DISTRIBUTION AGREEMENT
This Distribution Agreement (the “Agreement”) made this 16 day of November, 2007, by and
between FocusShares Trust, a Delaware statutory trust (the “Trust”) having its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxx X-00, Xxxxxxxx, XX 00000, and Foreside Fund Services, LLC., a
Delaware limited liability company (the “Distributor”) having its principal place of business at
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000.
WHEREAS, the Trust is, or will be, a registered open-end management investment company
organized as a series trust offering a number of portfolios of securities (each a “Fund” and
collectively the “Funds”), each investing primarily in equity securities selected to reflect the
performance of a particular market index, having filed with the Securities and Exchange Commission
(the “Commission”) a registration statement on Form N-1A under the Securities Act of 1933, as
amended (the “1933 Act”), and the Investment Company Act of 1940, as amended;
WHEREAS, the Trust intends to create and redeem shares of beneficial interest, par value $.001
per Share (the “Shares”) of each Fund on a continuous basis at their net asset value only in
aggregations constituting a Creation Unit, as such term is defined in the Registration Statement;
WHEREAS, the Shares of each Fund will be listed on a national securities exchange (the
“Listing Exchange”);
WHEREAS, the Trust desires to retain the Distributor to act as the distributor with respect to
the issuance and distribution of Creation Units of Shares of each Fund, hold itself available to
receive and process orders for such Creation Units in the manner set forth in the Trust’s
Prospectus, and to enter into arrangements with broker-dealers who may solicit purchases of Shares
and with broker-dealers and others to provide for servicing of shareholder accounts and for
distribution assistance, including broker-dealer and shareholder support;
WHEREAS, the Distributor is a registered broker-dealer under the Securities Exchange Act of
1934, as amended (the “1934 Act”) and a member of the Financial Industry Regulatory Authority
(“FINRA”) (the successor organization to the National Association of Securities Dealers, Inc.); and
WHEREAS, the Distributor desires to provide the services described herein to the Trust.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the
parties agree as follows:
1. Appointment.
The Trust hereby appoints the Distributor as the exclusive distributor for Creation Unit
aggregations of Shares of each Fund listed in Exhibit A hereto, as may be amended by the Trust from
time to time on written notice to the Distributor, on the terms and for the period set forth in
this Agreement and subject to the registration requirements of the 1933 Act and of the laws
governing the sale of securities in the various states, and the Distributor hereby accepts such
appointment and agrees to act in such capacity hereunder.
2. Definitions.
Wherever they are used herein, the following terms have the following respective meanings:
(a) “1940 Act” means the Investment Company Act of 1940 and the rules and regulations
thereunder as amended from time to time;
(b) “Prospectus” means the Prospectus and Statement of Additional Information constituting
parts of the Registration Statement of the Trust under the 1933 Act and the 1940 Act as such
Prospectus and Statement of Additional Information may be amended or supplemented and filed with
the Commission from time to time;
(c) “Registration Statement” means the registration statement most recently filed from time to
time by the Trust with the Commission and effective under the 1933 Act and the 1940 Act, as such
registration statement is amended by any amendments thereto at the time in effect;
(d) All capitalized terms used but not defined in this Agreement shall have the meanings
ascribed to such terms in the Registration Statement and the Prospectus.
3. Duties of the Distributor
(a) The Distributor agrees to act as agent of the Trust in connection with the receipt and
processing of all orders for purchases of Creation Units of each Fund from Participating Parties or
DTC Participants which have executed a Participant Agreement (“Authorized Participants”) and to
transmit such orders to the Trust in accordance with the Registration Statement and Prospectus;
provided, however, that nothing herein shall affect or limit the right and ability of the Trust to
accept Deposit Securities and related Cash Components through or outside the Clearing Process, and
as provided in and in accordance with the Registration Statement and Prospectus. The Trust
acknowledges that the Distributor shall not be obligated to accept any certain number of orders for
Creation Units and nothing herein shall prevent the Distributor from entering into like
distribution arrangements with other investment companies.
