‘33 Act Fund Platform Support Agreement
Exhibit
10.21
‘33 Act Fund Platform Support Agreement
This ‘33 Act Fund Platform Support
Agreement (the “Agreement”)
is made and entered into by and among Toroso Investments, LLC
(“Toroso”),
Tidal ETF Services
LLC (“Tidal”),
Hashdex Asset
Management Ltd. (“Hashdex”),
Victory Capital
Management Inc.
(“Victory
Capital”) and
Teucrium Trading,
LLC (“Teucrium”)
as of May 23, 2022 (the “Effective
Date”). Each of Toroso, Tidal, Hashdex, Victory Capital,
and Teucrium may be referred to herein as a
“Party,”
or collectively, as the “Parties.”
BACKGROUND:
A. Toroso is a Delaware limited liability company,
and is an investment adviser registered with the Securities and
Exchange Commission (the “SEC”) pursuant to the Investment Advisers Act
of 1940 as amended (the “Advisers
Act”).
B. Toroso is also registered as a commodity pool
operator (“CPO”) and a commodity trading adviser
(“CTA”) with the Commodity Futures Trading
Commission (“CFTC”) and is a member of the National
Futures Association (“NFA”).
C. Tidal
is a Delaware limited liability company that specializes in, among
other things, consulting and administrative support services to
pooled investment vehicles.
D. Hashdex
is a Cayman Islands investment manager that specializes in, among
other things, the management, research, investment analysis and
other investment support services of funds and ETFs with investment
strategies involving bitcoin and other cryptoassets.
E. Victory
Capital is a New York corporation, and is an investment adviser
registered with the SEC pursuant to the Advisers Act.
F. Teucrium
is registered as a CPO and a CTA with the CFTC and is a member of
the NFA.
G. Teucrium has developed the Hashdex Bitcoin Futures
Fund (formerly Teucrium Bitcoin Futures Fund) (the
“Fund”),
which as of the date of this Agreement is a series of the Teucrium
Commodity Trust (the “Trust”),
which Trust is governed by a certain Fifth Amended and Restated
Declaration of Trust and Trust Agreement dated as of April 26, 2019
by and between Teucrium Trading, LLC as Sponsor and Wilmington
Trust as Delaware Trustee (the “Current
Trustee”).
H. It is the
expectation of the Parties that Toroso will use commercially
reasonable efforts to organize a new Delaware statutory trust (the
“New
Trust”) and a new series thereof (the
“New
Fund”) and enter into a Sponsorship and Asset Transfer Agreement pursuant
to which, among other things, the assets of the Fund (and certain
other assets as applicable) will be transferred to the New Fund as
a series of the New Trust, as successor to the Fund and the Trustee
will transfer to Toroso sponsorship of the
Fund.
I. The Parties intend that each Party’s
respective financial obligations and rights to any profits
associated with the Fund (and the New Fund) shall be as set forth
in Schedule A attached hereto (the “Schedule”).
J. The
Parties mutually desire to set forth in this Agreement the terms
and conditions applicable to the launch, marketing, promotion,
development, and ongoing operation of the Fund (and the New Fund),
as well as to establish the Parties’ respective rights in
profits and obligations for expenses of the Fund (and the New
Fund).
K. This
Background section and the Schedule attached hereto are
incorporated by reference into and made a part of this
Agreement.
TERMS:
NOW, THEREFORE, in
consideration of the mutual promises and consideration contained
herein, the receipt and sufficiency of which is acknowledged by
each Party, intending to be legally bound, agree as
follows:
1. Definitions.
For the purposes of this
Agreement:
“Affiliate”
means, when used with respect to a Party, any other Entity directly
or indirectly Controlling, Controlled by, or under common Control
with the subject Party.
“Approved Stock
Exchange” or
“Arca”
means the NYSE Arca stock exchange for the Fund during such period
it remains a series of the Trust. If the Fund is transitioned to
the New Trust, the term “Approved Stock Exchange” shall
mean a U.S. securities exchange selected by Toroso and Hashdex and
set forth in the New Fund’s registration
statement.
“Confidential
Information” means: (i)
any data or information that is competitively sensitive material,
and not generally known to the public, including, but not limited
to, information about product plans, marketing strategies,
finances, operations, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future
business activities of a Party or the Trust or the New Trust; (ii)
any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the
disclosing Party a competitive advantage over its competitors; or
(iii) anything designated as confidential or in the case of data or
information communicated orally, is declared as confidential or
proprietary at the time of disclosure and confirmed in writing by
the disclosing Party, summarizing such data or information, within
a reasonable period of time thereafter.
