|
|
|
|
|
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
|
|
|
|
|
|
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
|
|
|
[ ]
|
Immediately upon filing pursuant to paragraph (b) of Rule 485
|
|
[ ]
|
On (date) pursuant to paragraph (b) of Rule 485
|
|
[X]
|
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
|
Index/Trademark License/Disclaimers
|
8
|
Additional Principal Risk Information
|
9
|
Additional Investment Strategies
|
14
|
Additional Risks
|
14
|
Portfolio Holdings
|
15
|
Information Regarding the Index
|
15
|
Fund Management
|
16
|
Portfolio Manager
|
17
|
Buying and Selling Fund Shares
|
17
|
Other Considerations
|
18
|
Dividends, Distributions and Taxes
|
19
|
Additional Information
|
22
|
Financial Highlights
|
24
|
How to Obtain More Information About the Fund
|
Back Cover
|
Fund Summary
|
Annual Fund Operating Expenses
(expenses that you pay each year as a percentage of the value of your investment)
|
|
Management Fee
|
0.95%
|
Distribution and Service (12b-1) Fees
|
0.00%
|
Other Expenses
|
[____]%
|
Total Annual Fund Operating Expenses
|
[____]%
|
1 Year
|
3 Years
|
5 Years
|
10 Years
|
$[___]
|
$[___]
|
$[___]
|
$[___]
|
Return
|
Quarter/Year
|
|
Highest Return
|
[____]%
|
XX/XX/XX
|
Lowest Return
|
-[____]%
|
XX/XX/XX
|
*
|
The performance information shown above is based on a calendar year. The Fund’s year-to-date return as of the most recent calendar quarter ended June 30, 2015 was [ ]%.
|
ROBO-STOX
TM
Global Robotics and Automation Index ETF
|
1 Year
|
Since Inception
(10-21-2013) |
Return Before Taxes
|
[____]%
|
[____]%
|
Return After Taxes on Distributions
|
[____]%
|
[____]%
|
Return After Taxes on Distributions and Sale of Fund Shares
|
[____]%
|
[____]%
|
ROBO-STOX
TM
Global Robotics and Automation Index
|
[____]%
|
[____]%
|
·
|
The Fund will distribute for each year substantially all of its net investment income and net capital gains income.
|
·
|
Dividends and distributions are generally taxable to you whether you receive them in cash or reinvest them in additional Shares.
|
·
|
The income dividends you receive from the Fund will be taxed as either ordinary income or “qualified dividend income.” 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 the Fund 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 the Fund 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. For such dividends to be taxed as qualified dividend income to a non-corporate shareholder, the Fund must satisfy certain holding period requirements with respect to the underlying stock and the non-corporate shareholder must satisfy holding period requirements with respect to his or her ownership of the Fund’s Shares. Holding periods may be suspended for these purposes for stock that is hedged.
|
·
|
Distributions from the Fund’s short-term capital gains are generally taxable as ordinary income. Distributions from 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).
|
·
|
All other Fund distributions are generally taxable as ordinary income.
|
·
|
U.S. individuals with income exceeding specified 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 certain capital gain distributions and 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 Fund 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.
|
2014
‡
|
|
Net Asset Value, Beginning of Period
|
$25.00
|
Net Investment Income*
|
—**
|
Net Realized and Unrealized Gain on Investments
|
$0.96†
|
Total from Operations
|
$0.96
|
Distributions from Investment Income
|
—
|
Distributions from Net Realized Capital Gains
|
—
|
Total Distributions
|
—
|
Net Asset Value, End of Period
|
$25.96
|
Total Return
(1)
|
3.84%
|
Net Assets End of Period (000)
|
$105,150
|
Ratio of Expenses to Average Net Assets
|
0.95%
(2)
|
Ratio of Net Investment Income to Average Net Assets
|
0.02%
(2)
|
Portfolio Turnover
(3)
|
8%
|
‡
|
Commenced operations on October 21, 2013.
|
*
|
Per share data calculated using average shares method.
|
**
|
Amount represents less than $0.01.
|
†
|
Realized and unrealized gains and losses per share in this caption are balancing amounts necessary to reconcile the change in net asset value per share for the period, and may not reconcile with the aggregate gains and losses in the Statement of Operations due to share transactions for the period.
