As filed with the Securities and Exchange Commission on March 10, 2020
1933 Act File No. 333-150525
1940 Act File No. 811-22201
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20543
FORM N-1A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 | ☒ | |
Pre-Effective Amendment No. | ☐ | |
Post-Effective Amendment No. 262 | ☒ |
and/or
REGISTRATION STATEMENT
UNDER
THE INVESTMENT COMPANY ACT OF 1940 | ☒ | |
Amendment No. 264 | ☒ |
(Check appropriate box or boxes.)
DIREXION SHARES ETF TRUST
(Exact name of Registrant as Specified in Charter)
1301 Avenue of the Americas (6th Avenue), 28th Floor
New York, New York 10019
(Address of Principal Executive Office) (Zip Code)
Registrants Telephone Number, including Area Code: (646) 572-3390
Daniel D. ONeill, Chief Executive Officer
1301 Avenue of the Americas (6th Avenue), 28th Floor
New York, New York 10019
(Name and Address of Agent for Service)
Copy to:
Angela Brickl | Stacy L. Fuller | |
Direxion Advisors, LLC | K&L Gates LLP | |
1301 Avenue of the Americas (6th Avenue) | 1601 K Street, NW | |
28th Floor | Washington, DC 20006 | |
New York, New York 10019 |
It is proposed that this filing will become effective (check appropriate box)
☐ |
immediately upon filing pursuant to paragraph (b) |
☐ |
On (date) pursuant to paragraph (b) |
☒ |
60 days after filing pursuant to paragraph (a)(1) |
☐ |
On (date) pursuant to paragraph (a)(1) |
☐ |
75 days after filing pursuant to paragraph (a)(2) |
☐ |
on (date) pursuant to paragraph (a)(2) of Rule 485. |
If appropriate, check the following box:
☐ |
This post-effective amendment designates a new effective date for a previously filed post-effective amendment. |
DIREXION SHARES ETF TRUST
CONTENTS OF REGISTRATION STATEMENT
This registration document is comprised of the following:
Cover Sheet;
Contents of Registration Statement:
Prospectus and Statement of Additional Information for the PortfolioPlus S&P® Composite 1500 ETF;
Part C of Form N-1A; and
Signature Page.
1301 Avenue of the Americas (6th Avenue), 28th Floor | New York, New York 10019 | 866-476-7523 |
(1) | Estimated for the Fund's current fiscal year. |
(2) | Direxion Advisors, LLC ("Direxion" or the "Adviser") has entered into an Operating Services Agreement with the Fund. Under this Operating Services Agreement, Direxion has contractually agreed to pay all expenses of the Fund as long as it is the advisor of the Fund other than the following: management fees, Rule 12b-1 distribution and/or service fees, taxes, swap financing and related costs, dividends or interest on short positions, other interest expenses, brokerage commissions, expenses incurred in connection with any merger or reorganization, acquired fund fees and expenses, and extraordinary expenses. The Operating Services Agreement may be terminated at any time by the Board of Trustees. |
1 Year | 3 Years |
$[ ] | $[ ] |
1 | Direxion Shares ETF Trust Prospectus |
• | Swap Agreements. Swap agreements are entered into primarily with major global financial institutions for a specified period which may range from one day to more than one year. In a standard swap transaction, two parties agree to exchange the return (or differentials in rates of return) earned or realized on particular predetermined reference assets or underlying securities or instruments. |
Direxion Shares ETF Trust Prospectus | 2 |
The gross return to be exchanged or swapped between the parties is calculated based on a notional amount or the return on or change in value of a particular dollar amount invested in a basket of securities representing a particular index or an ETF that seeks to track an index. |
3 | Direxion Shares ETF Trust Prospectus |
Direxion Shares ETF Trust Prospectus | 4 |
Portfolio Managers | Years of Service with the Fund | Primary Title |
Paul Brigandi | Since Inception | Portfolio Manager |
Tony Ng | Since Inception | Portfolio Manager |
5 | Direxion Shares ETF Trust Prospectus |
Direxion Shares ETF Trust Prospectus | 6 |
7 | Direxion Shares ETF Trust Prospectus |
• | Swap Agreements. Swap agreements are entered into primarily with major global financial institutions for a specified period which may range from one day to more than one year. In a standard swap transaction, two parties agree to exchange the return (or differentials in rates of return) earned or realized on particular predetermined reference or underlying securities or instruments. The gross return to be exchanged or swapped between the parties is calculated based on a notional amount or the return on or change in value of a particular dollar amount invested in a reference asset. |
• | Futures Contracts. A futures contact is a contract to purchase or sell a particular security, or the cash value of an index, at a specified future date at a price agreed upon when the contract is made. Under such contracts, no delivery of the actual securities is required. Rather, upon the expiration of the contract, settlement is made by exchanging cash in an amount equal to the difference between the contract price and the closing price of a security or index at expiration, net of the variation margin that was previously paid. |