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(b) The Distributor agrees to act as agent of the Trust with respect to the continuous
distribution of Creation Units of each Fund as set forth in the Registration Statement and in
accordance with the provisions thereof. The Distributor further agrees as follows: (i) the
Distributor shall enter into Participant Agreements between and among Authorized Participants, the
Distributor and the Transfer Agent in accordance with the Registration Statement and Prospectus;
(ii) the Distributor shall generate, transmit and maintain copies of confirmations of Creation Unit
purchase order acceptances to the purchaser (such confirmations will indicate the time such orders
were accepted and will be made available to the Trust promptly upon request); (iii) the Distributor
shall deliver copies of the Prospectus, included in the Registration Statement, to purchasers of
such Creation Units and upon request the Statement of Additional Information; and (iv) the
Distributor shall maintain telephonic, facsimile and/or access to direct computer communications
links with the Transfer Agent.
(c) (i) The Distributor agrees to use all reasonable efforts, consistent with its other
business, to secure purchasers of Creation Units through Authorized Participants in accordance with
the procedures set forth in the Prospectus and the Participant Agreement and to perform the
services contemplated herein on a continuous basis.
(ii) The Distributor shall execute selected or soliciting dealer participant agreements
(“Participant Agreements”) with registered broker-dealers and other eligible entities providing for
the purchase of Creation Units of Shares of the Funds and related promotional activities, in the
forms as approved by the Board of Trustees of the Trust. In entering into Participant Agreements,
the Distributor will act only on its own behalf as principal.
(d) All activities by the Distributor and its agents and employees which are primarily
intended to result in the sale of Creation Units shall comply with the Registration Statement and
Prospectus, the instructions of the Board of Trustees of the Trust and all applicable laws, rules
and regulations including, without limitation, all rules and regulations made or adopted pursuant
to the 1940 Act by the Commission or any securities association registered under the 1934 Act,
including the FINRA and the Listing Exchange.
(e) Except as otherwise noted in the Registration Statement and Prospectus, the offering price
for all Creation Units of Shares will be the aggregate net asset value of the Shares per Creation
Unit of the relevant Fund, as determined in the manner described in the Registration Statement and
Prospectus.
(f) If and whenever the determination of net asset value is suspended and until such
suspension is terminated, no further orders for Creation Units will be processed by the Distributor
except such unconditional orders as may have been placed with the Distributor before it had
knowledge of the suspension. In addition, the Trust reserves the right to suspend sales and
Distributor’s authority to process orders for Creation Units on behalf of the Trust, upon due
notice to the Distributor, if, in the judgment of the Trust, it
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is in the best interests of the Trust to do so. Suspension will continue for such period as may be
determined by the Trust.
(g) The Distributor is not authorized by the Trust to give any information or to make any
representations other than those contained in the Registration Statement or Prospectus or contained
in shareholder reports or other material that may be prepared by or on behalf of the Trust for the
Distributor’s use. The Distributor shall be entitled to rely on and shall not be responsible in
any way for information provided to it by the Trust and its respective service providers and shall
not be liable or responsible for the errors and omissions of such service providers, provided that
the foregoing shall not be construed to protect the Distributor against any liability to the Trust
or the Trust’s shareholders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of
its reckless disregard of its obligations and duties under this Agreement.
(h) At the request of the Trust, the Distributor shall enter into agreements in the form
specified by the Trust (each a “Participant Agreement”) with participants in the system for
book-entry of The Depository Trust Company and the NSCC as described in the Prospectus.