|
(1)
|
Total return is based on the change in net asset value of a share during the year or period and assumes reinvestment of dividends and distributions at net asset value. Total return is for the period indicated and has not been annualized. The return shown does not reflect the deduction of taxes that a shareholder would pay on Fund distributions or redemption of Fund shares.
|
(2)
|
Annualized.
|
(3)
|
Portfolio turnover rate is for the period indicated and periods of less than one year have not been annualized. Excludes effect of securities received or delivered from processing creations or redemptions.
|
Call:
|
1-855-456-ROBO
|
|
Monday through Friday |
|
8:30 a.m. to 6:30 p.m. (Eastern Time) |
Write: | Exchange Traded Concepts Trust |
10900 Hefner Pointe Drive, Suite 207 | |
Oklahoma City, Oklahoma 73120 | |
Visit:
|
www.robostoxetfs.com |
Page
|
|
Fund Summary
|
1
|
Index/Trademark License/Disclaimers
|
6
|
Additional Principal Risk Information
|
10
|
Additional Investment Strategies
|
13
|
Additional Risks
|
13
|
Information Regarding the Index
|
14
|
Portfolio Holdings
|
15
|
Fund Management
|
15
|
Portfolio Manager
|
16
|
Buying and Selling Fund Shares
|
16
|
Other Considerations
|
17
|
Dividends, Distributions and Taxes
|
18
|
Additional Information
|
21
|
Financial Highlights
|
23
|
How to Obtain More Information About the Fund
|
BACK COVER
|
Fund Summary
|
Annual Fund Operating Expenses
(expenses that you pay each year as a percentage of the value of your investment)
|
|
Management Fee
|
0.65%
|
Distribution and Service (12b-1) Fees
|
None
|
Other Expenses
|
[__]%
|
Total Annual Fund Operating Expenses
|
[__]%
|
1 Year
|
3 Years
|
5 Years
|
10 Years
|
$[__]
|
$[__]
|
$[__]
|
$[__]
|
Return
|
Quarter/Year
|
|
Highest Return
|
[____]%
|
XX/XX/XX
|
Lowest Return
|
-[____]%
|
XX/XX/XX
|
*
|
The performance information shown above is based on a calendar year. The Fund’s year-to-date return as of the most recent calendar quarter ended June 30, 2015 was [ ]%.
|
Janus Equal Risk Weighted Large Cap ETF
|
1 Year
|
Since Inception
(7-29-2013) |
Return Before Taxes
|
[____]%
|
[____]%
|
Return After Taxes on Distributions
|
[____]%
|
[____]%
|
Return After Taxes on Distributions and Sale of Fund Shares
|
[____]%
|
[____]%
|
Janus Equal Risk Weighted Large Cap Index
|
[____]%
|
[____]%
|
·
|
The Fund will distribute substantially all of its net investment income, quarterly, and net capital gains income, annually.
|
·
|
Dividends and distributions are generally taxable to you whether you receive them in cash or reinvest them in additional Shares.
|
·
|
The income dividends you receive from the Fund will be taxed as either ordinary income or “qualified dividend income.” 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 tax rates apply to individuals in lower tax brackets). Qualified dividend income generally is income derived from dividends paid to the Fund 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 the Fund 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. For such dividends to be taxed as qualified dividend income to a non-corporate shareholder, the Fund must satisfy certain holding period requirements with respect to the underlying stock and the non-corporate shareholder must satisfy holding period requirements with respect to his or her ownership of the Fund’s Shares. Holding periods may be suspended for these purposes for stock that is hedged.
|
·
|
Distributions from the Fund’s short-term capital gains are generally taxable as ordinary income. Distributions from 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).
|
·
|
All other Fund distributions are generally taxable as ordinary income.
|
·
|
U.S. individuals with income specified thresholds are subject to a 3.8% Medicare contribution tax on all or a portion of their “net investment income,” including interest, dividends, and certain capital gains (including certain capital gains distributions and 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 Fund 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.
