, however, that if in the reasonable judgment of the Delegate, such withdrawal would require liquidation of any of the Fund’s Assets or would materially impair the liquidity, value or other investment characteristics of the Fund’s Assets, it shall be the duty of the Delegate to provide information regarding the particular circumstances and to act only in accordance with Instructions of the Fund or an Authorized Person with respect to such liquidation or other withdrawal.

 

7.              Direction as to Eligible Foreign Custodian .  Notwithstanding this Delegation Schedule, the Fund, acting through its Board, its Investment Advisor or its other Authorized Representative, may direct the Delegate to place and maintain the Fund’s Assets with a particular Eligible Foreign Custodian, including without limitation with respect to investment in countries as to which the Custodian will not provide delegation services.  In such event, the Delegate will notify the Fund that the Delegate will not provide delegation services in that country. In addition, the Delegate shall be entitled to rely on any such

 

53



 

instruction as an Instruction under the terms of the Custodian Agreement and shall have no duties under this Delegation Schedule with respect to such arrangement save those that it may undertake specifically in writing with respect to each particular instance.

 

8.              Standard of Care .  In carrying out its duties under this Delegation Schedule, the Delegate agrees to exercise reasonable care, prudence and diligence such as a person having responsibility for safekeeping the Fund’s Assets would exercise.

 

9.              Representations .  The Delegate hereby represents and warrants that it is a U.S. Bank and that this Delegation Schedule has been duly authorized, executed and delivered by the Delegate and is a legal, valid and binding agreement of the Delegate.

 

The Fund hereby represents and warrants that its Board of Trustees has determined that it is reasonable to rely on the Delegate to perform the delegated responsibilities provided for herein and that this Delegation Schedule has been duly authorized, executed and delivered by the Fund and is a legal, valid and binding agreement of the Fund.

 

10.            Effectiveness; termination .  This Delegation Schedule shall be effective as of the date on which this Delegation Schedule shall have been accepted by the Delegate, as indicated by the date set forth below the Delegate’s signature.  This Delegation Schedule may be terminated at any time, without penalty, by written notice from the terminating party to the non-terminating party.  Such termination shall be effective on the 30th calendar day following the date on which the non-terminating party shall receive the foregoing notice.  The foregoing to the contrary notwithstanding, this Delegation Schedule shall be deemed to have been terminated concurrently with the termination of the Custodian Agreement.

 

11.            Notices .  Notices and other communications under this Delegation Schedule are to be made in accordance with the arrangements designated for such purpose under the Custodian Agreement unless otherwise indicated in a writing referencing this Delegation Schedule and executed by both parties.

 

54



 

12.            Definitions .  Capitalized terms not otherwise defined in this Delegation Schedule have the following meanings:

 

a.              Country Risk - shall have the meaning set forth in Section 9.1.2 of the Custodian Agreement.

 

b.              Eligible Foreign Custodian - shall have the meaning set forth in Rule 17f-5(a)(1) under the 1940 Act and shall also include a U.S. Bank.

 

c.              Fund’s Assets - shall mean any of the Fund’s investments (including foreign currencies) for which the primary market is outside the United States, and such cash and cash equivalents as are reasonably necessary to effect the Fund’s transactions in such investments.

 

d.              Instructions - shall have the meaning set forth in the Custodian Agreement.

 

e.              Securities Depository - shall have the meaning set forth in Rule 17f-7 under the 1940 Act.

 

f.               Sovereign Risk - shall have the meaning set forth in Section 9.1.3 of the Custodian Agreement.

 

g .             U.S. Bank - shall mean a bank which qualifies to serve as a custodian of assets of investment companies under Section 17(f) of the 1940 Act.

 

13.            Governing Law and Jurisdiction .  This Delegation Schedule shall be construed in accordance with the laws of the State of New York.  The parties hereby submit to the exclusive jurisdiction of the courts of the State of New York and the Federal courts located in the State of New York.

 

14.            Fees .  Delegate shall perform its functions under this Delegation Schedule for the compensation determined under the Custodian Agreement.

 

55



 

15.            Integration .  This Delegation Schedule sets forth all of the Delegate’s duties with respect to the selection and monitoring of Eligible Foreign Custodians, the administration of contracts with Eligible Foreign Custodians, the withdrawal of assets from Eligible Foreign Custodians and the issuance of reports in connection with such duties.  The terms of the Custodian Agreement shall apply generally as to matters not expressly covered in this Delegation Schedule, including dealings with the Eligible Foreign Custodians in the course of discharge of the Delegate’s obligations under the Custodian Agreement.

 

56



 

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first above written.

 

The undersigned acknowledges that (I/we) have received a copy of this document.

 

 

BROWN BROTHERS HARRIMAN & CO.

 

POWERSHARES INDIA EXCHANGE-TRADED
FUND TRUST
and POWERSHARES MAURITIUS

 

 

 

 

By:

 

 

By:

 

 

Name:

 

 

Name:

 

Title:

 

 

Title:

 

Date:

 

 

Date:

 

57


Exhibit 99.(h)(1)

 

FORM OF FUND ADMINISTRATION AND ACCOUNTING AGREEMENT

 

AGREEMENT made as of                       , 2008 by and between Brown Brothers Harriman & Co., a limited partnership organized under the laws of the State of New York (the “ Administrator ”), and PowerShares India Exchange-Traded Fund Trust, a Massachusetts business trust (the “ Fund ”).

 

WITNESSETH:

 

WHEREAS, the Fund is an investment company registered under the Investment Company Act of 1940, as amended (the “ 1940 Act ”); and

 

WHEREAS, the Fund desires to retain the Administrator to provide for the portfolios identified on Appendix A hereto, as amended from time to time (each, a “ Series ”), certain services described herein, and the Administrator is willing to provide such services as set forth below;

 

WHEREAS, the Administrator understands and acknowledges that the Fund operates through a wholly-owned subsidiary in Mauritius and agrees to perform such tasks and services with respect to such entity as may be necessary in providing any services or fulfilling any responsibilities listed in this agreement or any appendix thereto.

 

NOW, THEREFORE, in consideration of the mutual promises and agreement herein contained, the parties hereto agree as follows:

 

1.                                       Appointment of Administrator .  The Fund hereby appoints the Administrator to act as its administrative agent and accounting agent for the term of this Agreement to perform the services described herein, and the Administrator accepts such appointment.

 

2.                                       Delivery of Documents .  The Fund will on a continuing basis provide the Administrator with:

 

2.1           resolutions of the Fund’s Board of Trustees authorizing the appointment of the Administrator as administrative agent of the Fund and approving this Agreement;

 

2.2           a copy of the Fund’s most recent registration statement;

 



 

2.3           copies of all agreements between the Fund and its service providers, including without limitation, advisory, distribution and administration agreements;

 

2.4           a copy of the Fund’s valuation procedures;

 

2.5           a copy of the Fund’s Declaration of Trust and By-laws;

 

2.6           any other documents which relate to or affect the Administrator’s performance of its duties hereunder or which the Administrator may at any time reasonably request; and

 

2.7           copies of any and all amendments or supplements to the foregoing.

 

3.             Duties as Administrator .  Subject to the supervision and direction of the Fund’s Board of Trustees, the Administrator will perform the administrative services described in Appendix B hereto.  Additional services may be provided by the Administrator upon the request of the Fund as mutually agreed from time to time.  In performing its duties and obligations hereunder, the Administrator will act in accordance with the Fund’s instructions as defined in Section 5 (“ Instructions ”).  It is agreed and understood that the Administrator shall not be responsible for the Fund’s compliance with any applicable documents, laws or regulations, or for losses, costs or expenses arising out of the Fund’s failure to comply with said documents, laws or regulations or the Fund’s failure or inability to correct any non-compliance therewith, except as provided herein.  The Administrator shall in no event be required to take any action which is in contravention of any applicable law, rule or regulation or any order or judgment of any court of competent jurisdiction.

 

3.1           Books and Records .  The Administrator will maintain and retain such books and records as required by the 1940 Act, including but not limited to Rules 31a-1 and 31a-2 under the 1940 Act, and other applicable federal securities laws and created pursuant to the performance of the Administrator’s obligations under this Agreement.  The Administrator will maintain such other books and records as requested by the Fund and received by the Administrator.  The Administrator shall not be responsible for the accuracy and completeness of any records not created by the Administrator.  The Administrator acknowledges that the books and records

 

2



 

maintained and preserved by the Administrator pursuant to this Agreement are the property of the Fund and will be, at the Fund’s expense, surrendered promptly upon request and made available for inspection by the Fund, the investment adviser or the SEC at reasonable times.  In performing its obligations under this Section, the Administrator may utilize micrographic and electronic storage media as well as independent third party storage facilities.

 

3.2           In performing all services under this Agreement the Administrator shall act in accordance with the Fund’s Declaration of Trust, By-laws, investment policies and restrictions as set forth in the Fund’s registration statement and the 1940 Act, as may be amended from time to time.

 

4.             Duties of the Fund .  The Fund shall notify the Administrator promptly of any matter affecting the performance by the Administrator of its services under this Agreement and where the Administrator is providing fund accounting services pursuant to this Agreement the Fund or an Authorized Person (as defined below) shall promptly notify the Administrator as to the accrual of liabilities of the Fund, including liabilities of the Fund not appearing on the books of account kept by the Administrator as to the existence, status and proper treatment of reserves, if any, authorized by the Fund or an Authorized Person (as defined below).  Where the Administrator is providing portfolio compliance monitoring services pursuant to this Agreement, the Fund agrees to notify the Administrator in the event the Fund or any officer, employee or agent of the Fund detects a possible non-compliance of the Fund with its investment restrictions, policies and limitations.

 

5.             Instructions .

 

5.1           The Administrator shall not be liable for, and shall be indemnified by the Fund against any and all losses, costs, damages or expenses arising from or as a result of, any action taken or omitted in reasonable reliance upon Instructions or upon any other written notice, request, direction, instruction, certificate or other instrument reasonably believed by it to be genuine and signed or authorized by the proper party or parties, except for any damages, losses or

 

3



 

expenses resulting from the Administrator’s willful malfeasance, bad faith or negligence.  A list of persons so authorized by the Fund’s Board of Trustees (“ Authorized Persons ”) is attached hereto as Appendix C and upon which the Administrator may rely until its receipt of notification to the contrary by the Fund.

 

5.2           Instructions shall include a written request, direction, instruction or certification signed or initialed on behalf of the Fund by one or more persons as the Board of Trustees of the Fund shall have from time to time authorized in writing.  Those persons authorized to give Instructions may be identified by the Board of Trustees by name, title or position and will include at least one officer empowered by the Board of Trustees to name other individuals who are authorized to give Instructions on behalf of the Fund.

 

5.3           Telephonic or other oral instructions or instructions given by telefax transmission may be given by any one of the above persons and will also be considered Instructions if the Administrator reasonably believes them to have been given by a person authorized to give such Instructions with respect to the transaction involved.

 

5.4           With respect to telefax transmissions, the Fund hereby acknowledges that (i) receipt of legible instructions cannot be assured, (ii) the Administrator cannot verify that authorized signatures on telefax instructions are original, and (iii) the Administrator shall not be responsible for losses or expenses incurred through actions reasonably taken in reliance on inaccurately stated, illegible or unauthorized telefax, instructions.  The Administrator shall promptly notify the Fund about any illegible or unclear telefax instructions.

 

5.5           Instructions given orally will not be confirmed in writing  and the lack of such confirmation shall in no way affect any action reasonably taken by the Administrator in reliance upon such oral Instructions.  The Fund authorizes the Administrator to tape record any and all telephonic or other oral Instructions given to the Administrator by or on behalf of the Fund (including any of its officers, directors, trustees, employees or agents or any investment manager

 

4



 

or adviser or person or entity with similar responsibilities which is authorized to give Instructions on behalf of the Fund to the Administrator.)

 

6.             Expenses and Compensation .  For the services to be rendered and the facilities to be furnished by the Administrator as provided for in this Agreement, the Fund shall pay the Administrator for its services rendered pursuant to this Agreement a fee based on such fee schedule as may from time to time be agreed upon in writing by the Fund and the Administrator. Additional services performed by the Administrator as requested by the Fund shall be subject to additional fees as mutually agreed from time to time.  In addition to such fee, the Administrator shall bill the Fund separately for any out-of-pocket disbursements of the Administrator based on an out-of-pocket disbursement schedule as may from time to time be agreed upon in writing by the Fund and the Administrator.  The foregoing fees and disbursements shall be billed to the Fund by the Administrator and shall be paid promptly by wire transfer or other appropriate means to the Administrator.

 

7.             Standard of Care .  The Administrator shall be held to the exercise of reasonable care and diligence in carrying out the provisions of this Agreement, provided that the Administrator shall not thereby be required to take any action which is in contravention of any applicable law, rule or regulation or any order or judgment of any court of competent jurisdiction.

 

8.             General Limitations on Liability .  The Administrator shall incur no liability with respect to any telecommunications, equipment or power failures except to the extent any loss or damage to a Fund was caused by Administrator’s failure to take commercially reasonable steps to minimize the amount of loss or damage sustained by the Fund as a result of such telecommunications, equipment or power failure.  The Administrator shall incur no liability with respect to any failures to perform or delays in performance by postal or courier services or third-party information providers (including without limitation those listed on Appendix D), provided that any decision of Administrator to use such postal or courier service or third-party information provider was reasonable under the circumstances.

 

5



 

8.1           The Administrator shall also incur no liability under this Agreement if the Administrator or any agent or entity utilized by the Administrator shall be prevented, forbidden or delayed from performing, or omits to perform, any act which this Agreement provides shall be performed or omitted to be performed, by reason of causes or events beyond its control, including but not limited to:

 

8.1.1.       any Sovereign Event.  A “ Sovereign Event ” shall mean any nationalization; expropriation; devaluation; revaluation; confiscation; seizure; cancellation; destruction; strike; act of war, terrorism, insurrection or revolution; or any other act or event beyond the Administrator’s control;

 

8.1.2.       any provision of any present or future law, regulation or order of the United States or any state thereof, or of any foreign country or political subdivision thereof, or of any securities depository or clearing agency; and

 

8.1.3.       any provision of any order or judgment of any court of competent jurisdiction except to the extent any loss or damage to a Fund was caused by Administrator’s failure to take commercially reasonable steps to minimize the amount of loss or damage by the Fund as a result of such causes of events.

 

8.2           The Administrator shall not be held accountable or liable for any losses, damages or expenses the Fund or any shareholder or former shareholder of the Fund or any other person may suffer or incur arising from acts, omissions, errors or delays of the Administrator in the performance of its obligations and duties as provided in Section 3 hereof, including without limitation any error of judgment or mistake of law, except any damages, losses or expenses resulting from the Administrator’s willful malfeasance, bad faith or negligence in the performance of such Administrator’s obligations and duties.

 

8.3           In no event and under no circumstances shall the Administrator be held liable to the other party for consequential or indirect damages, loss of profits, damage to reputation or

 

6



 

business or any other special or punitive damages arising under or by reason of any provision of this Agreement or for any act or omissions hereunder, even if the Administrator has been advised of the possibility of such damages or losses but the Administrator shall indemnify the Fund against direct money damages arising out of the Administrator’s own negligence or willful misconduct.

 

9.             Specific Limitations on Liability .  In addition to, and without limiting the application of the general limitations on liability contained in Section 8, above, the following specific limitations on the Administrator’s liability shall apply to the particular administrative services  set forth on Appendix B hereto.

 

9.1           Portfolio Compliance Monitoring .  The compliance monitoring of the investments of the Fund with respect to investment restrictions and policies is subject to parameters that may vary over time and which may be beyond the control or knowledge of the Administrator. Consequently, the results of the monitoring as notified by the Administrator to the Fund are to be considered an indication of possible non-compliance with the investment restrictions and policies of the Fund rather than an affirmative statement as to non-compliance with the investment restrictions and policies. Moreover, the Administrator may not detect a breach and consequently might not notify the Fund thereof if information or data in its possession is inaccurate, incomplete or ambiguous.  The Administrator has no discretion over the Fund’s assets or choice of investments and shall not be liable for issues relating to such investment decisions.  In addition, the Fund agrees that the Administrator shall not be liable for the accuracy, completeness or use of any information or data that CRD (as defined in Appendix B hereof) or any other compliance system used by the Administrator generates in connection with such administrative compliance monitoring on any given date.

 

9.2           Liability for Fund Accounting Services .  Without limiting the provisions in Section 8 hereof, the Administrator’s liability for acts, omissions, errors or delays relating to its

 

7



 

fund accounting obligations and duties shall be limited to the amount of any expenses associated with a required recalculation of net asset value per share (“ NAV ”) or any losses, damages and expenses suffered by the Fund and its shareholders in connection with such recalculation.  The Administrator’s liability or accountability for such acts, omissions, errors or delays shall be further subject to clauses 9.2.1 through 9.2.3 below.

 

9.2.1.       The parties hereto acknowledge that the Administrator’s causing an error or delay in the determination of NAV may, but does not in and of itself, constitute negligence or reckless or willful misconduct.  The parties further acknowledge that in accordance with industry practice, the Administrator shall be liable and the recalculation of NAV shall be performed  only with regard to errors in the calculation of the NAV that are greater than or equal to $.01 per share of the Fund or greater than or equal to 1/2% of the total net assets of the Fund.