• | Forward Contracts. Forward contracts are two-party contracts pursuant to which one party agrees to pay the counterparty a fixed price for an agreed upon amount of commodities, securities, or the cash value of the commodities, securities or the securities index, at an agreed upon date. A forward currency contract is an obligation to buy or sell 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. |
• | Options. An option is a contract that gives the purchaser (holder) of the option, in return for a premium, the right to buy from (call) or sell to (put) the seller (writer) of the option the security or currency underlying the option at a specified exercise price at any time during the term of the option (normally not exceeding nine months). The writer of an option has the obligation upon exercise of the option to deliver the underlying security or currency upon payment of the exercise price or to pay the exercise price upon delivery of the underlying security or currency. |
• | Options on Futures Contracts. An option on a futures contract provides the holder with the right to enter into a “long” position in the underlying futures contract, in the case of a call option, or a “short” position in the underlying futures contract in the case of a put option, at a fixed exercise price to a stated expiration date. Upon exercise of the option by the holder, the contract market clearing house establishes a corresponding short position for the writer of the option, in the case of a call option, or a corresponding long position, in the case of a put option. |
Direxion Shares ETF Trust Prospectus | 8 |
9 | Direxion Shares ETF Trust Prospectus |
Direxion Shares ETF Trust Prospectus | 10 |
11 | Direxion Shares ETF Trust Prospectus |
Direxion Shares ETF Trust Prospectus | 12 |
13 | Direxion Shares ETF Trust Prospectus |
Direxion Shares ETF Trust Prospectus | 14 |
15 | Direxion Shares ETF Trust Prospectus |
Direxion Shares ETF Trust Prospectus | 16 |
17 | Direxion Shares ETF Trust Prospectus |
Direxion Shares ETF Trust Prospectus | 18 |
19 | Direxion Shares ETF Trust Prospectus |
Direxion Shares ETF Trust Prospectus | 20 |
1301 Avenue of the Americas (6th Avenue), 28th Floor | New York, New York 10019 | 866-476-7523 |
Write to: | Direxion Shares ETF Trust |
1301 Avenue
of the Americas (6th Avenue), 28th Floor
New York, New York 10019 |
|
Call: | 866-476-7523 |
By Internet: | www.direxion.com |
1301 Avenue of the Americas (6th Avenue), 28th Floor | New York, New York 10019 | 866-476-7523 |
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Transaction Fees | 54 |
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A-1 |
• | Adversely impact the pricing, liquidity, value of, return on and trading for a broad array of financial products, including any LIBOR-linked securities, loans and derivatives in which the Fund may invest; |
• | Require extensive negotiations of and/or amendments to agreements and other documentation governing LIBOR-linked investments products; |
• | Lead to disputes, litigation or other actions with counterparties or portfolio companies regarding the interpretation and enforceability of “fall back” provisions that provide for an alternative reference rate in the event of LIBOR’s unavailability; or |
• | Cause the Fund to incur additional costs in relation to any of the above factors. |
1. | Borrow money, except to the extent permitted by the 1940 Act, the rules and regulations thereunder and any applicable exemptive relief. |
2. | Issue senior securities, except to the extent permitted by the 1940 Act, the rules and regulations thereunder and any applicable exemptive relief. |
3. | Make loans, except to the extent permitted by the 1940 Act, the rules and regulations thereunder and any applicable exemptive relief. |
4. | Except for any Fund that is “concentrated” in an industry or group of industries within the meaning of the 1940 Act, purchase the securities of any issuer (other than securities issued or guaranteed by the U.S. government or any of its agencies or instrumentalities) if, as a result, 25% or more of the Fund’s total assets would be invested in the securities of companies whose principal business activities are in the same industry. However, the Fund that tracks the Index will only concentrate its investment in a particular industry or group of industries to approximately the same extent as the Index is so concentrated. |
5. | Purchase or sell real estate, except that, to the extent permitted by applicable law, the Fund may (a) invest in securities or other instruments directly secured by real estate, and (b) invest in securities or other instruments issued by issuers that invest in real estate. |
