As filed with the Securities and Exchange Commission on February 28, 2013
No. 333-147611
No. 811-22147
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
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Pre-Effective Amendment No. |
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Post-Effective Amendment No. 8 |
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and/or |
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REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 |
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Amendment No. 9 |
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(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)
Registrants Telephone Number, including Area Code: (800) 983-0903
Andrew Schlossberg |
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With a copy to: |
301 West Roosevelt Road |
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Alan P. Goldberg |
Wheaton, IL 60187 |
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K&L Gates LLP |
(Name and Address of Agent for Service) |
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70 W. Madison Street, Suite 3100 |
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Chicago, IL 60602 |
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
It is proposed that this filing will become effective (check appropriate box) |
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Immediately upon filing pursuant to paragraph (b) of Rule 485. |
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On March 1, 2013 pursuant to paragraph (b) of Rule 485. |
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60 days after filing pursuant to paragraph (a)(1) of Rule 485. |
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On (date) pursuant to paragraph (a) of Rule 485. |
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75 days after filing pursuant to paragraph (a)(2) of Rule 485. |
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On [date] pursuant to paragraph (a) of Rule 485. |
PowerShares India Exchange-Traded Fund Trust
PowerShares India Portfolio
(NYSE Arca, Inc. PIN)
March 1, 2013
The U.S. Securities and Exchange Commission ("SEC") has not approved or disapproved these securities or passed upon the accuracy or adequacy of this Prospectus. Any representation to the contrary is a criminal offense.
Table of Contents
3 |
Summary Information |
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10 |
Additional Information About the Fund's Strategies and Risks |
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23 |
Tax-Advantaged Structure of ETFs |
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23 |
Portfolio Holdings |
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23 |
Management of the Fund |
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25 |
How to Buy and Sell Shares |
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Frequent Purchases and Redemptions of Fund Shares |
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27 |
Dividends, Distributions and Taxes |
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31 |
Distributor |
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Net Asset Value |
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32 |
Fund Service Providers |
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32 |
Financial Highlights |
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34 |
Index Provider |
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Disclaimers |
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Premium/Discount Information |
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Other Information |
2
PowerShares
India Portfolio
Summary Information
Investment Objective
The PowerShares India Portfolio (the "Fund") seeks investment results that generally correspond (before fees and expenses) to the price and yield of the Indus India Index (the "Underlying Index").
Fund Fees and Expenses
This table describes the fees and expenses that you may pay if you buy and hold shares of the Fund ("Shares"). Investors may pay brokerage commissions on their purchases and sales of Shares, which are not reflected in the table or the example below.
Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment)
Management Fees |
0.78 |
% |
|||||
Other Expenses |
0.03 |
% |
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Total Annual Fund Operating Expenses |
0.81 |
% |
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 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 the Fund's operating expenses remain the same. This example does not include brokerage commissions that investors may pay to buy and sell Shares. Although your actual costs may be higher or lower, your costs, based on these assumptions, would be:
1 Year |
3 Years |
5 Years |
10 Years |
||||||||||||
$ |
83 |
$ |
259 |
$ |
450 |
$ |
1,002 |
Portfolio Turnover
The Fund, through its investment in the Subsidiary (as defined below), pays transaction costs, such as commissions, when it purchases and sells securities (or "turns over" its portfolio). A higher portfolio turnover will cause the Fund and the Subsidiary (as defined below), to incur additional transaction costs and may result in higher taxes when Shares are held in a taxable account. These costs, which are not reflected in Total Annual Fund Operating Expenses or in the example, may affect the
3
Fund's performance. During the most recent fiscal year, the Fund's portfolio turnover rate was 134% of the average value of its portfolio.
Principal Investment Strategies
The Fund seeks to achieve its investment objective by investing substantially all of its assets in a wholly-owned subsidiary located in the Republic of Mauritius (the "Subsidiary"), which in turn invests at least 90% of its total assets in securities of Indian companies that comprise the Underlying Index, as well as American depositary receipts ("ADRs") and global depositary receipts ("GDRs") based on the securities in the Underlying Index. Except as noted, references to the investment strategies and risks of the Fund include the investment strategies and risks of the Subsidiary.
Indus Advisors LLC (the "Index Provider") compiles the Underlying Index, which is comprised of Indian equity securities that are traded on regulated stock exchanges in India. The Underlying Index is designed to represent the large-cap segment of the Indian equity markets. The Fund, through its investment in the Subsidiary, generally invests in all of the securities comprising the Underlying Index in proportion to their weightings in the Underlying Index. The Fund anticipates that the majority of the Subsidiary's investments will be in securities that comprise the Underlying Index rather than ADRs and GDRs.
Invesco PowerShares Capital Management LLC (the "Adviser") serves as investment adviser to both the Fund and the Subsidiary. Since the Subsidiary is incorporated in the Republic of Mauritius ("Mauritius"), the Subsidiary may be eligible to obtain tax benefits under the tax treaty between Mauritius and India (the "Treaty").
Concentration Policy. The Fund will concentrate its investments (i.e., invest 25% or more of the value of its total assets) in securities of issuers in any one industry or group of industries only to the extent that the Underlying Index reflects a concentration in that industry or group of industries. The Fund will not otherwise concentrate its investments in securities of issuers in any one industry or group of industries.
Principal Risks of Investing in the Fund
The following summarizes the principal risks of the Fund.
Indian Securities Risk. Investment in Indian securities involves risks in addition to those associated with investments in securities of issuers in more developed countries, which may adversely affect the value of the Fund's assets. Such heightened risks include, among others, political and legal uncertainty, greater government control over the economy, currency fluctuations or blockage and the risk of nationalization or expropriation of assets. In addition, religious and border disputes persist in India. Moreover, India has experienced civil unrest and hostilities with neighboring countries, including Pakistan, and the Indian government has confronted separatist movements in several Indian states.
The securities market of India is considered an emerging market that is characterized by a small number of listed companies that have significantly smaller market capitalizations, greater price volatility and substantially less liquidity than companies in more developed markets. These factors, coupled with restrictions on foreign investment and other factors, limit the supply of securities available for investment by the Subsidiary. This will affect the rate at which the Subsidiary is able to invest in the securities of Indian companies, the purchase and sale prices for such
4
securities, and the timing of purchases and sales. Certain restrictions on foreign investment may decrease the liquidity of the Subsidiary's portfolio or inhibit the Fund's ability to track the Underlying Index. The Subsidiary's investments in securities of issuers located or operating in India, as well as its ability to track the Underlying Index, also may be limited or prevented, at times, due to the limits on foreign ownership imposed by the Reserve Bank of India ("RBI").
Mauritius Instability Risk. As a developing country jurisdiction, Mauritius may be subject to political and/or economic volatility from time to time, which may make its legal and political structures more uncertain than the comparable structures in developed countries. Such instability could adversely impact the Fund and the Subsidiary.
Currency Risk. Substantially all of the income that the Fund receives from the Subsidiary's investments in equity securities is in Indian 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 Fund earns the income at the foreign exchange rate in effect on that date. Therefore, if the value of the Indian 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 Subsidiary may be required to liquidate securities to make distributions if the Fund has insufficient cash in U.S. dollars to meet distribution requirements. Moreover, the Fund may incur costs in connection with conversions between U.S. dollars and rupees. Because the Fund's net asset value ("NAV") is determined in U.S. dollars, the Fund's NAV could decline if the Indian rupee depreciates against the U.S. dollar, even if the value of the Subsidiary's holdings, measured in rupees, increases.
Regulatory Risk. The Adviser is registered as a foreign institutional investor ("FII") with the Securities and Exchange Board of India ("SEBI"), and the Subsidiary is registered as a sub-account with the SEBI to obtain certain benefits relating to the Subsidiary's ability to make and dispose of investments. There can be no assurances that the Indian regulatory authorities will continue to grant such qualifications, and the loss of such qualifications could adversely impact the ability of the Subsidiary to make and dispose of investments in India.
ADR and GDR Risk. ADRs are certificates that evidence ownership of shares of a foreign issuer and are alternatives to purchasing directly the underlying foreign securities in their national markets and currencies. GDRs are certificates issued by an international bank that generally are traded and denominated in the currencies of countries other than the home country of the issuer of the underlying shares. ADRs and GDRs may be subject to certain of the risks associated with direct investments in the securities of foreign companies, such as currency, political, economic and market risks, because their values depend on the performance of the non-dollar denominated underlying foreign securities.
Certain countries may limit the ability to convert ADRs into the underlying foreign securities and vice versa, which may cause the securities of the foreign company to trade at a discount or premium to the market price of the related ADR. ADRs may be purchased through "sponsored" or "unsponsored" facilities. A sponsored facility is established jointly by a depositary and the issuer of the underlying security. A depositary may establish an unsponsored facility without participation by the issuer of the deposited security. Unsponsored receipts may involve higher expenses and may be less liquid. Holders of unsponsored ADRs generally bear all the costs of such facilities, and the depositary of an unsponsored facility frequently is under no obligation to distribute shareholder communications received from the issuer of the
5
deposited security or to pass through voting rights to the holders of such receipts in respect of the deposited securities.
GDRs can involve currency risk since, unlike ADRs, they may not be U.S. dollar-denominated. Because the Fund's NAV is determined in U.S. dollars, the Fund's NAV could decline if the currency of the non-U.S. market in which the Fund invests depreciates against the U.S. dollar, even if the value of the Fund's holdings, measured in the foreign currency, increases.
Equity Risk. Equity risk is the risk that the value of the securities the Subsidiary holds will fall due to general market and economic conditions, perceptions regarding the industries in which the issuers of securities the Subsidiary holds participate or factors relating to specific companies in which the Subsidiary invests. For example, an adverse event, such as an unfavorable earnings report, may depress the value of securities the Subsidiary holds; the price of securities may be particularly sensitive to general movements in the stock market; or a drop in the stock market may depress the price of most or all of the securities the Subsidiary holds. In addition, securities in the Subsidiary's portfolio may decline in price if the issuer fails to make anticipated dividend payments because, among other reasons, the issuer of the security experiences a decline in its financial condition.
Industry Concentration Risk. In following its methodology, the Underlying Index from time to time may be concentrated to a significant degree in securities of issuers located in a single industry or sector. To the extent that the Underlying Index concentrates in the securities of issuers in a particular industry or sector, the Fund will also concentrate its investments to approximately the same extent. By concentrating its investments in an industry or sector, the Fund may face more risks than if it were diversified broadly over numerous industries or sectors. Such industry-based risks, any of which may adversely affect the companies in which the Fund invests, may include, but are not limited to, the following: general economic conditions or cyclical market patterns that could negatively affect supply and demand in a particular industry; competition for resources, adverse labor relations, political or world events; obsolescence of technologies; and increased competition or new product introductions that may affect the profitability or viability of companies in an industry. In addition, at times, an industry or sector may be out of favor and underperform other industries or the market as a whole.
Small and Medium Capitalization Company Risk. Investing in securities of small and medium capitalization companies involves greater risk than customarily is associated with investing in larger, more established companies. These companies' securities may be more volatile and less liquid than those of more established companies. These securities may have returns that vary, sometimes significantly, from the overall securities market. Often small and medium capitalization companies and the industries in which they focus are still evolving and, as a result, they may be more sensitive to changing market conditions.
Market Risk. Securities in the Underlying Index are subject to market fluctuations. You should anticipate that the value of the Shares will decline, more or less, in correlation with any decline in value of the securities in the Underlying Index.
Market Trading Risk. The Fund, through its Subsidiary, faces numerous market trading risks, including the potential lack of an active market for the Shares, losses from trading in secondary markets, and disruption in the creation/redemption process of the Fund. Any of these factors may lead to the Shares trading at a premium or discount to the Fund's NAV.
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Cash Transaction Risk. Unlike most exchange-traded funds ("ETFs"), the Fund currently intends to effect creations and redemptions principally for cash, rather than principally for in-kind securities, because of the nature of the Subsidiary's investments. As such, investments in Shares may be less tax efficient than investments in conventional ETFs.
Portfolio Turnover Risk. The Fund may engage in frequent trading of its portfolio securities in connection with the rebalancing or adjustment of the Underlying Index. A portfolio turnover rate of 200%, for example, is equivalent to the Fund buying and selling all of its securities two times during the course of a year. A high portfolio turnover rate (such as 100% or more) could result in high brokerage costs for the Fund. A high portfolio turnover rate can result in an increase in taxable capital gains distributions to the Fund's shareholders and an increased likelihood that the capital gains will be taxable at ordinary rates.
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 and Subsidiary incur operating expenses not applicable to the Underlying Index and incur costs in buying and selling securities, especially when rebalancing the Subsidiary's securities holdings to reflect changes in the composition of the Underlying Index. Because the Fund issues and redeems Creation Units (as defined below) principally for cash, the Subsidiary will incur higher costs in buying and selling securities than if the Fund issued and redeemed Creation Units principally in-kind. In addition, the performance of the Fund and the Underlying Index may vary due to asset valuation differences and differences between the Subsidiary's portfolio and the Underlying Index resulting from legal restrictions, cost or liquidity constraints.
Index Risk. Unlike many investment companies, the Fund and the Subsidiary do not utilize an investing strategy that seeks returns in excess of the Underlying Index. Therefore, they would not necessarily buy or sell a security unless that security is added or removed, respectively, from the Underlying Index, even if that security generally is underperforming.
Non-Diversified Fund Risk. Because the Fund is non-diversified and can invest a greater portion of its assets in securities of individual issuers than can a diversified fund, changes in the market value of a single investment could cause greater fluctuations in Share price than would occur in a diversified fund. This may increase the Fund's volatility and cause the performance of a relatively small number of issuers to have a greater impact on the Fund's performance.
Issuer-Specific Changes. The value of an individual security or particular type of security may be more volatile than the market as a whole and may perform differently from the value of the market as a whole.
The Shares will change in value, and you could lose money by investing in the Fund. The Fund may not achieve its investment objective.
Performance
The bar chart below shows how the Fund has performed. The table below the bar chart shows the Fund's average annual total returns (before and after taxes). The bar chart and table provide an indication of the risks of investing in the Fund by showing how the Fund's total return has varied from year to year and by showing how the Fund's average annual total returns compared with broad measures of market performance and additional indexes with characteristics relevant to the Fund. Although the information shown in the bar chart and the table gives you some idea of the risks involved in investing in the Fund, the Fund's past performance (before
7
and after taxes) is not necessarily indicative of how the Fund will perform in the future. Updated performance information is available online at www.InvescoPowerShares.com.
Annual Total ReturnsCalendar Years
Best Quarter |
Worst Quarter |
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52.55% (2nd Quarter 2009) |
(19.44)% (3rd Quarter 2011) |
Average Annual Total Returns for the Periods Ended December 31, 2012
After-tax returns in the table below are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor's tax situation and may differ from those shown, and after-tax returns shown are not relevant to investors who hold Shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. In the event of negative performance displayed in the table below, the Fund's returns after taxes on distributions and sale of Shares are calculated assuming that an investor has sufficient capital gains of the same character from other investments to offset any capital losses from the sale of Shares so that the investor may deduct the losses in full. As a result, the Fund's returns after taxes on distributions and sale of Shares may exceed the Fund's returns before taxes and/or returns after taxes on distributions.
1 Year |
Since Inception
(03/05/08) |
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Return Before Taxes |
13.52 |
% |
(5.56 |
)% |
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Return After Taxes on Distributions |
13.35 |
% |
(5.65 |
)% |
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Return After Taxes on Distributions and Sale of Fund Shares |
9.08 |
% |
(4.63 |
)% |
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Indus India Index
(reflects no deduction for fees, expenses or taxes) |
15.89 |
% |
(3.70 |
)% |
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BSE SENSEX Index
(reflects no deduction for fees, expenses or taxes) |
24.46 |
% |
(2.46 |
)% |
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MSCI India Index
(reflects no deduction for fees, expenses or taxes) |
25.97 |
% |
(2.52 |
)% |
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S&P 500
®
Index
(reflects no deduction for fees, expenses or taxes) |
16.00 |
% |
3.68 |
% |
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Management of the Fund
Investment Adviser. Invesco PowerShares Capital Management LLC (the "Adviser").
Portfolio Managers. The following individuals are responsible jointly and primarily for the day-to-day management of the Fund's portfolio:
Name |
Title with Adviser/Trust |
Date Began
Managing the Fund |
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Peter Hubbard |
Vice President and Director of
Portfolio Management of the Adviser and Vice President of the Trust |
Since Inception |
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Joshua Betts |
Vice President and Portfolio Manager
of the Adviser |
November 2008 |
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Brian McGreal |
Vice President and Portfolio Manager
of the Adviser |
August 2008 |
Purchase and Sale of Shares
The Fund issues and redeems Shares at NAV only with authorized participants ("APs") and only in large blocks of 50,000 Shares (each block of Shares is called a "Creation Unit"), or multiples thereof ("Creation Unit Aggregations"), in exchange for the deposit or delivery of cash. Except when aggregated in Creation Units, the Shares are not redeemable securities of the Fund.
Individual Shares may be purchased and sold only on a national securities exchange through brokers. Shares are listed for trading on NYSE Arca, Inc. ("NYSE Arca" or the "Exchange") and because the Shares will trade at market prices rather than NAV, Shares may trade at prices greater than NAV (at a premium), at NAV, or less than NAV (at a discount).
Tax Information
The Fund's distributions generally will be taxable as ordinary income or capital gains. A sale of Shares may result in capital gain or loss.
9
Additional Information About the Fund's Strategies and Risks
Principal Investment Strategies
The Fund, through its investment in the Subsidiary, will invest at least 90% of its total assets in securities that comprise the Underlying Index, as well as ADRs and GDRs based on securities in the Underlying Index. The Fund, through its investment in the Subsidiary, using an "indexing" investment approach, seeks to replicate, before fees and expenses, the performance of the Underlying Index. The Adviser seeks 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 represent perfect correlation. Another means of evaluating the relationship 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 its Underlying Index's returns.
Because the Fund, through the Subsidiary, uses an indexing approach to try to achieve its investment objective, the Fund does not take temporary defensive positions during periods of adverse market, economic or other conditions.
The Subsidiary generally invests in all of the securities comprising the Underlying Index in proportion to their weightings in the Underlying Index. However, under various circumstances, it may not be possible or practicable to purchase all of those securities in those same weightings. In those circumstances, the Subsidiary may purchase a sample of securities in the Underlying Index. There also may be instances in which the Adviser may choose to (i) overweight a security in the Underlying Index, (ii) purchase securities not in the Underlying Index that the Adviser believes are appropriate to substitute for certain securities in the Underlying Index or (iii) utilize various combinations of other available investment techniques to seek to track the Underlying Index. The Subsidiary may sell securities that are represented in the Underlying Index in anticipation of their removal from the Underlying Index or purchase securities not represented in the Underlying Index in anticipation of their addition to the Underlying Index.
Additional information about the construction of the Underlying Index is set forth below.
Indus India Index
The Underlying Index is designed to represent the large-cap segment of the Indian equity markets. The Underlying Index has 50 constituents, spread among the following sectors: Information Technology, Health Sciences, Financial Services, Heavy Industry, Consumer Products and Other. An index committee, comprised of representatives of the Index Provider and members of academia specializing in emerging markets, supervises the Underlying Index.
The Underlying Index is constructed using a rules-based methodology. An important criterion for ranking the companies for potential selection within the Underlying Index is a proprietary methodology developed by the Index Provider, known as "IndusCap." The RBI, the Indian counterpart of the Federal Reserve Bank in the
10
United States, 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%, which may be increased up to the foreign direct investment limit applicable to the sector to which the relevant Indian company belongs. Some companies have a limit of 10%; however, many companies have applied for, and received, regulatory approval of higher limits, including, in a few cases, a limit of 100%, which means no limit at all. SEBI, the Indian counterpart of the SEC in the United States, monitors foreign holdings in each security, and periodically announces (a) when the current foreign holdings reach the respective "caution" levels, 2% below the foreign ownership limits; and (b) changes to foreign holdings limits. IndusCap measures the capitalization in a company that is available for foreign ownership derived from (a) total capitalization, (b) foreign holdings percentage limits, if any, (c) foreign holdings outside of the Subsidiary, 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") is re-formulated by the Index Provider (a) to include 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; and (b) to exclude (i) such companies, if any, that have had adverse regulatory actions against them in the most recent five years; and (ii) such companies, if any, whose liquidity in the traded exchange(s) has been below certain stated values. From this Indus Universe, the Index Provider chooses the securities of the 50 companies with the largest IndusCap values as the components of the Underlying Index. The Index Provider then calculates the weight of each security in the Underlying Index based on (a) the respective IndusCap values of the securities of the selected 50 companies, (b) certain diversification rules under U.S. tax laws and European Union laws, and (c) sector limits (no more than 40% of the Underlying Index's assets will be invested in any one of the above-named sectors).
The Index Provider generally adjusts the Underlying Index quarterly on the last days of January, April, July and October, and the adjusted Underlying Index becomes effective on the second business day following the respective adjustment dates. 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 (i.e., shares that are not available in the secondary market). 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 (a) reaches its limit, or "caution" level, on foreign ownership on any day during the quarter, or (b) becomes subject to any adverse regulatory action, the Index Provider will remove that security from the Underlying Index on that day and distribute its weight on that day among all remaining securities in the Underlying Index in proportion to their weights in the Underlying Index on that day. Valuation data regarding the Underlying Index is available via Bloomberg, L.P. and Reuters.
Standard & Poor's, a division of The McGraw-Hill Companies, Inc., calculates the value of the Underlying 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, NYSE Arca publishes, at 15-second intervals, the indicative NAV of the Fund taking into account the fluctuations in the exchange rates between the Indian rupee and the U.S. dollar.
11
Principal Risks of Investing in the Fund
The following provides additional information about certain of the principal risks identified under "Principal Risks of Investing in the Fund" in the Fund's "Summary Information" section.
Indian Securities Risk
Investment in Indian securities involves risks in addition to those associated with investments in securities of issuers in more developed countries, which may adversely affect the value of the Fund's assets. Such heightened risks include, among others, political and legal uncertainty, greater government control over the economy, greater risk of hyperinflation, currency fluctuations and/or currency devaluations or blockage of currency movements or repatriation of capital invested and the risk of nationalization or expropriation of assets. Moreover, India has experienced civil unrest and hostilities with neighboring countries, including Pakistan, and the Indian government has confronted separatist movements in several Indian states. In addition, religious and border disputes persist in India. Despite measures to ease tensions, that environment remains volatile. Escalation of tensions to conflict, particularly a threat of deployment of nuclear weapons, could destabilize the broader region and materially hinder the development of the Indian economy.
The securities market of India is considered an emerging market that is characterized by a small number of listed companies with significantly smaller market capitalization, greater price volatility, lower trading volumes and substantially less liquidity than more developed markets. These factors, coupled with restrictions on foreign investment and other factors, limit the supply of securities available for investment by the Subsidiary. This will affect the rate at which the Subsidiary is able to invest in the securities of Indian companies, the purchase and sale prices for such securities, and the timing of purchases and sales. Certain restrictions on foreign investment may decrease the liquidity of the Subsidiary's portfolio or inhibit the Fund's ability to track the Underlying Index.
Brokerage firms in India may be fewer in number, less established than brokerage firms in more developed markets and subject to no or limited regulatory supervision. Since the Subsidiary will need to effect some or all of its securities transactions through these brokerage firms, the Fund is subject to the risk that these brokerage firms will not be able to fulfill their obligations to the Subsidiary (counterparty risk). This risk is magnified to the extent the Subsidiary effects securities transactions through a single brokerage firm or a limited number of brokerage firms.
In the event of the insolvency of an Indian brokerage firm, the Fund may lose some or all of the assets held by that brokerage firm as collateral or otherwise.
The Subsidiary may, directly or through such brokerage firm, use a professional central counterparty to enter into securities transactions to reduce its exposure to market counterparties. Such central counterparty may be subject to no or limited regulatory supervision. The Fund may suffer losses in the event of failure by a central counterparty, or other relevant market participants, to complete a transaction. In the event of the insolvency of a central counterparty, the Fund may lose some or all of the assets held by such counterparty as collateral or otherwise.
The Subsidiary may hold its cash and securities with Indian banks and/or Indian depositaries, which may be recently established, new to the foreign custody business and subject to no or limited regulatory supervision. The Indian laws and regulatory system may not offer investors protection to the same standard as under similar laws in the U.S. or in the jurisdiction of other developed economies.
12
Under certain trading conditions, it may be difficult or impossible for the Subsidiary to liquidate its position in an Indian security. This may occur, for example, at times of rapid price movement if the price rises or falls in one trading session to such an extent that under the rules of the relevant exchange trading of the relevant securities is suspended or restricted.
The Indian government has exercised, and continues to exercise, significant influence over many aspects of the Indian 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 Subsidiary's portfolio. 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 therefore the Indian economy is more susceptible to adverse changes in weather. Furthermore, monsoons and other natural disasters in India and surrounding regions also can affect the value of the Subsidiary's investments.
Inflation in India remains at very high levels. High inflation may lead to the adoption of corrective measures designed to moderate growth, regulate prices of staples and other commodities and otherwise contain inflation. Such measures could inhibit economic activity in India and adversely affect the Fund's investments. Inflation may also directly affect the investee companies by increasing operating costs and/or reducing the returns from such investments. In addition, high inflation may adversely affect the taxation of Indian investee companies.
Uncertainty regarding inflation and currency exchange rates, as well as the possibility that future harmful political actions will be taken by the Indian government and the existence of religious and ethnic unrest, could negatively impact the Indian economy, which likely would adversely affect the performance of the Indian companies in which the Subsidiary invests.
Foreign investment in securities of issuers located or operating in India may be limited or prevented at times due to the limits on foreign ownership imposed by the RBI and the monitoring of foreign holdings and periodic announcement of current foreign ownership limitations and changes to such limits by the SEBI. In addition, certain restrictions on foreign investment may decrease the liquidity of the Subsidiary's portfolio or inhibit the Fund's ability to track the Underlying Index. The Subsidiary may be unable to buy or sell securities or receive full value for such securities.