(i) The Distributor shall ensure that all direct requests for Prospectuses, Statements of
Additional Information, Product Descriptions and periodic fund reports, as applicable, are
fulfilled. In addition, the Distributor shall arrange to provide Listing Exchange (and any other
national stock exchange on which the Shares may be listed) with copies of Prospectuses and
Statements of Additional Information and Product Descriptions to be provided to purchasers in the
secondary market. The Distributor will generally make it known in the brokerage community that
Prospectuses and Statements of Additional Information and Product Descriptions are available,
including by (i) advising the Listing Exchange on behalf of its member firms of the same, (ii)
making such disclosure in all marketing and advertising materials prepared and/or filed by the
Distributor with the FINRA, and (iii) as may otherwise be required by the Commission.
(j) The Distributor agrees to make available, at the Trust’s request, one or more members of
its staff to attend Board meetings of the Trust in order to provide information with regard to the
ongoing distribution process and for such other purposes as may be requested by the Board of
Trustees of the Trust.
(k) The Distributor shall review and approve all sales and marketing materials for compliance
with applicable laws and conditions of any applicable exemptive order, and file such materials with
the FINRA when necessary or appropriate. All such sales and marketing materials must be approved,
in writing, by the Distributor prior to use.
4. Duties of the Trust.
(a) The Trust agrees to issue Creation Unit aggregations of Shares of each Fund and to request
The Depository Trust Company to record on its books the ownership
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of such Shares in accordance with the book-entry system procedures described in the Prospectus in
such amounts as the Distributor has requested through the Transfer Agent in writing or other means
of data transmission, as promptly as practicable after receipt by the Trust of the requisite
Deposit Securities and Cash Component (together with any fees) and acceptance of such order, upon
the terms described in the Registration Statement. The Trust may reject any order for Creation
Units or stop all receipts of such orders at any time upon reasonable notice to the Distributor, in
accordance with the provisions of the Prospectus and Statement of Additional Information.
(b) The Trust agrees that it will take all action necessary to register an indefinite number
of Shares under the 1933 Act. The Trust will make available to the Distributor such number of
copies of its then currently effective Prospectus and Statement of Additional Information and
Product Description as the Distributor may reasonably request. The Trust will furnish to the
Distributor copies of semi-annual reports and annual audited reports of the Trust’s books and
accounts made by independent public accountants regularly retained by the Trust and such other
publicly available information which the Distributor may reasonably request for use in connection
with the distribution of Creation Units. The Trust shall keep the Distributor informed of the
jurisdictions in which Shares of the Trust are authorized for sale and shall promptly notify the
Distributor of any change in this information. The Distributor shall not be liable for damages
resulting from the sale of Shares in authorized jurisdictions where the Distributor had no
information from the Trust that such sale or sales were unauthorized at the time of such sale or
sales.
(c) The Trust represents to the Distributor that the Registration Statement and Prospectus
filed by the Trust with the Commission with respect to the Trust have been prepared in conformity
with the requirements of the 1933 Act, the 1940 Act and the rules and regulations of the Commission
thereunder. The Trust will notify the Distributor promptly of any amendment to the Registration
Statement or supplement to the Prospectus and any stop order suspending the effectiveness of the
Registration Statement; provided, however, that nothing contained in this Agreement shall in any
way limit the Trust’s right to file at any time such amendments to any Registration Statement
and/or supplements to any Prospectus, of whatever character, as the Trust may deem advisable, such
right being in all respects absolute and unconditional.
5. Fees and Expenses.
(a) The Distributor shall be entitled to no compensation or reimbursement of expenses from the
Trust for the services provided by the Distributor pursuant to this Agreement. The Distributor may
receive compensation from the Trust or the Adviser related to its services hereunder or for
additional services as may be agreed to between the Adviser and Distributor.
(b) The Trust shall bear the cost and expenses: (i) of the registration of the Shares for sale
under the Securities Act; and (ii) of the registration or qualification of the Shares for sale
under the securities laws of the various States;
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(c) Distributor shall pay all expenses relating to Distributor’s broker-dealer qualification.
Distributor shall also pay all expenses incurred in providing office space, equipment, and
personnel as may be necessary or convenient to provide the services.