“Control”
means the direct or indirect ownership of at least 50% of the
outstanding voting securities of an Entity, or the right to control
the policy decisions of an Entity.
“Entity”
means any corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust,
unincorporated organization, or other legal
entity.
“Net
Assets” means the
Fund’s net assets or the New Fund’s net assets, as the
case may be.
“New
Fund” has the meaning set
forth in the Background.
“New
Trust” has the meaning
set forth in the Background.
“Profit”
shall have the meaning set forth in the
Schedule.
“Reasonable
efforts” shall include taking into account relevant
commercial and regulatory factors.
“Regulations”
(or “regulatory
proceedings”) means
regulations and proceedings by governmental agencies (such as the
SEC) and self-regulatory organizations (such as FINRA, and
securities or futures exchanges).
“Wind-Down
Costs” has the meaning
set forth on the Schedule.
2. Obligations of the
Parties.
2.1. Each
Party shall bear its respective financing and/or payment
responsibilities as more fully described in Schedule
A.
2.2. Each
of Toroso, Tidal, Teucrium, Victory Capital, and Hashdex
shall:
2.2.1.
to
the extent permitted by applicable law, incorporate the Fund (and
the New Fund) into its marketing activities where appropriate,
which may include, but is not limited to providing a Fund/New Fund
launch press release, website data content, Fund launch webinars,
follow-on webinars, and Fund promotion via social media outlets;
and
2.2.2.
use
Reasonable Efforts to cooperate with each other Party as necessary
to fulfill its respective obligations under this Agreement. For the
avoidance of doubt, and without limitation of the foregoing, each
Party shall use Reasonable Efforts to cooperate with each other
Party and to implement and launch the Fund and to effect the
transition of the Fund to the New Fund under the terms contemplated
by the Schedule.
NOTE:
Each Party acknowledges and agrees that none of the Parties are
registered as a broker-dealer and that none of the Parties shall
take, nor be obligated to take, any actions that would require a
Party to be so registered as a broker-dealer, although certain of
the affiliates of certain Parties may be broker-dealers registered
with the SEC. In addition, if any of the Parties takes any action
required to be undertaken by a registered person, such person shall
be a duly registered representative of a U.S. registered
broker-dealer. For purposes of Sections 2.3 and 2.4, no Party or
its affiliated broker-dealer, if applicable, shall be required to
take any action that is in contravention with any law that is
applicable to such Party or any affiliated
broker-dealer.
2.3. Existing
Fund: During such time as the
Fund remains a series of the Trust, each Party shall
have the following
obligations:
2.3.1.
Teucrium
Obligations:* Unless the
Parties otherwise mutually agree, Teucrium shall act as
“Sponsor” of the Fund (as that term is used in the
prospectus).
2.3.2.
Toroso
Obligations:
None.
2.3.3.
Tidal
Obligations:
None.
2.3.4.
Hashdex
Obligations: Hashdex shall
provide to the other Parties research and analysis regarding
bitcoin and bitcoin markets for use in the operation and marketing
of the Fund. The Parties agree that, except as otherwise agreed by
Hashdex, Hashdex shall be described in the registration statement
and prospectus for the Fund as the “Digital Asset
Adviser” to the Fund and its Sponsor with an obligation to
provide the foregoing services in connection with the
Fund.
2.3.5.
Victory Capital
Obligations: Subject to mutual
agreement of the Parties, Victory Capital shall provide
sub-advisory and sales support services for the
Fund.
*
It is the intention of the Parties to transition some or all of
Teucrium’s obligations to Toroso, Tidal, Hashdex, and/or
Victory Capital on a time schedule to be mutually agreed. For the
avoidance of doubt, Teucrium shall remain the sole Sponsor of the
Fund until an amended registration statement is
effective.
2.4. New
Fund. If the Fund transitions
to the New Trust, each Party shall have the following obligations
with respect to the New Fund:*
2.4.1.
Teucrium
Obligations:
None.
2.4.2.
Toroso
Obligations: Toroso shall serve
as the “Sponsor” of the New Fund (as that term is used
in the prospectus).
2.4.3.
Tidal
Obligations: Tidal shall
provide fund administration and related services for the New
Fund.
2.4.4.
