REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
|
(X)
|
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
|
(X)
|
|
[X]
|
Immediately upon filing pursuant to paragraph (b) of Rule 485
|
|
[ ]
|
On (date) pursuant to paragraph (b) of Rule 485
|
|
[ ]
|
60 days after filing pursuant to paragraph (a)(1) of Rule 485
|
|
[ ]
|
On (date) pursuant to paragraph (a)(1) of Rule 485
|
|
[ ]
|
75 days after filing pursuant to paragraph (a)(2) of Rule 485
|
|
[ ]
|
On (date) pursuant to paragraph (a)(2) of Rule 485
|
|
[ ]
|
This post-effective amendment designates a new effective date for a previously filed post-effective amendment.
|
Page
|
|
FUND SUMMARY
|
1
|
MORE INFORMATION ABOUT THE TRUST AND THE FUND
|
8
|
MORE INFORMATION ABOUT THE FUND’S INVESTMENT OBJECTIVE
|
8
|
MORE INFORMATION ABOUT THE FUND’S PRINCIPAL INVESTMENT STRATEGIES
|
8
|
MORE INFORMATION ABOUT THE PRINCIPAL RISKS OF INVESTING IN THE FUND
|
9
|
PORTFOLIO HOLDINGS
|
15
|
FUND MANAGEMENT
|
15
|
PORTFOLIO MANAGERS
|
16
|
BUYING AND SELLING FUND SHARES
|
17
|
DISTRIBUTION PLAN
|
18
|
DIVIDENDS, DISTRIBUTIONS AND TAXES
|
19
|
PREMIUM/DISCOUNT INFORMATION
|
22
|
FINANCIAL HIGHLIGHTS
|
22
|
Annual Fund Operating Expenses
(expenses that you pay each year as a percentage of the value of your investment)
|
|
Management Fee
|
0.91%
|
Distribution and Service (12b-1) Fees
|
0.00%
|
Other Expenses
1
|
0.00%
|
Acquired Fund Fees and Expenses
1
|
0.09%
|
Total Annual Fund Operating Expenses
|
1.00%
|
1 | Other Expenses and Acquired Fund Fees and Expenses are based on estimated amounts for the current fiscal year. |
1 Year
|
3 Years
|
$102
|
$318
|
· | The Fund will distribute each year substantially all of its net investment income and net capital gains income. |
· | Dividends and distributions that are subject to tax are generally taxable to you whether you receive them in cash or in additional shares. |
· | The dividends you receive from the Fund’s income and net short-term capital gains will be taxed as ordinary income or “qualified dividend income.” |
· | If certain holding period requirements are met, dividends that are reported by the Fund as qualified dividend income are generally taxable to noncorporate shareholders at tax rates of up to 20% (lower rates apply to individuals in lower tax brackets). “Qualified dividend income” generally is income derived from dividends paid to Underlying ETFs by U.S. corporations or certain foreign corporations that are either incorporated in a U.S. possession or eligible for tax benefits under certain U.S. income tax treaties. In addition, dividends that an Underlying ETF receives in respect of stock of certain foreign corporations may be qualified dividend income if that stock is readily tradable on an established U.S. securities market. |
· | Distributions of the Fund’s net capital gain (the excess of the Fund’s net long-term capital gains over its net short-term capital losses) are taxable as long-term capital gains regardless of how long you have owned your shares. For noncorporate shareholders, long-term capital gains are generally taxable at tax rates of up to 20% (lower rates apply to individuals in lower tax brackets). |
· | U.S. individuals with income exceeding certain thresholds are subject to a 3.8% Medicare contribution tax on all or a portion of their “net investment income,” which includes interest, dividends, and certain capital gains (including capital gains realized on the sale of shares of the Fund). This 3.8% tax also applies to all or a portion of the undistributed net investment income of certain shareholders that are estates and trusts. |
· | Corporate shareholders may be entitled to a dividends-received deduction for the portion of dividends they receive from the Fund that are attributable to dividends received by the Underlying ETFs from U.S. corporations, subject to certain limitations. |
· | Distributions paid in January but declared by the Fund in October, November or December of the previous year payable to shareholders of record in such a month may be taxable to you in the previous year. |
· | The Fund will inform you of the amount of your ordinary income dividends, qualified dividend income, and net capital gain distributions shortly after the close of each calendar year. |
· | If you hold your shares in a tax-qualified retirement account, you generally will not be subject to federal taxation on Fund distributions until you begin receiving distributions from your retirement account. You should consult your tax adviser regarding the tax rules that apply to your retirement account. |
Call: | (844) 485-5383 ((844) Hull ETF) |
Write: | Exchange Traded Concepts Trust |
Visit: | www.hulltacticalfunds.com |
GENERAL INFORMATION ABOUT THE TRUST
|
1
|
INVESTMENT POLICIES, TECHNIQUES AND RISK FACTORS
|
1
|
INVESTMENT RESTRICTIONS
|
14
|
CONTINUOUS OFFERING
|
16
|
EXCHANGE LISTING AND TRADING
|
17
|
PORTFOLIO TRANSACTIONS AND BROKERAGE
|
17
|
MANAGEMENT OF THE TRUST
|
19
|
BOOK ENTRY ONLY SYSTEM
|
32
|
CREATION AND REDEMPTION OF CREATION UNITS
|
34
|
DETERMINATION OF NET ASSET VALUE
|
40
|
DIVIDENDS, DISTRIBUTIONS, AND TAXES
|
41
|
OTHER INFORMATION
|
49
|
FINANCIAL STATEMENTS
|
49
|
APPENDIX A
|
A-1
|
APPENDIX B
|
B-1
|
· | Common Stock. Common stock represents an equity or ownership interest in an issuer. In the event an issuer is liquidated or declares bankruptcy, the claims of owners of bonds and preferred stock take precedence over the claims of those who own common stock. |
· | Preferred Stock. Preferred stock represents an equity or ownership interest in an issuer that pays dividends at a specified rate and that has precedence over common stock in the payment of dividends. In the event an issuer is liquidated or declares bankruptcy, the claims of owners of bonds take precedence over the claims of those who own preferred and common stock. |
· | Warrants. Warrants are instruments that entitle the holder to buy an equity security at a specific price for a specific period of time. Changes in the value of a warrant do not necessarily correspond to changes in the value of its underlying security. The price of a warrant may be more volatile than the price of its underlying security, and a warrant may offer greater potential for capital appreciation as well as capital loss. Warrants do not entitle a holder to dividends or voting rights with respect to the underlying security and do not represent any rights in the assets of the issuing company. A warrant ceases to have value if it is not exercised prior to its expiration date. These factors can make warrants more speculative than other types of investments. |
· | Convertible Securities. Convertible securities are bonds, debentures, notes, preferred stocks or other securities that may be converted or exchanged (by the holder or by the issuer) into shares of the underlying common stock (or cash or securities of equivalent value) at a stated exchange ratio. A convertible security may also be called for redemption or conversion by the issuer after a particular date and under certain circumstances (including a specified price) established upon issue. If a convertible security held by the Fund is called for redemption or conversion, the Fund could be required to tender it for redemption, convert it into the underlying common stock, or sell it to a third party. |
· | Master Limited Partnerships (“MLPs”). MLPs are limited partnerships in which the ownership units are publicly traded. MLP units are registered with the SEC and are freely traded on a securities exchange or in the over-the-counter market. MLPs often own several properties or businesses (or own interests) that are related to real estate development and oil and gas industries, but they also may finance motion pictures, research and development and other projects. Generally, an MLP is operated under the supervision of one or more managing general partners. Limited partners are not involved in the day-to-day management of the partnership. |
· | Rights. A right is a privilege granted to existing shareholders of a corporation to subscribe to shares of a new issue of common stock before it is issued. Rights normally have a short life of usually two to four weeks, are freely transferable and entitle the holder to buy the new common stock at a lower price than the public offering price. An investment in rights may entail greater risks than certain other types of investments. Generally, rights do not carry the right to receive dividends or exercise voting rights with respect to the underlying securities, and they do not represent any rights in the assets of the issuer. In addition, their value does not necessarily change with the value of the underlying securities, and they cease to have value if they are not exercised on or before their expiration date. Investing in rights increases the potential profit or loss to be realized from the investment as compared with investing the same amount in the underlying securities. |
· | U.S. Treasury Obligations. U.S. Treasury obligations consist of bills, notes and bonds issued by the U.S. Treasury and separately traded interest and principal component parts of such obligations that are transferable through the federal book‑entry system known as Separately Traded Registered Interest and Principal Securities (“STRIPS”) and Treasury Receipts (“TRs”). |
· | Receipts. Interests in separately traded interest and principal component parts of U.S. government obligations that are issued by banks or brokerage firms and are created by depositing U.S. government obligations into a special account at a custodian bank. The custodian holds the interest and principal payments for the benefit of the registered owners of the certificates or receipts. The custodian arranges for the issuance of the certificates or receipts evidencing ownership and maintains the register. TRs and STRIPS are interests in accounts sponsored by the U.S. Treasury. Receipts are sold as zero coupon securities. |
· | U.S. Government Zero Coupon Securities. STRIPS and receipts are sold as zero coupon securities, that is, fixed income securities that have been stripped of their unmatured interest coupons. Zero coupon securities are sold at a (usually substantial) discount and redeemed at face value at their maturity date without interim cash payments of interest or principal. The amount of this discount is accreted over the life of the security, and the accretion constitutes the income earned on the security for both accounting and tax purposes. Because of these features, the market prices of zero coupon securities are generally more volatile than the market prices of securities that have similar maturity but that pay interest periodically. Zero coupon securities are likely to respond to a greater degree to interest rate changes than are non‑zero coupon securities with similar maturity and credit qualities. |
· | U.S. Government Agencies. Some obligations issued or guaranteed by agencies of the U.S. government are supported by the full faith and credit of the U.S. Treasury, others are supported by the right of the issuer to borrow from the U.S. Treasury, while still others are supported only by the credit of the instrumentality. Guarantees of principal by agencies or instrumentalities of the U.S. government may be a guarantee of payment at the maturity of the obligation so that in the event of a default prior to maturity there might not be a market and thus no means of realizing on the obligation prior to maturity. Guarantees as to the timely payment of principal and interest do not extend to the value or yield of these securities nor to the value of shares. |
1. | Borrow money, except to the extent permitted by the 1940 Act, the rules and regulations thereunder and any applicable exemptive relief. The 1940 Act presently allows a fund to: (1) borrow from any bank (including pledging, mortgaging or hypothecating assets) in an amount up to 33 1/3% of its total assets, (2) borrow money for temporary purposes in an amount not exceeding 5% of the value of the Fund’s total assets at the time of the loan, and (3) enter into reverse repurchase agreements. |
2. | 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), 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 or other derivative instruments that are not related to physical commodities. |
3. | (i) With respect to 75% of its total assets, purchase securities of any issuer (except securities issued or guaranteed by the U.S. government, its agencies or instrumentalities or shares of investment companies) if, as a result, more than 5% of its total assets would be invested in the securities of such issuer; or (ii) acquire more than 10% of the outstanding voting securities of any one issuer. |
4. | Invest 25% or more of its total assets in the securities of one or more issuers conducting their principal business activities in the same industry or group of industries. This limitation does not apply to investments in securities issued or guaranteed by the U.S. government, its agencies or instrumentalities, or shares of investment companies. |
5. | Make loans, except as permitted under the 1940 Act, the rules and regulations thereunder and any applicable exemptive relief. |
6. | 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 or indirectly secured by real estate, and (b) invest in securities or other instruments issued by issuers that invest in real estate. |
7. | Issue senior securities, except to the extent permitted by the 1940 Act, the rules and regulations thereunder and any applicable exemptive relief. |
8. | Underwrite securities issued by others, except to the extent that the Fund may be considered an underwriter within the meaning of the Securities Act in the disposition of restricted securities or in connection with investments in other investment companies. |
1. | The Fund may not purchase or hold illiquid securities if, in the aggregate, more than 15% of its net assets would be invested in illiquid securities. |
2. | The Fund will not, under normal circumstances, invest less than 80% of its net assets, plus the amount of any borrowings for investment purposes, in securities and instruments issued by or economically tied to U.S. issuers. |
Name and Age
|
Position(s) Held with the Trust
|
Term of Office and Length of Time
Served
1
|
Principal Occupation(s) During Past 5 Years
|
Number of Portfolios in Fund Complex Overseen By Trustee
|
Other Directorships held by Trustee
|
Interested Trustee
|
|||||
J. Garrett Stevens
(35 years old)
|
Trustee and President
|
Trustee
(Since 2009); President
(Since 2011)
|
T.S. Phillips Investments, Inc., 2000 to present— Investment Adviser/Vice President; Exchange Traded Concepts Trust, 2009 to 2011 — Chief Executive Officer and Secretary, 2011 to present — President; Exchange Traded Concepts, LLC, 2009 to present — Chief Executive Officer;
Exchange Traded Concepts Trust II, 2012 to present — President.
|
8
|
None
|
Independent Trustees
|
|||||
Timothy J. Jacoby
(62 years old)
|
Trustee
|
Since
2014
|
Deloitte & Touche LLP
,
2000 to 2014─Partner
; Longy School of Music of Bard College, 2010 to present — Board of Governors Member; First Parish in Concord, 2011 to present — Trustees of Parish Donations of First Parish in Concord/Chair.
|
9
|
Exchange Traded Concepts Trust II (1) — Trustee
|
David M. Mahle
(70 years old) |
Trustee
|
Since 2011
|
Jones Day, 2012 to present — Consultant; Jones Day, 2008 to 2011 — Of Counsel; Jones Day, 1988 to 2008 — Partner.
|
9
|
Exchange Traded Concepts Trust II (1) — Trustee
|
Name and Age
|
Position(s) Held with the Trust
|
Term of Office and Length of Time
Served
1
|
Principal Occupation(s) During Past 5 Years
|
Number of Portfolios in Fund Complex Overseen By Trustee
|
Other Directorships held by Trustee
|
Kurt Wolfgruber
(64 years old)
|
Trustee
|
Since 2012
|
Amherst Asset Management, 2010 to present — Independent Advisor.
|
9
|
New Mountain Finance Corp. — Director
;
Exchange Traded Concepts Trust II (1) — Trustee
|
Mark Zurack
(57 years old) |
Trustee
|
Since 2011
|
Columbia Business School, 2002 to present — Professor.
|
8
|
AQR Funds (41) — Trustee
|
(1) | Each Trustee shall serve during the continued life of the Trust until he or she dies, resigns, is declared bankrupt or incompetent by a court of competent jurisdiction, or is removed. |
Name and Age
|
Position(s)
Held with
the Trust
|
Term of Office and Length of Time Served
|
Principal Occupation(s)
During Past 5 Years
|
Other Directorships held
during the Past 5 Years
|
J. Garrett Stevens
(35 years old) |
Trustee and President
|
Trustee
(Since 2009), President (Since 2011) |
T.S. Phillips Investments, Inc., 2000 to present— Investment Adviser/Vice President; Exchange Traded Concepts Trust, 2009 to 2011 — Chief Executive Officer and Secretary, 2011 to present — President; Exchange Traded Concepts, LLC, 2009 to present — Chief Executive Officer; and Exchange Traded Concepts Trust II, 2012 to present — President.
|
None
|
Richard Hogan
( 53 years old) |
Secretary
|
Since 2011
|
Yorkville ETF Advisors, 2011 to present — Managing Member; Private Investor — 2003 to present; Exchange Traded Concepts Trust, 2011 to present — ETF Advisor
; Peconic Land Trust, 2012 to present — Board Member.
|
Trust of Suffolk County, NY; Exchange Traded Concepts Trust II — Trustee, Chairman of Board, Secretary.
|
Name and Age
|
Position(s)
Held with
the Trust
|
Term of Office and Length of Time Served
|
Principal Occupation(s)
During Past 5 Years
|
Other Directorships held
during the Past 5 Years
|
James J. Baker Jr.
( 64 years old) |
Treasurer
|
Since 2015
|
Exchange Traded Concepts, LLC, 2011 to present — Managing Partner; Yorkville ETF Advisors, 2012 to present — Managing Partner; Goldman Sachs, 2000 to 2011 — Vice President.
|
None
|
Eric Kleinschmidt
(
46
years old)
|
Assistant Treasurer
|
Since 2013
|
Director, Fund Accounting, SEI Investments Global Funds Services, 2004 to present, Manager, Fund Accounting 1999 to 2004.
|
None
|
Name
|
Dollar Range of Shares
Owned in the Fund
|
Aggregate Dollar
Range of Fund Shares
(Owned in All Funds
in the Fund Complex)
1
|
Interested Trustee
|
||
J. Garrett Stevens
|
None
|
None
|
Independent Trustees
|
||
Timothy J. Jacoby
|
None
|
None
|
David M. Mahle
|
None
|
None
|
Kurt Wolfgruber
|
None
|
None
|
Mark A. Zurack
|
None
|
None
|
1 | Valuation date is December 31, 2014. |
1 | Aggregate Compensation is allocated equally between the Trust and Source ETF Trust in the Fund Complex. |
2 | As compensation for service on the Exchange Trade Concepts Trust and Source ETF Trust Boards, the Trustees are entitled to the $35,000 annual base fee, as well as a $2,500 in-person meeting fee or $4,000 per day, whichever is lower. The Trustees also will be paid $1,000 per telephonic meeting. The Audit Committee chair will also receive a $5,000 annual fee. |
3 | Mr. Jacoby, Mr. Wolfgruber and Mr. Mahle each receive $15,000 for their service on the Board of Exchange Traded Concepts Trust II in the Fund Complex. |
Name
|
Registered
Investment Companies
*
|
Other Pooled
Investment Vehicles
*
|
Other
Accounts
*
|
|||
Number
of Accounts
|
Total Assets
(in millions)
|
Number of Accounts
|
Total
Assets
|
Number of Accounts
|
Total Assets
(in millions)
|
|
Petra Bakosova
|
0
|
0
|
0
|
0
|
0
|
0
|
Stephen McCarten
|
0
|
0
|
0
|
0
|
0
|
0
|
Denise M. Krisko
|
4
|
$1,796.75
|
0
|
0
|
0
|
0
|
* | Information provided is as of May 26, 2015. |
Fund
|
Creation Transaction Fee*
|
Hull Tactical US ETF
|
$500
|
* | To the extent a Creation Unit consists of more than 100 securities, an additional Creation Transaction Fee may be charged to Authorized Participants to the next highest $500 increment at the following rates: (i) $5 per book-entry security settled via the NSCC’s CNS; and (ii) $15 per security for “in-kind” settlements settled outside the NSCC, and all physical settlements, including options, futures and other derivatives. |
Fund
|
Redemption Transaction Fee*
|
Hull Tactical US ETF
|
$500
|
* | To the extent a Creation Unit consists of more than 100 securities, an additional Redemption Transaction Fee may be charged to Authorized Participants to the next highest $500 increment at the following rates: (i) $5 per book-entry security settled via the NSCC’s CNS; and (ii) $15 per security for “in-kind” settlements settled outside the NSCC, and all physical settlements, including options, futures and other derivatives. |
I. | Election of Board of Directors |
· | Exchange Traded Concepts will generally vote in support of management’s nominees for the board of directors; however, Exchange Traded Concepts may choose not to support management’s proposed board if circumstances warrant such consideration. |
II. | Appointment of Independent Auditors |
· | Exchange Traded Concepts will support the recommendation of the respective corporation’s board of directors. |
III. | Issues of Corporate Structure and Shareholder Rights |
· | Proposals may originate from either management or shareholders, and among other things, may request revisions to the corporate bylaws that will affect shareholder ownership rights. Exchange Traded Concepts does not generally support obstacles erected by corporations to prevent mergers or takeovers with the view that such actions may depress the corporation’s marketplace value. |
· | Exchange Traded Concepts supports the following types of corporate structure and shareholder rights proposals: |
o | Management proposals for approval of stock repurchase programs, stock splits (including reverse splits) |
o | Authorization to increase shares outstanding |
o | The ability of shareholders to vote on shareholder rights plans (poison pills) |
o | Shareholder rights to eliminate or remove supermajority provisions |
o | Shareholder rights to call special meetings and to act by written consent |
· | Exchange Traded Concepts votes against management on the following items which have potentially substantial financial or best interest impact: |
o | Capitalization changes that add “blank check” classes of stock or classes that dilute the voting interests of existing shareholders which are contrary to the best interest of existing shareholders, anti-takeover and related provisions that serve to prevent the majority of shareholders from exercising their rights or effectively deter appropriate tender offers and other offers |
o | Amendments to bylaws which would require super-majority shareholder votes to pass or repeal certain provisions |
o | Elimination of shareholders’ right to call special meetings |
o | Establishment of classified boards of directors |
o | Reincorporation in a state which has more stringent anti-takeover and related provisions |
o | Shareholder rights plans that allow the board of directors to block appropriate offers to shareholders or which trigger provisions preventing legitimate offers from proceeding |
o | Excessive compensation |
o | Change-in-control provisions in non-salary compensation plans, employment contracts, and severance agreements which benefit management and would be costly to shareholders if triggered |
o | Adjournment of meeting to solicit additional votes |
o | “Other business as properly comes before the meeting” proposals which extend “blank check” powers to those acting as proxy |
o | Proposals requesting re-election of insiders or affiliated directors who serve on audit, compensation, and nominating committees |
IV. | Mergers and Acquisitions |
· | Against offers with potentially damaging consequences for minority shareholders because of illiquid stock, especially in some non-US markets |
· | For offers that concur with index calculators’ treatment and the ability to meet the clients’ return objectives for passive funds |
· | For proposals to restructure or liquidate closed end investment funds in which the secondary market price is substantially lower than the net asset value |
V. | Executive and Director Equity-Based Compensation |
· | Exchange Traded Concepts is generally in favor of properly constructed equity-based compensation arrangements. Exchange Traded Concepts will support proposals that provide management with the ability to implement compensation arrangements that are both fair and competitive. |
VI. | Corporate Social and Policy Issues |
· | Proposals usually originate from shareholders and may require a revision of certain business practices and policies. |
Item
28
.