|
2014 ‡ | |
Net Asset Value, Beginning of Period
|
$50.00
|
Net Investment Income*
|
$0.49
|
Net Realized and Unrealized Gain on Investments
|
$5.02
|
Total from Operations
|
$5.51
|
Distributions from Net Investment Income
|
$(0.40)
|
Distributions from Capital Gains
|
$(0.19)
|
Total from Distributions
|
$(0.59)
|
Net Asset Value, End of Period
|
$54.92
|
Total Return
(1)
|
11.07%
|
Net Assets End of Period (000)
|
$10,985
|
Ratio of Expenses to Average Net Assets
|
0.65%
(2)
|
Ratio of Net Investment Income to Average Net Assets
|
1.23%
(2)
|
Portfolio Turnover
|
139%
(3)
|
‡
|
Commenced operations July 29, 2013.
|
*
|
Per share data calculated using average shares method.
|
(1)
|
Total return is based on the change in net asset value of a share during the year or period and assumes reinvestment of dividends and distributions at net asset value. Total return is for the period indicated and has not been annualized. The return shown does not reflect the deduction of taxes that a shareholder would pay on Fund distributions or redemption of Fund shares.
|
(2)
|
Annualized.
|
(3)
|
Portfolio turnover rate is for the period indicated and periods of less than one year have not been annualized. Excludes effect of securities received or delivered from processing creations or redemptions.
|
Call:
|
1-877-583-5624
|
|
Monday through Friday |
|
8:30 a.m. to 6:30 p.m. (Eastern Time) |
Write: | Exchange Traded Concepts Trust |
10900 Hefner Pointe Drive, Suite 207 | |
Oklahoma City, Oklahoma 73120 | |
Visit:
|
[www.janus.com/advisor/exchange-traded-funds/janus-equal-risk-weighted-large-cap-etf.com] |
GENERAL INFORMATION ABOUT THE TRUST
|
1
|
ADDITIONAL INFORMATION ABOUT INVESTMENT OBJECTIVES, POLICIES AND RELATED RISKS
|
1
|
SPECIAL CONSIDERATIONS AND RISKS
|
10
|
INVESTMENT RESTRICTIONS
|
10
|
EXCHANGE LISTING AND TRADING
|
12
|
MANAGEMENT OF THE TRUST
|
13
|
CODES OF ETHICS
|
19
|
PROXY VOTING
|
19
|
INVESTMENT ADVISORY AND OTHER SERVICES
|
19
|
THE PORTFOLIO MANAGER
|
20
|
THE DISTRIBUTOR
|
21
|
THE ADMINISTRATOR
|
22
|
THE CUSTODIAN
|
23
|
THE TRANSFER AGENT
|
23
|
LEGAL COUNSEL
|
23
|
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
23
|
PORTFOLIO HOLDINGS DISCLOSURE POLICIES AND PROCEDURES
|
23
|
DESCRIPTION OF SHARES
|
23
|
LIMITATION OF TRUSTEES’ LIABILITY
|
24
|
BROKERAGE TRANSACTIONS
|
24
|
PORTFOLIO TURNOVER RATE
|
26
|
BOOK ENTRY ONLY SYSTEM
|
26
|
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES
|
27
|
PURCHASE AND ISSUANCE OF SHARES IN CREATION UNITS
|
27
|
DETERMINATION OF NET ASSET VALUE
|
34
|
DIVIDENDS AND DISTRIBUTIONS
|
34
|
FEDERAL INCOME TAXES
|
35
|
FINANCIAL STATEMENTS
|
42
|
EXHIBIT A - PROXY VOTING POLICY AND PROCEDURES
|
A-1
|
§ | Factors that directly relate to that company, such as decisions made by its management or lower demand for the company’s products or services; |
§ | Factors affecting an entire industry, such as increases in production costs; and |
§ | Changes in general financial market conditions that are relatively unrelated to the company or its industry, such as changes in interest rates, currency exchange rates or inflation rates. |
· | 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 the Fund’s Shares. |
1. | Concentrate its investments in an industry or group of industries (i.e., hold 25% or more of its total assets in the securities of companies in a particular industry or group of industries), except that the Fund will concentrate to approximately the same extent that its underlying index concentrates in the securities of companies in such particular industry or group of industries. For purposes of this limitation, securities of the U.S. government (including its agencies and instrumentalities), repurchase agreements collateralized by U.S. government securities and securities of state or municipal governments and their political subdivisions are not considered to be issued by members of any industry. |
