UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
April 6, 2018
Date
of Report (Date of earliest event reported)
CurrencyShares
®
Australian Dollar Trust
Sponsored by Invesco Specialized Products, LLC
(Exact name of registrant as specified in its charter)
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New York
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001-32911
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20-4685355
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(State or other jurisdiction of
incorporation or organization)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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3500 Lacey Road, Suite 700
Downers Grove, Illinois 60515
(Address of principal executive offices, including zip code)
(800)
983-0903
(Registrant’s telephone number, including area code)
CurrencyShares
®
Australian Dollar Trust
Sponsored by Guggenheim Specialized Products, LLC
702 King Farm Boulevard, Suite 200
Rockville, Maryland, 20850
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form
8-K
filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions:
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule
14a-12
under the Exchange Act (17 CFR
240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule
14d-2(b)
under the Exchange Act (17 CFR
240.14d-2(b))
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☐
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Pre-commencement
communications pursuant to Rule
13e-4(c)
under the Exchange Act (17 CFR
240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule
12b-2
of the Securities Exchange Act of 1934
(§ 240.12b-2
of
this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introduction
This Current Report on Form
8-K
is being filed in connection with the closing on April 6, 2018
(the “Closing”) of a transaction between Invesco Ltd. (“Invesco”) and Guggenheim Capital, LLC (“Guggenheim”) pursuant to a certain Transaction Agreement dated September 28, 2017 (the “Transaction
Agreement”).
Pursuant to the terms and conditions of the Transaction Agreement, Guggenheim, among other things, agreed to transfer
and sell to Invesco PowerShares Capital Management LLC (“PowerShares Capital Management”) all of the membership interests of Guggenheim Specialized Products, LLC (the “Sponsor”) at the Closing. Immediately following the Closing,
PowerShares Capital Management, as the sole member of the Sponsor, changed the name of the Sponsor to Invesco Specialized Products, LLC by filing an amendment to the Sponsor’s Certificate of Formation. See Item 5.03 below.
The foregoing description of the Transaction is necessarily incomplete. For further details about the Transaction, see the full text of the
Transaction Agreement, filed with the Securities and Exchange Commission (the “SEC”) on October 26, 2017 as Exhibit 10.2 to Invesco’s Quarterly Report on Form
10-Q.
Item 1.01 Entry into a Material Definitive Agreement.
License Agreement
Effective April 6, 2018, immediately prior to the Closing, the Sponsor, as sponsor of the CurrencyShares
®
Australian Dollar Trust (the “Trust”), entered into a License Agreement (the “New License Agreement”) with The Bank of New York Mellon (“BONY”) granting the Sponsor
a
non-exclusive,
personal and
non-transferable
license to certain patent applications made by BONY covering systems and methods for securitizing a commodity for the life
of such patents and patent applications. The license grant is solely for the purpose of allowing the Sponsor to establish, operate and market a currency-based securities product based solely on the securitization, in whole or in part, of a single
non-U.S.
currency. As consideration for the license, BONY has been appointed as trustee of the Trust. The New License Agreement provides that either party may provide notice of intent to terminate the New License
Agreement in the event the other party commits a material breach. If the New License Agreement is terminated and one or more of BONY’s patent applications issue as patents, then BONY may claim that the operation of the Trust violates its patent
or patents and seek an injunction forcing the Trust to cease operation and trading of the Trust’s shares. In that case, the Trust might be forced to terminate and liquidate, which would adversely affect the shareholders of the Trust.
The foregoing description of the New License Agreement is necessarily incomplete and is qualified by reference to the full text of the New
License Agreement, which is attached as Exhibit 10.1 hereto and incorporated herein by reference.
Item 1.02 Termination of a Material Definitive
Agreement.
Sub-License
Agreement
Effective April 6, 2018, immediately prior to the Closing, the Sponsor, as sponsor of the Trust, terminated that certain Sublicense
Agreement (the “Sublicense Agreement”) dated June 9, 2006 between PADCO Advisors II, Inc. (“PADCO”) and the Sponsor in accordance with the terms of the Sublicense Agreement.
PADCO and BONY entered into a License Agreement dated December 5, 2005 (the “Old License Agreement”) whereby BONY granted PADCO
a license to certain patent applications made by BONY for the purposes of establishing, operating and marketing certain investment products based on the securitization of a single
non-U.S.
currency. PADCO
subsequently sublicensed such rights to the Sponsor pursuant to the Sublicense Agreement. In connection with the Closing, PADCO and the Sponsor terminated the Sublicense Agreement, PADCO and BONY terminated the Old License Agreement, and BONY and
the Sponsor entered into the New License Agreement. Pursuant to the New License Agreement, the Sponsor continues to hold a license to the same patents and patent applications that were previously licensed to the Sponsor pursuant to the Sublicense
Agreement.
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Item 4.01 Changes in Registrant’s Certifying Accountant.
(a) On April 8, 2018, Ernst & Young LLP (“EY”) resigned as the independent registered public accounting
firm for the Trust as EY is no longer independent of the Trust under the applicable independence standards. Neither the Board of Managers of the Sponsor (the “Board”) nor any Board committee recommended or approved EY’s decision to
resign.
The reports of EY on the Trust’s financial statements as of and for the two most recent fiscal years (ending October 31,
2017 and October 31, 2016) did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles.
During the Trust’s two most recent fiscal years (ending October 31, 2017 and October 31, 2016) and during the period from the end of the
most recently completed fiscal year through the date of this Current Report on Form 8-K, there was no disagreement between the Trust and EY on any matter of accounting principles or practices, financial statement disclosure or auditing scope or
procedure, which disagreement, if not resolved to the satisfaction of EY, would have caused it to make a reference to the subject matter thereof in its report on the financial statements of the Trust for any such period.
During the Trust’s two most recent fiscal years (ended October 31, 2017 and October 31, 2016) and during the period from the end of the
most recently completed fiscal year through the date of this Current Report on Form 8-K, there were no “reportable events” as described in Item 304(a)(1)(v) of Regulation S-K promulgated by the SEC.
The Sponsor, on behalf of the Trust, has provided EY with a copy of the foregoing disclosures and has requested that EY furnish it with a
letter addressed to the SEC stating whether it agrees with the statements made by the Trust set forth above and, if not, stating the respects in which it does not agree. A copy of EY’s letter dated April 9, 2018 is filed as Exhibit 16.1 to this
Current Report on Form 8-K.
Item 5.02 Departure of Principal Officers; Appointment of Principal Officers.
Board of Managers
Effective April 6, 2018, immediately prior to the Closing, John Sullivan, Keith D. Kemp and Michael Byrum resigned from their positions as
members of the Board of Managers of the Sponsor. Effective April 6, 2018, immediately following the Closing, David C. Warren, John M. Zerr and Daniel Draper were appointed by the sole member of the Sponsor as members of the Board of Managers of
the Sponsor to fill the vacancies resulting from the resignations of the individuals referred to above.
Effective April 6, 2018,
immediately following the Closing, the Audit Committee of the Board of Managers of the Sponsor consists of David C. Warren, John M. Zerr and Daniel Draper.
Principal Officers
Effective April 6, 2018, immediately prior to the Closing, John Sullivan and Keith D. Kemp resigned as executive officers of the Sponsor.
Effective April 6, 2018, immediately following the Closing, the following individuals were appointed by the sole member of the Sponsor to serve in the capacities specified for them:
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Name
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Title / Position
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Daniel Draper
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Chief Executive Officer;
Principal Executive
Officer
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Steven Hill
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Principal Financial & Accounting
Officer – Investment Pools
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Annette J. Lege
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Chief Financial Officer
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Daniel Draper
(49) currently serves as Chief Executive Officer and Principal Executive
Officer of the Sponsor, and also serves as a member of the Sponsor’s Board of Managers. He has served in such capacities since April 6, 2018. In his role, he has general oversight responsibilities for all of the Sponsor’s business.