(d) Notwithstanding anything in this Agreement to the contrary, the Distributor and its
affiliates may receive compensation or reimbursement from the Trust and the Adviser with respect to
any services not included under this Agreement.
6. Indemnification.
(a) The Trust agrees to indemnify and hold harmless the Distributor and each of the directors,
officers and employees and agents and any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act (any of the Distributor, its officers, employees, agents and directors
or such control persons, for purposes of this paragraph, a “Distributor Indemnitee”) against any
loss, liability, claim, damages or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damages or expense and reasonable counsel fees
incurred in connection therewith) arising out of or based upon (i) the claim that the Registration
Statement, Prospectus, Statement of Additional Information, Product Description, shareholder
reports or other information filed or made public by the Trust (as from time to time amended)
included an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein (and in the case of the
Prospectus, Statement of Additional Information and Product Description, in light of the
circumstances under which they were made) not misleading under the 1933 Act, or any other statute
or the common law, (ii) the breach of any obligation, representation or warranty pursuant to this
Agreement by the Trust, or (iii) the Trust’s failure to comply in any material respect with
applicable securities laws. However, the Trust does not agree to indemnify the Distributor or hold
it harmless to the extent that the statement or omission was made in reliance upon, and in
conformity with information furnished to the Trust by or on behalf of the Distributor. The Trust
will also not indemnify any Distributor Indemnitee with respect to any untrue statement or omission
made in the Registration Statement, Prospectus, Statement of Additional Information or Product
Description that is subsequently corrected in such document (or an amendment thereof or supplement
thereto) if a copy of the Prospectus (or such amendment or supplement) was not sent or given to the
person asserting any such loss, liability, claim, damage or expense at or before the written
confirmation to such person in any case where such delivery is required by the 1933 Act and the
Trust had notified the Distributor of the amendment or supplement prior to the sending of the
confirmation. In no case (i) is the indemnity of the Trust in favor of any Distributor Indemnitee
to be deemed to protect the Distributor Indemnitee against any liability to the Trust or its
shareholders to which the Distributor Indemnitee would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this Agreement, or (ii) is the Trust to be
liable under its indemnity agreement contained in this paragraph with respect to any claim made
against any Distributor Indemnitee unless the Distributor
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Indemnitee shall have notified the Trust in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of the claim shall
have been served upon Distributor Indemnitee (or after Distributor Indemnitee shall have received
notice of service on any designated agent). However, failure to notify the Trust of any claim shall
not relieve the Trust from any liability which it may have to any Distributor Indemnitee against
whom such action is brought otherwise than on account of its indemnity agreement contained in this
paragraph unless failure or delay to so notify the Trust prejudices the Trust’s ability to defend
against such claim. The Trust shall be entitled to participate at its own expense in the defense,
or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the
Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and
satisfactory to Distributor Indemnitee, defendant or defendants in the suit. In the event the Trust
elects to assume the defense of any suit and retain counsel, Distributor Indemnitee, defendant or
defendants in the suit, shall bear the fees and expenses of any additional counsel retained by
them. If the Trust does not elect to assume the defense of any suit, it will reimburse the
Distributor Indemnitee, defendant or defendants in the suit, for the reasonable fees and expenses
of any counsel retained by them. The Trust agrees to notify the Distributor promptly of the
commencement of any litigation or proceedings against it or any of its officers or Trustees in
connection with the issuance or sale of any of the Creation Units or the Shares.