 

9.2.2.       The Administrator shall not be held accountable or liable to the Fund, any shareholder or former shareholder thereof or any other person for any delays or losses, damages or expenses any of them may suffer or incur resulting from (i) the Administrator’s usage of a third party service provider for the purpose of storing records delivered to the Administrator by the Fund and which the Administrator did not create in the performance of its obligations hereunder (ii) the Administrator’s failure to receive timely and suitable notification concerning quotations or corporate actions relating to or affecting portfolio securities of the Fund; or (iii) any errors in the computation of NAV based upon or arising out of quotations or information as to corporate actions if received by the Administrator either (a) from a source which the Administrator was authorized to rely upon (including, but not limited to, the fair value pricing procedures of the Fund and those sources listed on Appendix D), or (b) from a source which in the Administrator’s reasonable judgment was as reliable a source for such quotations or information as such

 

8



 

authorized sources or (c) errors in the computation of NAV as a result of relevant information known to the Fund or its service provider which would impact the calculation of NAV but which is not communicated by the Fund or its service providers to the Administrator.  For purposes of clause (i) above, receipt by the Administrator in its capacity as custodian of Fund assets shall constitute receipt by the Administrator.

 

9.2.3.       In the event of any error or delay in the determination of such NAV for which the Administrator may be liable, the Fund and the Administrator will consult and make good faith efforts to reach agreement on what actions should be taken in order to mitigate any loss suffered by the Fund or its present or former shareholders.  It is understood that in attempting to reach agreement on the actions to be taken or the amount of the loss which should appropriately be borne by the Administrator, the Fund and the Administrator will consider such relevant factors as the amount of the loss involved, the Fund’s desire to avoid loss of shareholder good will, the fact that other persons or entities could have been reasonably expected to have detected the error sooner than the time it was actually discovered, the appropriateness of limiting or eliminating the benefit which shareholders or former shareholders might have obtained by reason of the error, and the possibility that other parties providing services to the Fund might be induced to absorb a portion of the loss incurred.

 

10.           Indemnification .  The Fund hereby agrees to indemnify the Administrator against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any act, omission, error or delay or any claim, demand, action or suit, in connection with or arising out of performance of its obligations and duties, in good faith, under this Agreement, not resulting from the willful malfeasance, bad faith or negligence of the Administrator in the performance of such obligations and duties.  The provisions of this Section 10 shall survive the termination of this Agreement.

 

9



 

11.                                  Reliance by the Administrator on Opinions of Counsel . The Administrator may consult with the Fund’s counsel in any case where so doing appears to the Administrator to be necessary or desirable. The Fund shall indemnify the Administrator against and save the Administrator harmless from any loss, damage or expense, or reasonable attorneys fees arising from any action reasonably taken or omitted to be taken by the Administrator in good faith in accordance with the written advice or opinion of counsel for the Fund.

 

12.                                  Termination of Agreement . This Agreement may be terminated by either party in accordance with the provisions of this Section 12.

 

12.1                            This Agreement shall have an initial term of three (3) years from the date hereof. Thereafter, this Agreement shall automatically renew for successive one (1) year periods unless either party terminates this Agreement by written notice effective no sooner than seventy-five (75) days following the date that notice to such effect shall be delivered to the other party at its address set forth herein. Notwithstanding the foregoing provisions, either party may terminate this Agreement at any time (a) for cause, which as a material breach of the Agreement not cured within sixty (60) days, in which case termination shall be effective upon written receipt of notice by the non-terminating party, or upon thirty (30) days written notice to the other party in the event that the either party is adjudged bankrupt or insolvent, or there shall be commenced against such party a case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect. Notwithstanding the foregoing, the Fund may terminate this Agreement without cause and for any reason upon sixty (60) days prior written notice to the Administrator. In the event a termination notice is given by a party hereto, all expenses associated with the movement of records and materials and the conversion thereof shall be paid by the Fund for which services shall cease to be performed hereunder. The Administrator shall be responsible for completing all actions in progress when such termination notice is given unless otherwise agreed.

 

10



 

12.2                            Upon termination of the Agreement in accordance with this Section 12, the Fund may request the Administrator to promptly deliver to the Fund or to any designated third party all books and records created and maintained by the Administrator pursuant to Section 3.1 of this Agreement, as well as any Fund books and records maintained but not created by the Administrator. If such request is provided in writing by the Fund to the Administrator within seventy-five (75) days of the date of termination of the Agreement, the Administrator shall provide to the Fund a certification that all books and records created by the Administrator pursuant to its obligations under Section 3.1 of this Agreement are accurate and complete. After seventy-five (75) days of the date of termination of this Agreement, no such certification will be provided to the Fund by the Administrator and the  Administrator is under no further obligation to ensure that books and records created by the Administrator pursuant to Section 3.1 of this Agreement are maintained in a form that is accurate or complete.

 

13.                                  Confidentiality and Privacy . The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations. All confidential information provided by a party hereto shall be used by any other party hereto solely for the purpose of rendering or obtaining services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party without the prior consent of such providing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed by or to any Regulatory Authority, any auditor of the parties hereto, or by judicial or administrative process or otherwise by Applicable Law.

 

In the course of carrying out its obligations under this Agreement. Administrator shall maintain physical, procedural and electronic safeguards to protect information regarding the Fund and its investors that Administrator has obtained or to which the Administrator has gained access.

 

11



 

14.                                  Tape-recording . The parties consent to the recording of any and all telephonic or other oral instructions given to the Administrator by or on behalf of the Fund, including from any Authorized Person. This authorization will remain in effect until and unless revoked by the Fund or the Administrator, as the case may be, in writing. The parties further agree to solicit valid written or other consent from any of its employees with respect to telephone communications to the extent such consent is required by applicable law.

 

15.                                  Entire Agreement; Amendment . This Agreement constitutes the entire understanding and agreement of the parties hereto and supersedes any other oral or written agreements heretofore in effect between the parties with respect to the subject matter hereof. No provision of this Agreement may be amended or terminated except by a statement in writing signed by the party against which enforcement of the amendment or termination is sought.

 

16.                                  Severability . In the event any provision of this Agreement is determined to be void or unenforceable, such determination shall not affect the remainder of this Agreement, which shall continue to be in force.

 

17.                                  Headings . The section headings in this Agreement are for the convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions thereof.

 

18.                                  Governing Law . This Agreement shall be governed by and construed according to the laws of the Commonwealth of Massachusetts without giving effect to conflicts of laws principles and each of the parties hereto irrevocably consents to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts in the City of Boston and the federal courts located in the City of Boston. The Fund irrevocably waives any objection it may now or hereafter have to the laying of venue of any action or proceeding in any of the aforesaid courts and any claim that any such action or proceeding has been brought in an inconvenient forum. Furthermore, each party hereto irrevocably waives any right that it may have to trial by jury in any action, proceeding or counterclaim arising out of or related to this Agreement or the services contemplated hereby.

 

12



 

19.                                  Notices . Notices and other writings delivered or mailed postage prepaid and addressed to the Fund at PowerShares India Exchange-Traded Fund Trust, 301 West Roosevelt Road, Wheaton, IL 60187 or to such other address as the Fund may have designated to the Administrator in writing, or to the Administrator at 40 Water Street, Boston, MA 02109, Attention:  Manager, Fund Administration Department, or to such other address as the Administrator may have designated to the Fund in writing, shall be deemed to have been properly delivered or given hereunder to the respective addressee.

 

20.                                  Binding Effect; Assignment . This Agreement shall be binding upon and inure to the benefit of the Fund and the Administrator and their respective successors and assigns, provided that no party hereto may assign this Agreement or any of its rights or obligations hereunder without the written consent of the other party. Each party agrees that only the parties to this Agreement and/or their successors in interest shall have a right to enforce the terms of this Agreement. Accordingly, no client of the Fund or other third party shall have any rights under this Agreement and such rights are explicitly disclaimed by the parties.

 

21.                                  Counterparts . This Agreement may be executed in any number of counterparts each of which shall be deemed to be an original. This Agreement shall become effective when one or more counterparts have been signed and delivered by each of the parties. A photocopy or telefax of the Agreement shall be acceptable evidence of the existence of the Agreement and the Administrator shall be protected in relying on the photocopy or telefax until the Administrator has received the original of the Agreement.

 

22.                                  Exclusivity . The services furnished by the Administrator hereunder are not to be deemed exclusive, and the Administrator shall be free to furnish similar services to others.

 

23.                                  Authorization . The Fund hereby represents and warrants that the Fund’s Board of Trustees has authorized the execution and delivery of this Agreement and that an authorized officer of the Fund has signed this Agreement, Appendices A, B, C, and D and the fee schedule hereto. It is expressly acknowledged and agreed that the obligations of the Fund hereunder shall not be binding upon any of its

 

13



 

shareholders, Trustees, officers, employees or agents of the Trust, personally, but shall bind only the trust property of the Trust, as provided in its Declaration of Trust. No action by the Trustees or authorized officers in connection with the authorization, execution or delivery of this Agreement shall be deemed to have been made by any of them individually or to impose any liability on any of them personally.

 

14



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first written above.

 

The undersigned acknowledges that (I/we) have received a copy of this document.

 

 

BROWN BROTHERS HARRIMAN & CO.

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Date:

 

 

 

 

 

 

 

PowerShares India Exchange-Traded Fund Trust

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Date:

 

15



 

APPENDIX A

 

FUND ADMINISTRATION AND ACCOUNTING AGREEMENT

 

SERIES

 

PowerShares India Portfolio

 

 

 

PowerShares India Exchange-Traded Fund Trust

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Date:

 

A-1



 

APPENDIX B

 

FUND ADMINISTRATION AND ACCOUNTING AGREEMENT

 

Fund Accounting Services

 

The Administrator will provide the following fund accounting services to the portfolios identified in Appendix A (the “Portfolio”) each day that such Portfolio and the New York Stock Exchange Arca, Inc. (“NYSE”) is open (each a “Business Day”): transaction processing and review, custodial reconciliation, securities pricing and investment accounting. Such fund accounting services shall include the preparation and maintenance of books and records as required by Rule 31a-1 under the Investment Company Act of 1940, as amended (the “1940 Act”).

 

Transaction Processing and Review . The Administrator shall input and reconcile the Portfolio’s investment activity including with respect to:

 

·                   Investment taxlots

·                   Income

·                   Dividends

·                   Principal paydowns

·                   Capital activity

·                   Expense accruals

·                   Cash activity

·                   Corporate Reorganizations

 

Custodial Reconciliation . The Administrator shall reconcile the following positions of the Portfolio against the records of the Custodian:

 

·                   Securities and other financial instruments holdings

·                   Cash including cash transfers, fees assessed and other investment related cash transactions

·                   Trade settlements

 

B-1



 

Securities Pricing . The Administrator shall update each security position of the Portfolio as to the following:

 

·                   Market prices obtained from approved sources including those listed on Appendix D or Fair Valuations obtained from an Authorized Person of the Fund

·                   Mark to market of non-base receivables/payables utilizing approved foreign exchange quotations as quoted in Appendix D

·                   Mark to market of non-base currency positions utilizing the approved sources quoted in Appendix D or Fair Valuations obtained from an Authorized Person of the Fund

 

Investment Accounting . The Administrator shall provide the following investment accounting services to the Portfolio:

 

·                   Amortization/accretion at the individual tax lot level

·                   General ledger entries

·                   Book value calculations

·                   Trade Date accounting

·                   Calculation of Net Asset Value Per Share (“NAV”) as of the close of business of the NYSE

·                   Broker Net Trades Report

·                   Open subscriptions/redemptions report

·                   Transactions/securities journal

·                   Oversee and review calculation of fees paid to the Fund’s investment adviser, custodian and transfer agent

 

Business Continuity Plan. The Administrator shall establish and maintain a disaster recovery plan and back-up system at all times satisfying the requirements of all applicable law, rules, and regulations and which is reasonable under the circumstances (the “Disaster Recovery Plan and Back-Up System”). The Administrator shall not be responsible or liable for any failure or delay in the performance of its obligations under this Appendix B arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, transportation, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Administrator has established and is maintaining the disaster recovery plan and back-up system, or if not, that such delay or failure would have occurred even if the Administrator had established and was maintaining the disaster recovery plan and back-up system. Upon the occurrence of any such delay or failure the Administrator shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances.

 

Portfolio Compliance Monitoring Services

 

The Administrator shall perform the following compliance monitoring services with respect to the investments of the Portfolio on each Business Day unless otherwise specified (“Portfolio Compliance Monitoring Services”):

 

·                   Post trade date monitoring of the Portfolio’s investments with respect to the investment restrictions, policies and limitations as described in the current prospectus and statement of additional information, which shall be provided to the Administrator by the Fund

 

·                   Monitoring of policies, restrictions and limitations with respect to certain derivative investments is performed monthly

 

B-2



 

·                   Post trade date monitoring of the Portfolio’s investments with respect to the 1940 Act requirements and rules thereunder (including Rule 2a-7 if applicable) and applicable Internal Revenue Code rules and regulations as described in Exhibit A attached hereto

 

·                   Rule 17g-1 monitoring shall be performed monthly as requested

·                   Qualifying income monitoring with respect to Subchapter M compliance shall be performed monthly

 

·                   Post trade date monitoring of other portfolio investment restrictions, policies and limitations at such times as may be agreed in writing by the Fund and Administrator

·                   The Administrator shall notify the Fund’s Chief Compliance Officer (“CCO”) or such other Authorized Person as may be agreed to by the Fund in the event and at such times as the Administrator detects possible non-compliance with a Portfolio’s investment restrictions, policies and limitations (“Daily Exception Reporting”)

·                   Provide the Fund’s CCO or such other Authorized Person as may be agreed to by the Fund a monthly report summarizing the results of the Portfolio Compliance Monitoring Services (“Monthly Summary Reporting”)

·                   Provide the Fund’s Board of Trustees a quarterly report summarizing the results of the Portfolio Compliance Monitoring Services (“Quarterly Board Summary Reporting”)

·                   Assist the Fund in producing quarterly brokerage-related reports for the Fund’s Board of Trustees as requested by the Fund and agreed to by the Administrator

·                   Provide quarterly as of date testing of portfolios to assist the Fund’s investment adviser in complying with Internal Revenue Code rules and regulations as described in Exhibit A, the requirements of the 1940 Act and Fund prospectus and statement of additional information policies and limitations.

 

The Administrator shall perform the following additional compliance monitoring services with respect to the Portfolio once each Business Day:

 

·                   Provide the Fund’s CCO or such other Authorized Person as may be agreed to by the Fund a daily portfolio compliance summary report  (“Daily Summary Reporting”)

 

The Administrator shall provide certifications to the Fund’s CCO as to the Administrator’s Rule 38a-1 policies and procedures.

 

Financial Reporting Services

 

·                   The Administrator shall accumulate information for and prepare

 

·                   Within a 60-day production cycle, one annual, one semi-annual shareholder report for the Fund per fiscal year and any financial information required by Form N-1A and such other Forms or filings as may be mutually agreed upon, such preparation includes the coordination of all printer, reviewer and author edits, the review of printer drafts and the coordination of the audit of the Fund by its independent public auditor (e.g. manage open items lists, host weekly audit meeting, etc.)

·                   one annual report and one semi-annual report on Form N-SAR and coordinate appropriate sign-off for printing. In addition, coordinate the dissemination of such reports with the printer and Transfer Agent to Automatic Data Processing, Inc. (“ADP”) for shareholder mailing.

·                   one first fiscal quarter report and one third fiscal quarter report on Form N-Q

·                   one annual Rule 24f-2 Notice

 

·                   Upon acceptance of each above-mentioned report by the Fund’s Treasurer and/or Chief Financial Officer, the Administrator shall file such reports as required, including any applicable executed officer certifications or other exhibits

 

B-3



 

The Administrator shall provide the following additional services as requested by the Fund:

 

·                   Quarterly calculation and reporting of the Portfolio’s portfolio turnover

·                   Preparation of the following quarterly reports for the Fund’s Board of Trustees (in BBH Reporting Format or such other format as agreed to between the Administrator and the Fund): Summary Schedule of Investments and Net Asset Roll Forward

 

Assistant Treasurer Services

 

The Administrator shall perform the following services as requested by the Fund’s Treasurer:

 

·                   Prepare and obtain authorization of Fund monthly unitary expense.

·                   Prepare a monthly expense pro forma of Fund expenses (i.e. reconciled unitary fee).

·                   Provide consultative services with respect to financial matters of the Fund as may be requested and agreed to by the Fund and Administrator from time to time

 

The Administrator shall perform the following additional services as requested by the Fund’s Treasurer:

 

·                   Prepare budgets and expense pro formas for new series, Portfolios or classes and/or with respect to mergers, acquisitions and restructurings, as may be requested and agreed to between the Fund and Administrator

 

Tax Support Services

 

The Administrator shall provide the following tax support services to the Fund:

 

·                   Prepare fiscal year end and excise tax distribution calculations;

·                   Prepare monthly, quarterly and annual income distributions as described in the Portfolio’s prospectus

·                   Prepare tax-related ROCSOP entries for fund accounting purposes

·                   Review required tax disclosures (such as tax cost, long term capital gain and tax exempt designation, foreign tax credits, dividend received deductions and qualified dividend income pass throughs) in the Fund’s financial statements

·                   Prepare and file federal, state and local (if any) income tax returns, including tax return extension requests

·                   Prepare shareholder year-end tax information

·                   Calculate the amounts and characterizations of distributions declared during the calendar year for Form 1099/DIV reporting

·                   Consult with the Fund’s Authorized Persons regarding potential passive foreign investment companies (“PFICs”)

·                   Prepare wash sales calculations and other differences required for tax purposes

·                   Consult with the Fund’s Authorized Persons on various tax issues as requested and with the Fund’s independent public accountant when appropriate

·                   Provide tax research as requested

 

The Administrator shall provide the following additional tax support services to the Fund:

 

·                   Prepare and maintain tax accruals for convertible preferred stock investments

·                   Prepare available tax equalization schedules

·                   Prepare Form 1099 reporting for the Fund’s Independent Trustees

 

B-4



 

Corporate Secretarial Services

 

The Administrator shall perform the following secretarial services for the Fund:

 

·                   Monitor good standing of the Fund in its state of organization as may be required

·                   Provide an “Assistant Secretary” who may be approved as an officer of the Fund by the Board of Trustees

·                   Maintain calendar for Board matters/approvals

·                   Prepare quarterly Board and Audit Committee meeting materials, including notices, scripts, agendas, resolutions, memoranda, minutes, and mail to Board of Trustees and such other persons as instructed by Authorized Persons of the Fund

·                   Attend quarterly Board and Audit Committee meetings, take minutes of the meetings, make presentations as required and follow up on matters raised at the meetings. In the event that the Administrator is asked to perform secretarial services for more than four quarterly Board or Audit Committee meetings per calendar year, the Fund will be assessed special meeting fees. Fees may range between $2,500 and $10,000 per meeting, depending upon the complexity of the meeting materials and discussion and the location of the meeting. Subject to the policies of the Fund, out-of-pocket expenses associated with the production and mailing of all Board and committee meeting materials, as well as travel expenses associated with in-person attendance at meetings, will be charged to the Fund.