Hashdex
Obligations: Subject to mutual
agreement of the Parties, Hashdex shall provide to Toroso research
and analysis regarding bitcoin and bitcoin markets for use in the
operation and marketing of the New Fund. The Parties agree that,
except as otherwise agreed by Hashdex, Hashdex shall be described
in the registration statement and prospectus for the New Fund as
the “Digital Asset Adviser” to the New Fund and its
Sponsor with an obligation to provide the foregoing services in
connection with the New Fund.
2.4.5.
Victory Capital
Obligations: Subject to mutual
agreement of the Parties, Victory shall provide sub-advisory and
sales support services for the New Fund.
*
The formalization of such roles with respect to the New Fund shall
be made in the format and at a time mutually agreed between
Teucrium, Toroso, Tidal, Hashdex, and Victory Capital, taking into
account the operations of the New Fund and any applicable
regulatory requirements.
3. Fund’s
Name.
3.1. The
name of the Fund includes “Hashdex”, and it shall not
be changed without the written consent of Hashdex. Hashdex hereby
represents, warrants and covenants to the other Parties, that
Hashdex or its Affiliates is the owner or licensee of the
trademarks, service marks and other intellectual property rights in
the name of the Fund, and any logos provided by or on behalf of
Hashdex in connection with this Agreement (collectively, the
“Hashdex
Marks”). Hashdex hereby
further represents, warrants, and covenants to the other Parties,
that Hashdex has the authority to grant all such licenses
contemplated hereby. Hashdex hereby provides each of the other
Parties a fully paid up, royalty free license to use the Hashdex
Marks for purposes related to this Agreement, which shall include,
without limitation, including such Hashdex Marks in the
Fund’s registration statement and marketing materials.
Hashdex hereby grants each of the other Parties the authority to
sub-license such Hashdex Marks to one or more of the Trust, and the
Trust’s service providers for use in connection with this
Agreement. This license and such grant of authority will remain in
effect for the Term and will apply to the Hashdex Marks
notwithstanding the transfer of any such Hashdex Marks by operation
of law or otherwise to any permitted successor, corporation,
organization, or individual. For the avoidance of doubt, the
foregoing license and grant of authority shall terminate upon
Hashdex’s withdrawal from this Agreement.
4. Condition.
4.1. This
Agreement is subject to the completion of the review of the
Fund’s registration statement by the NFA.
4.2. If
the condition of the Section 4.1 is not timely met, each Party
shall have the right to terminate this Agreement by providing
thirty (30) days’ prior written notice to the other Parties.
Such notice shall specify with particularity the nature of the
existence of the foregoing conditions and shall be effective on the
date of such termination specified therein unless the breaching
Party shall correct such foregoing condition within the notice
period. If the failure to satisfy the condition is due to
Teucrium’s failure to use Reasonable Efforts, Teucrium shall
reimburse Toroso and Hashdex for their payments under this
Agreement and be responsible for all Wind-Down Costs.
5. Term
and Termination.
5.1.
Indefinite
Term. This Agreement shall be
effective as of the Effective Date and shall continue in effect
until the earliest of (i) its termination in accordance with
Section 4 (Conditions) above, (ii) the Fund or the New Fund, as the
case may be, withdraw its registration statement from the SEC or
completely liquidates (in either case, other than, in the case of
the Fund, to reorganize into the New Fund or another successor
entity), (iii) at any time there is only one Party remaining to
this Agreement, or (iv) upon written agreement of all of the
then-remaining Parties.
5.2.
Forced
Withdrawal. A Party may be
forced to withdraw (or elect to withdraw pursuant to clause (ii),
(iii) or (iv) below) as a Party to this Agreement upon one or more
of the following occurrences:
(i)
in
accordance with subsection 5.3 below upon such Party’s
uncured material breach of this Agreement;
(ii)
upon
ninety (90) days’ prior written notice by a Party to the
other Parties (or such lesser period of time as may be necessary
pursuant to law, rule, regulation or court order) if any
legislation or regulation is finally adopted or any government
interpretation is issued that prevents that Party from fulfilling
any of its material obligations contained in this
Agreement;
(iii)
after
the first anniversary of this Agreement, a Party may withdraw from
this Agreement by providing the other Parties at least 180
days’ written notice; provided that such Party and the
remaining Parties shall promptly work together in good faith to
address all of such withdrawing Party’s obligations under
this Agreement by: (x) assuming one or more of the withdrawing
Party’s obligations under this Agreement; (y) engaging a
third-party, reasonably satisfactory to all remaining Parties, to
assume one or more of the withdrawing Party’s obligations
through an amendment of this Agreement; and/or (z) waiving future
performance of one or more of the withdrawing Party’s
obligations; or
(iv)
any
Party may withdraw from this Agreement by providing the other
Parties at least thirty (30) days’ prior written notice if
the Fund does not commence operations prior to another ’33
Act bitcoin futures fund.