2. | Borrow money or issue senior securities (as defined under the 1940 Act), except to the extent permitted under the 1940 Act, the rules and regulations thereunder or any exemption therefrom, as such statute, rules or regulations may be amended or interpreted from time to time. |
3. | Make loans, except to the extent permitted under the 1940 Act, the rules and regulations thereunder or any exemption therefrom, as such statute, rules or regulations may be amended or interpreted from time to time. |
4. | Purchase or sell commodities or real estate, except to the extent permitted under the 1940 Act, the rules and regulations thereunder or any exemption therefrom, as such statute, rules or regulations may be amended or interpreted from time to time. |
5. | Underwrite securities issued by other persons, except to the extent permitted under the 1940 Act, the rules and regulations thereunder or any exemption therefrom, as such statute, rules or regulations may be amended or interpreted from time to time. |
1. | The Fund will not hold illiquid assets in excess of 15% of its net assets. An illiquid asset is any asset which may not be sold or disposed of in the ordinary course of business within seven days at approximately the value at which the Fund has valued the investment. |
2. | The Fund will not invest less than 80% of its total assets in securities that comprise its underlying index. |
3. | 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 Robotics and Automation Companies. |
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 2 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 Listed Funds Trust, 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 Listed Funds Trust (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.
|
8
|
Exchange Listed Funds Trust (1) — Trustee
|
Kurt Wolfgruber
(63 years old)
|
Trustee
|
Since 2012
|
Amherst Asset Management, 2010 to present — Independent Advisor.
|
9
|
New Mountain Finance Corp. — Director; Exchange Listed Funds Trust (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.
|
2 | The Fund Complex includes each series of the Trust and Exchange Listed Funds Trust. |
Name and Age
|
Position(s)
Held with
the Trust
|
Term of Office
and Length of Time Served |
Principal Occupation(s)
During 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 Listed Funds Trust, 2012 to present — President.
|
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.
|
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.
|
Eric Kleinschmidt
(46 years old)
|
Assistant Treasurer
|
Since 2013
|
Director, Fund Accounting, SEI Investments Global Funds Services, 2004 to present.
|
LuAnne Garvey
(XX years old)
|
Chief Compliance Officer
|
Since 2015
|
[INSERT BIOGRAPHICAL INFORMATION FOR PAST FIVE YEARS]
|
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.
|
Name
|
Aggregate
Compensation
|
Pension or
Retirement Benefits Accrued as Part of Fund Expenses |
Estimated
Annual Benefits Upon Retirement |
Total Compensation from the
Trust and Fund Complex 1,2 |
Interested Trustee
|
||||
Stevens
|
$0
|
n/a
|
n/a
|
$0 for service on (1) board
|
Independent Trustees
|
||||
Jacoby
|
$[ ]
|
n/a
|
n/a
|
$[ ] for service on (3) boards
3
|
Wolfgruber
|
$[ ]
|
n/a
|
n/a
|
$[ ] for service on (3) boards
3
|
Mahle
|
$[ ]
|
n/a
|
n/a
|
$[ ] for service on (3) boards
3
|
Zurack
|
$[ ]
|
n/a
|
n/a
|
$[ ] for service on (2) boards
|
1 | Aggregate Compensation is allocated equally between the Trust and Source ETF Trust in the Fund Complex. |
2 | As compensation for service on the Trust’s Board and Source ETF Trust Board of Trustees, 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 Trustees of Exchange Listed Funds Trust in the Fund Complex. |
Registered
Investment Companies
*
|
Other Pooled
Investment Vehicles
*
|
Other Accounts
*
|
||||
Name
|
Number
of Accounts
|
Total Assets
(in millions)
|
Number of
Accounts |
Total Assets
|
Number of
Accounts |
Total Assets
(in millions)
|
Denise M. Krisko
|
7
|
$1,812
|
None
|
None
|
None
|
None
|
*
|
Information provided is as of June 15, 2015. None of the accounts managed by Ms. Krisko are subject to performance based advisory fees.