·                   In accordance with Rule 31a-2 under the 1940 Act, maintain those records received or created by the Administrator, which are required to be maintained by Rule 31a-1(b)(4) under the 1940 Act

 

Regulatory Support Services

 

The Administrator shall perform the following regulatory services for the Fund:

 

·                   Maintain calendar for all regulatory matters

·                   Prepare all required annual updates to the Fund’s registration statement and file the same with the SEC (includes coordination of the update with Fund personnel, Fund and Independent Trustee counsel and independent auditors)

·                   Prepare and file up to four supplements (“Stickers”) to the Fund’s registration statement per calendar year  and coordinate the printing with the client’s printer

·                   File the fidelity bond with the SEC

·                   Assist the Fund in preparing one annual Form N-PX filing per calendar year and file the same with the SEC

·                   Prepare and file one annual report and one semi-annual report on Form N-CSR

·                   Review and comment on shareholder reports

·                   Assist in monitoring regulatory proposals and changes that may affect the Fund

·                   Prepare registration statements for new portfolios/classes as requested

·                   Prepare or assist with preparation of shareholder meeting materials

·                   Assist with handling regulatory examinations

 

B-5



 

Transfer Agency Services

 

The Administrator shall perform the following transfer agency services:

 

I.                                          Issuance and Redemption of aggregations of shares known as Creation Units. It is agreed and understood that the Fund, and the Administrator on the Fund’s behalf, shall issue and redeem Creation Units, as identified in the Fund’s registration statement, of the Fund to and from such persons as are identified by the Fund as “Authorized Purchasers” or “Authorized Participants.”

 

A.           Pursuant to such purchase orders that the Administrator and Transfer Agent, Brown Brothers Harriman & Co, shall receive from AIM Distributors, Inc. (“Marketing Agent”) and pursuant to the procedures set forth in the Authorized Participant Agreement entered into by the Fund, the Administrator and Transfer Agent shall transfer appropriate trade instructions to the Fund’s custodian, Brown Brothers Harriman & Co. (“Custodian”). Pursuant to such orders, the Administrator and Transfer Agent, will register the appropriate number of book entry only Creation Units in the name of The Depository Trust Company (“DTC”) or its nominee as a unitholder (each a “Authorized Participant”) of the Fund and deliver the Creation Units of the Fund.

 

B.             Pursuant to such redemption orders that Administrator and Transfer Agent, Brown Brothers Harriman & Co, shall receive from the Distributor, AIM Distributors Inc, pursuant to the procedures set forth in the Authorized Participant Agreement entered into by the Fund, the Administrator shall transfer appropriate trade instructions to the Custodian and, pursuant to such orders, redeem the appropriate number of Creation Units that are delivered to the designated DTC Participant Account of the Custodian for redemption and debit such Creation Units from the account of the Authorized Participant on the register of the Fund. Included in the delivery to the Authorized Participants is any balancing cash component.

 

C.             On behalf of the Fund, the Administrator shall issue Creation Units for settlement with purchasers through DTC as the purchaser is authorized to receive. Beneficial ownership of Creation Units shall be shown on the records of DTC and DTC Participants and not on any records maintained by the Administrator. In issuing Creation Units through DTC to an Authorized Participant, the Administrator shall be entitled to rely upon the latest Instructions that are received from the Distributor.

 

D.            The Administrator shall not issue on behalf of the Fund any Creation Units where it has received an Instruction from the Fund or the Marketing Agent or written notification from any federal or state authority that the sale of the Creation Units has been suspended or discontinued, and the Administrator shall be entitled to rely upon such Instructions or written notification.

 

E.              Upon the issuance of Creation Units as provided herein, the Administrator shall not be responsible for the payment of any original issue or other taxes, if any, required to be paid by the Fund or the Marketing Agent in connection with such issuance.

 

F.              Creation Units may be redeemed in accordance with the procedures set forth in the relevant Authorized Participant Agreement and the Administrator shall duly process all redemption requests.

 

B-6



 

G.     The Administrator will act only upon Instruction from the Fund and/or the Sponsor in addressing any failure in the delivery of cash, securities and/or Units in connection with the issuance and redemption of Fund Units.

 

II.                                      Payment of Dividends and Distributions on Fund Units .

 

A.           As instructed by the Fund, the Administrator shall prepare and make payments for dividends and distributions declared by the Fund.

 

B.             The Fund shall promptly after the declaration of any dividend or distribution furnish to the Administrator a statement signed by an Authorized Person: (i) indicating that dividends have been declared on a specific periodic basis and Instructions for determining the date of the declaration of such dividend or distribution, the date of payment thereof, the record date as of which unitholders shall be entitled to payment, the total amount payable to the unitholders and the total amount payable to Administrator as transfer agent on the payment date; or (ii) setting forth the date of the declaration of any dividend or distribution, the date of payment thereof, the record date as of which the unitholders are entitled to payment, and the amount payable per unit to each unitholder as of that date and the total amount payable to Administrator as transfer agent on the payment date.

 

C.             When dividends or distributions have been declared on a specific periodic basis, the Administrator shall calculate the total dollar amount of the dividend or distribution and notify the Fund of this amount. When instructed by the Fund, the Administrator shall direct the Custodian to place in a separate cash account maintained by the Administrator funds equal to the total cash amount of the dividend or distribution to be paid out. Should the Custodian determine that it does not have sufficient cash in the Custody Account to pay the total amount of the dividend or distribution to the Administrator, the Administrator shall advise the Fund and/or the Fund shall either adjust the rate of the dividend or distribution or provide additional cash directly to the Custodian for credit to the separate cash account maintained by the Custodian. When instructed by the Fund, the Administrator shall direct the Custodian to make payment of such dividend or distribution to the account of each unitholder.

 

D.            Should the Administrator or the Custodian not receive from the Fund sufficient cash to make payment as provided in the immediately preceding Subsection, the Administrator shall notify the Fund, and the Administrator shall withhold payment to the unitholders until sufficient cash is provided to the Custodian and the Administrator shall not be liable for any claim arising out of such withholding.

 

III.                                  Recordkeeping .

 

A.           The Administrator shall record the issuance of Fund Creation Baskets and maintain, pursuant to Rule 17Ad-14(e) under the Securities Exchange Act of 1934, as amended, a record of the total number of Fund Creation Baskets that are authorized, issued and outstanding based upon data provided to the Administrator by the Fund or the Sponsor. The Administrator shall also provide the Fund on a regular basis with the total number of Fund Units authorized, issued and outstanding; provided however that the Administrator shall not be responsible for monitoring the issuance of such Units or compliance with any laws relating to the validity of the issuance or the legality of the sale of such Units.

 

B.             Administrator shall record the name and address of the Shareholder, limited to the primary market Authorized Participants and the number of shares of the Fund held by the

 

B-7



 

Shareholder. The Advisor is to provide the Administrator the appropriate Authorized Participant contact details at the time of execution of the Authorized Participant Agreement.

 

The Administrator represents and warrants to the Fund that:

 

It is a banking company duly organized and existing and in good standing under the laws of the State of New York.

 

It is duly qualified to carry on its business in the State of New York.

 

It is empowered under applicable laws and by its Charter and By-Laws to act as transfer agent and dividend disbursing agent and to enter into and perform this Agreement.

 

All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement.

 

It has and will continue to have access to the necessary facilities, equipment and personnel to perform its duties and obligations under this Agreement.

 

 

 

BROWN BROTHERS HARRIMAN & CO.

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Date:

 

 

 

 

 

 

 

PowerShares India Exchange-Traded Fund Trust

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Date:

 

B-8



 

APPENDIX C

 

FUND ADMINISTRATION AND ACCOUNTING AGREEMENT

 

LIST OF AUTHORIZED PERSONS

 

 

 

PowerShares India Exchange-Traded Fund Trust

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Date:

 

C-1



 

APPENDIX D

 

FUND ADMINISTRATION AND ACCOUNTING AGREEMENT

 

LIST OF AUTHORIZED SOURCES

 

The Fund hereby acknowledges that the Administrator is authorized to use the following authorized sources and their successors and assigns for financial reporting, compliance monitoring, performance measurement, pricing (including corporate actions, dividends and rights offering), and foreign exchange quotations, to assist it in fulfilling its obligations under the aforementioned Agreement.

 

BLOOMBERG

RUSSELL/MELLON

EXTEL (LONDON)

FUND MANAGERS

INTERACTIVE DATA CORPORATION

REPUTABLE BROKERS

REUTERS

SUBCUSTODIAN BANKS

TELEKURS

VALORINFORM (GENEVA)

REPUTABLE FINANCIAL PUBLICATIONS

STOCK EXCHANGES

FINANCIAL INFORMATION INC. CARD

JJ KENNY

FRI CORPORATION

MORGAN STANLEY CAPITAL INTERNATIONAL

FT Interactive Data

NASDAQ

The Fund’s Fair Value Pricing Policy/Procedure

The Investment Adviser to the Fund

 

Other data source:

 

 

 

PowerShares India Exchange-Traded Fund Trust

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Date:

 

D-1


 

Exhibit 99.(h)(2)

 

FORM OF PARTICIPANT AGREEMENT

 

PowerShares India Exchange-Traded Fund Trust

 

This Participant Agreement (this “Agreement”) is entered into between A I M Distributors, Inc.  (the “Distributor”), [                          ] (the “Participant”), and Brown Brothers Harriman & Co. (the “Transfer Agent”), and is subject to acceptance by PowerShares India Exchange-Traded Fund Trust (the “Trust”).  The Transfer Agent serves as the Transfer Agent of the Trust and is an Index Receipt Agent as that term is defined in the rules of the National Securities Clearing Corporation (“NSCC”).  The Distributor, the Transfer Agent and the Participant acknowledge and agree that the Trust shall be a third-party beneficiary of the Agreement and shall receive the benefits contemplated by the Agreement to the extent specified herein.  The Distributor has been retained to provide certain services with respect to acting as principal underwriter of the Trust in connection with the creation and distribution of shares of beneficial interest par value 0.01 per share (“Shares” or “Trust Shares”) of the Series of the Trust (each a “Fund”) as specified in the Trust’s Prospectus and Statement of Additional Information incorporated therein (together, the “Prospectus”) included as part of its Registration Statement as amended on Form N-1A.  Trust Shares may be created or redeemed only in aggregations of 100,000 shares, referred to therein and herein as a “Creation Unit”.  Capitalized terms not otherwise defined herein are used herein as defined in the Trust’s Prospectus.

 

This Agreement is intended to set forth certain premises and the procedures by which the Participant may create and/or redeem Creation Units through the Federal Reserve/Treasury Automated Debt Entry System maintained at the Federal Reserve Bank of New York (the “Fed Book-Entry System”) and facilities of the Depository Trust Company (“DTC”).  The parties hereto in consideration of the premises and of the mutual agreements contained herein agree as follows:

 

1.              STATUS OF PARTICIPANT .  The Participant hereby represents, covenants and warrants that with respect to orders for the creation or redemption of Creation Units by means of the Fed Book-Entry System and DTC, it is eligible to utilize the Fed Book-Entry System and is a  Participant in DTC (as defined in the Trust’s Prospectus, a “DTC Participant”).  The Participant may place orders for the creation or redemption of Creation Units through the Fed Book-Entry System and/or DTC subject to the procedures for creation and redemption referred to in Section 2 of this Agreement (“Execution of Orders”) and the procedures described in Attachment A hereto.  Any change in the foregoing status of the Participant shall terminate this Agreement, and the Participant shall give prompt notice to the Distributor and the Transfer Agent of such change.

 

The Participant further represents that it is a broker-dealer registered with the Securities and Exchange Commission and a member of the Financial Industry Regulatory Authority  (“FINRA”) or is exempt from or otherwise not required to be licensed as a broker-dealer or a member of FINRA.  The Participant is registered and/or licensed to act as a broker or dealer, or is otherwise exempt, as required according to all applicable laws of the state(s) in which the Participant conducts its activities as defined hereunder.  The Participant agrees to conform to the rules of FINRA (if it is a member of FINRA) and the securities laws of any jurisdiction to the extent such laws, rules and regulations relate to the Participant’s transactions in, and activities with respect to the Trust Shares.

 

2.              EXECUTION OF ORDERS .  All orders for the creation or redemption of Creation Units shall be handled in accordance with the terms of the Trust’s Prospectus, and the procedures described in Attachment A to this Agreement.  In the event the procedures include the use of recorded telephone lines, the Participant hereby consents to such use.  (In the event that the Distributor voluntarily discloses or becomes legally compelled to disclose to any third party any recording involving communications between the Distributor and the Participant, the Distributor agrees to provide the Participant with

 



 

reasonable notice so that the Participant may seek a protective order or other appropriate remedy or waive its right to do so.  In the event that such protective order or other remedy is not obtained, or the Participant waives its right to seek such protective order or remedy, the Distributor agrees to furnish only that portion of the recorded conversation that according to legal counsel is legally required and will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the recorded conversation, provided that the Distributor shall not be required to incur any expenses in obtaining such treatment without reimbursement by the Participant).  The Trust reserves the right to issue additional or other procedures relating to the manner of creating or redeeming Creation Units, and the Participant, the Distributor and the Transfer Agent agree to comply with such procedures as may be issued from time to time, upon reasonable notice thereof.

 

3.              RELEVANT CASH AMOUNTS .  Creation Units of the Fund will be sold for and redeemed in cash only (U.S. dollars), calculated based on the net asset value per share multiplied by the number of Shares representing a Creation Unit next calculated following the receipt of the order (“Deposit Cash”), plus a calculated transaction fee, as discussed below (collectively, the “Cash Payment”).

 

4.              CREATION AND REDEMPTION PROCESS.   Participant understands and acknowledges that the Transfer Agent will not effect a creation or redemption until it has received confirmation of receipt of the Authorized Participant’s Cash Payment with regard to creations or Creation Units and transaction fee with regard to redemptions.

 

5.              ROLE OF PARTICIPANT .  The Participant acknowledges and agrees that for all purposes of this Agreement, the Participant will be deemed to be an independent contractor and shall have no authority in any matter or in any respect to act as agent of the Distributor, the Transfer Agent or the Trust.

 

(a)            In executing this Agreement, the Participant agrees in connection with any purchase or redemption transactions in which it acts for a customer or for any other DTC Participant or indirect participant, or any other beneficial owner of Trust Shares (each a “Beneficial Owner”), that it shall extend to any such party all of the rights, and shall be bound by all of the obligations, of a DTC Participant in addition to any obligations that it undertakes hereunder or in accordance with the Prospectus.

 

(b)            The Participant agrees (i) subject to any privacy obligations or other obligations arising under the federal or state securities laws it may have to it customers, to assist the Distributor in ascertaining certain information regarding sales of Trust Shares made by or through Participant upon the request of the Trust or the Distributor necessary for the Funds to comply with their obligations to distribute information to its shareholders as may be required from time to time under applicable state or federal securities laws, or (ii) in lieu thereof, and at the option of the Participant, the Participant may undertake to deliver prospectuses, as may be amended or supplemented from time to time, proxy material, annual and other reports of the Funds or other similar information that the Funds are obligated to deliver to their shareholders to the Participant’s customers that custody Shares with the Participant, after receipt from the Funds or the Distributor of sufficient quantities to allow mailing thereof to such customers.  None of the Distributor, the Trust or any of their respective affiliates shall use the names and addresses and other information concerning Participant’s customers for any purpose except in connection with the performance of their duties and responsibilities hereunder and except for servicing and informational mailings described in this clause (b) of Section 5, or as may otherwise be required by applicable law.

 

2



 

(c)            The Participant affirms that it has procedures in place reasonably designed to protect the privacy of non-public personal consumer/customer financial information to the extent required by applicable law, rule and regulation.

 

(d)            The Participant further represents that its AML Program, at a minimum, (i) designates a compliance officer to administer and oversee the AML Program, (ii) provides ongoing employee training, (iii) includes an independent audit function to test the effectiveness of the AML Program, (iv) establishes internal policies, procedures, and controls that are tailored to its particular business, (v) includes a customer identification program consistent with the rules under sec.  326 of the Act, (vi) provides for the filing of all necessary anti-money laundering reports including, but not limited to, currency transaction reports and suspicious activity reports, (vii) provides for screening all new and existing customers against the Office of Foreign Asset Control (“OFAC”) list and any other government list that is or becomes required under the Act, and (viii) allows for appropriate regulators to examine its AML books and records.

 

6.              PARTICIPANT REPRESENTATIONS .

 

(a)            The Participant represents, warrants and agrees that it will not make any representations concerning the Funds, the Creation Units or the Shares other than those consistent with the Trust’s then current Prospectus or any promotional or sales literature furnished to the Participant by the Distributor or the Trust, or any such materials permitted by clause (b) of this Section 6.