Additionally, investment in India may be subject to a greater degree of risk associated with governmental approval in connection with the repatriation of investment income, capital or the proceeds of sales of securities by foreign investors. Moreover, there is the risk that if India's balance of payments declines, the government may impose temporary restrictions on foreign capital remittances. Consequently, the Fund could be adversely affected by delays in, or a refusal to grant, required governmental approval for repatriation of capital, as well as by the application to the Subsidiary of any restrictions on investments. The RBI has expressed concerns on the unprecedented inflow of foreign investments much beyond India's current account deficits. As a measure for containment, it has indicated that a shift towards a capital controls regime could be considered. There is a potential risk of how such capital control will be effected, for example, by way of a transaction tax, tightening the sector-wise caps for foreign ownership, regulating the instruments by which foreign investments are structured, or otherwise. Any such
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capital controls regime may inhibit the Fund's ability to track the Underlying Index and may adversely affect the Subsidiary's investments. Furthermore, investments in India may require the Fund and/or Subsidiary to adopt special procedures, seek local government approvals or take other actions, each of which may involve additional costs to the Fund or the Subsidiary.
Securities laws in India are relatively new and unsettled and, consequently, there is a risk of rapid and unpredictable change in laws regarding foreign investment, securities regulation, title to securities and shareholder rights. Accordingly, new or amended laws and regulations may adversely affect foreign investors. The laws relating to limited liability of corporate shareholders, fiduciary duties of officers and directors and the bankruptcy of state enterprises generally are less developed than or different from such laws in the U.S. 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 or Subsidiary may have against an issuer or its directors and officers. Even if the Fund or Subsidiary initiates a suit against the issuer in a U.S. court, it may not be possible for the Fund or Subsidiary to effect service of process in India. Furthermore, if the Fund or Subsidiary obtains a judgment in a U.S. court, it may be difficult to enforce such judgment in India. In addition, a party seeking to enforce a foreign judgment in India also is required to obtain approval from the RBI to execute such judgment to repatriate any amount recovered outside of India.
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 or the current Treaty with Mauritius be modified. See "Tax Risk" below.
Settlement of securities transactions in India is subject to risk of loss, may be delayed and generally is less efficient than in the U.S. 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 Shares likewise could become impaired. Each of these events could have a negative impact on the liquidity and value of the Subsidiary's investments. To mitigate these risks, the Subsidiary may maintain a higher cash position than it otherwise would, or the Subsidiary may have to sell more liquid securities that it would not otherwise choose to sell, possibly diluting its return and inhibiting the Fund's ability to track the Underlying Index.
In recent years, exchange-listed companies in the technology sector and related sectors (such as software) have represented a significant portion of the total capitalization of the Indian market. The value of these companies generally will 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 India are underdeveloped comparatively, and stockbrokers and other intermediaries may not perform as well as their counterparts in the U.S. and other more developed securities markets. In some cases, physical delivery of securities in small lots has 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 the Fund's performance.
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Mauritius Instability Risk
As a developing country, Mauritius may be subject to political and/or economic volatility from time to time, which may make its legal and political structures more uncertain than the comparable structures in developed countries. Such instability could adversely impact the Subsidiary and the Fund.
Currency Risk
The Subsidiary, invests in Indian rupee-denominated equity securities of Indian issuers. Because the Fund's NAV is determined in U.S. dollars, the Fund's NAV could decline if the Indian rupee depreciates against the U.S. dollar, even if the value of the Subsidiary's holdings, measured in Indian rupees, increases.
In addition, substantially all of the income that the Subsidiary receives is in Indian 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 Indian rupee falls relative to the U.S. dollar between the earning of the income and the time at which the Subsidiary converts the Indian rupees to U.S. dollars, the Subsidiary may be required to liquidate securities 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 Indian 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 to resell immediately that currency to the dealer. The Fund will conduct its foreign currency exchange transactions on a spot (i.e., cash) basis at the spot rate prevailing in the foreign currency exchange market. Because the Fund issues and redeems Creation Units principally for cash, these risks may be greater than would be the case if the Fund issued and redeemed Creation Units in-kind.
Regulatory Risk
The Adviser is registered as a FII with the SEBI and the Subsidiary is registered as a sub-account with the SEBI to obtain certain benefits relating to the Subsidiary's ability to make and dispose of investments. There can be no assurances that the Indian regulatory authorities will continue to grant such qualifications or allow those qualifications to continue to exist, and the loss of such qualifications could adversely impact the ability of the Subsidiary to make and dispose of investments in India.
The Subsidiary's investments will be made in accordance with investment restrictions prescribed under FII regulation. If new policy announcements or regulations in India are made which require retrospective changes in the structure or operations of the Fund, these may adversely impact the performance of the Fund.
The Subsidiary holds a global business license issued by the Financial Services Commission of Mauritius, which is renewable annually. While it is expected that the global business license will be renewed as a matter of course, the renewal of the license by the Financial Services Commission of Mauritius is not guaranteed. Failure to renew the global business license could result in the Subsidiary being required to cease its activities taking place in Mauritius.
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ADR and GDR Risk
ADRs are certificates that evidence ownership of shares of a foreign issuer and are alternatives to purchasing directly the underlying foreign securities in their national markets and currencies. GDRs are certificates issued by an international bank that generally are traded and denominated in the currencies of countries other than the home country of the issuer of the underlying shares. ADRs and GDRs may be subject to certain of the risks associated with direct investments in the securities of foreign companies, such as currency, political, economic and market risks, because their values depend on the performance of the non-dollar denominated underlying foreign securities.
Certain countries may limit the ability to convert ADRs into the underlying foreign securities and vice versa, which may cause the securities of the foreign company to trade at a discount or premium to the market price of the related ADR. ADRs may be purchased through "sponsored" or "unsponsored" facilities. A sponsored facility is established jointly by a depositary and the issuer of the underlying security. A depositary may establish an unsponsored facility without participation by the issuer of the deposited security. Unsponsored receipts may involve higher expenses and may be less liquid. Holders of unsponsored ADRs generally bear all the costs of such facilities, and the depositary of an unsponsored facility frequently is under no obligation to distribute shareholder communications received from the issuer of the deposited security or to pass through voting rights to the holders of such receipts in respect of the deposited securities.
GDRs can involve currency risk since, unlike ADRs, they may not be U.S. dollar-denominated. Because the Fund's NAV is determined in U.S. dollars, the Fund's NAV could decline if the currency of the non-U.S. market in which the Fund invests depreciates against the U.S. dollar, even if the value of the Fund's holdings, measured in the foreign currency, increases.
Equity Risk
Equity risk is the risk that the value of the securities the Subsidiary holds will fall due to general market and economic conditions, perceptions regarding the industries in which the issuers of securities the Subsidiary holds participate or factors relating to specific companies in which the Subsidiary invests. For example, an adverse event, such as an unfavorable earnings report, may depress the value of securities the Subsidiary holds; the price of securities may be particularly sensitive to general movements in the stock market; or a drop in the stock market may depress the price of most or all of the securities the Subsidiary holds. In addition, securities in the Subsidiary's portfolio may decline in price if the issuer fails to make anticipated dividend payments because, among other reasons, the issuer of the security experiences a decline in its financial condition.
Industry Concentration Risk
In following its methodology, the Fund's Underlying Index from time to time may be concentrated to a significant degree in securities of issuers located in a single industry or sector. As a result, the Fund may also concentrate its investments in such industries or sectors to approximately the same extent. By concentrating its investments in an industry or group of industries, the Fund faces more risks than if it were diversified broadly over numerous industries or sectors. Such industry-based risks, any of which may adversely affect the companies in which the Subsidiary invests, may include, but are not limited to, the following: general economic conditions or cyclical market patterns that could negatively affect supply and
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demand in a particular industry; competition for resources, adverse labor relations, political or world events; obsolescence of technologies; and increased competition or new product introductions that may affect the profitability or viability of companies in an industry. In addition, at times, an industry or sector may be out of favor and underperform other industries or the market as a whole. Information about the Fund's exposure to a particular industry is available in the Fund's Annual and Semi-Annual Reports to Shareholders, as well as on its Form N-Q as filed with the Securities and Exchange Commission.
Small and Medium Capitalization Company Risk
Investing in securities of small and medium capitalization companies involves greater risk than customarily is associated with investing in larger, more established companies. These companies' securities may be more volatile and less liquid than those of more established companies. These securities may have returns that vary, sometimes significantly, from the overall securities market. Often small and medium capitalization companies and the industries in which they focus are still evolving and, as a result, they may be more sensitive to changing market conditions.
Market Risk
Securities in the Underlying Index are subject to market fluctuations. You should anticipate that the value of the Shares will decline, more or less, in correlation with any decline in value of the securities in the Underlying Index.
Market Trading Risk
The Fund, through the Subsidiary, faces numerous market trading risks, including the potential lack of an active market for the Shares, losses from trading in secondary markets, and disruption in the creation/redemption process of the Fund. Any of these factors may lead to the Shares trading at a premium or discount to the Fund's NAV.
Cash Transaction Risk
Unlike most ETFs, the Fund currently intends to effect creation and redemptions principally for cash, rather than principally for in-kind securities, because of the nature of the Subsidiary's investments. ETFs generally are able to make in-kind redemptions and avoid being taxed on gain on the distributed portfolio securities at the fund level. Because the Fund currently intends to effect redemptions principally for cash, the Subsidiary may be required to sell portfolio securities to obtain the cash needed to distribute redemption proceeds. The Fund may recognize a capital gain on these sales that might not have been incurred if the Fund had made a redemption in-kind, and this may decrease the tax efficiency of the Fund compared to ETFs that utilize an in-kind redemption process.
Portfolio Turnover Risk
The Fund, through the Subsidiary, may engage in frequent trading of its portfolio securities in connection with the rebalancing or adjustment of its Underlying Index. A portfolio turnover rate of 200%, for example, is equivalent to the Fund buying and selling all of its securities two times during the course of a year. A high portfolio turnover rate (such as 100% or more) could result in high brokerage costs for the Fund. A high portfolio turnover rate may result in an increase in taxable capital gains distributions to the Fund's shareholders.
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Non-Correlation Risk
The return of the Fund may not match the return of the Underlying Index for a number of reasons. For example, the Fund and Subsidiary incur operating expenses not applicable to the Underlying Index, and incur costs in buying and selling securities, especially when rebalancing the Subsidiary's securities holdings to reflect changes in the composition of the Underlying Index. Because the Fund issues and redeems Creation Units principally for cash, the Subsidiary will incur higher costs in buying and selling securities than if the Fund issued and redeemed Creation Units in-kind. In addition, the performance of the Fund and the Underlying Index may vary due to asset valuation differences and differences between the Subsidiary's portfolio and the Underlying Index resulting from legal restrictions, cost or liquidity constraints. The Fund may fair value certain of the securities the Subsidiary holds. To the extent the Fund calculates its NAV based on fair value prices, the Fund's ability to track the Underlying Index may be adversely affected.
Since the Underlying Index is not subject to the tax diversification requirements to which the Fund must adhere, the Subsidiary may be required to deviate its investments from the securities and relative weightings of the Underlying Index. The Subsidiary may not invest in certain securities included in the Underlying Index due to liquidity constraints. Liquidity constraints may delay the Subsidiary's purchase or sale of securities included in the Underlying Index.
The Subsidiary may not invest in certain securities included in the Underlying Index that are traded in India due to issues such as legal and regulatory rules and limitations imposed by India or other trading restrictions, cost or liquidity constraints.
The investment activities of one or more of the Adviser's affiliates, including other subsidiaries of the Adviser's parent company, Invesco Ltd., for their proprietary accounts and for client accounts also may adversely impact the Fund's ability to track the Underlying Index. For example, in regulated industries, certain emerging or international markets, and corporate and regulatory ownership definitions, there may be limits on the aggregate amount of investment by affiliated investors that may not be exceeded, or that may not be exceeded without the grant of a license or other regulatory or corporate consent, or, if exceeded, may cause the Adviser, the Fund, the Subsidiary or other client accounts to suffer disadvantages or business restrictions. As a result, the Subsidiary may be restricted in its ability to acquire particular securities due to positions held by the Adviser's affiliates.
The Adviser may not fully invest the Fund at times, either as a result of cash flows into the Fund or the need to reserve cash the Fund holds to meet redemptions and expenses. If the Subsidiary utilizes a sampling approach, the Fund's return may not correlate as well with the return of the Underlying Index as would be the case if the Subsidiary purchased all of the securities in the Underlying Index with the same weightings as its Underlying Index.
Index Risk
Unlike many investment companies, the Fund and the Subsidiary do not utilize an investing strategy that seeks returns in excess of the Underlying Index. Therefore, they would not necessarily buy or sell a security unless that security is added or removed, respectively, from the Underlying Index, even if that security generally is underperforming.
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Non-Diversified Fund Risk
Because the Fund is non-diversified and can invest, through its investment in the Subsidiary, a greater portion of its assets in securities of individual issuers than can a diversified fund, changes in the market value of a single investment could cause greater fluctuations in Share price than would occur in a diversified fund. This may increase the Fund's volatility and cause the performance of a relatively small number of issuers to have a greater impact on the Fund's performance.
Issuer-Specific Changes
The value of an individual security or particular type of security may be more volatile than the market as a whole and may perform differently from the value of the market as a whole.
Non-Principal Investment Strategies
The Subsidiary, after investing 90% of its total assets in securities that comprise its Underlying Index, may invest its remaining assets in securities not included in the Underlying Index, in money market instruments, including repurchase agreements or other funds which invest exclusively in money market instruments (subject to applicable limitations under the Investment Company Act of 1940, as amended (the "1940 Act"), or exemptions therefrom), participation notes ("P-notes"), other exchange-traded instruments, convertible securities and structured notes (notes on which the amount of principal repayment and interest payments is based on the movement of one or more specified factors, such as the movement of a particular security or securities index). The Fund may use convertible securities and structured notes to seek performance that corresponds to the Underlying Index and in managing cash flows. The Adviser anticipates that it may take approximately four business days (each day that the New York Stock Exchange, Inc. ("NYSE") is open) for the Adviser to fully reflect the additions and deletions to the Fund's Underlying Index in the portfolio composition of the Subsidiary.
The Fund, through its investment in the Subsidiary, normally will invest at least 80% of its total assets in securities of Indian companies (the "80% investment policy"). The Fund considers securities of Indian companies to be those securities that comprise its Underlying Index.
Each of the policies described herein, including the Fund's investment objective and its 80% investment policy constitutes a non-fundamental policy that may be changed by the Board of Trustees (the "Board") of PowerShares India Exchange-Traded Fund Trust (the "Trust") without shareholder approval, upon 60 days' prior written notice to shareholders. The fundamental and non-fundamental policies of the Fund are set forth in the Trust's Statement of Additional Information ("SAI") under the section "Investment Restrictions."
Borrowing Money
The Fund may borrow money from a bank up to a limit of 10% of the value of its total assets, but only for temporary or emergency purposes.
Additional Risks of Investing in the Fund
The following provides additional risk information regarding investing in the Fund.
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Tax Risk
The Subsidiary is a wholly-owned subsidiary of the Fund. Being incorporated in Mauritius, the Subsidiary may be eligible to receive certain benefits from favorable tax treatment by the Indian government pursuant to the Treaty. The Supreme Court of India has upheld the validity of the Treaty in response to a challenge in a lower court contesting the Treaty's applicability to entities such as the Subsidiary; however, there can be no assurance that any future challenge will result in a favorable outcome. Unconfirmed press reports state that India and Mauritius are in the process of re-negotiating the Treaty, which could change the tax treatment of investments by Mauritius-based companies, such as the Subsidiary, in India. Any change in the provisions of the Treaty or in its applicability to the Subsidiary 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.
While the Subsidiary currently holds a Tax Residency Certificate ("TRC") in Mauritius and is expected to renew it on an annual basis, there is no guarantee that such renewal would be granted by the Mauritius Revenue Authority. Were the Subsidiary be found not to be a tax resident in Mauritius, the Subsidiary would no longer be eligible for the benefits under certain tax treaties, which consequently may have an adverse impact on the taxability of the Subsidiary and the returns to the Fund's investors.
The Indian Finance Act 2012 has introduced changes to the Indian Income Tax Act 1961 ("ITA"), which specify that only those tax residency certificates that contain certain prescribed information shall be eligible to receive the benefit under the Treaty. Although the Indian tax authorities have provided guidance as to the requisite information to be provided, it is not certain that the Mauritius Revenue Authority will amend the form of the TRC to conform to the requirements under Indian law. If the TRC issued by the Mauritius Revenue Authority does not include the requisite information, it is possible that the Indian tax authorities may not allow the Subsidiary to claim benefits under the Treaty.
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.
The amendments to the ITA made by the Finance Act 2012 clarify that, where shares of a non-Indian company derive their value substantially from assets in India, the transfer of such shares may, for the purposes of Indian tax rules, be deemed to amount to the transfer of capital assets situated in India. The amendments to the ITA, set out in the Finance Act 2012, further provide that the term "transfer" includes a direct or an indirect disposal of an asset whether or not such transfer is dependent upon, or flows from, the transfer or redemption of shares of a non-Indian company. Consequently, it is possible that Indian tax authorities may deem there to be a tax liability upon the transfer of the Shares of the Fund on the basis that the Shares derive their value substantially from assets in India. However, there are currently no rules or guidance, for the purpose of determining possible Indian tax liability, as to the circumstances in which the shares of a non-Indian company can be said to derive their value substantially from assets in India.
The Finance Act 2012 also introduced the general anti-avoidance rules ("GAAR"). The GAAR apply where the main purpose, or one of the main proposes, of an arrangement is to avoid incurring a tax liability. The GAAR empower the Indian tax
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authorities to declare any arrangement as an "impermissible avoidance arrangement" if the arrangement has been entered into with the purpose of obtaining a tax benefit and involve any of the following elements: non arm's length dealings, misuse or abuse of the provisions of the ITA, lack of commercial substance or non-bona fide purposes. If the Indian tax authorities found the Subsidiary to have entered into an impermissible avoidance arrangement, the Subsidiary may not be permitted to receive the benefits under the Treaty. An inability by the Subsidiary to receive the tax benefits under the Treaty may have an adverse impact on the tax liabilities of the Subsidiary, and would likely have an adverse impact on the returns to the Fund's investors.
Index Rebalancing Risk
Pursuant to the methodology that the Index Provider uses to calculate and maintain the Underlying Index, a security may be removed from the Underlying Index in the event that the Underlying Index reaches certain limitations (e.g., foreign ownership limitations). As a result, the Subsidiary 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 the Underlying Index may increase significantly.
Participation Note Risk
The Fund may invest a portion of its assets in P-notes. P-notes generally are issued by banks or broker-dealers and are promissory notes that are designed to offer a return linked to the performance of a particular underlying equity security or market. The return on a P-note that is linked to a particular underlying security generally is increased to the extent of any dividends paid in connection with the underlying security. However, the holder of a P-note typically does not receive voting rights as it would if it directly owned the underlying security. P-notes constitute direct, general and unsecured contractual obligations of the banks or broker-dealers that issue them, which therefore subjects the Fund to counterparty risk, as discussed below.
Investments in P-notes involve certain risks in addition to those associated with a direct investment in the underlying foreign companies or foreign securities markets whose return they seek to replicate. For instance, there can be no assurance that there will be a trading market for a P-note or that the trading price of a P-note will equal the underlying value of the foreign company or foreign securities market that it seeks to replicate. As the purchaser of a P-note, the Fund is relying on the creditworthiness of the counterparty issuing the P-note and has no rights under a P-note against the issuer of the underlying security. Therefore, if such counterparty were to become insolvent, the Fund would lose its investment. The risk that the Fund may lose its investment due to the insolvency of a counterparty may be amplified because the Fund intends to purchase P-notes issued by as few as one issuer. In seeking to limit its counterparty risk, the Fund will limit its investment in P-notes of any one issuer to $5 million at the time of purchase and to counterparties who meet the creditworthiness standard required of issuers whose securities are eligible for investment by money market funds. P-notes also include transaction costs in addition to those applicable to a direct investment in Indian securities. In addition, the Fund's use of P-notes may cause the Fund's performance to deviate from the performance of the portion of the Underlying Index to which the Fund is gaining exposure through the use of P-notes.
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Due to liquidity and transfer restrictions, the secondary markets on which P-notes are traded may be less liquid than the markets for other securities, or may be completely illiquid, which may lead to the absence of readily available market quotations for securities in the Fund's portfolio and which also may lead to delays in the redemption of Shares. In addition, the ability of the Fund to value its securities becomes more difficult and the judgment in the application of fair value procedures (through fair value procedures adopted by the Board) may play a greater role in the valuation of the Fund's securities due to reduced availability of reliable objective pricing data. Consequently, while such determinations will be made in good faith, it nevertheless may be more difficult for the Fund to assign accurately a daily value to such securities.
Technology Sector Risk
The Subsidiary may invest a significant portion of its assets in securities issued by companies in the information technology sector. Factors such as the failure to obtain, or delays in obtaining, financing or regulatory approval, intense competition, product compatibility, consumer preferences, corporate capital expenditure, rapid obsolescence, competition from numerous alternative technologies, and research and development of new products may significantly affect the market value of securities of issuers in the technology sector. In addition, the highly competitive information technology sector may cause the prices for these products and services to decline in the future.
Software Sector Risk
Various factors may affect the software industry significantly, such as technological developments, fixed-rate pricing and the ability to attract and retain skilled employees. The success of companies in the industry is subject to the continued demand for services. For example, as product cycles shorten and manufacturing capacity increases, these companies increasingly could become subject to aggressive pricing, which hampers profitability. Changing domestic and international demand, research and development costs, availability and price of components and product obsolescence can affect the profitability of software companies. Software company stocks may experience substantial fluctuations in market price.
The market for software products is characterized by rapidly changing technology, rapid product obsolescence, cyclical market patterns, evolving industry standards and frequent new product introductions. The success of software and services companies depends substantially on the timely and successful introduction of new products. An unexpected change in one or more of the technologies affecting a company's products or in the market for products based on a particular technology could have a material adverse effect on the company's operating results.
Furthermore, there can be no assurance that the software companies will be able to respond in a timely manner to compete in the rapidly developing marketplace. There can be no assurance that competitors will not independently develop technologies that substantially are equivalent or superior to such companies' technology.
Trading Issues
Trading in Shares on NYSE Arca may be halted due to market conditions or for reasons that, in the view of NYSE Arca, make trading in Shares inadvisable. In addition, trading in Shares on NYSE Arca is subject to trading halts caused by extraordinary market volatility pursuant to NYSE Arca "circuit breaker" rules. There can be no assurance that the requirements of NYSE Arca necessary to maintain the
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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 Subsidiary's portfolio may change on days when shareholders will not be able to purchase or sell Shares.
Shares May Trade at Prices Different than NAV
The NAV of the Shares generally will fluctuate with changes in the market value of the Subsidiary's holdings. The market prices of the Shares generally will fluctuate in accordance with changes in NAV, as well as the relative supply of and demand for the Shares on NYSE Arca. The Adviser cannot predict whether the Shares will trade below, at or above their NAV. Price differences may be due largely to the fact that supply and demand forces at work in the secondary trading market for the Shares will be closely related, but not identical, to the same forces influencing the prices of the securities of the Underlying Index trading individually or in the aggregate at any point in time. In addition, disruptions to creations and redemptions or the existence of extreme market volatility may result in trading prices that differ significantly from NAV. If a shareholder purchases at a time when the market price is at a premium to the NAV or sells at a time when the market price is at a discount to the NAV, the shareholder may sustain losses.
Tax-Advantaged Structure of ETFs
Unlike interests in conventional mutual funds, which typically are bought and sold only at closing NAVs, the Shares are traded throughout the day in the secondary market on a national securities exchange on an intra-day basis. Because the Fund intends to effect creations and redemptions principally for cash, investments in Shares of the Fund may be less tax efficient than conventional ETFs.
Portfolio Holdings
A description of the Trust's policies and procedures with respect to the disclosure of the Fund's and the Subsidiary's portfolio holdings is available in the Trust's SAI, which is available at www.InvescoPowerShares.com.
Management of the Fund
Invesco PowerShares Capital Management LLC is a registered investment adviser with its offices at 301 West Roosevelt Road, Wheaton, Illinois 60187. Invesco PowerShares Capital Management LLC serves as the investment adviser to the Trust, PowerShares Actively Managed Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II and PowerShares Exchange-Traded Fund Trust, a family of ETFs, with combined assets under management of more than $29.4 billion
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as of January 31, 2013. The Trust currently is comprised of one series, the PowerShares India Portfolio.
As the Fund's and the Subsidiary's investment adviser, the Adviser has overall responsibility for selecting and continuously monitoring the Fund's and Subsidiary's investments, managing the Fund's and Subsidiary's business affairs and providing certain clerical, bookkeeping and other administrative services for the Trust.
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 extensive resources.
Portfolio Managers
Peter Hubbard, Vice President of the Trust, oversees all research, portfolio management and trading operations of the Fund. In this capacity, Mr. Hubbard oversees a team of portfolio managers (with Mr. Hubbard, the "Portfolio Managers") who are responsible for the day-to-day management of the Fund. Mr. Hubbard receives management assistance from Joshua Betts and Brian McGreal. Each Portfolio Manager is responsible for 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 Portfolio Manager has limitations on his authority for risk management and compliance purposes that the Adviser believes to be appropriate.
Peter Hubbard is a Vice President and Director 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 its inception. Mr. Hubbard has been a Portfolio Manager of the Adviser since June 2007. Mr. Hubbard was a Research Analyst for the Adviser from May 2005 to June 2007. Prior to joining the Adviser in 2005, Mr. Hubbard was employed by Ritchie Capital Management, a hedge fund operator, where he was a Research Analyst and Trader from September 2003 to May 2005.
Joshua Betts is a Vice President and 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 November 2008. Mr. Betts has been a Portfolio Manager of the Adviser since November 2008. Prior to joining the Adviser, Mr. Betts was a Regional Vice President at Claymore Securities, Inc. from May 2007 to August 2008. Prior to this, he was a Portfolio Consultant for the Adviser from June 2006 to May 2007. From September 2005 to June 2006, he was a mortgage broker for Advanced Mortgage Services.