5.3.
Breach.
In the case of (i) breach of any term or condition of the Agreement
by a Party that has a material adverse effect on the business,
assets, liabilities, operations, condition (financial or otherwise)
or results of operations of the Fund (or the New Fund) or the Trust
(or the New Trust), or (ii) material breach of any payment
obligation of the Agreement, a non-breaching Party or Parties
may remove such breaching Party as a party to this Agreement by
giving at least thirty (30) days’ prior written notice to all
of the other Parties of its intent to cause such removal if such
breach is not remedied. Such notice shall specify with
particularity the nature of the alleged breach. The date of the
breaching Party’s removal as a party from this Agreement
shall be set forth in such notice shall be the effective date of
such withdrawal unless the breaching Party shall correct such
breach within the notice period.
5.4.
Effect of
Withdrawal. In the event of a
Party’s voluntary or forced withdrawal as a party to this
Agreement, the withdrawing Party shall forfeit all rights to any
revenue or profit generated by the Fund after the date of such
withdrawal (but not revenue or profits generated prior to such
time, including those that have not been distributed). Subject to
Sections 5.5, 6, 7, 8 and 9 below, upon a Party’s withdrawal
from this Agreement, the Agreement shall be deemed terminated with
respect to such Party and such Party shall have no further
financial obligations with respect to Fund costs or expenses that
arise after such date.
The
remaining Parties shall promptly work together in good faith to
address all of such withdrawing Party’s obligations under
this Agreement by: (i) assuming one or more of the withdrawing
Party’s obligations under this Agreement; (ii) engaging a
third-party to assume one or more of the withdrawing Party’s
obligations; and/or (iii) waiving future performance of one or more
of the withdrawing Party’s obligations.
5.5.
Effect of
Termination. In the event of
the Fund’s wind-down, each then-remaining Party shall bear
its respective financial obligation set forth on the Schedule with
respect to any Fund Wind-Down Costs. If the Fund is wound down and
liquidated within 180 days of a Party’s withdrawal from this
Agreement, such Party shall remain obligated to pay its respective
portion of the Fund’s Wind-Down Costs unless a third-party
successor assumed such Party’s responsibilities under Section
5.2(iii)(y).
6. Warranties.
6.1.
Each
Party hereby represents and warrants to the other Parties
that:
6.1.1. it
has the full right, power and authority to execute, deliver and
perform this Agreement in accordance with its terms;
6.1.2. this
Agreement has been duly executed and delivered by or on behalf of
such Party and constitutes a legal, valid, and binding obligation
of such Party, enforceable against such Party in accordance with
its terms; and
6.1.3. unless
expressly set forth herein, no consent, approval, authorization or
order of any person or entity is required for the execution
delivery or performance of this Agreement by such Party, and
neither the execution, delivery nor performance of this Agreement
by such Party will (a) conflict with, or result in a breach of, or
constitute a default under, or result in a violation of, any
organizational document of such Party or any agreement or
instrument to which such Party is subject or by which it is bound,
or (b) result in the violation of any applicable law, rule, or
regulation to which such Party is subject.
6.2.
The
representations and warranties set forth in this Section 6
(Warranties) shall survive the execution, delivery, and termination
of this Agreement.
7. Limitations
of Liability
7.1.
Except for (i) Operational Costs and Profits as contemplated by
Schedule A, (ii) breach of Section 9 (Confidentiality), and (iii)
as otherwise expressly contemplated by this Agreement, no party
shall be liable for any, special or punitive damages arising out of
or relating to this Agreement, including, but not limited to, any
lost profits or revenues, harm to business, or lost savings of any
kind or nature whatsoever, regardless of the form of action,
whether in contract, warranty, strict liability, or tort
(including, without limitation, negligence of any kind, whether
active or passive) even if such party has been notified of the
possibility of such loss.
7.2.
Except
for a Party’s financial obligations with respect to Fund
costs and expenses, a Party’s indemnification obligations,
and except if otherwise expressly specified in this Agreement or in
the Schedule, in no event will the aggregate liability of any
Party, whether in contract , in tort (including negligence), under
a warranty, under statute or otherwise, for any claim, direct or
otherwise, arising out of or in connection with this Agreement,
exceed $500,000, regardless of the cause or form of action. For the
avoidance of doubt, any Start-Up Costs, Operational Costs, Profits,
and/or Wind-Down Costs payable under this Agreement shall be
excluded from the foregoing liability cap.