 

(b)            The Participant agrees not to furnish or cause to be furnished by Participant or its employees to any person or display or publish any information or materials relating to the Funds (including, without limitation, promotional materials and sales literature, advertisements, press releases, announcements, statements, posters, signs or other similar materials, but not including any materials prepared and used for Participant’s internal use only or brokerage communications prepared by Participant in the normal course of its business and consistent with the Trust’s then current Prospectus and in accordance with applicable laws and regulations) (“Marketing Materials”), except such Marketing Materials as may be furnished to the Participant by the Distributor or the Trust and such other Marketing Materials as are consistent with the Trust’s then current Prospectus and have been approved by the Distributor in writing prior to use; provided that such Marketing Materials clearly indicate that such Marketing Materials are prepared and distributed by Participant.  All Marketing Materials prepared by the Participant shall be filed with FINRA or the SEC, as applicable, by the Participant, and shall comply with all applicable rules and regulations of FINRA and the SEC.

 

(c)            The Participant understands that the Trust will not be advertised or marketed as an open-end investment company, i.e. , as a mutual fund, which offers redeemable securities, and that any advertising materials will prominently disclose that Shares are redeemable only in Creation Unit size by or through a Participant and on an in-kind basis as described in the Funds’ Prospectus.  In addition, the Participant understands that any advertising material that addresses redemptions of Shares, including the Prospectus, will disclose that the owners of Shares may acquire Shares and tender Shares for redemption to the Fund in Creation Unit aggregations only.

 

(d)            Notwithstanding anything to the contrary in this Agreement, Participant and its affiliates may prepare and circulate in the regular course of their businesses research reports and other materials that include information, opinions or recommendations relating to Trust Shares (i) for public dissemination; provided that such research reports compare the relative merits and

 

3



 

benefits of Shares with other products and are not used for purposes of marketing Shares, and (ii) (ii) for internal use by the Participant.

 

(e)            To the extent that a Participant is a registered broker-dealer subject to the provisions of Rule 15c6-1 under the Securities Exchange Act of 1934, Participant represents that it will obtain written agreement from its customers to the settlement of redemptions transactions on the fourth business day following the date on which the order is placed.

 

7.              FEES .  In connection with the creation or redemption of Creation Units, the Fund shall charge, and the Participant agrees to pay to the Fund, the Transaction Fee prescribed in the Trust’s Prospectus applicable to creations or redemptions or the Transaction Fee and such additional amounts as may be prescribed pursuant to the Trust’s Prospectus.  The Transaction Fee may be waived or otherwise adjusted from time to time subject to the provisions relating thereto and any limitations as prescribed in the Prospectus.  The Distributor acknowledges and agrees to provide Participant with adequate notice of any such adjustment in the Transaction Fee.

 

8.              AUTHORIZED PERSONS .  Concurrently with the execution of this Agreement and as requested in writing from time to time thereafter, the Participant shall deliver to the Distributor and the Transfer Agent, duly certified as appropriate by its secretary or other duly authorized officer, a certificate setting forth the names and signatures of all persons authorized to give instructions relating to activity contemplated hereby or any other notice, request or instruction on behalf of the Participant (each, an “Authorized Person”).  Such certificate may be accepted and relied upon by the Distributor and the Transfer Agent as conclusive evidence of the facts set forth therein and shall be considered to be in full force and effect until receipt by the Distributor and the Transfer Agent of a superseding certificate bearing a subsequent date.  The Distributor shall issue to each Authorized Person a unique personal identification number (“PIN Number”) by which such Authorized Person and the Participant shall be identified and instructions issued by the Participant hereunder shall be authenticated.  Upon the termination or revocation of authority of such Authorized Person by the Participant, the Participant shall give prompt written notice of such fact to the Distributor and the Transfer Agent and such notice shall be effective upon receipt by both the Distributor and the Transfer Agent.

 

9.              REDEMPTION .  The Participant represents and warrants that it will not obtain a Submission Number (as defined in Attachment A) from the Distributor for the purpose of redeeming a Creation Unit unless it first (a) obtains an Affirmative Determination (as that term is defined in FINRA Rule 3370) prior to submitting such order that it or its customer, as the case may be, owns outright or has full legal authority and legal beneficial right to tender for redemption the requisite number of Trust Shares of any Fund to be redeemed, and the entire proceeds of the Redemption and (b) such Trust Shares have not been loaned or pledged to another party nor are the subject of a repurchase agreement, securities lending agreement or such other arrangement which would preclude the delivery of such Trust Shares to the Transfer Agent in accordance with the Prospectus or as otherwise required by the Trust.  The Participant will not be responsible for costs incurred by the Transfer Agent or the Distributor related to trade breaks where the failure to transfer Shares or collateral is due to negligence or bad faith of the Transfer Agent or the Distributor, an act of God or unrelated to any act or omission of the Participant.

 

10.            INDEMNIFICATION .  This Section 10 shall survive the termination of this Agreement.

 

(a)            The Participant hereby agrees to indemnify and hold harmless the Distributor in its capacity as principal underwriter, the Trust, the Transfer Agent, their respective affiliates, directors, officers, employees and agents, and each person, if any, who controls such persons within the meaning of Section 15 of the 1933 Act (each an “ Indemnified Party”) from and against any loss, liability, cost and reasonable expense (including reasonable attorneys’ fees)

 

4



 

incurred by such  Indemnified Party as a direct result of (i) any breach by the Participant of any provision of this Agreement that directly relates to the Participant; (ii) any failure on the part of the Participant to perform any of its obligations set forth in the Agreement; (iii) any failure by the Participant to comply with applicable laws, including rules and regulations of self-regulatory organizations in relation to its role as Participant, except that the Participant shall not be required to indemnify an  Indemnified Party to the extent that such failure was caused by Participant’s adherence to instructions given or representations made by the Distributor, the Transfer Agent or any  Indemnified Party, as applicable, or; (iv) actions of such Indemnified Party in reasonable reliance upon any instructions issued by the Participant or representations made by the Participant in accordance with Attachment A (as it may be amended from time to time) and reasonably believed by the Distributor or the Transfer Agent, as applicable, to be genuine and to have been given by the Participant except to the extent that the Participant had previously revoked a PIN Number used in giving such instructions or representations (where applicable) and such revocation was given by the Participant and received by the Distributor and the Transfer Agent in accordance with the terms of Section 6 hereto.  The Participant and the Distributor understand and agree that the Trust is entitled and intends to proceed directly against the Participant in the event that the Participant fails to honor any of its obligations pursuant to this Agreement that benefit the Trust.  The foregoing shall not apply to any loss, damage, charge, liability, cost, expense, cause of action, obligation, judgment or fee incurred by such Indemnified Party arising out of Indemnified Party’s gross negligence or reckless or willful acts or omissions or the Indemnified Party’s failure to perform any of its obligations or responsibilities under this Agreement.  With respect to (i) through (iii) above, Indemnified Party’s failure to promptly acknowledge Participant’s breach of, failure to perform or failure to comply with, the terms of this Agreement shall not negate the foregoing indemnification.

 

(b)            The Distributor hereby agrees to indemnify and hold harmless the Participant, its respective subsidiaries, affiliates, directors, officers, employees and agents, and each person, if any, who controls such persons within the meaning of Section 15 of the 1933 Act (each an “ Indemnified Party”) from and against any loss, liability, cost and expense (including reasonable attorneys’ fees) incurred by such Indemnified Party as a result of (i) any breach by the Distributor of any provision of this Agreement that directly relates to the Distributor; (ii) any failure on the part of the Distributor to perform any of its obligations set forth in this Agreement; (iii) any failure by the Distributor to comply with applicable laws, including rules and regulations of self-regulatory organizations in relation to its role as Distributor of the Funds, (iv) any untrue statements or omissions made in any promotional material or sales literature furnished to the Participant or otherwise approved in writing by the Trust or the Fund, (v) actions of such Indemnified Party in reasonable reliance upon any instructions issued or representations made by the Distributor, the Trust or the Fund in accordance with Attachment A (as it may be amended from time to time) reasonably believed by the Participant to be genuine and to have been given by the Distributor, the Trust or the Fund; or (vi) any untrue statement or alleged untrue statement of a material fact contained in the registration statement of the Trust as originally filed with the Securities and Exchange Commission or in any amendment thereof, or in any prospectus or any statement of additional information, or any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in connection with the Participant’s acting in its capacity as a Participant.  The foregoing shall not apply to any loss, damage, charge, liability, cost, expense, cause of action, obligation, judgment or fee incurred by such Indemnified Party arising out of Indemnified Party’s gross negligence or reckless or willful acts or omissions or the Indemnified Party’s failure to perform any of its obligations or responsibilities under this Agreement.  With respect to (i) through (iv) and (vi) above, Indemnified Party’s failure to promptly acknowledge any omission or untrue statement contained

 

5



 

in such promotional material, sales literature, prospectus or registration statement or Distributor’s breach of, failure to perform or failure to comply with, the terms of this Agreement shall not negate the foregoing indemnification.

 

(c)            No party to this Agreement shall be liable to the other party or to any other person for any damages arising out of mistakes or errors in data provided to such Indemnified Party by a third party, or out of interruptions or delays of electronic means of communications with the Indemnified Parties.

 

11.            ACKNOWLEDGMENT .  The Participant acknowledges receipt of the Trust’s Prospectus and represents it has reviewed such document and understands the terms thereof.

 

12.            NOTICES .  Except as otherwise specifically provided in this Agreement, all notices required or permitted to be given pursuant to this Agreement shall be given in writing and delivered by personal delivery or by postage prepaid registered or certified United States first class mail, return receipt requested, or by telex, telegram or facsimile or similar means of same day delivery (with a confirming copy by mail as provided herein).  Unless otherwise notified in writing, all notices to the Transfer Agent shall be given or sent as follows: Brown Brothers Harriman & Co., 40 Water Street, Boston, Massachusetts 02109-3661. All notices to the Trust shall be given or sent as follows: PowerShares India Exchange-Traded Fund Trust, in care of Brown Brothers Harriman & Co., 40 Water Street, Boston, Massachusetts 02109-3661.  All notices to the Participant, the Transfer Agent, and the Distributor shall be directed to the address or telephone, facsimile or telex numbers indicated below the signature line of such party, except in the case of communications by the Distributor or Transfer Agent to the Participant during the order creation or redemption process as detailed in Attachment A to this Agreement, especially the Distributor’s or Transfer Agent’s attempt to contact an Authorized Person of the Participant with respect to, among other things, ambiguous instructions, the suspension or cancellation of an order as discussed in Attachment A, Distributor and Transfer Agent agree to contact a representative of the Participant.

 

13.            TERMINATION AND AMENDMENT .  This Agreement shall become effective in this form as of the date accepted by the Distributor and may be terminated at any time by any party upon thirty (30) days prior notice to the other parties (i) unless earlier terminated by the Distributor in the event of a breach of this Agreement or the procedures described herein by the Participant or (ii) in the event that the Trust is terminated pursuant to the Trust Agreement.  This Agreement supersedes any prior agreement between the parties with respect to the subject matter contained herein.  This Agreement may be amended by the Distributor from time to time upon thirty (30) days’ prior written notice (unless such notice is otherwise waived) by the following procedure.  The Distributor  will mail a copy of the amendment to the Transfer Agent  and the Participant.  For the purposes of this Agreement, mail will be deemed received when actually received by the recipient thereof upon the date that appears on a reasonably acceptable proof of receipt.  Titles and section headings are included solely for convenient reference and are not a part of this Agreement.  This Agreement and Attachment A hereto, which is hereby incorporated herein by reference, constitute the entire agreement between the parties regarding the matters contained herein and may be amended or modified only by a written document signed by an authorized representative of each party.

 

14.            PROSPECTUS .  The Distributor will provide to the Participant copies of the then current Prospectus and any printed supplemental information in reasonable quantities upon request.  The Participant shall, upon request of the Trust, provide the Trust with sufficient documentation and other evidence that the Participant is providing prospectuses and, where applicable, product descriptions, to the purchasers of any Shares.  The Distributor represents, warrants and agrees that it will notify the Participant when a revised, supplemented or amended prospectus for any Shares is available and deliver or otherwise make available to the Participant copies of such revised, supplemented or amended

 

6



 

prospectus at such time and in such numbers as to enable the Participant to comply with any obligation it may have to deliver such prospectus to customers, As a general matter, the Distributor will make such revised, supplemented or amended prospectus available to the Participant no later than its effective date.  The Distributor shall be deemed to have complied with this Section 14 when the Participant has received such revised, supplemented or amended prospectus by email at [                              @                               . com], in printable form, with such number of hard copies as may be agreed from time to time by the parties promptly thereafter.

 

15.            NO PROMOTION .  Each of the Trust, the Distributor and the Transfer Agent agrees that it will not, without the prior written consent of Participant in each instance, (i) use in advertising, publicity, or otherwise the name of Participant or any affiliate of Participant, or any partner or employee of Participant, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by Participant or its affiliates, or (ii) represent, directly or indirectly, that any product or any service provided by the Trust, Distributor or Transfer Agent has been approved or endorsed by Participant.  Furthermore, Distributor and Transfer Agent and Participant agree that they will not, without the prior written consent of the other two parties in each such instance disclose the terms of this Agreement, except for use in accordance with this Agreement or to the parties’ respective officers, directors, employees, agents and representatives for use in accordance with this Agreement or as required by any applicable law or regulatory body.  This provision shall survive termination or expiration of the Agreement.

 

16.            COUNTERPARTS .  This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all shall constitute but one and the same instrument.

 

17.            GOVERNING LAW .  This Agreement and all of the transactions thereunder shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof.  The parties irrevocably submit to the personal jurisdiction and service and venue of any federal or state court within the State of New York having subject matter jurisdiction, for the purpose of any action, suit or proceeding arising out of or relating to this Agreement.

 

18.            ASSIGNMENT .  Neither party may assign its rights or obligations under this Agreement (in whole or in part) without the prior written consent of the other party, which shall not be unreasonably withheld; provided , that either party may assign its rights and obligations hereunder (in whole, but not in part) without such consent to an entity acquiring all, or substantially all of its assets or business.  Notwithstanding the aforementioned termination provisions, in the event that an entity acquires all or substantially all of Participant’s assets or business, the Distributor or Transfer Agent may elect within a limited period of time not to exceed thirty (30) days from the date upon which such acquisition was publicly announced to immediately terminate this Agreement.   Furthermore, notwithstanding the terms of this Section 18, the Participant, the Trust, and the Transfer Agent expressly acknowledge that the Distributor may utilize an affiliate as a designee for certain of the services and responsibilities of the Distributor set forth in this Agreement. The Distributor shall ensure that such designee shall comply with all of the duties and responsibilities imposed on the Distributor in this Agreement, to the extent such duties and responsibilities are delegated to the designee. The Distributor shall, however, be fully and wholly liable and responsible to the Participant for all actions or omissions on the part of the designee.

 

19.            SEVERANCE .  If any provision of this Agreement is held by any court pursunat to any Act, Regulation, Rule or decision or by any other governmental or supranational body or authority or regulatory or self-regulatory organization to be invalid, illegal or unenforceable for any reason, it shall be invalid, illegal or unenforceable only to the extent so held and all parties shall remain responsible for all actions or omissions not relating to such provision and the invalidity, illegality or unenforceability of such provisions shall not affect the validity, legality or enforceability of the other provisions of this Agreement,

 

7



 

so long as this Agreement, as so modified, continues to express, without material change, the original intentions of the parties as to the subject matter of this Agreement and the deletion of such portion of this Agreement will not substantially impair the respective benefits, obligations or expectations of the parties to this Agreement.

 

8



 

IN WITNESS WHEREOF, the duly authorized representatives of the below parties hereto have executed this Agreement the effective date of which shall be date of the last dated signature below (the “Effective Date”).

 

 

 

A I M DISTRIBUTORS, INC .

 

 

 

 

 

BY:

 

 

 

 

NAME:

 

 

 

 

TITLE:

 

 

 

 

Address:

11 Greenway Plaza, Suite 100
Houston, Texas 77046-1173

 

 

 

 

Telephone:

 

 

Facsimile:

 

 

 

 

 

DATE:

 

 

 

 

With a copy to:

 

A I M Distributors, Inc.
Attn: General Counsel
11 Greenway Plaza
Suite 100
Houston, Texas 77046-1173

 

 

 

 

 

[                                                                  ]

 

a                                        corporation

 

 

 

 

BY:

 

 

 

 

NAME:

 

 

 

 

TITLE:

 

 

 

 

Address:

 

 

 

 

 

 

 

 

Telephone:

 

 

Facsimile:

 

 

 

 

 

DATE:

 

 

9



 

 

BROWN BROTHERS HARRIMAN & CO.
AS TRANSFER AGENT

 

 

 

 

 

BY:

 

 

 

 

NAME:

 

 

 

 

TITLE:

 

 

 

 

Address:

 

 

 

 

 

 

 

 

Telephone:

 

 

Facsimile:

 

 

 

 

 

DATE:

 

 

 

 

POWERSHARES INDIA EXCHANGE-
TRADED FUND TRUST

 

 

 

BY:

 

 

 

 

NAME:

 

 

 

 

TITLE:

 

 

 

 

Address:

301 West Roosevelt Road
Wheaton, Illinois 60187

 

 

 

 

Telephone: 630.933.9600

 

Facsimile: 630.933.9699

 

 

 

 

DATE:

 

 

10



 

ATTACHMENT A

 

This document supplements the Trust’s Prospectus, and is an attachment to the Trust Participant Agreement with respect to the procedures to be used by (i) the Distributor in processing an order for the creation of Trust Shares and (ii) the Distributor in processing a request for the redemption of Trust Shares, and (iii) the Participants and the Transfer Agent in delivering or arranging for the delivery of requisite Cash Payment or Trust Shares and transaction fee, as the case may be, in connection with the submission of orders for creation or requests for redemption.