Brian McGreal is a Vice President and 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 August 2008. Mr. McGreal has been a Portfolio Manager of the Adviser since August 2008. Prior to joining the Adviser, Mr. McGreal was an analyst for Ritchie Capital Management from May 2005 to September 2007 and a trader with SAM Investments from February 1999 to April 2005.
The Trust's SAI provides additional information about the Portfolio Managers' compensation structure, other accounts that the Portfolio Managers manage and the Portfolio Managers' ownership of Shares.
The Fund pays the Adviser a unitary management fee equal to 0.78% of its average daily net assets. Out of the unitary management fee, the Adviser pays substantially all expenses of the Fund and the Subsidiary, including the costs of transfer agency,
24
custody, fund administration, legal, audit and other services, except for the advisory fee, distribution fees, if any, brokerage expenses, taxes, Acquired Fund Fees and Expenses, if any, interest and extraordinary expenses, and the Subsidiary pays for its distribution fees (if any), brokerage expenses, taxes, interest, litigation expenses 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 to the Fund and Subsidiary.
A discussion regarding the Board's basis for approving the Investment Advisory Agreement with respect to the Fund is available in the semi-annual report to shareholders for the period ended April 30, 2012.
How to Buy and Sell Shares
The Fund issues or redeems its Shares at NAV per Share only in Creation Units or Creation Unit Aggregations.
Most investors buy and sell Shares of the Fund in secondary market transactions through brokers. Shares of the Fund are listed for trading on the secondary market on NYSE Arca. Shares can be bought and sold throughout the trading day like other publicly traded shares. There is no minimum investment. Although Shares generally are 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 Shares of the Fund trade on NYSE Arca under the symbol "PIN."
Share prices are reported in dollars and cents per Share.
APs may acquire Shares directly from the Fund, and APs may tender their Shares for redemption directly to the Fund, at NAV per share, only in Creation Units or Creation Unit Aggregations, and in accordance with procedures described in the SAI.
The Fund may liquidate and terminate at any time without shareholder approval.
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 Fund 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 securities that you hold in book entry or "street name" form.
25
Fund Share Trading Prices
The trading prices of Shares of the Fund on NYSE Arca may differ from the Fund's daily NAV. Market forces of supply and demand, economic conditions and other factors may affect the trading prices of Shares of the Fund.
The approximate value of Shares of the Fund, an amount representing on a per Share basis the sum of the current market price of the cash ("Deposit Cash") or securities ("Deposit Securities"), as applicable, accepted by the Fund in exchange for Shares of the Fund and an estimated cash component, if any, is disseminated every 15 seconds throughout the trading day through the facilities of the Consolidated Tape Association. 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 intervals. 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.
Frequent Purchases and Redemptions of Fund Shares
Shares of the Fund may be purchased and redeemed directly from the Fund only in Creation Units by APs. The vast majority of trading in Shares of the Fund occurs on the secondary market and does not involve the Fund directly. In-kind purchases and redemptions of Creation Units by APs and cash trades on the secondary market are unlikely to cause many of the harmful effects of frequent purchases and/or redemptions of Shares of the Fund. Cash purchases and/or redemptions of Creation Units, however, can result in increased tracking error, disruption of portfolio management, dilution to the Fund and increased transaction costs, which could negatively impact the Fund's ability to achieve its investment objective, and may lead to the realization of capital gains. These consequences may increase as the frequency of cash purchases and redemptions of Creation Units by APs increases. However, direct trading by APs is critical to ensuring that Shares trade at or close to NAV.
To minimize these potential consequences of frequent purchases and redemptions of Shares, the Fund employs fair valuation pricing, and imposes transaction fees on purchases and redemptions of Creation Units to cover the custodial and other costs incurred by the Fund in effecting trades. In addition, the Adviser monitors trades by APs for patterns of abusive trading and the Fund reserves the right to not accept orders from APs that the Adviser has determined may be disruptive to the management of the Fund or otherwise not in the best interests of the Fund. In recognition of the nature of the Fund's investments and that Shares are purchased and redeemed in Creation Units principally for cash, the Board has adopted policies and procedures with respect to frequent purchases and redemptions of Shares of the
26
Fund, which incorporate the practices described above, as well as additional trade monitoring for market timing activities.
Dividends, Distributions and Taxes
Ordinarily, dividends from net investment income, if any, are declared and paid quarterly by the Fund. 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 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 NYSE Arca, and
• You purchase or redeem Creation Units.
Taxes on Distributions
As stated above, dividends from net investment income, if any, ordinarily are declared and paid quarterly. The Fund also may 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 capital gains, if any, generally 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, 2013. 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 reduced tax rates applicable to long-term capital gains. Without future congressional action, the maximum rate of long-term capital gains will return to 20% in 2013, 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.
27
By law, the Fund may be required to withhold a percentage of your distributions and proceeds if you have not provided a taxpayer identification number or Social Security number.
Taxes on Exchange-Listed Share Sales and Cash Redemptions
Currently, any capital gain or loss realized upon a sale of Shares generally is 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. A redemption of your Shares for cash normally is treated as a sale for tax purposes.
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 in the securities surrendered and the cash component paid. An AP who exchanges Creation Units for securities generally will recognize a gain or loss equal to the difference between the exchanger's basis in the Creation Units and the aggregate market value of the securities received and the cash redemption amount. 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 generally is 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.
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 "Taxes" in the SAI for more information.
Other 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 Shares. Consult your personal tax advisor about the potential tax consequences of an investment in Shares under all applicable tax laws. See "Taxes" in the SAI for more information.
28
Mauritius Tax Status
The Subsidiary, a wholly-owned subsidiary of the Trust, is a tax resident of Mauritius and, being incorporated in Mauritius, the Subsidiary may be eligible to receive certain benefits under the Treaty. In light of Circular 789 of April 13, 2000 issued by the Central Board of Direct Taxes in India, the Subsidiary may be eligible for the benefits under the Treaty if it holds a valid TRC issued by the Mauritius income tax authorities. The Supreme Court of India subsequently upheld the validity of the Circular 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. The Subsidiary also has applied for and obtained a TRC from the Mauritius Revenue Authority for the purpose of the Treaty. The TRC is issued for a period of one year and thereafter renewable annually.
The Indian Finance Act 2012 has introduced changes to the ITA, which specify that only those tax residency certificates that contain certain prescribed information shall be eligible to receive the benefit under the Treaty. Although the Indian tax authorities have provided guidance as to the requisite information to be provided, it is not certain that the Mauritius Revenue Authority will amend the form of the TRC to conform to the requirements under Indian law. If the TRC issued by the Mauritius Revenue Authority does not include the requisite information, it is possible that the Indian tax authorities may not allow the Subsidiary to claim benefits under the Treaty.
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 that 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 Subsidiary outside of Mauritius, the amount of the foreign tax will be presumed conclusively to be equal to 80% of the Mauritian tax chargeable with respect to that income, which could reduce the rate of tax effectively to 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 and the Subsidiary has a valid TRC issued by the Mauritian Revenue Authority, the tax treatment in India of income derived by the Subsidiary is as follows (all tax rates indicated below are exclusive of the currently applicable surcharge of 5% on the tax for Indian companies and 2% on the tax for the Subsidiary and education cess at the rate of 3% on the amount of tax payable plus surcharge):
(i) capital gains are not subject to tax in India by virtue of certain provisions of the Treaty;
(ii) dividends from Indian companies on which dividend distribution tax has been paid are distributed to the Subsidiary free of Indian tax; and
(iii) any interest income earned on Indian securities is subject to withholding tax in India at the rate that may vary from 10% to 20%, depending on the nature of the underlying debt security.
The Subsidiary shall endeavor to (i) comply with the requirements of the Treaty, (ii) be a tax resident of Mauritius and (iii) maintain its central management and control in Mauritius, and therefore the Fund's management believes that the Subsidiary should be eligible to obtain the benefits of the Treaty. However, there can be no assurance that the Subsidiary will be granted a TRC in the future.
29
While the validity of the Treaty and its applicability to entities such as the Subsidiary 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-interpretation and re-negotiation in the future. Unconfirmed press reports state that India and Mauritius are in the process of re-negotiating the Treaty, which could change the tax treatment of investments by Mauritius-based companies, such as the Subsidiary, in India. Any change in the Treaty's application could have a material adverse effect 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 currently is not entirely 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, GDRs 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 considered a tax resident of Mauritius and does not expect to be deemed to have a permanent establishment in India. If the Subsidiary were deemed to have such a permanent establishment, the business income attributable to that permanent establishment could be taxable in India at the rate of 40%.
In the event that the benefits of the Treaty are not available to the Subsidiary, or the Subsidiary is held to have a permanent establishment in India, taxation of interest and dividend income of the Subsidiary would be the same as described above. The taxation of capital gains would be as follows: (i) capital gains from the sale of listed Indian securities held for twelve months or less would be taxed as short-term capital gains at the rate of 15%, provided the Securities Transaction Tax ("STT") (as discussed below) has been paid; (ii) capital gains from the sale of listed Indian securities held for more than twelve months would be exempt from tax in India provided the STT has been paid; (iii) capital gains from the sale of listed Indian securities not executed on the stock exchange held for twelve months or less would be taxed at the rate of 30% and those held for more than twelve months would be taxed at the rate of 10%; (iv) capital gains arising from the transfer of foreign currency convertible bonds, GDRs or ADRs outside India between non-resident investors, would not be subject to tax in India; and (v) gains from the disposal of shares acquired on redemption of GDRs or ADRs would be treated as short-term if such shares are held for less than or equal to 12 months prior to disposal (and taxed at the rate of 15% provided STT has been paid) and long-term if such shares are held for more than 12 months prior to disposal (and exempt from tax if STT has been paid).
Regardless of the application of the Treaty, all transactions entered on a recognized stock exchange in India are subject to the STT, which is levied on the value of a transaction at rates not exceeding 0.125%. The STT shall be allowed as a deductible business expense provided that the gains on the transactions subject to the STT are taxed as business income and not as capital gains. In the event the benefits of the Treaty are not available to the Subsidiary and the Subsidiary is held to have a permanent establishment in India, then the Subsidiary may be subject to the Minimum Alternative Tax ("MAT"). If the MAT does apply, and the Indian income tax payable by the Subsidiary is less than 18.5% of its book profits, then the Subsidiary would be deemed to owe taxes of 18.5% of book profits. Such a fee would not be included in the fee charged by the Adviser. Long-term capital gains on the sale of listed securities are included in the definition of "book profits" for the purposes of calculating the MAT.
30
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
Invesco 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. The Distributor is an affiliate of the Adviser.
Net Asset Value
Brown Brothers Harriman & Co. calculates the Fund's NAV at the close of regular trading (normally 4:00 p.m., Eastern time) every day the NYSE 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 or its delegate.
In determining NAV, expenses are accrued and applied daily and securities and other assets for which market quotations are readily available are valued at market value. Securities listed or traded on an exchange are generally valued at the last sales price or official closing price that day as of the close of the exchange where the security primarily is traded. The NAV for the Fund will be calculated and disseminated daily on each day that the NYSE is open. Securities included in the Underlying Index trade on the Bombay Stock Exchange or the National Stock Exchange. Due to the time difference between the United States and India, securities on these exchanges will not trade at times when Shares of the Fund will trade. If a security's market price is not readily available, the security will be valued using pricing provided from independent pricing services or by another method that the Adviser, in its judgment, believes will better reflect the security's fair value in accordance with the Trust's valuation policies and procedures approved by the Board.
Even when market quotations are available for portfolio securities, they may be stale or unreliable because the security is not traded frequently, trading on the security ceased before the close of the trading market or issuer-specific events occurred after the security ceased trading or because of the passage of time between the close of the market on which the security trades and the close of the NYSE and when the Fund calculates its NAV. Events that may cause the last market quotation to be unreliable include a merger or insolvency, events which affect a geographical area or an industry segment, such as political events or natural disasters, or market events, such as a significant movement in the U.S. market. Where market quotations are not readily available, including where the Adviser determines that the closing price of the security is unreliable, the Adviser will value the security at fair value in good faith using procedures approved by the Board. In addition, the Fund currently expects that it will fair value foreign equity securities held by the Subsidiary 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
31
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 Subsidiary's portfolio securities will change at times when you will not be able to purchase or sell your Shares.
Because securities included in the Underlying Index are not traded while the Fund's NAV is calculated, changes in the value of the Subsidiary'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.
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, IFS Court, 28 Cybercity, Ebene, Mauritius, serves as the Subsidiary's Mauritius administrator.
K&L Gates LLP, 70 W. Madison Street, Chicago, Illinois 60602 and 1601 K Street, N.W., Washington, D.C. 20006, serves as legal counsel to the Trust.
PricewaterhouseCoopers LLP, One North Wacker Drive, Chicago, Illinois 60606, serves as the Fund's independent registered public accounting firm. PricewaterhouseCoopers LLP is responsible for auditing the annual financial statements of the Fund.
Financial Highlights
The financial highlights table below is intended to help you understand the Fund's financial performance since its inception. Certain information reflects financial results for a single Share. The total returns in the table represent the rate that an investor would have earned (or lost) on an investment in the Fund (assuming reinvestment of all dividends and distributions). This information has been derived from the Fund's financial statements, which have been audited by PricewaterhouseCoopers LLP, whose report, along with the Fund's financial statements, is included in the Fund's Annual Report for the fiscal year ended October 31, 2012, and which is available upon request.
32
PowerShares India Portfolio (PIN)
For the Year Ended October 31, |
For the Period
March 4, 2008(a) through October 31, |
||||||||||||||||||||||
2012 |
2011 |
2010 |
2009 |
2008 |
|||||||||||||||||||
PER SHARE OPERATING PERFORMANCE: |
|||||||||||||||||||||||
NET ASSET VALUE AT
BEGINNING PERIOD |
$ |
20.04 |
$ |
25.32 |
$ |
19.72 |
$ |
12.18 |
$ |
25.00 |
|||||||||||||
Net investment income(b) |
0.14 |
0.14 |
0.13 |
0.12 |
0.12 |
||||||||||||||||||
Net realized and
unrealized gain (loss) |
(2.20 |
) |
(5.31 |
) |
5.51 |
7.39 |
(13.01 |
) |
|||||||||||||||
TOTAL FROM INVESTMENT
OPERATIONS |
(2.06 |
) |
(5.17 |
) |
5.64 |
7.51 |
(12.89 |
) |
|||||||||||||||
DISTRIBUTIONS TO SHAREHOLDERS FROM: |
|||||||||||||||||||||||
Net investment income |
(0.13 |
) |
(0.15 |
) |
(0.12 |
) |
(0.07 |
) |
(0.09 |
) |
|||||||||||||
Return of capital |
|
(0.04 |
) |
|
|
0.00 |
(c) |
||||||||||||||||
TOTAL DISTRIBUTIONS |
(0.13 |
) |
(0.19 |
) |
(0.12 |
) |
(0.07 |
) |
(0.09 |
) |
|||||||||||||
TRANSACTION FEES(b) |
0.09 |
0.08 |
0.08 |
0.10 |
0.16 |
||||||||||||||||||
NET ASSET VALUE AT END OF
PERIOD |
$ |
17.94 |
$ |
20.04 |
$ |
25.32 |
$ |
19.72 |
$ |
12.18 |
|||||||||||||
SHARE PRICE AT END OF
PERIOD(d) |
$ |
17.85 |
$ |
19.86 |
$ |
25.40 |
$ |
19.31 |
$ |
12.24 |
|||||||||||||
NET ASSET VALUE, TOTAL
RETURN(e) |
(9.84 |
)% |
(20.24 |
)% |
29.09 |
% |
62.56 |
% |
(51.04 |
)% |
|||||||||||||
SHARE PRICE, TOTAL
RETURN(e) |
(9.39 |
)% |
(21.21 |
)% |
32.25 |
% |
58.40 |
% |
(50.81 |
)% |
|||||||||||||
RATIOS/SUPPLEMENTAL DATA: |
|||||||||||||||||||||||
Net assets at end of period
(000 's omitted) |
$ |
371,398 |
$ |
401,716 |
$ |
548,154 |
$ |
257,327 |
$ |
48,765 |
|||||||||||||
RATIO TO AVERAGE NET ASSETS OF: |
|||||||||||||||||||||||
Expenses |
0.81 |
% |
0.79 |
% |
0.78 |
% |
0.78 |
% |
0.78 |
%(f) |
|||||||||||||
Net investment income |
0.78 |
% |
0.62 |
% |
0.60 |
% |
0.69 |
% |
0.98 |
%(f) |
|||||||||||||
Portfolio turnover rate(g) |
134 |
% |
82 |
% |
40 |
% |
32 |
% |
22 |
% |
(a) Commencement of investment operations.
(b) Based on average shares outstanding.
(c) Amount represents less than $0.005.
(d) The mean between the last bid and ask prices.
(e) Net asset value total return is calculated assuming an initial investment made at the net asset value at the beginning of the period, reinvestment of all dividends and distributions at net asset value during the period, and redemption on the last day of the period. Share price total return is calculated assuming an initial investment made at the share price at the beginning of the period, reinvestment of all dividends and distributions at share price during the period and sale at the share price on the last day of the period. Total investment return calculated for a period of less than one year is not annualized. The net asset value total return from Fund inception on March 5, 2008 (first day of exchange trading) to October 31, 2008 was (51.02)%. The share price total return from Fund inception to October 31, 2008 was (51.87)%.
(f) Annualized.
(g) Portfolio turnover rate is not annualized for periods less than one year and does not include securities received or delivered from processing creations or redemptions.
33
Index Provider
No entity that creates, compiles, sponsors or maintains the Underlying Index is or will be an affiliated person, as defined in Section 2(a)(3) of the 1940 Act, or an affiliated person of an affiliated person, of the Trust, the Adviser, the Distributor or a promoter of the Fund.
The Index Provider is not affiliated with the Trust, the Adviser or the Distributor. The Adviser has entered into a license agreement with the Index Provider to use the Underlying Index. The Fund is entitled to use the Underlying Index pursuant to a sub-licensing agreement with the Adviser.
Neither the Adviser nor any affiliate of the Adviser has any rights to influence the selection of the securities in the Underlying Index.
Disclaimers
The Index Provider's only relationship to the Adviser, the Fund or the Distributor is the Index Provider's licensing to the Adviser of certain Indus trademarks, the Underlying Index and trade names, which are composed by the Index Provider without regard to the Adviser, the Fund, the Distributor or any investor. 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 Index Provider 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.
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, restatements, re-calculations 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
34
otherwise), resulting from the use of the Underlying Index or any data included therein, even if notified of the possibility of such damages.
The following disclosure is being added to comply with Mauritius law. The Fund invests substantially all of its assets in the Subsidiary, PowerShares Mauritius, a private company limited by shares incorporated in Mauritius. PowerShares Mauritius has qualified to be authorized as an "Expert Fund" under the Regulations of the Mauritius Financial Services Commission. These Regulations provide that only "expert investors" may invest in the Expert Fund. An "expert investor" is an investor that makes an initial investment, for his own account, of not less than $100,000 or is a sophisticated investor as defined in the Securities Act of 2005 or any similarly defined investor in any other securities legislation. Neither investors in PowerShares Mauritius nor investors in the Fund are protected by any statutory compensation arrangements in Mauritius in the event of the Subsidiary's or the Fund's failure.
The Mauritius Financial Services Commission does not vouch for the financial soundness of the Subsidiary or the Fund or for the correctness of any statements made or opinions expressed with regard to it in any offering document or other similar document of the Subsidiary or the Fund.
Premium/Discount Information
Information regarding how often the Shares of the Fund traded on NYSE Arca at a price above (at a premium) or below (at a discount) the NAV of the Fund during the past four calendar quarters can be found at www.InvescoPowerShares.com.
Other Information
Section 12(d)(1) of the 1940 Act restricts investments by investment companies in the securities of other investment companies. However, 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 on behalf of the Fund prior to exceeding the limits imposed by Section 12(d)(1). Additionally, the Fund is permitted to invest in other registered investment companies beyond the limits set forth in Section 12(d)(1) subject to certain terms and conditions set forth in another exemptive order that the SEC has issued to the Trust. If the Fund relies on this exemptive relief, however, other investment companies may not invest in the Fund beyond the statutory provisions of Section 12(d)(1).
Continuous Offering
The method by which Creation Unit Aggregations of 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
35
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.
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(a)(3)(C) 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 engaging in ordinary secondary market transactions) and thus dealing with the Shares that are part of an overallotment within the meaning of Section 4(a)(3)(C) of the Securities Act, will be unable to take advantage of the prospectus delivery exemption provided by Section 4(a)(3) of the Securities Act. 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 NYSE Arca is satisfied by the fact that the prospectus is available at NYSE Arca upon request. For delivery of prospectuses to exchange members, the prospectus delivery mechanism of Rule 153 under the Securities Act is only available with respect to transactions on a national exchange.
Delivery of Shareholder DocumentsHouseholding
Householding is an option available to certain investors of the Fund. Householding is a method of delivery, based on the preference of the individual investor, in which a single copy of certain shareholder documents can be delivered to investors who share the same address, even if their accounts are registered under different names. Householding for the Fund is available through certain broker-dealers. If you are interested in enrolling in householding and receiving a single copy of prospectuses and other shareholder documents, please contact your broker-dealer. If you currently are enrolled in householding and wish to change your householding status, please contact your broker-dealer.
For More Information
For more detailed information on the Trust, the Fund and the Shares, you may request a copy of the Trust's SAI. The SAI provides detailed information about the Fund and is incorporated by reference into this Prospectus. This means that the SAI legally is a part of this Prospectus. Additional information about the Fund's investments also is available in the Fund's Annual and Semi-Annual Reports to shareholders. In the Fund's Annual Report, you will find a discussion of the market conditions and investment strategies that significantly affected the Fund's
36
performance during the last fiscal year. If you have questions about the Fund or Shares or you wish to obtain the SAI, Annual Report and/or Semi-Annual Report free of charge, or to make shareholder inquiries, please:
Call: Invesco Distributors, Inc. at 1.800.983.0903
Monday through Friday
8:00 a.m. to 5:00 p.m. Central Time
Write: PowerShares India Exchange-Traded Fund Trust
c/o Invesco Distributors, Inc.
11 Greenway Plaza, Suite 1000
Houston, Texas 77046-1173
Visit: www.InvescoPowerShares.com
Information about the Fund (including the SAI) can be reviewed and copied at the SEC's Public Reference Room, 100 F Street N.E. Washington, D.C. 20549, and information on the operation of the Public Reference Room may be obtained by calling the SEC at 1.202.551.8090. Reports and other information about the Fund are 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. 20549-1520.
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 this Prospectus for future reference.
Dealers effecting transactions in the Fund's Shares, whether or not participating in this distribution, generally are 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.InvescoPowerShares.com
P-PIN-PRO-1
Investment Company Act File No. 811-22147
PowerShares India Exchange-Traded Fund Trust
STATEMENT OF ADDITIONAL INFORMATION
Dated March 1, 2013
This Statement of Additional Information ("SAI") is not a prospectus. It should be read in conjunction with the Prospectus dated March 1, 2013, for the PowerShares India Exchange-Traded Fund Trust (the "Trust"), relating to the series of the Trust listed below, as it may be revised from time to time.
Fund |
Principal U.S. Listing Exchange |
Ticker |
|||||||||
PowerShares India Portfolio |
NYSE Arca, Inc. |
PIN |
Capitalized terms used in this SAI 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, Invesco Distributors, Inc. (the "Distributor"), 11 Greenway Plaza, Suite 1000, Houston, Texas 77046-1173, or by calling toll free 800.983.0903. The audited financial statements for the Fund contained in the Fund's 2012 Annual Report and the related report of PricewaterhouseCoopers LLP, the Trust's independent registered public accounting firm, are incorporated herein by reference in the section "Financial Statements." No other portions of the Fund's Annual Report are incorporated by reference herein.
TABLE OF CONTENTS
Page |
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General Description of the Trust and the Fund |
1 |
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Exchange Listing and Trading |
1 |
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Investment Restrictions |
2 |
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Investment Strategies and Risks |
3 |
||||||
Portfolio Turnover |
10 |
||||||
Disclosure of Portfolio Holdings |
10 |
||||||
Management |
11 |
||||||
Brokerage Transactions |
24 |
||||||
Additional Information Concerning the Trust |
24 |
||||||
Creation and Redemption of Creation Unit Aggregations |
27 |
||||||
Taxes |
33 |
||||||
Determination of NAV |
39 |
||||||
Dividends and Distributions |
40 |
||||||
Miscellaneous Information |
40 |
||||||
Financial Statements |
40 |
||||||
Appendix A |
A-1 |
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"). The Trust currently consists of one fund, the PowerShares India Portfolio (the "Fund"). Because the Fund is "non-diversified," the Fund's investments are not required to meet certain diversification requirements under the 1940 Act. The shares of the Fund are referred to in this SAI as "Shares."
The investment objective of the Fund is to seek investment results that generally correspond (before fees and expenses) to the price and yield of the Indus India Index (the "Underlying Index"). Invesco PowerShares Capital Management LLC (the "Adviser"), a wholly-owned subsidiary of Invesco Ltd., manages the Fund.
The Fund issues and redeems Shares at net asset value ("NAV") only in aggregations of 50,000 Shares (each a "Creation Unit" or a "Creation Unit Aggregation"). The Fund issues and redeems Creation Units principally for cash, calculated based on the NAV per Share multiplied by the number of Shares representing a Creation Unit ("Deposit Cash"), plus fixed and variable transaction fees. Shares of the Fund are listed on NYSE Arca, Inc. ("NYSE Arca" or the "Exchange"). Shares trade on the Exchange at market prices that may be below, at or above NAV. In the event of the liquidation of the Fund, the Trust may decrease the number of Shares in a Creation Unit.
The Fund reserves the right to offer creations and redemptions in-kind. If the Fund were to permit or require Creation Units to be issued in-kind, the Fund may issue Shares in advance of receipt of Deposit Securities (as defined below) subject to various conditions, including a requirement to maintain on deposit with the Trust cash at least equal to 105% of the market value of the missing Deposit Securities. In each instance of such in-kind creations or redemptions, the Fund may impose transaction fees. See "Creation and Redemption of Creation Unit Aggregations."