Mr. Draper also serves as Chief Executive Officer of Invesco PowerShares Capital Management, and has served in such capacity since March 2016. In such capacity, Mr. Draper is responsible for managing the operations of various Invesco
funds. Mr. Draper also presently serves as a member of the Board of Managers of PowerShares Capital Management and has served in such capacity since September 2013. Previously, Mr. Draper was the Global Head of Exchange Traded
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Funds for Credit Suisse Asset Management (“Credit Suisse”) based in London from March 2010 until June 2013, followed by a three month
non-compete
period pursuant to his employment terms with Credit Suisse. Credit Suisse is an asset management business of Credit Suisse Group, a financial services company. From January 2007 to March 2010, he was the Global Head of Exchange Traded Funds for
Lyxor Asset Management in London, an investment management business unit of Societe Generale Corporate & Investment Banking. Mr. Draper was previously registered as a Significant Influence Functions (“SIF”) person with the
UK’s Financial Conduct Authority. He withdrew SIF person status on June 30, 2013 when he left Credit Suisse. Mr. Draper received his MBA from the Kenan-Flagler Business School at the University of North Carolina at Chapel Hill and his
BA from the College of William and Mary in Virginia. Mr. Draper is currently registered with FINRA and holds the Series 7, 24 and 63 registrations.
Steven Hill
(53) currently serves as Principal Financial and Accounting Officer, Investment Pools for the Sponsor and has
served in this capacity since April 6, 2018. In his role, he has financial and administrative oversight responsibilities for, and serves as Principal Financial Officer of, the Sponsor on behalf of the Trust. Mr. Hill also serves as the
Principal Financial and Accounting Officer, Investment Pools for PowerShares Capital Management and has served in that capacity since December 2012. Mr. Hill previously served as Head of Global ETF Operations for PowerShares Capital Management
from September 2011 to December 2012. As Head of Global ETF Operations he had management responsibilities with regard to the general operations of PowerShares Capital Management. From October 2010 to August 2011, he was Senior Managing Director and
Chief Financial Officer of Destra Capital Management LLC and its subsidiaries (“Destra”), an asset management firm, and was responsible for managing financial and administrative activities as well as financial reporting for Destra and
investment funds sponsored by Destra. Previously, he was Senior Managing Director of Claymore Securities, Inc. (“Claymore”) from December 2003 to October 2010, and was responsible for managing financial and administrative oversight for
investment funds sponsored by Claymore. Claymore, now known as Guggenheim Funds Distributors, Inc., is a registered broker-dealer that distributes investment funds. Mr. Hill earned a BS in Accounting from North Central College, Naperville, IL.
Annette Lege
(48) currently serves as Chief Financial Officer of the Sponsor and has served in this capacity since
April 6, 2018. Ms. Lege also serves as Chief Accounting Officer and Head of Finance and Corporate Services (“FCS”) Business Services for Invesco and has served in such capacity since March 2017. In her roles for the Sponsor and
Invesco, she is responsible for all aspects of Corporate Accounting, including group financial reporting, internal controls and group accounting policies. Ms. Lege also manages Invesco’s Finance operations and shared service centers and
has held this role since September 2015. Previously, Ms. Lege was Head of FCS Transformation Office from October 2013 through September 2015, with responsibility for business transformation initiatives taking place across FCS at Invesco. Before
assuming that role in October 2013, Ms. Lege held the position of North American Corporate Controller at Invesco from March 2007 to October 2013. Ms. Lege is a CPA, is licensed by FINRA as a Financial Operations Principal, and is a member
of the Texas State Board of Public Accountants. Ms. Lege earned a BBA in accounting from the University of Houston.
David
Warren
(60) currently serves as a member of the Board of Managers of the Sponsor and has served in this capacity since April 6, 2018. Mr. Warren also serves as Chief Administrative Officer, Americas, for Invesco. He was
appointed to such position in January 2007, and also holds the roles of Director, Executive Vice President and Chief Financial Officer of Invesco Canada Ltd., a Canadian investment management subsidiary of Invesco, since January 2009. He has been a
member of the Board of Managers and Chief Administrative Officer of PowerShares Capital Management since January 2010, as well. In these capacities, Mr. Warren is responsible for general management support, in addition to executing on various
strategic initiatives and overseeing the risk management framework for the business units operating within the Americas division of Invesco. He obtained a Bachelor’s Degree in Commerce from the University of Toronto as both a chartered
accountant and a certified public accountant and is a member of the Chartered Professional Accountants of Canada.
John Zerr
(55) currently serves as a member of the Board of Managers of the Sponsor and has served in this capacity since April 6, 2018. Mr. Zerr is also a member of the Board of Managers of PowerShares Capital Management and Managing Director
and General Counsel for U.S. Retail of Invesco Management Group, Inc., a registered investment adviser affiliated with the Sponsor, since March 2006, where he is responsible for overseeing the U.S. Retail Legal Department for Invesco and its
affiliated companies. Mr. Zerr has also been a Senior Vice President and Secretary of IDI since March 2006 and June 2006, respectively. He also served as a Director of that entity until February 2010. Mr. Zerr has served as Senior Vice
President of Invesco Advisers, Inc., a registered investment adviser affiliated with the Sponsor, since December 2009. Mr. Zerr serves as a Director, Vice President and Secretary of Invesco Investment Services, Inc., a registered transfer
agency since May 2007. Mr. Zerr has served as Director, Senior Vice President, General Counsel and Secretary of a number of other Invesco wholly-owned subsidiaries which service or serviced portions of Invesco’s U.S. Retail business since
May 2007 and since June 2010 with respect to certain Van Kampen entities engaged in the asset management business that were acquired by Invesco from Morgan Stanley. In each of the foregoing positions Mr. Zerr is
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responsible for overseeing legal operations. In such capacity, Mr. Zerr also is responsible for overseeing the legal activities of various Invesco funds. Mr. Zerr earned a BA degree in
economics from Ursinus College. He graduated cum laude with a J.D. from Temple University School of Law.
Item 5.03 Amendments to Articles of
Incorporation or Bylaws; Change in Fiscal Year.
Certificate of Amendment to the Certificate of Formation
On April 6, 2018, immediately following the Closing, the Sponsor filed a Certificate of Amendment to the Sponsor’s Certificate of
Formation with the Delaware Secretary of State to change the name of the Sponsor from “Guggenheim Specialized Products, LLC” to “Invesco Specialized Products, LLC.”
A copy of the Certificate of Amendment to the Sponsor’s Certificate of Formation is furnished as Exhibit 3.1 to this Current Report on
Form
8-K
and is incorporated herein by reference.
Third Amended and Restated LLC Agreement
On April 6, 2018, immediately following the Closing, the sole member of the Sponsor amended and restated the Sponsor’s
Second Amended and Restated LLC Agreement, effective immediately, to reflect the Sponsor’s name change to Invesco Specialized Products, LLC.
A copy of the Third Amended and Restated LLC Agreement is furnished as Exhibit 3.2 to this Current Report on Form
8-K
and is incorporated herein by reference.
Item 8.01 Other Events.
On April 9, 2018, Invesco issued a press release announcing the Closing, a copy of which is furnished as Exhibit 99.1 to this Current Report on
Form 8-K and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) The following exhibits are furnished with this Current Report on Form
8-K:
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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CURRENCYSHARES
®
AUSTRALIAN DOLLAR TRUST
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By:
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Invesco Specialized Products, LLC
Sponsor of the CurrencyShares
®
Australian Dollar Trust
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April 9, 2018
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By:
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/s/ Anna Paglia
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Anna Paglia
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Secretary
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Exhibit 3.2
THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT
OF
INVESCO SPECIALIZED PRODUCTS, LLC
This Third Amended and Restated Limited Liability Company Agreement (this “Agreement”) of Invesco Specialized Products, LLC (the
“Company”), is hereby adopted effective as of April 6, 2018 by Invesco PowerShares Capital Management LLC, in its capacity as the sole member of the Company (the “Member”).
WHEREAS, the Company was formed as a limited liability company on September 14, 2005 as Rydex Specialized Products, LLC pursuant to and
in accordance with the Delaware Limited Liability Company Act, as amended from time to time (the “Act”);
WHEREAS, the Member
entered into an Amended and Restated Limited Liability Company Agreement on February 29, 2012;
WHEREAS, the Amended and Restated
Limited Liability Company Agreement erroneously stated that the Company would be managed by the Member instead of the Board of Managers;
WHEREAS, the Company changed its name from Rydex Specialized Products, LLC to Guggenheim Specialized Products, LLC in accordance with the Act,
effective as of March 27, 2012;
WHEREAS, as of April 6, 2018, Security Investor, LLC, a Delaware limited liability company,
transferred and assigned its membership interests in the Company, which represented one hundred percent (100%) of the outstanding membership interests of the Company, to Invesco PowerShares Capital Management LLC, as a result of which Security
Investors, LLC ceased to be a member of the Company and the Member became a member of the Company;
WHEREAS, the Company changed its name
from Guggenheim Specialized Products, LLC to Invesco Specialized Products, LLC in accordance with the Act, effective as of April 6, 2018; and
WHEREAS, the Member desires to amend and restate the Agreement in its entirety.