6. | Purchase or sell commodities or commodity contracts unless acquired as a result of ownership of securities or other instruments issued by persons that purchase or sell commodities or commodities contracts; but this shall not prevent the Fund from purchasing, selling and entering into financial futures contracts (including futures contracts on indices of securities, interest rates and currencies), and options on financial futures contracts (including futures contracts on indices of securities, interest rates and currencies), warrants, swaps, forward contracts, foreign currency spot and forward contracts and other financial instruments. |
7. | Underwrite securities issued by others, except to the extent that the Fund may be considered an underwriter within the meaning of the 1933 Act in the disposition of restricted securities or other investment company securities. |
Name,
Address
and Age |
Position(s)
Held with Fund |
Term
of
Office and Length of Time Served |
Principal
Occupation(s) During
Past Five Years |
#
of
Portfolios in Direxion Family of Investment Companies Overseen by Trustee(2) |
Other
Trusteeships/ Directorships Held by Trustee During Past Five Years |
Daniel
D. O’Neill(1)
Age: 51 |
Chairman of the Board of Trustees |
Lifetime
of Trust until removal or resignation;
Since 2008 |
Managing
Director of Rafferty Asset Management, LLC, January 1999 – January 2019 and Direxion Advisors, LLC, November 2017
– January 2019.
|
[ ] | None. |
Name,
Address
and Age |
Position(s)
Held with Fund |
Term
of
Office and Length of Time Served |
Principal
Occupation(s) During
Past Five Years |
#
of
Portfolios in Direxion Family of Investment Companies Overseen by Trustee(3) |
Other
Trusteeships/ Directorships Held by Trustee During Past Five Years |
Gerald
E. Shanley III
Age: 76 |
Trustee |
Lifetime
of Trust until removal or resignation;
Since 2008 |
Retired,
since 2002; Business Consultant, 1985-present; Trustee of Trust Under Will of Charles S. Payson, 1987-present; C.P.A., 1979-present.
|
[ ] | None. |
David
L. Driscoll
Age: 50 |
Trustee |
Lifetime
of Trust until removal or resignation;
Since 2014 |
Partner,
King Associates, LLP, since 2004; Board Advisor, University Common Real Estate, since 2012; Principal, Grey Oaks LLP since 2003; Member, Kendrick LLC, since 2006.
|
[ ] | None. |
Jacob
C. Gaffey
Age: 72 |
Trustee |
Lifetime
of Trust until removal or resignation;
Since 2014 |
Managing
Director of Loomis & Co. since 2012; Partner, Bay Capital Advisors, LLC
2008 – 2012. |
[ ] | None. |
Name,
Address
and Age |
Position(s)
Held with Fund |
Term
of
Office and Length of Time Served |
Principal
Occupation(s) During
Past Five Years |
#
of
Portfolios in Direxion Family of Investment Companies Overseen by Trustee(3) |
Other
Trusteeships/ Directorships Held by Trustee During Past Five Years |
Henry
W. Mulholland
Age: 56 |
Trustee | Lifetime of Trust until removal or resignation; Since 2017 | Grove Hill Partners LLC, since 2016 as Managing Partner; Bank of America Merrill Lynch, 1990-2015, most recently as Managing Director and Head of Equities for Americas. | [ ] | None. |
Kathleen
M. Berkery(3)
Age: 52 |
Trustee | Lifetime of Trust until removal or resignation; Since 2019 | Rynkar, Vail & Barrett, LLC, since 2018 as Manager – Trusts & Estates; Lee, Nolan & Koroghlian Life Planning Group, 2010-2017 as Financial Advisor | [ ] | None. |
(1) | Mr. O’Neill is affiliated with Rafferty and Direxion because he owns a beneficial interest in Rafferty. |
(2) | The Direxion Family of Investment Companies consists of the Direxion Shares ETF Trust which, as of the date of this SAI, offers for sale to the public [ ] of the [ ] funds registered with the SEC, the Direxion Funds which, as of the date of this SAI, offers for sale to the public 15 funds registered with the SEC and the Direxion Insurance Trust which, as of the date of this SAI, does not have any funds registered with the SEC. |
(3) | Ms. Berkery was elected as a Trustee on November 26, 2019. |
Name,
Address
and Age |
Position(s)
Held with Fund |
Term
of
Office and Length of Time Served |
Principal
Occupation(s) During
Past Five Years |
#
of
Portfolios in the Direxion Family of Investment Companies Overseen by Trustee(1) |
Other
Trusteeships/
Directorships Held by Trustee During Past Five Years |
Robert
D. Nestor
Age: 51 |
President |
One
Year;
Since 2018 |
President, Rafferty Asset Management, LLC and Direxion Advisors, LLC, since April 2018; Blackrock, Inc. (May 2007-April 2018), most recently as Managing Director. | N/A | N/A |
Patrick
J. Rudnick
Age: 46 |
Principal
Executive
Officer Principal Financial Officer |
One
Year;
Since 2018 One Year; Since 2010 |
Senior
Vice President, since March 2013, Rafferty Asset Management, LLC; Senior Vice President, since November 2017, Direxion Advisors, LLC.