EXCHANGE LISTING AND TRADING
Shares of the Fund are listed for trading and trade throughout the day on NYSE Arca.
There can be no assurance that the Fund will continue to meet the requirements of the Exchange necessary to maintain the listing of the Shares. 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 for 30 or more consecutive trading days; (ii) the value of the Fund's Underlying Index no longer is calculated or available; or (iii) such other event shall occur or condition shall exist that, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable. The Exchange will remove the Shares from listing and trading upon termination of the Fund.
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 level 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.
In order to provide additional information regarding the indicative value of Shares of the Fund, NYSE Arca or a market data vendor disseminates every 15 seconds through the facilities of the Consolidated Tape Association or other widely disseminated means an updated "intraday indicative value" ("IIV") for the Fund as calculated by an information provider or market data vendor. The Trust is not involved in or responsible for any aspect of the calculation or dissemination of the IIVs and makes no representation or warranty as to the accuracy of the IIVs.
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INVESTMENT RESTRICTIONS
The Fund and its wholly-owned subsidiary in the Republic of Mauritius (the "Subsidiary") have adopted as fundamental policies the Fund's and Subsidiary's investment restrictions numbered (1) through (7) below. The Fund and Subsidiary, 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, as amended (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.
Except for restrictions (2), (4)(ii) and (iii) and (7), if the Fund adheres to a percentage restriction 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. With respect to restrictions (2), (4)(ii) and (iii) and (7), in the event that the Fund's borrowings or securities lending at any time exceed 33 1 / 3 % of the value of the Fund's total assets (including the amount borrowed or securities loaned) less the Fund's liabilities (other than borrowings) due to subsequent changes in the value of the Fund's assets or otherwise, within three days (excluding Sundays and holidays), the Fund will take corrective action to reduce the amount of its borrowings or securities lending to an extent that such borrowings or securities loaned will not exceed 33 1 / 3 % of the value of the Fund's total assets (including the amount borrowed or loaned) less the Fund's liabilities (other than borrowings or securities loaned).
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.
2
In addition to the foregoing fundamental investment policies, the Fund also is subject to the following non-fundamental restrictions and policies, which may be changed by the Board of Trustees of the Trust ("Board") 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) and 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 the Board can change without approval by shareholders.
The Fund normally will invest at least 80% of its total assets in securities suggested by its name (the "80% investment policy"). The Fund considers securities suggested by its name to be those securities that comprise its Underlying Index. The 80% investment policy is a non-fundamental policy, and the Fund will provide its shareholders with at least 60 days' prior written notice of any change in such 80% investment policy.
INVESTMENT STRATEGIES AND RISKS
Investment Strategies
The Fund seeks to achieve its investment objective by investing substantially all of its assets in the Subsidiary, which in turn, invests at least 90% of its total assets in securities of Indian companies that comprise the Underlying Index and American Depositary Receipts ("ADRs") and global depositary receipts ("GDRs") based on the securities in the Underlying Index. The investment characteristics of the Fund will correspond directly to those of the Subsidiary (whose management is overseen by its separate board of directors). Accordingly, unless expressly stated or otherwise indicated, the references to the "Fund" used in this document shall be deemed to be references to the Fund and the Subsidiary provided that the context allows for such reading. The Fund operates as an index fund and is not actively managed. The Fund attempts to replicate, before fees and expenses, the performance of the Underlying Index, although the Fund may use sampling techniques for the purpose of complying with regulatory or investment restrictions or when sampling is deemed appropriate to track the Underlying Index.
Investment Risks
A discussion of the risks associated with an investment in the Fund is contained in the Fund's Prospectus in the "Summary InformationPrincipal Risks of Investing in the Fund" and the "Additional Information About the Fund's Strategies and Risks" sections. The discussion below supplements, and should be read in conjunction with, those sections of the Prospectus.
3
An investment in the Fund should be made with an understanding that the value of the Fund's or the Subsidiary'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 also should be made with an understanding of the risks inherent in an investment in 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 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 stocks incur more risk than holders of preferred stock and debt obligations because common stockholders, as owners of the issuer, generally have inferior rights to receive payments from the issuer in comparison with the rights of creditors, or holders of debt obligations or preferred stocks. 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 stocks have neither a fixed principal amount nor a maturity.
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 dealers will make or maintain a market or that any such market will be or remain liquid. The price at which securities may be sold and the value of the Shares will be adversely affected if trading markets for the Subsidiary's portfolio securities are limited or absent, or if bid/ask spreads are wide.
The Fund is not actively managed, and therefore the adverse financial condition of any one issuer will not result in the elimination of its securities from the securities the Fund or the Subsidiary holds, unless the index provider removes the securities of such issuer from the Underlying Index.
An investment in the Fund also should be made with an understanding that the Fund, through its investment in the Subsidiary, will not be able to replicate exactly the performance of the Underlying Index, because the total return that the securities generate will be reduced by transaction costs incurred in adjusting the actual balance of the securities and other Fund expenses, whereas such transaction costs and expenses are not included in the calculation of the Underlying Index. It also is possible that the Fund, through its investment in the Subsidiary, may not replicate fully the performance of the Underlying Index due to the temporary unavailability of certain Underlying Index securities in the secondary market or due to other extraordinary circumstances. Such events are unlikely to continue for an extended period of time because the Fund, through the Subsidiary, is required to correct such imbalances by means of adjusting the composition of the portfolio holdings. It also is possible that the composition of the Fund may not exactly replicate the composition of the Underlying Index if the Fund or the Subsidiary has to deviate its portfolio holdings from the Underlying Index due to legal and regulatory rules and limitations imposed by India that limit the Fund's or Subsidiary's ability to invest in the securities included in the Underlying Index and/or in order to continue to qualify as a "regulated investment company" under the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code").
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
4
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.
Repurchase Agreements. The Fund and the Subsidiary may enter into repurchase agreements, which are agreements pursuant to which the Fund or Subsidiary acquires securities from a third party with the understanding that the seller will repurchase them 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 and the Subsidiary are authorized to invest. Repurchase agreements may be characterized as loans secured by the underlying securities. The Fund and the Subsidiary 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 or the Subsidiary 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 or the Subsidiary's ability to dispose of the underlying securities may be restricted. Finally, it is possible that the Fund or the Subsidiary may not be able to substantiate its interest in the underlying securities. To minimize this risk, the custodian will hold the securities underlying the repurchase agreement 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 or the Subsidiary may suffer a loss to the extent proceeds from the sale of the underlying securities are less than the repurchase prices.
The resale price reflects the purchase price plus an agreed upon market rate of interest. The collateral is marked-to-market daily.
With respect to repurchase agreements in connection with Indian securities, only forward contracts and derivatives that are notified and listed on stock exchanges are enforceable under Indian securities laws.
Reverse Repurchase Agreements. The Fund and the Subsidiary 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 and the Subsidiary 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 and the Subsidiary are able to keep some of the interest income associated with those securities. Such transactions are only advantageous if the Fund or the Subsidiary have 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 and the Subsidiary intend to use the reverse repurchase technique only when the Adviser believes it will be advantageous to the Fund and the Subsidiary. The use of reverse repurchase agreements may exaggerate any interim increase or decrease in the value of the Fund's and the Subsidiary's assets. The custodian bank will maintain a separate account for the Fund and the Subsidiary with securities having a value equal to or greater than such commitments. Under the 1940 Act, reverse repurchase agreements are considered borrowings.
Money Market Instruments. The Fund and the Subsidiary may invest a portion of their assets in high-quality money market instruments on an ongoing basis to provide liquidity. The instruments in which the Fund and the Subsidiary may invest 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 the Adviser determines; (iv) repurchase agreements; and (v) money
5
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 and the Subsidiary may invest in the securities of other investment companies beyond the limits permitted under the 1940 Act, subject to certain terms and conditions set forth in an SEC exemptive order issued to the Trust. Absent such exemptive relief, the Fund's and the subsidiary's investments in investment companies would be 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 a Fund's total assets of investment companies in the aggregate. However, as a non-fundamental restriction, the Fund may not acquire any sections of registered open-end investment companies or registered unit investment trusts in reliance on Sections 12(d)(1)(F) and 12(d)(1)(G) of the 1940 Act.
Illiquid Securities. Each of the Fund and the Subsidiary 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.
Participation Notes and Derivative Instruments. As per the Securities and Exchange Board of India ("SEBI") disclosure norms governing issuance of offshore derivative instruments (including participation notes or such other derivative instruments whose value is directly linked to underlying Indian securities) by any foreign institutional investor ("FII"), an FII is required to disclose to SEBI on a monthly basis in a prescribed format details of such instruments which include the names and the locations of persons to whom the offshore derivative instruments are issued; the nature and type of investors; the quantity and value of the offshore derivative instruments; and the underlying Indian securities. Information for each month has to be submitted within seven days following the end of the calendar month. In light of the above, if any FII or its clients issue any offshore derivative instrument, the details of such investors will have to be disclosed by the FII and accordingly will be required to file such disclosure with SEBI. FIIs that do not have any outstanding offshore derivatives are not required to make such filing. FIIs are allowed to issue participation notes and offshore derivate instruments to those entities that are regulated by an appropriate regulatory authority in the countries of their incorporation or establishment, as prescribed by SEBI. SEBI has prohibited the issuance of participation notes by sub-accounts of FIIs. FIIs are also not permitted to issue, subscribe for or purchase any offshore derivative instruments, directly or indirectly, to or from, Indian residents or Non Resident Indians ("NRIs").
SEBI Takeover Regulations. The Subsidiary may subscribe for shares in Indian companies directly or through promoters, or buy shares from existing shareholders or through promoters or other intermediaries. The public offer provisions of the Takeover Code (as defined below) shall apply to such subscriptions or acquisitions if the resulting shareholding of the Subsidiary exceeds the prescribed thresholds.
Under the provisions of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 ("Takeover Code"), any person who holds, whether alone or together with persons acting in concert with him, 5% or more of the voting shares of a listed Indian public company ("Material Shareholder"), is required to notify the company and the stock exchanges on which such shares are listed of its holding within a prescribed time period.
In addition, a Material Shareholder is required to inform the relevant company and the relevant stock exchanges of any change to its shareholding of 2% or more.
Upon the acquisition of 25% or more of the voting shares (or upon the acquisition of control) of the company by a person ("Acquirer"), whether acting directly or indirectly, the Acquirer is required to make an open offer to the other shareholders offering to purchase at least 26% of the remaining shares of the company at an offer price determined pursuant to the provisions of the Takeover Code ("Open Offer"). The Open Offer obligation does not apply to existing shareholders holding 25% or more (but less than 75%) of the share capital, purchasing no more than an additional 5% of the company's shares or voting rights in a financial year ending March 31.
6
In certain circumstances, exemptions from the Open Offer obligation may be available.
Insider Trading Regulations. The Subsidiary shall be subject to the requirements and restrictions under the Insider Trading Regulations (Prohibition of Insider Trading) Regulations, 1992 ("Insider Trading Regulations"), including the applicable disclosure requirements thereunder.
Shareholders holding more than 5% of the shares or voting rights of a company listed on an Indian stock exchange, are required to make periodic disclosures of their holding of shares or voting rights as specified in the Insider Trading Regulations, including a disclosure to the company of any change to its holding of shares or voting rights of over 2%, even if such change results in such shareholder's holding of shares or voting rights falling below 5%.
In addition, the Insider Trading Regulations prohibit any person in possession of unpublished price-sensitive information concerning a company listed on any Indian stock exchange from dealing, either on its own behalf or on behalf of any other person, in the securities of that company.
Currency Transactions. The Fund and the Subsidiary 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.
The Fund's and the Subsidiary'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 and the Subsidiary, which generally will arise in connection with the purchase or sale of the Fund's or the Subsidiary'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. Neither the Fund nor the Subsidiary will 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 or the Subsidiary'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 and the Subsidiary 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 or the Subsidiary have or in which the Fund or the Subsidiary expect to have portfolio exposure. To reduce the effect of currency fluctuations on the value of existing or anticipated holdings of portfolio securities, the Fund and the Subsidiary also may engage in proxy hedging. Proxy hedging often is used when the currency to which the Fund's or the Subsidiary'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, changes in the value of which generally are considered to be linked to a currency or currencies in which some or all of the Fund's or the Subsidiary'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 or the Subsidiary'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 or the Subsidiary 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 or the Subsidiary are engaging in proxy hedging. If the Fund or the Subsidiary enter into a currency hedging transaction, the Fund or the Subsidiary, respectively, will comply with the asset segregation requirements described below.
7
Foreign Currency Risk. The Subsidiary's assets will be invested primarily in the equity securities of issuers in India and the income received by the Fund, through the Subsidiary, will be principally in rupees. 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 the Fund earns the income 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 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, also may 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.
Loss of Registration. The Adviser is a registered FII with the SEBI, and the Subsidiary is registered as a sub-account with the SEBI in order to invest in accordance with the SEBI (Foreign Institutional Investors) Regulations, 1995 ("FII Regulations"). There can be no assurances that the Indian regulatory authorities will continue to grant such qualifications, and the loss of such qualifications would adversely impact the ability of the Subsidiary, to make and dispose of investments in India. If the Adviser and/or the Subsidiary were to lose such qualifications, or if the registration of the Adviser as an FII, or the Subsidiary as its sub-account, is not renewed, unless SEBI permits the Subsidiary to be transferred to operate as the sub-account of another FII, the Subsidiary may not be able to continue to lawfully hold its investments, and could be effectively compelled to redeem or realize its investments at a time or on terms at a discount of the value of its investments and/or resulting in a loss. Such redemption or realization of investments could adversely affect the returns to the Fund.
Investment Opportunities. Investments under FII Regulations and Foreign Exchange Management (Transfer or issue of security by a person resident outside India) Regulations, 2000 are permitted only in the following:
• securities in the primary and secondary markets including shares, debentures and warrants of companies unlisted, listed or to be listed on a recognized stock exchange in India;
• units of schemes floated by domestic mutual funds including Unit Trust of India, whether listed on a recognized stock exchange in India or not or units of a scheme floated by a Collective Investment Scheme;
• dated government securities;
• derivatives traded on a recognized stock exchange;
• commercial paper;
8
• security receipts of asset reconstruction companies (sub-accounts are not permitted to invest in security receipts); and
• Indian depositary receipts.
Further, FIIs are allowed to engage in delivery based trading and short selling including execution of trades involving derivatives on a recognized stock exchange. FIIs are allowed to tender their shares in case of an open offer following the takeover bid by an acquirer. FIIs are also permitted to take forward cover on their equity and debt exposure to mitigate against currency fluctuations. FIIs which have issued derivative instruments based on underlying Indian securities such as participation notes and any other equivalent instrument are required to make a monthly disclosure to the SEBI as regards the details of the instrument as well as the ultimate investor in such instruments.
In addition, the Fund and/or the Subsidiary may invest, without the prior approval of the Government of India or the Reserve Bank of India, in companies active in any of the sectors specified in Schedule 1 to the Foreign Exchange Management (Transfer or issue of security by a person resident outside India) Regulations 2000, as issued by the Government of India from time to time, subject to caps applicable to each sector and applicable capitalization norms.
Broad Based Criteria. Pursuant to a circular issued by SEBI dated April 15, 2010, either (i) each class of shares issued by the Subsidiary (if it is considered to be a multi-class vehicle), or (ii) the Subsidiary as a whole (if all classes of shares issued by the Subsidiary have common investment portfolio), must meet the Broad Based Criteria prescribed by SEBI under the FII regulations, The Broad Based Criteria states that a broad-based sub-account is required to have at least 20 investors, of whom none are permitted to hold more than 49% of the shares of the Subsidiary. The Broad Based Criteria is applied on a look-through basis and, therefore, if the Fund satisfies the Broad Based Criteria, the Subsidiary is deemed to also meet the Broad Based Criteria as a sub-account of the Fund. The requirement to maintain a broad investor base may have an adverse effect on the ability of the Fund to issue new classes of Shares that have an investment strategy that is distinct from that of the other share classes and that maintain an investment portfolio distinct from that to which other share classes relate, as such new class of Shares must separately fulfill the Broad Based Criteria. Existing shareholders redeeming their investment in whole or in part may restrict the ability of the Subsidiary to make new investments and, if the Subsidiary or the Fund fail to meet the Broad Based Criteria prescribed by SEBI, the Fund may be forced to redeem the outstanding Shares and the Subsidiary may be forced to dispose of its investments.
Ownership Restrictions. The ownership restrictions applicable to the Adviser (as an FII) and the Subsidiary (as a sub-account of the Adviser) are as follows:
• As a general rule, the aggregate shareholding of all FIIs and sub-accounts investing into an Indian company is not permitted to exceed 24% of the entire paid-up share capital of that Indian company. However, the shareholders of the Indian company may resolve (by way of a special resolution) to increase such limit up to the foreign direct investment limit applicable to the sector to which the company belongs. Currently, foreign investment up to 100% of share capital is permitted in most sectors (save for sectors such as telecommunications or banking).
• Under the FII Regulations, no FII or broad-based sub-account can hold more than 10% of the paid-up share capital of an Indian company. The Subsidiary may not, therefore, hold more than 10% of the paid-up share capital of any Indian company.
Restriction on Investment Through Protected Cell Companies or Multi-Class Vehicles. SEBI has prohibited protected cell companies and similar segregated asset vehicles from investing in Indian securities. Such prohibition restricts the manner in which the Subsidiary and/or the Fund may be restructured in the future. In addition, SEBI requires that each asset class of a multi-class vehicle must be widely held. Consequently, the creation of a new class of shares by the Subsidiary is likely to require prior approval by SEBI.
9
Secondary Market Investment. The Subsidiary's investment activities in the Indian secondary market are subject to certain restrictions, including the following (non-exhaustive) requirements:
a) it shall only engage by way of business in the simple purchase and sale of securities, including the trading of listed derivatives and short-selling of securities within the framework permitted by SEBI;
b) it shall carry out its business of transacting in securities only through a stock broker certified by SEBI under sub-section (I) of section 12 of the SEBI Act, 1992;
c) it shall only lend or borrow securities through an approved intermediary in accordance with the stock-lending scheme of SEBI; and
d) it must appoint as its custodian a SEBI-approved entity.
In addition to the above, SEBI has set out certain limits for investment by FIIs and their sub-accounts in derivatives traded on Indian stock exchanges. If the Subsidiary invests directly in such exchange-traded derivatives in India, it would be required to comply with the investment limits prescribed by SEBI from time to time.
Debt Investment. The investment by the Subsidiary in debt securities of Indian companies or Indian public-sector debentures is also subject to certain limits. The aggregate foreign investment in corporate debt and government securities are subject to limits which are notified by RBI and/or SEBI from time to time, and for which non-Indian investors may bid in an auction organized by the RBI and/or SEBI. In the event that such limits have been auctioned, the Subsidiary may not be able to invest in public sector or corporate debt in India.
Foreign Exchange Controls. In order to invest under the FII Regulations, the Subsidiary is required to open a foreign-currency-denominated account and a special non-resident rupee account in India.
Transfers of sums between the foreign-currency-denominated account and the special non-resident rupee account must be made at the Indian market rates of exchange applicable at the time, which may differ from the foreign exchange rates outside India, for example, in the United States, at that time.
PORTFOLIO TURNOVER
The Fund calculates its portfolio turnover rate by dividing the value of the lesser of purchases or sales of portfolio securities for the fiscal period by the monthly average of the value of portfolio securities owned by the Fund during the fiscal period. A 100% portfolio turnover rate would occur, for example, if all of the portfolio securities (other than short-term securities) were replaced once during the fiscal period. Portfolio turnover rates will vary from year to year, depending on market conditions.
The Fund's portfolio turnover rate for the fiscal year ended October 31, 2012, varied significantly from the portfolio turnover rate for the fiscal year ended October 31, 2011, due to a higher number of both net inflows and outflows averaged over a smaller asset base.
DISCLOSURE OF PORTFOLIO HOLDINGS
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 also discloses a complete schedule of the Fund's portfolio holdings with the SEC on Form N-CSR after its second and fourth fiscal quarters.
The Trust's Forms N-Q and Forms N-CSR are available on the SEC's website at http://www.sec.gov. The Trust's Forms N-Q and Forms N-CSR also may 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 Trust's Form N-Qs and Form N-CSRs are 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.
10
Portfolio Holdings Policy. The Trust has adopted a policy regarding the disclosure of information about the Trust's portfolio holdings. The Board must approve all material amendments to this policy.
The Fund's portfolio holdings are disseminated publicly each day that the Fund is open for business through financial reporting and news services, including publicly accessible Internet websites. In addition, in the event Creation Units are issued in-kind, a basket composition file, which includes the security names and share quantities to deliver in exchange for Shares, together with estimates and actual cash components, would be disseminated publicly each day prior to the opening of NYSE Arca via the National Securities Clearing Corporation ("NSCC"). The basket would represent one Creation Unit of the Fund. The Trust, the Adviser and Brown Brothers Harriman & Co. ("BBH" or the "Administrator") will not disseminate non-public information concerning the Trust.
Access to information concerning the Fund's portfolio holdings may be permitted at other times to personnel of third-party service providers, including the Fund's custodian, transfer agent, auditors and counsel, as may be necessary to conduct business in the ordinary course in a manner consistent with such service providers' agreements with the Trust on behalf of the Fund.
MANAGEMENT
The primary responsibility of the Board is to represent the interests of the Fund and to provide oversight of the management of the Fund. The Trust currently has eight Trustees. Five Trustees are not "interested," as that term is defined under the 1940 Act, and 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 (the "Independent Trustees"). The other Trustees are affiliated with the Adviser and one Trustee has been designated as "interested" because of his business relationship with the Adviser (the "Interested Trustees"). The board of directors of the Subsidiary is responsible for the management of the Subsidiary.
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) that they oversee and other directorships, if any, that they hold 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 SAI, the "Fund Family" consists of the Trust and three other exchange-traded fund trusts advised by the Adviser.
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 Trustee |
Other Directorships
Held by Independent Trustee During the Past 5 Years |
||||||||||||||||||
Ronn R. Bagge (55)
c/o Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Trustee |
Since 2008 |
Founder and Principal, YQA Capital Management LLC (1998-Present); formerly Owner/CEO of Electronic Dynamic Balancing Co., Inc. (high-speed rotating equipment service provider) |
113 |
None |
11
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 Trustee |
Other Directorships
Held by Independent Trustee During the Past 5 Years |
||||||||||||||||||
Todd J. Barre (55)
c/o Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Trustee |
Since 2010 |
Assistant Professor of Business, Trinity Christian College (2010-Present); formerly Vice President and Senior Investment Strategist (2001-2008), Director of Open Architecture and Trading (2007-2008), Head of Fundamental Research (2004-2007), and Vice President and Senior Fixed Income Strategist (1994-2001), BMO Financial Group/Harris Private Bank |
113 |
None |
||||||||||||||||||
Marc M. Kole (52)
c/o Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Trustee |
Since 2008 |
Chief Financial Officer, Hope Network (social services) (2008-2012); formerly Assistant Vice President and Controller, Priority Health (health insurance) (2005-2008); Senior Vice President of Finance, United Healthcare (2004-2005); Senior Vice President of Finance, Oxford Health Plans (2000-2004) |
113 |
None |
||||||||||||||||||
Philip M. Nussbaum (51)
c/o Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Trustee |
Since 2008 |
Chairman, Performance Trust Capital Partners (2004-Present) |
113 |
None |
||||||||||||||||||
Donald H. Wilson (53)
c/o Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Trustee |
Trustee since 2008; Chairman of the Board since 2012 |
Chairman and Chief Executive Officer, Stone Pillar Advisors, Ltd. (2010-Present); formerly President and Chief Operating Officer, AMCORE Financial, Inc. (bank holding company) (2007-2009); Executive Vice President and Chief Financial Officer, AMCORE Financial, Inc. (2006-2007); Senior Vice President and Treasurer, Marshall & Ilsley Corp. (bank holding company) (1995-2006) |
113 |
None |
* This is the date the Independent Trustee began serving the Trust. Each Trustee serves an indefinite term, until his successor is elected.
The Interested Trustees 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
12
overseen by the Interested Trustees and the other directorships, if any, held by the Interested Trustees, are shown below.
Name, Address and Age
of Interested 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 Interested Trustee |
Other Directorships
Held by Interested Trustee During the Past 5 Years |
||||||||||||||||||
Kevin M. Carome (55)
Invesco Ltd. Two Peachtree Pointe 1555 Peachtree St., N.E. Suite 1800 Atlanta, GA 30309 |
Trustee |
Since 2010 |
Senior Managing Director and General Counsel, Invesco Ltd. (2006-Present); formerly Senior Vice President and General Counsel, Invesco Advisors, Inc. (2003-2005); Senior Vice President and General Counsel, Liberty Financial Companies, Inc. (2000-2001); General Counsel of certain investment management subsidiaries of Liberty Financial Companies, Inc. (1998-2000); Associate General Counsel, Liberty Financial Companies, Inc. (1993-1998); Associate, Ropes & Gray LLP |
113 |
None |
||||||||||||||||||
Kapil Dev Joory (60)
c/o Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Trustee |
Since 2009 |
Director, International Financial Services Limited (international tax and business advisory services) (1993-Present) |
1 |
Director of various global business companies |
||||||||||||||||||
Graeme J. Proudfoot (48)
c/o London Office Invesco Ltd. 30 Finsbury Square London, EC2A 1AG, United Kingdom |
Trustee |
Since 2008 |
Head of Specialist Funds Division, Invesco Ltd. (1999-Present); Head of London Office, Invesco Ltd. (2007-Present) |
1 |
Director, Invesco UK Limited, Invesco Asset Management Limited and various other group companies (1999-Present) |
* This is the date the Interested Trustee began serving the Trust. Each Trustee serves an indefinite term, until his successor is elected.