NOW THEREFORE, the Member hereby amends and restates the Agreement in its entirety as follows:
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1.
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Name
. The name of the Company is Invesco Specialized Products, LLC effective as of April 6, 2018.
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2.
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Purpose
. The Company has been organized to engage in any lawful act or activity for which limited liability companies may be formed under the Act and shall be approved by the Member or the Board and to conduct
such other activities as the Member or the Board deems necessary, advisable, convenient or incidental to the foregoing.
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3.
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Registered Office and Agent
. The Company shall continuously maintain in the State of Delaware a registered office and a registered agent whose business office is identical with the registered office. The initial
registered office and the initial registered agent are specified in the Certificate of Formation. The Company may change the Company’s registered office, its registered agent, or both, upon filing a statement as specified by law in the office
of the Secretary of State of Delaware.
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4.
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Principal Office
. The principal office address of the Company shall be located at 3500 Lacey Road, Suite 700, Downers Grove, Illinois 60515 or such other place as the Member or the Board may from time to time
designate. The Company may maintain offices at such other place or places within or outside the State of Delaware as the Member or the Board deems advisable.
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5.
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Member
. The Member is a member of the Company effective as of the date of this Agreement. The Member shall from time to time contribute such capital to the Company as the Member shall determine.
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6.
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Membership Percentage
. The Member owns one hundred percent (100%) of the membership interests in the Company.
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7.
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Powers
. The Member shall have the power to exercise any and all rights or powers granted to the Member pursuant to the express terms of this Agreement. Each person authorized by the Member to act as an officer or
authorized person of the Company within the meaning of the Act may be authorized to take such actions and to execute, deliver and file all such documents as authorized by the Member. Except as otherwise required by the Member, the business and
affairs of the Company shall be managed by the Board of Managers (as defined below).
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a)
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Composition of the Board
. The Board of Managers (the “Board”) shall be comprised of no less than three (3) managers (each, a “Manager”) and shall be appointed by the Member. Each Manager
shall be a “manager” within the meaning of the Act.
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1)
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Each Manager shall hold office until such Manager’s successor has been duly designated and qualified, or until such Manager’s earlier death, resignation or removal.
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2)
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Any Manager may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Member. The
acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.
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3)
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Any Manager may be removed as such, either with or without cause, by the Member at any time, without prejudice to his or her contract rights, if any. Any vacancy occurring in the Board may be filled by the Member.
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b)
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Authority and Powers
. Subject to the other provisions of this Agreement, all powers of the Company shall be exercised by or under the authority of the Board. Decisions of the Board within its scope of authority
shall be binding upon the Company and the Member. The Board may execute all documents, instruments, and agreements reasonably deemed by the Board to be necessary, appropriate or needed for the performance of its duties and the exercise of its
powers. Furthermore, the Board may retain attorneys, accountants and other professionals in the course of the performance of the Managers’ duties and exercise of their powers.
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c)
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Meetings of the Board
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1)
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Regular meetings of the Board shall be held without call or notice at such time as shall from time to time be fixed by the Board. Special meetings of the Board may be held at any time whenever called by any Manager.
Notification of a special meeting of the Board shall be given to the other members of the Board by email at least forty-eight (48) hours before such meeting or, if such advance notice is not reasonably practicable under the circumstances, such
lesser advance notice as is reasonably practicable under the circumstances. Attendance at a meeting shall constitute waiver of notice of such meeting except where a Manager attends such meeting for the express purpose of objecting to the transaction
of business on the ground that such meeting is not lawfully called or convened.
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2)
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Unless all of the Managers otherwise agree, all meetings of the Board shall be held at the principal offices of the Company. Managers may participate in a meeting through the use of conference telephone or similar
communications equipment, and such members shall be considered present in person as long as all Managers participating in such meeting can hear one another.
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3)
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The presence of a majority of the Managers shall constitute a quorum for the transaction of business at any meeting of the Board. The consent of a majority of the votes of the Managers shall be required for any decision
or approval of the Board.
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4)
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Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all Managers consent thereto in writing and the writing or writings are filed with the minutes of proceedings of
the Board.
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9.
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Officers
. The Board may, from time to time, designate one or more persons to be officers of the Company. Any officers so designated shall have such authority and perform such duties as the Board may, from time to
time, delegate to them.
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a)
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The Board may assign titles to particular officers. If the title is one commonly used for officers of a business corporation formed under the General Corporation Law of the State of Delaware, the assignment of such
title shall constitute the delegation to such officer of the authority and duties that are normally associated with that office, subject to any restrictions on such authority imposed by the Board. Any number of offices may be held by the same
person.
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b)
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Each officer shall hold office until his successor has been duly designated and qualified, or until such officer’s earlier death, resignation or removal.
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c)
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Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Board. The
acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.
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d)
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Any officer may be removed as such, either with or without cause, by the Board at any time, without prejudice to his or her contract rights, if any. Any vacancy occurring in any office of the Company may be filled by
the Board.
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10.
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Dissolution
. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (a) the written consent of the Member, or (b) the entry of a decree of judicial
dissolution under
Section 18-802
of the Act.
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11.
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Additional Contributions
. The Member shall not be required to make any additional capital contribution to the Company.
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12.
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Allocation of Profits and Losses
. The Company’s profits and losses shall be allocated to the Member.
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13.
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Distributions
. Distributions shall be made at the times and in the aggregate amounts determined by the Member or the Board.
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14.
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Admission of Additional Members
. One (1) or more additional members may be admitted to the Company with consent of the Member.
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15.
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Assignment and Substitute Members
. An assignee of all or part of the Member’s interest or an additional Member whose admission to the Company has been consented to by the Member shall be admitted as a
substitute or new Member and shall have all the rights and obligations of a Member as provided in this Agreement.
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16.
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No Liability
. Neither the Member nor any Manager, officer or authorized person shall have any liability for the obligations or liabilities of the Company.
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17.
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Exculpation
. Except in the case of its bad faith or willful misconduct, to the fullest extent permitted by law, neither the Member nor any Manager, officer or authorized person (each, an “Indemnitee”)
shall have any liability for (i) the obligations or liabilities of the Company or (ii) any breach of fiduciary or similar duty (to the extent such Indemnitee has any such duty) relating to the Company.
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18.
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Indemnification
. To the fullest extent permitted by law, the Company shall indemnify each Indemnitee from and against any and all losses, claims, damages, liabilities, expenses (including, without limitation,
attorneys’ fees and other legal fees and expenses), judgments, fines and settlements (collectively, “Losses”) arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or
investigative, that relate to or arise in connection with the operations or business of the Company or arise out of or are based upon in whole or in part such Indemnitee’s relationship to the Company, in which such Indemnitee may be involved,
or is threatened to be involved, as a party or otherwise (except to the extent such Losses are determined, by a court of competent jurisdiction in a final,
non-appealable
decision, to result from the bad faith
or willful misconduct of such Indemnitee). Reasonable expenses, including legal fees, incurred by an Indemnitee who is a party to a proceeding shall be paid or reimbursed by the Company in advance of the final disposition of the proceeding. The
indemnification provided by this Section shall be in addition to any other rights to which an Indemnitee or any other person may be entitled under any agreement, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased
to serve in such capacity unless otherwise provided in a written agreement pursuant to which such Indemnities are indemnified. An Indemnitee shall not be denied indemnification in whole or in part under this Section because the Indemnitee had an
interest in the transaction with respect to which the indemnification applies. The rights and authority conferred in this Section shall be in addition to any other right which any person may otherwise have or hereafter acquire with respect to the
matters covered in this Section. Neither the amendment of this Section, nor, to the fullest extent permitted by law, any modification of law, shall eliminate or reduce the effect of this Section in respect of any acts or omissions occurring prior to
such amendment or modification.
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19.
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Insurance
. The Company shall have the power to purchase and maintain insurance on behalf of any person who is or was an Indemnitee, or is or was serving at the request of the Company as a member, director,
officer, employee or agent of another limited liability company, corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of his status as
such, whether or not the Company would have the power to indemnify him against such liability under the laws of the State of Delaware.
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20.
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Amendments
. Any amendments to this Agreement shall be in writing signed by the Member.
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21.