|
Participant Name and Address
|
Percentage of Ownership
|
[XXX]
|
[XX]%
|
[XXX]
|
[XX]%
|
[XXX]
|
[XX]%
|
[XXX]
|
[XX]%
|
[XXX]
|
[XX]%
|
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. |
GENERAL INFORMATION ABOUT THE TRUST
|
1
|
ADDITIONAL INFORMATION ABOUT INVESTMENT OBJECTIVES, POLICIES AND RELATED RISKS
|
1
|
SPECIAL CONSIDERATIONS AND RISKS
|
8
|
INVESTMENT RESTRICTIONS
|
9
|
EXCHANGE LISTING AND TRADING
|
11
|
MANAGEMENT OF THE TRUST
|
11
|
OWNERSHIP OF FUND SHARES
|
19
|
CODES OF ETHICS
|
19
|
PROXY VOTING
|
20
|
INVESTMENT ADVISORY AND OTHER SERVICES
|
20
|
THE PORTFOLIO MANAGER
|
21
|
THE DISTRIBUTOR
|
22
|
THE ADMINISTRATOR
|
24
|
THE CUSTODIAN
|
24
|
THE TRANSFER AGENT
|
24
|
LEGAL COUNSEL
|
24
|
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
25
|
PORTFOLIO HOLDINGS DISCLOSURE POLICIES AND PROCEDURES
|
25
|
DESCRIPTION OF SHARES
|
25
|
LIMITATION OF TRUSTEES’ LIABILITY
|
26
|
BROKERAGE TRANSACTIONS
|
26
|
PORTFOLIO TURNOVER RATE
|
28
|
BOOK ENTRY ONLY SYSTEM
|
28
|
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES
|
29
|
PURCHASE AND ISSUANCE OF SHARES IN CREATION UNITS
|
30
|
DETERMINATION OF NET ASSET VALUE
|
37
|
DIVIDENDS AND DISTRIBUTIONS
|
38
|
FEDERAL INCOME TAXES
|
38
|
FINANCIAL STATEMENTS
|
45
|
EXHIBIT A - PROXY VOTING POLICY AND PROCEDURES
|
A-1
|
§ | Factors that directly relate to that company, such as decisions made by its management or lower demand for the company’s products or services; |
§ | Factors affecting an entire industry, such as increases in production costs; and |
§ | Changes in general financial market conditions that are relatively unrelated to the company or its industry, such as changes in interest rates, currency exchange rates or inflation rates. |
· | 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 the Fund’s Shares. |
1. | Purchase securities of any issuer (except securities of other investment companies, securities issued or guaranteed by the U.S. government, its agencies or instrumentalities and repurchase agreements involving such securities) if, as a result, (i) more than 5% of the total assets of the Fund would be invested in the securities of such issuer; or (ii) acquire more than 10% of the outstanding voting securities of any one issuer. This restriction applies to 75% of the Fund’s assets. |
2. | Concentrate its investments in an industry or group of industries ( i.e ., hold 25% or more of its total assets in the securities of companies in a particular industry or group of industries), except that the Fund will concentrate to approximately the same extent that its underlying Index concentrates in the securities of companies in such particular industry or group of industries. For purposes of this limitation, securities of the U.S. government (including its agencies and instrumentalities), repurchase agreements collateralized by U.S. government securities and securities of state or municipal governments and their political subdivisions are not considered to be issued by members of any industry. |
3. | Borrow money or issue senior securities (as defined under the 1940 Act), except to the extent permitted under the 1940 Act, the rules and regulations thereunder or any exemption therefrom, as such statute, rules or regulations may be amended or interpreted from time to time. |
4. | Make loans, except to the extent permitted under the 1940 Act, the rules and regulations thereunder or any exemption therefrom, as such statute, rules or regulations may be amended or interpreted from time to time. |
5. | Purchase or sell commodities or real estate, except to the extent permitted under the 1940 Act, the rules and regulations thereunder or any exemption therefrom, as such statute, rules or regulations may be amended or interpreted from time to time. |
6. | Underwrite securities issued by other persons, except to the extent permitted under the 1940 Act, the rules and regulations thereunder or any exemption therefrom, as such statute, rules or regulations may be amended or interpreted from time to time. |
1. | The Fund will not hold illiquid assets in excess of 15% of its net assets. An illiquid asset is any asset which may not be sold or disposed of in the ordinary course of business within seven days at approximately the value at which the Fund has valued the investment. |
2. | The Fund will not invest less than 80% of its total assets in securities that comprise its underlying index. |
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 2 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 Listed Funds Trust, 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 Listed Funds Trust (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.