|
Exhibits
|
(a)(1) | Certificate of Trust dated July 17, 2009 of Exchange Traded Concepts Trust (formerly, FaithShares Trust) (the “Trust” or the “Registrant”) is incorporated herein by reference to Exhibit (a)(1) of Pre-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the U.S. Securities and Exchange Commission (the “SEC”) via EDGAR Accession No. 0000950123-09-023575 on July 20, 2009. |
(a)(2) | Written Instrument, dated July 14, 2011, amending the Registrant’s Certificate of Trust, dated July 17, 2009, is incorporated herein by reference to Exhibit (a)(2) of Post-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0000950123-11-078120 on August 17, 2011. |
(a)(3) | Registrant’s Agreement and Declaration of Trust dated October 13, 2009 is incorporated herein by reference to Exhibit (a)(2) of Pre-Effective Amendment No. 3 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0000950123-09-068184 on December 4, 2009. |
(a)(4) | Registrant’s Amended and Restated Agreement and Declaration of Trust, dated as of October 3, 2011, is incorporated herein by reference to Exhibit (a)(4) of Post-Effective Amendment No. 4 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0000950123-11-100027 on November 22, 2011. |
(b)(1) | Registrant’s By-Laws dated October 20, 2009 are incorporated herein by reference to Exhibit (b) of Pre-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0000950123-09-023575 on July 20, 2009. |
(b)(2) | Registrant’s Amended and Restated By-Laws dated October 3, 2011 are incorporated herein by reference to Exhibit (b)(2) of Post-Effective Amendment No. 4 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0000950123-11-100027 on November 22, 2011. |
(c) | Not applicable. |
(d)(1) | Interim Advisory Agreement dated January 16, 2015 between the Registrant and Exchange Traded Concepts, LLC, relating to the ROBO-STOX TM Global Robotics and Automation Index ETF, Janus Equal Risk Weighted Large Cap ETF, YieldShares High Income ETF, and EMQQ The Emerging Markets Internet & Ecommerce ETF, is incorporated herein by reference to Exhibit (d)(1) of Post-Effective Amendment No. 120 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002138 on March 30, 2015. |
(d)(2) | Form of Advisory Agreement dated May 26, 2015 between the Registrant and Exchange Traded Concepts, LLC, relating to the Hull Tactical US ETF, Forensic Accounting ETF, Yorkville High Income MLP ETF and Yorkville High Income Infrastructure MLP ETF, is filed herewith. |
(d)(3) | Advisory Agreement between the Registrant and Exchange Traded Concepts, LLC, relating to the EVE/S&P Municipal Bond Puerto Rico ETF, to be filed by amendment. |
(d)(4) | Form of Sub-Advisory Agreement dated June 1, 2015 between Exchange Traded Concepts, LLC and HTAA, LLC, with respect to the Hull Tactical US ETF, is filed herewith. |
(d)(5) | Form of Sub-Advisory Agreement dated June 1, 2015 between Exchange Traded Concepts, LLC and Vident Investment Advisory, LLC, with respect to the Hull Tactical US ETF, is filed herewith. |
(d)(6) | Form of Sub-Advisory Agreement dated May 26, 2015 between Exchange Traded Concepts, LLC and Vident Investment Advisory, LLC, with respect to the Forensic Accounting ETF, is filed herewith. |
(d)(7) | Form of Sub-Advisory Agreement dated May 26, 2015 between Exchange Traded Concepts, LLC and Yorkville ETF Advisors, LLC, relating to the Yorkville High Income MLP ETF and Yorkville High Income Infrastructure MLP ETF, is filed herewith. |
(d)(8) | Form of Sub-Advisory Agreement dated May 26, 2015 between Exchange Traded Concepts, LLC and Penserra Capital Management LLC, relating to the Yorkville High Income MLP ETF and Yorkville High Income Infrastructure MLP ETF, is filed herewith. |
(d)(9) | Interim Sub-Advisory Agreement dated January 16, 2015 between Exchange Traded Concepts, LLC and Penserra Capital Management LLC, relating to the EMQQ The Emerging Markets Internet & Ecommerce ETF, YieldShaeres High Income ETF, ROBO-STOX TM Global Robotics and Automation Index ETF, and Janus Equal Risk Weighted Large Cap ETF, is incorporated herein by reference to Exhibit (d)(5) of Post-Effective Amendment No. 120 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002138 on March 30, 2015. |
(d)(10) | Sub-Advisory Agreement between Exchange Traded Concepts, LLC and [SUB-ADVISER], with respect to the EVE/S&P Municipal Bond Puerto Rico ETF, to be filed by amendment. |
(e)(1) | Amended and Restated Distribution Agreement dated November 10, 2011 between the Registrant and SEI Investments Distribution Co. is incorporated herein by reference to Exhibit (e)(l) of Post-Effective Amendment No. 11 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-014210 on March 12, 2012. |
(e)(2) | Amendment No. 2 and revised Schedule A, effective December 6, 2012, to the Amended and Restated Distribution Agreement dated November 10, 2011 between the Registrant and SEI Investments Distribution Co. are incorporated herein by reference to Exhibit (e)(2) of Post-Effective Amendment No. 43 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-15629 and 811-22263), as filed with the SEC on January 29, 2013. |
(e)(3) | Amendment No. 3 and revised Schedule A, effective as of February 28, 2013, to the Amended and Restated Distribution Agreement dated November 10, 2011 between the Registrant and SEI Investments Distribution Co. is incorporated herein by reference to Exhibit (e)(3) of Post-Effective Amendment No. 69 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-003416 on July 26, 2013. |
(e)(4) | Amendment No. 4, effective as of November 11, 2013, to the Amended and Restated Distribution Agreement dated November 10, 2011 between the Registrant and SEI Investments Distribution Co. is incorporated herein by reference to Exhibit (e)(4) of Post-Effective Amendment No. 90 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-14-001917 on March 28, 2014. |
(e)(5) | Amendment No. 5 and revised Schedule A, effective as of October 1, 2013, to the Amended and Restated Distribution Agreement dated November 10, 2011 between the Registrant and SEI Investments Distribution Co. is incorporated herein by reference to Exhibit (e)(4) of Post-Effective Amendment No. 78 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-004927 on October 18, 2013. |
(e)(6) | Amendment No. 6 and revised Schedule A, effective February 18, 2014, to the Amended and Restated Distribution Agreement dated November 10, 2011 between the Registrant and SEI Investments Distribution Co. is incorporated herein by reference to Exhibit (e)(6) of Post-Effective Amendment No. 120 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002138 on March 30, 2015. |
(e)(7) | Amendment No. 7 and revised Schedule A, effective November 11, 2014, to the Amended and Restated Distribution Agreement dated November 10, 2011 between the Registrant and SEI Investments Distribution Co. is incorporated herein by reference to Exhibit (e)(7) of Post-Effective Amendment No. 120 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002138 on March 30, 2015. |
(e)(8) | Amendment and revised Schedule A to the Amended and Restated Distribution Agreement dated November 10, 2011 between the Registrant and SEI Investments Distribution Co., reflecting the addition of the EVE/S&P Municipal Bond Puerto Rico ETF, to be filed by amendment. |
(e)(9) | Form of Authorized Participant Agreement is incorporated herein by reference to Exhibit (e)(2) of Post-Effective Amendment No. 11 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-014210 on March 12, 2012. |
(f) | Not applicable. |
(g)(1) | Domestic Custody Agreement dated March 2, 2012 between the Registrant and JPMorgan Chase Bank, National Association is incorporated herein by reference to Exhibit (g) of Post-Effective Amendment No. 11 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-014210 on March 12, 2012. |
(g)(2) | Joinder and Amendment dated January 31, 2013 to Domestic Custody Agreement dated March 2, 2012 between the Registrant, Yorkville High Income Infrastructure MLP ETF and JPMorgan Chase Bank, National Association, is incorporated herein by reference to Exhibit (g)(2) of Pre-Effective Amendment No. 106 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC on August 28, 2014. |
(g)(3) | Custodian Agreement dated September 28, 2009 between the Registrant and Brown Brothers Harriman & Co. is incorporated herein by reference to Exhibit (g) of Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0000950123-09-059434 on November 6, 2009. |
(g)(4) | Appendix A, dated as of February 13, 2015, to the Custodian Agreement dated September 28, 2009 between the Registrant and Brown Brothers Harriman & Co. is filed herewith. |
(h)(1) | Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services is incorporated herein by reference to Exhibit (h)(l) of Post-Effective Amendment No. 11 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-014210 on March 12, 2012 . |
(h)(2) | New Fund Addendum, dated March 2, 2012, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services, relating to the Yorkville High Income MLP ETF, is incorporated herein by reference to Exhibit (h)(2) of Post-Effective Amendment No. 69 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-003416 on July 26, 2013. |
(h)(3) | Amendment and revised Schedule I, effective as of April 19, 2012, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services is incorporated herein by reference to Exhibit (h)(3) of Post-Effective Amendment No. 69 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-003416 on July 26, 2013. |
(h)(4) | New Fund Addendum, dated April 19, 2012, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services, relating to the YieldShares High Income ETF (formerly, the Sustainable North American Oil Sands ETF), is incorporated herein by reference to Exhibit (h)(3) of Post-Effective Amendment No. 43 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC on January 29, 2013. |
(h)(5) | Amendment dated March 1, 2013 to the New Fund Addendum dated April 19, 2012 to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services, relating to the YieldShares High Income ETF, is incorporated herein by reference to Exhibit (h)(8) of Post-Effective Amendment No. 69 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-003416 on July 26, 2013. |
(h)(6) | Amendment No. 2 and revised Schedule I, effective December 6, 2012, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services are incorporated herein by reference to Exhibit (h)(2) of Post-Effective Amendment No. 43 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC on January 29, 2013. |
(h)(7) | New Fund Addendum, dated January 15, 2013, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services, relating to the Forensic Accounting ETF, is incorporated herein by reference to Exhibit (h)(4) of Post-Effective Amendment No. 43 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC on January 29, 2013. |
(h)(8) | Amendment No. 3 and revised Schedule I, effective as of February 28, 2013, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services is incorporated herein by reference to Exhibit (h)(7) of Post-Effective Amendment No. 69 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-003416 on July 26, 2013. |
(h)(9) | Amendment No. 4 and revised Schedule I, effective as of October 1, 2013, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services is incorporated herein by reference to Exhibit (h)(9) of Post-Effective Amendment No. 78 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-004927 on October 18, 2013. |
(h)(10) | New Fund Addendum, dated October 1, 2013, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services, relating to the ROBO-STOX TM Global Robotics and Automation Index ETF, is incorporated herein by reference to Exhibit (h)(10) of Post-Effective Amendment No. 78 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-004927 on October 18, 2013. |
(h)(11) | Form of New Fund Addendum, dated June 1, 2015, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services, relating to the Hull Tactical US ETF , is filed herewith. |
(h)(12) | Amendment No. 6 and revised Schedule I, effective as of November 11, 2014, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services is incorporated herein by reference to Exhibit (h)(11) of Post-Effective Amendment No. 120 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002138 on March 30, 2015. |
(h)(13) | New Fund Addendum, dated November 11, 2014, to the Amended and Restated Administration Agreement between the Registrant and SEI Investments Global Funds Services, relating to the EMQQ The Emerging Markets Internet & Ecommerce ETF , is incorporated herein by reference to Exhibit (h)(12) of Post-Effective Amendment No. 120 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002138 on March 30, 2015. |
(h)(14) | Agency Services Agreement dated March 2, 2012 between the Registrant and JPMorgan Chase Bank, National Association is incorporated herein by reference to Exhibit (h)(2) of Post-Effective Amendment No. 11 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-014210 on March 12, 2012. |
(h)(15) | Joinder and Amendment dated January 31, 2013 to Agency Services Agreement dated March 2, 2012 between the Registrant, Yorkville High Income Infrastructure MLP ETF and JPMorgan Chase Bank, National Association, is incorporated herein by reference to Exhibit (h)(12) of Pre-Effective Amendment No. 106 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC on August 28, 2014. |
(h)(16) | Transfer Agency Services Agreement dated September 28, 2009 between the Registrant and Brown Brothers Harriman & Co. is incorporated herein by reference to Exhibit (h) of Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0000950123-09-059434 on November 6, 2009. |
(h)(17) | Amendment, dated May 17, 2012, to the Transfer Agency Services Agreement dated September 28, 2009 between the Registrant and Brown Brothers Harriman & Co. is incorporated herein by reference to Exhibit (h)(4) of Post-Effective Amendment No. 21 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-034055 on June 8, 2012. |
(h)(18) | Revised Appendix A, dated as of March 5, 2015, to the Transfer Agency Services Agreement dated September 28, 2009 between the Registrant and Brown Brothers Harriman & Co. is filed herewith. |
(i)(1) | Opinion and Consent of Counsel, Bingham McCutchen LLP, relating to the Janus Equal Risk Weighted Large Cap ETF (formerly, the VelocityShares Equal Risk Weighted Large Cap ETF), is incorporated herein by reference to Exhibit (i)(2) of Post-Effective Amendment No. 69 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-003416 on July 26, 2013. |
(i)(2) | Opinion and Consent of Counsel, Bingham McCutchen LLP, relating to the Robo-Stox TM Global Robotics and Automation Index ETF, is incorporated herein by reference to Exhibit (i)(4) of Post-Effective Amendment No. 78 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-004927 on October 18, 2013. |
(i)(3) | Opinion and Consent of Counsel, Bingham McCutchen LLP, relating to the EMQQ The Emerging Markets Internet & Ecommerce ETF, is incorporated herein by reference to Exhibit (i)(5) of Post-Effective Amendment No. 112 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-14-005792 on November 10, 2014. |
(i)(4) | Opinion and Consent of Counsel, Morgan, Lewis & Bockius LLP, relating to the Forensic Accounting ETF, Yorkville High Income MLP ETF and Yorkville High Income Infrastructure MLP ETF, is incorporated herein by reference to Exhibit (i)(5) of Post-Effective Amendment No. 120 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002138 on March 30, 2015. |
(i)(5) | Opinion and Consent of Counsel, Morgan, Lewis & Bockius LLP, relating to the YieldShares High Income ETF, is incorporated herein by reference to Exhibit (i)(5) of Post-Effective Amendment No. 125 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002915 on April 30, 2015. |
(i)(6) | Opinion and Consent of Counsel, Morgan, Lewis & Bockius LLP, relating to the Hull Tactical US ETF, is filed herewith. |
(i)(7) | Opinion and Consent of Counsel, Morgan, Lewis & Bockius LLP, relating to the EVE/S&P Municipal Bond Puerto Rico ETF, to be filed by amendment. |
(j) | Not applicable. |
(k) | Not applicable. |
(l) | Seed Capital Subscription Agreement between the Registrant and Exchange Traded Concepts, LLC (formerly, FaithShares Advisors, LLC) is incorporated herein by reference to Exhibit (l) of Pre-Effective Amendment No. 3 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0000950123-09-068184 on December 4, 2009. |
(m)(1) | Distribution and Service Plan dated October 20, 2009, as revised, is incorporated herein by reference to Exhibit (m)(1) of Post-Effective Amendment No. 78 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-13-004927 on October 18, 2013. |
(m)(2) | Amended Exhibit A to the Distribution and Service Plan dated October 20, 2009, reflecting the addition of the Hull Tactical US ETF, is filed herewith. |
(m)(3) | Amended Exhibit A to the Distribution and Service Plan dated October 20, 2009, reflecting the addition of the EVE/S&P Municipal Bond Puerto Rico ETF, to be filed by amendment. |
(n) | Not applicable. |
(o) | Not applicable. |
(p)(1) | Code of Ethics of the Registrant is incorporated herein by reference to Exhibit (p)(l) of Post-Effective Amendment No. 11 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-014210 on March 12, 2012. |
(p)(2) | Code of Ethics of Exchange Traded Concepts, LLC is incorporated herein by reference to Exhibit (p)(2) of Post-Effective Amendment No. 11 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-014210 on March 12, 2012. |
(p)(3) | Code of Ethics of Yorkville ETF Advisors, LLC is incorporated herein by reference to Exhibit (p)(5) of Post-Effective Amendment No. 11 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001144204-12-014210 on March 12, 2012. |
(p)(4) | Code of Ethics of Penserra Capital Management LLC is incorporated herein by reference to Exhibit (p)(6) of Post-Effective Amendment No. 112 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-14-005792 on November 10, 2014. |
(p)(5) | Code of Ethics of HTAA, LLC is filed herewith. |
(p)(6) | Code of Ethics of Vident Investment Advisory, LLC is filed herewith. |
(p)(7) | Code of Ethics of [SUB-ADVISER], sub-adviser to the EVE/S&P Municipal Bond Puerto Rico ETF, to be filed by amendment. |
(q)(1) | Powers of Attorney, dated February 28, 2014, for Messrs. Richard Hogan, David M. Mahle, Kurt A. Wolfgruber, and Mark A. Zurack are incorporated herein by reference to Exhibit (q) of Post-Effective Amendment No. 90 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-14-001917 on March 28, 2014. |
(q)(2) | Power of Attorney, dated April 9, 2015, for Jay Baker is incorporated herein by reference to Exhibit (q)(2) of Post-Effective Amendment No. 125 to the Registrant’s Registration Statement on Form N-1A (File Nos. 333-156529 and 811-22263), as filed with the SEC via EDGAR Accession No. 0001398344-15-002915 on April 30, 2015. |
Item 29 . | Persons Controlled by or under Common Control with the Fund |
Item 30 . | Indemnification |
Item 31 . | Business and other Connections of the Investment Adviser |
Name and
Position with Adviser
|
Name of Other Company
|
Connection
with Other Company
|
J. Garrett Stevens
|
T.S. Phillips Investments, Inc.
|
Vice President
|
Chief Executive Officer
|
Phillips Capital Advisors, Inc.
|
Vice President
|
James J. Baker, Jr. Member
|
Yorkville ETF Advisors, LLC
|
Managing Partner
|
Name and
Position with Yorkville
|
Name of Other Company
|
Connection
with Other Company
|
James J. Baker, Jr. Managing Partner
|
Exchange Traded Concepts, LLC
|
Managing Partner
|
Richard Hogan Director
|
Exchange Traded Concepts Trust
|
Treasurer and Secretary
|
Name and Position
with Penserra Capital
|
Name of Other Company
|
Connection
with Other Company
|
Dustin Lewellyn, CIO
|
Golden Gate Investment Consulting LLC
|
Founder and President
|
George Madrigal, CEO
|
Penserra Securities LLC
|
Managing Partner and CEO
|
Anthony Castelli, CCO
|
Penserra Securities LLC
|
CCO and COO
|
Name and Position with HTAA
|
Name of Other Company
|
Connection with Other Company
|
Blair Hull, CEO
|
N/A
|
N/A
|
Stephen McCarten, COO
|
N/A
|
N/A
|
Petra Bakosova, Financial Engineer
|
N/A
|
N/A
|
Name and Position with Vident
|
Name of Other Company
|
Connection
with Other Company
|
Nicholas A. Stonestreet, CEO
|
Vident Financial, LLC
|
CEO
|
Andrew T. Schmuhl, CCO
|
Vident Financial, LLC Overture Financial
|
COO General Counsel
|
Denise Krisko, President
|
Index Management Solutions, LLC
|
CIO
|
Item
32
.
|
Principal Underwriters
|
(a) | Furnish the name of each investment company (other than the Registrant) for which each principal underwriter currently distributing the securities of the Registrant also acts as a principal underwriter, distributor or investment adviser. |
SEI Daily Income Trust
|
July 15, 1982
|
SEI Liquid Asset Trust
|
November 29, 1982
|
SEI Tax Exempt Trust
|
December 3, 1982
|
SEI Institutional Managed Trust
|
January 22, 1987
|
SEI Institutional International Trust
|
August 30, 1988
|
The Advisors’ Inner Circle Fund
|
November 14, 1991
|
The Advisors’ Inner Circle Fund II
|
January 28, 1993
|
Bishop Street Funds
|
January 27, 1995
|
SEI Asset Allocation Trust
|
April 1, 1996
|
SEI Institutional Investments Trust
|
June 14, 1996
|
City National Rochdale Funds (f/k/a CNI Charter Funds) |
April 1, 1999
|
Causeway Capital Management Trust
|
September 20, 2001
|
ProShares Trust
|
November 14, 2005
|
Community Capital Trust (f/k/a Community Reinvestment Act Qualified Investment Fund)
|
January 8, 2007
|
TD Asset Management USA Funds
|
July 25, 2007
|
SEI Structured Credit Fund, LP
|
July 31, 2007
|
Wilshire Mutual Funds, Inc.