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Governing Law
. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws.
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IN WITNESS WHEREOF
, the undersigned, intending to be legally bound hereby, has duly executed this Third Amended and Restated Limited
Liability Company Agreement as of the 6th day of April, 2018.
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INVESCO POWERSHARES CAPITAL MANAGEMENT LLC
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By:
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/s/ Anna Paglia
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Name: Anna Paglia
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Title: Secretary
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6
Exhibit 10.1
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this “Agreement”) is entered into effective as of the 6th day of April, 2018 (the “Effective
Date”), by and between The Bank of New York Mellon, a New York banking corporation (“Licensor”), and Guggenheim Specialized Products, LLC, a limited liability company established pursuant to the laws of the State of Delaware
(“Licensee”).
WHEREAS, Licensor and Licensee have entered into a fee letter agreement on even date herewith (the “Fee
Letter Agreement”) regarding the establishment and maintenance of Currency Based Securities Products (defined below) to be known as CurrencyShares products (“Currency Trusts”).
WHEREAS, in connection with such Currency Trusts, Licensee wishes to obtain a license under certain of Licensor’s patent rights, and
Licensor wishes to grant such license subject to the terms and conditions of this Agreement.
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Licensor and Licensee agree as follows:
For the purposes of this Agreement, the following terms have the
following meanings:
“Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common
control with a party. In this context, the term “control” means ownership of more than fifty percent (50%) of the voting securities of such entity (or, in the case of a
non-corporate
entity,
equivalent interests). The term “controlled” has a corollary meaning.
“Currency Based Securities Products” means any
investment product that is based solely on the securitization of a single
non-U.S.
currency. For the purposes of clarity, Currency Based Securities Products do not include any products involving the
securitization, in whole or in part, of any commodity other than
non-U.S.
currency.
“Licensed
Product” means any Currency Based Securities Product that is sold, sponsored or issued by Licensee in the Territory that is covered by or encompasses a claim contained in Licensor Patent Rights, including, but not limited to the Euro Currency
Trust.
“Licensor Patent Rights” means: (i) U.S. Patent Application No. 10/680,589, filed on October 6, 2003,
entitled “Systems and Methods for Securitizing a Commodity” (the “Patent Application”), (ii) all foreign and international counterparts filed by or on behalf of Licensor (iii) all continuations,
continuations-in-part,
divisionals, substitutes and equivalents thereof relating to any of the foregoing patent applications (iv) all letters patent that are or may be
granted from any of the foregoing patent applications, and (v) all
know-how
related to any of the foregoing patents and patent applications.
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“Territory” means the United States.
“Trust Agreement” means a definitive agreement entered into among Licensee, Licensor and certain other parties that, among other
things, establishes a Licensed Product and sets forth the respective roles and responsibilities of Licensee and Licensor with respect to such Licensed Product.
“Trustee” means any entity designated to act in the capacity of any or all of the following, as the context requires: trustee,
custodian, issuing agent, registrar, agent, administrator or the like for and on behalf of (i) the sponsor, issuer or other entity offering shares in a Currency Based Securities Product and/or (ii) any participant of such Currency Based
Securities Product.
Subject to the terms and conditions of this Agreement, Licensor hereby grants
to Licensee a
non-exclusive,
personal and
non-transferable
(except as provided in Article 12.1) license under Licensor Patent Rights for the term of this Agreement
solely for the purpose of establishing, operating and marketing the Licensed Products in the Territory (the “License”).
The
License includes the limited right of Licensee to grant sublicenses to its partners,
co-sponsors,
joint-venturers, trustees, custodians and agents (each a “Sublicensee”), but solely in connection
with such Sublicensee’s establishment, operation and marketing of the Licensed Product and provided that Licensee shall have previously entered into an enforceable, written agreement with each such Sublicensee on terms no less protective of
Licensor’s rights in the Licensor Patent Rights than the terms in this Agreement and shall provide Licensor with copies of such agreements on request.
ALL RIGHTS NOT SPECIFICALLY AND EXPRESSLY GRANTED TO LICENSEE IN THIS ARTICLE 2 ARE HEREBY RESERVED TO THE LICENSOR.
The grant of the License hereunder is in consideration for the engagement of
Licensor to act as Trustee for each Licensed Product under terms substantially as set forth in the Fee Letter Agreement, or such other terms as the parties may mutually agree in writing hereafter. No additional payment of royalties to Licensor shall
be required (i.e., the Licensee shall not be subject to a Royalty Obligation, as defined below) as long as Licensor is so engaged.
In the
event that Licensor is not engaged to act as Trustee for a Licensed Product for any reason, then, to enjoy the benefit of the License with respect to such Licensed Product, Licensee shall thereafter pay Licensor a royalty (the “Royalty
Obligation”) as follows:
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(a) The Licensee shall pay Licensor a running royalty that will accrue daily at the annualized
rate of 0.0500% (five basis points) of the total gross adjusted assets of such Licensed Product.
(b) The five basis point running
royalties described in the preceding subparagraph (a) shall be collectively identified hereinafter as the “Royalty Fee.” Such Royalty Fee shall be due and payable within ten days following the end of each calendar month for which such
Royalty Fee has accrued and shall be subject to the Minimum Annual Royalty set forth the following subparagraph (c).
(c) Notwithstanding
subparagraph (a) above, and only applicable if the Licensee is subject to a Royalty Obligation:
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(i)
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for each year in which there is one Licensed Product (which year shall be measured from the date that is six months after the launch date of the Licensed Product; each such year being defined hereinafter as an
“Annual Period”), Licensee shall pay Licensor a minimum annual royalty (the “Minimum Annual Royalty”) of not less than Two Hundred Fifty Thousand Dollars ($250,000) per Annual Period for such Licensed Product. If the aggregate
Royalty Fees payable to Licensee over an Annual Period for such Licensed Product is less than the Minimum Annual Royalty, then Licensee shall pay Licensor the difference between the Minimum Annual Royalty and the aggregate Royalty Fees payable to
Licensee over such Annual Period for such Licensed Product, which payment shall be due and payable within 30 days after the end of the applicable Annual Period.
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(ii)
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for each year in which there are seven or more Licensed Products (which year shall be measured from the date that is six months after the launch date of the final Licensed Product to be launched; each such year being
defined hereinafter as an “Annual Period”), Licensee shall pay Licensor a Minimum Annual Royalty of not less than One Million Two Hundred Fifty Thousand Dollars ($1,250,000) per Annual Period for such Licensed Products. If the aggregate
Royalty Fees payable to Licensee over an Annual Period for such Licensed Products are less than the Minimum Annual Royalty, then Licensee shall pay Licensor the difference between the Minimum Annual Royalty and the aggregate Royalty Fees payable to
Licensee over such Annual Period for such Licensed Products, which payment shall be due and payable within 30 days after the end of the applicable Annual Period.
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Any payments to Licensor hereunder shall be made in United States dollars either by corporate check to Licensor at the address specified in
Article 12 (or such other address as Licensor may hereafter designate in writing) or by wire transfer to a bank account
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designated by Licensor in writing. Payments to Licensor hereunder shall be deemed made as of the day on which they are received by Licensor at such address or bank account. Payments in arrears in
excess of sixty (60) days shall accrue interest from the date due at rate that is the lesser of 1.5% per month or the maximum rate permitted by law.
Except with respect to any taxes assessed directly upon Licensor’s income, all amounts payable by Licensee under this Agreement are
exclusive of any taxes that are or may be assessed or imposed by any governmental authority in any jurisdiction in connection with establishing, operating and marketing such Licensed Product, including without limitation, any sales, use, excise,
value-added, personal property, export, import or withholding taxes, which taxes shall all be assumed and paid by Licensee.
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4.
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REPORTS, RECORDS AND AUDITS.
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During the term of this Agreement, for so long as Licensee
is subject to a Royalty Obligation, Licensee shall deliver to Licensor within ten (10) days of the end of each calendar month a report setting forth in reasonable detail the Royalty Fee due to Licensor for such calendar month and
Licensee’s calculation of the same.
During the term of this Agreement, for so long as Licensee is subject to a Royalty Obligation and
for three (3) years thereafter, Licensee shall keep complete and accurate books and records in sufficient detail to enable Licensor to verify the amounts due to it hereunder.