7.3.
Teucrium
shall not be liable for actions of any other Party, including but
not limited to breach of applicable law, that occur following the
transfer of the assets of the Fund to the New Fund as a series of
the New Trust, and the transfer to Toroso of sponsorship of the
Fund.
7.4.
This
provision shall survive the termination or expiration of this
Agreement.
8. Indemnification.
8.1.
Each Party (such Party, the
“Indemnifying
Party”) shall indemnify,
defend and hold harmless the other Parties (the
“Indemnified
Parties”), their
respective affiliates, and their respective officers, directors,
and employees, against any and all judgments, damages, costs or
losses of any kind as a result of any claim, action or proceeding
(whether pending or threatened) that arises out of or relates to
(i) any breach by the Indemnifying Party of its representations or
warranties or agreements under this Agreement, (ii) such
Indemnifying Party’s gross negligence or willful misconduct,
including the gross negligence or willful misconduct of the
Indemnifying Party’s directors, officers, employees, and
agents, unless such gross negligence or willful misconduct is
carried out at the express written instruction of an Indemnified
Party; and/or (iii) any breach of the confidentiality provisions of
this Agreement by the Indemnifying Party.
8.2.
Each
Party shall indemnify, defend, and hold harmless each of the other
Parties, and their respective affiliates, and their respective
officers, directors, and employees, against any and all judgments,
damages, costs or losses of any kind as a result of any claim,
action or proceeding (whether pending or threatened) that arises
directly out of or relates directly to any untrue statement of a
material fact provided by or on behalf of such Party that is
intended to be contained in the Fund’s or the New
Fund’s registration statement, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to
the Fund or New Fund, as the case may be, by such Indemnifying
Party or the omission to state therein a material fact known to the
Indemnifying Party which was required to be stated therein or
necessary to make the statements therein not
misleading.
8.3.
Hashdex
shall indemnify, defend and hold harmless each of the other
Parties, and their respective affiliates, officers, directors, and
employees, against any and all judgments, damages, costs or losses
of any kind as a result of any claim, action or proceeding (whether
pending or threatened) that arises out of or relates to third-party
claim with regard to a Party’s, or any of the Fund’s
service provider’s use of any Hashdex Marks as contemplated
by this Agreement, or in the Trust’s registration
statement.
8.4.
Each Party (such Party, the
“Post-Transfer
Indemnifying Party”)
shall indemnify, defend and hold harmless Teucrium, and its
respective affiliates, officers, directors, and employees, against
any and all judgments, damages, costs or losses of any kind as a
result of any claim, action or proceeding (whether pending or
threatened) relating to actions of such Post-Transfer Indemnifying
Party, including but not limited to breach of applicable law, that
occur following the transfer of the assets of the Fund to the New
Fund as a series of the New Trust, and the transfer to Toroso of
sponsorship of the Fund.
8.5.
A
Party’s indemnification obligations are subject to the
following: (i) such Indemnified Party notifies the Indemnifying
Party within fifteen (15) days of such claim, action or proceeding,
and (ii) such Indemnified Party cooperates with the Indemnifying
Party in the defense thereof. Notwithstanding the foregoing, a
delay in notice does not relieve an Indemnifying Party of any
liability to an Indemnified Party, except to the extent the
indemnifying Party shows that the delay prejudiced the defense of
the action. The Indemnified Party shall have no right to settle any
claim, action, or proceeding without the written consent of the
Indemnifying Party without waiving the indemnity hereunder. The
Indemnifying Party, in the defense of any such claim, action or
proceeding, except with the written consent of such Indemnified
Party, shall not consent to entry of any judgment or enter into any
settlement which either (i) does not include, as an unconditional
term, the grant by the claimant to such Indemnified Party of a
release of all liabilities in respect of such claims or (ii)
otherwise adversely affects the rights of such Indemnified Party.
Notwithstanding the foregoing, the Indemnifying Party shall not be
required to indemnify such Indemnified Party to the extent any
claims, actions or proceeding arise out of or relate to (i) a
breach by such Indemnified Party of its representations or
warranties or agreements made herein, or (ii) such Indemnified
Party’s negligence or willful misconduct.
8.6.