 

A Participant is first required to have signed the Trust Participant Agreement.  Upon acceptance of the Trust Participant Agreement by the Distributor and the Transfer Agent, the Distributor will assign a PIN Number to each Authorized Person authorized to act for the Participant.  This will allow a Participant through its Authorized Person(s) to place an order with respect to Trust Shares.

 

I.               TO PLACE AN ORDER FOR CREATION OR REDEMPTION OF TRUST SHARES

 

1.              Call to Receive a Submission Number .  An Authorized Person for the Participant will call the Trust Telephone Representative at [                                  ] not later than the closing time of the regular trading session on The New York Stock Exchange (the “NYSE Closing Time”) (ordinarily 4:00 p.m. New York time) to receive a Submission Number.  Upon verifying the authenticity of the caller (as determined by the use of the appropriate PIN Number) and the terms of the order for creation or request for redemption, the Trust Telephone Representative will issue a unique Submission Number.  All orders with respect to the creation or redemption of Trust Shares are required to be in writing and accompanied by the designated “Submission Number”.  Incoming telephone calls are handled in the sequence received. The Participant must receive a Submission Number prior to NYSE Closing Time for its order to be processed that Business Day INCOMING CALLS THAT ARE ATTEMPTED LATER THAN THE NYSE CLOSING TIME WILL NOT BE ACCEPTED.

 

2.              Assemble the Submission .  The Authorized Person submitting an order to create or a request to redeem shall assemble (a) written instructions regarding such creation order or redemption request, (b) the designated Submission Number and (c) transmit such document by facsimile or telex to the Trust Telephone Representative and the Distributor, as applicable, according to the procedures set forth below in subsection 3.  The document so transmitted is hereinafter referred to as the “Submission”, and the Business Day on which a Submission is made is hereinafter referred to as the “Transmittal Date”.  NOTE THAT THE TELEPHONE CALL IN WHICH THE SUBMISSION NUMBER IS ISSUED INITIATES THE ORDER PROCESS BUT DOES NOT ALONE CONSTITUTE THE ORDER.  AN ORDER OR REQUEST IS ONLY COMPLETED AND PROCESSED UPON RECEIPT OF THE SUBMISSION.

 

3.              Transmit the Submission .  A Submission Number is only valid for a limited time.  The Submission for either creations or redemptions of Trust Shares must be sent by facsimile or telex to the Trust Telephone Representative, as applicable, within 15 minutes of the issuance of the Submission Number.  In the event that the Submission is not received within such time period, the Trust Telephone Representative will use commercially reasonable efforts to contact the Participant to request immediate transmission of the Submission.

 

(a)            In the case of a Submission for creation, unless the Submission is received by the Trust Telephone Representative upon the earlier of within (i) 15 minutes of contact with the Participant or (ii) 15 minutes after the NYSE Closing Time, the Submission will be deemed invalid.

 

i



 

(b)            In the case of a Submission for redemption, unless such Submission is received by the Trust Telephone Representative within (i) 15 minutes of contact with the Participant or (ii) 15 minutes after the NYSE Closing Time, whichever is earlier, such order for redemption contained therein shall be received in proper form (as described in the Prospectus) by the Distributor on the Business Day following such Transmittal Date in accordance with the procedures set forth below or in the Fund’s Prospectus as the case may be.

 

4.      Await Receipt of Confirmation .

 

(a)    Creation Orders .  The Distributor shall issue to the DTC Participant an acknowledgment of receipt of an order to create Trust Shares in Creation Unit size aggregations within 15 minutes of its receipt of a Submission received in good form.  In the event the DTC Participant does not receive a timely acknowledgment from the Distributor, it should contact the Distributor at the business numbers indicated.

 

(b)    Requests for Redemption .  The Distributor shall issue to the DTC Participant an acknowledgment of receipt of an order to redeem Trust Shares in Creation Unit size aggregations within 15 minutes of its receipt of a Submission received in good form.  In the event the DTC Participant does not receive a timely acknowledgment from the Distributor, it should contact the Distributor directly at the business number indicated.

 

II.             PARTICIPANTS’ RESPONSIBILITY FOR DELIVERING OR EFFECTING THE DELIVERY OF REQUISITE DEPOSIT CASH OR TRUST SHARES IN CONNECTION WITH ORDERS FOR CREATION OR REQUESTS FOR REDEMPTION

 

1.              Creation / Redemption Orders.

 

(a)            Creation Orders : A Creation Unit of Shares will not be issued until the payment of the Deposit Cash and the applicable Transaction Fee have been completed.  The Participant must transfer the Deposit Cash to the Transfer Agent through DTC or Fed Book-Entry System on or before 2:00p.m. Eastern time on the settlement date

 

(b)            Redemption Orders : The Participant must transfer the Creation Units to the Transfer Agent through DTC on or before 2:00 p.m. Eastern time on the settlement date. The Cash Redemption Amount will be paid to the beneficial owners within four Business Days.  Due to holidays in certain countries, payment may take longer than four Business Days after the day on which the Transfer Agent receives the participant’s redemption order in proper form.

 

2.      Transaction Fee .  In connection with the creation or redemption of Creation Units, the Transfer Agent shall charge, and the Participant agrees to pay to the Transfer Agent, the Transaction Fee prescribed in the Trust’s prospectus applicable to (i) creations or redemptions or the Transaction Fee and such additional amounts as may be prescribed pursuant to the Trust’s prospectus applicable to creations or redemptions. Such Transaction Fee and additional amounts, if any, shall be included in the calculation of the Cash Redemption Amount payable or to be received by the Participant in connection with the creation or redemption order.

 

ii



 

III.            TRANSFER AGENT’S RESPONSIBILITY FOR EFFECTING DELIVERY OF REQUISITE TRUST SHARES OR CASH PAYMENTS IN CONNECTION WITH ORDERS FOR CREATION OR REQUESTS FOR REDEMPTION.

 

1.              Creation Orders .    After the Distributor has received notification of a Submission from the Participant for a creation order for Trust Shares which has been received in proper form (as described in the Prospectus), the Transfer Agent shall initiate procedures to transfer the requisite Trust Shares so as to be received by the creator no later than on the first (1st) Business Day following the Business Day on which the Submission is received in proper form (as described in the Prospectus) by the Distributor.

 

2.              Redemption Requests .  After the Distributor has received a Submission for a redemption request for Trust Shares in proper form (as described in the Prospectus) such submission, the Transfer Agent shall initiate procedures to transfer the Cash Redemption Amount through DTC so as to be received by the Beneficial Owner no later than on the fourth (4th) Business Day (or longer for certain foreign countries) following the Business Day on which the Submission is received in proper form (as described in the Prospectus) by the Transfer Agent.

 

3.              Ambiguous Instructions .  In the event that a Submission contains terms that differ from the information provided in the telephone call at the time of issuance of the Submission Number, the Trust Telephone Representative will use commercially reasonable efforts to contact the Participant to request confirmation of the terms of the order.  If an Authorized Person confirms the terms as they appear in the Submission then the Submission will be accepted and processed.  If an Authorized Person contradicts its terms, the Submission will be deemed invalid, and a corrected Submission must be received by the Transfer Agent, as applicable, not later than the earlier of (i) within 15 minutes of such contact with the Participant or (ii) 45 minutes after the NYSE Closing Time.  If the Trust Telephone Representative is not able to contact an Authorized Person, then the Submission shall be accepted and processed in accordance with its terms notwithstanding any inconsistency from the terms of the telephone information.  In the event that a Submission contains terms that are illegible, the Submission will be deemed invalid and the Trust Telephone Representative will attempt to contact the Participant to request retransmission of the Submission.  A corrected Submission must be received by the Transfer Agent, as applicable, not later than the earlier of (i) within 15 minutes of such contact with the Participant or (ii) 45 minutes after the NYSE Closing Time.

 

4.              Suspension or Rejection of an Order .  The Trust reserves the absolute right to reject a creation order transmitted to it by the Distributor in respect of a Fund if: (i) the order is not in proper form; (ii) acceptance of the Deposit Cash would, in the opinion of counsel, be unlawful; (iii) acceptance of the Deposit Cash would otherwise, in the discretion of the Trust or the Adviser, have an adverse effect on the Trust or the rights of beneficial owners; or (iv) in the event that circumstances outside the control of the Trust, the Transfer Agent, the Distributor and the Adviser make it for all practical purposes impossible to process creation orders.  Examples of such circumstances include acts of God; public service or utility problems such as fires, floods, extreme weather conditions and power outages resulting in telephone, telecopy and computer failures; market conditions or activities causing trading halts; systems failures involving computer or other information systems affecting the Trust, the Adviser, the Distributor, DTC, NSCC, the Transfer Agent, the Custodian or sub-custodian or any other participant in the creation process, and similar extraordinary events.  The Transfer Agent shall notify immediately a prospective creator of a Creation Unit and/or the Authorized Participant acting on behalf of such prospective creator of its rejection of the order of such person.  The Trust, the Custodian, any sub-custodian and the Distributor are under no duty, however, to give notification of any defects or irregularities in the delivery of Fund Deposits nor shall any of them incur any liability for the failure to give any such notification.

 

iii



 

IV.            TELEPHONE, FACSIMILE, AND TELEX NUMBERS

 

TRUST TELEPHONE REPRESENTATIVE :

TELEPHONE:

 

 

FACSIMILE:

 

 

 

 

TRUSTEE :

TELEPHONE:

 

 

FACSIMILE:

 

 

 

 

PARTICIPANT :

TELEPHONE:

 

 

FACSIMILE:

 

 

 

IN WITNESS WHEREOF, the Participant acknowledges that they have read this Attached A and agree to comply with all such procedures.  Failure to comply with these procedures will require the transaction to be cancelled.

 

 

Participant:

 

 

 

 

 

By:

 

 

 

 

 

Title:

 

 

 

 

 

Address:

 

 

 

 

 

Telephone:

 

 

 

 

 

Facsimile:

 

 

 

 

 

Telex:

 

 

 

 

 

Date:

 

 

 

 

BROWN BROTHERS HARRIMAN & CO.

 

AS TRANSFER AGENT

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

 

 

Address:

 

 

iv



 

[On AP’s Firm Letterhead]

 

CERTIFICATE OF AUTHORIZED PERSONS

(of Authorized Participant)

 

The undersigned officer, who is not an Authorized Person,  hereby certifies that (i) he/she is the duly elected and acting                                              (title) of [                                            ] (the “ Authorized Participant ”), and (ii) that the following officers or employees (each an “ Authorized Person ”) of the Authorized Participant are duly authorized to deliver oral or written instructions to A I M Distributors, Inc. (“Distributor”) pursuant to the Participant Agreement by and between the Authorized Participant, the Custodian, the Distributor and PowerShares India Exchange-Traded Fund Trust, and that the signatures appearing opposite their names are true and correct:

 

The below shall be the Authorized Participant list of Authorized Persons:

 

 

 

 

 

 

 

 

Name

 

Title

 

Signature

 

 

 

 

 

 

 

 

 

 

 

 

 

Name

 

Title

 

Signature

 

 

 

 

 

 

 

 

 

 

 

 

 

Name

 

Title

 

Signature

 

 

 

 

 

 

 

 

 

 

 

 

 

Name

 

Title

 

Signature

 

 

 

 

 

 

 

 

 

 

 

 

 

Name

 

Title

 

Signature

 

 

 

 

 

 

 

 

 

 

 

 

 

Name

 

Title

 

Signature

 

 

 

 

 

 

 

 

 

 

 

 

 

Name

 

Title

 

Signature

 

 

 

This Certificate supersedes any prior certificate of Authorized Persons the Custodian may have on file.  Any updates to the above list of Authorized Persons will be provided by the Authorized Participant as changes occur.

 

 

[seal]

By:

 

 

 

Title:

 

 

 

Date:

 

 

5


Exhibit 99.(h)(3)

 

FORM OF SUBLICENSE AGREEMENT

 

This Sublicense Agreement (“ Agreement ”) is entered into as of February 22, 2008, by and between PowerShares Capital Management, LLC, a Delaware limited liability company with offices at 301 West Roosevelt Road, Wheaton, IL 60187 (“ PowerShares ”), and PowerShares India Exchange-Traded Fund Trust (“ Licensee ”).

 

WHEREAS, PowerShares, through a license with an index provider (the “Index Provider”), has the right to license the Index and Marks listed in Exhibit A, for use in connection with the financial product listed in Exhibit A (“ Product ”);

 

WHEREAS, Licensee desires to use the Index and Marks in connection with the distribution of Product and PowerShares is willing to grant Licensee a license for such use.

 

NOW, THEREFORE, in consideration of the premises and the mutual promises hereinafter set forth, and for good and valuable consideration set forth in the Agreement, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

1.     Grant of License .  PowerShares grants Licensee a non-exclusive, non-transferable right and license to use and refer to the Index and Marks in connection with the creation, issuance, trading and marketing of Product pursuant to the terms and conditions of this Agreement.

 

2.     Ownership and Validity .  Licensee acknowledges Index Provider’s ownership of the entire right, title and interest in and to the Index and Marks and Licensee’s use shall inure to the sole benefit of the Index Provider.

 

3.     Quality Control .  PowerShares shall have the right to monitor the quality of the Product offered by Licensee pursuant to this Agreement.  Licensee agrees that the nature and quality of the Product using the Index and Marks shall meet or exceed the standards set by PowerShares or Index Provider.  Licensee’s failure to conform to such quality controls may result in the termination of this Agreement.

 

Licensee shall include, unless a substitute is approved by PowerShares, in which case such substitute shall be included, the following notice in all informational materials relating to the licensed Index and Marks, and agrees upon request to furnish a copy (copies) thereof to PowerShares:

 

The [Specification of applicable Index] Index ( the “Index”) is a trademarks of [Specification of applicable Index Provider] (the “Index Provider”) which are licensed for use by [Licensee] in connection with [specification of applicable Products] (the “Products”).  The Products are not sponsored or endorsed by the Index Provider and the Index Provider makes no warranty or representation as to the accuracy and/or completeness of the

 



 

Indexes or the results to be obtained by any person from the use of the Indexes or the trading of the Products.

 

4.     Term .  This Agreement shall become effective upon signatures of both parties and remain in effect unless terminated by either party as provided herein.

 

5.     Termination .  Licensee may terminate this Agreement upon sixty (60) days prior written notice.  PowerShares may terminate this Agreement upon sixty (60) days prior written notice or immediately upon Licensee’s breach of this Agreement.

 

6.     Fees .  Subject to the terms of this Agreement, Licensee shall have the right to use such license in connection with the products on a royalty-free basis.

 

7.     Entire Agreement .  This Agreement sets forth the entire Agreement and the understanding between the parties.  No modification or amendment of this Agreement shall be valid or binding unless made in writing and signed on behalf of the parties by their duly authorized officers or representatives.

 

8.     Execution .  This Agreement may be executed simultaneously with any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

9.     General Provisions .

 

(a)           A party may not assign this Agreement and/or any of its rights and/or obligations hereunder, except to an affiliate or successor in interest, without the prior written consent of the other party, and any attempted assignment by a party requiring the consent of the other party which is made by the assigning party without the other party’s prior consent shall be null and void.

 

(b)           No change in, addition to, or waiver of any of the provisions of this Agreement shall be binding upon either Party unless in writing signed by an authorized representative of such party.  No waiver by either Party of any breach by the other party of any of the provisions of this Agreement shall be construed as a waiver of that or any other provision on any other occasion.

 

(c)           This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Illinois, without regard to its conflict of law provisions.

 

(d)           In the event any one or more of the provisions of this Agreement shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in effect and the Agreement shall be read as though the offending provision had not been written or as the provision shall be determined by such court to be read.

 



 

IN WITNESS WHEREOF, PowerShares and Licensee have caused this Agreement to be duly executed on their behalf in the manner legally binding upon them.

 

 

 

POWERSHARES CAPITAL
MANAGEMENT, LLC

 

 

 

 

 

Signature:

 

 

By:

H. Bruce Bond

 

Title:

President

 

 

 

 

 

POWERSHARES INDIA EXCHANGE-
TRADED FUND TRUST

 

 

 

 

 

Signature:

 

 

By;

H. Bruce Bond

 

Title:

Chairman and CEO

 



 

EXHIBIT A

 

1.               Index:  INDUS India Index

Mark:  INDUS and INDUS Partners

Product:  PowerShares India Portfolio

 

 

Acknowledgement:

 

Licensee acknowledges and agrees that Indus Advisors, LLC, a Delaware limited liability company (“INDUS”) owns proprietary, trademark and intellectual property rights with respect to the “INDUS India Index.”   INDUS shall be a third party beneficiary to this Agreement as it relates to the Index.

 

 

POWERSHARES INDIA EXCHANGE-
TRADED FUND TRUST

 

 

 

 

 

Signature:

 

 

By;

H. Bruce Bond

 

Title:

Chairman and CEO

 


Exhibit 99.(i)(1)

 

February 22, 2008

 

PowerShares India Exchange-Traded Fund Trust

301 West Roosevelt Avenue

Wheaton, IL 60187

 

Re:

 

Opinion of Counsel regarding Pre-Effective Amendment No. 1 to the

 

 

Registration Statement filed on Form N-1A under the Securities Act of 1933

 

 

(File Nos. 333-147611, 811- 22147 )

 

Dear Ladies and Gentlemen:

 

We have acted as counsel to PowerShares India Exchange-Traded Fund Trust (the “Fund”), in connection with the above-referenced Registration Statement (as amended, the “Registration Statement”), which relates to the shares of beneficial interest, $0.01 par value, of the PowerShares India Portfolio (the “Shares”).  This opinion is being delivered to you in connection with the Fund’s filing of Pre-Effective Amendment No. 1 to the Registration Statement (the “Amendment”) to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “1933 Act”), and Amendment No. 1 pursuant to the Investment Company Act of 1940, as amended, in connection with the effectiveness of the PowerShares India Portfolio.  With your permission, all assumptions and statements of reliance herein have been made without any independent investigation or verification on our part except to the extent otherwise expressly stated, and we express no opinion with respect to the subject matter or accuracy of such assumptions or items relied upon.  We have reviewed the Fund’s Declaration of Trust, as amended (the “Declaration”), and such other documents and matters as we have deemed necessary to enable us to render this opinion.