|
8
|
Exchange Listed Funds Trust (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 2 Overseen By Trustee |
Other
Directorships held by Trustee |
Kurt Wolfgruber
(63 years old)
|
Trustee
|
Since 2012
|
Amherst Asset Management, 2010 to present — Independent Advisor.
|
9
|
New Mountain Finance Corp. — Director; Exchange Listed Funds Trust (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.
|
2
|
The Fund Complex includes each series of the Trust and Exchange Listed Funds Trust.
|
Name and Age
|
Position(s)
Held with
the Trust
|
Term of
Office and Length of Time Served |
Principal Occupation(s)
During 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 Listed Funds Trust, 2012 to present — President.
|
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.
|
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.
|
Eric Kleinschmidt
(46 years old)
|
Assistant Treasurer
|
Since 2013
|
Director, Fund Accounting, SEI Investments Global Funds Services, 2004 to present.
|
LuAnne Garvey
(XX years old)
|
Chief Compliance Officer
|
Since 2015
|
[INSERT BIOGRAPHICAL INFORMATION FOR PAST FIVE YEARS]
|
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.
|
· | Board Compensation. The following table sets forth the fees paid to the Trustees for the fiscal year ended April 30, 2015. Independent Trustee fees are paid from the unitary fee paid to the Adviser by the Fund. Trustee compensation does not include reimbursed out-of-pocket expenses in connection with attendance at meetings. |
Name
|
Aggregate
Compensation
|
Pension or
Retirement Benefits Accrued as Part of Fund Expenses |
Estimated
Annual Benefits Upon Retirement |
Total Compensation from the Trust
and Fund Complex 1,2 |
Interested Trustee
|
||||
Stevens
|
$0
|
n/a
|
n/a
|
$0 for service on (1) board
|
Independent Trustees
|
||||
Jacoby
|
$[__]
|
n/a
|
n/a
|
$[__] for service on (3) boards
3
|
Wolfgruber
|
$[__]
|
n/a
|
n/a
|
$[__] for service on (3) boards
3
|
Mahle
|
$[__]
|
n/a
|
n/a
|
$[__] for service on (3) boards
3
|
Zurack
|
$[__]
|
n/a
|
n/a
|
$[__] for service on (2) boards
|
1 | Aggregate Compensation is allocated equally between the Trust and Source ETF Trust in the Fund Complex. |
2 | As compensation for service on the Trust’s Board and Source ETF Trust Board of Trustees, 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 Trustees of Exchange Listed Funds Trust in the Fund Complex. |
Registered Investment
Companies * |
Other Pooled Investment
Vehicles * |
Other Accounts
*
|
||||
Name
|
Number of
Accounts |
Total Assets
(in
millions)
|
Number of
Accounts |
Total Assets
|
Number of
Accounts |
Total Assets
(in
millions)
|
Denise M. Krisko
|
7
|
$1,935
|
None
|
None
|
None
|
None
|
*
|
Information provided is as of June 15, 2015. None of the accounts managed by Ms. Krisko are subject to performance based advisory fees.