(b) The Distributor agrees to indemnify and hold harmless the Trust and each of its Trustees
and officers and any person who controls the Trust within the meaning of Section 15 of the 1933 Act
(for purposes of this paragraph, the Trust and each of its Trustees and officers and its
controlling persons are collectively referred to as the “Trust Affiliates”) against any loss,
liability, claim, damages or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in
connection therewith) arising out of or based upon (i) the allegation of any wrongful act of the
Distributor or any of its directors, officers or employees, (ii) the breach of any obligation,
representation or warranty pursuant to this Agreement by the Distributor, (iii) the Distributor’s
failure to comply in any material respect with applicable securities laws, including applicable
FINRA regulations, or (iv) allegation that the Registration Statement, Prospectus, Statement of
Additional Information, Product Description, shareholder reports, any information or materials
relating to the Funds (as described in section 3(c)(ii)) or other information filed or made public
by the Trust (as from time to time amended) included an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in order to make the
statements not misleading, insofar as the statement or omission was made in reliance upon, and in
conformity with information furnished to the Trust by or on behalf of the Distributor. In no case
(i) is the indemnity of the Distributor in favor of any Trust Affiliate to be deemed to protect any
Trust Affiliate against any liability to the Trust or its security holders to which such Trust
Affiliate would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Distributor to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made against any Trust
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Affiliate unless the Trust Affiliate shall have notified the Distributor in writing of the claim
within a reasonable time after the summons or other first written notification giving information
of the nature of the claim shall have been served upon the Trust Affiliate (or after the Trust
Affiliate shall have received notice of service on any designated agent). However, failure to
notify the Distributor of any claim shall not relieve the Distributor from any liability which it
may have to the Trust Affiliate against whom such action is brought otherwise than on account of
its indemnity agreement contained in this paragraph unless failure or delay to so notify the
Distributor prejudices the Distributor’s ability to defend against such claim. The Distributor
shall be entitled to participate at its own expense in the defense or, if it so elects, to assume
the defense of any suit brought to enforce the claim, but if the Distributor elects to assume the
defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Trust, its
officers and Board and to any controlling person or persons, defendant or defendants in the suit.
In the event that Distributor elects to assume the defense of any suit and retain counsel, the
Trust or controlling person or persons, defendant or defendants in the suit, shall bear the fees
and expenses of any additional counsel retained by them. If the Distributor does not elect to
assume the defense of any suit, it will reimburse the Trust, its officers and Trustees or
controlling person or persons, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Distributor agrees to notify the Trust promptly of
the commencement of any litigation or proceedings against it or any of its officers or directors in
connection with the issuance or sale of any of the Creation Units or the Shares.
(c) No indemnified party shall settle any claim against it for which it intends to seek
indemnification from the indemnifying party, under the terms of section 6(a) or 6(b) above, without
the prior written notice to and consent from the indemnifying party, which consent shall not be
unreasonably withheld. No indemnified or indemnifying party shall settle any claim unless the
settlement contains a full release of liability with respect to the other party in respect of such
action. This section 6 shall survive the termination of this Agreement.
7. Representations.
(a) The Distributor represents and warrants that (i) it is duly organized as a Delaware
limited liability company and is and at all times will remain duly authorized and licensed to carry
out its services as contemplated herein; (ii) the execution, delivery and performance of this
Agreement are within its power and have been duly authorized by all necessary action; and (iii) its
entering into this Agreement or providing the services contemplated hereby does not conflict with
or constitute a default or require a consent under or breach of any provision of any agreement or
document to which the Distributor is a party or by which it is bound and (iv) it is registered as a
broker-dealer under the 1934 Act and is a member of the FINRA.
(b) The Distributor and the Trust represent and warrant that: (i) it understands that pursuant
to various U.S. regulations, it is required to establish an anti-money laundering program, which
satisfies the requirements of Title III of the Uniting and
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Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (the “USA Patriot Act”); (ii) it has developed, implemented, and will maintain such an
anti-money laundering program and will comply with all applicable laws and regulations designed to
guard against money laundering activities set out in such program; and (iii) it will allow for
appropriate regulators to examine its anti-money laundering books and records.