|
N/A | N/A |
Name,
Address
and Age |
Position(s)
Held with Fund |
Term
of
Office and Length of Time Served |
Principal
Occupation(s) During
Past Five Years |
#
of
Portfolios in the Direxion Family of Investment Companies Overseen by Trustee(1) |
Other
Trusteeships/
Directorships Held by Trustee During Past Five Years |
Angela
Brickl
Age: 43 |
Chief
Compliance
Officer Secretary |
One
Year;
Since 2018 One Year; Since 2011 |
General
Counsel, Rafferty Asset Management LLC, since October 2010 and Direxion Advisors, LLC, since November 2017; Chief Compliance Officer, Rafferty Asset Management, LLC, since September 2012 and Direxion Advisors, LLC, since November 2017.
|
N/A | N/A |
(1) | The Direxion Family of Investment Companies consists of the Direxion Shares ETF Trust which, as of the date of this SAI, offers for sale to the public [ ] of the [ ] funds registered with the SEC, the Direxion Funds which, as of the date of this SAI, offers for sale to the public 15 funds registered with the SEC and the Direxion Insurance Trust which, as of the date of this SAI, does not have any funds registered with the SEC. |
(1) | The Direxion Family of Investment Companies consists of the Direxion Shares ETF Trust which, as of the date of this SAI, offers for sale to the public [ ] of the [ ] funds registered with the SEC, the Direxion Funds which, as of the date of this SAI, offers for sale to the public 15 funds registered with the SEC and the Direxion Insurance Trust which, as of the date of this SAI, does not have any funds registered with the SEC. |
Name
of Person,
Position |
Aggregate
Compensation From the Trust(1) |
Pension
or
Retirement Benefits Accrued As Part of the Trust’s Expenses |
Estimated
Annual Benefits Upon Retirement |
Aggregate
Compensation From the Direxion Family of Investment Companies Paid to the Trustees(2) |
Interested Trustee | ||||
Daniel D. O’Neill | $0 | $0 | $0 | $0 |
Independent Trustees | ||||
Gerald E. Shanley III | $100,000 | $0 | $0 | $133,333 |
David L. Driscoll | $100,000 | $0 | $0 | $133,333 |
Jacob C. Gaffey | $100,000 | $0 | $0 | $133,333 |
Henry W. Mulholland | $100,000 | $0 | $0 | $133,333 |
Kathleen M. Berkery(3) | $0 | $0 | $0 | $0 |
Accounts |
Total
Number
of Accounts |
Total
Assets
(In Billions) |
Total
Number of
Accounts with Performance Based Fees |
Total
Assets
of Accounts with Performance Based Fees |
Registered Investment Companies | [ ] | $ [ ] | 0 | $0 |
Other Pooled Investment Vehicles | 0 | $0 | 0 | $0 |
Other Accounts | 0 | $0 | 0 | $0 |
• | Election of Directors – considering all factors such as director qualifications, term of office and age limits. |
• | Proxy Contests – considering factors such as voting nominees in contested elections and reimbursement of expenses. |
• | Election of Auditors – considering factors such as independence and reputation of the auditing firm. |
• | Proxy Contest Defenses – considering factors such as board structure and cumulative voting. |
• | Tender Offer Defenses – considering factors such as poison pills (stock purchase rights plans) and fair price provisions. |
• | Miscellaneous Governance Issues – considering factors such as confidential voting and equal access. |
• | Capital Structure – considering factors such as common stock authorization and stock distributions. |
• | Executive and Director Compensation – considering factors such as performance goals and employee stock purchase plans. |
• | State of Incorporation – considering factors such as state takeover statutes and voting on reincorporation proposals. |
• | Mergers and Corporate Restructuring – considering factors such as spin-offs and asset sales. |
• | Mutual Fund Proxy Voting – considering factors such as election of directors and proxy contests. |
• | Social and Corporate Responsibility Issues – considering factors such as social, environmental, and labor issues. |
* | As a percentage of the amount invested. |
Australia | Austria | Belgium | Brazil | Canada | Chile | China | ||||||
January
1
January 27 April 10 April 13 June 8 December 24 December 25 December 28 December 31 |
January
1
January 6 April 10 April 13 May 1 May 21 June 1 June 11 October 26 December 8 December 24 December 25 December 31 |
January
1
April 10 April 13 May 1 May 21 May 22 June 1 July 21 November 11 December 25 |
January
1
February 24 February 25 February 26 April 10 April 21 May 1 June 11 July 9 September 7 October 12 November 2 November 20 December 25 |
January
1
January 2 February 17 April 10 May 18 July 1 August 3 September 7 October 12 November 11 December 25 December 28 |
January
1
April 10 May 1 May 21 June 29 July 16 September 18 October 12 December 8 December 25 |
January
1
January 20 January 24 January 27 January 28 January 29 January 30 February 17 April 6 April 10 April 13 April 30 May 1 May 4 May 5 May 25 June 25 June 26 July 1 July 3 September 7 October 1 October 2 October 5 October 6 October 7 October 8 October 12 October 26 November 11 November 26 December 25 |
Colombia | Czech Republic | Denmark | Egypt | Finland | France | Germany | ||||||
January
1
January 6 March 23 April 9 April 10 May 1 June 15 June 22 June 29 July 20 August 7 August 17 October 12 November 2 November 16 December 8 December 24 December 25 |
January
1
April 10 April 13 May 1 May 8 July 6 September 28 October 28 November 17 December 24 December 25 |
January
1
April 9 April 10 April 13 May 1 May 8 May 21 May 22 June 1 June 5 December 24 December 25 December 31 |
January
1
January 7 April 19 April 20 May 24 May 25 July 30 July 23 August 2 August 19 October 6 October 28 |
January
1
January 6 April 10 April 13 May 1 May 21 June 19 December 24 December 25 December 31 |
January
1
April 10 April 13 May 1 May 8 May 21 June 1 July 14 November 11 December 25 |
January
1
April 10 April 13 May 1 June 1 December 24 December 25 December 31 |
Greece | Hong Kong | Hungary | India | Indonesia | Ireland | Israel | ||||||
January
1
January 6 March 2 March 25 April 10 April 13 April 17 April 20 May 1 June 8 October 28 December 24 December 25 |
January
1
January 19 January 24 January 27 January 28 January 29 January 30 February 1 April 6 April 9 April 10 April 13 April 26 April 29 April 30 May 1 May 4 May 5 May 9 June 25 June 26 June 28 June 30 July 1 September 27 October 1 October 2 October 5 October 6 October 7 October 8 October 10 October 23 October 26 December 24 December 25 December 31 |
January
1
April 10 April 13 May 1 June 1 August 20 August 21 August 29 October 23 December 12 December 24 December 25 December 31 |
February
19
February 21 March 10 March 25 April 1 April 2 April 6 April 10 April 14 May 1 May 7 May 25 October 2 October 30 November 14 November 16 November 30 December 25 |
January
1
March 25 April 10 May 1 May 7 May 21 May 22 May 25 May 26 May 27 June 1 July 31 August 17 August 20 October 29 December 24 December 25 December 31 |
January
1
January 20 February 17 April 10 April 13 May 1 May 8 May 25 July 3 July 4 August 31 October 12 November 11 November 26 December 24 December 25 December 28 December 31 |
March
10
April 8 April 9 April 12 April 13 April 14 April 15 April 28 April 29 May 29 July 30 September 20 September 27 September 28 October 4 October 5 October 6 October 7 October 8 |
Italy | Japan | Malaysia | Mexico | Morocco | Netherlands | New Zealand | ||||||
January
1
April 10 April 13 May 1 December 24 December 25 December 31 |
January
1
January 2 January 3 January 13 February 11 February 24 March 20 April 29 May 4 May 5 May 6 July 23 July 24 August 10 September 21 September 22 November 3 November 23 December 31 |
January
1
January 24 January 27 May 1 May 7 May 11 May 25 May 26 July 31 August 20 August 31 September 16 October 29 December 25 |
January
1
February 3 March 16 April 9 April 10 May 1 September 16 November 2 November 16 December 25 |
January
1
May 1 May 25 May 26 July 30 July 31 August 14 August 20 August 21 October 30 November 6 November 18 |
January
1
April 10 April 13 April 27 May 1 May 5 May 21 June 1 December 25 |
January
1
January 2 January 20 January 27 February 6 April 10 April 13 April 27 June 1 October 26 December 25 December 28 |
Norway | Peru | Philippines | Poland | Portugal | Russia | Singapore | ||||||
January
1
April 8 April 9 April 10 April 13 May 1 May 21 June 1 December 24 December 25 December 31 |
January
1
April 9 April 10 May 1 June 29 July 28 October 8 December 25 |
January
1
February 25 April 9 April 10 May 1 June 12 August 21 August 31 November 2 November 30 December 8 December 24 December 25 December 30 December 31 |
January
1
January 6 April 10 April 13 May 1 June 11 November 11 December 24 December 25 December 31 |
January
1
April 10 April 13 May 1 June 10 June 11 October 5 December 1 December 8 December 25 |
January
1
January 2 January 3 January 6 January 7 January 8 February 24 March 9 May 1 May 4 May 5 May 11 June 12 November 4 |
January
1
January 27 April 10 May 1 May 7 May 25 July 31 August 10 December 25 |
South Africa | South Korea | Spain | Sweden | Switzerland | Taiwan | Thailand | ||||||
January
1
April 10 April 13 April 27 May 1 June 16 August 10 September 24 December 16 December 25 |
January
1
January 24 January 27 April 15 April 30 May 1 May 5 September 31 October 1 October 2 October 9 December 25 December 31 |
January
1
January 6 March 19 April 9 April 10 April 13 May 1 October 12 November 2 December 7 December 8 December 25 |
January
1
January 6 April 9 April 10 April 13 April 30 May 1 May 20 May 21 June 19 October 30 December 24 December 25 December 31 |
January
1
January 2 April 10 April 13 April 20 May 1 May 21 June 1 September 14 December 24 December 25 December 31 |
January
1
January 21 January 22 January 23 January 24 January 27 January 28 January 29 February 28 April 2 April 3 May 1 June 25 June 26 October 1 October 2 October 9 |
January
1
February 10 April 6 April 13 April 14 April 15 May 1 May 4 May 6 June 3 July 6 July 28 August 12 October 13 October 23 December 7 December 10 December 31 |
Turkey | United Kingdom | |
January
1
April 23 May 1 May 19 May 25 May 26 July 15 July 30 July 31 August 3 October 28 October 29 |
January
1
January 20 February 17 April 10 April 13 May 1 May 8 May 25 July 3 August 31 October 12 November 11 November 26 December 24 December 25 December 28 December 31 |
• | The likelihood of payment--the capacity and willingness of the obligor to meet its financial commitments on an obligation in accordance with the terms of the obligation; |
• | The nature and provisions of the financial obligation, and the promise we impute; and |
• | The protection afforded by, and relative position of, the financial obligation in the event of a bankruptcy, reorganization, or other arrangement under the laws of bankruptcy and other laws affecting creditors' rights. |
• | Amortization schedule--the larger the final maturity relative to other maturities, the more likely it will be treated as a note; and |
• | Source of payment--the more dependent the issue is on the market for its refinancing, the more likely it will be treated as a note. |
(a) | Subject to the exceptions and limitations contained in subsection (b) below: |
(i) | every person who is, or has been, a Trustee or an officer, employee or agent of the Trust, including persons who act 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 (“Covered Person”) shall be indemnified by the Trust or the appropriate Series to the fullest extent permitted by law against liability and against all expenses reasonably incurred or paid by him or her in connection with any claim, action, suit or proceeding in which he or she becomes involved as a party or otherwise by virtue of his or her being or having been a Covered Person and against amounts paid or incurred by him or her in the settlement thereof. |
(ii) | as used herein, the words “claim,” “action,” “suit” or “proceeding” shall apply to all claims, actions, suits or proceedings (civil, criminal or other, including appeals), actual or threatened, and the words “liability” and “expenses” shall include, without limitation, counsel fees, costs, judgments, amounts paid in settlement, fines, penalties and other liabilities. |
(b) | No indemnification shall be provided hereunder to a Covered Person: |
(i) | who shall have been adjudicated by a court or body before which the proceeding was brought (A) to be liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office or (B) not to have acted in good faith in the reasonable belief that his or her action was in the best interest of the Trust; or |
(ii) | in the event of a settlement, if there has been a determination that such Covered Person engaged in willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office: (A) by the court or other body approving the settlement; (B) by at least a majority of those Trustees who are neither Interested Persons of the Trust nor are parties to the matter based upon a review of readily available facts (as opposed to a full trial-type inquiry); or (C) by written opinion of independent legal counsel based upon a review of readily available facts (as opposed to a full trial-type inquiry). |
(c) | The rights of indemnification herein provided may be insured against by policies maintained by the Trust, shall be severable, shall not be exclusive of or affect any other rights to which any Covered Person may now or hereafter be entitled and shall inure to the benefit of the heirs, executors and administrators of a Covered Person. Nothing contained herein shall affect any rights to indemnification to which Trust personnel other than Covered Persons may be entitled by contract or otherwise under law. |
(d) | To the maximum extent permitted by applicable law, expenses in connection with the preparation and presentation of a defense to any claim, action, suit or proceeding of the character described in subsection (a) of this Section shall be paid by the Trust or applicable Series from time to time prior to final disposition thereof upon receipt of an undertaking by or on behalf of such Covered Person that such amount will be paid over by him or her to the Trust or applicable Series if it is ultimately determined that he or she is not entitled to indemnification under this Section. |
(e) | Any repeal or modification of this Article IX by the Shareholders, or adoption or modification of any other provision of this Trust Instrument or the By-laws inconsistent with this Article, shall be prospective only, to the extent that such, repeal or modification would, if applied retrospectively, adversely affect any limitation on the liability of any Covered Person or indemnification available to any Covered Person with respect to any act or omission which occurred prior to such repeal, modification or adoption. |
(a) | The Trust agrees to indemnify and hold harmless the Distributor, its affiliates and each of their directors, officers and employees and agents and any person who controls the Distributor within the meaning of Section 15 of the 1933 Act (any of the Distributor, its officers, employees, agents and directors or such control persons, for purposes of this paragraph, a “Distributor Indemnitee”) against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in connection therewith) arising out of or based upon (i) any claim that the Registration Statement, Prospectus, Statement of Additional Information, Product Description, shareholder reports, sales literature and advertisements specifically approved by the Trust and Investment Adviser or other information filed or made public by the Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein (and in the case of the Prospectus, Statement of Additional Information and Product Description, in light of the circumstances under which they were made) not misleading under the 1933 Act, or any other statute or the common law, (ii) the breach by the Trust of any obligation, representation or warranty contained in this Agreement or (iii) the Trust's failure to comply in any material respect with applicable securities laws. |
(b) | The Distributor agrees to indemnify and hold harmless the Trust and each of its Trustees and officers and any person who controls the Trust within the meaning of Section 15 of the 1933 Act (for purposes of this paragraph, the Trust and each of its Trustees and officers and its controlling persons are collectively referred to as the “Trust Affiliates”) against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in connection therewith) arising out of or based upon (i) the allegation of any wrongful act of the Distributor or any of its directors, officers, employees, (ii) the breach of any obligation, representation or warranty pursuant to this Agreement by the Distributor, (iii) the Distributor's failure to comply in any material respect with applicable securities laws, including applicable FINRA regulations, or (iv) any allegation that the Registration Statement, Prospectus, Statement of Additional Information, Product Description, shareholder reports, any information or materials relating to the Funds (as described in section 3(g)) or other information filed or made public by the Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements not misleading, insofar as such statement or omission was made in reliance upon, and in conformity with information furnished |
to the Trust by or on behalf of the Distributor, it being understood that the Trust will rely upon certain information provided by the Distributor for use in the preparation of the Registration Statement, Prospectus, Statement of Additional Information, Product Description, shareholder reports or other information relating to the Funds or made public by the Trust. |
(c) | No indemnified party shall settle any claim against it for which it intends to seek indemnification from the indemnifying party, under the terms of section 6(a) or 6(b) above, without the prior written notice to and consent from the indemnifying party, which consent shall not be unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the settlement contains a full release of liability with respect to the other party in respect of such action. This section 6 shall survive the termination of this Agreement. |
(a) | The Participant hereby agrees to indemnify and hold harmless the Distributor, the Funds, the Index Receipt Agent, their 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, or expense (including attorneys’ fees) incurred by such Indemnified Party as a result of (i) any breach by the Participant of any provision of this Agreement; (ii) any failure on the part of the Participant to perform any of its obligations set forth in this Agreement; (iii) any failure by the Participant to comply with applicable laws, including rules and regulations of self-regulatory organizations; (iv) actions of such Indemnified Party in reliance upon any instructions issued in accordance with the Fund Documents, AP Handbook or Annex II (as each may be amended from time to time) reasonably believed by the Distributor and/or the Index Receipt Agent to be genuine and to have been given by the Participant; or (v) the Participant’s failure to complete a Purchase Order or Redemption Order that has been accepted. The Participant understands and agrees that the Funds as third party beneficiaries to this Agreement are entitled to proceed directly against the Participant in the event that the Participant fails to honor any of its obligations under this Agreement that benefit the Fund. The Distributor shall not be liable to the Participant for any damages arising out of mistakes or errors in data provided to the Distributor, or out of interruptions or delays of communications with the Indemnified Parties who are service providers to the Fund, nor is the Distributor liable for any action, representation, or solicitation made by the wholesalers of the Fund. |
(b) | The Distributor hereby agrees to indemnify and hold harmless the Participant and the Index Receipt Agent, their 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, or expense (including attorneys’ fees) incurred by such Indemnified Party as a result of (i) any breach by the Distributor of any provision of this Agreement; (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; or (iv) actions of such Indemnified Party in reliance upon any representations made in accordance with the Fund Documents and AP Handbook (as e ach may be amended from time to time) reasonably believed by the Participant to be genuine and to have been given by the Distributor. The Participant shall not be liable |
to the Distributor for any damages arising out of mistakes or errors in data provided to the Participant, or out of interruptions or delays of communications with the Indemnified Parties who are service providers to the Fund, nor is the Participant liable for any action, representation, or solicitation made by the wholesalers of the Fund. |
(c) | The Funds, the Distributor, the Index Receipt Agent, or any person who controls such persons within the meaning of Section 15 of the 1933 Act, shall not be liable to the Participant for any damages arising from any differences in performance between the Deposit Securities in a Fund Deposit and the Fund’s benchmark index. |
Name | Business Address |
Position
with
Underwriter |
Position
with
Registrant |
Richard J. Berthy |
Three
Canal Plaza,
Suite 100, Portland, Maine 04101 |
President,
Treasurer
and Manager |
None |
Mark A. Fairbanks |
Three
Canal Plaza,
Suite 100, Portland, Maine 04101 |
Vice President | None |
Jennifer K. DiValerio |
899
Cassatt Road,
400 Berwyn Park, Suite 110, Berwyn, PA 19312 |
Vice President | None |
Nanette K. Chern |
Three
Canal Plaza,
Suite 100, Portland, Maine 04101 |
Vice
President
and Chief Compliance Officer |
None |
Jennifer E. Hoopes |
Three
Canal Plaza,
Suite 100, Portland, Maine 04101 |
Secretary | None |
DIREXION SHARES ETF TRUST | |
By: | /s/ Patrick J. Rudnick* |
Patrick J. Rudnick | |
Principal Executive Officer |
Signature | Title | Date |
/s/ Daniel D. O’Neill* | Chairman of the Board | March 10, 2020 |
Daniel D. O’Neill | ||
/s/ Gerald E. Shanley III* | Trustee | March 10, 2020 |
Gerald E. Shanley III | ||
/s/ Jacob C. Gaffey* | Trustee | March 10, 2020 |
Jacob C. Gaffey | ||
/s/ David L. Driscoll* | Trustee | March 10, 2020 |
David L. Driscoll | ||
/s/ Henry W. Mulholland* | Trustee | March 10, 2020 |
Henry W. Mulholland | ||
/s/ Kathleen M. Berkery* | Trustee | March 10, 2020 |
Kathleen M. Berkery | ||
/s/ Patrick J. Rudnick* |
Principal
Executive Officer
and Principal Financial Officer |
March 10, 2020 |
Patrick J. Rudnick | ||
*By: /s/ Angela Brickl |