During the term of this Agreement, is subject to a Royalty Obligation and for three (3) years thereafter, Licensor shall have the right,
through a qualified independent auditor, to review and audit the books and records of Licensee for the purpose of verifying the accuracy of royalty payments made by Licensee under this Agreement. Such reviews and audits shall be conducted with
reasonable prior written notice to Licensee, at Licensee’s place of business and during Licensee’s normal business hours, and shall not be conducted more than once per calendar year. Each review and audit hereunder shall be at
Licensor’s sole cost and expense; provided, however, that Licensee shall promptly reimburse Licensor for all costs and expenses actually incurred in connection with a review and audit if the auditor determines that Licensee has underpaid by
five percent (5%) or more during the relevant period under examination. Licensee will promptly pay Licensor the invoiced amount of any underpayment revealed by a review and audit. Payments in arrears in excess of sixty (60) days shall accrue
interest from the date due at rate that is the lesser of 1.5% per month or the maximum rate permitted by law. For the avoidance of doubt, this Section 4 shall not be applicable if the Licensee is not subject to a Royalty Obligation pursuant to
the first paragraph of Section 3.
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Licensee shall promptly (i) notify Licensor of any potential or
actual infringement by a third party of Licensor Patent Rights of which Licensee becomes aware, and (ii) provide to Licensor all evidence of such infringement in Licensee’s possession, custody or control. Licensor shall have the sole
right, but not the obligation, to initiate any legal action at its own expense against such infringement and to recover damages and enforce any injunction granted as a result of any judgment in Licensor’s favor. Licensor shall have sole control
over any such action including, without limitation, the sole right to settle and compromise such action. In the event of a dispute between Licensor and any third party regarding the infringement, validity or enforceability of Licensor Patent Rights,
Licensee agrees, at Licensor’s expense, to do all things reasonably requested by Licensor to assist Licensor in connection with such dispute.
This Agreement shall commence on the Effective Date and, unless
earlier terminated according to the terms of this Agreement, shall expire upon the expiration or lapse of the
last-to-expire
or lapse of the Licensor Patent Rights (or,
if earlier, upon the entry of a final order by a court of competent jurisdiction, which order is not appealable or regarding which appeal is not taken, effectively holding that there is no valid claim included in the Licensor Patent Rights).
During the term of this Agreement, Licensor shall diligently prosecute and/or maintain Licensor Patent Rights. If no letters patent are granted
on the applications specified in Licensor Patent Rights or if all such applications are finally rejected without appeal being taken or are abandoned, withdrawn or otherwise lapse, then the License granted pursuant to this Agreement shall terminate
immediately. Licensor shall notify Licensee promptly in writing if the foregoing events shall occur.
The License granted pursuant to this
Agreement will terminate immediately, without any requirement for Licensor to provide notice, with respect to any Licensed Product that is terminated.
In addition, either party may terminate this Agreement by written notice at any time if the other party materially breaches this Agreement and
fails to cure such breach with thirty (30) days following written notice thereof from the
non-breaching
party. Upon any termination or expiration of this Agreement, all rights and obligations under this
Agreement (including Licensee’s rights under the License) will immediately terminate; provided, however, that the provisions of Articles 1, 8 (the second paragraph only), 10 (solely with respect Licensee’s Losses based on or arising from
Licensee’s exercise of its rights in accordance with this Agreement while the License was in effect), 11 and 12, and any other provision that survives by its express terms, shall survive any termination or expiration of this Agreement.
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7.
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ACKNOWLEDGMENT OF RIGHTS.
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Licensee hereby acknowledges and agrees that, as between
Licensor and Licensee, Licensor is the exclusive owner of all right, title and interest in and to the Licensor Patent Rights. During the term of this Agreement, Licensee will not directly or indirectly: (i) initiate or participate in any
proceeding of any kind opposing the grant of any patent, or challenging any patent application, within the Licensor Patent Rights, (ii) dispute the validity or enforceability of any patent within the Licensor Patent Rights or any of the claims
thereof, or (iii) assist any other Person to do any of the foregoing (except if required by court order or subpoena);
provided, however
, the foregoing shall in no way limit Licensee’s ability to defend against or to mitigate any
claim brought by Licensor against Licensee.
During the term of this Agreement and thereafter, Licensee shall not directly or indirectly
interfere improperly with Licensor’s ability to negotiate with any potential licensee under, or any potential purchaser of, the Licensor Patent Rights, or assist any other Person to do the foregoing (except if required by court order or
subpoena). This paragraph shall survive termination or expiration of this Agreement for any reason.
Any violation of this Article 8 will
constitute a material breach of this Agreement.
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8.
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REPRESENTATIONS AND WARRANTIES.
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Each party hereby represents and warrants that
(i) it has the power and authority to enter into this Agreement and perform its obligations hereunder; (ii) the execution and delivery of this Agreement have been duly authorized and all necessary actions have been taken to make this
Agreement a legal, valid and binding obligation of such party enforceable in accordance with its terms; and (iii) the execution and delivery of this Agreement and the performance by such party of its obligations hereunder will not contravene or
result in any breach of the Certificate of Incorporation or Bylaws of such party or of any agreement, contract, indenture, license, instrument or understanding or, to the best of its knowledge, result in any violation of law, rule, regulation,
statute, order or decree to which such party is bound or by which they or any of their property is subject.
EXCEPT AS EXPRESSLY SET FORTH
IN THE FOREGOING, LICENSOR DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT.
Each party shall defend, indemnify and hold harmless the other party and
such other party’s Affiliates, employees, officers, directors, and agents from and against any liabilities, losses, damages, costs or expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”)
resulting from or arising in connection with the breach by the indemnifying party of any of its representations, warranties, covenants or obligations contained in this Agreement.
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If any action, suit, proceeding (including, but not limited to, any governmental investigation),
claim or dispute (collectively, a “Proceeding”) is brought or asserted against a party for which indemnification is sought under this Agreement, the party seeking indemnification (the “Indemnified Party”) shall promptly (and in
no event more than seven (7) days after receipt of notice of such Proceeding) notify the party obligated to provide such indemnification (the “Indemnifying Party”) of such Proceeding. The failure of the Indemnified Party to so notify
the Indemnifying Party shall not impair the Indemnified Party’s ability to obtain indemnification from the Indemnifying Party (but only for costs, expenses and liabilities incurred after such notice) unless such failure adversely affects the
Indemnifying Party’s ability to adequately oppose or defend such Proceeding. Upon receipt of such notice from the Indemnified Party, the Indemnifying Party shall be entitled to participate in such Proceeding at its own expense. Provided no
conflict of interest exists as specified in clause (ii) below and there are no other defenses available to Indemnified Party as specified in clause (iv) below, the Indemnifying Party, to the extent that it shall so desire, shall be
entitled to assume the defense of the Proceeding with counsel reasonably satisfactory to the Indemnified Party, in which case all attorney’s fees and expenses shall be borne by the Indemnifying Party (except as specified below) and the
Indemnifying Party shall in good faith defend the Indemnified Party. After receiving written notice from the Indemnifying Party of its election to assume the defense of the Proceeding, the Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, provided that the fees and expenses of such counsel shall be borne entirely by the Indemnified Party unless (i) the Indemnifying Party expressly agrees in writing to pay
such fees and expenses, (ii) there is such a conflict of interest between the Indemnifying Party and the Indemnified Party as would preclude, in compliance with the ethical rules in effect in the jurisdiction in which the Proceeding was
brought, one lawyer from representing both parties simultaneously, (iii) the Indemnifying Party fails, within the earlier of (x) twenty (20) days following receipt of notice of the Proceeding from the Indemnified Party or (y) seven
(7) days prior to the date the first response or appearance is required to be made in such Proceeding, to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Party or (iv) there are legal defenses
available to the Indemnified Party that are different from or are in addition to those available to the Indemnifying Party. In each of cases (i) through (iv), the fees and expenses of counsel shall be borne by the Indemnifying Party. No
compromise or settlement of such Proceeding may be effected by either party without the other party’s consent unless there is no finding or admission of any violation of law and no effect on any other claims that may be made against such other
party and the sole relief provided is monetary damages that are paid in full by the party seeking the settlement. Neither party shall have any liability with respect to any compromise or settlement effected without its consent, which shall not be
unreasonably withheld. The Indemnifying Party shall have no obligation to indemnify and hold harmless the Indemnified Party from any loss, expense or liability incurred by the Indemnified Party as a result of a default judgment entered against the
Indemnified Party unless such judgment was entered after the Indemnifying Party agreed, in writing, to assume the defense of such proceeding.
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10.