|
July 12, 2008
|
Wilshire Variable Insurance Trust
|
July 12, 2008
|
Global X Funds
|
October 24, 2008
|
ProShares Trust II
|
November 17, 2008
|
Exchange Traded Concepts Trust (f/k/a FaithShares Trust)
|
August 7, 2009
|
Schwab Strategic Trust
|
October 12, 2009
|
RiverPark Funds Trust
|
September 8, 2010
|
Adviser Managed Trust Fund
|
December 10, 2010
|
Huntington Strategy Shares
|
July 26, 2011
|
New Covenant Funds
|
March 23, 2012
|
Cambria ETF Trust
|
August 30, 2012
|
Highland Funds I (f/k/a Pyxis Funds I)
|
September 25, 2012
|
KraneShares Trust
|
December 18, 2012
|
LocalShares Investment Trust
|
May 6, 2013
|
SEI Insurance Products Trust
|
September 10, 2013
|
KP Funds
|
September 19, 2013
|
The Advisors’ Inner Circle Fund III
|
February 12, 2014
|
J.P. Morgan Exchange-Traded Fund Trust
|
April 1, 2014
|
O’ Connor EQUUS
|
May 15, 2014
|
Winton Series Trust
|
December 11, 2014
|
SEI Catholic Values Trust
|
March 24, 2015
|
(b) | Furnish the Information required by the following table with respect to each director, officer or partner of each principal underwriter named in the answer to Item 20 of Part B. Unless otherwise noted, the business address of each director or officer is Oaks, PA 19456. |
Position and Office
|
Positions and Offices
|
|||
Name
|
with Underwriter
|
with Registrant
|
||
William M. Doran
|
Director
|
—
|
||
Edward D. Loughlin
|
Director
|
—
|
||
Wayne M. Withrow
|
Director
|
—
|
||
Kevin P. Barr
|
Director, President & Chief Executive Officer
|
— | ||
Maxine J. Chou
|
Chief Financial Officer, Chief Operations Officer, & Treasurer
|
—
|
||
Karen E. LaTourette
|
Chief Compliance Officer, Anti-Money Laundering Officer & Assistant Secretary
|
—
|
||
John C. Munch
|
General Counsel & Secretary
|
—
|
||
Mark J. Held
|
Senior Vice President
|
—
|
||
John P. Coary
|
Vice President & Assistant Secretary
|
—
|
||
Lori L. White
|
Vice President & Assistant Secretary
|
—
|
||
Judith Hirx
|
Vice President
|
—
|
||
Jason McGhin
|
Vice President
|
—
|
||
Gary Michael Reese
|
Vice President
|
—
|
||
Robert M. Silvestri
|
Vice President
|
—
|
Item 33.
|
Location of Accounts and Records
|
(a)
|
Registrant:
|
|
c/o
Exchange Traded Concepts Trust
|
|
10900 Hefner Pointe Drive, Suite 207
|
|
Oklahoma City, Oklahoma 73120
|
(b)
|
Adviser:
|
|
Exchange Traded Concepts, LLC
|
|
10900 Hefner Pointe Drive, Suite 207
|
|
Oklahoma City, Oklahoma 73120
|
(c)
|
Sub-Advisers:
|
Yorkville ETF Advisors, LLC
|
|
353 Central Park West,
|
|
New York, New York 10025
HTAA, LLC
141 W. Jackson Boulevard, Suite 1650
Chicago, Illinois 60604
Penserra Capital Management LLC
140 Broadway, 26th Floor
New York, New York 10005
Vident Investment Advisory, LLC
300 Colonial Center Parkway, Suite 330
Roswell, Georgia 30076
|
|
(d)
|
Principal Underwriter:
|
|
SEI Investments Distribution Co.
|
|
One Freedom Valley Drive
|
Oaks, Pennsylvania 19456
|
|
(e)
|
Custodians:
|
|
JPMorgan Chase Bank, N.A.
|
|
4 New York Plaza
|
|
New York, New York 10004
|
Brown Brothers Harriman
|
|
40 Water Street
|
|
Boston, Massachusetts 02109
|
Item
34
.
|
Management Services
|
Item
35
.
|
Undertakings
|
|
Exchange Traded Concepts Trust
|
|
|
/s/ J. Garrett Stevens
|
|
J. Garrett Stevens | ||
Trustee and President |
Signature
|
Title
|
Date
|
||
*
|
Trustee
|
June 1, 2015
|
||
David M. Mahle
|
||||
*
|
Trustee
|
June 1, 2015
|
||
Kurt Wolfgruber
|
||||
*
|
Trustee
|
June 1, 2015
|
||
Mark A. Zurack
|
||||
*
|
Trustee
|
June 1, 2015
|
||
Timothy J. Jacoby
|
||||
/s/ J. Garrett Stevens
|
Trustee and President
|
June 1, 2015
|
||
J. Garrett Stevens
|
||||
*
|
Secretary
|
June 1, 2015
|
||
Richard Hogan
|
||||
*
|
Treasurer
|
June 1, 2015
|
||
Jay Baker
|
||||
*/s/ J. Garrett Stevens
|
||||
J. Garrett Stevens
|
Exhibit
Number
|
Exhibit Name:
|
(d)(2) | Form of Advisory Agreement dated May 26, 2015 between the Registrant and Exchange Traded Concepts, LLC, relating to the Hull Tactical US ETF, Forensic Accounting ETF, Yorkville High Income MLP ETF and Yorkville High Income Infrastructure MLP ETF |
(d)(4) | Form of Sub-Advisory Agreement dated June 1, 2015 between Exchange Traded Concepts, LLC and HTAA, LLC, with respect to the Hull Tactical US ETF |
(d)(5) | Form of Sub-Advisory Agreement dated June 1, 2015 between Exchange Traded Concepts, LLC and Vident Investment Advisory, LLC, with respect to the Hull Tactical US ETF |
(d)(6) | Form of Sub-Advisory Agreement dated May 26, 2015 between Exchange Traded Concepts, LLC and Vident Investment Advisory, LLC, with respect to the Forensic Accounting ETF |
(d)(7) | Form of Sub-Advisory Agreement dated May 26, 2015 between Exchange Traded Concepts, LLC and Yorkville ETF Advisors, LLC, relating to the Yorkville High Income MLP ETF and Yorkville High Income Infrastructure MLP ETF |
(d)(8) | Form of Sub-Advisory Agreement dated May 26, 2015 between Exchange Traded Concepts, LLC and Penserra Capital Management LLC, relating to the Yorkville High Income MLP ETF and Yorkville High Income Infrastructure MLP ETF |
(g)(4) | Appendix A, dated as of February 13, 2015, to the Custodian Agreement dated September 28, 2009 between the Registrant and Brown Brothers Harriman & Co. |
(h)(11) | Form of New Fund Addendum, dated June 1, 2015, to the Amended and Restated Administration Agreement dated November 10, 2011 between the Registrant and SEI Investments Global Funds Services, relating to the Hull Tactical US ETF |
(h)(18) | Revised Appendix A, dated as of March 5, 2015, to the Transfer Agency Services Agreement dated September 28, 2009 between the Registrant and Brown Brothers Harriman & Co. |
(i)(6) | Opinion and Consent of Counsel, Morgan, Lewis & Bockius LLP, relating to the Hull Tactical US ETF |
(m)(2) | Amended Exhibit A to the Distribution and Service Plan dated October 20, 2009, reflecting the addition of the Hull Tactical US ETF |
(p)(5) | Code of Ethics of HTAA, LLC |
(p)(6) | Code of Ethics of Vident Investment Advisory, LLC |
1. | The Adviser’s Services . |
EXCHANGE TRADED CONCEPTS TRUST, on behalf of each Fund listed on Schedule A
|
|||
By:
|
|||
Name: J. Garrett Stevens
|
|||
Title: President
|
|||
EXCHANGE TRADED CONCEPTS, LLC
|
|||
By:
|
|||
Name: J. Garrett Stevens
|
|||
Title: Chief Executive Officer
|
Fund
|
Rate
|
|
Yorkville High Income MLP ETF
|
82 bps
|
|
Yorkville High Income Infrastructure MLP ETF
|
82 bps
|
|
Forensic Accounting ETF
|
85 bps
|
|
Hull Tactical US ETF
|
91 bps
|
(a) | The Sub-Adviser shall, subject to subparagraph (b) of this Section 1, determine from time to time what Assets will be purchased, retained or sold by the Funds, and what portion of the Assets will be invested or held uninvested in cash. |
(b) | In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Trust’s Declaration of Trust (as defined herein), as may be modified, amended or supplemented from time to time, the By-Laws of the Trust, as may be modified, amended or supplemented from time to time, the Prospectus, the instructions and directions of the Adviser and of the Board, the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time and the Trust’s policies and procedures and will conform to and comply in all material respects with the requirements of the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended (the “Code”) and all other applicable federal and state laws and regulations, as each is amended from time to time. |
(c) | Unless responsibility for placing orders with respect to transactions in securities or other assets held or to be acquired by the Funds has been retained by the Adviser or delegated by the Adviser to another sub-adviser, the Sub-Adviser will place such orders with or through such persons, brokers or dealers chosen by the Sub-Adviser to carry out the policy with respect to brokerage set forth in the Funds’ Prospectus or as the Board or the Adviser may direct in writing from time to time, in conformity with all federal securities laws and subject to the following: |
(i) | In executing Fund transactions and selecting brokers or dealers, the Sub-Adviser will use its best efforts to seek on behalf of each Fund the best overall terms available. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors that it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. |
(ii) | In evaluating the best overall terms available, and in selecting the broker-dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services provided (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934 (the “Exchange Act”)). Consistent with any guidelines established by the Board and Section 28(e) of the Exchange Act, the Sub-Adviser is authorized to pay to a broker or dealer who provides such brokerage and research services a commission for executing a portfolio transaction for a Fund which is in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if, but only if, the Sub-Adviser determines in good faith that such commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer viewed in terms of that particular transaction or in terms of the overall responsibilities of the Sub-Adviser to its discretionary clients, including the Fund. |
(iii) | The Sub-Adviser is authorized to allocate purchase and sale orders for securities to brokers or dealers (including brokers and dealers that are affiliated with the Adviser, the Sub-Adviser or the Trust’s principal underwriter) if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, the Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of the Trust, the Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. |
(iv) | When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of a Fund as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. |
(v) | To the extent the Adviser or another sub-adviser is responsible for placing orders with respect to a Fund’s portfolio transactions, the Sub-Adviser shall provide to the Adviser or such other sub-adviser such information concerning the securities or other assets to be purchased or sold on behalf of the Fund reasonably necessary to execute the transactions, including the identity of such security or asset, the number of shares or principal amount to be purchased or sold, and the timing of and restrictions, if any, on the purchase or sale ( e.g. , a market order versus a limit order). |
(vi) | As of the date of this Agreement, the Adviser has entered into a sub-advisory agreement with another sub-adviser pursuant to which that sub-adviser shall be responsible for placing orders with respect to the Funds’ portfolio transactions. During the term of that sub-advisory agreement and, unless and until the Sub-Adviser agrees to assume responsibility for the placement of orders with respect to the Funds’ portfolio transactions, the Sub-Adviser shall have no responsibility or liability for such services, other than the responsibility to provide the information required by subparagraph (c)(v) of this Section 1 . |
(d) | The Sub-Adviser shall maintain all books and records with respect to transactions involving the Assets required by subparagraphs (b)(1), (5), (6), (7), (8), (9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act. The Sub-Adviser shall keep the books and records relating to the Assets required to be maintained by the Sub-Adviser under this Agreement and shall timely furnish to the Adviser all information relating to the Sub-Adviser’s services under this Agreement needed by the Adviser to keep the other books and records of the Funds required by Rule 31a-1 under the 1940 Act. The Sub-Adviser agrees that all records that it maintains on behalf of a Fund are property of the Fund and the Sub-Adviser will surrender promptly to the Fund any of such records upon the Fund’s request; provided, however, that the Sub-Adviser may retain a copy of such records. In addition, for the duration of this Agreement, the Sub-Adviser shall preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any such records as are required to be maintained by it pursuant to this Agreement, and shall transfer said records to any successor sub-adviser upon the termination of this Agreement (or, if there is no successor sub-adviser, to the Adviser). |
(e) | The Sub-Adviser shall provide the Funds’ custodian on each business day with information relating to all transactions concerning the Assets and shall provide the Adviser with such information upon request of the Adviser and shall otherwise cooperate with and provide reasonable assistance to the Adviser, the Trust’s administrator, the Trust’s custodian and foreign custodians, the Trust’s transfer agent and pricing agents and all other agents and representatives of the Trust. |
(f) | The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Funds and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. |
(g) | The Sub-Adviser shall promptly notify the Adviser of any financial condition that is reasonably and foreseeably likely to impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement. |
(h) | Unless the responsibility has been retained by the Adviser or delegated by the Adviser to another sub-adviser, the Sub-Adviser shall, unless and until otherwise directed by the Adviser or the Board and consistent with the best interests of each Fund, be responsible for exercising (or not exercising in its discretion) all rights of security holders with respect to securities held by each Fund, including but not limited to: reviewing proxy solicitation materials, voting and handling proxies and converting, tendering exchanging or redeeming securities. |
(i) | In performance of its duties and obligations under this Agreement, the Sub-Adviser shall not consult with any other sub-adviser to the Funds or a sub-adviser to a portfolio that is under common control with the Funds concerning the Assets, except as permitted by the policies and procedures of the Funds and subparagraph (c)(v) of this Section 1 . The Sub-Adviser shall not provide investment advice to any assets of the Funds other than the Assets. |
(j) | The Sub-Adviser shall maintain books and records with respect to the Funds’ securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the Sub-Adviser and its key investment personnel providing services with respect to the Funds and the investment and the reinvestment of the Assets of the Funds. The Sub-Adviser shall furnish to the Adviser or the Board such reasonably requested regular, periodic and special reports, balance sheets or financial information, and such other information with regard to its affairs as the Adviser or Board may reasonably request and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing. Upon the request of the Adviser, the Sub-Adviser shall also furnish to the Adviser any other information relating to the Assets that is required to be filed by the Adviser or the Trust with the SEC or sent to shareholders under the 1940 Act (including the rules adopted thereunder) or any exemptive or other relief that the Adviser or the Trust obtains from the SEC. |
(k) | The Sub-Adviser shall, in accordance with procedures and methods established by the Board, which may be amended from time to time, and in conjunction with the Adviser, promptly notify the Adviser and the Trust’s administrator/fund accountant of securities in a Fund which the Sub-Adviser believes should be fair valued in accordance with the Trust’s Valuation Procedures. Such fair valuation may be required when the Sub-Adviser becomes aware of significant events that may affect the pricing of all or a portion of a Fund’s portfolio. The Sub-Adviser will provide reasonable assistance in determining the fair value of the Assets, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for which market prices are not readily available, it being understood that the Sub-Adviser will not be responsible for determining the value of any such security. |
(a) | The Trust’s Agreement and Declaration of Trust (such Agreement and Declaration of Trust, as in effect on the date of this Agreement and as amended from time to time, herein called the “Declaration of Trust”); |
(b) | By-Laws of the Trust (such By-Laws, as in effect on the date of this Agreement and as amended from time to time, are herein called the “By-Laws”); |
(c) | Prospectus of the Funds; |
(d) | Resolutions of the Board approving the engagement of the Sub-Adviser as a sub-adviser to the Funds; |
(e) | Resolutions, policies and procedures adopted by the Board with respect to the Assets to the extent such resolutions, policies and procedures may affect the duties of the Sub-Adviser hereunder; and |
(f) | A list of the Trust’s principal underwriter and each affiliated person of the Adviser, the Trust or the principal underwriter. |
(a) | The Sub-Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Sub-Adviser will immediately notify the Adviser of the occurrence of any event that would substantially impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Sub-Adviser will promptly notify the Funds and the Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Sub-Adviser. The Sub-Adviser will also promptly notify the Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Sub-Adviser will notify the Adviser immediately upon detection of (a) any material failure to manage the Fund(s) in accordance with the Fund(s)’ stated investment objectives and policies or any applicable law; or (b) any material breach of any of the Fund(s)’ or the Sub-Adviser’s policies, guidelines or procedures;
|
(d) | The Sub-Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Sub-Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Sub-Adviser is a limited liability company duly organized and validly existing under the laws of the state of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Sub-Adviser of this Agreement are within the Sub-Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Sub-Adviser for the execution, delivery and performance by the Sub-Adviser of this Agreement, and the execution, delivery and performance by the Sub-Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Sub-Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Sub-Adviser; |
(g) | This Agreement is a valid and binding agreement of the Sub-Adviser; |
(h) | The Form ADV of the Sub-Adviser previously provided to the Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Sub-Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Sub-Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | The Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Adviser will immediately notify the Sub-Adviser of the occurrence of any event that would substantially impair the Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Adviser will promptly notify the Funds and the Sub-Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Adviser. The Adviser will also promptly notify the Sub-Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Adviser will notify the Sub-Adviser immediately upon detection of any material breach of any of the Fund(s)’ or the Adviser’s policies, guidelines or procedures;
|
(d) | The Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Adviser is a limited liability company duly organized and validly existing under the laws of the state of Oklahoma with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Adviser for the execution, delivery and performance by the Adviser of this Agreement, and the execution, delivery and performance by the Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Adviser; |
(g) | This Agreement is a valid and binding agreement of the Adviser; |
(h) | The Form ADV of the Adviser previously provided to the Sub-Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | Duration . This Agreement shall become effective upon the date first above written, provided that this Agreement shall not take effect with respect to a Fund unless it has first been approved by a vote of a majority of those Trustees of the Trust who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval and by vote of a majority of the Fund’s outstanding securities. This Agreement shall continue in effect for a period of two years from the date hereof, subject thereafter to being continued in force and effect from year to year if specifically approved each year by the Board or by the vote of a majority of the Fund’s outstanding voting securities. In addition to the foregoing, each renewal of this Agreement must be approved by the vote of a majority of the Board who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval. Prior to voting on the renewal of this Agreement, the Board may request and evaluate, and the Sub-Adviser shall furnish, such information as may reasonably be necessary to enable the Board to evaluate the terms of this Agreement. |
(b) | Termination . Notwithstanding whatever may be provided herein to the contrary, this Agreement may be terminated at any time, without payment of any penalty: |
(i) | By vote of a majority of the Board or by vote of a majority of the outstanding voting securities of the Funds, or by the Adviser, in each case, upon sixty (60) days’ written notice to the Sub-Adviser; |
(ii) | By the Sub-Adviser upon sixty (60) days’ written notice to the Adviser and the Board. |
(a) | in accordance with Rule 206(4)-7 under the Advisers Act, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures reasonably designed to prevent violation by the Sub-Adviser and its supervised persons (as such term is defined in the Advisers Act) of the Advisers Act and the rules the SEC has adopted under the Advisers Act; and |
(b) | to the extent that the Sub-Adviser’s activities or services could affect the Funds, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures that the Trust’s chief compliance officer determines are reasonably designed to prevent violation of the “federal securities laws” (as such term is defined in Rule 38a-1 under the 1940 Act) by the Funds and the Sub-Adviser (the policies and procedures referred to in this Section 10(b) , along with the policies and procedures referred to in Section 10(a) , are referred to herein as the Sub-Adviser’s “Compliance Program”). |
(a) | The Sub-Adviser shall promptly provide to the Trust’s Chief Compliance Officer (“CCO”) the following documents: |
(i) | reasonable access, at the Sub-Adviser’s principal office or such other place as may be mutually agreed to by the parties, to all SEC examination correspondences, including correspondences regarding books and records examinations and “sweep” examinations, issued during the term of this Agreement, in which the SEC identified any concerns, issues or matters (such correspondences are commonly referred to as “deficiency letters”) relating to any aspect of the Sub-Adviser’s investment advisory business and the Sub-Adviser’s responses thereto; provided that the Sub-Adviser may redact from such correspondences client specific confidential information, material subject to the attorney-client privilege, and material non-public information, that the Sub-Adviser reasonably determines should not be disclosed to the Trust’s CCO; |
(ii) | a report of any material violations of the Sub-Adviser’s Compliance Program or any “material compliance matters” (as such term is defined in Rule 38a-1 under the 1940 Act) that have occurred with respect to the Sub-Adviser’s Compliance Program; |
(iii) | on a quarterly basis, a report of any material changes to the policies and procedures that compose the Sub-Adviser’s Compliance Program; |
(iv) | a copy of the Sub-Adviser’s chief compliance officer’s report (or similar document(s) which serve the same purpose) regarding his or her annual review of the Sub-Adviser’s Compliance Program, as required by Rule 206(4)-7 under the Advisers Act; and |
(v) | an annual (or more frequently as the Trust’s CCO may reasonably request) representation regarding the Sub-Adviser’s compliance with Section 7 and Section 10 of this Agreement. |
(b) | The Sub-Adviser shall also provide the Trust’s CCO with reasonable access, during normal business hours, to the Sub-Adviser’s facilities for the purpose of conducting pre-arranged on-site compliance related due diligence meetings with personnel of the Sub-Adviser. |
(a) | The Name “Exchange Traded Concepts.” The Adviser grants to the Sub-Adviser a sublicense to use the name “Exchange Traded Concepts” (the “ETC Name”). The foregoing authorization by the Adviser to the Sub-Adviser to use the ETC Name is not exclusive of the right of the Adviser itself to use, or to authorize others to use, the ETC Name; the Sub-Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Adviser has the right to use, or authorize others to use, the ETC Name. The Sub-Adviser shall only use the ETC Name in a manner consistent with uses approved by the Adviser. Notwithstanding the foregoing, neither the Sub-Adviser nor any affiliate or agent of it shall make reference to or use the ETC Name or any of the Adviser’s respective affiliates or clients names without the prior approval of the Adviser, which approval shall not be unreasonably withheld or delayed. The Sub-Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Sub-Adviser to satisfy the foregoing obligation. |
(b) | The Name “HTAA” and “Hull.” The Sub-Adviser grants to the Adviser a sublicense to use the name “HTAA” or “Hull” (each a “Name”). The foregoing authorization by the Sub-Adviser to the Adviser to use the Name is not exclusive of the right of the Sub-Adviser itself to use, or to authorize others to use, the Name; the Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Sub-Adviser has the right to use, or authorize others to use, the Name. The Adviser shall (1) only use the Name in a manner consistent with uses approved by the Sub-Adviser. Notwithstanding the foregoing, neither the Adviser nor any affiliate or agent of it shall make reference to or use the Name or any of Sub-Adviser’s respective affiliates or clients names without the prior approval of Sub-Adviser, which approval shall not be unreasonably withheld or delayed. The Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Adviser to satisfy the foregoing obligation. |
To the Adviser at:
|
Exchange Traded Concepts, LLC
10900 Hefner Pointe Drive
Suite 207
Oklahoma City, Oklahoma 73120
Attention: J. Garrett Stevens, CEO
|
To the Trust’s CCO at:
|
Cipperman Compliance Services, LLC
500 East Swedesford Road
Suite 104
Wayne, Pennsylvania 19087
Attention: LuAnne Garvey
|
To the Sub-Adviser at:
|
HTAA, LLC
141 W. Jackson Blvd.
Chicago, IL 60604
Attention: Stephen McCarten
|
(a) | A copy of the Certificate of Trust is on file with the Secretary of State of Delaware, and notice is hereby given that the obligations of this instrument are not binding upon any of the Trustees, officers or shareholders of the Fund or the Trust. |
(b) | Where the effect of a requirement of the 1940 Act or Advisers Act reflected in any provision of this Agreement is altered by a rule, regulation or order of the SEC, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order. |
ADVISER:
|
SUB-ADVISER:
|
|||
Exchange Traded Concepts, LLC
|
HTAA, LLC
|
|||
By:
|
By:
|
|||
Name: J. Garrett Stevens
|
Name: Stephen McCarten
|
|||
Title: Chief Executive Officer
|
Title: Chief Operating Officer
|
Fund
|
Rate
|
Hull Tactical US ETF
|
0.81%
|
ADVISER: |
SUB-ADVISER:
|
|||
Exchange Traded Concepts, LLC
|
HTAA, LLC
|
|||
By:
|
By:
|
|||
Name: J. Garrett Stevens
|
Name: Stephen McCarten
|
|||
Title: Chief Executive Officer
|
Title: Chief Operating Officer
|
(a) | In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Trust’s Declaration of Trust (as defined herein), as may be modified, amended or supplemented from time to time, the By-Laws of the Trust, as may be modified, amended or supplemented from time to time, the Prospectus, the instructions and directions of the Adviser and of the Board, the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time and the Trust’s policies and procedures and will conform to and comply in all material respects with the requirements of the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended (the “Code”) and all other applicable federal and state laws and regulations, as each is amended from time to time. |
(b) | The Sub-Adviser will place orders with respect to transactions in securities or other assets held or to be acquired by the Funds with or through such persons, brokers or dealers chosen by the Sub-Adviser to carry out the policy with respect to brokerage set forth in the Funds’ Prospectus or as the Board or the Adviser may direct in writing from time to time, in conformity with all federal securities laws and subject to the following: |
(i) | In executing Fund transactions and selecting brokers or dealers, the Sub-Adviser will use its best efforts to seek on behalf of each Fund the best overall terms available. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors that it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. |
(ii) | In evaluating the best overall terms available, and in selecting the broker-dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services provided (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934 (the “Exchange Act”)). Consistent with any guidelines established by the Board and Section 28(e) of the Exchange Act, the Sub-Adviser is authorized to pay to a broker or dealer who provides such brokerage and research services a commission for executing a portfolio transaction for a Fund which is in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if, but only if, the Sub-Adviser determines in good faith that such commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer viewed in terms of that particular transaction or in terms of the overall responsibilities of the Sub-Adviser to its discretionary clients, including the Fund. |
(iii) | The Sub-Adviser is authorized to allocate purchase and sale orders for securities to brokers or dealers (including brokers and dealers that are affiliated with the Adviser, the Sub-Adviser or the Trust’s principal underwriter) if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, the Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of the Trust, the Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. |
(iv) | When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of a Fund as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. |
(v) | The Sub-Adviser shall provide to the Adviser or any other sub-adviser of the Funds such information and reports regarding the Funds’ investments that the Adviser or such other sub-adviser deems appropriate or may reasonably request. |
(c) | The Sub-Adviser shall maintain all books and records with respect to transactions involving the Assets required by subparagraphs (b)(1), (5), (6), (7), (8), (9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act. The Sub-Adviser shall keep the books and records relating to the Assets required to be maintained by the Sub-Adviser under this Agreement and shall timely furnish to the Adviser all information relating to the Sub-Adviser’s services under this Agreement needed by the Adviser to keep the other books and records of the Funds required by Rule 31a-1 under the 1940 Act. The Sub-Adviser agrees that all records that it maintains on behalf of a Fund are property of the Fund and the Sub-Adviser will surrender promptly to the Fund any of such records upon the Fund’s request; provided, however, that the Sub-Adviser may retain a copy of such records. In addition, for the duration of this Agreement, the Sub-Adviser shall preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any such records as are required to be maintained by it pursuant to this Agreement, and shall transfer said records to any successor sub-adviser upon the termination of this Agreement (or, if there is no successor sub-adviser, to the Adviser). |
(d) | The Sub-Adviser shall provide the Funds’ custodian on each business day with information relating to all transactions concerning the Assets and shall provide the Adviser with such information upon request of the Adviser and shall otherwise cooperate with and provide reasonable assistance to the Adviser, the Trust’s administrator, the Trust’s custodian and foreign custodians, the Trust’s transfer agent and pricing agents and all other agents and representatives of the Trust. |
(e) | The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Funds and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. |
(f) | The Sub-Adviser shall promptly notify the Adviser of any financial condition that is reasonably and foreseeably likely to impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement. |
(g) | The Sub-Adviser shall, unless and until otherwise directed by the Adviser or the Board and consistent with the best interests of each Fund, be responsible for exercising (or not exercising in its discretion) all rights of security holders with respect to securities held by each Fund, including but not limited to: reviewing proxy solicitation materials, voting and handling proxies and converting, tendering exchanging or redeeming securities. |
(h) | In performance of its duties and obligations under this Agreement, the Sub-Adviser shall not consult with any other sub-adviser to the Funds or a sub-adviser to a portfolio that is under common control with the Funds concerning the Assets, except as permitted by the policies and procedures of the Funds and subparagraph (b)(v) of this Section 1 . The Sub-Adviser shall not provide investment advice to any assets of the Funds other than the Assets. |
(i) | The Sub-Adviser shall maintain books and records with respect to the Funds’ securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the Sub-Adviser and its key investment personnel providing services with respect to the Funds and the investment and the reinvestment of the Assets of the Funds. The Sub-Adviser shall furnish to the Adviser or the Board such reasonably requested regular, periodic and special reports, balance sheets or financial information, and such other information with regard to its affairs as the Adviser or Board may reasonably request and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing. Upon the request of the Adviser, the Sub-Adviser shall also furnish to the Adviser any other information relating to the Assets that is required to be filed by the Adviser or the Trust with the SEC or sent to shareholders under the 1940 Act (including the rules adopted thereunder) or any exemptive or other relief that the Adviser or the Trust obtains from the SEC. |
(j) | The Sub-Adviser shall, in accordance with procedures and methods established by the Board, which may be amended from time to time, and in conjunction with the Adviser, promptly notify the Adviser and the Trust’s administrator/fund accountant of securities in a Fund which the Sub-Adviser believes should be fair valued in accordance with the Trust’s Valuation Procedures. Such fair valuation may be required when the Sub-Adviser becomes aware of significant events that may affect the pricing of all or a portion of a Fund’s portfolio. The Sub-Adviser will provide reasonable assistance in determining the fair value of the Assets, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for which market prices are not readily available, it being understood that the Sub-Adviser will not be responsible for determining the value of any such security. |
(a) | The Trust’s Agreement and Declaration of Trust (such Agreement and Declaration of Trust, as in effect on the date of this Agreement and as amended from time to time, herein called the “Declaration of Trust”); |
(b) | By-Laws of the Trust (such By-Laws, as in effect on the date of this Agreement and as amended from time to time, are herein called the “By-Laws”); |
(c) | Prospectus of the Funds; |
(d) | Resolutions of the Board approving the engagement of the Sub-Adviser as a sub-adviser to the Funds; |
(e) | Resolutions, policies and procedures adopted by the Board with respect to the Assets to the extent such resolutions, policies and procedures may affect the duties of the Sub-Adviser hereunder; and |
(f) | A list of the Trust’s principal underwriter and each affiliated person of the Adviser, the Trust or the principal underwriter. |
(a) | The Sub-Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Sub-Adviser will immediately notify the Adviser of the occurrence of any event that would substantially impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Sub-Adviser will promptly notify the Funds and the Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Sub-Adviser. The Sub-Adviser will also promptly notify the Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Sub-Adviser will notify the Adviser immediately upon detection of (a) any material failure to manage the Fund(s) in accordance with the Fund(s)’ stated investment objectives and policies or any applicable law; or (b) any material breach of any of the Fund(s)’ or the Sub-Adviser’s policies, guidelines or procedures;
|
(d) | The Sub-Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Sub-Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Sub-Adviser is a limited liability company duly organized and validly existing under the laws of the state of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Sub-Adviser of this Agreement are within the Sub-Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Sub-Adviser for the execution, delivery and performance by the Sub-Adviser of this Agreement, and the execution, delivery and performance by the Sub-Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Sub-Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Sub-Adviser; |
(g) | This Agreement is a valid and binding agreement of the Sub-Adviser; |
(h) | The Form ADV of the Sub-Adviser previously provided to the Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Sub-Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Sub-Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | The Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Adviser will immediately notify the Sub-Adviser of the occurrence of any event that would substantially impair the Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Adviser will promptly notify the Funds and the Sub-Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Adviser. The Adviser will also promptly notify the Sub-Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Adviser will notify the Sub-Adviser immediately upon detection of any material breach of any of the Fund(s)’ or the Adviser’s policies, guidelines or procedures;
|
(d) | The Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Adviser is a limited liability company duly organized and validly existing under the laws of the state of Oklahoma with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Adviser for the execution, delivery and performance by the Adviser of this Agreement, and the execution, delivery and performance by the Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Adviser; |
(g) | This Agreement is a valid and binding agreement of the Adviser; |
(h) | The Form ADV of the Adviser previously provided to the Sub-Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | Duration . This Agreement shall become effective upon the date first above written, provided that this Agreement shall not take effect with respect to a Fund unless it has first been approved by a vote of a majority of those Trustees of the Trust who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval and by vote of a majority of the Fund’s outstanding securities. This Agreement shall continue in effect for a period of one year from the date hereof, subject thereafter to being continued in force and effect from year to year if specifically approved each year by the Board or by the vote of a majority of the Fund’s outstanding voting securities. In addition to the foregoing, each renewal of this Agreement must be approved by the vote of a majority of the Board who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval. Prior to voting on the renewal of this Agreement, the Board may request and evaluate, and the Sub-Adviser shall furnish, such information as may reasonably be necessary to enable the Board to evaluate the terms of this Agreement. |
(b) | Termination . Notwithstanding whatever may be provided herein to the contrary, this Agreement may be terminated at any time, without payment of any penalty: |
(i) | By vote of a majority of the Board or by vote of a majority of the outstanding voting securities of the Funds, or by the Adviser, in each case, upon sixty (60) days’ written notice to the Sub-Adviser; |
(ii) | By the Sub-Adviser upon sixty (60) days’ written notice to the Adviser and the Board. |
(a) | in accordance with Rule 206(4)-7 under the Advisers Act, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures reasonably designed to prevent violation by the Sub-Adviser and its supervised persons (as such term is defined in the Advisers Act) of the Advisers Act and the rules the SEC has adopted under the Advisers Act; and |
(b) | to the extent that the Sub-Adviser’s activities or services could affect the Funds, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures that the Trust’s chief compliance officer determines are reasonably designed to prevent violation of the “federal securities laws” (as such term is defined in Rule 38a-1 under the 1940 Act) by the Funds and the Sub-Adviser (the policies and procedures referred to in this Section 10(b) , along with the policies and procedures referred to in Section 10(a) , are referred to herein as the Sub-Adviser’s “Compliance Program”). |
(a) | The Sub-Adviser shall promptly provide to the Trust’s Chief Compliance Officer (“CCO”) the following documents: |
(i) | reasonable access, at the Sub-Adviser’s principal office or such other place as may be mutually agreed to by the parties, to all SEC examination correspondences, including correspondences regarding books and records examinations and “sweep” examinations, issued during the term of this Agreement, in which the SEC identified any concerns, issues or matters (such correspondences are commonly referred to as “deficiency letters”) relating to any aspect of the Sub-Adviser’s investment advisory business and the Sub-Adviser’s responses thereto; provided that the Sub-Adviser may redact from such correspondences client specific confidential information, material subject to the attorney-client privilege, and material non-public information, that the Sub-Adviser reasonably determines should not be disclosed to the Trust’s CCO; |
(ii) | a report of any material violations of the Sub-Adviser’s Compliance Program or any “material compliance matters” (as such term is defined in Rule 38a-1 under the 1940 Act) that have occurred with respect to the Sub-Adviser’s Compliance Program; |
(iii) | on a quarterly basis, a report of any material changes to the policies and procedures that compose the Sub-Adviser’s Compliance Program; |
(iv) | a copy of the Sub-Adviser’s chief compliance officer’s report (or similar document(s) which serve the same purpose) regarding his or her annual review of the Sub-Adviser’s Compliance Program, as required by Rule 206(4)-7 under the Advisers Act; and |
(v) | an annual (or more frequently as the Trust’s CCO may reasonably request) representation regarding the Sub-Adviser’s compliance with Section 7 and Section 10 of this Agreement. |
(b) | The Sub-Adviser shall also provide the Trust’s CCO with reasonable access, during normal business hours, to the Sub-Adviser’s facilities for the purpose of conducting pre-arranged on-site compliance related due diligence meetings with personnel of the Sub-Adviser. |
(a) | The Name “Exchange Traded Concepts.” The Adviser grants to the Sub-Adviser a sublicense to use the name “Exchange Traded Concepts” (the “ETC Name”). The foregoing authorization by the Adviser to the Sub-Adviser to use the ETC Name is not exclusive of the right of the Adviser itself to use, or to authorize others to use, the ETC Name; the Sub-Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Adviser has the right to use, or authorize others to use, the ETC Name. The Sub-Adviser shall only use the ETC Name in a manner consistent with uses approved by the Adviser. Notwithstanding the foregoing, neither the Sub-Adviser nor any affiliate or agent of it shall make reference to or use the ETC Name or any of the Adviser’s respective affiliates or clients names without the prior approval of the Adviser, which approval shall not be unreasonably withheld or delayed. The Sub-Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Sub-Adviser to satisfy the foregoing obligation. |
(b) | The Names “Vident Investment Advisory” and “Vident.” The Sub-Adviser grants to the Adviser a sublicense to use the names “Vident Investment Advisory” and “Vident” (each a “Name” and together the “Names”). The foregoing authorization by the Sub-Adviser to the Adviser to use the Names is not exclusive of the right of the Sub-Adviser itself to use, or to authorize others to use, the Names; the Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Sub-Adviser has the right to use, or authorize others to use, the Names. The Adviser shall only use the Names in a manner consistent with uses approved by the Sub-Adviser. Notwithstanding the foregoing, neither the Adviser nor any affiliate or agent of it shall make reference to or use the Names or any of Sub-Adviser’s respective affiliates or clients names without the prior approval of Sub-Adviser, which approval shall not be unreasonably withheld or delayed. The Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Adviser to satisfy the foregoing obligation. |
To the Adviser at:
|
Exchange Traded Concepts, LLC
10900 Hefner Pointe Drive
Suite 207
Oklahoma City, Oklahoma 73120
Attention: J. Garrett Stevens, CEO
|
To the Trust’s CCO at:
|
Cipperman Compliance Services, LLC
500 East Swedesford Road
Suite 104
Wayne, Pennsylvania 19087
Attention: LuAnne Garvey
|
To the Sub-Adviser at:
|
Vident Investment Advisory, LLC
300 Colonial Center Parkway, Suite 330
Roswell, Georgia 30076
Attention: Denise Krisko
|
(a) | A copy of the Certificate of Trust is on file with the Secretary of State of Delaware, and notice is hereby given that the obligations of this instrument are not binding upon any of the Trustees, officers or shareholders of the Fund or the Trust. |
(b) | Where the effect of a requirement of the 1940 Act or Advisers Act reflected in any provision of this Agreement is altered by a rule, regulation or order of the SEC, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order. |
ADVISER:
|
SUB-ADVISER:
|
|||
Exchange Traded Concepts, LLC
|
Vident Investment Advisory, LLC
|
|||
By:
|
By:
|
|||
Name: J. Garrett Stevens
|
Name: Nicholas A. Stonestreet
|
|||
Title: Chief Executive Officer
|
Title: Chief Executive Officer
|
Fund
|
Rate
|
Hull Tactical US ETF
|
The greater of a minimum fee of $35,000, or 5 bps on the first $250 million; 4 bps on the next $250 million; and 3 bps on assets over $500 million.