|
Participant Name and Address
|
Percentage of Ownership
|
[XXX]
|
[XX]%
|
[XXX]
|
[XX]%
|
[XXX]
|
[XX]%
|
[XXX]
|
[XX]%
|
[XXX]
|
[XX]%
|
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: |
○ | Management proposals for approval of stock repurchase programs, stock splits (including reverse splits) |
○ | Authorization to increase shares outstanding |
○ | The ability of shareholders to vote on shareholder rights plans (poison pills) |
○ | Shareholder rights to eliminate or remove supermajority provisions |
○ | 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: |
○ | 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 |
○ | Amendments to bylaws which would require super-majority shareholder votes to pass or repeal certain provisions |
○ | Elimination of shareholders’ right to call special meetings |
○ | Establishment of classified boards of directors |
○ | Reincorporation in a state which has more stringent anti-takeover and related provisions |
○ | Shareholder rights plans that allow the board of directors to block appropriate offers to shareholders or which trigger provisions preventing legitimate offers from proceeding |
○ | Excessive compensation |
○ | 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 |
○ | Adjournment of meeting to solicit additional votes |
○ | “Other business as properly comes before the meeting” proposals which extend “blank check” powers to those acting as proxy |
○ | 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) | Advisory Agreement dated May 26, 2015 between the Registrant and Exchange Traded Concepts, LLC is filed herewith. |
(d)(2) | 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)(3) | 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)(4) | 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)(5) | 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, ROBO-STOX TM Global Robotics and Automation Index ETF, Janus Equal Risk Weighted Large Cap ETF and YieldShares High Income ETF, is incorporated herein by reference to Exhibit (d)(6) of Post-Effective Amendment No. 128 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. 0001398344-15-003642 on June 1, 2015. |
(d)(6) | 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)(7) | 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, Yorkville High Income Infrastructure MLP ETF and The EMQQ The Emerging Markets Internet & Ecommerce ETF, is filed herewith. |
(d)(8) | 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 incorporated herein by reference to Exhibit (g)(4) of Post-Effective Amendment No. 128 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. 0001398344-15-003642 on June 1, 2015. |
(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) | 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 incorporated herein by reference to Exhibit (h)(18) of Post-Effective Amendment No. 128 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. 0001398344-15-003642 on June 1, 2015. |
(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 incorporated herein by reference to Exhibit (i)(6) of Post-Effective Amendment No. 128 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. 0001398344-15-003642 on June 1, 2015. |
(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) | Consent of independent registered public accountants, Cohen Fund Audit Services, Ltd., to be filed by amendment. |
(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 incorporated herein by reference to Exhibit (m)(2) of Post-Effective Amendment No. 128 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. 0001398344-15-003642 on June 1, 2015. |
(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 incorporated herein by reference to Exhibit (p)(5) of Post-Effective Amendment No. 128 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. 0001398344-15-003642 on June 1, 2015. |
(p)(6) | Code of Ethics of Vident Investment Advisory, LLC is incorporated herein by reference to Exhibit (p)(6) of Post-Effective Amendment No. 128 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. 0001398344-15-003642 on June 1, 2015. |
(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
Chief Executive Officer
|
T.S. Phillips Investments, Inc.
|
Vice President
|
Phillips Capital Advisors, Inc.
|
Vice President
|
|
James J. Baker, Jr. Member
|
Yorkville ETF Advisors, LLC
|
Managing Partner
|
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. |
Name
|
Position and Office
with Underwriter |
Positions and Offices
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 29, 2015
|
|
David M. Mahle
|
|
|
|
|
|
|
|
|
|
*
|
|
Trustee
|