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LIMITATION OF LIABILITY.
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IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES, HOWSOEVER CAUSED, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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11.
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MISCELLANEOUS PROVISIONS.
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(a)
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Assignment.
Licensee may not assign or otherwise transfer (whether by operation of law or otherwise) any right or obligation under this Agreement without the prior written consent of Licensor. Such consent shall
be deemed given with respect to an assignment or transfer (whether by operation of law or otherwise) of the entire Agreement, including all rights and obligations hereunder, to a successor in interest or assignee of substantially all of the assets
of Licensee, provided that Licensee has given prompt written notice thereof to Licensor. This Agreement is binding on, and inures to the benefit of, the parties and their permitted successors and assigns. Any attempted assignment or other transfer
of rights under this Agreement in violation of this Article 12.1 will be void.
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(b)
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Injunctive Relief.
Licensee agrees and acknowledges that money damages may not be an adequate remedy for any breach by Licensee of the provisions of this Agreement and that the Licensor may, in its sole
discretion, apply to any court of law or equity of competent jurisdiction for temporary preliminary relief (specific performance and/or injunctive relief), without posting a bond or other security, in order to enforce or prevent any violation of the
provisions of this Agreement.
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(c)
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Governing Law.
This Agreement will be governed by and construed under the laws of the State of New York, without reference to any choice of law rules (except that questions affecting the construction and effect
of any patent will be determined by the law of the country in which the patent was granted).
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(d)
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Exclusive Jurisdiction and Venue; No Jury.
Any action brought by either party that arises out of or relates to this Agreement will be filed only in the state or federal courts located in New York County, New
York. Each party irrevocably submits to the jurisdiction of those courts. FURTHERMORE, EACH PARTY (I) WAIVES ANY OBJECTIONS THAT IT MAY HAVE NOW OR IN THE FUTURE TO THE JURISDICTION OF THOSE COURTS, (II) WAIVES ANY CLAIM THAT IT MAY HAVE
NOW OR IN THE FUTURE THAT LITIGATION BROUGHT IN THOSE COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND (III) WAIVES ANY RIGHT TO A JURY TRIAL.
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(e)
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Entire Agreement.
This Agreement sets forth the entire agreement of the parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between them with respect
to its subject matter.
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(f)
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Unenforceable Provisions.
If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the other provisions will remain in full force and effect. If legally permitted, the
unenforceable provision will be replaced with an enforceable provision that as nearly as possible gives effect to the parties’ intent.
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(g)
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Relationship Of The Parties.
Each party is an independent contractor of the other party. Nothing in this Agreement creates a partnership, joint venture or agency relationship between the parties.
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(h)
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Notices.
A notice under this Agreement is not sufficient unless it is: (i)
in writing; (ii) addressed using the contact information listed below for the party to which the notice is being given
(or using updated contact information which that party has specified by written notice in accordance with this Article); and (iii) sent by hand delivery, facsimile transmission, registered or certified mail (return receipt requested), or
reputable express delivery service with tracking capabilities (such as Federal Express).
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Contact Information for Licensor:
Contact Information for Licensee:
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The Bank of New York Mellon
2 Hanson Place
9
th
Floor
Brooklyn, NY 11217
Attn: ETF Services
And
The Bank of New York Mellon
101 Barclay Street
22
nd
Floor West
Attn: Depositary Receipts
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Guggenheim Specialized
Products
330 Madison Avenue
11
th
Floor
New York, NY 10017
Attn: Law Dept.
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(i)
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Amendments.
This Agreement may not be amended unless the amendment is in writing and signed by authorized representatives of both parties.
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(j)
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Waivers.
A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights.
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(k)
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Counterparts.
The parties may execute this Agreement by signing separate copies of the signature page. A facsimile copy of the signature page will have the same effect as the original.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives.
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THE BANK OF NEW YORK MELLON
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By:
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/s/ Veronica Westberg
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Name: Veronica Westberg
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Title: Managing Director
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GUGGENHEIM SPECIALIZED PRODUCTS, LLC
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Name: Amy J. Lee
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Title: Secretary
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Exhibit 99.1
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Press Release
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Invesco expands
its ability to meet client needs by completing its acquisition of Guggenheim Investments’ ETF business
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BulletShares
®
defined-maturity ETFs’ management fee reduced to 10 bps to provide better value and address a growing market segment
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Media contacts
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Invesco
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Guggenheim Partners
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Jeaneen Terrio
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Gerard Carney
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212.278.9205
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310.871.9208
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Jeaneen.terrio@invesco.com
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gerard.carney@guggenheimpartners.com
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Atlanta, April
9, 2018
– Invesco Ltd. (NYSE: IVZ) announced today that it has completed its
previously announced acquisition of Guggenheim Investments’ exchange-traded funds (ETF) business, which consists of $38.8 billion of assets under management (as of Feb. 28, 2018).
Strengthening our ETF capabilities for growth
The
acquisition strengthens Invesco’s market-leading ETF capabilities
1
as well as the firm’s efforts to meet the needs of institutional and retail clients in the US and across the globe,
which will contribute further to the growth and long-term success of the business. With this acquisition, Invesco’s ETF assets under management total more than $215.3 billion globally (as of Feb. 28, 2018).
“Since our announcement of the proposed transaction in September 2017, we’ve continued to deliver strong investment performance for our clients and
strengthened our business momentum while working toward a successful close of this transaction,” said Martin L. Flanagan, president and CEO of Invesco. “The addition of Guggenheim’s products to Invesco’s strong and diversified
range of active, passive and alternative capabilities and expertise will further enhance our ability to meet the investment needs of our clients and deliver the value they seek.”
“We’re excited to add Guggenheim Investments’ complementary ETF business, including well-known products such as BulletShares
®
and S&P500
®
Equal Weight ETF (NYSE: RSP), to our existing robust range of factor, smart beta, fixed income and equal weight
ETFs,” said Dan Draper, global head of ETFs at Invesco. “This acquisition strengthens our ability to build better and more diversified portfolios through our solutions platform, enhances the range of capabilities available via Jemstep (our
advisor-focused digital solution), and helps us better meet the needs of our clients. Our focus continues to be on taking care of clients while leveraging our extensive client-facing distribution force to accelerate the growth of the business.”
The aggregate purchase price paid by Invesco upon completion of the transaction was $1.2 billion.
BulletShares
®
management fee reduction
Invesco also announced that the management fee for the BulletShares
®
ETFs that provide
defined-maturity exposure through corporate bond investment-grade portfolios has been reduced to 0.10% (from 0.24%), effective today.
“The
BulletShares
®
ETF suite combines the benefits and precision of individual bonds with the advantages of an ETF to save advisors time while providing better client portfolios and outcomes,”
added Dan Draper. “Our research and client feedback shows that the market for a convenient, precise and liquid way to ladder bond portfolios for clients is growing rapidly. With more than a decade of ETF experience and compelling BulletShares
®
pricing, we believe Invesco is providing even better value to existing and future shareholders, and we’re well-positioned to accelerate the growth of this exciting market segment.”
Transitioning the funds
“We’re confident that Invesco is the right partner and platform to deliver continued value for our former ETF shareholders,” said Jerry W.
Miller, president of Guggenheim Investments. “With the closing of this transaction, Guggenheim Investments takes an important step forward in our growth strategy to focus on active portfolio management for both institutional and individual
clients.”
Effective as of the close of business on April 6, 2018, substantially all of the Guggenheim ETFs have been reorganized into
corresponding newly created exchange traded funds of Invesco’s PowerShares family of ETFs in a
tax-free
transaction. A small number of Guggenheim ETFs are still awaiting shareholder approval to reorganize
into PowerShares ETFs, and will be reorganized when that approval is received. The chart below lists the Guggenheim ETFs which have reorganized into Invesco’s PowerShares ETFs.