|
ADVISER: |
SUB-ADVISER:
|
|||
Exchange Traded Concepts, LLC
|
Vident Investment Advisory, LLC
|
|||
By: | By: | |||
Name: J. Garrett Stevens
|
Name: Nicholas A. Stonestreet
|
|||
Title: Chief Executive Officer
|
Title: Chief Executive Officer
|
(a) | The Sub-Adviser shall, subject to subparagraph (b) of this Section 1, determine from time to time what Assets will be purchased, retained or sold by the Funds, and what portion of the Assets will be invested or held uninvested in cash. |
(b) | In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Trust’s Declaration of Trust (as defined herein), as may be modified, amended or supplemented from time to time, the By-Laws of the Trust, as may be modified, amended or supplemented from time to time, the Prospectus, the instructions and directions of the Adviser and of the Board, the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time and the Trust’s policies and procedures and will conform to and comply in all material respects with the requirements of the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended (the “Code”) and all other applicable federal and state laws and regulations, as each is amended from time to time. |
(c) | The Sub-Adviser will place orders with respect to transactions in securities or other assets held or to be acquired by each Fund with or through such persons, brokers or dealers chosen by the Sub-Adviser to carry out the policy with respect to brokerage set forth in the Fund’s Prospectus or as the Board or the Adviser may direct in writing from time to time, in conformity with all federal securities laws and subject to the following: |
(i) | In executing Fund transactions and selecting brokers or dealers, the Sub-Adviser will use its best efforts to seek on behalf of each Fund the best overall terms available. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors that it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. |
(ii) | In evaluating the best overall terms available, and in selecting the broker-dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services provided (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934 (the “Exchange Act”)). Consistent with any guidelines established by the Board and Section 28(e) of the Exchange Act, the Sub-Adviser is authorized to pay to a broker or dealer who provides such brokerage and research services a commission for executing a portfolio transaction for a Fund which is in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if, but only if, the Sub-Adviser determines in good faith that such commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer viewed in terms of that particular transaction or in terms of the overall responsibilities of the Sub-Adviser to its discretionary clients, including the Fund. |
(iii) | The Sub-Adviser is authorized to allocate purchase and sale orders for securities to brokers or dealers (including brokers and dealers that are affiliated with the Adviser, the Sub-Adviser or the Trust’s principal underwriter) if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, the Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of the Trust, the Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. |
(iv) | When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of a Fund as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. |
(v) | The Sub-Adviser shall provide to the Adviser such information and reports regarding the Funds’ investments that the Adviser deems appropriate or may reasonably request. |
(d) | The Sub-Adviser shall maintain all books and records with respect to transactions involving the Assets required by subparagraphs (b)(1), (5), (6), (7), (8), (9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act. The Sub-Adviser shall keep the books and records relating to the Assets required to be maintained by the Sub-Adviser under this Agreement and shall timely furnish to the Adviser all information relating to the Sub-Adviser’s services under this Agreement needed by the Adviser to keep the other books and records of the Funds required by Rule 31a-1 under the 1940 Act. The Sub-Adviser agrees that all records that it maintains on behalf of a Fund are property of the Fund and the Sub-Adviser will surrender promptly to the Fund any of such records upon the Fund’s request; provided, however, that the Sub-Adviser may retain a copy of such records. In addition, for the duration of this Agreement, the Sub-Adviser shall preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any such records as are required to be maintained by it pursuant to this Agreement, and shall transfer said records to any successor sub-adviser upon the termination of this Agreement (or, if there is no successor sub-adviser, to the Adviser). |
(e) | The Sub-Adviser shall provide the Funds’ custodian on each business day with information relating to all transactions concerning the Assets and shall provide the Adviser with such information upon request of the Adviser and shall otherwise cooperate with and provide reasonable assistance to the Adviser, the Trust’s administrator, the Trust’s custodian and foreign custodians, the Trust’s transfer agent and pricing agents and all other agents and representatives of the Trust. |
(f) | The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Funds and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. |
(g) | The Sub-Adviser shall promptly notify the Adviser of any financial condition that is reasonably and foreseeably likely to impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement. |
(h) | To the extent such authority has been delegated to it by the Adviser, the Sub-Adviser shall, unless and until otherwise directed by the Adviser or the Board and consistent with the best interests of each Fund, be responsible for exercising (or not exercising in its discretion) all rights of security holders with respect to securities held by the Fund, including but not limited to: reviewing proxy solicitation materials, voting and handling proxies and converting, tendering exchanging or redeeming securities. |
(i) | In performance of its duties and obligations under this Agreement, the Sub-Adviser shall not consult with any other sub-adviser to the Funds or a sub-adviser to a portfolio that is under common control with the Funds concerning the Assets, except as permitted by the policies and procedures of the Funds. The Sub-Adviser shall not provide investment advice to any assets of the Funds other than the Assets. |
(j) | The Sub-Adviser shall maintain books and records with respect to the Funds’ securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the Sub-Adviser and its key investment personnel providing services with respect to the Funds and the investment and the reinvestment of the Assets of the Funds. The Sub-Adviser shall furnish to the Adviser or the Board such reasonably requested regular, periodic and special reports, balance sheets or financial information, and such other information with regard to its affairs as the Adviser or Board may reasonably request and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing. Upon the request of the Adviser, the Sub-Adviser shall also furnish to the Adviser any other information relating to the Assets that is required to be filed by the Adviser or the Trust with the SEC or sent to shareholders under the 1940 Act (including the rules adopted thereunder) or any exemptive or other relief that the Adviser or the Trust obtains from the SEC. |
(k) | The Sub-Adviser shall, in accordance with procedures and methods established by the Board, which may be amended from time to time, and in conjunction with the Adviser, promptly notify the Adviser and the Trust’s administrator/fund accountant of securities in a Fund which the Sub-Adviser believes should be fair valued in accordance with the Trust’s Valuation Procedures. Such fair valuation may be required when the Sub-Adviser becomes aware of significant events that may affect the pricing of all or a portion of a Fund’s portfolio. The Sub-Adviser will provide reasonable assistance in determining the fair value of the Assets, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for which market prices are not readily available, it being understood that the Sub-Adviser will not be responsible for determining the value of any such security. |
(a) | The Trust’s Agreement and Declaration of Trust (such Agreement and Declaration of Trust, as in effect on the date of this Agreement and as amended from time to time, herein called the “Declaration of Trust”); |
(b) | By-Laws of the Trust (such By-Laws, as in effect on the date of this Agreement and as amended from time to time, are herein called the “By-Laws”); |
(c) | Prospectus of the Funds; |
(d) | Resolutions of the Board approving the engagement of the Sub-Adviser as a sub-adviser to the Funds; |
(e) | Resolutions, policies and procedures adopted by the Board with respect to the Assets to the extent such resolutions, policies and procedures may affect the duties of the Sub-Adviser hereunder; and |
(f) | A list of the Trust’s principal underwriter and each affiliated person of the Adviser, the Trust or the principal underwriter. |
(a) | The Sub-Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Sub-Adviser will immediately notify the Adviser of the occurrence of any event that would substantially impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Sub-Adviser will promptly notify the Funds and the Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Sub-Adviser. The Sub-Adviser will also promptly notify the Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Sub-Adviser will notify the Adviser immediately upon detection of (a) any material failure to manage the Fund(s) in accordance with the Fund(s)’ stated investment objectives and policies or any applicable law; or (b) any material breach of any of the Fund(s)’ or the Sub-Adviser’s policies, guidelines or procedures;
|
(d) | The Sub-Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Sub-Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Sub-Adviser is a limited liability company duly organized and validly existing under the laws of the state of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Sub-Adviser of this Agreement are within the Sub-Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Sub-Adviser for the execution, delivery and performance by the Sub-Adviser of this Agreement, and the execution, delivery and performance by the Sub-Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Sub-Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Sub-Adviser; |
(g) | This Agreement is a valid and binding agreement of the Sub-Adviser; |
(h) | The Form ADV of the Sub-Adviser previously provided to the Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Sub-Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Sub-Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | The Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Adviser will immediately notify the Sub-Adviser of the occurrence of any event that would substantially impair the Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Adviser will promptly notify the Funds and the Sub-Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Adviser. The Adviser will also promptly notify the Sub-Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Adviser will notify the Sub-Adviser immediately upon detection of any material breach of any of the Fund(s)’ or the Adviser’s policies, guidelines or procedures;
|
(d) | The Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Adviser is a limited liability company duly organized and validly existing under the laws of the state of Oklahoma with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Adviser for the execution, delivery and performance by the Adviser of this Agreement, and the execution, delivery and performance by the Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Adviser; |
(g) | This Agreement is a valid and binding agreement of the Adviser; |
(h) | The Form ADV of the Adviser previously provided to the Sub-Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | Duration . This Agreement shall become effective upon the date first above written, provided that this Agreement shall not take effect with respect to a Fund unless it has first been approved by a vote of a majority of those Trustees of the Trust who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval and by vote of a majority of the Fund’s outstanding securities. This Agreement shall continue in effect for a period of two years from the date hereof, subject thereafter to being continued in force and effect from year to year if specifically approved each year by the Board or by the vote of a majority of the Fund’s outstanding voting securities. In addition to the foregoing, each renewal of this Agreement must be approved by the vote of a majority of the Board who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval. Prior to voting on the renewal of this Agreement, the Board may request and evaluate, and the Sub-Adviser shall furnish, such information as may reasonably be necessary to enable the Board to evaluate the terms of this Agreement. |
(b) | Termination . Notwithstanding whatever may be provided herein to the contrary, this Agreement may be terminated at any time, without payment of any penalty: |
(i) | (i) By vote of a majority of the Board or by vote of a majority of the outstanding voting securities of the Funds, or by the Adviser, in each case, upon sixty (60) days’ written notice to the Sub-Adviser; |
(ii) | By the Sub-Adviser upon sixty (60) days’ written notice to the Adviser and the Board. |
(a) | in accordance with Rule 206(4)-7 under the Advisers Act, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures reasonably designed to prevent violation by the Sub-Adviser and its supervised persons (as such term is defined in the Advisers Act) of the Advisers Act and the rules the SEC has adopted under the Advisers Act; and |
(b) | to the extent that the Sub-Adviser’s activities or services could affect the Funds, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures that the Trust’s chief compliance officer determines are reasonably designed to prevent violation of the “federal securities laws” (as such term is defined in Rule 38a-1 under the 1940 Act) by the Funds and the Sub-Adviser (the policies and procedures referred to in this Section 10(b) , along with the policies and procedures referred to in Section 10(a) , are referred to herein as the Sub-Adviser’s “Compliance Program”). |
(a) | The Sub-Adviser shall promptly provide to the Trust’s Chief Compliance Officer (“CCO”) the following documents: |
(i) | reasonable access, at the Sub-Adviser’s principal office or such other place as may be mutually agreed to by the parties, to all SEC examination correspondences, including correspondences regarding books and records examinations and “sweep” examinations, issued during the term of this Agreement, in which the SEC identified any concerns, issues or matters (such correspondences are commonly referred to as “deficiency letters”) relating to any aspect of the Sub-Adviser’s investment advisory business and the Sub-Adviser’s responses thereto; provided that the Sub-Adviser may redact from such correspondences client specific confidential information, material subject to the attorney-client privilege, and material non-public information, that the Sub-Adviser reasonably determines should not be disclosed to the Trust’s CCO; |
(ii) | a report of any material violations of the Sub-Adviser’s Compliance Program or any “material compliance matters” (as such term is defined in Rule 38a-1 under the 1940 Act) that have occurred with respect to the Sub-Adviser’s Compliance Program; |
(iii) | on a quarterly basis, a report of any material changes to the policies and procedures that compose the Sub-Adviser’s Compliance Program; |
(iv) | a copy of the Sub-Adviser’s chief compliance officer’s report (or similar document(s) which serve the same purpose) regarding his or her annual review of the Sub-Adviser’s Compliance Program, as required by Rule 206(4)-7 under the Advisers Act; and |
(v) | an annual (or more frequently as the Trust’s CCO may reasonably request) representation regarding the Sub-Adviser’s compliance with Section 7 and Section 10 of this Agreement. |
(b) | The Sub-Adviser shall also provide the Trust’s CCO with reasonable access, during normal business hours, to the Sub-Adviser’s facilities for the purpose of conducting pre-arranged on-site compliance related due diligence meetings with personnel of the Sub-Adviser. |
(a) | The Name “Exchange Traded Concepts.” The Adviser grants to the Sub-Adviser a sublicense to use the name “Exchange Traded Concepts” (the ETC Name”). The foregoing authorization by the Adviser to the Sub-Adviser to use the ETC Name is not exclusive of the right of the Adviser itself to use, or to authorize others to use, the ETC Name; the Sub-Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Adviser has the right to use, or authorize others to use, the ETC Name. The Sub-Adviser shall only use the ETC Name in a manner consistent with uses approved by the Adviser. Notwithstanding the foregoing, neither the Sub-Adviser nor any affiliate or agent of it shall make reference to or use the ETC Name or any of Adviser’s respective affiliates or clients names without the prior approval of Adviser, which approval shall not be unreasonably withheld or delayed. The Sub-Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Sub-Adviser to satisfy the foregoing obligation. |
(b) | The Name “Vident Investment Advisory LLC.” The Sub-Adviser grants to the Adviser a sublicense to use the name “Vident Investment Advisory LLC” (the “Vident Name”). The foregoing authorization by the Sub-Adviser to the Adviser to use the Vident Name is not exclusive of the right of the Sub-Adviser itself to use, or to authorize others to use, the Vident Name; the Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Sub-Adviser has the right to use, or authorize others to use, the Vident Name. The Adviser shall only use the Vident Name in a manner consistent with uses approved by the Sub-Adviser. Notwithstanding the foregoing, neither the Adviser nor any affiliate or agent of it shall make reference to or use the Vident Name or any of the Sub-Adviser’s respective affiliates or clients names without the prior approval of the Sub-Adviser, which approval shall not be unreasonably withheld or delayed. The Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Adviser to satisfy the foregoing obligation. |
To the Adviser at:
|
Exchange Traded Concepts, LLC
2545 South Kelly Avenue, Suite C
Edmond, Oklahoma 73013
Attention: J. Garrett Stevens, CEO
|
To the Trust’s CCO at:
|
Cipperman Compliance Services, LLC
500 East Swedesford Road, Suite 104 Wayne, Pennsylvania 19087 Attention: LuAnne Garvey |
To the Sub-Adviser at:
|
Vident Investment Advisory LLC
300 Colonial Center Parkway, Suite 330
Roswell, Georgia 30076
Attention: Andrew Schmuhl
|
(a) | A copy of the Certificate of Trust is on file with the Secretary of State of Delaware, and notice is hereby given that the obligations of this instrument are not binding upon any of the Trustees, officers or shareholders of the Fund or the Trust. |
(b) | Where the effect of a requirement of the 1940 Act or Advisers Act reflected in any provision of this Agreement is altered by a rule, regulation or order of the SEC, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order. |
ADVISER: |
SUB-ADVISER:
|
|||
Exchange Traded Concepts, LLC
|
Vident Investment Advisory LLC
|
|||
By: | By: |
|
||
Name: J. Garrett Stevens
|
Name:
|
|||
Title: Chief Executive Officer
|
Title:
|
Fund
|
Rate
|
Forensic Accounting ETF
|
The greater of 5 bps or $15,000 annual minimum
|
ADVISER: | SUB-ADVISER: | |||
Exchange Traded Concepts, LLC
|
Vident Investment Advisory LLC
|
|||
By: | By: |
|
||
Name: J. Garrett Stevens
|
Name:
|
|||
Title: Chief Executive Officer
|
Title:
|
(a) | The Sub-Adviser shall, subject to subparagraph (b) of this Section 1, determine from time to time what Assets will be purchased, retained or sold by the Funds, and what portion of the Assets will be invested or held uninvested in cash. |
(b) | In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Trust’s Declaration of Trust (as defined herein), as may be modified, amended or supplemented from time to time, the By-Laws of the Trust, as may be modified, amended or supplemented from time to time, the Prospectus, the instructions and directions of the Adviser and of the Board, the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time and the Trust’s policies and procedures and will conform to and comply in all material respects with the requirements of the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended (the “Code”) and all other applicable federal and state laws and regulations, as each is amended from time to time. |
(c) | Unless responsibility for placing orders with respect to transactions in securities or other assets held or to be acquired by the Funds has been retained by the Adviser or delegated by the Adviser to another sub-adviser, the Sub-Adviser will place such orders with or through such persons, brokers or dealers chosen by the Sub-Adviser to carry out the policy with respect to brokerage set forth in the Funds’ Prospectus or as the Board or the Adviser may direct in writing from time to time, in conformity with all federal securities laws and subject to the following: |
(i) | In executing Fund transactions and selecting brokers or dealers, the Sub-Adviser will use its best efforts to seek on behalf of each Fund the best overall terms available. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors that it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. |
(ii) | In evaluating the best overall terms available, and in selecting the broker-dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services provided (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934 (the “Exchange Act”)). Consistent with any guidelines established by the Board and Section 28(e) of the Exchange Act, the Sub-Adviser is authorized to pay to a broker or dealer who provides such brokerage and research services a commission for executing a portfolio transaction for a Fund which is in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if, but only if, the Sub-Adviser determines in good faith that such commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer viewed in terms of that particular transaction or in terms of the overall responsibilities of the Sub-Adviser to its discretionary clients, including the Fund. |
(iii) | The Sub-Adviser is authorized to allocate purchase and sale orders for securities to brokers or dealers (including brokers and dealers that are affiliated with the Adviser, the Sub-Adviser or the Trust’s principal underwriter) if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, the Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of the Trust, the Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. |
(iv) | When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of a Fund as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. |
(v) | To the extent the Adviser or another sub-adviser is responsible for placing orders with respect to a Fund’s portfolio transactions, the Sub-Adviser shall provide to the Adviser or such other sub-adviser such information concerning the securities or other assets to be purchased or sold on behalf of the Fund reasonably necessary to execute the transactions, including the identity of such security or asset, the number of shares or principal amount to be purchased or sold, and the timing of and restrictions, if any, on the purchase or sale ( e.g. , a market order versus a limit order). |
(vi) | As of the date of this Agreement, the Adviser has entered into a sub-advisory agreement with another sub-adviser pursuant to which that sub-adviser shall be responsible for placing orders with respect to the Funds’ portfolio transactions. During the term of that sub-advisory agreement and, unless and until the Sub-Adviser agrees to assume responsibility for the placement of orders with respect to the Funds’ portfolio transactions, the Sub-Adviser shall have no responsibility or liability for such services, other than the responsibility to provide the information required by subparagraph (c)(v) of this Section 1 . |
(d) | The Sub-Adviser shall maintain all books and records with respect to transactions involving the Assets required by subparagraphs (b)(1), (5), (6), (7), (8), (9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act. The Sub-Adviser shall keep the books and records relating to the Assets required to be maintained by the Sub-Adviser under this Agreement and shall timely furnish to the Adviser all information relating to the Sub-Adviser’s services under this Agreement needed by the Adviser to keep the other books and records of the Funds required by Rule 31a-1 under the 1940 Act. The Sub-Adviser agrees that all records that it maintains on behalf of a Fund are property of the Fund and the Sub-Adviser will surrender promptly to the Fund any of such records upon the Fund’s request; provided, however, that the Sub-Adviser may retain a copy of such records. In addition, for the duration of this Agreement, the Sub-Adviser shall preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any such records as are required to be maintained by it pursuant to this Agreement, and shall transfer said records to any successor sub-adviser upon the termination of this Agreement (or, if there is no successor sub-adviser, to the Adviser). |
(e) | The Sub-Adviser shall provide the Funds’ custodian on each business day with information relating to all transactions concerning the Assets and shall provide the Adviser with such information upon request of the Adviser and shall otherwise cooperate with and provide reasonable assistance to the Adviser, the Trust’s administrator, the Trust’s custodian and foreign custodians, the Trust’s transfer agent and pricing agents and all other agents and representatives of the Trust. |
(f) | The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Funds and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. |
(g) | The Sub-Adviser shall promptly notify the Adviser of any financial condition that is reasonably and foreseeably likely to impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement. |
(h) | Unless the responsibility has been retained by the Adviser or delegated by the Adviser to another sub-adviser, the Sub-Adviser shall, unless and until otherwise directed by the Adviser or the Board and consistent with the best interests of each Fund, be responsible for exercising (or not exercising in its discretion) all rights of security holders with respect to securities held by each Fund, including but not limited to: reviewing proxy solicitation materials, voting and handling proxies and converting, tendering exchanging or redeeming securities. |
(i) | In performance of its duties and obligations under this Agreement, the Sub-Adviser shall not consult with any other sub-adviser to the Funds or a sub-adviser to a portfolio that is under common control with the Funds concerning the Assets, except as permitted by the policies and procedures of the Funds and subparagraph (c)(v) of this Section 1 . The Sub-Adviser shall not provide investment advice to any assets of the Funds other than the Assets. |
(j) | The Sub-Adviser shall maintain books and records with respect to the Funds’ securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the Sub-Adviser and its key investment personnel providing services with respect to the Funds and the investment and the reinvestment of the Assets of the Funds. The Sub-Adviser shall furnish to the Adviser or the Board such reasonably requested regular, periodic and special reports, balance sheets or financial information, and such other information with regard to its affairs as the Adviser or Board may reasonably request and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing. Upon the request of the Adviser, the Sub-Adviser shall also furnish to the Adviser any other information relating to the Assets that is required to be filed by the Adviser or the Trust with the SEC or sent to shareholders under the 1940 Act (including the rules adopted thereunder) or any exemptive or other relief that the Adviser or the Trust obtains from the SEC. |
(k) | The Sub-Adviser shall, in accordance with procedures and methods established by the Board, which may be amended from time to time, and in conjunction with the Adviser, promptly notify the Adviser and the Trust’s administrator/fund accountant of securities in a Fund which the Sub-Adviser believes should be fair valued in accordance with the Trust’s Valuation Procedures. Such fair valuation may be required when the Sub-Adviser becomes aware of significant events that may affect the pricing of all or a portion of a Fund’s portfolio. The Sub-Adviser will provide reasonable assistance in determining the fair value of the Assets, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for which market prices are not readily available, it being understood that the Sub-Adviser will not be responsible for determining the value of any such security. |
(a) | The Trust’s Agreement and Declaration of Trust (such Agreement and Declaration of Trust, as in effect on the date of this Agreement and as amended from time to time, herein called the “Declaration of Trust”); |
(b) | By-Laws of the Trust (such By-Laws, as in effect on the date of this Agreement and as amended from time to time, are herein called the “By-Laws”); |
(c) | Prospectus of the Funds; |
(d) | Resolutions of the Board approving the engagement of the Sub-Adviser as a sub-adviser to the Funds; |
(e) | Resolutions, policies and procedures adopted by the Board with respect to the Assets to the extent such resolutions, policies and procedures may affect the duties of the Sub-Adviser hereunder; and |
(f) | A list of the Trust’s principal underwriter and each affiliated person of the Adviser, the Trust or the principal underwriter. |
(a) | The Sub-Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Sub-Adviser will immediately notify the Adviser of the occurrence of any event that would substantially impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Sub-Adviser will promptly notify the Funds and the Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Sub-Adviser. The Sub-Adviser will also promptly notify the Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Sub-Adviser will notify the Adviser immediately upon detection of (a) any material failure to manage the Fund(s) in accordance with the Fund(s)’ stated investment objectives and policies or any applicable law; or (b) any material breach of any of the Fund(s)’ or the Sub-Adviser’s policies, guidelines or procedures;
|
(d) | The Sub-Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Sub-Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Sub-Adviser is a limited liability company duly organized and validly existing under the laws of the state of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Sub-Adviser of this Agreement are within the Sub-Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Sub-Adviser for the execution, delivery and performance by the Sub-Adviser of this Agreement, and the execution, delivery and performance by the Sub-Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Sub-Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Sub-Adviser; |