 

Based upon, and subject to, the foregoing, we are of the opinion that the Shares to which the Registration Statement relates when issued and sold in accordance with the Fund’s Declaration, Designation and By-Laws and for the consideration described in the Registration Statement, will be validly issued, fully paid and non-assessable, except that, as set forth in the Registration Statement, shareholders of the Fund may under certain circumstances be held personally liable for its obligations.

 

As to matters of Massachusetts law contained in the foregoing opinions, we have relied upon the opinion of Bingham McCutchen LLP, dated February 22, 2008.

 



 

We have consented to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Fund Service Providers” in the Statement of Additional Information forming a part of the Registration Statement.  In giving this consent, we do not concede that we are in the category of persons whose consent is required under Section 7 of the 1933 Act.

 

Very truly yours,

 

/s/ Clifford Chance US LLP

 

2


Exhibit 99.(i)(2)

 

February 22, 2008

 

PowerShares India Exchange-Traded Fund Trust

301 West Roosevelt Road

Wheaton, IL 60187

 

Clifford Chance US LLP

31 West 52 nd   Street

New York, NY 10019

 

Re:          PowerShares India Exchange-Traded Fund Trust

 

Ladies and Gentlemen:

 

We have acted as special Massachusetts counsel to PowerShares India Exchange-Traded Fund Trust (the “Trust”) on behalf of its series PowerShares India Portfolio (the “Fund”) in connection with the Trust’s Pre-Effective Amendment to its Registration Statement on Form N-1A to be filed with the Securities and Exchange Commission on or about February 22, 2008 (as proposed to be amended, the “Registration Statement”) with respect to each Fund’s shares of beneficial interest, par value $.01 per share (the “Shares”).  You have requested that we deliver this opinion to you in connection with the Trust’s filing of such Registration Statement.

 

In connection with the furnishing of this opinion, we have examined the following documents:

 

(a)           a certificate of the Secretary of the Commonwealth of Massachusetts as to the existence of the Trust;

 

(b)           a copy, stamped as filed with the Secretary of the Commonwealth of Massachusetts on August 6, 2007, of the Trust’s Declaration of Trust dated as of August 3, 2007 (the “Declaration”);

 

(c)           a copy, as filed with the Secretary of the Commonwealth of Massachusetts as Schedule A to the Declaration on August 6, 2007, of the Trust’s Designation of Series dated as of August 3, 2007 (the “Designation”);

 

(d)           a certificate executed by an appropriate officer of the Trust, certifying as to, and attaching copies of, the Trust’s Declaration, Designation, By-Laws, and certain resolutions adopted by the Trustees of the Trust at a meeting held on February 22, 2008 (the “Resolutions”); and

 



 

(e)           drafts received on February 22, 2008 of the Registration Statement.

 

In such examination, we have assumed the genuineness of all signatures, the conformity to the originals of all of the documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing any document.  We have assumed that the Registration Statement, as filed with the Securities and Exchange Commission, will be in substantially the form of the draft referred to in paragraph (e) above.  We have also assumed that the Trust’s Declaration, Designation, By-Laws and the Resolutions will not have been amended, modified or withdrawn with respect to matters relating to the Shares and will be in full force and effect on the date of the issuance of such Shares.

 

This opinion is based entirely on our review of the documents listed above and such investigation of law as we have deemed necessary or appropriate.  We have made no other review or investigation of any kind whatsoever, and we have assumed, without independent inquiry, the accuracy of the information set forth in such documents.

 

As to any opinion below relating to the due formation or existence of the Trust under the laws of the Commonwealth of Massachusetts, our opinion relies entirely upon and is limited by the certificate of public officials referred to in (a) above.

 

This opinion is limited solely to the internal substantive laws of the Commonwealth of Massachusetts, as applied by courts located in Massachusetts (other than Massachusetts securities laws, as to which we express no opinion), to the extent that the same may apply to or govern the transactions referred to herein.  No opinion is given herein as to the choice of law or internal substantive rules of law, which any tribunal may apply to such transaction.  In addition, to the extent that the Trust’s Declaration, Designation or By-Laws refer to, incorporate or require compliance with the Investment Company Act of 1940, as amended, or any other law or regulation applicable to the Trust, except for the internal substantive laws of the Commonwealth of Massachusetts, as aforesaid, we have assumed compliance by the Trust with such Act and such other laws and regulations.

 

We understand that all of the foregoing assumptions and limitations are acceptable to you.

 

2



 

Based upon and subject to the foregoing, please be advised that it is our opinion that:

 

1.             The Trust has been duly formed and is existing under the Trust’s Declaration of Trust and the laws of the Commonwealth of Massachusetts as a voluntary association with transferable shares of beneficial interest commonly referred to as a “Massachusetts business trust.”

 

2.             The Shares, when issued and sold in accordance with the Trust’s Declaration, Designation and By-Laws and for the consideration described in the Registration Statement, will be validly issued, fully paid and non-assessable, except that, as set forth in the Registration Statement, shareholders of the Trust may under certain circumstances be held personally liable for its obligations.

 

We hereby consent to your reliance on this opinion in connection with your opinion to the Trust with respect to the Shares and to the filing of this opinion as an exhibit to the Registration Statement.

 

 

Very truly yours,

 

 

 

/s/ Bingham McCutchen LLP

 

BINGHAM McCUTCHEN LLP

 

3


Exhibit 99.(j)(a)

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the use in this registration statement on Form N-1A (the“Registration Statement”) of our report dated February 21, 2008, relating to the financial statement of the portfolio comprising PowerShares India Exchange-Traded Fund Trust, which appears in such Registration Statement. We hereby consent to the references to us under the headings “Fund Service Providers” and “Independent Registered Public Accounting Firm” in this Registration Statement.

 

/s/ PricewaterhouseCooper LLP

 

PricewaterhouseCoopers LLP

New York, New York

February 21, 2008

 


Exhibit 99.(p)(1)

 

POWERSHARES EXCHANGE-TRADED FUND TRUST
POWERSHARES EXCHANGE-TRADED FUND TRUST II
POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST
POWERSHARES CAPITAL MANAGEMENT LLC

 

CODE OF ETHICS

 

This Code of Ethics has been adopted by PowerShares Capital Management LLC (“PCM”), PowerShares Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II and PowerShares India Exchange-Traded Fund Trust (each, a “Trust” and together, the “Trusts”) in compliance with Rule 204A-1 of the Investment Advisers Act of 1940 (the “Advisers Act”) and Rule 17j-1 under the Investment Company Act of 1940 (the “Act”) (unless specifically identified, Rule 17j-1 and Rule 204A-1 are collectively referred to as the “Rules”).  The PCM Code of Ethics is also adopted for its employees, as referenced in the PCM Code of Conduct.  This Code of Ethics is intended to ensure that all acts, practices and courses of business engaged in by access persons (as defined) of each Trust or other clients or accounts of PCM (“Other Clients”) reflect high standards and comply with the requirements of Rule 204A-1, and Section 17(j) of the Act and Rule 17j-1 thereunder.  Any such access person shall not be subject to this Code of Ethics if such person is subject to another organization’s code of ethics that has been approved by the Board of Trustees of each Trust.

 

This Code of Ethics acknowledges the general principles that access persons and advisory persons (as defined below): (i) owe a fiduciary obligation to each Trust and Other Clients; (ii) have the duty at all times to place the interests of each Trust and Other Clients and their respective shareholders, if any, first; (iii) must conduct all personal securities transactions in such a manner as to avoid any actual or potential conflict of interest or abuse of an individual’s position of trust and responsibility; (iv) should not take inappropriate advantage of their positions in relation to each Trust or Other Clients; (v) must comply with the federal securities laws as such term is defined in Rule 204A-1; and (vi) must safeguard nonpublic information about each Trust and Other Clients and their accounts, securities, instructions and interests.

 

I.               Definitions

 

A.             Access person ” means any director, trustee, officer, general partner, managing member, or advisory person (as defined) of a Trust or PCM and any employee who has access to nonpublic information regarding any client’s purchase or sale of securities or nonpublic information regarding the portfolio holdings of any reportable fund (as defined in Rule 204A-1 of the Advisers Act), including the Trust or any affiliated mutual fund, or who is involved in making securities recommendations to clients or who has access to such recommendations that are nonpublic.

 

1



 

B.             Advisory person ” means (1) any employee of a Trust, PCM or Other Clients (or of any company in a control relationship to the Trust, PCM or Other Clients ) who, in connection with his or her regular functions or duties, makes, participates in, or obtains information regarding the purchase or sale of a security (as defined) by the Trust or Other Clients, or whose functions relate to the making of any recommendations with respect to such purchases or sales; and (2) any natural person in a control relationship to a Trust, PCM or Other Clients who obtains information concerning recommendations made to the Trust or Other Clients with regard to the purchase or sale of a security by the Trust or Other Clients.

 

C.             Beneficial ownership ” shall be interpreted in the same manner as it would be under Rule 16a-1(a)(2) in determining whether a person is subject to the provisions of Section 16 of the Securities Exchange Act of 1934 and the rules and regulations thereunder.

 

D.             Control ” shall have the same meaning as that set forth in Section 2(a)(9) of the Act.  Section 2(a)(9) provides that “control” generally means the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official position with such company.

 

E.              A “ security held or to be acquired ” means: (1) any security which, within the most recent 15 days:  (a) is or has been held by a Trust or Other Clients; or (b) is being or has been considered by a Trust, PCM or Other Clients for purchase by the Trust or Other Clients; and (2) any option to purchase or sell, and any security convertible into or exchangeable for, a security described in clause (1) above.

 

F.              An initial public offering ” means an offering of securities registered under the Securities Act of 1933, the issuer of which, immediately before the registration, was not subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934.

 

G.             Investment personnel ” means:  (1) any employee of a Trust, PCM or Other Clients (or of any company in a control relationship to the Trust, PCM or Other Clients) who, in connection with his or her regular functions or duties, makes or participates in making recommendations regarding the purchase or sale of securities by the Trust or Other Clients; and (2) any natural person who controls a Trust, PCM or Other Clients and who obtains information concerning recommendations made to the Trust or Other Clients regarding the purchase or sale of securities by the Trust or Other Clients.

 

H.             A “ limited offering ” means an offering that is exempt from registration under the Securities Act of 1933 pursuant to Section 4(2) or Section 4(6) or pursuant to Rule 504, Rule 505, or Rule 506 under the Securities Act of 1933.

 

I.               Purchase or sale ” for purposes of this Code of Ethics and each Exhibit or other appendix hereto includes, among other things, the writing of an option to purchase or sell a security.

 

J.              Reportable Security ” means a Security as defined in Section 2(a)(36) of the Act, except that it shall not include direct obligations of the Government of the United States,

 

2



 

bankers’ acceptances, bank certificates of deposit, commercial paper and high quality short-term debt instruments, including repurchase agreements, and shares issued by registered open-end investment companies (including money market funds) except shares of a Trust or any other affiliated mutual fund, or such other securities as may be excepted under the provisions of the Rules.

 

II.             Prohibitions

 

A.             Generally .  Rule 17j-1 under the Act makes it unlawful for any affiliated person of a Trust, or any affiliated person of PCM, directly or indirectly, in connection with the purchase or sale of a security held or to be acquired by the Trust or Other Clients:

 

1.              To employ any device, scheme or artifice to defraud a Trust or Other Clients;

 

2.              To make to a Trust or Other Clients any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made to the Trust or Other Clients, in light of the circumstances under which they are made, not misleading;

 

3.              To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon a Trust or Other Clients; or

 

4.              To engage in any manipulative practice with respect to a Trust.

 

It is the policy of PCM and the Trusts that no access person shall engage in any act, practice or course of conduct that would violate the provisions of the Rules set forth above.

 

B.             Initial Public Offerings and Limited Offerings . No access person or investment personnel may acquire any direct or indirect beneficial ownership in any securities in an initial public offering or in a limited offering unless the Chief Compliance Officer of PCM or of a Trust has authorized the transaction in advance.

 

III.           Procedures

 

A.             Acknowledgment of Receipt.  Each person receiving a copy of this Code of Ethics and any subsequent amendment thereto, must acknowledge receipt in writing on the form supplied by the Chief Compliance Officer of the Code attached as Appendix I and must promptly return the signed form to the Chief Compliance Officer.

 

B.             Reporting .  In order to provide the Trusts and PCM with information to enable each of them to determine with reasonable assurance whether the provisions of the Rules, as applicable, are being observed by its access persons, each access person of a Trust or PCM, other than a Trustee of a Trust who is not an “interested person” (as defined in the Act) of a Trust or PCM, shall submit the following reports in the forms attached hereto as Exhibits A-D to the PCM Chief Compliance Officer (or his or her delegate) showing all transactions in Reportable Securities in which the person has, or by reason of such transaction acquires, any direct or indirect beneficial ownership:

 

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1.              Initial Holding Report .  Exhibit A shall initially be filed no later than 10 days after that person becomes an access person and the information must be current as of a date no more than 45 days prior to the date the person becomes an access person.  Each holdings report must contain with respect to each Reportable Security, at a minimum: (i) the title and type of security, and as applicable, the exchange ticker symbol or CUSIP number, number of shares, and principal amount of each Reportable Security in which the access person has any direct or indirect beneficial ownership; (ii) the name of any broker, dealer or bank with which the access person maintains an account in which any securities are held for the access person’s direct or indirect benefit; and (iii) the date the access person submits the report.

 

2.              Quarterly Transaction Reports .  Exhibits B and C shall be filed no later than 30 days after the end of each calendar quarter, but transactions over which such person had no direct or indirect influence or control need not be reported.  No such periodic report needs to be made if the report would duplicate information contained in broker trade confirmations or account statements received by PCM or a Trust no later than 30 days after the end of each calendar quarter and/or information contained in PCM’s or the Trust’s records.  In addition, transactions effected pursuant to automatic reinvestment plans need not be reported.  Quarterly transaction reports must be dated and contain the following information with respect to each transaction in a Reportable Security in which the access person had, or as a result of the transaction acquired, any direct or indirect beneficial ownership and/or brokerage account established by the access person in which he or she held any securities during the quarter: (i) date of the transaction, the title and as applicable the exchange ticker symbol or CUSIP number, interest date and maturity date, number of shares, and principal amount of each Reportable Security involved; (ii) nature of the transaction (i.e., purchase, sale or another type of acquisition or disposition); (iii) the price at which the transaction was effected; (iv) name of broker, dealer or bank with or through whom the transaction was effected; and (v) the date the access person submits the report.

 

3.              Annual Holdings Report .  Exhibit D must be submitted by each access person within 45 days after the end of each calendar year with respect to each security held and the information must be current as of a date no more than 45 days prior to the date the report was submitted.  The annual holdings report shall contain the same information as the initial holdings report.

 

C.             Independent Trustees .  A Trustee who is not an “interested person” of PCM shall not be required to submit the reports required under paragraph III.B, except that such a Trustee shall file a Securities Transaction Report in the form attached as Exhibit B with respect to a transaction in a Reportable Security where he or she knew at the time of the transaction or, in the ordinary course of fulfilling his or her official duties as a Trustee, should have known that during the 15 day period immediately preceding or after the date of the transaction, such security is or was purchased or sold by PCM or a Trust, or was considered for purchase or sale by PCM or a Trust.  No report is required if the Trustee had no direct or indirect influence or control over the transaction.

 

D.             Notification .  The PCM Chief Compliance Officer (or his or her delegate) shall notify each access person of PCM and the Trusts who may be required to make reports pursuant

 

4



 

to this Code of Ethics that such person is subject to reporting requirements and shall deliver a copy of this Code of Ethics to each such person.

 

IV.            Review and Enforcement

 

A.             Review .

 

1.              The Chief Compliance Officer of PCM (or his or her delegate) shall from time to time review the reported personal securities transactions of access persons for compliance with the requirements of this Code of Ethics.

 

2.              If the Chief Compliance Officer of PCM (or his or her delegate) determines that a violation of this Code of Ethics may have occurred, before making a final determination that a material violation has been committed by an individual, the Chief Compliance Officer of PCM (or his or her delegate) may give such person an opportunity to supply additional information regarding the transaction in question.

 

B.             Enforcement .

 

1.              If the Chief Compliance Officer of PCM (or his or her delegate) determines that a material violation of this Code of Ethics has occurred, he or she shall promptly report the violation to the Trustees of each Trust.  The Trustees, with the exception of any person whose transaction is under consideration, shall take such actions as they consider appropriate, including imposition of any sanctions that they consider appropriate.

 

2.              No person shall participate in a determination of whether he or she has committed a violation of this Code of Ethics or in the imposition of any sanction against himself or herself.  If, for example, a securities transaction of the Chief Compliance Officer of PCM is under consideration, the President of the Trust designated for the purpose by the Trustees of the Trusts shall act in all respects in the manner prescribed herein for the Chief Compliance Officer.

 

C.             Certificate of Compliance.   Each access person must certify in writing within 30 days of each year in the form attached as Appendix II that he or she has:  (a) read this Code of Ethics, including any amendments thereto, and understood it; (b) complied with this Code’s requirement during the past year; (c) disclosed or reported all personal securities transactions required to be disclosed or reported pursuant to the requirements of this Code and (d) reported all violations of this Code and the federal securities laws, as that term is defined in Rule 204A-1, to the Chief Compliance Officer.