The following ETFs were reorganized:
PowerShares
Exchange-Traded Fund Trust
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Ticker
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Target Fund
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CUSIP
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Acquiring Fund
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CUSIP
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DJD
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Guggenheim Dow Jones Industrial Average Dividend ETF
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18383M175
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PowerShares Dow Jones Industrial Average Dividend Portfolio
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739371409
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NFO
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Guggenheim Insider Sentiment ETF
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18383M209
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PowerShares Insider Sentiment Portfolio
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739371508
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CZA
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Guggenheim
Mid-Cap
Core ETF
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18383M720
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PowerShares Zacks
Mid-Cap
Core Portfolio
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739371607
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CVY
|
|
Guggenheim Multi-Asset Income ETF
|
|
18383M506
|
|
PowerShares Zacks Multi-Asset Income Portfolio
|
|
739371706
|
|
|
|
|
|
|
|
CSD
|
|
Guggenheim S&P
Spin-Off
ETF
|
|
18383M605
|
|
PowerShares S&P
Spin-Off
Portfolio
|
|
739371888
|
|
|
|
|
|
|
|
WMCR
|
|
Wilshire
Micro-Cap
ETF
|
|
18383M308
|
|
PowerShares Wilshire Micro- Cap Portfolio
|
|
739371870
|
|
|
|
|
|
|
|
OEW
|
|
Guggenheim S&P 100
®
Equal Weight ETF
|
|
78355W478
|
|
PowerShares S&P 100
®
Equal Weight Portfolio
|
|
739371854
|
|
|
|
|
|
|
|
RCD
|
|
Guggenheim S&P 500
®
Equal Weight Consumer Discretionary ETF
|
|
78355W882
|
|
PowerShares S&P 500
®
Equal Weight Consumer Discretionary Portfolio
|
|
739371847
|
|
|
|
|
|
|
|
RHS
|
|
Guggenheim S&P 500
®
Equal Weight Consumer Staples ETF
|
|
78355W874
|
|
PowerShares S&P 500
®
Equal Weight Consumer Staples Portfolio
|
|
739371839
|
|
|
|
|
|
|
|
RYE
|
|
Guggenheim S&P 500
®
Equal Weight Energy ETF
|
|
78355W866
|
|
PowerShares S&P 500
®
Equal Weight Energy Portfolio
|
|
739371821
|
|
|
|
|
|
|
|
RSP
|
|
Guggenheim S&P 500
®
Equal Weight ETF
|
|
78355W106
|
|
PowerShares S&P 500
®
Equal Weight Portfolio
|
|
739371813
|
|
|
|
|
|
|
|
RYF
|
|
Guggenheim S&P 500
®
Equal Weight Financials ETF
|
|
78355W858
|
|
PowerShares S&P 500
®
Equal Weight Financials Portfolio
|
|
739371797
|
|
|
|
|
|
|
|
RYH
|
|
Guggenheim S&P 500
®
Equal Weight Health Care ETF
|
|
78355W841
|
|
PowerShares S&P 500
®
Equal Weight Health Care Portfolio
|
|
739371789
|
|
|
|
|
|
|
|
RGI
|
|
Guggenheim S&P 500
®
Equal Weight Industrials ETF
|
|
78355W833
|
|
PowerShares S&P 500
®
Equal Weight Industrials Portfolio
|
|
739371771
|
|
|
|
|
|
|
|
RTM
|
|
Guggenheim S&P 500
®
Equal Weight Materials ETF
|
|
78355W825
|
|
PowerShares S&P 500
®
Equal Weight Materials Portfolio
|
|
739371763
|
PowerShares Exchange-Traded Fund Trust
|
|
|
|
|
|
|
|
|
|
|
Ticker
|
|
Target Fund
|
|
CUSIP
|
|
Acquiring Fund
|
|
CUSIP
|
|
EWRE
|
|
Guggenheim S&P 500
®
Equal Weight Real Estate ETF
|
|
78355W486
|
|
PowerShares S&P 500
®
Equal Weight Real Estate Portfolio
|
|
739371755
|
|
|
|
|
|
|
|
RYT
|
|
Guggenheim S&P 500
®
Equal Weight Technology ETF
|
|
78355W817
|
|
PowerShares S&P 500
®
Equal Weight Technology Portfolio
|
|
739371748
|
|
|
|
|
|
|
|
RYU
|
|
Guggenheim S&P 500
®
Equal Weight Utilities ETF
|
|
78355W791
|
|
PowerShares S&P 500
®
Equal Weight Utilities Portfolio
|
|
739371730
|
|
|
|
|
|
|
|
RPG
|
|
Guggenheim S&P 500
®
Pure Growth ETF
|
|
78355W403
|
|
PowerShares S&P 500
®
Pure Growth Portfolio
|
|
739371722
|
|
|
|
|
|
|
|
RPV
|
|
Guggenheim S&P 500
®
Pure Value ETF
|
|
78355W304
|
|
PowerShares S&P 500
®
Pure Value Portfolio
|
|
739371714
|
|
|
|
|
|
|
|
XLG
|
|
Guggenheim S&P 500
®
Top 50 ETF
|
|
78355W205
|
|
PowerShares S&P 500
®
Top 50 Portfolio
|
|
739371698
|
|
|
|
|
|
|
|
EWMC
|
|
Guggenheim S&P MidCap 400
®
Equal Weight ETF
|
|
78355W577
|
|
PowerShares S&P MidCap 400
®
Equal Weight Portfolio
|
|
739371680
|
|
|
|
|
|
|
|
RFG
|
|
Guggenheim S&P MidCap 400
®
Pure Growth ETF
|
|
78355W601
|
|
PowerShares S&P MidCap 400
®
Pure Growth Portfolio
|
|
739371672
|
|
|
|
|
|
|
|
RFV
|
|
Guggenheim S&P MidCap 400
®
Pure Value ETF
|
|
78355W502
|
|
PowerShares S&P MidCap 400
®
Pure Value Portfolio
|
|
739371664
|
|
|
|
|
|
|
|
EWSC
|
|
Guggenheim S&P SmallCap 600
®
Equal Weight ETF
|
|
78355W585
|
|
PowerShares S&P SmallCap 600
®
Equal Weight Portfolio
|
|
739371656
|
|
|
|
|
|
|
|
RZG
|
|
Guggenheim S&P SmallCap 600
®
Pure Growth ETF
|
|
78355W809
|
|
PowerShares S&P SmallCap 600
®
Pure Growth Portfolio
|
|
739371649
|
|
|
|
|
|
|
|
RZV
|
|
Guggenheim S&P SmallCap 600
®
Pure Value ETF
|
|
78355W700
|
|
PowerShares S&P SmallCap 600
®
Pure Value Portfolio
|
|
739371631
|
|
|
|
|
|
PowerShares Exchange-Traded Fund Trust II
|
|
|
|
|
|
Ticker
|
|
Target Fund
|
|
CUSIP
|
|
Acquiring Fund
|
|
CUSIP
|
|
LVL
|
|
Guggenheim S&P Global Dividend Opportunities Index ETF
|
|
18383M860
|
|
PowerShares S&P Global Dividend Opportunities Index Portfolio
|
|
73936Q660
|
|
|
|
|
|
|
|
TAO
|
|
Guggenheim China Real Estate ETF
|
|
18383Q861
|
|
PowerShares China Real Estate Portfolio
|
|
73936Q637
|
|
|
|
|
|
|
|
FRN
|
|
Guggenheim Frontier Markets ETF
|
|
18383Q838
|
|
PowerShares Frontier Markets Portfolio
|
|
73936Q611
|
|
|
|
|
|
|
|
HGI
|
|
Guggenheim International Multi-Asset Income ETF
|
|
18383Q804
|
|
PowerShares Zacks International Multi-Asset Income Portfolio
|
|
73936Q595
|
|
|
|
|
|
|
|
CUT
|
|
Guggenheim MSCI Global Timber ETF
|
|
18383Q879
|
|
PowerShares MSCI Global Timber Portfolio
|
|
73936Q587
|
|
|
|
|
|
|
|
SEA
|
|
Guggenheim Shipping ETF
|
|
18383Q796
|
|
PowerShares Shipping Portfolio
|
|
73936Q579
|
|
|
|
|
|
|
|
YAO
|
|
Guggenheim China
All-Cap
ETF
|
|
18385P101
|
|
PowerShares China
All-Cap
Portfolio
|
|
73936Q561
|
|
|
|
|
|
|
|
CGW
|
|
Guggenheim S&P Global Water Index ETF
|
|
18383Q507
|
|
PowerShares S&P Global Water Index Portfolio
|
|
73936Q546
|
|
|
|
|
|
|
|
EWEM
|
|
Guggenheim MSCI Emerging Markets Equal Country Weight ETF
|
|
78355W536
|
|
PowerShares MSCI Emerging Markets Equal Country Weight Portfolio
|
|
73936Q512
|
|
|
|
|
|
|
|
GSY
|
|
Guggenheim Ultra Short Duration ETF
|
|
18383M654
|
|
PowerShares Ultra Short Duration Portfolio
|
|
73935B797
|
|
|
|
|
|
|
|
GTO
|
|
Guggenheim Total Return Bond ETF
|
|
18385P705
|
|
PowerShares Total Return Bond Portfolio