(g) | This Agreement is a valid and binding agreement of the Sub-Adviser; |
(h) | The Form ADV of the Sub-Adviser previously provided to the Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Sub-Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Sub-Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | The Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Adviser will immediately notify the Sub-Adviser of the occurrence of any event that would substantially impair the Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Adviser will promptly notify the Funds and the Sub-Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Adviser. The Adviser will also promptly notify the Sub-Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Adviser will notify the Sub-Adviser immediately upon detection of any material breach of any of the Fund(s)’ or the Adviser’s policies, guidelines or procedures;
|
(d) | The Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Adviser is a limited liability company duly organized and validly existing under the laws of the state of Oklahoma with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Adviser for the execution, delivery and performance by the Adviser of this Agreement, and the execution, delivery and performance by the Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Adviser; |
(g) | This Agreement is a valid and binding agreement of the Adviser; |
(h) | The Form ADV of the Adviser previously provided to the Sub-Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | Duration . This Agreement shall become effective upon the date first above written, provided that this Agreement shall not take effect with respect to a Fund unless it has first been approved by a vote of a majority of those Trustees of the Trust who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval and by vote of a majority of the Fund’s outstanding securities. This Agreement shall continue in effect for a period of two years from the date hereof, subject thereafter to being continued in force and effect from year to year if specifically approved each year by the Board or by the vote of a majority of the Fund’s outstanding voting securities. In addition to the foregoing, each renewal of this Agreement must be approved by the vote of a majority of the Board who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval. Prior to voting on the renewal of this Agreement, the Board may request and evaluate, and the Sub-Adviser shall furnish, such information as may reasonably be necessary to enable the Board to evaluate the terms of this Agreement. |
(b) | Termination . Notwithstanding whatever may be provided herein to the contrary, this Agreement may be terminated at any time, without payment of any penalty: |
(i) | By vote of a majority of the Board or by vote of a majority of the outstanding voting securities of the Funds, or by the Adviser, in each case, upon sixty (60) days’ written notice to the Sub-Adviser; |
(ii) | By the Sub-Adviser upon sixty (60) days’ written notice to the Adviser and the Board. |
(a) | in accordance with Rule 206(4)-7 under the Advisers Act, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures reasonably designed to prevent violation by the Sub-Adviser and its supervised persons (as such term is defined in the Advisers Act) of the Advisers Act and the rules the SEC has adopted under the Advisers Act; and |
(b) | to the extent that the Sub-Adviser’s activities or services could affect the Funds, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures that the Trust’s chief compliance officer determines are reasonably designed to prevent violation of the “federal securities laws” (as such term is defined in Rule 38a-1 under the 1940 Act) by the Funds and the Sub-Adviser (the policies and procedures referred to in this Section 10(b) , along with the policies and procedures referred to in Section 10(a) , are referred to herein as the Sub-Adviser’s “Compliance Program”). |
(a) | The Sub-Adviser shall promptly provide to the Trust’s Chief Compliance Officer (“CCO”) the following documents: |
(i) | reasonable access, at the Sub-Adviser’s principal office or such other place as may be mutually agreed to by the parties, to all SEC examination correspondences, including correspondences regarding books and records examinations and “sweep” examinations, issued during the term of this Agreement, in which the SEC identified any concerns, issues or matters (such correspondences are commonly referred to as “deficiency letters”) relating to any aspect of the Sub-Adviser’s investment advisory business and the Sub-Adviser’s responses thereto; provided that the Sub-Adviser may redact from such correspondences client specific confidential information, material subject to the attorney-client privilege, and material non-public information, that the Sub-Adviser reasonably determines should not be disclosed to the Trust’s CCO; |
(ii) | a report of any material violations of the Sub-Adviser’s Compliance Program or any “material compliance matters” (as such term is defined in Rule 38a-1 under the 1940 Act) that have occurred with respect to the Sub-Adviser’s Compliance Program; |
(iii) | on a quarterly basis, a report of any material changes to the policies and procedures that compose the Sub-Adviser’s Compliance Program; |
(iv) | a copy of the Sub-Adviser’s chief compliance officer’s report (or similar document(s) which serve the same purpose) regarding his or her annual review of the Sub-Adviser’s Compliance Program, as required by Rule 206(4)-7 under the Advisers Act; and |
(v) | an annual (or more frequently as the Trust’s CCO may reasonably request) representation regarding the Sub-Adviser’s compliance with Section 7 and Section 10 of this Agreement. |
(b) | The Sub-Adviser shall also provide the Trust’s CCO with reasonable access, during normal business hours, to the Sub-Adviser’s facilities for the purpose of conducting pre-arranged on-site compliance related due diligence meetings with personnel of the Sub-Adviser. |
(a) | The Name “Exchange Traded Concepts.” The Adviser grants to the Sub-Adviser a sublicense to use the name “Exchange Traded Concepts” (the “ETC Name”). The foregoing authorization by the Adviser to the Sub-Adviser to use the ETC Name is not exclusive of the right of the Adviser itself to use, or to authorize others to use, the ETC Name; the Sub-Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Adviser has the right to use, or authorize others to use, the ETC Name. The Sub-Adviser shall only use the ETC Name in a manner consistent with uses approved by the Adviser. Notwithstanding the foregoing, neither the Sub-Adviser nor any affiliate or agent of it shall make reference to or use the ETC Name or any of the Adviser’s respective affiliates or clients names without the prior approval of the Adviser, which approval shall not be unreasonably withheld or delayed. The Sub-Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Sub-Adviser to satisfy the foregoing obligation. |
(b) | The Name “Yorkville.” The Sub-Adviser grants to the Adviser a sublicense to use the name “Yorkville” (the Yorkville Name”). The foregoing authorization by the Sub-Adviser to the Adviser to use the Yorkville Name is not exclusive of the right of the Sub-Adviser itself to use, or to authorize others to use, the Yorkville Name; the Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Sub-Adviser has the right to use, or authorize others to use, the Yorkville Name. The Adviser shall only use the Yorkville Name in a manner consistent with uses approved by the Sub-Adviser. Notwithstanding the foregoing, neither the Adviser nor any affiliate or agent of it shall make reference to or use the Yorkville Name or any of the Sub-Adviser’s respective affiliates or clients names without the prior approval of the Sub-Adviser, which approval shall not be unreasonably withheld or delayed. The Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Adviser to satisfy the foregoing obligation. |
(a) | A copy of the Certificate of Trust is on file with the Secretary of State of Delaware, and notice is hereby given that the obligations of this instrument are not binding upon any of the Trustees, officers or shareholders of the Fund or the Trust. |
(b) | Where the effect of a requirement of the 1940 Act or Advisers Act reflected in any provision of this Agreement is altered by a rule, regulation or order of the SEC, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order. |
ADVISER:
|
SUB-ADVISER:
|
||||
Exchange Traded Concepts, LLC
|
Yorkville ETF Advisors, LLC
|
||||
By: | By: | ||||
Name: J. Garrett Stevens
|
Name:
|
||||
Title: Chief Executive Officer
|
Title:
|
Fund
|
Rate
|
Yorkville High Income MLP ETF
|
0.62%
|
Yorkville High Income Infrastructure MLP ETF
|
0.62%
|
ADVISER: | SUB-ADVISER: | ||||
Exchange Traded Concepts, LLC
|
Yorkville ETF Advisors, LLC
|
||||
By: | By: | ||||
Name: J. Garrett Stevens
|
Name:
|
||||
Title: Chief Executive Officer
|
Title:
|
(a) | The Sub-Adviser shall, subject to subparagraph (b) of this Section 1, determine from time to time what Assets will be purchased, retained or sold by the Funds, and what portion of the Assets will be invested or held uninvested in cash. |
(b) | In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Trust’s Declaration of Trust (as defined herein), as may be modified, amended or supplemented from time to time, the By-Laws of the Trust, as may be modified, amended or supplemented from time to time, the Prospectus, the instructions and directions of the Adviser and of the Board, the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time and the Trust’s policies and procedures and will conform to and comply in all material respects with the requirements of the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended (the “Code”) and all other applicable federal and state laws and regulations, as each is amended from time to time. |
(c) | The Sub-Adviser will place orders with respect to transactions in securities or other assets held or to be acquired by each Fund with or through such persons, brokers or dealers chosen by the Sub-Adviser to carry out the policy with respect to brokerage set forth in the Fund’s Prospectus or as the Board or the Adviser may direct in writing from time to time, in conformity with all federal securities laws and subject to the following: |
(i) | In executing Fund transactions and selecting brokers or dealers, the Sub-Adviser will use its best efforts to seek on behalf of each Fund the best overall terms available. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors that it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. |
(ii) | In evaluating the best overall terms available, and in selecting the broker-dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services provided (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934 (the “Exchange Act”)). Consistent with any guidelines established by the Board and Section 28(e) of the Exchange Act, the Sub-Adviser is authorized to pay to a broker or dealer who provides such brokerage and research services a commission for executing a portfolio transaction for a Fund which is in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if, but only if, the Sub-Adviser determines in good faith that such commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer viewed in terms of that particular transaction or in terms of the overall responsibilities of the Sub-Adviser to its discretionary clients, including the Fund. |
(iii) | The Sub-Adviser is authorized to allocate purchase and sale orders for securities to brokers or dealers (including brokers and dealers that are affiliated with the Adviser, the Sub-Adviser or the Trust’s principal underwriter) if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, the Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of the Trust, the Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. |
(iv) | When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of a Fund as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. |
(d) | The Sub-Adviser shall maintain all books and records with respect to transactions involving the Assets required by subparagraphs (b)(1), (5), (6), (7), (8), (9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act. The Sub-Adviser shall keep the books and records relating to the Assets required to be maintained by the Sub-Adviser under this Agreement and shall timely furnish to the Adviser all information relating to the Sub-Adviser’s services under this Agreement needed by the Adviser to keep the other books and records of the Funds required by Rule 31a-1 under the 1940 Act. The Sub-Adviser agrees that all records that it maintains on behalf of a Fund are property of the Fund and the Sub-Adviser will surrender promptly to the Fund any of such records upon the Fund’s request; provided, however, that the Sub-Adviser may retain a copy of such records. In addition, for the duration of this Agreement, the Sub-Adviser shall preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any such records as are required to be maintained by it pursuant to this Agreement, and shall transfer said records to any successor sub-adviser upon the termination of this Agreement (or, if there is no successor sub-adviser, to the Adviser). |
(e) | The Sub-Adviser shall provide the Funds’ custodian on each business day with information relating to all transactions concerning the Assets and shall provide the Adviser with such information upon request of the Adviser and shall otherwise cooperate with and provide reasonable assistance to the Adviser, the Trust’s administrator, the Trust’s custodian and foreign custodians, the Trust’s transfer agent and pricing agents and all other agents and representatives of the Trust. |
(f) | The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Funds and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. |
(g) | The Sub-Adviser shall promptly notify the Adviser of any financial condition that is reasonably and foreseeably likely to impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement. |
(h) | To the extent such authority has been delegated to it by the Adviser, the Sub-Adviser shall, unless and until otherwise directed by the Adviser or the Board and consistent with the best interests of each Fund, be responsible for exercising (or not exercising in its discretion) all rights of security holders with respect to securities held by the Fund, including but not limited to: reviewing proxy solicitation materials, voting and handling proxies and converting, tendering exchanging or redeeming securities. |
(i) | In performance of its duties and obligations under this Agreement, the Sub-Adviser shall not consult with any other sub-adviser to the Funds or a sub-adviser to a portfolio that is under common control with the Funds concerning the Assets, except as permitted by the policies and procedures of the Funds. The Sub-Adviser shall not provide investment advice to any assets of the Funds other than the Assets. |
(j) | The Sub-Adviser shall maintain books and records with respect to the Funds’ securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the Sub-Adviser and its key investment personnel providing services with respect to the Funds and the investment and the reinvestment of the Assets of the Funds. The Sub-Adviser shall furnish to the Adviser or the Board such reasonably requested regular, periodic and special reports, balance sheets or financial information, and such other information with regard to its affairs as the Adviser or Board may reasonably request and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing. Upon the request of the Adviser, the Sub-Adviser shall also furnish to the Adviser any other information relating to the Assets that is required to be filed by the Adviser or the Trust with the SEC or sent to shareholders under the 1940 Act (including the rules adopted thereunder) or any exemptive or other relief that the Adviser or the Trust obtains from the SEC. |
(k) | The Sub-Adviser shall, in accordance with procedures and methods established by the Board, which may be amended from time to time, and in conjunction with the Adviser, promptly notify the Adviser and the Trust’s administrator/fund accountant of securities in a Fund which the Sub-Adviser believes should be fair valued in accordance with the Trust’s Valuation Procedures. Such fair valuation may be required when the Sub-Adviser becomes aware of significant events that may affect the pricing of all or a portion of a Fund’s portfolio. The Sub-Adviser will provide reasonable assistance in determining the fair value of the Assets, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for which market prices are not readily available, it being understood that the Sub-Adviser will not be responsible for determining the value of any such security. |
(a) | The Trust’s Agreement and Declaration of Trust (such Agreement and Declaration of Trust, as in effect on the date of this Agreement and as amended from time to time, herein called the “Declaration of Trust”); |
(b) | By-Laws of the Trust (such By-Laws, as in effect on the date of this Agreement and as amended from time to time, are herein called the “By-Laws”); |
(c) | Prospectus of the Funds; |
(d) | Resolutions of the Board approving the engagement of the Sub-Adviser as a sub-adviser to the Funds; |
(e) | Resolutions, policies and procedures adopted by the Board with respect to the Assets to the extent such resolutions, policies and procedures may affect the duties of the Sub-Adviser hereunder; and |
(f) | A list of the Trust’s principal underwriter and each affiliated person of the Adviser, the Trust or the principal underwriter. |
(a) | The Sub-Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Sub-Adviser will immediately notify the Adviser of the occurrence of any event that would substantially impair the Sub-Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Sub-Adviser will promptly notify the Funds and the Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Sub-Adviser. The Sub-Adviser will also promptly notify the Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Sub-Adviser will notify the Adviser immediately upon detection of (a) any material failure to manage the Fund(s) in accordance with the Fund(s)’ stated investment objectives and policies or any applicable law; or (b) any material breach of any of the Fund(s)’ or the Sub-Adviser’s policies, guidelines or procedures;
|
(d) | The Sub-Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Sub-Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Sub-Adviser is a limited liability company duly organized and validly existing under the laws of the state of New York with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Sub-Adviser of this Agreement are within the Sub-Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Sub-Adviser for the execution, delivery and performance by the Sub-Adviser of this Agreement, and the execution, delivery and performance by the Sub-Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Sub-Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Sub-Adviser; |
(g) | This Agreement is a valid and binding agreement of the Sub-Adviser; |
(h) | The Form ADV of the Sub-Adviser previously provided to the Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Sub-Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Sub-Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | The Adviser is registered as an investment adviser under the Advisers Act and will continue to be so registered so long as this Agreement remains in effect; |
(b) | The Adviser will immediately notify the Sub-Adviser of the occurrence of any event that would substantially impair the Adviser’s ability to fulfill its commitment under this Agreement or disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act. The Adviser will promptly notify the Funds and the Sub-Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, self-regulatory organization, public board or body, involving the affairs of the Funds or the Adviser. The Adviser will also promptly notify the Sub-Adviser if it is dissolved or becomes bankrupt or insolvent as defined under the provisions of title 11 of the United States Code, 11 U.S.C. Section 101 et seq., as amended, modified or supplemented from time to time; |
(c)
|
The Adviser will notify the Sub-Adviser immediately upon detection of any material breach of any of the Fund(s)’ or the Adviser’s policies, guidelines or procedures;
|
(d) | The Adviser is fully authorized under all applicable law to enter into this Agreement and serve as Adviser to the Funds and to perform the services described under this Agreement; |
(e) | The Adviser is a limited liability company duly organized and validly existing under the laws of the state of Oklahoma with the power to own and possess its assets and carry on its business as it is now being conducted; |
(f) | The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized by all necessary action on the part of its members, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Adviser for the execution, delivery and performance by the Adviser of this Agreement, and the execution, delivery and performance by the Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Adviser; |
(g) | This Agreement is a valid and binding agreement of the Adviser; |
(h) | The Form ADV of the Adviser previously provided to the Sub-Adviser is a true and complete copy of the form filed with the SEC and the information contained therein is accurate and complete in all material respects as of its filing date, and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; |
(i) | The Adviser shall not divert any Fund’s portfolio securities transactions to a broker or dealer in consideration of such broker or dealer’s promotion or sales of shares of the Fund, any other series of the Trust, or any other registered investment company; and |
(j) | The Adviser agrees to maintain an appropriate level of errors and omissions and professional liability insurance coverage. |
(a) | Duration . This Agreement shall become effective upon the date first above written, provided that this Agreement shall not take effect with respect to a Fund unless it has first been approved by a vote of a majority of those Trustees of the Trust who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval and by vote of a majority of the Fund’s outstanding securities. This Agreement shall continue in effect for a period of two years from the date hereof, subject thereafter to being continued in force and effect from year to year if specifically approved each year by the Board or by the vote of a majority of the Fund’s outstanding voting securities. In addition to the foregoing, each renewal of this Agreement must be approved by the vote of a majority of the Board who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting on such approval. Prior to voting on the renewal of this Agreement, the Board may request and evaluate, and the Sub-Adviser shall furnish, such information as may reasonably be necessary to enable the Board to evaluate the terms of this Agreement. |
(b) | Termination . Notwithstanding whatever may be provided herein to the contrary, this Agreement may be terminated at any time, without payment of any penalty: |
(i) | By vote of a majority of the Board or by vote of a majority of the outstanding voting securities of the Funds, or by the Adviser, in each case, upon sixty (60) days’ written notice to the Sub-Adviser; |
(ii) | By the Sub-Adviser upon sixty (60) days’ written notice to the Adviser and the Board. |
(a) | in accordance with Rule 206(4)-7 under the Advisers Act, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures reasonably designed to prevent violation by the Sub-Adviser and its supervised persons (as such term is defined in the Advisers Act) of the Advisers Act and the rules the SEC has adopted under the Advisers Act; and |
(b) | to the extent that the Sub-Adviser’s activities or services could affect the Funds, the Sub-Adviser has adopted and implemented and will maintain written policies and procedures that the Trust’s chief compliance officer determines are reasonably designed to prevent violation of the “federal securities laws” (as such term is defined in Rule 38a-1 under the 1940 Act) by the Funds and the Sub-Adviser (the policies and procedures referred to in this Section 10(b) , along with the policies and procedures referred to in Section 10(a) , are referred to herein as the Sub-Adviser’s “Compliance Program”). |
(a) | The Sub-Adviser shall promptly provide to the Trust’s Chief Compliance Officer (“CCO”) the following documents: |
(i) | reasonable access, at the Sub-Adviser’s principal office or such other place as may be mutually agreed to by the parties, to all SEC examination correspondences, including correspondences regarding books and records examinations and “sweep” examinations, issued during the term of this Agreement, in which the SEC identified any concerns, issues or matters (such correspondences are commonly referred to as “deficiency letters”) relating to any aspect of the Sub-Adviser’s investment advisory business and the Sub-Adviser’s responses thereto; provided that the Sub-Adviser may redact from such correspondences client specific confidential information, material subject to the attorney-client privilege, and material non-public information, that the Sub-Adviser reasonably determines should not be disclosed to the Trust’s CCO; |
(ii) | a report of any material violations of the Sub-Adviser’s Compliance Program or any “material compliance matters” (as such term is defined in Rule 38a-1 under the 1940 Act) that have occurred with respect to the Sub-Adviser’s Compliance Program; |
(iii) | on a quarterly basis, a report of any material changes to the policies and procedures that compose the Sub-Adviser’s Compliance Program; |
(iv) | a copy of the Sub-Adviser’s chief compliance officer’s report (or similar document(s) which serve the same purpose) regarding his or her annual review of the Sub-Adviser’s Compliance Program, as required by Rule 206(4)-7 under the Advisers Act; and |
(v) | an annual (or more frequently as the Trust’s CCO may reasonably request) representation regarding the Sub-Adviser’s compliance with Section 7 and Section 10 of this Agreement. |
(b) | The Sub-Adviser shall also provide the Trust’s CCO with reasonable access, during normal business hours, to the Sub-Adviser’s facilities for the purpose of conducting pre-arranged on-site compliance related due diligence meetings with personnel of the Sub-Adviser. |
(a) | The Name “Exchange Traded Concepts.” The Adviser grants to the Sub-Adviser a sublicense to use the name “Exchange Traded Concepts” (the “ETC Name”). The foregoing authorization by the Adviser to the Sub-Adviser to use the ETC Name is not exclusive of the right of the Adviser itself to use, or to authorize others to use, the ETC Name; the Sub-Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Adviser has the right to use, or authorize others to use, the ETC Name. The Sub-Adviser shall only use the ETC Name in a manner consistent with uses approved by the Adviser. Notwithstanding the foregoing, neither the Sub-Adviser nor any affiliate or agent of it shall make reference to or use the ETC Name or any of the Adviser’s respective affiliates or clients names without the prior approval of the Adviser, which approval shall not be unreasonably withheld or delayed. The Sub-Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Sub-Adviser to satisfy the foregoing obligation. |
(b) | The Name “Penserra Capital Management, LLC.” The Sub-Adviser grants to the Adviser a sublicense to use the name “Penserra Capital Management, LLC” (the “Penserra Name”). The foregoing authorization by the Sub-Adviser to the Adviser to use the Penserra Name is not exclusive of the right of the Sub-Adviser itself to use, or to authorize others to use, the Penserra Name; the Adviser acknowledges and agrees that, as between the Sub-Adviser and the Adviser, the Sub-Adviser has the right to use, or authorize others to use, the Penserra Name. The Adviser shall only use the Penserra Name in a manner consistent with uses approved by the Sub-Adviser. Notwithstanding the foregoing, neither the Adviser nor any affiliate or agent of it shall make reference to or use the Penserra Name or any of the Sub-Adviser’s respective affiliates or clients names without the prior approval of the Sub-Adviser, which approval shall not be unreasonably withheld or delayed. The Adviser hereby agrees to make all reasonable efforts to cause any affiliate or agent of the Adviser to satisfy the foregoing obligation. |
To the Adviser at:
|
Exchange Traded Concepts, LLC
2545 South Kelly Avenue, Suite C
Edmond, Oklahoma 73013
Attention: J. Garrett Stevens, CEO
|
To the Trust’s CCO at:
|
Cipperman Compliance Services, LLC
500 East Swedesford Road, Suite 104 Wayne, Pennsylvania 19087 Attention: LuAnne Garvey |
To the Sub-Adviser at:
|
Penserra Capital Management LLC
4 Orinda Way, Suite 100A
Orinda, California 94563
Attention: Dustin Lewellyn
|
(a) | A copy of the Certificate of Trust is on file with the Secretary of State of Delaware, and notice is hereby given that the obligations of this instrument are not binding upon any of the Trustees, officers or shareholders of the Fund or the Trust. |
(b) | Where the effect of a requirement of the 1940 Act or Advisers Act reflected in any provision of this Agreement is altered by a rule, regulation or order of the SEC, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order. |
ADVISER:
|
SUB-ADVISER: | |||
Exchange Traded Concepts, LLC
|
Penserra Capital Management LLC
|
|||
By:
|
By:
|
|||
Name: J. Garrett Stevens
|
Name: Dustin Lewellyn
|
|||
Title: Chief Executive Officer
|
Title: Chief Investment Officer
|
Fund
|
Rate
|
Yorkville High Income MLP ETF
|
The greater of 5 bps or $25,000 annual minimum
|
Yorkville High Income Infrastructure MLP ETF
|
The greater of 5 bps or $25,000 annual minimum
|
ADVISER:
|
SUB-ADVISER: | |||
Exchange Traded Concepts, LLC
|
Penserra Capital Management LLC
|
|||
By:
|
By:
|
|||
Name: J. Garrett Stevens
|
Name: Dustin Lewellyn
|
|||
Title: Chief Executive Officer
|
Title: Chief Investment Officer
|
EXCHANGE TRADED CONCEPTS TRUST:
|
||
BY:
|
/s/ J. Garrett Stevens | |
NAME: J. Garrett Stevens
|
||
TITLE: CEO
|
||
DATE: March 5, 2015
|
Relationship to Agreement:
|
Excepted as specifically set forth herein, defined terms used in this New Fund Addendum shall have the meaning set forth in the Agreement. Upon executing this New Fund Addendum, the Funds in the Series Complex shall be included in the terms and conditions of the Agreement as if the same had been an original party thereto and the term “Advisor” as used in the Agreement shall, from and after the date hereof, also refer to the Sub-Adviser added pursuant to this New Fund Addendum. In the event of a conflict between the terms set forth in this New Fund Addendum and any terms set forth in the Agreement, the terms set forth in this New Fund Addendum shall govern, but solely with respect to the Series Complex described herein.