(c) The Distributor and the Trust represent and warrant that: (i) it has procedures in place
reasonably designed to protect the privacy of non-public personal consumer/customer financial
information to the extent required by applicable law, rule and regulation; (ii) it will comply with
all of the applicable terms and provisions of the 1934 Act; and (iii) it will provide
certifications to the Trust in order to assist the Trust in complying with certain rules under the
1940 Act (by way of example only, Rules 30a-2, 30a-3 and 38a-1) and in connection with the filing
of certain Forms (by way of example only, Form N-CSR).
(d) The Trust represents and warrants that (i) it is duly organized as a Delaware statutory
trust and is and at all times will remain duly authorized to carry out its obligations as
contemplated herein; (ii) it is, or will be within a reasonable date, registered as an investment
company under the 1940 Act; (iii) the execution, delivery and performance of this Agreement are
within its power and have been duly authorized by all necessary action; (iv) its entering into this
Agreement does not conflict with or constitute a default or require a consent under or breach of
any provision of any agreement or document to which the Trust is a party or by which it is bound;
(v) the Registration Statement has been, and any amendment thereto will be, as the case may be,
prepared in conformity with the requirements of the Securities Act and the 1940 Act and the rules
and regulations thereunder, and all client-related advertisement or sales literature shall be
prepared in conformity with requirements of applicable laws and regulations; (vi) the Registration
Statement and advertisement and sales literature shall contain all statements required to be stated
therein in conformity with said Acts, laws and regulations and the rules and regulations of the SEC
thereunder or other applicable regulatory authority, and all material statements of fact contained
or to be contained in the registration statement and advertisement and sales literature are or will
be true and correct in all material respects at the time indicated or on the effective date, as the
case may be; (vii) the Registration Statement and advertisement and sales literature, when it shall
become effective or be authorized for use, will not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading to a purchaser of Shares; and (viii) it shall not file any amendment to the
Registration Statement or Prospectuses without giving the Distributor reasonable advance notice
thereof; provided, however, that nothing contained in this Agreement shall in any way limit the
Trust’s right to file at any time such amendments to the registration statement or prospectuses, of
whatever character, as the Trust may deem advisable, such right being in all respects absolute and
unconditional.
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8. Duration, Termination and Amendment.
(a) This Agreement shall be effective on November 16, 2007, and unless terminated as provided
herein, shall continue for two years from its effective date, and thereafter from year to year,
provided such continuance is approved annually by (i) by vote of a majority of the Trustees or by
the vote of a majority of the outstanding voting securities of the Fund and (ii) by the vote of a
majority of those Trustees 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. This Agreement
may be terminated at any time, without the payment of any penalty, as to each Fund (i) by vote of a
majority of those Trustees who are not parties to this Agreement or interested persons of any such
party or (ii) by vote of a majority of the outstanding voting securities of the Fund, on at least
sixty (60) days prior written notice to the Distributor. This Agreement shall automatically
terminate without the payment of any penalty in the event of its assignment. As used in this
paragraph, terms “vote of a majority of the outstanding voting securities”, “assignment”,
“affiliated person” and “interested person” shall have the respective meanings specified in the
1940 Act.
(b) No provision of this Agreement may be changed, waived, discharged or terminated except by
an instrument in writing signed by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
9. Notice.
Any notice or other communication authorized or required by this Agreement to be given to
either party shall be in writing and deemed to have been given when delivered in person or by
confirmed facsimile, or posted by certified mail, return receipt requested, to the following
address (or such other address as a party may specify by written notice to the other):
If to the Distributor:
Foreside Fund Services, LLC
ATTN: Chief Compliance Xxxxxxx
Xxx Xxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ATTN: Chief Compliance Xxxxxxx
Xxx Xxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trust:
FocusShares Trust
ATTN: President
000 Xxxxxx Xxxxxx, Xxxxx X-00
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
ATTN: President
000 Xxxxxx Xxxxxx, Xxxxx X-00
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
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10. Choice of Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the state
of Delaware, without giving effect to the choice of laws provisions thereof.