 

D.             Reporting to Board .  No less frequently than annually, the Chief Compliance Officer of PCM and each Trust shall furnish to the Trust’s Board of Trustees, and the Board must consider, a written report that:

 

1.              Describes any issues arising under the Code of Ethics or procedures since the last report to the Board of Trustees, including, but not limited to, information about material violations of the Code of Ethics or procedures and sanctions imposed in response to the material violations; and

 

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2.              Certifies that PCM and each Trust have adopted procedures reasonably necessary to prevent access persons from violating the Code of Ethics.

 

V.             Records

 

Each Trust shall maintain records in the manner and to the extent set forth below, which records shall be available for appropriate examination by representatives of the Securities and Exchange Commission.

 

·               A copy of this Code of Ethics and any other code of ethics which is, or at any time within the past five years has been, in effect shall be preserved in an easily accessible place;

 

·               A record of all written acknowledgments as required by Rule 204A-1(a)(5) for each person who is currently, or within the past five years was, a supervised person of PCM;

 

·               A record of any violation of this Code of Ethics and of any action taken as a result of such violation shall be preserved in an easily accessible place for a period of not less than five years following the end of the fiscal year in which the violation occurs;

 

·               A copy of each report made pursuant to this Code of Ethics by an access person, including any information provided in lieu of reports, shall be preserved by PCM for a period of not less than five years from the end of the fiscal year in which it is made, the first two years in an easily accessible place;

 

·               A list of all persons who are, or within the past five years have been, required to make reports pursuant to this Code of Ethics, or who are or were responsible for reviewing these reports, shall be maintained in an easily accessible place;

 

·               A record of any decision, and the reasons supporting the decision, to approve the acquisition of securities by access persons under Rule 204A-1(c), for at least five years after the end of the fiscal year in which the approval is granted;

 

·               A copy of each report made pursuant to Section IV.D of this Code of Ethics shall be preserved by PCM for at least five years after the end of the fiscal year in which it is made, the first two years in an easily accessible place; and

 

·               PCM shall preserve a record of any decision, and the reasons supporting the decision, to approve the acquisition by investment personnel of securities under Section II.B of this Code of Ethics for at least five years after the end of the fiscal year in which the approval is granted, the first two years in an easily accessible place.

 

VI.            Miscellaneous

 

A.             Confidentiality . All reports of securities transactions and any other information filed with PCM pursuant to this Code of Ethics shall be treated as confidential, except as regards appropriate examinations by representatives of the Securities and Exchange Commission.

 

6



 

B.             Amendment; Interpretation of Provisions . The Board of Trustees may from time to time amend this Code of Ethics or adopt such interpretations of this Code of Ethics as they deem appropriate.

 

 

Approved: April 25, 2007

 

Amended: February 22, 2008

 

7



 

ANNUAL CERTIFICATION

 

The undersigned hereby certifies on behalf of PCM and the Trusts pursuant to Section IV.D(2) of the Code of Ethics of PCM and the Trusts, that PCM and the Trusts have adopted procedures that are reasonably necessary to prevent access persons from violating the Code of Ethics.

 

 

Date:

 

 

 

 

 

Chief Compliance Officer, PowerShares

 

 

Capital Management LLC

 

 

 

 

 

 

 

 

 

 

 

Chief Compliance Officer, PowerShares

 

 

Exchange-Traded Fund Trust

 

 

 

 

 

 

 

 

 

 

 

Chief Compliance Officer, PowerShares

 

 

Exchange-Traded Fund Trust II

 

 

 

 

 

 

 

 

 

 

 

Chief Compliance Officer, PowerShares

 

 

India Exchange-Traded Fund Trust

 

8



 

Appendix I

 

WRITTEN ACKNOWLEDGMENT OF CODE OF ETHICS

 

To the Chief Compliance Officer:

 

The undersigned hereby acknowledges receipt of the Code of Ethics of PowerShares Capital Management LLC, PowerShares Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II and PowerShares India Exchange-Traded Fund Trust and any current amendment thereto.

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

Name:

 

 

 

 

 

 

Title:

 

 

9



 

Appendix II

 

ANNUAL COMPLIANCE CERTIFICATION

 

To the Chief Compliance Officer:

 

The undersigned hereby certifies that he or she has:

 

(a)            read this Code of Ethics, including any amendments thereto, and understood it;

 

(b)            complied with this Code’s requirement during the past year;

 

(c)            disclosed or reported all personal securities transactions required to be disclosed or reported pursuant to the requirements of this Code; and

 

(d)            reported all violations of this Code and the federal securities laws, as that term is defined in Rule 204A-1, to the Chief Compliance Officer.

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

Name:

 

 

 

 

 

 

Title:

 

 

10



 

EXHIBIT A

 

INITIAL HOLDINGS REPORT

 

To the Chief Compliance Officer:

 

As of the below date, I held the following position in these securities in which I may be deemed to have a direct or indirect beneficial ownership, and which are required to be reported pursuant to the Code of Ethics of PowerShares Capital Management LLC, PowerShares Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II and PowerShares India Exchange-Traded Fund Trust:

 

Title and
Type
Security

 

Symbol or
CUSIP No.

 

No. of
Shares

 

Principal
Amount

 

Broker/Dealer or
Bank Where
Account is Held

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This report (i) excludes holdings with respect to which I had no direct or indirect influence or control, and (ii) is not an admission that I have or had any direct or indirect beneficial ownership in the securities listed above.

 

Date:

 

 

Signature:

 

 

A-1



 

EXHIBIT B

 

SECURITIES TRANSACTION REPORT

 

For the Calendar Quarter Ended                                

 

To the Chief Compliance Officer:

 

During the quarter referred to above, the following transactions were effected in securities in which I may be deemed to have had, or by reason of such transaction acquired, direct or indirect beneficial ownership, and which are required to be reported pursuant to the Code of Ethics of PowerShares Capital Management LLC, PowerShares Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II and PowerShares India Exchange-Traded Fund Trust:

 

Security
(including
interest rate and
maturity
date, if any)

 

Symbol or
CUSIP
Number

 

Date of
Transaction

 

No. of
Shares

 

Principal
Amount of
Transaction

 

Nature of
Transaction
(Purchase,
Sale, Other)

 

Price

 

Broker/
Dealer or
Bank
Through
Whom
Effected

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This report (i) excludes transactions with respect to which I had no direct or indirect influence or control, (ii) excludes transactions effected pursuant to an automatic investment plan, and (iii) is not an admission that I have or had any direct or indirect beneficial ownership in the securities listed above.

 

Date:

 

 

Signature:

 

 

B-1



 

EXHIBIT C

 

ACCOUNT ESTABLISHMENT REPORT

 

For the Calendar Quarter Ended                                

 

To the Chief Compliance Officer:

 

During the quarter referred to above, the following accounts were established for securities in which I may be deemed to have a direct or indirect beneficial ownership, and is required to be reported pursuant to the Code of Ethics of PowerShares Capital Management LLC, PowerShares Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II and PowerShares India Exchange-Traded Fund Trust:

 

Broker/Dealer or Bank Where
Account Was Established

 

Date
Account Was
Established

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

Signature:

 

 

C-1



 

EXHIBIT D

 

ANNUAL HOLDINGS REPORT

 

To the Chief Compliance Officer:

 

As of December 31,         , I held the following positions in securities in which I may be deemed to have a direct or indirect beneficial ownership, and which are required to be reported pursuant to the Code of Ethics of PowerShares Capital Management LLC, PowerShares Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II and PowerShares India Exchange-Traded Fund Trust:

 

Title and
Type of
Security

 

Symbol
or
CUSIP No.

 

No. of
Shares

 

Principal
Amount

 

Broker/Dealer or
Bank Where
Account is Held

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This report excludes holdings with respect to which I had no direct or indirect influence or control and is not an admission that I have or had any direct or indirect beneficial ownership in the securities listed above.

 

Date:

 

 

Signature:

 

 

D-1


Exhibit 99.(p)(2)

 

AIM FUNDS

A I M MANAGEMENT GROUP INC.

CODE OF ETHICS

 

(Originally adopted May 1, 1981)

(Amended effective February 16, 2006)

 

A I M Management Group Inc., A I M Advisors, Inc., A I M Capital Management, Inc., AIM Private Asset Management, Inc. (“APAM”), A I M Distributors, Inc., Fund Management Company and all of their wholly owned and indirect subsidiaries (together, “AIM”) have a fiduciary relationship with respect to each portfolio under management.  The interests of Clients and of the shareholders of AIM’s investment company Clients take precedence over the personal interests of Covered Persons (defined below).  Capitalized terms used herein are defined at the end of this document.

 

This Code of Ethics (“the Code”) applies to all:

 

·                   Employees of AIM;

 

·                   Employees of any AIM affiliates that, in connection with their duties, obtain or are determined by the Advisory Compliance Group to have access to any information concerning recommendations being made by any AIM entity to any of its Clients (“access persons”); and

 

·                   AIM Funds Trustees.

 

All individuals covered by the Code are referred to as “Covered Persons.”

 

I.   Statement of Fiduciary Principles

 

The following fiduciary principles govern Covered Persons.

 

·                                           the interests of Clients and shareholders of investment company Clients must be placed first at all times and Covered Persons must not take inappropriate advantage of their positions; and

 

·                                           all personal securities transactions must be conducted consistent with this Code and in a manner to avoid any abuse of an individual’s position of trust and responsibility.  This Code is our effort to address conflicts of interest that may arise in the ordinary course of our business.

 

This Code does not attempt to identify all possible conflicts of interest or to ensure literal compliance with each of its specific provisions.  It does not necessarily shield Covered Persons from liability for personal trading or other conduct that violates a fiduciary duty to Clients and shareholders of investment company Clients.

 

1



 

Section 5 of this Code generally addresses sanctions for violations of this Code; certain sections of this Code specifically address sanctions that apply to violations of those sections.

 

II.   Limits on Personal Investing

 

A.             Personal Investing

 

1. Preclearance of Personal Security Transactions .  All Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) must pre-clear all personal security transactions involving Covered Securities with the Advisory Compliance Group using the automated request system.  Covered Securities include all investments that can be made by an AIM entity for its Clients, including stocks, bonds, municipal bonds, short sales, and any derivative such as options.  Covered Securities do not include shares of money market funds, government securities, certificates of deposit or shares of mutual funds not advised by AIM.  If you are unclear about whether a proposed transaction is a Covered Security, contact the Advisory Compliance Group via email at CodeofEthicsHouston@aiminvestments.com or phone prior to executing the transaction.

 

·                   Any approval granted to a Covered Person to execute a personal security transaction is valid for that business day only.

 

The automated review system will review personal trade requests from Covered Persons based on the following considerations:

 

·                   Black-out period .  AIM does not permit Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) to trade in a Covered Security if a Client has executed a transaction in the same security within the last two days or if there is an order currently with the trading desk.  For example, if a Client trades on a Monday, Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) may not be cleared until Thursday.

 

·                   Investment Personnel .  Investment Personnel may not buy or sell a Covered Security seven days before or after a Client trades in that security.

 

·                   Deminimus exceptions .  The Advisory Compliance Group will apply the following deminimis exceptions in granting preclearance when a Client has recently traded or is trading in a security involved in a Covered Person’s proposed personal transaction:

 

·                   Equity deminimis exception .  If you do not have knowledge of trading activity in a particular equity security, you may execute up to 500 shares of such security in a rolling 30 day period provided the issuer of such security is included in the Russell 1000 Index.  The deminimis exemption is not available to Covered Persons that are assigned to the Investments, Portfolio Administration, Fund Administration, and IT departments.

 

2



 

·                   Fixed income deminimis exception .  If you do not have knowledge of trading activity in a particular fixed income security you may execute up to $100,000 of par value of such security.  The deminimis exemption is not available to Covered Persons that are assigned to the Investments, Portfolio Administration, Fund Administration, and IT departments.

 

The automated review system will confirm that there is no activity currently on the trading desk for the security involved in the proposed personal transaction and check the portfolio accounting system to verify that there have been no transactions for the requested security within the last two trading days.  For IT and Portfolio Administration personnel, the Advisory Compliance Group will also check the trading activity of affiliates for which such personnel have access to information to verify that there have been no transactions for the requested security within the last two trading days.  The Advisory Compliance Group will notify the Covered Person of the approval or denial of the proposed personal transaction.  The approval of a personal securities transaction is only valid for that business day.  If a Covered Person does not execute the proposed securities transaction on the date requested, the Covered Person must resubmit the request again the next day for approval.

 

Any failure to preclear transactions is a violation of the Code and will be subject to the following potential sanctions:

 

·                   A Letter of Education will be provided to any Covered Person whose failure to preclear is considered immaterial or inadvertent.

 

·                   Repeat violations may result in in-person training, probation, withdrawal of personal trading privileges or termination, depending on the nature and severity of the violations.

 

2. Prohibition on Short-Term Trading Profits . Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) are prohibited from trading in a Covered Security within 60 days at a profit.  If a Covered Person (other than AIM Funds Independent Trustees without knowledge of investment activity) trades a Covered Security within the 60 day time frame, any profit from the trade will be disgorged to a charity of AIM’s choice.  AIM will issue a letter of education to the Covered Person for transactions within the 60 day period that do not generate a profit.

 

3. Initial Public Offerings . Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) are prohibited from acquiring any security in an equity Initial Public Offering.  Exceptions will only be granted in unusual circumstances and must be recommended by the Advisory Compliance Group and approved by the Chief Compliance Officer or General Counsel (or designee) and the Chief Investment Officer.

 

4. Brokerage Accounts . Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) may only maintain brokerage accounts with

 

3



 

·                   discount broker-dealers that provide electronic feeds of confirms and monthly statements directly to the Advisory Compliance Group,

 

·                   AIM Broker-dealers, or

 

·                   full service broker-dealers.

 

As a result, Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) must move any existing brokerage accounts that do not comply with this provision as of the date of this amended Code to appropriate broker-dealers within six months of the date of this amended Code.  Effective 6 months after the date of this amended Code, Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) may not own shares of AIM Funds that are held at a non-AIM Broker-dealer unless legally required.  All Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) must arrange for their broker-dealers to forward to the Advisory Compliance Group on a timely basis, duplicate confirmations of all personal securities transactions and copies of periodic statements for all brokerage accounts, preferably in an electronic format.

 

5. Reporting Requirements .

 

a. Initial Holdings Report . All Covered Persons (other than AIM Funds Independent Trustees) must provide to the Advisory Compliance Group an initial holdings report no later than 10 days after the person becomes a Covered Person (the information must be current within 45 days of the date the person becomes a Covered Person).  The initial holdings report shall include the following information:

 

·                   The title, number of shares (for equities) and the principal amount (for debt securities) in which the person has direct or indirect Beneficial Ownership;

 

·                   The name of any broker-dealer or bank with which the person maintains an account in which any securities are held for the direct or indirect benefit of the person; and

 

·                   The date that the report is submitted by the person.

 

Independent Trustees of the AIM Funds do not need to make an initial holdings report.

 

b. Quarterly Transaction Reports .  All Covered Persons (other than AIM Funds Independent Trustees) must report, no later than 30 days after the end of each calendar quarter, the following information for all transactions in a Covered Security in which a Covered Person has a direct or indirect beneficial interest:  This includes any Covered Securities held in a 401(k) or other retirement vehicle.

 

4



 

·                   The date of all transactions in that quarter, the security name, the number of shares (for equity securities); or the interest rate and maturity date (if applicable) and the principal amount (for debt securities) for each Covered Security;

 

·                   The nature of the transaction (buy, sell, etc.);

 

·                   The price of the Covered Security at which the transaction was executed;

 

·                   The name of the broker-dealer or bank executing the transaction; and

 

·                   The date that the report is submitted to the Advisory Compliance Group.

 

All Covered Persons (other than AIM Funds Independent Trustees) must submit a quarterly report regardless of whether they have executed transactions during the quarter or not.   If a Covered Person did not execute transactions subject to reporting requirements during a quarter, the report must include a representation to that effect.  Covered Persons need not include transactions made through an Automatic Investment Plan in the quarterly transaction report.

 

Additionally, Covered Persons (other than AIM Funds Independent Trustees) must report information on any new brokerage account established by the Covered Person during the quarter for the direct or indirect benefit of the Covered Person (including Covered Securities held in a 401(k) or other retirement vehicle) including:

 

·                   The date the account was established;

 

·                   The name of the broker-dealer or bank; and

 

·                   The date that the report is submitted to the Advisory Compliance Group.

 

An Independent Trustee of an AIM Fund must report a transaction in a Covered Security in a quarterly transaction report if the trustee, at the time of that transaction, knew or, in the ordinary course of fulfilling his/her duties as a trustee of the AIM Fund, should have known that, during the 15-day period immediately before or after the date of the transaction by the trustee, the Covered Security was purchased or sold by the AIM Fund or was being considered by the AIM Fund or AIM for purchase or sale by the AIM Fund or another Client.

 

The Advisory Compliance Group may identify transactions by Covered Persons that technically comply with the Code for review based on any pattern of activity that has an appearance of a conflict of interest.

 

c. Annual Holdings Reports . All Covered Persons (other than AIM Funds Independent Trustees) must report annually the following information, which must

 

5



 

be current within 45 days of the date the report is submitted to the Advisory Compliance Group:

 

·                   The security and the number of shares (for equities) or the interest rate and maturity date (if applicable) and principal amount (for debt securities) for each Covered Security in which the Covered Person has any direct or indirect Beneficial Ownership;

 

·                   The name of the broker-dealer or bank with or through which the transaction was effected; and

 

·                   The date that the report is submitted by the Covered Person to the Advisory Compliance Group.