This
provision shall survive the termination or expiration of this
Agreement.
9. Confidential
Information.
9.1.
No
Party will use, copy, or disclose, or permit any unauthorized
person access to, another Party’s Confidential Information,
except as expressly directed by such other Party or as permitted
herein.
9.2.
Each
Party agrees that: (a) all Confidential Information shall remain
the exclusive property of the owner and the receiving Party shall
not use any Confidential Information for any purpose except in
furtherance of this Agreement; (b) it shall maintain, and shall use
prudent methods to cause its employees and agents to maintain, the
confidentiality and secrecy of the Confidential Information; (c) it
shall disclose Confidential Information only to those of its
employees and agents who have a need to know such information in
furtherance of this Agreement and who are aware of the confidential
nature of such information or are under an obligation of
confidentiality; and (d) it shall use prudent methods to ensure
that its employees and agents do not, copy, publish, disclose to
others or use (other than pursuant to the terms hereof) the
Confidential Information.
9.3.
Confidential
Information shall not be subject to the above confidentiality
obligation to the extent: (i) it is already known to the receiving
Party at the time it is obtained; (ii) it is or becomes publicly
known or available through no wrongful act of the receiving Party;
(iii) it is rightfully received from a third party who, to the
receiving Party’s knowledge, is not under a duty of
confidentiality; (iv) it is released by the protected Party to a
third party without restriction; or (v) it has been or is
independently developed or obtained by the receiving Party without
reference to the Confidential Information provided by the protected
Party.
9.4.
Confidential
Information may be disclosed by a Party without violating its
confidentiality obligations under this Agreement to third parties
to the limited extent that: (i) release of the information is
necessary or appropriate in connection with the provision of
services contemplated by this Agreement (including services to the
Fund); (ii) it is required to be disclosed by the receiving Party
pursuant to a requirement of a court order, subpoena, governmental
or regulatory authority or agency, law, or binding discovery
request in pending litigation (provided the receiving Party will
provide the disclosing Party written notice of such requirement, to
the extent such notice is permitted); (iii) it is requested to be
disclosed by a governmental or regulatory authority or agency with
jurisdiction over the disclosing Party; or (iv) it is relevant to
any claim or cause of action between the Parties or the defense of
any claim or cause of action asserted against the receiving Party.
Confidential Information shared with third parties in accordance
with the foregoing sentence shall otherwise remain subject to the
confidentiality obligations of this Section 9. The Parties
acknowledge that this Agreement (other than, to the extent
permitted by applicable law, Schedule A) may be filed as an exhibit
to the Trust’s and the New Trust’s registration
statement.
9.5.
Each
Party shall promptly report to the other Parties any actual or
suspected violation of the terms of this Section 9, and shall take
all reasonable steps to prevent, control, or remedy such
violation.
9.6.
Each
Party acknowledges that each other Party is heavily reliant on the
confidentiality of its Confidential Information and that the
substantial and irreparable damages which such other Party and its
affiliates would sustain upon any violation of this Section 9 may
be impossible to ascertain with precision and that money damages
alone will not provide an adequate remedy to such other Party. In
the event of any violation of the undertakings contained in this
Section 9, the non-breaching Party shall be entitled, in addition
to any other rights or remedies which it may have, to maintain an
action for damages, and preliminary and permanent injunctive and
other equitable relief, including an accounting for any profits
arising from any breach of this Section 9. Any action or proceeding
seeking to enforce any provision of, or based on any right arising
out of, this Section 9 may be brought in the courts competent
jurisdiction in New York, New York, and each Party consents to the
jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection
to venue laid therein. Process in any action or proceeding referred
to in the preceding sentence may be served on a Party anywhere. In
the case of any trade secrets or other confidential information,
each Party waives any requirement that another Party prove the
economic value thereof and waives any requirement that such other
Party post a bond or other security in connection with the
enforcement of its rights hereunder.
10. Advertising.
10.1.
Except
as otherwise set forth in this Agreement, a Party shall not use the
name, logos, symbols, trademarks, or other images of another Party
in connection with any marketing, advertising, or other promotional
material, either on-line (e.g., social media) or off-line (e.g.,
newspapers), relating to this Agreement without the prior written
(including email) approval of the relevant other
Party.
10.2.