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 |
||||||||||||
Andrew Schlossberg (38)
Invesco Management Group, Inc. 11 Greenway Plaza Suite 1000 Houston, TX 77046 |
President |
Since 2009 |
Managing Director, U.S. head of business strategy and chief marketing officer for Invesco Ltd. in the United States (2008-Present); formerly, Mr. Schlossberg served in multiple roles within Invesco, including head of corporate development, as well as global leadership roles in strategy and product development in the company's North American Institutional and Retirement divisions (2002-2007). |
||||||||||||
Benjamin Fulton (51)
Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Vice President |
Since 2009 |
Executive Vice PresidentGlobal Product Development, Invesco PowerShares Capital Management LLC (2005-Present); formerly, principal of Clermont Consulting, a consulting firm focused on the creation and development of retail investment products (2003-2005); President and a founding partner of Claymore Securities, a financial services firm in the Chicagoland area (2001-2003); Managing Director of Structured Investments at Nuveen Investments (1998-2001). |
13
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 |
||||||||||||
Peter Hubbard (31)
Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Vice President |
Since 2009 |
Vice President and Director of Portfolio ManagementInvesco PowerShares Capital Management LLC (2008-Present); formerly, Portfolio Manager, Invesco PowerShares Capital Management LLC (2007-2008); Research Analyst, Invesco PowerShares Capital Management LLC (2005-2007); Research Analyst and Trader, Ritchie Capital, a hedge fund operator (2003-2005). |
||||||||||||
David Warren (55)
Invesco Canada Ltd. 5140 Yonge Street Suite 900 Toronto, Ontario M2N 6X7 |
Vice President |
Since 2009 |
Director, Executive Vice President and Chief Financial Officer, Invesco Canada Ltd. (formerly, Invesco Trimark Ltd.) and Chief Administrative Officer, North American Retail, Invesco Ltd. (2007-Present); formerly, Director, Executive Vice President and Chief Financial Officer, Invesco Canada Ltd. (formerly, Invesco Trimark Ltd.) (2000-2006). |
||||||||||||
Christopher Joe (43)
Invesco Management Group, Inc. 11 Greenway Plaza Suite 1000 Houston, TX 77046-1173 |
Chief Compliance Officer |
Since 2012 |
U.S. Compliance Director, Invesco, Ltd.; Chief Compliance Officer, Invesco Investment Advisers, LLC (registered investment adviser); formerly, Assistant Fund Accounting Manager, Invesco, Ltd. |
||||||||||||
Steven M. Hill (48)
Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Treasurer |
Since 2013 |
Treasurer, PowerShares Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II, PowerShares India Exchange-Traded Fund Trust, and PowerShares Actively Managed Exchange-Traded Fund Trust; Head of Global ETF Administration, Invesco PowerShares Capital Management LLC; formerly, Senior Managing Director and Chief Financial Officer, Destra Capital Management LLC and its subsidiaries (2010-2011); Chief Financial Officer, Destra Investment Trust and Destra Investment Trust II (2010-2011); Senior Managing Director, Claymore Securities, Inc. (2003-2010); and Chief Financial Officer, Claymore sponsored mutual funds (2003-2010). |
||||||||||||
Anna Paglia (38)
Invesco PowerShares Capital Management LLC 301 West Roosevelt Road Wheaton, IL 60187 |
Secretary |
Since 2011 |
Secretary, PowerShares Exchange-Traded Fund Trust, PowerShares Exchange-Traded Fund Trust II, PowerShares India Exchange-Traded Fund Trust, and PowerShares Actively Managed Exchange-Traded Fund Trust; Head of Legal, Invesco PowerShares Capital Management LLC (2010-Present); formerly, Partner, K&L Gates LLP (formerly, Bell Boyd & Lloyd LLP) (2007-2010); Associate Counsel at Barclays Global Investors Ltd. (2004-2006). |
* This is the date 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 overseen by the Trustee as of December 31, 2012 is shown below.
Name of Trustee |
Dollar Range of Equity
Securities in PowerShares India Portfolio |
Aggregate Dollar Range of
Equity Securities in All Registered Investment Companies Overseen by Trustee in Fund Family |
|||||||||
Ronn R. Bagge |
None |
Over $100,000 |
|||||||||
Todd J. Barre |
None |
Over $100,000 |
|||||||||
Marc M. Kole |
None |
Over $100,000 |
|||||||||
Philip M. Nussbaum |
None |
Over $100,000 |
|||||||||
Donald H. Wilson |
None |
Over $100,000 |
|||||||||
Graeme J. Proudfoot |
None |
None |
|||||||||
Kapil Dev Joory |
None |
None |
|||||||||
Kevin M. Carome |
None |
None |
14
The dollar range of Shares for Mr. Bagge and Mr. Nussbaum includes Shares of certain funds in which each of Mr. Bagge and Mr. Nussbaum is deemed to be invested pursuant to the Trust's deferred compensation plan ("DC Plan"), which is described below.
As of December 31, 2012, 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.
Board and Committee Structure. As noted above, the Board is responsible for oversight of the Fund, including oversight of the Fund, including duties performed by the Adviser for the Fund under the investment advisory agreement (the "Investment Advisory Agreement"). The Board generally meets in regularly scheduled meetings five times a year, and may meet more often as required. During the Trust's fiscal year ended October 31, 2012, the Board held seven meetings.
The Board has two standing committees, the Audit Committee and the Nominating and Governance Committee, and has delegated certain responsibilities to those Committees.
Messrs. Bagge, Barre, Kole (Chair), 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 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 over financial reporting. During the Trust's fiscal year ended October 31, 2012, the Audit Committee held four meetings.
Messrs. Bagge (Chair), Barre, Kole, 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." During the Trust's fiscal year ended October 31, 2012, the Nominating and Governance Committee held four meetings.
Mr. Wilson, one of the Independent Trustees, serves as the chair of the Board (the "Independent Chair"). The Independent Chair, among other things, chairs the Board meetings, participates in the preparation of the Board agendas and serves as a liaison between, and facilitates communication among, the other Independent Trustees, the full Board, the Adviser and other service providers with respect to Board matters. The Chairs of the Audit Committee and Nominating and Governance Committee also serve as liaisons between the Adviser and other service providers and the other Independent Trustees for matters pertaining to the respective Committee. The Board believes that its current leadership structure is appropriate taking into account the assets and number of funds in the Fund Family overseen by the Trustees, the size of the Board and the nature of the funds' business, as the Interested Trustees and officers of the Trust provide the Board with insight as to the daily management of the funds in the Fund Family while the Independent Chair promotes independent oversight of the Fund by the Board.
Risk Oversight. The Fund is subject to a number of risks, including operational, investment and compliance risks. The Board, directly and through its Committees, as part of its oversight responsibilities, oversees the services provided by the Adviser and the Trust's other service providers in connection with the management and operations of the Fund, as well as its associated risks. Under the oversight of the Board, the Trust, the Adviser and other service providers have adopted policies, procedures and controls to address these risks. The Board, directly and through its Committees, receives and reviews information from the Adviser, other service providers, the Trust's independent registered public accounting firm, Trust counsel and counsel to the Independent Trustees to assist it in its oversight responsibilities. This information includes, but is not limited to, reports regarding the Fund's investments, including Fund performance and investment practices, valuation of Fund portfolio securities,
15
and compliance. The Board also reviews, and must approve any proposed changes to, the Fund's investment objective, policies and restrictions, and reviews any areas of non-compliance with the Fund's investment policies and restrictions. The Audit Committee monitors the Trust's accounting policies, financial reporting and internal control system and reviews any internal audit reports impacting the Trust. As part of its compliance oversight, the Board reviews the annual compliance report issued by the Trust's Chief Compliance Officer on the policies and procedures of the Trust and its service providers, proposed changes to those policies and procedures and quarterly reports on any material compliance issues that arose during the period.
Experience, Qualifications and Attributes. As noted above, the Nominating and Governance Committee is responsible for identifying, evaluating and recommending trustee candidates. The Nominating and Governance Committee reviews the background and the educational, business and professional experience of trustee candidates and the candidates' expected contributions to the Board. Trustees selected to serve on the Board are expected to possess relevant skills and experience, time availability and the ability to work well with the other Trustees. In addition to these qualities and based on each Trustee's experience, qualifications and attributes and the Trustees' combined contributions to the Board, following is a brief summary of the information that led to the conclusion that each Board member should serve as a Trustee.
Mr. Bagge has served as a trustee and Chairman of the Nominating and Governance Committee with the Fund Family since 2003. He founded YQA Capital Management, LLC in 1998 and has since served as a principal. Previously, Mr. Bagge was the owner and CEO of Electronic Dynamic Balancing Company from 1988 to 2001. He began his career as a securities analyst for institutional investors, including CT&T Asset Management and J.C. Bradford & Co. The Board considered that Mr. Bagge has served as a board member or advisor for several privately held businesses and charitable organizations and the executive, investment and operations experience that Mr. Bagge has gained over the course of his career and through his financial industry experience.
Mr. Barre has served as a trustee with the Fund Family since 2010. He has served as Assistant Professor of Business at Trinity Christian College since 2010. Previously, he served in various positions with BMO Financial Group/Harris Private Bank, including Vice President and Senior Investment Strategist (2001-2008), Director of Open Architecture and Trading (2007-2008), Head of Fundamental Research (2004-2007) and Vice President and Senior Fixed Income Strategist (1994-2001). From 1983 to 1994, Mr. Barre was with the Office of the Manager of Investments at Commonwealth Edison Co. He also was a staff accountant at Peat Marwick Mitchell & Co. from 1981 to 1983. The Board considered the executive, financial and investment experience that Mr. Barre has gained over the course of his career and through his financial industry experience.
Mr. Carome has served as a trustee with the Fund Family since 2010. He has served as the Senior Managing Director and General Counsel of Invesco Ltd. since 2006, and has held various senior executive positions with Invesco Ltd. since 2003. Previously, he served in various positions with Liberty Financial Companies, Inc., including Senior Vice President and General Counsel (2000-2001), General Counsel of certain investment management subsidiaries (1998-2000) and Associate General Counsel (1993-1998). Prior to his employment with Liberty Financial Companies, Inc., Mr. Carome was an associate with Ropes & Gray LLP. The Board considered Mr. Carome's senior executive position with Invesco Ltd.
Mr. Joory has served as a trustee for the Trust since 2009. He has served as a Director for International Financial Services Limited, an international tax and business advisory services company, since 1993. The Board considered Mr. Joory's senior executive position with International Financial Services Limited.
Mr. Kole has served as a trustee with the Fund Family since 2006 and Chairman of the Audit Committee since 2008. He was the Chief Financial Officer of Hope Network from 2008 to 2012. Previously, he was the Assistant Vice President and Controller at Priority Health from 2005 to 2008, Senior Vice President of Finance of United Healthcare from 2004 to 2005 and Senior Vice President of Finance of Oxford Health Plans from 2000 to 2004. The Board of the Trust has determined that Mr. Kole is an "audit committee financial expert" as defined by the SEC. The Board considered the executive, financial and operations experience that Mr. Kole has gained over the course of his career and through his financial industry experience.
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Mr. Nussbaum has served as a trustee with the Fund Family since 2003. He has served as the Chairman of Performance Trust Capital Partners since 2004 and was the Executive Vice President of Finance from 1994 to 1999. Mr. Nussbaum also served as Managing Director of the Communication Institute from 2002 to 2003. Prior to joining Performance Trust Capital Partners in 1994, he was a Vice President at Clayton Brown & Associates. Before that, he was a senior examiner with the Financial Markets Unit of the Federal Reserve Bank of Chicago. The Board of the Trust has determined that Mr. Nussbaum is an "audit committee financial expert" as defined by the SEC. The Board considered the executive, financial, investment and operations experience that Mr. Nussbaum has gained over the course of his career and through his financial industry experience.
Mr. Proudfoot has served as a trustee for the Trust since 2008. He has served as Head of the London Office of Invesco Ltd. since 2007 and as Head of the Specialist Funds Division of Invesco Ltd. since 1999. The Board considered Mr. Proudfoot's senior executive position with Invesco Ltd.
Mr. Wilson has served as a trustee with the Fund Family since 2006 and as the Independent Chair since 2012. He also served as lead Independent Trustee in 2011. Mr. Wilson has served as the Chairman and Chief Executive Officer of Stone Pillar Advisers, Ltd. since 2010. Previously, he was the Chief Operating Officer (2007-2009) and Executive Vice President and Chief Financial Officer (2006-2007) of AMCORE Financial, Inc. Mr. Wilson also served as Senior Vice President and Treasurer of Marshall & Ilsley Corp. from 1995 to 2006. He started his career with the Federal Reserve Bank of Chicago, serving in several roles in the bank examination division and the economic research division. The Board of the Trust has determined that Mr. Wilson is an "audit committee financial expert" as defined by the SEC. The Board considered the executive, financial and operations experience that Mr. Wilson has gained over the course of his career and through his financial industry experience.
This disclosure is not intended to hold out any Trustee as having any special expertise and shall not impose greater duties, obligations or liabilities on the Trustees. The Trustees' principal occupations during the past five years or more are shown in the above tables.
Effective January 1, 2013, for his services as a Trustee of the Trust and other trusts in the Fund Family, each Independent Trustee receives an annual retainer of $225,000 (the "Retainer"). Prior to January 1, 2013, each Independent Trustee received a Retainer of $195,000. The Retainer is allocated half pro rata among all of the funds in the Fund Family and the other half is allocated among all of the funds in the Fund Family based on average net assets. Effective January 1, 2012, Mr. Wilson received an additional $70,000 per year for his service as the Independent Chair, allocated in the same manner as the Retainer. For the year ended December 31, 2012, Mr. Wilson received an additional $40,000 per year for his service as the lead Independent Trustee. The chair of the Audit Committee receives an additional fee of $25,000 per year and the chair of the Nominating and Governance Committee receives an additional fee of $15,000 per year, all allocated in the same manner as the Retainer. Each Trustee also is reimbursed for travel and other out-of-pocket expenses incurred in attending Board and committee meetings.
The Trust's DC Plan allows each Independent Trustee to defer payment of all or a portion of the fees that the Trustee receives for serving on the Board throughout the year. Each eligible Trustee generally may elect to have deferred amounts credited with a return equal to the total return on one to five of the funds of PowerShares Exchange-Traded Fund Trust or the PowerShares Exchange-Traded Fund Trust II that are offered as investment options under the DC Plan. At the Trustee's election, distributions are either in one lump sum payment, or in the form of equal annual installments over a period of years designated by the Trustee. The rights of an eligible Trustee and the beneficiaries to the amounts held under the DC Plan are unsecured, and such amounts are subject to the claims of the creditors of the Fund. The Independent Trustees are not eligible for any pension or profit sharing plan.
17
The following sets forth the fees paid to each Trustee for the fiscal year ended October 31, 2012.
Name of Trustee |
Aggregate
Compensation From Trust |
Pension or Retirement
Benefits accrued as part of Fund Expenses |
Total Compensation Paid
From Fund Complex (1) |
||||||||||||
Ronn R. Bagge |
$ |
2,788 |
N/A |
$ |
210.000 |
||||||||||
Todd J. Barre |
$ |
2,589 |
N/A |
$ |
195,000 |
||||||||||
Marc M. Kole |
$ |
2,919 |
N/A |
$ |
220,000 |
||||||||||
Philip M. Nussbaum |
$ |
2,589 |
N/A |
$ |
195,000 |
||||||||||
Donald H. Wilson |
$ |
3,460 |
N/A |
$ |
260,000 |
||||||||||
Graeme J. Proudfoot |
N/A |
N/A |
N/A |
||||||||||||
Kapil Dev Joory |
N/A |
N/A |
N/A |
||||||||||||
H. Bruce Bond (2) |
N/A |
N/A |
N/A |
||||||||||||
Kevin M. Carome |
N/A |
N/A |
N/A |
(1) The amounts shown in this column represent the aggregate compensation paid by all funds of the trusts in the Fund Family for the fiscal year ended October 31, 2012, before deferral by the Trustees under the DC Plan. The amounts shown for Messrs. Bagge and Nussbaum include $21,000 and $195,000 respectively, of deferred compensation pursuant to the DC plan.
(2) Mr. Bond resigned from the Trust on December 18, 2012.
As of January 31, 2013, the Trustees and Officers of the Trust, as a group, owned less than 1% of the Fund's outstanding Shares.
Principal Holders and Control Persons. The following table sets forth the name, address and percentage of ownership of each person who is known by the Trust to own, of record or beneficially, 5% or more of the Fund's outstanding Shares as of February 11, 2013.
Name & Address |
% Owned |
||||||
Brown Brothers Harriman & Co.
525 Washington Avenue Jersey City, NJ 07302 |
14.36 |
% |
|||||
Charles Schwab & Co., Inc.
211 Main Street San Francisco, CA 94105 |
5.55 |
% |
|||||
Credit Suisse AG
11 Madison Avenue New York, NY 10010 |
6.64 |
% |
|||||
Deutsche Bank AG
60 Wall Street New York, NY 10005 |
8.03 |
% |
|||||
National Financial Services LLC
200 Liberty Street New York, NY 10281 |
6.73 |
% |
|||||
State Street Bank and Trust Company
One Lincoln Street Boston, MA 02111 |
6.73 |
% |
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 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
18
the communication to either the Trust's office or directly to such Board members at the address specified for each Trustee. Management will review and generally respond to other shareholder communications the Trust receives that are not directly addressed and sent to the Board. 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 rooted deeply in the application of intuitive factor analysis and model implementation to enhance investment decisions. All investment decisions relating to the Fund and the Subsidiary 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 and the Subsidiary. The Adviser also administers the Trust's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services, and permits any of its officers or employees to serve without compensation as Trustees or officers of the Trust if elected to such positions.
Invesco PowerShares Capital Management LLC, organized February 7, 2003, is located at 301 West Roosevelt Road, Wheaton, Illinois 60187.
Invesco Ltd. is the parent company of Invesco PowerShares Capital Management LLC and is located at Two Peachtree Pointe, 1555 Peachtree Street, N.E., Atlanta, Georgia 30309. Invesco Ltd. and its subsidiaries are an independent global investment management group.
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 extensive resources. Peter Hubbard oversees all research, portfolio management and trading operations of the Adviser. In this capacity, he oversees a team of the Portfolio Managers responsible for the day-to-day management of the funds. Mr. Hubbard receives management assistance from Joshua Betts and Brian McGreal.
As of October 31, 2012, in addition to the one series of the Trust, Mr. Hubbard managed 120 registered investment companies with a total of approximately $26.3 billion in assets, 34 other pooled investment vehicles with approximately $2.3 billion in assets and no other accounts.
As of October 31, 2012, in addition to the one series of the Trust, Mr. Betts managed 38 registered investment companies with a total of approximately $5.3 billion in assets, 32 other pooled investment vehicles with approximately $2.2 billion in assets and no other accounts.
As of October 31, 2012, in addition to the one series of the Trust, Mr. McGreal managed 29 registered investment companies with a total of approximately $3.6 billion in assets, 18 other pooled investment vehicles with approximately $1.2 billion in assets and no other accounts.
Although the funds that the Portfolio Managers, except Mr. Hubbard, manage may have different investment strategies, each has a portfolio objective of seeking returns that generally correspond to its underlying index. Each Fund that Mr. Hubbard manages may have different investment strategies and each Fund, except for the Invesco Premium Income Fund, has a portfolio objective of seeking returns that generally correspond to 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.
As of October 31, 2012, Messrs. Hubbard, Betts and McGreal did not own any securities of the Trust.
Description of Compensation Structure. 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 Compensation Committee may approve the bonus in advance. There is no policy regarding, or agreement with, the Portfolio Managers or any other senior executive of
19
the Adviser to receive bonuses or any other compensation in connection with the performance of any of the accounts managed by the Portfolio Managers.
Investment Advisory Agreement. Pursuant to the Investment Advisory Agreement, the Adviser is responsible for all expenses of the Fund and the Subsidiary, including the costs of transfer agency, custody, fund administration, legal, audit and other services, except for the advisory fee, distribution fees, if any, brokerage expenses, taxes, interest, Acquired Fund Fees and Expenses, if any, and extraordinary expenses, and the Subsidiary pays for its distribution fees (if any), brokerage expenses, taxes, interest, litigation expenses and extraordinary expenses. For the Adviser's services, the Fund has agreed to pay an annual management fee equal 0.78% of its average daily net assets to the Adviser (the "Advisory Fee").
The aggregate amounts of the Advisory Fees paid by the Fund to the Adviser for the Fund's fiscal years ended October 31, 2010, 2011 and 2012 are set forth in the chart below.
Advisory Fee Paid for the Fiscal Year Ended |
|||||||||||||||
Fund |
October 31, 2012 |
October 31, 2011 |
October 31, 2010 |
||||||||||||
PowerShares India Portfolio |
$ |
2,841,673 |
$ |
3,859,570 |
$ |
3,099,945 |
The Adviser has overall responsibility for the general management and administration of the Trust. 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. The Investment Advisory Agreement continues in effect (following its initial term) 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' prior written notice to the Adviser, or by the Adviser on 60 days' prior 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 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 in effect (following its initial term) only if approved annually by the board of directors 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 directors 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' prior written notice to the Adviser, or by the Adviser on 60 days' prior written notice to the Subsidiary.
Administrator. BBH 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
20
for the proper administration of the Trust and the Fund. BBH generally will 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. Its principal address is IFS Court, 28 Cybercity, Ebene, Mauritius. The Subsidiary pays International Financial Services Limited a fee for its services and providing shareholder services, including processing subscriptions, redemptions and distributions; providing appropriate office facilities in Mauritius; 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 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.
Payments to Financial Intermediaries. The Adviser may pay certain broker-dealers, banks and other financial intermediaries for participating in activities that are designed to make registered representatives and other professionals more knowledgeable about exchange traded products, including the Fund, or for other activities, such as participation in marketing activities and presentations, educational training programs, conferences, the development of technology platforms and reporting systems. As of February 7, 2013, the Adviser had arrangements to make payments, other than for the educational programs and marketing activities described above, only to Charles Schwab & Co., Inc. ("Schwab"). Pursuant to the arrangement with Schwab, Schwab has agreed to promote select exchange-traded funds advised by the Adviser to Schwab's customers and not to charge certain of its customers any commissions when those customers purchase or sell shares of those funds. Payments to a broker-dealer or intermediary may create potential conflicts of interest between the broker-dealer or intermediary and its clients. These amounts are paid by the Adviser from its own resources and not from the assets of the Fund.
Custodian, Transfer Agent and Fund Accounting Agent. BBH (the "Custodian" or "Transfer Agent"), 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. Invesco Distributors, Inc. (previously defined as the "Distributor") is the distributor of the Shares. The Distributor's principal address is 11 Greenway Plaza, Suite 1000, Houston, Texas 77046-1173. The Distributor has entered into a distribution agreement (the "Distribution Agreement") with the Trust pursuant to which it distributes the Shares. The Fund continuously offers Shares for sale through the Distributor only in Creation Unit Aggregations, as described in the Prospectus and below under the heading "Creation and Redemption of Creation Unit Aggregations."
21
Aggregations. The Distributor does not distribute Shares in less than Creation Unit Aggregations. The Distributor will deliver the Prospectus (or a Summary Prospectus) and, upon request, this SAI 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 also may enter into agreements with securities dealers ("Soliciting Dealers") who will solicit purchases of Creation Unit Aggregations of the Shares. Such Soliciting Dealers also may 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 for Fund Shares" below).
Index Provider. The Fund is based on the Indus India Index. The Indus India Index is compiled by Indus Advisors LLC ("Indus" or the "Index Provider").
No entity that creates, compiles, sponsors or maintains the Underlying Index is or will be an affiliated person, as defined in Section 2(a)(3) of the 1940 Act, or an affiliated person of an affiliated person, of the Trust, the Adviser, the Distributor or a promoter of the Fund.
Neither the Adviser nor any affiliate of the Adviser has any rights to influence the selection of the securities in the Underlying Index.
Additional information about the Fund's Underlying Index methodology is set forth below.
The Underlying Index is designed to represent the large-cap segment of the Indian equity markets. The Underlying Index has 50 constituents, spread among the following sectors: Information Technology, Health Sciences, Financial Services, Heavy Industry, Consumer Products and Other. An index committee, comprised of representatives of the Index Provider and members of academia specializing in emerging markets, supervises the Underlying Index.
The Underlying Index is constructed using a rules-based methodology. An important criterion for ranking the companies for potential selection within the Underlying Index is a proprietary methodology developed by the Index Provider, known as "IndusCap." The RBI, the Indian counterpart of the Federal Reserve Bank in the United States, imposes certain limits on the foreign ownership of Indian securities. The general limit on the ownership by foreign persons, being FIIs and/or sub-accounts, of the outstanding securities of Indian companies is 24%, which may be increased up to the foreign direct investment limit applicable to the sector to which the relevant company belongs. SEBI, the Indian counterpart of the SEC in the United States, monitors foreign holdings in each security, and periodically announces (a) when the current foreign holdings reach the respective "Caution" levels, 2% below the foreign ownership limits; and (b) changes to foreign holdings limits. IndusCap measures the capitalization in a company that is available for foreign ownership derived from (a) total capitalization, (b) percent foreign holdings limits, if any, (c) foreign holdings outside of the Subsidiary, 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") is re-formulated by the Index Provider (a) to include 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; and (b) to exclude (i) such companies, if any, which have had adverse regulatory actions against them in the most recent five years; and (ii) such companies, if any, whose liquidity in the traded exchange(s) has been below certain stated values. From this Indus Universe, the Index Provider chooses the securities of the 50 companies with the largest IndusCap values as the components of the Underlying Index. The Index Provider then calculates the weight of each security in the Underlying Index based on (a) the
22
respective IndusCap values of the securities of the selected 50 companies, (b) certain diversification rules under U.S. tax laws and European Union laws, and (c) sector limits (no more than 40% of the Underlying Index's assets will be invested in any one of the above-named sectors).
The Index Provider generally adjusts the Underlying Index quarterly, on the last days of January, April, July and October, and the adjusted index becomes effective on the second business day following the respective adjustment dates. 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.
If a security in the Underlying Index (a) reaches its limit, or Caution level, on foreign ownership on any day during the quarter, or (b) becomes subject to any adverse regulatory action, the Index Provider will remove such security from the Underlying Index on that day and distribute its weight on that day among all remaining securities in the Underlying Index in proportion to their weights in the Underlying Index on that day. Valuation data regarding the Underlying Index is available via Bloomberg, L.P. and Reuters.