 

Managed Accounts .  Covered Persons must make an annual report with respect to transactions held in an account over which the Covered Person has granted exclusive discretion to an external money manager.  Covered Persons must receive approval from the Advisory Compliance Group to establish and maintain such an account.  Covered Persons are not required to pre-clear transactions or submit quarterly reports for such managed accounts; however, Covered Persons with these types of accounts must provide an annual certification that they do not currently and have not in the past exercised direct or indirect Control over the managed accounts.

 

Annual Certification .  All Covered Persons (other than AIM Funds Independent Trustees) must certify annually that they have read and understand the Code and recognize that they are subject to the Code.  In addition, all Covered Persons must certify annually that they have complied with the requirements of the Code and that they have disclosed or reported all personal securities transactions required to be disclosed or reported under the Code.  The AIM Funds Trustees, including the Independent Trustees, will review and approve the Code annually.

 

6. Private Securities Transactions . Covered Persons (other than AIM Funds Independent Trustees without knowledge of investment activity) may not engage in a Private Securities Transaction without first giving the Advisory Compliance Group a detailed written notification describing the transaction and indicating whether or not they will receive compensation and obtaining prior written permission from the Advisory Compliance Group.  Investment Personnel who have been authorized to acquire securities of an issuer in a Private Securities Transaction must disclose that investment to the Advisory Compliance Group and the Chief Investment Officer of AIM when they are involved in a Client’s subsequent consideration of an investment in the same issuer.  The Client’s decision to purchase such securities must be independently reviewed by Investment Personnel with no personal interest in that issuer.

 

7. Excessive Short Term Trading in Funds .  Employees are prohibited from excessive short term trading of any mutual fund advised by AIM and are subject to various limitations on the number of transactions as indicated in the respective prospectus.

 

6



 

B. Limitations on Other Personal Activities

 

1. Board of Directorships . Investment Personnel will not serve on the boards of directors of either a publicly traded company or any other entity without prior written permission from AIM’s Advisory Compliance Group.  If the directorship is authorized, the individual will be isolated from others making investment decisions concerning the particular company or entity as appropriate.

 

2. Gift Policy . AIM Employees may not give or accept gifts or invitations of entertainment that may be considered excessive either in dollar value or frequency to avoid the appearance of any potential conflict of interest.  Under no circumstances may any Employees give or accept cash or any possible cash equivalent from a broker or vendor.

 

·                   Invitations .  AIM Employees must report entertainment with the Advisory Compliance Group on a monthly basis.  The requirement to report monthly entertainment includes dinners or any other event with the broker or vendor in attendance.

 

Examples of invitations that may be excessive in value include Super Bowl tickets, tickets to All-Star games, hunting trips, or ski trips.  An occasional ticket to a sporting event, golf outing or concert when accompanied by the broker or vendor may not be excessive.  In all cases, entertainment must be reported to the Advisory Compliance Group.

 

Additionally, AIM Employees may not reimburse brokers or vendors for the cost of tickets that would be considered excessive or for travel related expenses without approval of the Advisory Compliance Group.

 

·                   Gifts .  AIM Employees are not required to pre-clear gifts.  All gifts given or received must be reported to the Advisory Compliance Group on a monthly basis.  AIM Employees are prohibited from accepting the following:

 

·                   single gifts valued in excess of $100; and

 

·                   gifts from one person or firm valued in excess of $100 during a calendar year period .

 

AIM Employees must report all entertainment (breakfast and lunches in the office need not be reported), including dinners with the broker/vendor in attendance, and gifts to the Advisory Compliance Group on a monthly basis.

 

III.   Reporting of Potential Compliance Issues

 

AIM has created several channels for Employees to raise compliance issues and concerns on a confidential basis.  An Employee should first discuss a compliance issue with their supervisor, department head or with anyone in the Legal and Compliance Department.  Human Resources

 

7



 

matters should be directed to the Human Resources Department, an additional anonymous vehicle for reporting such concerns.

 

In the event that an Employee does not feel comfortable discussing compliance issues through normal channels, AIM has hired an Ombudsman to serve as a resource to Employees.  Employees may convey concerns about business matters they believe implicate matters of ethics or questionable practices to the Ombudsman at 1-888-388-2095.  Employees are encouraged to report these questionable practices so that AIM, the Ombudsman or the Compliance Department has an opportunity to address and resolve these issues before they become a more significant regulatory issue.

 

AMVESCAP PLC and the AIM Funds Boards of Trustees have set up a 1-800 number for Employees to raise any concerns on an anonymous basis.  This 1-800 number, 1-866-297-3627, appears on AIM’s website.  An outside vendor transcribes the calls received on the 1-800 number and forwards the transcripts to the chairman of the Audit Committee of the AIM Funds Boards of Trustees, AIM’s General Counsel, the Director of AIM’s Fund Administration Group, and to AMVESCAP PLC.

 

IV. Administration of the Code of Ethics

 

AIM will use reasonable due diligence and institute procedures reasonably necessary to prevent violations of this Code.

 

No less frequently than annually, AIM will furnish to the Boards of Trustees of the AIM Funds, or such committee as it may designate, a written report that:

 

·                               describes significant issues arising under the Code since the last report to the Boards of Trustees, including information about material violations of the Code and sanctions imposed in response to material violations; and

 

·                               certifies that the AIM Funds have adopted procedures reasonably designed to prevent Covered Persons from violating the Code.

 

V. Sanctions

 

Upon discovering a material violation of the Code, the Advisory Compliance Group will notify AIM’s Chief Compliance Officer (CCO).  The CCO will notify the Internal Compliance Controls Committee of any material violations at the next regularly scheduled meeting.

 

The Advisory Compliance Group will issue a letter of education to the Covered Persons involved in violations of the Code that are determined to be inadvertent or immaterial.

 

AIM may impose additional sanctions in the event of repeated violations or violations that are determined to be material or not inadvertent, including disgorgement of profits, a letter of censure or suspension, or termination of employment.

 

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VI.  Exceptions to the Code

 

AIM’s Chief Compliance Officer (or designee), together with either one of AIM’s General Counsel, Chief Investment Officer, Chief Executive Officer or Chairman, may grant an exception to any provision in this Code and will report all such exceptions at the next Internal Controls Committee meeting.

 

VII. Definitions

 

·                               AIM Broker-dealer means either A I M Distributors, Inc. or Fund Management Company;

 

·                               Automatic Investment Plan means a program in which regular purchases or sales are made automatically in or from investment accounts in accordance with a predetermined schedule and allocation, including dividend reinvestment plans;

 

·                               Beneficial Ownership has the same meaning as Rule 16a-1(a)(2) under the Securities Exchange Act of 1934, as amended (“the ‘34 Act”).  To have a beneficial interest, Covered Persons must have a “direct or indirect pecuniary interest,” which is the opportunity to profit directly or indirectly from a transaction in securities.  Thus a Covered Person may have Beneficial Ownership in securities held by members of their immediate family sharing the same household (i.e. a spouse and children) or by certain partnerships, trusts, corporations, or other arrangements;

 

·                               Client means any account for which AIM is either the adviser or sub-adviser;

 

·                               Control has the same meaning as under Section 2(a)(9) of the Investment Company Act, as amended (the “Investment Company Act”);

 

·                               Covered Person means any full or part time Employee of AIM or the AIM Funds,; any full or part time Employee of any AIM affiliates that, in connection with his or her duties, obtains or has access to any information concerning recommendations being made by any AIM entity to any of its Clients (“access persons”); and any interested trustee or director of the AIM Funds;

 

·                               Covered Security has the same meaning as Section 2 (a)(36) of the Investment Company Act and includes any AIM Fund or other Client that is advised or sub-advised by AIM.  An exchange traded funds (ETF) is considered a Covered Security. A Covered Security does not include the following:

 

·                          Direct obligations of the Government of the United States or its agencies;

 

·                          Bankers’ acceptances, bank certificates of deposit, commercial paper and high quality short-term debt instruments, including repurchase agreements;

 

·                         Any open-end mutual fund not advised or sub-advised by AIM; and

 

·                         AMVESCAP PLC stock because it is subject to the provisions of AMVESCAP PLC’s Code of Conduct.

 

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·                               Employee means any full or part time Employee of AIM or the AIM Funds, including any consultant or contractor who AIM’s Compliance Department determines to have access to information regarding AIM’s trading activity;

 

·                         Investment Personnel means any Employee who, in connection with his/her regular functions or duties, makes or participates in making recommendations regarding the purchase or sale of securities by the Client; and

 

·                         IT Personnel means any Employee that is designated to work in the Information Technology Department; and

 

·                         Fund Account Personnel means any Employee that is designated to work in either of the Fund Administration or Portfolio Administration Groups;

 

·                               Independent Trustee means a trustee of a fund who is not an “interested person” of the fund within the meaning of Section 2(a)(19) of the Investment Company Act;

 

·                               Initial Public Offering means an offering of securities registered under the Securities Act of 1933, as amended, the issuer of which, immediately before the registration, was not subject to the reporting requirements of Section 13 or 15(d) of the ‘34 Act;

 

·                               Private Securities Transaction means any securities transaction outside the regular course, or scope, of an associated person’s employment with a member, including, though not limited to, new offerings of securities which are not registered with the Securities and Exchange Commission, provided however that transactions subject to the notification requirements of Rule 3050 of the NASD’s Conduct Rules, transactions among immediate family members (as defined in the interpretation of the Board of Governors on free-riding and withholding) for which no associated person receives any selling compensation, and personal transactions in investment company and variable annuity securities shall be excluded.

 

10


Exhibit 99.(q)

 

Power of Attorney

PowerShares India Exchange-Traded Fund Trust (the “Trust”)

 

                The undersigned, does hereby constitute and appoint Stuart M. Strauss of Clifford Chance US LLP his true and lawful attorney and agent, with power of substitution or resubstitution, to do any and all acts and things and to execute any and all instruments which said attorney and agent may deem necessary or advisable or which may be required to enable the Trust to comply with the Securities Act of 1933, as amended (the “1933 Act”) and the Investment Company Act of 1940, as amended (the “1940 Act”), and any rules, regulations or requirements of the Securities and Exchange Commission (“SEC”) in respect thereof, in connection with the Trust’s Registration Statement on a form prescribed by the SEC pursuant to the 1933 Act and the 1940 Act, together with any and all amendments thereto, including within the foregoing, the power and authority to sign in the name and on behalf of the undersigned as a Trustee of the Trust such Registration Statement and any and all such amendments filed with the SEC under the 1933 Act and the 1940 Act, and any other instruments or documents related thereto, and the undersigned does hereby ratify and confirm all that said attorney and agents shall do or cause to be done by virtue hereof.

 

 

  /s/ Ronn R. Bagge

 

Ronn R. Bagge

 

Date: February 22, 2008

 



 

Power of Attorney

PowerShares India Exchange-Traded Fund Trust (the “Trust”)

 

                The undersigned, does hereby constitute and appoint Stuart M. Strauss of Clifford Chance US LLP his true and lawful attorney and agent, with power of substitution or resubstitution, to do any and all acts and things and to execute any and all instruments which said attorney and agent may deem necessary or advisable or which may be required to enable the Trust to comply with the Securities Act of 1933, as amended (the “1933 Act”) and the Investment Company Act of 1940, as amended (the “1940 Act”), and any rules, regulations or requirements of the Securities and Exchange Commission (“SEC”) in respect thereof, in connection with the Trust’s Registration Statement on a form prescribed by the SEC pursuant to the 1933 Act and the 1940 Act, together with any and all amendments thereto, including within the foregoing, the power and authority to sign in the name and on behalf of the undersigned as a Trustee of the Trust such Registration Statement and any and all such amendments filed with the SEC under the 1933 Act and the 1940 Act, and any other instruments or documents related thereto, and the undersigned does hereby ratify and confirm all that said attorney and agents shall do or cause to be done by virtue hereof.

 

 

  /s/ Marc M. Kole

 

Marc M. Kole

 

Date: February 22, 2008

 



 

Power of Attorney

PowerShares India Exchange-Traded Fund Trust (the “Trust”)

 

                The undersigned, does hereby constitute and appoint Stuart M. Strauss of Clifford Chance US LLP his true and lawful attorney and agent, with power of substitution or resubstitution, to do any and all acts and things and to execute any and all instruments which said attorney and agent may deem necessary or advisable or which may be required to enable the Trust to comply with the Securities Act of 1933, as amended (the “1933 Act”) and the Investment Company Act of 1940, as amended (the “1940 Act”), and any rules, regulations or requirements of the Securities and Exchange Commission (“SEC”) in respect thereof, in connection with the Trust’s Registration Statement on a form prescribed by the SEC pursuant to the 1933 Act and the 1940 Act, together with any and all amendments thereto, including within the foregoing, the power and authority to sign in the name and on behalf of the undersigned as a Trustee of the Trust such Registration Statement and any and all such amendments filed with the SEC under the 1933 Act and the 1940 Act, and any other instruments or documents related thereto, and the undersigned does hereby ratify and confirm all that said attorney and agents shall do or cause to be done by virtue hereof.

 

 

  /s/ D. Marc McMillan

 

D. Marc McMillan

 

Date: February 22, 2008

 



 

Power of Attorney

PowerShares India Exchange-Traded Fund Trust (the “Trust”)

 

                The undersigned, does hereby constitute and appoint Stuart M. Strauss of Clifford Chance US LLP his true and lawful attorney and agent, with power of substitution or resubstitution, to do any and all acts and things and to execute any and all instruments which said attorney and agent may deem necessary or advisable or which may be required to enable the Trust to comply with the Securities Act of 1933, as amended (the “1933 Act”) and the Investment Company Act of 1940, as amended (the “1940 Act”), and any rules, regulations or requirements of the Securities and Exchange Commission (“SEC”) in respect thereof, in connection with the Trust’s Registration Statement on a form prescribed by the SEC pursuant to the 1933 Act and the 1940 Act, together with any and all amendments thereto, including within the foregoing, the power and authority to sign in the name and on behalf of the undersigned as a Trustee of the Trust such Registration Statement and any and all such amendments filed with the SEC under the 1933 Act and the 1940 Act, and any other instruments or documents related thereto, and the undersigned does hereby ratify and confirm all that said attorney and agents shall do or cause to be done by virtue hereof.

 

 

/s/ Philip M. Nussbaum

 

Philip M. Nussbaum

 

Date: February 22, 2008

 



 

Power of Attorney

PowerShares India Exchange-Traded Fund Trust (the “Trust”)

 

                The undersigned, does hereby constitute and appoint Stuart M. Strauss of Clifford Chance US LLP his true and lawful attorney and agent, with power of substitution or resubstitution, to do any and all acts and things and to execute any and all instruments which said attorney and agent may deem necessary or advisable or which may be required to enable the Trust to comply with the Securities Act of 1933, as amended (the “1933 Act”) and the Investment Company Act of 1940, as amended (the “1940 Act”), and any rules, regulations or requirements of the Securities and Exchange Commission (“SEC”) in respect thereof, in connection with the Trust’s Registration Statement on a form prescribed by the SEC pursuant to the 1933 Act and the 1940 Act, together with any and all amendments thereto, including within the foregoing, the power and authority to sign in the name and on behalf of the undersigned as a Trustee of the Trust such Registration Statement and any and all such amendments filed with the SEC under the 1933 Act and the 1940 Act, and any other instruments or documents related thereto, and the undersigned does hereby ratify and confirm all that said attorney and agents shall do or cause to be done by virtue hereof.

 

 

/s/ Donald H. Wilson

 

Donald H. Wilson

 

Date: February 22, 2008

 



 

Power of Attorney

PowerShares India Exchange-Traded Fund Trust (the “Trust”)

 

                The undersigned, does hereby constitute and appoint Stuart M. Strauss of Clifford Chance US LLP his true and lawful attorney and agent, with power of substitution or resubstitution, to do any and all acts and things and to execute any and all instruments which said attorney and agent may deem necessary or advisable or which may be required to enable the Trust to comply with the Securities Act of 1933, as amended (the “1933 Act”) and the Investment Company Act of 1940, as amended (the “1940 Act”), and any rules, regulations or requirements of the Securities and Exchange Commission (“SEC”) in respect thereof, in connection with the Trust’s Registration Statement on a form prescribed by the SEC pursuant to the 1933 Act and the 1940 Act, together with any and all amendments thereto, including within the foregoing, the power and authority to sign in the name and on behalf of the undersigned as a Trustee of the Trust such Registration Statement and any and all such amendments filed with the SEC under the 1933 Act and the 1940 Act, and any other instruments or documents related thereto, and the undersigned does hereby ratify and confirm all that said attorney and agents shall do or cause to be done by virtue hereof.

 

 

/s/ Paul Kilcullen

 

Paul Kilcullen

 

Date: February 22, 2008

 



 

Power of Attorney

PowerShares India Exchange-Traded Fund Trust (the “Trust”)

 

                The undersigned, does hereby constitute and appoint Stuart M. Strauss of Clifford Chance US LLP his true and lawful attorney and agent, with power of substitution or resubstitution, to do any and all acts and things and to execute any and all instruments which said attorney and agent may deem necessary or advisable or which may be required to enable the Trust to comply with the Securities Act of 1933, as amended (the “1933 Act”) and the Investment Company Act of 1940, as amended (the “1940 Act”), and any rules, regulations or requirements of the Securities and Exchange Commission (“SEC”) in respect thereof, in connection with the Trust’s Registration Statement on a form prescribed by the SEC pursuant to the 1933 Act and the 1940 Act, together with any and all amendments thereto, including within the foregoing, the power and authority to sign in the name and on behalf of the undersigned as a Trustee of the Trust such Registration Statement and any and all such amendments filed with the SEC under the 1933 Act and the 1940 Act, and any other instruments or documents related thereto, and the undersigned does hereby ratify and confirm all that said attorney and agents shall do or cause to be done by virtue hereof.

 

 

/s/ Couldip Basanta Lala

 

Couldip Basanta Lala

 

Date: February 22, 2008