June 29, 2015
|
|
Kurt Wolfgruber
|
|
|
|
|
|
|
|
|
|
*
|
|
Trustee
|
June 29, 2015
|
|
Mark A. Zurack
|
|
|
||
*
|
Trustee
|
June 29, 2015
|
||
Timothy J. Jacoby
|
|
|||
/s/ J. Garrett Stevens
|
|
Trustee and President
|
June 29, 2015
|
|
J. Garrett Stevens
|
|
|
|
|
|
|
|
|
|
*
|
|
Secretary
|
June 29, 2015
|
|
Richard Hogan
|
||||
*
|
Treasurer
|
June 29, 2015
|
||
Jay Baker
|
*
|
/s/ J. Garrett Stevens
|
|
||
J. Garrett Stevens
|
|
|
Exhibit Number
|
Exhibit Name
|
(d)(1) | Advisory Agreement dated May 26, 2015 between the Registrant and Exchange Traded Concepts, LLC |
(d)(3) | Sub-Advisory Agreement dated June 1, 2015 between Exchange Traded Concepts, LLC and HTAA, LLC, with respect to the Hull Tactical US ETF |
(d)(4) | 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) | 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)(7) | 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, Yorkville High Income Infrastructure MLP ETF and The EMQQ The Emerging Markets Internet & Ecommerce ETF |
(h)(11) | 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 |
EXCHANGE TRADED CONCEPTS TRUST, on behalf of each Fund listed on Schedule A
|
|||
By:
|
/s/ J. Garrett Stevens
|
||
Name: J. Garrett Stevens
|
|||
Title: President
|
|||
EXCHANGE TRADED CONCEPTS, LLC
|
|||
By:
|
/s/ J. Garrett Stevens
|
||
Name: J. Garrett Stevens
|
|||
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) | 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
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:
|
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:
|
/s/ J. Garrett Stevens |
By:
|
/s/ Stephen McCarten | ||
Name: J. Garrett Stevens
|
Name: Stephen McCarten
|
||||
Title: Chief Executive Officer
|
Title: Chief Operating Officer
|
Fund
|
Rate
|
Effective Date
|
Hull Tactical US ETF
|
0.81%
|
6-1-2015
|
ADVISER: | SUB-ADVISER: | ||||
Exchange Traded Concepts, LLC
|
HTAA, LLC
|
||||
By:
|
/s/ J. Garrett Stevens |
By:
|
/s/ Stephen McCarten | ||
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
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: 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:
|
/s/ J. Garrett Stevens |
By:
|
/s/ Nicholas A. Stonestreet
|
||
Name: J. Garrett Stevens
|
Name: Nicholas A. Stonestreet
|
||||
Title: Chief Executive Officer
|
Title: Chief Executive Officer
|
Fund
|
Rate
|
Effective Date
|
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.
|
6-1-2015
|
ADVISER: | SUB-ADVISER: | ||||
Exchange Traded Concepts, LLC
|
Vident Investment Advisory, LLC
|
||||
By:
|
/s/ J. Garrett Stevens |
By:
|
/s/ Nicholas A. Stonestreet
|
||
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) | 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: |
/s/ J. Garrett Stevens
|
By: |
/s/ Richard Hogan
|
||
Name: J. Garrett Stevens
|
Name: Richard Hogan
|
||||
Title: Chief Executive Officer
|
Title: Director
|
Fund
|
Rate
|
Effective Date
|
Yorkville High Income MLP ETF
|
0.62%
|
5-26-2015
|
Yorkville High Income Infrastructure MLP ETF
|
0.62%
|
5-26-2015
|
ADVISER: | SUB-ADVISER: | ||||
Exchange Traded Concepts, LLC
|
Yorkville ETF Advisors, LLC
|
||||
By: :
|
/s/ J. Garrett Stevens
|
By: |
/s/ Richard Hogan
|
||
Name: J. Garrett Stevens
|
Name: Richard Hogan
|
||||
Title: Chief Executive Officer
|
Title: Director
|
(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:
|
/s/ J. Garrett Stevens
|
By:
|
/s/ Dustin Lewellyn
|
||
Name: J. Garrett Stevens
|
Name: Dustin Lewellyn
|
||||
Title: Chief Executive Officer
|
Title: Chief Investment Officer
|
Fund
|
Rate
|
Effective Date
|
Yorkville High Income MLP ETF
|
The greater of 5 bps or
$25,000 annual minimum
|
5-26-2015
|
Yorkville High Income Infrastructure MLP ETF
|
The greater of 5 bps or
$25,000 annual minimum
|
5-26-2015
|
EMQQ The Emerging Markets Internet & Ecommerce ETF
|
The greater of 5 bps or $20,000 annual minimum
|
6-12-2015
|
ADVISER:
|
SUB-ADVISER:
|
||||
Exchange Traded Concepts, LLC
|
Penserra Capital Management LLC
|
||||
By:
|
/s/ J. Garrett Stevens
|
By:
|
/s/ Dustin Lewellyn
|
||
Name: J. Garrett Stevens
|
Name: Dustin Lewellyn
|
||||
Title: Chief Executive Officer
|
Title: Chief Investment Officer
|
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.
|
||
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 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:
|
/s/ J. Garrett Stevens
|
|
Name: J. Garrett Stevens
|
||
Title: President
|
BY:
|
/s/ John Alshefski
|
|
Name: John Alshefski
|
||
Title: Senior Vice President
|
BY:
|
/s/ Stephen McCarten
|
|
Name: Stephen McCarten
|
||
Title: Chief Operating Officer
|