|
|
For the avoidance of doubt, this New Fund Addendum replaces in its entirety the New Fund Addendum dated February 18, 2014, by and between Exchange Traded Trust, on behalf of the Hull Tactical U.S. ETF and SEI Investments Global Funds Services.
|
||
Series:
|
The Hull Tactical U.S. ETF, and any additional Fund established as a series of the Trust subsequent to the date hereof for which HTAA, LLC (the “Sub-Adviser”) serves as Sub-Adviser.
|
|
Fees:
|
The following fees are due and payable monthly to the Administrator pursuant to
Section 8
of the Agreement out of the assets of the Series Complex, except to the extent the Sub-Adviser agrees to pay or reimburse the Series Complex’s expenses, in which case such fees shall be paid by the Sub-Adviser. The Series Complex will be charged the greater of its Asset Based Fee or its Annual Minimum Fee, in each case calculated in the manner set forth below.
|
|
Asset Based Fee:
|
XX basis points.
|
|
The Asset Based Fee shall be calculated based on the aggregate average daily net assets of the Series Complex during the relevant period.
|
||
Annual Minimum Fee:
|
The initial Annual Minimum Fee shall be $XX,XXX.
|
|
Out of Pocket Expenses:
|
All reasonable out of pocket expenses (i.e., blue sky fees, fulfillment charges, pricing service fees, postage, registration fees, facsimile and telephone charges) incurred by the Administrator on behalf of the Fund will be billed to the Fund quarterly in arrears.
|
Annual CPI Increase:
|
The fees payable hereunder shall be subject to one annual increase at the Administrator’ discretion, equal to the percentage increase in the Philadelphia Consumer Price Index since the Effective Date with respect to the first such increase and since the date of the immediately preceding increase with respect to all subsequent increases; provided, however, that the Administrator shall notify the Sub-Adviser of the Series Complex of its intent to effectuate any such increase at least thirty days prior to the effective date of such increase.
|
|
Reorganization Fees:
|
The Sub-Adviser shall pay the Administrator a transaction charge equal to $XX,XXX in connection with each Reorganization Event to which any Fund in the Series Complex is a party. For purposes of the foregoing, a “
Reorganization Event
” means any material change in the organizational structure of any Fund in the Series Complex, including, without limitation, any merger, acquisition or divestiture of all or any portion of the assets of a Fund in the Series Complex as well as any acquisition or merger transaction between a Fund in the Series Complex and any other fund.
|
|
Operational Automation:
|
A critical component of the Administrator’s services is fund valuations. Automated trade delivery and receipt between the fund advisors and Administrator is critical to high quality service. Accordingly, Administrator and the Sub-Adviser of the Series Complex agree to use best efforts to implement automated trade delivery and receipt as soon as practicable after the Series’ establishment in the Trust.
|
|
Term:
|
This New Fund Addendum shall continue in effect with respect to each Fund in the Series Complex for a period of three years from and after the date on which the Administrator first calculates such Fund’s net asset value (the “
Initial Term
”). Following expiration of the Initial Term, this New Fund Addendum shall continue in effect for successive periods of one year (each, a “
Renewal Term
”).
|
|
Termination:
|
This New Fund Addendum may be terminated only: (a) by either party at the end of the Initial Term or the end of any Renewal Term on one hundred eighty days prior written notice; (b) by either party hereto on such date as is specified in written notice given by the terminating party, in the event of a material breach of this Agreement by the other party, provided the terminating party has notified the other party of such material breach at least ninety days prior to the specified date of termination and the breaching party has not remedied such breach by the specified date; or (c) as to any portfolio, upon forty-five days prior written notice, effective (i) upon the reorganization or merger of a portfolio into another entity, provided that the Administrator or one of its affiliates enters into a written agreement to provide administration services on behalf of such surviving entity, or (ii) upon any “change of control” of the Sub-Adviser by sale, merger, reorganization, acquisition or other disposition of substantially all of the assets of the Sub-Adviser to a third party, provided that the Administrator or one of its affiliates enters into a written agreement to provide administration services on behalf of the third party or surviving entity. For purposes of this paragraph, the term “change of control” shall mean any transaction that results in the transfer of right, title and ownership of twenty-five (25) percent or more of the equity interests of the Sub-Adviser to a third party.
|
Early Termination
:
|
Subject to the terms and conditions set forth in this paragraph, the parties may agree to terminate this New Fund Addendum on or before the expiration of the then current term (hereinafter, an “
Early Termination
”). In the event the parties agree to an Early Termination, the parties will agree upon the effective date of such Early Termination and, on or before such effective date, the Series Complex shall (i) not be in material breach of the Agreement (including this New Fund Addendum) and (ii) pay the Buyout Amount to the Administrator in the manner set forth below. As used herein, the term “
Buyout Amount
” shall mean the amount that is equal to (1) the average monthly fee payable by the Series Complex to the Administrator hereunder during the six month period (or such shorter period if fewer than six months have elapsed since the effective date of this New Fund Addendum) immediately preceding the mutual agreement called for in this paragraph multiplied by (2) the number of months remaining in the then current term (including any Renewal Term to which the Series Complex is already committed). The Series Complex shall pay the Buyout Amount to the Administrator on or before the effective date of the Early Termination by means of wire or other immediately available funds.
|
||
Sub-Adviser Expense Repayment:
|
Any and all out of pocket fees, costs, or expenses advanced by the Administrator, in its sole discretion on behalf of the Series Complex or the undersigned Sub-Adviser, as a result of any failure to fully satisfy and comply with any and all applicable portfolio expense caps or expense ratio limits, shall be the responsibility of the Sub-Adviser and shall be promptly repaid to the Administrator (“
Repayment Obligation
”). Any such Repayment Obligation of the Sub-Adviser shall survive: (i) the termination of the Agreement and this New Fund Addendum thereto, (ii) any merger or liquidation of any subject portfolio, unless and until the Repayment Obligation is indefeasibly paid in full.
|
||
Notice to Sub-Adviser:
|
Name of Party or Parties: HTAA, LLC
|
||
Name of Contact:
|
Stephen McCarten
|
||
Address: 141 West Jackson Blvd, Suite 340, Chicago, IL 60604
|
|||
Telephone No.:
|
201-370-0678
|
||
Facsimile No.:
|
|||
Email Address:
|
smccarten@hulltacticalfunds.com
|
BY:
|
||
Name:
|
||
Title:
|
||
SEI INVESTMENTS GLOBAL FUNDS SERVICES
|
||
BY:
|
||
Name:
|
||
Title:
|
||
AGREED TO AND ACCEPTED BY:
|
||
HTAA, LLC,
|
||
Sub-Adviser to the Hull Tactical U.S. ETF
|
||
BY:
|
||
Name:
|
||
Title:
|
EXCHANGE TRADED CONCEPTS TRUST:
|
||
BY:
|
/s/ J. Garrett Stevens | |
NAME: J. Garrett Stevens
|
||
TITLE: President
|
||
DATE: March 5, 2015
|
Morgan, Lewis & Bockius LLP
2020 K Street, NW
Washington, District of Columbia 20006-1806
Tel. 202.373.6000
Fax: 202.373.6001
www.morganlewis.com
|
|
Re:
|
Registration Statement on Form N-1A
|
(a) | A certificate of the Secretary of State of the State of Delaware, dated as of a recent date, as to the existence of the Trust; |
(b) | A copy, certified by the Secretary of State of the State of Delaware, of the Trust’s Certificate of Trust dated July 17, 2009, as amended July 14, 2011, filed with the Secretary of State (the “Certificate of Trust”); |
(c) | A certificate executed by the President of the Trust, certifying as to, and attaching copies of, the Trust’s Amended and Restated Agreement and Declaration of Trust (the “Declaration”), the Trust’s Amended and Restated By-Laws dated October 3, 2011, and the resolutions adopted by the Trustees of the Trust authorizing the issuance of the Shares of the Fund (the “Resolutions”); and |
(d) | A printer’s proof of the Registration Statement. |
THIS CODE OF ETHICS HAS BEEN PREPARED BY HULL TACTICAL ASSET ALLOCATION, LLC (“HTAA”). ANY DISTRIBUTION OF THIS CODE OF ETHICS TO ANY INDIVIDUAL OR INDIVIDUALS OUTSIDE THE EMPLOY OF HTAA IS NOT PERMITTED WITHOUT THE EXPRESS PRIOR AND WRITTEN CONSENT OF HTAA.
|
A. | Statement of General Principles |
(1) | The interests of our clients are paramount. In conducting themselves and the operations of HTAA, all HTAA personnel must place the interests of our clients before their own. |
(2) | HTAA personnel must conduct their personal securities transactions in such a way as to avoid a conflict between their personal interests and the interests of our clients. |
(3) | HTAA personnel must avoid actions or activities that allow them, or a member of their family, to profit or benefit from his or her position with HTAA, or that otherwise call into question the person’s independent judgment. |
(4) | In conducting themselves and the operations of HTAA, HTAA personnel must comply with applicable federal securities laws. |
B. | Definitions |
(1) | “ Access Person ” means any director, officer, employee or representative of HTAA who: |
● | has access to nonpublic information regarding any clients’ purchase or sale of securities, or nonpublic information regarding the portfolio holdings of any Reportable Fund; see Exhibit F hereto for list of Access Persons. |
● | is involved in making securities recommendations to clients, or who has access to recommendations that are nonpublic. |
(2) | “ Alternate Review Officer ” is any other person appointed by HTAA to review holdings and transaction reports or to perform other duties as may be required to assist the Chief Compliance Officer in fulfilling his or her obligations under this Code. |
(3) | “ Beneficial Ownership ” of a security is to be interpreted in the same manner as it is for purposes of Section 16 of the Securities Exchange Act of 1934 and Rule 16a-1(a)(2) thereunder. This means that a person will generally be considered to have “beneficial ownership” of any security in which he or she has direct or indirect pecuniary (monetary) interest. In addition, a person will be deemed to have “beneficial ownership” of securities held by his or her spouse, minor children, a relative who shares the same home, or other persons by reason of any contract, arrangement, understanding or relationship that provides him or her with sole or shared investment power. |
(4) | “Chief Compliance Officer ” means the person(s) appointed by HTAA to administer the provisions of this Code. Where this Code requires the Chief Compliance Officer (“CCO”) to act, he or she will consult with HTAA management or other personnel as may be appropriate under the circumstances. |
(5) | “ Control ” has the same meaning as that set forth in Section 2(a)(9) of the Investment Company Act of 1940. Section 2(a)(9) of the Investment Company Act of 1940 provides that “control” means the power to exercise a controlling influence over the management or policies of a company, unless that power is solely the result of an official position with the company. Ownership of 25% or more of a company’s outstanding voting securities is presumed to give the holder thereof control over the company; however, this presumption may be countered by the facts and circumstances of a given situation. |
(6) | “ Initial Public Offering ” means an offering of securities registered under the Securities Act of 1933, the issuer of which, immediately before the registration, was not subject to the reporting requirements of Sections 13 or 15(d) of the Securities Exchange Act of 1934. |
(7) | “ Limited Offering ” means an offering that is exempt from registration under the Securities Act of 1933 pursuant to Section 4(2), Section 4(6), Rule 504, Rule 505 or Rule 506 ( i.e. , a private placement). |
(8) | “ Material ” means that there is a substantial likelihood that a reasonable investor would consider the information important in deciding whether to buy or sell the securities in question or that a reasonable investor could view the information, if disclosed, as having significantly altered the “total mix” of information available. |
(9) | “ Material, Non-Public Information ” is any information: (i) about a company, or (ii) the market for the company’s securities, (iii) which has come directly or indirectly from the company or from an outsider to the company in a position to influence the market for the securities of the company, (iv) which has not been disclosed generally to the marketplace, (v) the dissemination of which is likely to affect the market price of any of the company’s securities or is likely to be considered important by a reasonable investor in determining whether to trade in such securities. An Access Person should consider material information to be non-public unless he or she can identify the manner in which the information has been made public; for example, it’s being announced on the broad tape, contained in a report filed with the SEC, or published in a trade journal or a widely circulated newspaper. |
(10) | “ Nonpublic ” means information that has not been made available to investors generally. In this respect, one must be able to point to some fact to show that the information is generally public. |
(11) | “ Purchase or sale of a Reportable Security ” includes, among other things, the writing of an option to purchase or sell a Reportable Security and any securities convertible into a Reportable Security. |
(12) | “ Reportable Fund ” means any registered fund for which HTAA or a HTAA affiliate (any entity controlling, controlled by, or under common control with HTAA) serves as investment adviser (as defined in Section 2(a)(20) of the Investment Company Act of 1940, as amended) or principal underwriter (i.e., HTAA name of Funds). |
(13) | “ Reportable Security ” has the same meaning as that set forth in Section 202(a)(18) of the Advisers Act, and includes stocks, bonds, investment contracts, profit-sharing agreements, transferable shares, options on securities, limited partnership interests, or in general any interest or instrument commonly known as a “security.” However, in the case of an interest in a limited partnership that invests in securities, the Reportable Security will be the interest in the limited partnership, and not the underlying securities in which the partnership invests, provided that the partnership receives investment advice based on its investment objectives rather than on the individual investment objectives of its limited partners. |
● | direct obligations of the government of the United States; |
● | bankers’ acceptances, bank certificates of deposit, commercial paper and high quality short-term debt instruments, including repurchase agreements; |
● | shares issued by money market funds; |
● | shares issued by registered open-end investment companies other than the HTAA ETF ; |
● | shares issued by unit investment trusts that are invested exclusively in one or more open-end funds, none of which are Reportable Funds; and |
● | any instrument that is not a security as defined in Section 202(a)(18) of the Advisers Act. These instruments include, but are not limited to: |
- | futures contracts; |
- | options on futures contracts; |
- | general partnership interests, provided generally that the general partnership interest entitles the owner to exercise management control over the partnership; and |
- | direct interests in real estate. |
C. | Restrictions on Personal Securities Transactions |
(1) | Prohibition against Fraud, Deceit and Manipulation. No Access Person will, in connection with his or her purchase or sale, directly or indirectly, of a Reportable Security: |
● | employ any device, scheme or artifice to defraud a client; |
● | make any untrue statement of a material fact to a client or omit to state a material fact necessary in order to make the statements made to a client, in light of the circumstances under which they are made, not misleading; |
● | engage in any act, practice or course of business that would operate as fraud or deceit on a client; or |
● | engage in any manipulative practice with respect to a client. |
(2) | Pre-Clearance of Initial Public Offerings and Certain Limited Offerings. No Access Person may directly or indirectly acquire beneficial ownership of any security in an Initial Public Offering or in Limited Offerings without prior approval and clearance from the Chief Compliance Officer or Alternative Review Officer. Clearance may be granted if the Chief Compliance Officer or Alternate Review Officer believes that, due to the nature of the investment, the possibility of conflicts is very unlikely to arise and the risk of abuse is minimal or non-existent. |
(3) | Pre-Clearance of Transactions in Securities, Other Than Exempt Securitie s. Access Persons may not buy or sell Reportable Securities, other than Exempt Securities, for any account in which he or she has any direct or indirect Beneficial Ownership, unless such person obtains, in advance of the transaction, clearance for that transaction from the Chief Compliance Officer. The general standards for granting or denying pre-clearance are discussed below, although the Chief Compliance Officer retains authority to grant pre-clearance in exceptional circumstances for good cause. |
a. |
When and how pre-clearance must be obtained
Access persons must obtain pre-clearance prior to acquiring or disposing of a direct or indirect Beneficial Ownership interest in any Security, other than Exempt Securities. In order to obtain pre-clearance, an Access Person must complete and submit to the Chief Compliance Officer a per-clearance form; a blank pre-clearance form is attached as Exhibit G hereto. If the transaction is approved by the Chief Compliance Officer, that approval is valid for the day on which it is granted and the immediately following business day. The Chief Compliance Officer may revoke a pre-clearance any time after it is granted and before the transaction is executed. |
b. |
When pre-clearance will be denied
Pre-clearance will be denied in instances when Adviser is reallocating or rebalancing a strategy and the Reportable Security at issue is included within that reallocation or rebalance. Additionally, pre-clearance may be denied for a Reportable Security contained within a Restricted or Watch List or during routine daily trading on individual accounts if, in the judgment of the Chief Compliance Officer, the level of client activity is sufficient to create the potential for market movement in that Reportable Security. The Chief Compliance Officer retains the right to deny pre-clearance for any reason whatsoever, without disclosure of the basis for the denial to the Access Person. |
|
(4) |
Blackout Period
No Access Person may buy or sell any Reportable Security during a period beginning 15 calendar days before and ending 15 calendar days after a rebalance or reconstitution of an index and related ETF. If an Access Person engages in such personal securities transaction in a Reportable Security during a blackout period, the Chief Compliance Officer may break the trade or, if the trade cannot be broken, the Chief Compliance Officer may direct that any profit realized on the trade be disgorged. |
(5) |
Restricted or Watch List
HTAA will maintain a Restricted or Watch list containing the names of Reportable Securities which are determined to be at risk for potential conflicts of interest. The contents of the Restricted or Watch List will be maintained by HTAA with the oversight of the CCO or his/her delegate. The basis for denials related to a Reportable Security’s presence on the Restricted or Watch Lists are not required to be disclosed to the Access Person seeking pre-clearance. |
(6) |
Index Changes Impacting the HTAA Fund
In circumstances when a specific Reportable Security is removed from an index, which does not coincide with a rebalance, and the affected HTAA Fund is forced to sell such Reportable Security, HTAA’s portfolio manager must notify the Chief Compliance Officer to determine if any Access Person has also transacted in such issuer. |
(7) |
Holding Reportable Securities
Access Persons are prohibited from disposing of Reportable Securities they hold within 30 days of being added the Restricted or Watch List. |
D. | Application of Pre-Clearance Requirement |
(1) | Special Considerations for Limited Offerings. In determining whether to approve a request for the purchase or sale of securities in a Limited Offering, the Chief Compliance Officer or Alternate Review Officer will consider, among other things, the following: |
● | Possibility of Future Impact on Clients . The Chief Compliance Officer or Alternate Review Officer will consider whether there is any reasonable likelihood that the company making the Limited Offering, or any companies it owns or controls, might in the foreseeable future make an Initial Public Offering of securities that might be appropriate investments for clients. Among other things, the Chief Compliance Officer or Alternate Review Officer will, as appropriate, consult with persons with the authority to make investment decisions for clients to determine whether, based on a reasonable judgment and the facts known at the time of the pre-clearance request, the securities would reasonably be expected to be appropriate investments for clients. |
● | Size of Investment . The Chief Compliance Officer or Alternate Review Officer will consider the size of the potential investment ( i.e. , the percent of outstanding securities of the issuing entity of which the Access Person will be deemed to have Beneficial Ownership). |
(2) | Discretion of Chief Compliance Officer. Notwithstanding the provisions of paragraph 1 of this section, the Chief Compliance Officer or Alternate Review Officer may refuse to grant clearance for any transaction if he or she deems the transaction to involve a conflict of interest, possible diversion of a corporate opportunity, or any appearance of impropriety. |
(3) | Pre-Clearance of the Chief Compliance Officer’s Personal Securities Transactions. The Chief Compliance Officer will clear his or her own personal securities transactions in advance through an Alternate Review Officer. |
(4) | Effectiveness of Pre-Clearance. Clearance is effective, unless earlier revoked, until the earlier of: (i) the close of business on the trading day that clearance was granted, or (ii) the time the Access Person learns that the information provided to the Chief Compliance Officer in the Access Person’s request for clearance is not accurate. The Chief Compliance Officer or the Alternate Review Officer may revoke clearance at any time. |
(1) | Gifts. All Access Persons are prohibited from receiving any gift or other thing of more than de minimus value (e.g. $300) from any person or entity that does business with or on behalf of any client of HTAA, or seeks to do business with or on behalf of a client. Gifts in excess of this value must either bet returned to the donor or paid for by the recipient. All gifts must be reported in writing to the Chief Compliance Officer no more than thirty (30) days after the end of each calendar quarter. The foregoing restrictions do not apply to customary and occasional (i) business meals, (ii) tickets to sports or cultural events, or (iii) business entertainment that is an incidental part of a meeting that has a clear business purpose. |
(2) | Service as Director of Publicly Traded Companies . HTAA employees are prohibited from serving on the boards of directors of publicly traded companies, absent prior authorization based upon the determination that such board service would not be inconsistent with the interests of any Client. |