Each
Party agrees that relevant trademarks may be used during the term
of this Agreement in the marketing of the Fund (unless, for the
avoidance of doubt, such Party has withdrawn from this Agreement),
including Fund prospectuses, statements of additional information,
fact sheets, press releases, the Fund’s website and marketing
campaigns directly connected with the Funds, provided, however,
that prior to any such use of a Party’s trademark, such Party
is afforded at least three (3) business days to consent to such use
by receiving a copy of such materials and a request for the
Party’s consent. If materials using a Party’s trademark
do not differ in a material way from use of such trademark in
substantially similar materials to which the Party has consented,
then no further consent need be procured from such
Party.
10.3.
The
Fund’s initial press release (including any promotional
material) shall be previously approved by all the Parties in
writing (including through email).
11. Miscellaneous.
11.1.
Compliance with
Laws. Each Party shall comply with and give all notices
required by laws, ordinances, rules, regulations and lawful orders
of any public authority (including without limitation child labor
laws) bearing on its performance of its duties and obligations
under this Agreement. Furthermore, each Party at all times shall
observe and comply with all applicable national, supranational
(e.g., European Union) and local laws, ordinances and
regulations that in any manner affect its performance under this
Agreement, and with all applicable orders or decrees as exist at
present and those which may be enacted later by bodies or tribunals
having jurisdiction or authority over the performance of this
Agreement. Each Party agrees that all transactions in connection
with this Agreement will be accurately reflected in its books and
records, and that no funds or other assets shall be paid directly
or indirectly to government officials or persons acting on their
behalf for the purpose of influencing government decisions or
actions with respect to the Fund. Each Party shall notify the other
Parties if it becomes aware of any non-compliance in connection
with this Agreement and shall take all appropriate action necessary
to ensure compliance by itself and by its subcontractors with such
laws, ordinances, rules, applicable regulations, and other policies
and procedures bearing on the performance of this
Agreement.
11.2.
Expense Verification
Rights. The records of each Party to be reviewed for
purposes of costs and expenses verification (the
“Reviewed
Party”), which shall include, but not be limited to,
accounting records, reports, receipts, and any other documentation
relating directly to the costs and expenses incurred by a Party in
connection with performance of this Agreement shall be reviewable
and subject to reproduction, during normal working hours, by the
Reviewing party (the “Reviewing
Party”) or its authorized representative to the extent
necessary to adequately evaluate costs and expenses submitted by
the Reviewed Party, or as required by governmental authorities or
as desirable for any other valid business purpose. The Reviewing
Party or its authorized representative shall give the Reviewed
Party reasonable advanced notice of intent to review expense
records, and shall execute a non-disclosure agreement acceptable to
the Reviewed Party in its good faith opinion. Reviews conducted
under this provision shall be limited to once per calendar year.
Each such review shall be conducted in a manner designed to
minimize the impact to the Reviewed Party’s business,
including the provision of documents by U.S. mail, email, or
similar means of delivery.
11.3.
Entire
Agreement. This Agreement, including any appendices,
schedules, or exhibits hereto (which are hereby expressly
incorporated into and made a part of this Agreement), is solely and
exclusively among the Parties hereto, and represents the entire
understanding and agreement among the Parties with respect to the
subject matter hereof, and supersedes all other negotiations,
understandings and representations (if any) made by and among such
Parties, without prejudice to the agreement between Hashdex and
Victory Capital with respect to the split of their share of
revenues and expenses (and exclusively in relation to Hashdex and
Victory Capital and in connection with such
issue.
11.4.
Amendments.
The provisions of this Agreement may
not be amended, supplemented, waived, or changed orally, except
only by a writing signed by all of the Parties to this Agreement.
There are no oral or written collateral representations, agreements
or understandings except as provided herein. The delay or failure
by any Party to insist, in any one or more instances, upon strict
performance of any of the terms or conditions of this Agreement or
to exercise any right or privilege herein conferred shall not be
construed as a waiver of any such term, condition, right or
privilege, but the same shall continue in full force and
effect.
11.5.
Assignments.
This Agreement may not be assigned by
a Party to any other person or entity without each of the other
Party’s prior written consent, which consent shall not be
unreasonably withheld if the assignee provides written assurances
that it has the requisite licenses and registrations and functional
and financial capacity necessary to fully perform all of the
assignee’s duties and obligations contemplated by this
Agreement. Any assignment or transfer in contravention of this
Section 11.5 shall be null and void. For the avoidance of doubt,
subject to the provision of the written assurances set forth in
first sentence of this Section 11.5 to the other Parties, Teucrium
may, without the consent of any of the other Parties, assign this
Agreement to its parent, subsidiaries and other affiliates that it
controls.