Standard & Poor's, a division of The McGraw-Hill Companies, Inc., calculates the value of the Underlying 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, NYSE Arca publishes, at 15-second intervals, the indicative NAV of the Fund taking into account the fluctuations in the exchange rates between the Indian rupee and the U.S. dollar.
Disclaimers. 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 Underlying Index and trade names, which Indus composes 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, restatement, re-calculations 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.
23
BROKERAGE TRANSACTIONS
The policy of the Adviser regarding purchases and sales of securities is to give primary consideration to obtaining the most favorable prices and efficient executions of transactions under the circumstances. Consistent with this policy, when securities transactions are effected on a stock exchange, the Adviser'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 various brokers generally charge. The sale of Shares by a broker-dealer is not a factor in the selection of broker-dealers.
In seeking to implement its 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 currently do not participate in soft dollar transactions.
The Adviser assumes the general supervision over placing orders on behalf of the Fund and the Subsidiary for the purchase or sale of portfolio securities. If purchases or sales of portfolio securities by the Fund and the Subsidiary and one or more other investment companies or clients supervised by the Adviser are considered at or about the same time, the Adviser allocates transactions in such securities among the Fund and the Subsidiary, the several investment companies and clients in a manner deemed equitable to all. In some cases, this procedure could have a detrimental effect on the price or volume of the security as far as the Fund and the Subsidiary are 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 under the circumstances.
The aggregate brokerage commissions paid by the Fund during the fiscal years ended October 31, 2010, 2011 and 2012 are set forth in the chart below.
Brokerage Commissions Paid for the Fiscal Year Ended |
|||||||||||||||
Fund |
October 31, 2012 |
October 31, 2011 |
October 31, 2010 |
||||||||||||
PowerShares India Portfolio |
$ |
1,346,295 |
$ |
1,388,770 |
$ |
1,017,979 |
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 "Declaration").
The Trust is authorized to issue an unlimited number of shares in one or more series or "funds." The Trust currently offers shares of one fund. The Board 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, without shareholder approval.
Each Share issued by the Fund has a pro rata interest in the assets of the Fund. Shares have no preemptive, exchange, subscription or conversion rights and are freely transferable. Each Share 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, without shareholder approval, may amend the Declaration 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 Trust is not required, and does not intend, to hold an annual meeting of shareholders, but will call special meetings of shareholders whenever required by the 1940 Act or by the terms of the Declaration.
24
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 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 Declaration provides that by becoming a shareholder of the Fund, each shareholder shall be held expressly to have agreed to be bound by the provisions of the Declaration. The holders of Shares are required to disclose information on direct or indirect ownership of Shares as may be required to comply with various laws applicable to the Fund or as otherwise determined by the Trustees, and ownership of 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 liable personally as partners for its obligations. However, the Declaration 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 Declaration 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 Declaration also provides that a Trustee acting in his or her capacity as 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 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
25
is brought in violation of the Trust's Declaration, the shareholders bringing the action may be responsible for the Fund's costs, including attorneys' fees.
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, Invesco Distributors, Inc., 11 Greenway Plaza, Suite 1000, Houston, Texas 77046-1173.
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 New York Stock Exchange ("NYSE") and FINRA. Access to the DTC system also is 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 DTC maintains (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 DTC Participant may transmit such notice, statement or communication, 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 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,
26
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.
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 the Trust has delegated responsibility for decisions regarding proxy voting for securities the Fund holds to the Adviser. The Adviser will vote such proxies in accordance with its proxy policies and procedures, which are summarized in Appendix A to this SAI. The Board will review periodically 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 is 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 also is available on the SEC's website at www.sec.gov.
Codes of Ethics. Pursuant to Rule 17j-1 under the 1940 Act, the Board 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 may engage in personal securities transactions, but must 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 the Fund may purchase or sell. In addition, certain Access Persons must 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.
CREATION AND REDEMPTION OF CREATION UNIT AGGREGATIONS
Creation. The Trust issues 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.
A "Business Day" is any day on which the NYSE is open for business. As of the date of this SAI, the NYSE observes the following holidays: New Year's Day, Martin Luther King, Jr. Day, Washington's Birthday, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
Creation Units of the Fund principally are sold for Deposit Cash, plus fixed and variable transaction fees 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 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") computed as described below, plus a fixed and a variable transaction fee, as discussed below. Together, the Deposit
27
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 also is sometimes called the Balancing Amount. The Cash Component serves the function of compensating for any differences between the NAV per Creation Unit Aggregation and the Deposit Amount (as defined below). The Cash Component is an amount equal to the difference between the NAV of the Shares (per Creation Unit Aggregation) and the "Deposit Amount"an amount equal to the market value of the Deposit Securities. 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 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.
Such Fund Deposit applicable, subject to any adjustments as described below, 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 will change 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 also may change in response to adjustments to the weighting or composition of the securities of the Underlying Index. In addition, in cases where the Fund issues Creation Units in-kind, the Trust reserves the right to permit or require the substitution of an amount of cashi.e., a "cash in lieu" amountto be added to the Cash Component to replace any Deposit Security that may not be available in sufficient quantity for delivery or that may not be eligible for transfer through the systems of DTC or the Clearing Process (discussed below), if any, or which might not be eligible for trading by an AP (as defined below) or the investor for which it is acting or other relevant reason. Brokerage commissions incurred in connection with the acquisition of Deposit Securities not eligible for transfer through the systems of DTC and hence not eligible for transfer through the Clearing Process (discussed below) will be at the expense of the Fund and will affect the value of all Shares; but the Adviser may adjust the transaction fee within the parameters described above to protect ongoing shareholders. 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, also 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 "Additional Information Concerning the TrustBook Entry Only System"), and, in each case, must have executed an agreement with the Distributor, 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 "AP." Investors should contact the Distributor for the names of the APs that have
28
signed a Participant Agreement. All Shares, however created, will be entered on the records of DTC in the name of Cede & Co. for the account of a DTC Participant.
The Distributor must receive all orders to create Creation Unit Aggregations no later than the closing time of the regular trading session on the NYSE, as applicable ("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 Distributor must receive the order no later than 3:00 p.m., Eastern time on the trade date. With respect to in-kind creations, an AP may place a custom order where cash replaces any Deposit Security which may not be available in sufficient quantity for delivery or which may not be eligible for trading by such AP 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 AP by telephone or other transmission method acceptable to the Distributor pursuant to procedures set forth in the Participant Agreement, as described below. Creation and redemption orders submitted after 4:00 p.m. New York time are subject to special procedures set forth in a supplement to the Participant. Severe economic or market disruptions or changes, or telephone or other communication failure may impede the ability to reach the Distributor or an AP.
All orders from investors who are not APs to create Creation Unit Aggregations shall be placed with an AP, as applicable, in the form required by such AP. In addition, the AP 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 AP 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 Order. 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 causes the sub-custodian for the Fund to maintain an account into which the AP delivers, on behalf of itself or the party on whose behalf it is acting, 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 AP on its behalf or another investor's behalf by the closing time of the regular trading session on the NYSE 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 11:00 a.m., Eastern time, on the contractual settlement date.
If the Fund were to permit or require Creation Units to be issued in-kind, the AP must also make available no later than 11:00 a.m., Eastern time, on the contractual settlement date, by means approved by the Trust, immediately available or same-day funds sufficient for 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.
In accordance with the Trust's Participant Agreement, if in-kind creations are permitted or required by the Fund, Creation Unit Aggregations will be issued to an AP, notwithstanding the fact that the corresponding Fund Deposits have not been received in part or in whole, in reliance on the undertaking of the AP to deliver the missing Deposit Securities as soon as possible, which undertaking shall be secured by the AP's delivery and
29
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 105%, which the Investment Adviser may change from time to time, of the value of the missing Deposit Securities. Such cash collateral must be delivered no later than 11:00 a.m., Eastern time, on the contractual settlement date. The AP's agreement permits the Trust, acting in good faith, to purchase the missing Shares at any time and the AP will be subject to liability for any shortfall between the cost to the Trust of purchasing such shares and the value of the collateral, which may be sold by the Trust at such time, and in such manner, as the Trust may determine in its sole discretion.
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 Shares ordered, would own 80% or more of the currently outstanding Shares of the Fund; (iii) the Deposit Securities delivered are not as designated for that date by the Custodian, as described above; (iv) acceptance of the Deposit Securities would have certain adverse tax consequences to the Fund; (v) acceptance of the Portfolio Deposit would, in the opinion of counsel, be unlawful; (vi) acceptance of the Portfolio Deposit would otherwise, in the discretion of the Trust or the Adviser, have an adverse effect on the Trust, the Adviser 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 Transfer Agent, 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 AP acting on behalf of such prospective creator of its rejection of the order of such person. The Trust, the Transfer Agent, 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 Portfolio Deposits nor shall any of them incur any liability for the failure to give any such notification.
In the event the Fund issues Creation Units in-kind, 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 fixed and variable creation transaction fees 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 transaction fee for the Fund of $2,500 and a variable creation transaction fee equal to 0.20% of the value of each Creation Unit is applicable to each Creation Transaction. From time to time, the Adviser, in its sole discretion, may adjust the Fund's variable creation transaction fees to protect the Fund's existing shareholders. In addition, from time to time, the Adviser may reimburse APs for all or a portion of the creation transaction fees.
Redemption of Shares in Creation Unit Aggregations. Creation Units of the Fund will be redeemed principally for cash (the "Redemption Cash"). 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 Custodian 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 should expect to incur brokerage and other costs in connection with assembling a sufficient number of 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)
30
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 principally will consist of Fund Securitiesas announced on the Business Day of the request for redemption received in proper formplus or minus cash in an amount equal to the difference between the NAV of the 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 described below. In the event that the Fund Securities have a value greater than the NAV of the Shares, a compensating cash payment equal to the difference is required to be made by or through an AP 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 is closed (other than customary weekend and holiday closings); (ii) for any period during which trading on the NYSE 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.
An AP 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. This would specifically prohibit delivery of Fund Securities that are not registered in reliance upon Rule 144A under the Securities Act to a redeeming investor that is not a "qualified institutional buyer," as such term is defined under Rule 144A of the Securities Act. The AP may request the redeeming beneficial owner of the Shares to complete an order form or to enter into agreements with respect to such matters as compensating cash payment.
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. Investors who use the services of a broker or other such intermediary for in-kind redemptions in addition to an AP to effect a redemption of a Creation Unit Aggregation may be charged an additional fee of up to four times the fixed transaction fee for such services. The fixed redemption transaction fee for the Fund of $2,500 and a variable redemption transaction fee equal to 0.20% of the value of each Creation Unit is applicable to each redemption transaction. From time to time, the Adviser, in its sole discretion, may adjust the Fund's variable redemption transaction fees to protect the Fund's existing shareholders. In addition, from time to time, the Adviser may reimburse APs for all or a portion of the redemption transaction fees.
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 AP acting 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.
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In 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 AP. To the extent redemptions are effected in-kind, the AP's Participant Agreement permits the Trust, acting in good faith, 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 in such manner, as the Trust may determine in its sole discretion. In the event that the number of Shares is insufficient on trade date plus one, the Trust may deliver the Deposit Securities notwithstanding such deficiency in reliance on the undertaking of the AP to deliver the missing Shares as soon as possible. This undertaking shall be secured by such the AP's delivery on the contractual settlement date and subsequent maintenance of collateral consisting of cash having a value at least equal to 105% of the value of the missing Shares. The AP will be subject 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, which may be sold by the Trust at such time, and in such manner, as the Trust may determine in its sole discretion.
The calculation of the value of the Redemption Cash or, in the event redemptions are effected in-kind, 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 no 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 Redemption Cash or, in the event redemptions are effected in-kind, 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 no later than the Closing Time on the Transmittal Date, but either (i) the requisite number of Shares of the 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 Redemption Cash or, in the event redemptions are effected in-kind, 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 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 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 also, in its sole discretion, upon request of a shareholder, may 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. To the extent the Fund redeems Creation Units in-kind, redemptions of 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. In such an event, an AP 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 AP 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 and Portfolio Securities on a basis of "T" plus three Business Days (i.e., days on which the NYSE is open) and Redemption Cash on a basis of "T" plus four. The Fund may effect deliveries of Creation Units and Redemption Cash on a basis other
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than T plus three or T plus four 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 three 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 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 the 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, will 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 in this SAI at some time in the future.
The dates in calendar year 2013 in which the regular holidays affect the Indian and Mauritian markets are as follows:
INDIA:
January 25 |
April 24 |
October 2 |
December 25 |
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February 19 |
May 1 |
October 16 |
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March 27 |
August 9 |
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March 29 |
August 15 |
November 4 |
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April 11 |
September 9 |
November 14 |
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April 19 |
|
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MAURITIUS:
January 1 |
April 11 |
|
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January 2 |
May 1 |
December 25 |
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February 1 |
August 9 |
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September 10 |
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March 12 |
November 1 |
|
TAXES
General; Qualification as a RIC.
The Fund is treated as a separate corporation for federal tax purposes and, 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 of the Trust do not offset gains in another Fund thereof, and the requirements (other than a certain organizational requirement that the Trust satisfies) for qualifying for RIC status are determined at the Fund level rather than the Trust level.
The Fund intends to elect to be, and to qualify each taxable year to be treated as, a regulated investment company (a "RIC") under Subchapter M of Chapter 1 of Subtitle A of the Internal Revenue Code. To qualify for that treatment, the Fund must annually distribute to its shareholders at least 90% of its investment company taxable income (which includes dividends, interest, the excess of net short-term capital gain over net long-term capital loss ("net short-term gain"), and net gains and losses from certain foreign currency transactions, if any, all
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determined without regard to any deduction for dividends paid) ("Distribution Requirement") and must meet several other requirements relating to the nature of its gross income ("Gross Income Requirement") and the diversification of its assets. If the Fund satisfies these requirements, it will not be subject to federal income tax on the portion of its net investment income and net realized capital gains that it distributes to its shareholders.
If the Fund failed to qualify for any taxable year for treatment as a RICeither (1) by failing to satisfy the Distribution Requirement or (2) by failing to satisfy the Gross Income Requirement and/or the asset diversification requirements and is unable, or determines not to, avail itself of provisions enacted as part of the Regulated Investment Company Modernization Act of 2010 that enable a RIC to cure a failure to satisfy any of those requirementsall of its taxable income would be subject to tax at regular federal corporate income tax rates without any deduction for distributions to shareholders. In addition, for federal income tax purposes, the shareholders would treat all those distributions, including distributions of net capital gain (i.e., the excess of net long-term capital gain over net short-term capital loss), as dividends to the extent of the Fund's current and accumulated earnings and profits, taxable as ordinary income (except that, for individual and certain other non-corporate shareholders, the part thereof that is "qualified dividend income" (as defined in the Prospectus) would be subject to federal income tax at the rates for net capital gaina maximum of 15% for a single shareholder with taxable income not exceeding $400,000 ($450,000 for married shareholders filing jointly) and 20% for those non-corporate shareholders with taxable income exceeding those respective amounts; and all or part of those dividends might be eligible for the dividends-received deduction in the case of corporate shareholders that meet certain holding period and other requirements regarding their Fund shares. Furthermore, the Fund could be required to recognize unrealized gains, pay substantial taxes and interest, and make substantial distributions before re-qualifying for RIC treatment. The Fund has made 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 will be subject to a 4% federal excise tax ("Excise Tax") to the extent it fails to distribute to its shareholders in each calendar year an amount equal to at least the sum of (1) 98% of its ordinary income for the calendar year plus (2) 98.2% of its net capital gains for the twelve months ended October 31of such year plus (3) any ordinary income and net capital gains for previous years that was not distributed during those years. The Fund intends to declare and distribute distributions in the amounts and at the times necessary to avoid the application of this 4% excise tax.
The Trust has the right to reject an order to purchase Shares of the Fund if the purchaser (or group of purchasers) would, upon obtaining the ordered Shares, own 80% or more of the Fund's outstanding Shares and if, pursuant to Sections 351 and 362 of the Internal Revenue Code, the Fund would have a basis in the Deposit Securities to be received in exchange for the ordered Shares different from their market value 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 need to borrow money or dispose of some of its investments earlier than anticipated in order to meet their distribution requirements.
Taxation of Shareholders.
Distributions from the Fund's net investment income and net short-term capital gain, if any, are generally taxable as ordinary income. Distributions that a shareholder reinvests in additional Shares through the means of a dividend reinvestment service will be taxable dividends to the shareholder to the same extent as if the distributions had been received in cash. Distributions to a shareholder of net long-term capital gains in excess of net short-term capital losses, if any, are taxable as long-term capital gains, regardless of how long the shareholder has held his or her Shares.
Dividends declared by the Fund in October, November or December and paid to shareholders of record in one of such months during the following January are treated as having been received by such shareholders on December 31 of the year the distributions were declared.
If, for any taxable year, the total distributions the Fund makes exceed its current and accumulated earnings and profits, the excess will, for federal income tax purposes, be tax-free to each shareholder up to the amount of
34
the shareholder's basis in his or her Shares and thereafter as gain from the sale of those Shares. The amount so treated as tax-free 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 those Shares.
Long-term capital gains of individuals and certain other non-corporate taxpayers generally are subject to federal income tax at the 15%/20% maximum rates noted above. In addition, Fund distributions to those shareholders of qualified dividend income will qualify for federal income taxation at those rates, provided that certain holding period and other requirements are met by the Fund and the shareholder. The Fund will report to shareholders annually the amount of distributions taxable as ordinary income (from net investment income and net short-term gain), the amount of distributions from net capital gain, and the portion of dividends that may qualify as qualified dividend income or for the dividends-received deduction available to corporations.
The sale or redemption of Shares may give rise to a capital gain or loss, which generally will be treated as long-term capital gain or loss if the Shares have been held for more than one year and otherwise as short-term capital gain or loss. A loss realized on a sale of the Fund's Shares may be disallowed if other Shares of the Fund are acquired (whether through the automatic reinvestment of distributions or otherwise) within a 61-day period beginning thirty days before and ending thirty days after the date that the Shares are disposed of. In such a case, the basis in the acquired Shares must be adjusted to reflect the disallowed loss. Any loss upon a shareholder's sale of Shares held for six months or less will be treated as long-term capital loss to the extent of any capital gain distributions received by the shareholder. Distributions of ordinary income and capital gains may also be subject to state and local taxes.
Distributions of ordinary income paid to a shareholder who or that is a nonresident alien or foreign entity (a "foreign shareholder") that are not effectively connected with the foreign shareholder's conduct of a trade or business within the United States ("effectively connected") will generally be subject to a 30% U.S. withholding tax unless a reduced rate of withholding or a withholding exemption is provided under an applicable treaty. However, foreign shareholders will generally not be subject to withholding or income tax on gains realized on the sale of Shares or on net capital gain distributions unless (1) such gain or distribution is effectively connected or (2) in the case of an individual, 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 distribution and certain other conditions are met; those gains and distributions will generally be subject to federal income taxation at regular income tax rates. Furthermore, for Fund taxable years beginning before January 1, 2014, the Fund may, under certain circumstances, report all or a portion of a dividend as an "interest-related dividend" or a "short-term capital gain dividend," which generally will be exempt from the 30% withholding tax, provided certain other requirements are met. Foreign shareholders are urged to consult their own tax advisors concerning the applicability of the federal withholding tax. Nonresident alien individuals also may be subject to federal estate tax.
The Fund must withhold and remit to the U.S. Treasury 28% of distributions of ordinary income, capital gains, and any cash received on redemption of Creation Units (regardless of the extent to which gain or loss may be realized) otherwise payable to any individual or certain other non-corporate shareholder who fails to certify that the taxpayer identification number furnished to the Fund is correct or who furnishes an incorrect number (together with the withholding described in the next sentence, "backup withholding"). Withholding at that rate also is required from the Fund's dividends and capital gain distributions otherwise payable to such a shareholder who is subject to backup withholding for any other reason. Backup withholding is not an additional tax, and any amounts so withheld may be credited against a shareholder's federal income tax liability or refunded. 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.
Beginning in 2013, an individual is required to pay a 3.8% federal tax on the lesser of (1) the individual's "net investment income," which generally will include dividends and other distributions the Fund pays and gains recognized from the disposition of Shares, or (2) the excess of the individual's "modified adjusted gross income" over $200,000 for single taxpayers ($250,000 for married persons filing jointly). This tax is in addition to any other taxes due on that income. A similar tax applies to estates and trusts. Shareholders should consult their own tax advisors regarding the effect, if any, that this provision may have on their investment in Shares.
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A shareholder who wants to use the average basis method for determining basis in Shares he or she acquires after December 31, 2011 ("Covered Shares"), must elect to do so in writing (which may be electronic) with the broker through which he or she purchased the Shares. A shareholder who wishes to use a different method acceptable to the Internal Revenue Service ("IRS") for basis determination (e.g., a specific identification method) may elect to do so. Shareholders are urged to consult with their brokers regarding the application of the basis determination rules to them.
Pursuant to the Foreign Account Tax Compliance Act ("FATCA"), the Fund will be required to withhold 30% of (1) income dividends it pays after December 31, 2013, and (2) capital gain distributions and the proceeds of Share redemptions it pays after December 31, 2016, to certain foreign shareholders that fail to meet certain information reporting or certification requirements. Those foreign shareholders include foreign financial institutions ("FFIs"), such as non-U.S. investment funds, and non-financial foreign entities ("NFFEs"). To avoid withholding under FATCA, (a) an FFI must enter into an information sharing agreement with the IRS in which it agrees to report identifying information (including name, address, and taxpayer identification number) of the shareholder's direct and indirect U.S. owners and (b) an NFFE must provide requisite information to the withholding agent regarding its substantial (i.e., more than 10%) U.S. owners, if any. Those foreign shareholders also may fall into certain exempt, excepted, or deemed-compliant categories established by regulations and other guidance. A foreign shareholder resident or doing business in a country that has entered into an intergovernmental agreement with the United States to implement FATCA will be exempt from FATCA withholding provided that the shareholder and the applicable foreign government comply with the terms of the agreement. A foreign shareholder that invests in the Fund will need to provide the Fund with documentation properly certifying the entity's status under FATCA (currently proposed as Form W-8BEN-E) to avoid the FATCA withholding. Foreign investors should consult their own tax advisors regarding the impact of these requirements on their investment in the Fund.
Taxation of Fund Investments.
The Fund may make investments that are subject to special federal income tax rules, such as investments in repurchase agreements, convertible securities, structured notes 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 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.
Dividends and interest that the Fund receives, and gains it realizes, on foreign securities 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, however, and many foreign countries do not impose taxes on capital gains in respect of investments by foreign investors. 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 intends to 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
36
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 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 any applicable authority could materially affect the conclusions discussed above, possibly retroactively, and such changes often occur.
Taxation of Subsidiary's investments in India.
Please note that the tax implications in this section are based on the current provisions of the Indian tax laws, and the regulations thereunder, and the judicial and administrative interpretations thereof, which are subject to change or modification by subsequent legislative, regulatory, administrative or judicial decisions. Any such changes could have different tax implications.
General.
The basis of charge of Indian income-tax depends upon the residential status of the taxpayer during a tax year, as well as the nature of the income earned. The Indian tax year runs from April 1 until March 31. A person who is an Indian tax resident is liable to taxation in India on worldwide income, subject to certain tax exemptions, which are afforded under the provisions of the Income Tax Act, 1961 ("ITA"). A person who is treated as non-resident for Indian income-tax purposes generally is subject to tax in India only on such person's Indian-sourced income. A company will be subject to taxation in India only if it is a resident of India or if it is a non-resident that has an Indian source of income or has income received (whether accrued or otherwise) in India.
The taxation of the Subsidiary in India is governed by the provisions of the ITA, as well as the provisions of the Treaty. As per Section 90(2) of the ITA, the provisions of the ITA would apply to the extent they are more beneficial than the provisions of the Treaty.
In order to claim the beneficial provisions of the Treaty, the Subsidiary must be a tax resident of Mauritius. In light of Circular No. 789 dated April 13, 2000, issued by the Central Board of Direct Taxes, the Subsidiary would be eligible for the benefits under the Treaty if it is incorporated in Mauritius and has been issued a Tax Residence Certificate by the relevant Mauritius tax authority. Thus, the Subsidiary has obtained a Mauritius tax residence certificate from the Mauritius Revenue Authority. The Supreme Court of India has upheld the validity of Circular 789 and accordingly, the Subsidiary should be eligible for the benefits under the Treaty. The Tax Residence Certificate is renewable on an annual basis. The Indian Finance Act 2012 has introduced changes to the Indian Income Tax Act 1961 ("ITA"), which specify that only those tax residency certificates that contain certain prescribed information shall be eligible to receive the benefit under the Treaty. Although the Indian tax authorities have provided guidance as to the requisite information to be provided, it is not certain that the Mauritius Revenue Authority will amend the form of the TRC to conform to the requirements under Indian law. If the TRC issued by the Mauritius Revenue Authority does not include the requisite information, it is possible that the Indian tax authorities may not allow the Subsidiary to claim benefits under the Treaty.
The Subsidiary is expected to have income in the form of gains on sale of capital assets, income from dividends and income from interest. The tax consequences for the Subsidiary on account of the application of the
37
Treaty, read with the provisions of the ITA, and provided the Subsidiary does not have a permanent establishment in India would be as follows (all tax rates indicated below are exclusive of the currently applicable surcharge of 5% on the tax where applicable to Indian companies and 2% on the tax where applicable to the Subsidiary, and education tax at the rate of 3% on the amount of tax payable plus surcharge):
a. Capital gains resulting from the sale of Indian securities (including Foreign Currency Convertible Bonds ("FCCBs")), GDRs or ADRs issued by Indian companies will not be subject to tax in India;
b. Dividends on shares received from an Indian company on which dividend distribution tax has been paid is exempt from tax in the hands of the shareholders. However, the Indian company distributing dividends is subject to a distribution tax at the rate of 15%;
c. Interest income from loans made or debt securities held in India will be taxed at the rate of 20%. However if such interest arises out of FCCBs held by the Subsidiary then such interest shall be taxed at the rate of 10%.
In light of some recent judicial precedents in India, the gains arising on disposal of shares or securities could be characterized by the tax authorities as business income and not as capital gains. As per the provisions of the Treaty, if the gains arising on sale of shares or securities are characterized as business income, the same would be taxable in India only if the Subsidiary has a permanent establishment in India.
In the event that the benefits of the Treaty are not available to the Subsidiary, or the Subsidiary is held to have a permanent establishment in India, taxation of interest and dividend income of the Subsidiary would be the same as described above. The taxation of capital gains would be as follows (all tax rates indicated below are exclusive of the currently applicable surcharge of 5% on the tax where applicable to Indian companies and 2% on the tax where applicable to the Subsidiary, and education tax at the rate of 3% on the amount of tax payable plus surcharge):
a. Capital gains from the sale of listed Indian securities held for twelve months or less will be taxed as short-term capital gains at the rate of 15%, provided the Securities Transaction Tax ("STT") (as discussed below) has been paid;
b. Capital gains from the sale of listed Indian securities held for more than twelve months will be exempt from tax in India provided the STT has been paid;
c. Capital gains from the sale of listed Indian securities not executed on the stock exchange held for twelve months or less will be taxed at the rate of 30% and those held for more than twelve months shall be taxed at the rate of 10%;
d. Capital gains arising from the transfer of FCCBs, GDRs or ADRs outside India between non-resident investors, will not be subject to tax in India;
e. Gains from the disposal of shares acquired on redemption of GDRs or ADRs are treated as short-term if such shares are held for less than or equal to12 months prior to disposal and long term if such shares are held for more than 12 months prior to disposal. Short-term gains will be taxed at the rate of 15% provided STT (as discussed below) has been paid. Long term gains will be exempt from tax if STT has been paid.
Minimum Alternative Tax.
In the event the benefits of the Treaty are not available to the Subsidiary and the Subsidiary is held to have a permanent establishment in India, then the Subsidiary may be subject to Minimum Alternative Tax ("MAT"). As per the ITA, if the tax payable by a company (including a foreign fund) is less than 18.5% of its book profits, it will be required to pay MAT which will be deemed to be 18.5% of such book profits. Long-term capital gains on the sale of listed securities are included in the definition of "book profits" for the purposes of calculating MAT.
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There are diverse views as to the applicability of MAT to non-Indian companies and Indian courts have not interpreted the provisions, including as to the applicability of MAT to non-Indian companies, in a consistent manner.
Securities Transaction Tax.
The exemption for long term capital gains and the reduction of the rate on short-term capital gains are applicable only if the sale or transfer of the equity shares takes place on a recognized stock exchange in India and the STT, is collected by the respective stock exchanges at the applicable rates on the transaction value.
The Subsidiary also will be liable to pay STT in respect of dealings in Indian securities purchased or sold on the Indian stock exchanges. The applicable rates of STT are as follows:
a. 0.1% on purchase of equity shares in a company or units of equity oriented funds in a recognized stock exchange in India.
b. 0.1% on sale of equity shares in a company or units of equity oriented funds in a recognized stock exchange in India.
c. 0.025% on sale of equity shares in a company or units of equity oriented funds in a recognized stock exchange in India where the contract for sale is settled otherwise then by the actual delivery or transfer of share or unit.
d. 0.017% on sale of derivatives in a recognized stock exchange in India.
e. 0.25% on sale of units of an equity oriented fund.
DETERMINATION OF NAV
BBH calculates the Fund's NAV at the close of regular trading (normally 4:00 p.m., Eastern time) every day the NYSE 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 or its delegate.
In determining NAV, expenses are accrued and applied daily and securities and other assets for which market quotations are readily available are valued at market value. Securities listed or traded on an exchange are generally valued at the last sales price or official closing price of the exchange where the security primarily is traded. Securities included in the Underlying Index trade on the Bombay Stock Exchange or the National Stock Exchange. Due to the time difference between the United States and India, securities on these exchanges will not trade at times when Shares of the Fund will trade. If a security's market price is not readily available, the security will be valued using pricing provided from independent pricing services or by another method that the Adviser, in its judgment, believes will better reflect the security's fair value in accordance with the Trust's valuation policies and procedures approved by the Board.
Even when market quotations are available for portfolio securities, they may be stale or unreliable because the security is not traded frequently, trading on the security ceased before the close of the trading market or issuer specific events occurred after the security ceased trading or because of the passage of time between the close of the market on which the security trades and the close of the NYSE and when the Fund calculates its NAV. Issuer-specific events may cause the last market quotation to be unreliable. Such events may include a merger or insolvency, events which affect a geographical area or an industry segment, such as political events or natural disasters, or market events, such as a significant movement in the U.S. market. Where market quotations are not readily available, including where the Adviser determines that the closing price of the security is unreliable, the Adviser will value the security at fair value in good faith using procedures approved by the Board. In addition, the Fund currently expects that it will fair value foreign equity securities held by the Subsidiary 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
39
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 Subsidiary's portfolio securities will change at times when you will not be able to purchase or sell your Shares.
Because securities included in the Underlying Index are not traded while the Fund's NAV is calculated, changes in the value of the Subsidiary'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 Prospectus 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 Shares are distributed, as described below, on a pro rata basis to Beneficial Owners of such 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. K&L Gates LLP, 70 W. Madison Street, Suite 3100, Chicago, Illinois 60602, and 1601 K Street, N.W., Washington D.C. 20006, is counsel to the Trust.
Independent Registered Public Accounting Firm. PricewaterhouseCoopers LLP, One North Wacker Drive, Chicago, Illinois 60606, serves as the Fund's independent registered public accounting firm. PricewaterhouseCoopers LLP audits the Fund's financial statements and performs other related audit services.
FINANCIAL STATEMENTS
The audited financial statements, including the financial highlights appearing in the Trust's Annual Report to shareholders with respect to the Fund for the fiscal year ended October 31, 2012, and filed electronically with the SEC, are incorporated by reference and made part of this SAI. You may request a copy of the Trust's Annual and Semi-Annual Reports at no charge by calling 800.983.0903 during normal business hours.
40
APPENDIX A
INVESCO POWERSHARES CAPITAL MANAGEMENT LLC
PROXY VOTING POLICYOVERVIEW
Invesco PowerShares Capital Management LLC ("Invesco PowerShares") has adopted proxy voting policies with respect to securities owned by the exchange-traded funds ("ETFs") for which it serves as investment adviser and has the authority to vote proxies. Invesco PowerShares' proxy voting policies are designed to ensure that proxies are voted in the best interests of an ETF. With respect to implementation of its proxy voting policies, Invesco PowerShares:
1) applies its proxy voting policies consistently;
2) documents the reasons for voting;
3) maintains records of voting activities; and
4) monitors to ensure voting recommendations of an independent service provider are in the best interests of shareholders.
Proxy Voting
Invesco PowerShares has retained Glass Lewis & Co. to provide in-depth proxy research and has retained Broadridge to provide vote execution and the recordkeeping services necessary for tracking proxy voting for the ETFs. Invesco PowerShares intends to vote according to Glass Lewis & Co.'s voting recommendations. Glass Lewis & Co. specializes in providing a variety of fiduciary-level services related to proxy voting. Please see Exhibit A, Glass Lewis & Co. Proxy Paper Policy GuidelinesAn Overview of the Glass Lewis Approach to Proxy Advice 2008 Proxy Season.
Conflict of Interest
Invesco PowerShares maintains policies and procedures that are designed to prevent any relationship between the issuer of the proxy (or any shareholder of the issuer) and a Fund, a Fund's affiliates (if any), Invesco PowerShares or Invesco PowerShares's affiliates, from having undue influence on Invesco PowerShares's proxy voting activity. A conflict of interest might exist, for example, when an issuer who is soliciting proxy votes also has a client relationship with Invesco PowerShares, when a client of Invesco PowerShares is involved in a proxy contest (such as a corporate director), or when one of Invesco PowerShares's employees has a personal interest in a proxy matter. When a conflict of interest arises, in order to ensure that proxies are voted solely in the best interest of the Fund and its shareholders, Invesco PowerShares either will vote in accordance its written policies or engage an independent fiduciary as a further safeguard against potential conflicts of interest or as otherwise required by applicable law.
Share Blocking
Invesco PowerShares may choose not to vote proxies in certain situations or for certain accounts either where it deems the cost of doing so to be prohibitive or where the exercise of voting rights could restrict the ability of an ETF's portfolio manager to freely trade the security in question. For example, in accordance with local law or business practices, many foreign companies prevent the sale of shares that have been voted for a certain period beginning prior to the shareholder meeting and ending on the day following the meeting ("share blocking"). Due to these restrictions, Invesco PowerShares must balance the benefits of voting proxies against the potentially serious portfolio management consequences of a reduced flexibility to sell the underlying shares at the most advantageous time. For companies in countries with share blocking periods, the disadvantage of being unable to sell the stock regardless of changing conditions generally outweighs the advantages of voting at the shareholder meeting for routine items. Accordingly Invesco PowerShares will not vote those proxies in the absence of an unusual or significant vote.
A-1
Special Policy
With respect to the PowerShares Global Listed Private Equity Portfolio, PowerShares CEF Income Composite Portfolio, PowerShares KBW High Dividend Yield Financial Portfolio, PowerShares Financial Preferred Portfolio, PowerShares Lux Nanotech Portfolio and PowerShares Senior Loan Portfolio, the Adviser will vote proxies in accordance with Section 12(d)(1)(E), which requires that the Adviser vote the shares in the portfolio of the PowerShares Global Listed Private Equity Portfolio, PowerShares CEF Income Composite Portfolio, PowerShares KBW High Dividend Yield Financial Portfolio, PowerShares Financial Preferred Portfolio, PowerShares Lux Nanotech Portfolio and PowerShares Senior Loan Portfolio in the same proportion as the vote of all other holders of such security.
A-2
POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST
PART C. OTHER INFORMATION
Item 28. |
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Exhibits |
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a |
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Declaration of Trust of the Registrant dated August 3, 2007. (1) |
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b |
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Amended and Restated By-laws of the Registrant. (5) |
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d (1) |
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Investment Advisory Agreement between the Registrant and Invesco PowerShares Capital Management LLC. (2) |
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(2) |
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Management Agreement between PowerShares Mauritius and Invesco PowerShares Capital Management LLC. (6) |
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e |
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Amended and Restated Master Distribution Agreement between the Registrant and Invesco Distributors, Inc. (6) |
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g (1) |
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Custodian Agreement between the Registrant and Brown Brothers Harriman & Co. (6) |
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h (1) |
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Fund Administration and Accounting Agreement between the Registrant and Brown Brothers Harriman & Co. (6) |
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(2) |
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Form of Participant Agreement between Invesco Distributors, Inc. and the Participant. (6) |
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(3) |
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Form of Sublicensing Agreement between the Registrant and Invesco PowerShares Capital Management LLC. (6) |
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i (1) |
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Consent of counsel. (6) |
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j (1) |
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Consent of Independent Registered Public Accounting Firm. (6) |
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p (1) |
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Code of Ethics of the Registrant. (4) |
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(2) |
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Code of Ethics of Invesco Distributors, Inc. (1) |
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(3) |
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Code of Ethics of Invesco PowerShares Capital Management LLC. (3) |
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q (1) |
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Powers of Attorney. (5) |
(1) |
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Incorporated by reference to Pre-Effective Amendment No. 1 to the Trusts Registration Statement, filed on February 22, 2008. |
(2) |
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Incorporated by reference to Post-Effective Amendment No. 1 to the Trusts Registration Statement on Form N-1A, filed on February 27, 2009. |
(3) |
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Incorporated by reference to Post-Effective Amendment No. 4 to the Trusts Registration Statement on Form N-1A, filed on February 28, 2011. |
(4) |
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Incorporated by reference to Post-Effective Amendment No. 239 to the PowerShares Exchange-Traded Fund Trust IIs Registration Statement on Form N-1A, filed on August 12, 2011. |
(5) |
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Incorporated by reference to Post-Effective Amendment No. 6 to the Trusts Registration Statement on Form N-1A, filed on February 28, 2012. |
(6) |
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Filed herewith. |
Item 29 . |
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Persons Controlled by or Under Common Control with the Fund. |
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None. |
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Item 30. |
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Indemnification. |
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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). |
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Reference is made to Article IX of the Registrants Declaration of Trust: |
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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. |
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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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Further Indemnification. |
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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. |
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The information as to the trustees and executive officers of Invesco PowerShares Capital Management LLC as set forth in PowerShares Capital Management LLCs Form ADV filed with the Securities and Exchange Commission on May 5, 2012 and amended through the date hereof, is incorporated herein by reference. |
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Item 32. |
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Principal Underwriters. |
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The sole principal underwriter for the Fund is Invesco Distributors, Inc., which acts as distributor for the Registrant and the following other funds: |
AIM COUNSELOR SERIES TRUST (Invesco Counselor Series Trust)
Invesco Core Plus Bond Fund
Invesco Floating Rate Fund
Invesco Global Real Estate Income Fund
Invesco U.S. Quantitative Core Fund
Invesco California Tax-Free Income Fund
Invesco Equally-Weighted S&P 500 Fund
Invesco S&P 500 Index Fund
Invesco American Franchise Fund
Invesco Equity and Income Fund
Invesco Growth and Income Fund
Invesco Pennsylvania Tax Free Income Fund
Invesco Small Cap Discovery Fund
AIM EQUITY FUNDS (Invesco Equity Funds)
Invesco Charter Fund
Invesco Constellation Fund
Invesco Disciplined Equity Fund
Invesco Diversified Dividend Fund
Invesco Summit Fund
AIM FUNDS GROUP (Invesco Funds Group)
Invesco European Small Company Fund
Invesco Global Core Equity Fund
Invesco International Small Company Fund
Invesco Small Cap Equity Fund
AIM GROWTH SERIES (Invesco Growth Series)
Invesco Conservative Allocation Fund
Invesco Global Quantitative Core Fund
Invesco Growth Allocation Fund
Invesco Income Allocation Fund
Invesco Balanced-Risk Retirement Now Fund
Invesco Balanced-Risk Retirement 2020 Fund
Invesco Balanced-Risk Retirement 2030 Fund
Invesco Balanced-Risk Retirement 2040 Fund
Invesco Balanced-Risk Retirement 2050 Fund
Invesco International Allocation Fund
Invesco Mid Cap Core Equity Fund
Invesco Moderate Allocation Fund
Invesco Small Cap Growth Fund
Invesco Convertible Securities Fund
Invesco Leaders Fund
Invesco U.S. Mortgage Fund
AIM INTERNATIONAL MUTUAL FUNDS (Invesco International Mutual Funds)
Invesco Asia Pacific Growth Fund
Invesco European Growth Fund
Invesco Global Small & Mid Cap Growth Fund
Invesco Global Growth Fund
Invesco International Core Equity Fund
Invesco International Growth Fund
Invesco Global Opportunities Fund
Invesco Select Opportunities Fund
AIM INVESTMENT FUNDS (Invesco Investment Funds)
Invesco Balanced-Risk Allocation Fund
Invesco Balanced-Risk Commodity Strategy Fund
Invesco China Fund
Invesco Developing Markets Fund
Invesco Emerging Market Local Currency Debt Fund
Invesco Global Health Care Fund
Invesco International Total Return Fund
Invesco Endeavor Fund
Invesco Pacific Growth Fund
Invesco Select Companies Fund
Invesco Premium Income Fund
Invesco Global Markets Strategy Fund
Invesco Emerging Markets Equity Fund
AIM INVESTMENT SECURITIES FUNDS (Invesco Investment Securities Funds)
Invesco Dynamics Fund
Invesco Global Real Estate Fund
Invesco High Yield Fund
Invesco Limited Maturity Treasury Fund
Invesco Money Market Fund
Invesco Municipal Bond Fund
Invesco Real Estate Fund
Invesco Short Term Bond Fund
Invesco U.S. Government Fund
Invesco High Yield Securities Fund
Invesco Corporate Bond Fund
AIM SECTOR FUNDS (Invesco Sector Funds)
Invesco Energy Fund
Invesco Gold & Precious Metals Fund
Invesco Leisure Fund
Invesco Technology Fund
Invesco Utilities Fund
Invesco Technology Sector Fund
Invesco American Value Fund
Invesco Comstock Fund
Invesco Mid Cap Growth Fund
Invesco Small Cap Value Fund
Invesco Value Opportunities Fund
AIM TAX-EXEMPT FUNDS (Invesco Tax-Exempt Funds)
Invesco Tax-Exempt Cash Fund
Invesco Tax-Free Intermediate Fund
Invesco High Yield Municipal Fund
Invesco Intermediate Term Municipal Income Fund
Invesco Municipal Income Fund
Invesco New York Tax Free Income Fund
AIM TREASURERS SERIES TRUST (Invesco Treasurers Series Trust)
Premier Portfolio
Premier Tax-Exempt Portfolio
Premier U.S. Government Money Portfolio
AIM VARIABLE INSURANCE FUNDS (Invesco Variable Insurance Funds)
Invesco V.I. Balanced-Risk Allocation Fund
Invesco V.I. Core Equity Fund
Invesco V.I. Diversified Income Fund
Invesco V.I. Global Health Care Fund
Invesco V.I. Global Real Estate Fund
Invesco V.I. Government Securities Fund
Invesco V.I. High Yield Fund
Invesco V.I. International Growth Fund
Invesco V.I. Mid Cap Core Equity Fund
Invesco V.I. Money Market Fund
Invesco V.I. Small Cap Equity Fund
Invesco V.I. Technology Fund
Invesco V.I. Utilities Fund
Invesco V.I. Diversified Dividend Fund
Invesco V.I. High Yield Securities Fund
Invesco V.I. S&P 500 Index Fund
Invesco V.I. Equally-Weighted S&P 500 Fund
Invesco Van Kampen V.I. Value Opportunities Fund
Invesco Van Kampen V.I. American Franchise Fund
Invesco Van Kampen V.I. Comstock Fund
Invesco Van Kampen V.I. Equity and Income Fund
Invesco V.I. Global Core Equity Fund
Invesco Van Kampen V.I. Growth and Income Fund
Invesco Van Kampen V.I. Mid Cap Growth Fund
Invesco Van Kampen V.I. American Value Fund
Invesco Van Kampen Senior Loan Fund
Invesco Van Kampen Exchange Fund
SHORT-TERM INVESTMENT TRUST
Government & Agency Portfolio
Government TaxAdvantage Portfolio
Liquid Assets Portfolio
STIC Prime Portfolio
Tax-Free Cash Reserve Portfolio
Treasury Portfolio
PowerShares Exchange-Traded Fund Trust
PowerShares Exchange-Traded Fund Trust II
PowerShares Actively Managed Exchange-Traded Fund Trust
*Please note that PowerShares India Exchange-Traded Fund Trust is also distributed by Invesco Distributors, Inc., but it is not included in this list because it is the registrant filing the N-1A.
NAME AND PRINCIPAL |
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POSITIONS AND OFFICES WITH |
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POSITIONS AND OFFICES WITH |
BUSINESS ADDRESS* |
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REGISTRANT |
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UNDERWRITER |
Robert C. Brooks |
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None |
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Director |
Peter Gallagher |
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None |
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Director & President |
Andrew Schlossberg |
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President |
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Director |
John M. Zerr |
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Chief Legal Officer |
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Senior Vice President & Secretary |
Annette Lege |
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None |
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Chief Financial Officer & Treasurer |
Lisa O. Brinkley |
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None |
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Chief Compliance Officer |
Yinka Akinsola |
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Anti-Money Laundering Compliance Officer |
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Anti-Money Laundering Compliance Officer |
* The principal business address for all directors and executive officers is Invesco Distributors, Inc., 11 Greenway Plaza, Suite 1000, Houston, Texas 77046-1173.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, the Registrant certifies that it meets all of the requirements for effectiveness of this Registration Statement under Rule 485(b) under the Securities Act of 1933, as amended, and it 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 28th day of February, 2013.
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PowerShares India Exchange-Traded Fund Trust |
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By: |
/s/ Andrew Schlossberg |
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Title: Andrew Schlossberg, 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 |
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TITLE |
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DATE |
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/s/ Andrew Schlossberg |
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President |
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February 28, 2013 |
Andrew Schlossberg |
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/s/ Steven Hill |
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Treasurer |
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February 28, 2013 |
Steven Hill |
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/s/ Anna Paglia |
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Secretary |
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February 28, 2013 |
Anna Paglia |
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*/s/ Donald H. Wilson |
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Chairman and Trustee |
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February 28, 2013 |
Donald H. Wilson |
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*/s/ Ronn R. Bagge |
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Trustee |
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February 28, 2013 |
Ronn R. Bagge |
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*/s/ Todd J. Barre |
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Trustee |
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February 28, 2013 |
Todd J. Barre |
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*/s/ Kevin M. Carome |
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Trustee |
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February 28, 2013 |
Kevin M. Carome |
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*/s/ Marc M. Kole |
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Trustee |
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February 28, 2013 |
Marc M. Kole |
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*/s/ Philip M. Nussbaum |
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Trustee |
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February 28, 2013 |
Philip M. Nussbaum |
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*/s/ Graeme J. Proudfoot |
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Trustee |
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February 28, 2013 |
Graeme J. Proudfoot |
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*/s/ Kapil Dev Joory |
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Trustee |
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February 28, 2013 |
Kapil Dev Joory |
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*By: /s/ Anna Paglia |
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February 28, 2013 |
Anna Paglia |
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Attorney-In-Fact |
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* Anna Paglia signs on behalf of the powers of attorney filed with Post-Effective Amendment No. 6 to the Trusts Registration Statement and incorporated by reference herein.
Exhibit Index
(d)(2) |
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Management Agreement between the PowerShares Mauritius and Invesco PowerShares Capital Management LLC. |
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(e) |
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Amended and Restated Master Distribution Agreement between Registrant and Invesco Distributors, Inc. |
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(g)(1) |
- |
Custodian Agreement between Registrant and Brown Brothers Harriman & Co. |
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(h)(1) |
- |
Fund Administration and Accounting Agreement between Registrant and Brown Brothers Harriman & Co. |
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(h)(2) |
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Form of Participant Agreement between Invesco Distributors, Inc. and the Participant. |
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(h)(3) |
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Form of Sublicense Agreement between the Registrant and Invesco PowerShares Capital Management LLC. |
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(i)(1) |
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Consent of counsel. |
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(j)(1) |
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Opinion and consent of Independent Registered Public Accounting Firm. |
Exhibit (d)(2)
POWERSHARES MAURITIUS
(the Fund)
and
POWERSHARES CAPITAL MANAGEMENT LLC
(the Fund Manager)
MANAGEMENT AGREEMENT
relating to
POWERSHARES MAURITIUS
Dated this 22 nd of February 2008
TABLE OF CONTENTS
1. |
Appointment |
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2. |
Duties of the Fund Manager |
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3. |
Powers of the Fund Manager |
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4. |
Restrictions on the Fund Manager |
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5. |
Compliance with Investment Strategy, Constitution, Resolutions... etc |
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6. |
Provision of Information, Explanations and Reports |
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7. |
Sub-Advisors |
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8. |
Restrictions on Dealing |
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9. |
Remuneration of Fund Manager |
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10. |
Voting Rights of Investments |
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11. |
Costs |
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12. |
Variation of terms of Agreement |
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13. |
Duration |
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14. |
Termination |
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15. |
Consequences of Termination |
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16. |
Use of Name |
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17. |
Notices |
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18. |
Indemnity |
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19. |
Non-Exclusivity |
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20. |
Miscellaneous |
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21. |
Proper Law and Jurisdiction |
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT , dated as of February 22, 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.
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.
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 Managers 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
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;
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 Funds Directors and the Shareholders Independent Directors, the Fund Manager may, through a sub-advisory agreement or other arrangement, delegate to any other company under PowerShares Capital Managements 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 Managers 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
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 Funds Directors and the Shareholders 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 Funds 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
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 Managers 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 Funds 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
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 Funds Directors and the Shareholders 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 Funds 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 Funds Directors and the Shareholders 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 Shareholders 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 Managers 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.
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 Managements 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 Managements 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,
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.
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]
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.
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POWERSHARES MAURITIUS |
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By: |
/s/ Couldip Basanta Lala |
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Name: Couldip Basanta Lala |
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Title: Director |
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POWERSHARES CAPITAL MANAGEMENT LLC |
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By: |
/s/ H. Bruce Bond |
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Name: H. Bruce Bond |
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Title: President |
Exhibit (e)
AMENDED AND RESTATED MASTER DISTRIBUTION AGREEMENT
AMENDED AND RESTATED MASTER DISTRIBUTION AGREEMENT made as of the 30th day of April, 2009, by and between POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST, Massachusetts business trust (the Trust), on behalf of each of its series of beneficial interest set forth on Schedule A to this Agreement (each individually referred to as Fund, or collectively as Funds) and INVESCO AIM DISTRIBUTORS, INC., a Delaware corporation (the Distributor).
WHEREAS, the Trust entered into a Master Distribution Agreement with the Distributor dated February 22, 2008, to provide distribution services; and
WHEREAS, as of April 30 2009, the Master Distribution Agreement was amended and restated (this Agreement) to make ministerial changes designed to facilitate the administration of this Agreement; and
WHEREAS, the Trust intends to create and redeem shares of beneficial interest, par value $.001 per share (Share), of each Fund on a continuous basis at their net asset value only in aggregations constituting a Creation Unit, as such term is defined in the registration statement filed from time to time by the Trust with the Securities and Exchange Commission (the Commission) and effective under the Securities Act of 1933, as amended (the 1933 Act), and the Investment Company Act of 1940, as amended (the 1940 Act) (the Registration Statement);
WHEREAS, each Fund invests primarily in securities comprising a particular market index and has filed with the Commission a Registration Statement on Form N-1A under the 1933 Act and the 1940 Act;
WHEREAS, the Shares of each Fund are or will be listed on the stock exchange set forth in Schedule A and traded under the symbols set forth in Schedule A, attached hereto and incorporated herein by reference;
WHEREAS, the Trust desires to retain Distributor to act as the distributor with respect to the issuance and distribution of Creation Units of Shares of each Fund, to receive and process orders for such Creation Units in the manner set forth in the Trusts Prospectus and/or Statement of Additional Information constituting parts of the Registration Statement, as amended and filed with the Commission (the Prospectus), and to enter into arrangements with broker-dealers who may solicit purchases of Shares and with broker-dealers and others to provide for servicing of shareholder accounts and for distribution assistance, including broker-dealer and shareholder support;
WHEREAS, Distributor is a registered broker-dealer under the Securities Exchange Act of 1934, as amended (the 1934 Act) and a member of the Financial Industry Regulatory Authority, Inc. (FINRA);
NOW THEREFORE:
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt whereof is hereby acknowledged, the parties hereto agree as follows:
FIRST: The Trust hereby appoints the Distributor as the exclusive distributor for Creation Unit aggregations of Shares of each Fund listed in Schedule A hereto, as may be amended by the parties from time to time, on the terms and for the period set forth in this Agreement and subject to the registration requirements of the 1933 Act and of the laws governing the sale of securities in the various states, and the Distributor hereby accepts such appointment and agrees to act in such capacity hereunder. The Funds hereby appoint the Distributor as their exclusive agent to receive all orders for purchases of Creation Units of each Fund from Participating Parties or DTC Participants which have entered into an agreement (a Participant Agreement) for book-entry of The Depository Trust Company and the NSCC as described in the Prospectus ( Authorized Participant) and to transmit such orders to the Trust in accordance with the Registration Statement and Prospectus; provided, however, that nothing herein shall affect or limit the right and ability of the Trust to accept Deposit Cash, as defined in the Prospectus, all as provided in and in accordance with the Registration Statement and Prospectus. Each Participant Agreement shall provide that the Authorized Participant shall act as a principal, and not as an agent, of the Trust on behalf of the Funds.
SECOND: The Fund shall not issue or distribute Creation Units except through the Distributor and under the terms and conditions set forth in this Agreement; provided, however, that:
(A) the Fund may issue Shares to any other investment company or personal holding company, or to the shareholders thereof, in exchange for all or a majority of the shares or assets of any such company;
(B) the Fund shall have the right to specify minimum amounts for initial and subsequent orders for the purchase of Shares; and
(C) the Trust acknowledges that nothing herein shall prevent the Distributor from entering into like distribution arrangements with other investment companies.
THIRD: The Distributor hereby accepts appointment as exclusive agent for the issuance and distribution of Creation Units and agrees that it will use its best efforts to sell such Creation Units; provided, however, that:
(A) the Distributor may, and when requested by the Fund shall, suspend its efforts to effectuate the issuance and distribution of Creation Units at any time when, in the opinion of the Distributor or of the Fund, no sales should be made because of market or other economic considerations or abnormal circumstances of any kind;
(B) the Fund may withdraw the offering of the Shares (i) at any time with the consent of the Distributor, or (ii) without such consent when so required by the provisions of any statute or of any order, rule or regulation of any governmental body having jurisdiction; and
(C) the Distributor, as agent, does not undertake to issue or distribute any specific amount of Creation Units.
FOURTH: The Distributor shall act as agent of the Fund in connection with the issuance and distribution of Creation Units of each Fund through Authorized Participants. The Distributor shall, at its own expense, execute selected or soliciting dealer agreements (Soliciting Dealer Agreements) with registered broker-dealers and other eligible entities providing for the purchase of Creation Units of Shares of the Funds and related promotional activities, in the forms as approved by the Board of Trustees of the Trust. The Distributor may also enter into Soliciting Dealer Agreements with registered broker-dealers and other eligible entities who may solicit purchases of Creation Units and with broker-dealers and others to provide for servicing of shareholder accounts and for distribution
assistance, including broker-dealer and shareholder support that shall not be inconsistent with the provisions of this Agreement.
FIFTH: The Funds shall bear:
(A) the expenses of qualification of Shares for sale in connection with such public offerings in such jurisdictions as may be applicable as selected by the Distributor, and of continuing the qualification therein until the Distributor notifies the Fund that it does not wish such qualification continued; and
(B) all legal expenses in connection with the foregoing.
SIXTH: The Distributor shall:
(A) Bear the expenses of (a) printing from the final proof and distributing the Prospectuses for the Shares (including supplements thereto) relating to public offerings made by the Distributor pursuant to this Agreement (which shall not include those Prospectuses, and supplements thereto, to be distributed to shareholders of each Fund), and any other promotional or sales literature used by the Distributor or furnished by the Distributor to investment dealers and financial institutions in connection with such public offerings, and expenses of advertising in connection with such public offerings; (b) costs of processing and maintaining records of Creation Units; (c) costs of maintaining the records required of a broker-dealer registered under the 1934 Act; (d) expenses of maintaining its registration or qualification as a dealer or broker under federal or state laws; and (e) all other expenses incurred in connection with the distribution services contemplated herein, except as provided in this Agreement.
(B) Instruct broker-dealers with whom it has Soliciting Dealer Agreement that a Prospectus or Product Description, as applicable, must be distributed in accordance with all rules and regulations made or adopted pursuant to the 1933 Act and the 1940 Act, including FINRA, the NYSE Arca, Inc. (NYSE Arca) and any other national stock exchange on which the Shares may be listed. The Distributor shall not be liable for a broker-dealers failure to comply with these requirements. The Distributor shall use commercially reasonable efforts to fulfill all direct requests for Prospectuses, Statements of Additional of Information, Product Descriptions and periodic fund reports, as applicable. In addition, the Distributor will use commercially reasonable efforts to provide the NYSE Arca and any other national stock exchange on which the Shares may be listed with copies of Prospectuses to be provided to purchasers in the secondary market. The Distributor will use commercially reasonable efforts to make it known in the brokerage community that prospectuses and statements of additional information are available, including (i) advising the NYSE Arca and any other national stock exchange on which the Shares may be listed on behalf of their member firms of the same, (ii) making such disclosure in all marketing and advertising materials prepared and/or filed by the Distributor with FINRA, and (iii) as may otherwise be required by the Commission.
(C) Accept orders for the purchase of Creation Units only to the extent of purchase orders actually received and not in excess of such orders, and it will not avail itself of any opportunity of making a profit by expediting or withholding orders. The Fund may reject purchase orders where, in the judgment of the Fund, such rejection is in the best interest of the Fund. The Distributor shall generate and transmit confirmations of Creation Unit purchase order acceptances to the purchaser. The Distributor shall maintain telephonic, facsimile and/or access to direct computer communications links with the Transfer Agent.
(D) Review all sales and marketing materials for compliance with applicable laws and conditions of any applicable exemptive order, and file such materials with FINRA when necessary or
appropriate. All such sales and marketing materials must be approved, in writing, by the Distributor prior to use.
SEVENTH: The Funds and the Distributor shall each comply with all applicable provisions of the 1940 Act and the 1933 Act; all other federal and state laws, rules and regulations governing the issuance and sale of the Shares; the Registration Statements and Prospectuses of the Funds; and the instructions of the Board of Trustees of the Trust.
EIGHTH: The Trust:
(A) Agrees to issue Creation Unit aggregations of Shares of each Fund and to request The Depository Trust Company to record on its books the ownership of such Shares in accordance with the book-entry system procedures described in the Prospectus in such amounts as the Distributor has requested through the Transfer Agent in writing or other means of data transmission, as promptly as practicable after receipt by the Trust of the requisite Deposit Cash (together with any fees) and acceptance of such order, upon the terms described in the Registration Statement. The Trust may reject any order for Creation Units or stop all receipts of such orders at any time upon reasonable notice to the Distributor, in accordance with the provisions of the Prospectus;
(B) Agrees that it will take all action necessary to register an indefinite number of Shares under the 1933 Act. The Trust will make available to the Distributor such number of copies of its then current effective Prospectus and/or Product Description as the Distributor may reasonably request. The Trust will furnish to the Distributor copies of all information, financial statements and other papers, which the Trust shall keep and shall keep the Distributor informed of the jurisdictions in which Shares of the Trust are authorized for sale and shall promptly notify the Distributor of any change in this information. The Distributor shall not be liable for damages resulting from the sale of Shares in authorized jurisdictions where the Distributor had no information from the Trust that such sale or sales were unauthorized at the time of such sale or sales;
(C) Represents to the Distributor that the Registration Statement and Prospectus filed by the Trust with the Commission with respect to the Trust have been prepared in conformity with the requirements of the 1933 Act, the 1940 Act and the rules and regulations of the Commission thereunder. The Trust will notify the Distributor promptly of any amendment to the Registration Statement or supplement to the Prospectus and any stop order suspending the effectiveness of the Registration Statement.
NINTH:
(A) In the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of obligations or duties hereunder on the part of the Distributor, the Funds shall indemnify the Distributor against any and all claims, demands, liabilities and expenses which the Distributor may incur under the 1933 Act, or common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in any registration statement or Prospectus of the Funds, or any omission to state a material fact therein, the omission of which makes any statement contained therein misleading, unless such statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund in connection therewith by or on behalf of the Distributor.
(B) The Distributor shall indemnify the Funds against any and all claims, demands, liabilities and expenses which the Fund may incur under the 1933 Act, or common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in any registration statement or Prospectus of the Funds, or any omission to state a material fact therein if such statement or omission was made in reliance upon, and in conformity with, information furnished to
the Fund in connection therewith by or on behalf of the Distributor. The Distributor shall indemnify the Fund and the Shares against any and all claims, demands, liabilities and expenses which the Fund or the Shares may incur arising out of or based upon any act or deed of the Distributor or its sales representatives which has not been authorized by the Fund in its Prospectus or in this Agreement.
(C) Notwithstanding any other provision of this Agreement, the Distributor shall not be liable for any errors of the transfer agent(s) of the Funds, or for any failure of any such transfer agent to perform its duties.
TENTH: Nothing herein contained shall require the Trust to take any action contrary to any provision of this Agreement and its Declaration of Trust, as amended, or to any applicable statute or regulation.
ELEVENTH: This Agreement, with respect to each Fund, was initially approved, and is effective, on the date set forth in the attached Schedule A. Unless sooner terminated as provided herein, this Agreement shall continue in effect with respect to each Fund until the termination date set forth in the attached Schedule A, and 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, with respect to any given Fund, by vote of a majority of the outstanding voting securities of such Fund.
TWELFTH:
(A) This Agreement may be terminated with respect to the Shares of any Fund at any time, without the payment of any penalty, by vote of the Board of Trustees of the Trust or by vote of a majority of the outstanding Shares of such Fund, or by the Distributor, on sixty (60) days written notice to the other party; and
(B) This Agreement shall automatically terminate in the event of its assignment, the term assignment having the meaning set forth in Section 2(a)(4) of the 1940 Act.
THIRTEENTH: Any notice under this Agreement shall be in writing, addressed and delivered, or mailed postage prepaid, to the other party at such address as the other party may designate for the receipt of notices. Until further notice to the other party, the addresses of each Fund shall be 301 West Roosevelt Road, Wheaton, Illinois 60187 and the Distributor shall be 11 Greenway Plaza, Suite 100, Houston, Texas 77046-1143.
FOURTEENTH: Notice is hereby given that, as provided by applicable law, the obligations of or arising out of this Agreement are not binding upon any of the shareholders of the Fund individually, but are binding only upon the assets and property of the Fund and that the shareholders shall be entitled, to the fullest extent permitted by applicable law, to the same limitation on personal liability as stockholders of private corporations for profit.
FIFTEENTH: This Agreement shall be deemed to be a contract made in the State of Delaware and governed by, construed in accordance with and enforced pursuant to the internal laws of the State of Delaware without reference to its conflicts of laws rules.
SIXTEENTH: It is expressly acknowledged and agreed that the obligations of the Trust hereunder shall not be binding upon any of the 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. The execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and signed by an officer of the Trust, acting as such, and neither such authorization by such Trustees nor such execution and delivery by such officer shall be deemed to have been made by any of them individually or to impose any liability on any of them personally, but shall bind only the trust property of the Trust as provided in its Declaration of Trust. The Distributor 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.
SEVENTEENTH: The Trust expressly acknowledges that the Distributor may utilize its affiliate, AIM Investment Services, Inc. (AIS), a transfer agent registered with the Commission, as a designee to receive and process orders for Creation Units, which designee is to be considered the Funds agent pursuant to the terms of this Agreement. The Distributor shall ensure that AIS 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 AIS. Notwithstanding the foregoing, the Distributor shall be fully and wholly liable and responsible to the Trust for all actions or omissions on the part of AIS. The Distributor and AIS are each duly registered to perform any and all services under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate on the day and year first above written.
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PowerShares India Exchange-Traded Fund
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/s/ H. Bruce Bond |
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H. Bruce Bond |
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Chairman and CEO |
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INVESCO AIM DISTRIBUTORS, INC. |
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John S. Cooper |
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Name: |
John S. Cooper |
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Title: |
President |
Exhibit (g)(1)
CUSTODIAN AGREEMENT
THIS CUSTODIAN AGREEMENT ( Agreement ), dated as of February 22, 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 Funds 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 Funds 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 Funds 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 Funds 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 partys 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 Custodians 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.
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
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.
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 Funds 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
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
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 Funds Investments, (iii) upon the Custodians or Subcustodians 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.
5.2 Certificated Assets . Investments which are certificated may be held in registered or bearer form: (a) in the Custodians 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
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 Funds 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
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 Funds 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 Custodians willful malfeasances, bad faith or negligence.
6.5 Contractual Obligations and Similar Investments . From time to time, the Funds 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 Funds account in accordance with the terms of the applicable
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 Funds 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
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.
6.13 Ownership Certificates and Disclosure of the Funds 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
Funds 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 Funds 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
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 Funds 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
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,
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 Funds 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 Custodians 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 counterpartys 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
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
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 Custodians 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.
7.7 Custodians 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 Funds obligations to the Custodian or its assignee, and balances in the Principal Accounts shall be available for satisfaction of the Funds 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
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
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 Funds 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.
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.
8.6 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 Custodians willful malfeasance, bad faith or negligence. Notwithstanding the above, the Custodian shall be liable to the extent (a) that the Custodians 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
resulting from the Custodians 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 Custodians own negligence, bad faith or willful malfeasance. It is agreed that the Custodian shall have no duty to assess the risks inherent in the Funds 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
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 Custodians 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 Funds principal place of business operations or administration; provided always that this shall not affect the Funds 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.
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 Custodians 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 Custodians 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.
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 Funds 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 Funds written consent, and shall provide the Fund with written evidence of any cost or expense for which it is seeking indemnification.
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 Custodians 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
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 Funds 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.
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
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:
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PowerShares India Exchange-Traded Fund Trust |
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301 West Roosevelt Road |
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Wheaton, IL 60187 |
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Attn: H. Bruce Bond |
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Telephone: |
630.933.9600 |
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Facsimile |
630.933.9699 |
If to PowerShares Mauritius:
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If to the Custodian: |
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Brown Brothers Harriman & Co. |
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40 Water Street |
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Boston, Massachusetts 02109 |
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Attn: Senior Legal Officer, Investor Services |
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Telephone: |
(617) 772-XXXX |
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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
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 Funds 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 Custodians negligence, bad faith or willful misconduct).
12.12 Conflict . Subject to the Custodians 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 Custodians 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
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
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 Funds 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.
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.
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&Co. to a successor within the time specified in the notice of termination as aforesaid, BBH&Co. 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
order to facilitate the succession of the new custodian. If no successor custodian shall be appointed, the Custodian shall in like manner transfer the Funds 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.
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
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By: |
/s/ Timothy J. Connelly |
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By: |
/s/ H. Bruce Bond |
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Name: Timothy J. Connelly |
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Name: H. Bruce Bond |
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Title: Partner |
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Title: Director / Trustee |
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Date: February 25, 2008 |
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Date: February 22, 2008 |
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 Departments 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 ).
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 Funds 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 SWIFTs 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 Funds computer facilities to the Custodians 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.
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 senders 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 Custodians 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 Custodians non-execution, the Custodian shall be liable only for the Funds 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 Custodians 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 Custodians execution of the order. Any cancellation shall be sent and confirmed in the manner set forth in Paragraph 2 above.
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 Funds 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 Funds 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:
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
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By: |
/s/ Timothy J. Connelly |
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By: |
/s/ H. Bruce Bond |
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Name: Timothy J. Connelly |
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Name: H. Bruce Bond |
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Title: Partner |
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Title: Trustee |
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Date: February 25, 2008 |
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Date: February 22, 2008 |
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
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.
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
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
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POWERSHARES INDIA EXCHANGE-TRADED FUND TRUST |
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By: |
/s/ H. Bruce Bond |
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Title: |
Trustee |
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Date: |
February 22, 2008 |
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POWERSHARES MAURITIUS |
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By: |
/s/ H. Bruce Bond |
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Title: |
Director |
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Date: |
February 22, 2008 |
17f-5 DELEGATION SCHEDULE
By its execution of this Delegation Schedule dated as of February 22, 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 Funds Assets outside the United States.
1. Maintenance of Funds 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 Funds Assets in countries outside the United States in accordance with Instructions received from the Fund or the Funds 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 Delegates 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
to perform only those duties set forth in this Delegation Schedule concerning the safekeeping of the Funds Assets in each of the countries as to which it acts as the Boards 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 Funds 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 Funds 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 Funds 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 Funds foreign custodial arrangements:
(a) Selection of Eligible Foreign Custodian . The Delegate shall place and maintain the Funds Assets with an Eligible Foreign Custodian, provided that the Delegate shall have determined that the Funds 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 Custodians 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;
(ii) Whether the Eligible Foreign Custodian has the requisite financial strength to provide reasonable care for the Funds Assets;
(iii) The Eligible Foreign Custodians 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 Custodians 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 Funds 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;
(iii) That beneficial ownership of the Funds 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 Funds Assets as belonging to the Fund or as being held by a third party for the benefit of the Fund;
(v) That the Funds 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 Funds Assets, including, but not limited to, notification of any transfer to or from the Funds account or a third party account containing the Funds 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 Funds 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 Funds 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 Funds 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 Funds arrangements in accordance with the criteria established under Section 3(b) of this Delegation Schedule.
5. Reporting . At least annually and more frequently as mutually agreed between the parties, the Delegate shall provide to the Funds Board written reports specifying placement of the Funds 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 Funds 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 Funds 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 Funds 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 Funds Assets or would materially impair the liquidity, value or other investment characteristics of the Funds 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 Funds 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
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 Funds 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 Delegates 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.
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. Funds Assets - shall mean any of the Funds 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 Funds 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.
15. Integration . This Delegation Schedule sets forth all of the Delegates 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 Delegates obligations under the Custodian Agreement.
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
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By: |
/s/ Timothy J. Connelly |
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By: |
/s/ H. Bruce Bond |
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Name: Timothy J. Connelly |
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Name: H. Bruce Bond |
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Title: Partner |
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Title: Director / Trustee |
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Date: February 25, 2008 |
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Date: February 22, 2008 |
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Exhibit (h)(1)
FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
AGREEMENT made as of February 22, 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 Funds 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 Funds 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 Funds valuation procedures;
2.5 a copy of the Funds Declaration of Trust and By-laws;
2.6 any other documents which relate to or affect the Administrators 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 Funds 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 Funds instructions as defined in Section 5 ( Instructions ). It is agreed and understood that the Administrator shall not be responsible for the Funds compliance with any applicable documents, laws or regulations, or for losses, costs or expenses arising out of the Funds failure to comply with said documents, laws or regulations or the Funds 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 Administrators 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
maintained and preserved by the Administrator pursuant to this Agreement are the property of the Fund and will be, at the Funds 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 Funds Declaration of Trust, By-laws, investment policies and restrictions as set forth in the Funds 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
expenses resulting from the Administrators willful malfeasance, bad faith or negligence. A list of persons so authorized by the Funds 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
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 Administrators 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.
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 Administrators 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 Administrators 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 Administrators willful malfeasance, bad faith or negligence in the performance of such Administrators 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
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 Administrators 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 Administrators 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 Funds 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 Administrators liability for acts, omissions, errors or delays relating to its
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 Administrators 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 Administrators 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 Administrators 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 Administrators 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 Administrators reasonable judgment was as reliable a source for such quotations or information as such
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 Funds 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.
11. Reliance by the Administrator on Opinions of Counsel . The Administrator may consult with the Funds 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.
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.
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.
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 Funds 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
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.
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.
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BROWN BROTHERS HARRIMAN & CO. |
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By: |
/s/ Timothy J. Connelly |
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Name: Timothy J. Connelly |
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Title: Partner |
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Date: 2/25/08 |
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PowerShares India Exchange-Traded Fund Trust |
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By: |
/s/ H. Bruce Bond |
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Name: H. Bruce Bond |
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Title: Trustee |
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Date: February 22, 2008 |
APPENDIX A
FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
SERIES
PowerShares India Portfolio
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PowerShares India Exchange-Traded Fund Trust |
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By: |
/s/ H. Bruce Bond |
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Name: H. Bruce Bond |
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Title: Trustee |
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Date: February 22, 2008 |
APPENDIX B
FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
Dated as of February 22, 2008
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 Portfolios 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
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 Funds 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 Portfolios 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
· Post trade date monitoring of the Portfolios 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 Funds 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 Portfolios investment restrictions, policies and limitations (Daily Exception Reporting)
· Provide the Funds 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 Funds 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 Funds 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 Funds 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 Funds 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 Funds CCO as to the Administrators 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 Funds Treasurer and/or Chief Financial Officer, the Administrator shall file such reports as required, including any applicable executed officer certifications or other exhibits
The Administrator shall provide the following additional services as requested by the Fund:
· Quarterly calculation and reporting of the Portfolios portfolio turnover
· Preparation of the following quarterly reports for the Funds 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 Funds 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 Funds 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 Portfolios 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 Funds 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 Funds Authorized Persons regarding potential passive foreign investment companies (PFICs)
· Prepare wash sales calculations and other differences required for tax purposes
· Consult with the Funds Authorized Persons on various tax issues as requested and with the Funds 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 Funds Independent Trustees
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 Funds 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 Funds registration statement per calendar year and coordinate the printing with the clients 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
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 Funds behalf, shall issue and redeem Creation Units, as identified in the Funds 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 Funds 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.
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
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.
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BROWN BROTHERS HARRIMAN & CO. |
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By: |
/s/ Timothy J. Connelly |
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Name: Timothy J. Connelly |
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Title: Partner |
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Date: 2/25/08 |
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PowerShares India Exchange-Traded Fund Trust |
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By: |
/s/ H. Bruce Bond |
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Name: H. Bruce Bond |
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Title: Trustee |
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Date: February 22, 2008 |
APPENDIX C
FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
LIST OF AUTHORIZED PERSONS
H. Bruce Bond
Bruce T. Duncan
John W. Southard
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PowerShares India Exchange-Traded Fund Trust |
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By: |
/s/ H. Bruce Bond |
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Name: H. Bruce Bond |
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Title: Trustee |
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Date: February 22, 2008 |
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
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Other data source:
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PowerShares India Exchange-Traded Fund Trust |
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By: |
/s/ H. Bruce Bond |
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Name: H. Bruce Bond |
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Title: Trustee |
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Date: February 22, 2008 |
Exhibit (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 Trusts 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 Trusts 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 Trusts 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 Participants 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 Trusts 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 Participants 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 Participants 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 Participants 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.
(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 Trusts 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 Participants internal use only or brokerage communications prepared by Participant in the normal course of its business and consistent with the Trusts 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 Trusts 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
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 Trusts Prospectus applicable to creations or redemptions or the Transaction Fee and such additional amounts as may be prescribed pursuant to the Trusts 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)
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 Participants 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 Partys gross negligence or reckless or willful acts or omissions or the Indemnified Partys failure to perform any of its obligations or responsibilities under this Agreement. With respect to (i) through (iii) above, Indemnified Partys failure to promptly acknowledge Participants 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 Participants 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 Partys gross negligence or reckless or willful acts or omissions or the Indemnified Partys failure to perform any of its obligations or responsibilities under this Agreement. With respect to (i) through (iv) and (vi) above, Indemnified Partys failure to promptly acknowledge any omission or untrue statement contained
in such promotional material, sales literature, prospectus or registration statement or Distributors 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 Trusts 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 Distributors or Transfer Agents 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
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 Participants 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,
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.
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).
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ATTACHMENT A
This document supplements the Trusts 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.
(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 Funds 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 participants 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 Trusts prospectus applicable to (i) creations or redemptions or the Transaction Fee and such additional amounts as may be prescribed pursuant to the Trusts 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.
III. TRANSFER AGENTS 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.
IV. TELEPHONE, FACSIMILE, AND TELEX NUMBERS
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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.
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[On APs 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:
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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.
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Exhibit (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 Providers ownership of the entire right, title and interest in and to the Index and Marks and Licensees 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. Licensees 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 Licensees 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 partys 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.
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POWERSHARES CAPITAL MANAGEMENT, LLC |
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POWERSHARES INDIA EXCHANGE- TRADED FUND TRUST |
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H. Bruce Bond |
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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.
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POWERSHARES INDIA EXCHANGE- TRADED FUND TRUST |
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Exhibit (i)(1)
CONSENT OF K&L GATES LLP
We hereby consent to the reference to our firm under the headings Fund Service Providers in the Prospectus and Miscellaneous InformationCounsel in the Statement of Additional Information comprising a part of Post-Effective Amendment No. 8 to the Form N-1A Registration Statement of PowerShares India Exchange-Traded Fund Trust, File No. 333-147611. We do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission thereunder.
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/s/ K&L Gates LLP |
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Chicago, Illinois |
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February 27, 2013 |
Exhibit (j)(1)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form N-1A of our report dated December 21, 2012, relating to the financial statements and financial highlights which appears in the October 31, 2012 Annual Report to Shareholders of PowerShares India Exchange-Traded Fund Trust, which are also incorporated by reference into the Registration Statement. We also consent to the references to us under the headings Fund Service Providers, Financial Highlights, Statement of Additional Information, and Independent Registered Public Accounting Firm in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Chicago, Illinois
February 27, 2013