|
|
73935B789
|
PowerShares Exchange-Traded Self-Indexed Fund Trust
|
|
|
|
|
|
|
|
|
|
|
Ticker
|
|
Target Fund
|
|
CUSIP
|
|
Acquiring Fund
|
|
CUSIP
|
|
BSCI
|
|
Guggenheim BulletShares 2018 Corporate Bond ETF
|
|
18383M530
|
|
PowerShares BulletShares 2018 Corporate Bond Portfolio
|
|
73939W102
|
|
|
|
|
|
|
|
BSJI
|
|
Guggenheim BulletShares 2018 High Yield Corporate Bond ETF
|
|
18383M381
|
|
PowerShares BulletShares 2018 High Yield Corporate Bond Portfolio
|
|
73939W201
|
|
|
|
|
|
|
|
BSCJ
|
|
Guggenheim BulletShares 2019 Corporate Bond ETF
|
|
18383M522
|
|
PowerShares BulletShares 2019 Corporate Bond Portfolio
|
|
73939W300
|
|
|
|
|
|
|
|
BSJJ
|
|
Guggenheim BulletShares 2019 High Yield Corporate Bond ETF
|
|
18383M373
|
|
PowerShares BulletShares 2019 High Yield Corporate Bond Portfolio
|
|
73939W409
|
|
|
|
|
|
|
|
BSCK
|
|
Guggenheim BulletShares 2020 Corporate Bond ETF
|
|
18383M514
|
|
PowerShares BulletShares 2020 Corporate Bond Portfolio
|
|
73939W508
|
|
|
|
|
|
|
|
BSJK
|
|
Guggenheim BulletShares 2020 High Yield Corporate Bond ETF
|
|
18383M365
|
|
PowerShares BulletShares 2020 High Yield Corporate Bond Portfolio
|
|
73939W607
|
|
|
|
|
|
|
|
BSCL
|
|
Guggenheim BulletShares 2021 Corporate Bond ETF
|
|
18383M266
|
|
PowerShares BulletShares 2021 Corporate Bond Portfolio
|
|
73939W706
|
|
|
|
|
|
|
|
BSJL
|
|
Guggenheim BulletShares 2021 High Yield Corporate Bond ETF
|
|
18383M225
|
|
PowerShares BulletShares 2021 High Yield Corporate Bond Portfolio
|
|
73939W805
|
|
|
|
|
|
|
|
BSCM
|
|
Guggenheim BulletShares 2022 Corporate Bond ETF
|
|
18383M258
|
|
PowerShares BulletShares 2022 Corporate Bond Portfolio
|
|
73939W888
|
|
|
|
|
|
|
|
BSJM
|
|
Guggenheim BulletShares 2022 High Yield Corporate Bond ETF
|
|
18383M217
|
|
PowerShares BulletShares 2022 High Yield Corporate Bond Portfolio
|
|
73939W870
|
|
|
|
|
|
|
|
BSCN
|
|
Guggenheim BulletShares 2023 Corporate Bond ETF
|
|
18383M241
|
|
PowerShares BulletShares 2023 Corporate Bond Portfolio
|
|
73939W862
|
|
|
|
|
|
|
|
BSJN
|
|
Guggenheim BulletShares 2023 High Yield Corporate Bond ETF
|
|
18383M183
|
|
PowerShares BulletShares 2023 High Yield Corporate Bond Portfolio
|
|
73939W854
|
|
|
|
|
|
|
|
BSCO
|
|
Guggenheim BulletShares 2024 Corporate Bond ETF
|
|
18383M233
|
|
PowerShares BulletShares 2024 Corporate Bond Portfolio
|
|
73939W847
|
|
|
|
|
|
|
|
BSJO
|
|
Guggenheim BulletShares 2024 High Yield Corporate Bond ETF
|
|
18383M134
|
|
PowerShares BulletShares 2024 High Yield Corporate Bond Portfolio
|
|
73939W839
|
|
|
|
|
|
|
|
BSCP
|
|
Guggenheim BulletShares 2025 Corporate Bond ETF
|
|
18383M191
|
|
PowerShares BulletShares 2025 Corporate Bond Portfolio
|
|
73939W821
|
|
|
|
|
|
|
|
BSCQ
|
|
Guggenheim BulletShares 2026 Corporate Bond ETF
|
|
18383M126
|
|
PowerShares BulletShares 2026 Corporate Bond Portfolio
|
|
73939W797
|
|
|
|
|
|
|
|
BSCR
|
|
Guggenheim BulletShares 2027 Corporate Bond ETF
|
|
18386R205
|
|
PowerShares BulletShares 2027 Corporate Bond Portfolio
|
|
73939W789
|
|
|
|
|
|
|
|
DEF
|
|
Guggenheim Defensive Equity ETF
|
|
18383M878
|
|
PowerShares Defensive Equity Portfolio
|
|
73939W771
|
|
|
|
|
|
|
|
OVLC
|
|
Guggenheim U.S. Large Cap Optimized Volatility ETF
|
|
18385P804
|
|
PowerShares U.S. Large Cap Optimized Volatility Portfolio
|
|
73939W763
|
|
|
|
|
|
|
|
GMFL
|
|
Guggenheim Multi-Factor Large Cap ETF
|
|
78355W460
|
|
PowerShares Multi-Factor Large Cap Portfolio
|
|
73939W755
|
CurrencyShares transition
The CurrencyShares ETF product line, also part of the Guggenheim transaction, were transitioned to Invesco effective at the close of business on April 6,
2018. These products offer investors and institutions a convenient and cost-effective method of gaining potential investment benefits similar to holding foreign currencies.
|
1
|
With $176.5 billion in assets under management globally, PowerShares ranked as the fourth-largest ETF provider globally, as of Feb. 28, 2018. Source: PowerShares research. With $55 billion in smart beta assets
under management, PowerShares’ smart beta lineup ranked second in the US, as of Jan. 31, 2018. Source: PowerShares research and Bloomberg.
|
About Invesco Ltd.
Invesco is an independent investment
management firm dedicated to delivering an investment experience that helps people get more out of life. NYSE: IVZ;
www.invesco.com
.
Disclosures
This release may include
“forward-looking statements.” Forward-looking statements are not guarantees, and they involve risks, uncertainties and assumptions. There can be no assurance that actual results will not differ materially from our expectations. We caution
investors not to rely unduly on any forward-looking statements and urge you to carefully consider the risks described in our most recent Form
10-K
and subsequent Forms
10-Q,
filed with the Securities and Exchange Commission. You may obtain these reports from the SEC’s website at
www.sec.gov
. We expressly disclaim any obligation to update the information in any
public disclosure if any forward-looking statement later turns out to be inaccurate.
There are risks involved with investing in ETFs, including possible
loss of money. Index-based ETFs are not actively managed. Actively managed ETFs do not necessarily seek to replicate the performance of a specified index. Both index-based and actively managed ETFs are subject to risks similar to stocks, including
those related to short selling and margin maintenance. Ordinary brokerage commissions apply.
Since ordinary brokerage commissions apply for each buy and
sell transaction, frequent trading activity may increase the cost of ETFs.
Diversification does not guarantee a profit or eliminate the risk of loss.
ETFs disclose their full portfolio holdings daily.
The
information in this release does not constitute a recommendation of any investment strategy or product for a particular investor. Investors should consult a financial advisor/financial consultant before making any investment decisions.
PowerShares
®
is a registered trademark of Invesco PowerShares Capital Management LLC, investment
adviser. Invesco PowerShares Capital Management LLC (PowerShares) and Invesco Distributors, Inc., ETF distributor, are indirect, wholly owned subsidiaries of Invesco Ltd. Invesco is not affiliated with Guggenheim Funds Distributors, LLC.
Shares are not individually redeemable and owners of the Shares may acquire those Shares from the Funds and tender those shares for redemption to the Funds in
Creation Unit aggregations only, typically consisting of 10,000, 50,000, 75,000, 80,000, 100,000, 150,000 or 200,000 Shares.
Before investing, investors should carefully read the prospectus/summary prospectus and carefully consider
the investment objectives, risks, charges and expenses. For this and more complete information about the Fund call 800 983 0903 or visit powershares.com for the prospectus/summary prospectus.
# # #