11. Counterparties.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
12. Severability.
If any provisions of this Agreement shall be held or made invalid, in whole or in part, then
the other provisions of this Agreement shall remain in force. Invalid provisions shall, in
accordance with this Agreement’s intent and purpose, be amended, to the extent legally possible, by
valid provisions in order to effectuate the intended results of the invalid provisions.
13. Insurance.
The Distributor will maintain at its expense an errors and omissions insurance policy which
covers services by the Distributor hereunder.
14. Confidentiality.
During the term of this Agreement, the Distributor and the Trust may have access to
confidential information relating to such matters as either party’s business, trade secrets,
systems, procedures, manuals, products, contracts, personnel, and clients. As used in this
Agreement, “Confidential Information” means information belonging to one of the parties which is of
value to such party and the disclosure of which could result in a competitive or other disadvantage
to such party. Confidential Information includes, without limitation, financial information,
proposal and presentations, reports, forecasts, inventions, improvements and other intellectual
property; trade secrets; know-how; designs, processes or formulae; software; market or sales
information or plans; customer lists; and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or facilities). Confidential Information
includes information developed by either party in the course of engaging in the activities provided
for in this Agreement, unless: (i) the information is or becomes publicly known through lawful
means; (ii) the information is disclosed to the other party without a confidential restriction by a
third party who rightfully possesses the information and did not obtain it, either directly or
indirectly, from one of the parties, as the case may be, or any of their respective principals,
employees, affiliated persons, or affiliated entities. The parties understand and agree that all
Confidential Information shall be kept confidential by the other both during and after the term of
this Agreement. Each party shall maintain
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commercially reasonable information security policies and procedures for protecting Confidential
Information. The parties further agree that they will not, without the prior written approval by
the other party, disclose such Confidential Information, or use such Confidential Information in
any way, either during the term of this Agreement or at any time thereafter, except as required in
the course of this Agreement and as proved by the other party or as required by law. Upon
termination of this Agreement for any reason, or as otherwise requested by the Trust, all
Confidential Information held by or on behalf of Trust shall be promptly returned to the Trust, or
an authorized officer of the Distributor will certify to the Trust in writing that all such
Confidential Information has been destroyed. This section 14 shall survive the termination of this
Agreement.
15. Limitation of Liability.
The Declaration of Trust, establishing the Trust, which is hereby referred to and a copy of
which is on file with the Secretary of State of the State of Delaware, provides that the Trustees
shall be entitled to the protection against personal liability for the obligations of the Trust
under Section 3803(b) of the Delaware Business Trust Act, as amended (the “DBTA”). It is expressly
acknowledged and agreed that the obligations of the Trust hereunder shall not be binding upon any
of the shareholders, Trustees, officers, employees or agents of the Trust, personally, but shall
bind only the trust property of the Trust, as provided in its Declaration of Trust and under
Section 3803 of the DBTA. The execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and signed by an officer of the Trust, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such officer shall be deemed to
have been made by any of them individually or to impose any liability on any of them personally,
but shall bind only the trust property of the Trust as provided in its Trust Instrument and under
Section 3803 of the DBTA. The Distributor understands that the rights and obligations of each
series of shares of the Trust under the Trust Instrument are separate and distinct from those of
any and all other series. This section 15 shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
officers designated below as of the date first set forth above.
| FOCUSSHARES TRUST | ||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx
|
|||
Title:
|
President | |||
| FORESIDE FUND SERVICES, LLC | ||||
By: Name: |
/s/ Xxxxxxx X. Xxxxxx
|
|||
Title:
|
Vice President | |||
13
EXHIBIT A
FocusShares ISE Homebuilders Index Fund
FocusShares ISE SINdex Fund
FocusShares ISE-CCM Homeland Security Index Fund
FocusShares ISE-REVERE Wal-Mart Supplier Index Fund
FocusShares ISE SINdex Fund
FocusShares ISE-CCM Homeland Security Index Fund
FocusShares ISE-REVERE Wal-Mart Supplier Index Fund
14