(7) | Insider Trading--Prevention of Misuse of Material, Non-Public Information. In accordance with Section 204A of the Advisers Act the following procedures are adopted to prevent the misuse of Material, Non-Public Information. All employees (which term includes all Access Persons) are prohibited from, directly or indirectly, buying, selling or otherwise trading on Material, Non-Public Information for their personal accounts or on behalf of any Client. Neither will such person disclose such information to anyone other than legal counsel. The terms “buying,” “selling” and “otherwise trading” are deemed to include the purchase or writing of put and call options and other derivative transactions with similar economic effects. Except as otherwise provided in this Policy, in order to avoid the appearance of impropriety, the transaction restrictions set forth in this section are deemed to apply even if the proposed transaction would, in fact, be based upon information or circumstances independent of the Material, Non-Public Information. “ Material, Non-Public Information ” is any information: (i) about a company, or (ii) the market for the company’s securities, (iii) which has come directly or indirectly from the company or from an outsider to the company in a position to influence the market for the securities of the company, (iv) which has not been disclosed generally to the marketplace, (v) the dissemination of which is likely to affect the market price of any of the company’s securities or is likely to be considered important by a reasonable investor in determining whether to trade in such securities. An Access Person should consider material information to be non-public unless he or she can identify the manner in which the information has been made public; for example, it’s being announced on the broad tape, contained in a report filed with the SEC, or published in a trade journal or a widely circulated newspaper. “ Material Information ” is generally defined as information which there is a substantial likelihood that a reasonable investor would consider is important in making his or her investment decisions, or information which is reasonably certain to have an effect on the price of a company’s securities. All employees should assume that information is “material” if it relates to such matters as dividend increases or decreases, earnings estimates, significant expansion or curtailment of operations, significant increase or decline in orders for products of the company, significant merger or acquisition proposals or agreements, significant new products or discoveries, extraordinary management changes or the purchase or sale of substantial assets. Material information can, of course, come directly from the company or its affiliates, professional advisers or others associated with the company who may be considered “insiders” (“ inside information ”). However, it can also come from a complete outsider to the company who is in a position to affect the market price of the securities of the company. For example, in Carpenter v. U.S., 108 U.S. 316 (1987), the Supreme Court considered as material certain information about the contents of a forthcoming newspaper column that was expected to affect the market price of a security. In that case, a Wall Street Journal reporter was found criminally liable for disclosing to others the dates when reports on various companies would appear in the Wall Street Journal and whether those reports would be favorable or not. |
(8) | Dissemination of Information. All employees are prohibited from revealing information relating to current or anticipated investment intentions, portfolio transactions or activities of Clients except to persons whose responsibilities require knowledge of the information. |
(9) | Payments and Gifts to Government Officials. HTAA requires all of its employees to comply strictly with the U.S. Foreign Corrupt Practices Act (the “ FCPA ”) and applicable foreign (non-U.S.) anti-bribery laws regarding foreign officials in each jurisdiction in which we do business. Generally, these laws and regulations prohibit offering or giving anything of value, directly or indirectly, to officials of foreign governments, foreign political candidates, or their family members in order to obtain or retain business, to unduly influence an official action, or to gain an unfair advantage. These payments are illegal and expose HTAA and individuals personally to severe criminal, civil and regulatory penalties. “ Anything of value ” includes direct or indirect promises, payments, and offers of money or gifts to foreign officials whether in the form of profit, fee, charitable or political contribution, or in any other form. Paying for a foreign official’s travel expenses, meals and entertainment may also violate anti-bribery laws. Anti-bribery laws and regulations apply to all dealings that HTAA officers, employees, consultants, contractors, intermediaries, agents, and any other third-party representatives of the company have with foreign officials. The term “ foreign official ” includes any employee of a government or state-owned or state-controlled entity (even if the person or entity is performing what might be considered commercial functions) and may include political party officials. If there is any question as to what constitutes “anything of value” or to whether a person or entity is a foreign official, you must seek guidance from the compliance department or the general counsel department. In addition to its anti-bribery provisions, the FCPA prescribes extensive books, records and audit requirements. Please refer to HTAA’s Compliance Manual for further information crucial to the understanding of Political Contributions and its effects on HTAA’s business. Please see HTAA’s Compliance Manual for pre-clearance instructions and dollar amounts, a political contributions pre-clearance form is attached to the Code ( Exhibit H ). |
(10) | Outside Employment. HTAA discourages outside employment. Employees are not permitted to engage in any business activity or employment which interferes with their duties to HTAA, divides their loyalty, creates an actual or apparent conflict of interest, or exposes the employee or HTAA to possible criticism or adverse publicity. Employees must disclose all outside employment to HTAA’s senior management. Employees must obtain prior senior management approval of all outside employment, business activities, managing directorships, or fiduciary appointments. |
E. | Reporting Obligations |
(1) | Initial Holdings Report. Each Access Person must submit a list of all Reportable Securities for which he or she had any direct or indirect Beneficial Ownership, as well as a list of any broker, dealer or bank account in which any securities are held for the direct or indirect benefit of the Access Person, as of the date he or she first becomes subject to this Code’s reporting requirements. The Initial Holdings Report must be submitted to the Chief Compliance Officer or Alternate Review Officer within ten (10) days of the date the Access Person becomes subject to this Code’s reporting requirements. An Initial Holdings Report Form is attached hereto as Exhibit B. |
(2) | Annual Holdings Report. On an annual basis, each Access Person must submit to the Chief Compliance Officer or Alternate Review Officer a list of all Reportable Securities for which he or she has any direct or indirect Beneficial Ownership, as well as a list of any broker, dealer or bank account in which any securities are held for the direct or indirect benefit of the Access Person. The list of Reportable Securities and accounts contained in the Annual Holdings Report must be current as of a date no more than forty-five (45) days before the submission of the Annual Holdings Report. An Annual Holdings Report Form is attached hereto as Exhibit C. |
(3) | Quarterly Transaction Reports. |
(a) | On a quarterly basis, each Access Person must report any transaction during a quarter in a Reportable Security in which he or she has (or by virtue of the transaction acquires) any direct or indirect Beneficial Ownership, as well as any broker, dealer or bank account established during the quarter in which securities are held for his or her direct or indirect benefit. Each Access Person must submit the Quarterly Transaction Report to the Alternative Review Officer no later than thirty (30) days after the end of each calendar quarter. A Quarterly Transaction Report Form is included hereto as Exhibit A . |
(b) | In the event that no reportable transactions occurred during the quarter and no securities accounts were opened, the Access Person is still required to submit a Quarterly Transaction Report. The Access Person should note on the report that there were no reportable items during the quarter, and return it, signed and dated. |
(c) | As an alternative to listing security transactions on a Quarterly Transaction Report, an Access Person may arrange for the Chief Compliance Officer or Alternate Review Officer to receive duplicate copies of trade confirmations and periodic account statements directly from the broker-dealer. The trade confirmations and periodic account statements must contain all required information and the Quarterly Transaction Report must be received by the Chief Compliance Officer or Alternate Review Officer no later than thirty (30) days after the end of the calendar quarter. |
(4) | Exemptions from Reporting. An Access Person is not subject to the reporting requirements in (1), (2), and (3) above for purchases or sales effected for any account over which he or she does not have any direct or indirect influence or control. |
(5) | Alternate Review Officer. The Chief Compliance Officer will submit his or her own reports required by this section to an Alternate Review Officer for review. |
(6) | Disclaimer of Beneficial Ownership. Any report required by this section may contain a statement that the report will not be construed as an admission by the person making the report that he or she has any direct or indirect Beneficial Ownership in the Reportable Security to which the report relates. |
G. | Review and Enforcement |
(1) | The Chief Compliance Officer will notify each person who becomes an Access Person of the Adviser and who is required to report under this Code of their reporting requirements no later than ten (10) days before the first quarter in which the person is required to begin reporting. |
(2) | The Chief Compliance Officer or Alternate Review Officers will, on a quarterly basis, compare reported personal securities transactions with completed transactions of HTAA’s advisory clients during the period to determine whether a violation of this Code may have occurred. In determining whether a violation occurred, the Chief Compliance Officer or Alternate Review Officer will consult with appropriate HTAA personnel and they will consider the facts and circumstances surrounding the occurrence along with any explanation and discussion by interested and/or involved parties and their supervisors. |
(3) | If a violation is found to have occurred, the Chief Compliance Officer and appropriate HTAA personnel will impose, after consultation with outside counsel (as appropriate), corrective action as they deem appropriate under the circumstances. |
(4) | HTAA will impose sanctions that range from oral warnings for the first violation, to written warnings, consideration of Code violations in determining bonuses, suspension, and termination. |
H. | Records |
(1) | A copy of this Code and any other code of ethics adopted by HTAA that is, or at any time within the past five years has been, in effect (maintained in an easily accessible place). |
(2) | A record of any violation of this Code and of any action taken or sanction imposed as a result of any violation (maintained in an easily accessible place for a period of at least five years following the end of the fiscal year in which the violation occurs). |
(3) | A copy of each report submitted under this Code, including any information provided in lieu of any reports made under the Code (maintained for a period of at least five years from the end of the fiscal year in which it is made, the first two years in an easily accessible place). |
(4) | A record of all persons, currently or within the past five years, who are or were required to submit reports under this Code, and those persons who are or were responsible for reviewing the reports (maintained in an easily accessible place). |
(5) | A copy of all written acknowledgements as required by paragraph 3 of section I of this Code for each person who is currently, or within the past five years was, a supervised person of the Adviser. |
(6) | A record of any decision, and the reasons supporting the decision, to approve the acquisition of securities acquired in a Limited Offering (maintained for at least five years after the end of the fiscal year in which the approval is granted). |
I. | Miscellaneous |
(1) | Confidentiality. All reports of securities transactions and any other information filed with HTAA pursuant to this Code will be treated as confidential. However, we may disclose copies of reports and information to the Securities and Exchange Commission or as otherwise required by law. |
(2) | Interpretation of Provisions. HTAA may from time to time adopt interpretations of this Code as it deems appropriate. |
(3) | Distribution of Code, Acknowledgement of Receipt and Annual Certification of Compliance. All HTAA personnel will receive a copy of this Code and any amendments. Within 10 days of receiving any initial or amended copy of this Code, and each year thereafter, each person will sign and return the compliance certification attached hereto as Exhibit D or Exhibit E for annual acknowledgement. |
(4) | Reporting Violations. Any violation of this Code must be promptly reported to HTAA’s Chief Compliance Officer, an Alternate Review Officer, or other member of HTAA’s Compliance Department. |
Name of Reporting
|
Calendar Quarter
|
||||
Person:
|
Ended:
|
||||
Date Report Due:
|
Date Submitted:
|
Date of
Transaction |
Title of
Reportable Security and ticker or CUSIP |
No. of
Shares or Principal Amount |
Maturity Date and
Interest Rate (if applicable) |
Type of
Transaction (buy, sell or other - describe) |
Price
|
Name of Broker,
Dealer or Bank Effecting Transaction |
______
|
I had no transactions involving Reportable Securities during the preceding calendar quarter that were required to be reported.
|
______
|
I had transactions involving Reportable Securities during the preceding calendar quarter for non-HTAA accounts and I have either supplied all of the required information on this form or have arranged for the Chief Compliance Officer to receive duplicate copies of trade confirmations and periodic account statements that contain all of the information listed above.
|
______
|
I had transactions involving Reportable Securities during the preceding calendar quarter for HTAA accounts and the information listed above is located on the trading report, which will be attached to this form.
|
|
* The report or recording of any transaction noted above will not be construed as an admission that I have beneficial ownership of one or more of the Reportable Securities reported above.
|
Name of Broker, Dealer or Bank
|
Date Account was Established
|
Name(s) on and Type of Account
|
______
|
I did not establish a securities account during the preceding calendar quarter.
|
(Signature)
|
(Date)
|
Name of Reporting
|
Date Person Became
|
||||
Person:
|
Subject to the Code:
|
||||
Date Report Due:
|
Date Submitted:
|
||||
Information Provide
as of:
|
[
Note:
Date person became subject to Code and as of date should be the same.]
|
Title of Reportable
Security |
Ticker or CUSIP
|
Type of security
(Common, preferred, bond, etc.) |
No. of Shares or Principal
Amount |
______
|
I have no holdings in Reportable Securities to report.
|
______
|
I have holdings in Reportable Securities to report and I have either supplied all of the required information on this form or have attached a copy of my most recent account statement that contains all of the information listed above.
|
* The report or recording of any holding in Reportable Securities noted above will not be construed as an admission that I have beneficial ownership of one or more of the Reportable Securities reported above.
|
Name of Broker, Dealer or Bank
|
Name(s) on and Type of Account
|
______
|
I have no securities accounts to report.
|
(Signature)
|
(Date)
|
Name of Reporting
|
Calendar Year
|
||||
Person:
|
Ended:
|
||||
Date Report Due:
|
Date Submitted:
|
||||
Information Provided
as of:
|
[
Note
: Information should be current as of a date no more than 30 days before this report is submitted.]
|
Title of Reportable
Security |
Ticker or CUSIP
|
Type of security
(Common, preferred, bond, etc.) |
No. of Shares or Principal
Amount
|
______
|
I have no holdings in Reportable Securities to report for the year.
|
______
|
I have holdings in Reportable Securities in non-HTAA accounts to report and I have either supplied all of the required information on this form or have attached a copy of my most recent account statement that contains all of the information listed above.
|
______
|
I have holdings in Reportable Securities in HTAA accounts to report and the information listed above is located on the trading report, which will be attached to this form.
|
* The report or recording of any holdings in Reportable Securities noted above will not be construed as an admission that I have beneficial ownership of one or more of the Reportable Securities reported above.
|
Name of Broker, Dealer or Bank
|
Date Account Was
Established |
Name(s) on and Type of Account
|
______
|
I have no securities accounts to report for the year.
|
(Signature)
|
(Date)
|
* | have received, read and reviewed the Hull Tactical Asset Allocation, LLC Code of Ethics; |
* | understand the policies and procedures in the Hull Tactical Asset Allocation, LLC Code of Ethics; |
* | recognize that I am subject to these policies and procedures; |
* | understand the penalties for non-compliance; |
* | will fully comply with the Hull Tactical Asset Allocation, LLC Code of Ethics |
* | have fully and accurately completed this Certification. |
Signature:
|
Date
|
|||
Submitted:
|
||||
Name:
|
Due Date:
|
|||
(please print)
|
* | have received, read and reviewed the Hull Tactical Asset Allocation, LLC Code of Ethics; |
* | understand the policies and procedures in the Hull Tactical Asset Allocation, LLC Code of Ethics; |
* | recognize that I am subject to these policies and procedures; |
* | understand the penalties for non-compliance; |
* | have complied with the Hull Tactical Asset Allocation, LLC Code of Ethics and any applicable reporting requirements during this past year; |
* | have fully disclosed any exceptions to my compliance with the Hull Tactical Asset Allocation, LLC Code of Ethics below; |
* | will fully comply with the Hull Tactical Asset Allocation, LLC Code of Ethics |
* | have fully and accurately completed this Certification. |
Exceptions:
|
Signature:
|
Date
|
|||
Submitted:
|
||||
Name:
|
Due Date:
|
|||
(please print)
|
NAME
|
TITLE
|
DATE ACCESS
GRANTED |
Blair Hull
|
CEO
|
June 5, 2014
|
Brian von Dohlen
|
Portfolio Manager*
|
June 5, 2014
|
Sandy Adams
|
Administrator*
|
June 5, 2014
|
John Rizner
|
Senior Trading Strategist*
|
June 5, 2014
|
Robert Puckett
|
Administrator*
|
June 5, 2014
|
Jerome Pansera
|
Financial Engineer*
|
June 5, 2014
|
Tim Hicks
|
IT
|
June 5, 2014
|
Jason Ewasko
|
CCO
|
June 5, 2014
|
Ryan DelGiudice
|
Compliance
|
June 5, 2014
|
Hull Tactical Asset Allocation LLC
|
Request for Transaction Pre-Clearance Form
|
Ticker
|
Buy/Sell
|
Name of Security
|
Proposed
Transaction Date |
No. of
Shares |
Approved
|
Denied
|
By signing below, I hereby request approval to complete the transaction(s) contemplated above. I acknowledge and agree that clearance of a transaction is valid only for a 48 hour period. If the transaction if NOT placed within that 48 hour period, clearance of that transaction must be pre-requested.
|
Date: _________________
|
Signature: _____________________
|
Print Name: _______________________
|
Date Received: ___________________
|
Received by: ____________________
|
Date Approved: ___________________
|
Approved by: ____________________
|
Compliance Officer __________________
|
Date: ______________________
|
Hull Tactical Asset Allocation, LLC
|
Request for Political Contribution Pre-Clearance Form
|
Name of Candidate,
political party or PAC |
Public Office or
Position |
Jurisdiction
|
Contribution
Amount |
Proposed
Date of Contribution |
Signature
|
||||
Name
|
Date
|
*
|
HTAA asks you to disclose your political
contributions
solely to comply with State and Federal “pay-to-play” laws.
|
1. | DEFINITIONS |
1. | I hereby acknowledge that I have read and understand the Code of Ethics, Standards of Professional Conduct, Insider Trading Policy and Policy With Respect to Gifts, Entertainment and Political Contributions, and recognize that I am subject to them. |
2. | I hereby declare that I have complied with the requirements of the Code of Ethics, the Standards of Professional Conduct, the Insider Trading Policy and Policy With Respect to Gifts, Entertainment and Political Contributions. |
3. | I hereby declare that I have reported all personal securities transactions required to be reported pursuant to the requirements of the Code of Ethics and Insider Trading Policy. |
4. | I hereby declare that I have reported the names of each broker, dealer and/or bank where I have a securities account. |
5. | I hereby declare that, other than as disclosed in this Annual Compliance Certification, I have no knowledge of the existence of any personal conflict of interest that may involve Client accounts, such as any economic relationship between my personal securities transactions and securities held or to be acquired by Client accounts. |
6. | I hereby declare that I have reported all political contributions I have made pursuant to the requirements of the Policy With Respect to Gifts, Entertainment and Political Contributions. |
Signature:
|
|||||
Date:
|
|||||
Received by:
|
|||||
(Chief Compliance Officer)
|
|||||
Date:
|
Isl
|
|||
DATE:
|
1. | To employee any device, scheme or artifice to defraud; |
2. | To make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances in which they were made, not misleading; |
3. | To engage in any act, practice or course of business that operates or would operate as a fraud or deceit; or |
4. | To engage in any manipulative practice. |
1. | Who is subject to the Code? |
1.1. | Covered Persons. For the purposes of this Code, Covered Person is defined as: |
1.1.1. | Each employee, officer, partner or member (as applicable) of the Adviser: |
1.1.2. | Each natural person in a control 1 relationship to the Adviser who obtains information concerning recommendations made by the Adviser with regard to the purchase or sale of securities covered by this Code. |
2. | What Types of lnvestments are subject to the Code? |
3. | What Types of Investments are not subject to the Code. |
1
|
Control means the power to exercise a controlling influence over the management or policies of the Adviser, unless such power is solely the result of an official position with the Adviser.
|
4. | What Types of Accounts are subject to the Code? |
4.1. | Covered Accounts |
4.2. | Joint Accounts |
5. | What are the Restrictions on Trading? |
5.1. | Pre-clearance Requirements |
5.2. | Lockout Period |
6. | Reporting and Certification Requirements |
6.1 . | Initial Holdings Report and Certification |
2
|
Beneficial interest in an account includes any direct or indirect financial interest in an account.
|
3
|
Immediate family includes your spouse, children and/or stepchildren and other relatives who live with you if you contribute to their financial support.
|
4
|
Covered Accounts also include accounts for which a Covered Person has power of attorney, serves as executor, trustee or custodian, and corporate or investment club accounts.
|
6.2. | Ongoing Reporting Regarding Covered Accounts |
6.3. | Quarterly Transactions Report for Covered Persons (other than Independent Trustees or Non-Adviser Trustees) |
6.4. | INTENTIONALL OMITTED |
6.5. | Annual Certification for Covered Persons |
7. | INTENTIONALLY OMITTED |
8. | Administration and Enforcement |
8.1 . | Determination of Persons covered by Code |
8.2. | Review of Personal Trading Information |
8.3. | Annual Review/Report |
8.4. | Reporting Violations |
8.5. | Sanctions and Remedies |
8.6. | Exemption Procedures |
8.7.1 | A copy of this Code and any other code of ethics that is, or at anytime within the past five years was in effect, must be maintained in an easily accessible place. |
8.7.2 | A record of any violation of this Code, and of any action taken as a result of the violation, must be maintained in an easily accessible place for at least five years after the end of the fiscal year in which the violation occurs. |
8.7.3 | A record of all written acknowledgments pursuant to Section 8.1 of this Code for each person who is currently, or within the past five years was, a supervised person of the Adviser . |
8.7.4 | A copy of each report made pursuant to this Code by an Access Person, including any information provided in lieu of the reports, must be maintained for at least five years after the end of the fiscal year in which the report is made or the information is provided, the first two years in an easily accessible place. |
8.7.5 | A record of all persons, currently or within the past five years, who are or were required to make reports pursuant to this Code, or who are or were responsible for reviewing these reports, must be maintained in an easily accessible place. |
8.7.6 | A copy of each report required by Section 8.3 of this Code must be maintained for at least five years after the end of the fiscal year in which it is made, the first two years in an easily accessible place. |
8.7.7 | A record of any decision, and the reasons supporting the decision, to approve the acquisition by investment personnel of securities under Section 5.1 of this Code, for at least five years after the end of the fiscal year in which the approval is granted. |
FROM:
|
||
DATE:
|
1.Name of Issuer and Ticker Symbol:
|
||||
2. Purchase or Sale:
|
Name:
|
||||
(Please Print)
|
||||
Signature:
|
||||
Date:
|
2. Nature of investment:
|
5. Was this investment offered to you due to your affiliation with the Adviser or the Trust?
|
Name:
|
||||
(Please Print)
|
||||
Signature:
|
||||
Date:
|
Signed
|
Dated
|
||
Name
|
Name and address of Financial
Institution
(broker-dealer, bank, ESOP, 401
(k)
plan sponsors, etc.)
|
Account Name
(indicate
if
any of the accounts are individually or jointly held)
|
Account Type
(a,b,c,d)
|
Account Number
|
Security (Include full name of issuer) and exchange ticker symbol (or Cussip Number)
|
#
of Shares and Principal Amount
|
Signature: __________________
|
Print Name: ________________
|
Date: ______________
|
Date of
Transactions
|
Security and
exchange
ticker symbol
(or Cussip
Number)
|
Nature of
Transaction
(e.g.,
Purchase
or Sale)
|
Number of
Shares and
Principal
Amount
|
Price at
which
transaction
was
effected
|
Name of
broker/dealer
effecting
transaction
|
Signature: _______________
|
Print Name: _______________
|
Date __________
|