11.6.
Binding
Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the
benefit of, and be enforceable by the Parties and their respective
legal representatives, successors, and permitted
assigns.
11.7.
Notices.
Any notice required or permitted to be
given by a Party to another Party shall be in writing and shall be
deemed to have been given on the date delivered personally or by
courier service, or three days after sent by e-mail, registered or
certified mail, postage prepaid, return receipt requested, or on
the date sent and confirmed received by facsimile transmission to
the other Party’s address set forth below, or such other
address(es) as may be specified in writing by one Party to another
Party.
If
to Toroso:
Toroso
Investments, LLC:
Attn:
Xxx Xxxxxxx
000
X. Xxxxxxxx, Xxxxx 0
Xxxxxxxxxx,
XX 00000
e-mail: xxxxxxxx@xxxxxxxxx.xxx
If
to Tidal:
Tidal
ETF Services LLC
Attn:
Xxxx Xxxxxxx
000
X. Xxxxxxxx, Xxxxx 0
Xxxxxxxxxx,
XX 00000
e-mail: xxxxx@xxxxxxxxxxxxxxxx.xxx
If
to Hashdex:
Hashdex
Asset Management Ltd.
Attn.:
Xxxxx Xxxxx xx Xxxxx / Xxxxxx Xxxxxxx
Av.
Xxxxxxx xx Xxxxx, 1120, Loja A, Leblon
Xxx
xx Xxxxxxx, XX, 00000-000 – Brazil
e-mail: xxxxx.xxxxx@xxxxxxx.xxx
/ xxxxxx.xxxxxxx@xxxxxxx.xxx
If
to Teucrium:
Teucrium
Trading, LLC
Attn:
Xxx Xxxxxxxxx/Xxxx Xxxxxx-Xxxxx
Xxxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
email: xxx.xxxxxxxxx@xxxxxxxx.xxx
/ xxxx.xxxxxxxxxxx@xxxxxxxx.xxx
If
to Victory Capital:
Victory
Capital Management Inc.
Attn:
Mannik Xxxxxxx
00000
Xx Xxxxxxx Xxxxxxx
Xxx
Xxxxxxx, XX 00000
e-mail: xxxxxxxx@xxx.xxx / cc: xxxxx@xxx.xxx
or,
to such other address as any Party may designate by notice
complying with the terms of this Section 11.7 and deemed given upon
receipt.
11.8.
Headings.
The headings contained in this
Agreement are for convenience of reference only, and shall not
limit or otherwise affect in any way the meaning or interpretation
of this Agreement.
11.9.
Severability.
If any part of this Agreement or any
other agreement entered into pursuant hereto is contrary to,
prohibited by, or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed omitted
to the extent so contrary, prohibited, or invalid, but the
remainder hereof shall not be invalidated thereby and shall be
given full force and effect so far as possible.
11.10.
Governing
Law.
This Agreement will be governed by and
construed in accordance with the laws of the State of New York
without giving effect to the principles of conflicts of
laws.
11.11.
Counterparts.
This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
11.12.
Force
Majeure. A Party shall be excused from delays in performing
or from its failure to perform hereunder to the extent that such
delays or failures result from causes beyond the reasonable control
of such Party; provided, however,
in order to be excused from delay or
failure to perform, such Party must act diligently to remedy the
cause of such delay or failure, and shall give the other Parties
prompt written notice of any such delays or
failures.
11.13.
Required
Approvals. Where agreement, approval, acceptance, or consent
by a Party is required by any provision of this Agreement, such
action shall not be unreasonably delayed, conditioned, or
withheld.
11.14.
Independent
Contractors. Nothing in this Agreement shall be deemed to
constitute, create, give effect to or otherwise recognize a joint
venture, partnership or similar business arrangement or entity of
any kind, nor, unless expressly stated herein, make any of the
Parties the agent of another Party, and the rights and obligations
of each Party shall be limited to those expressly stated in this
Agreement.
In Witness Whereof, each Party
has caused this Agreement to be signed and delivered by a duly
authorized officer.
Toroso Investments, LLC
By:
Print Name:
Title:
Date:
Tidal ETF Services LLC
By:
Print Name:
Title:
Date:
Hashdex Asset Management Ltd.
By:
Print Name:
Title:
Date:
Teucrium Trading, LLC
By:
Print Name:
Title:
Date:
By:
Print Name:
Title:
Date:
Victory Capital Management Inc.
By:
Print Name:
Title:
Date:
