FORM OF AUTHORIZED PARTICIPANT AGREEMENT
FORM
OF AUTHORIZED PARTICIPANT AGREEMENT
This
Authorized Participant Agreement (the “Agreement”) is entered into by and
between Foreside Fund Services, LLC (the “Distributor”) and [
] (the
“Participant”) and is subject to acceptance by The Bank of New York Mellon (the
“Index Receipt Agent”) as index receipt agent for U.S. One Trust (the
“Trust”).
The Index
Receipt Agent serves as the custodian (the “Custodian”) and as transfer agent
for the Trust. The Index Receipt Agent hereby agrees to serve as the
index receipt agent for the Trust and all of its designated series (each a
“Fund” and collectively, the “Funds”), and is an Index Receipt Agent as that
term is defined in the rules of the National Securities Clearing Corporation
(“NSCC”). The Distributor provides services as principal underwriter
of the Funds acting on an agency basis in connection with the sale and
distribution of the class of shares issued by the Funds known as “Fund
Shares.”
The
process by which an investor purchases and redeems Fund Shares from a Fund is
described in detail in the Trust's current prospectus(es) and statement of
additional information, as each may be supplemented or amended from time to time
(the “Prospectuses”) that comprise part of the Trust’s registration statement,
as amended, on Form N-1A (Securities Act of 1933 Registration
No. 333-147077; Investment Company Act of 1940 Registration
No. 811-22140) and the Authorized Participant Procedures Handbook (“AP
Handbook”) (hereinafter collectively, “Fund Documents”). The discussion of the
purchase and redemption process in this Agreement is modified as necessary by
reference to the more complete discussions in the Fund Documents. References to
the Fund Documents are to the then current Prospectuses and AP Handbook as each
may be supplemented or amended from time to time. Capitalized terms used herein
but not otherwise defined herein shall have the meanings set forth in the Fund
Documents. In the event of a conflict between this Agreement and the Fund
Documents, the Fund Documents shall control. In the event of a
conflict between the Prospectuses and AP Handbook, the Prospectuses shall
control. Each party to this Agreement agrees to comply with the provisions of
the Fund Documents to the extent applicable to it.
Fund
Shares may be purchased or redeemed directly from the Fund only in aggregations
of a specified number, known as a “Creation Unit.” The number of Fund Shares
presently constituting a Creation Unit of each Fund is set forth in Annex I.
Creation Units of Fund Shares may be purchased only by or through an entity that
has entered into an Authorized Participant Agreement with the Distributor and is
either a participant in The Depository Trust Company (“DTC”) or a broker-dealer
or other participant in the Continuous Net Settlement System (the “CNSS”) of
NSCC.
To
purchase a Creation Unit, an authorized DTC participant or CNSS participant,
whether acting for its own account or on behalf of another party, generally must
deliver to the Fund a designated basket of equity securities (the “Deposit
Securities”) and an amount of cash computed as described in the Fund Documents
(the “Balancing Amount”), plus a purchase transaction fee as described in the
Fund Documents (the “Transaction Fee”). The Deposit Securities and the Balancing
Amount together constitute the “Fund Deposit.” The amount of such Transaction
Fee shall be determined by the Trust or investment adviser to the Trust in its
sole discretion and may be changed from time to time.
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This
Agreement is intended to set forth the procedures by which the Participant may
purchase and/or redeem Creation Units of Fund Shares (i) through the CNSS
clearing processes of NSCC as such processes have been enhanced to effect
purchases and redemptions of Creation Units, such processes being referred to
herein as the “Clearing Process,” or (ii) outside the Clearing Process through
the DTC systems. The procedures for processing an order to purchase Fund Shares
(a “Purchase Order”) and an order to redeem Fund Shares (a “Redemption Order”)
are described in the Fund Documents. All Purchase and Redemption Orders must be
made pursuant to the procedures set forth in the Fund Documents. The
Participant may not cancel a Purchase Order or a Redemption Order after it is
placed.
The
parties hereto, in consideration of the premises and of the mutual agreements
contained herein, agree as follows:
1. STATUS
OF PARTICIPANT
(a) The
Participant hereby represents, covenants, and warrants that it is and will
continue to be a participant in DTC (“DTC Participant”) so long as this
Agreement is in full force and effect and that, with respect to Purchase Orders
or Redemption Orders placed through the Clearing Process, it is and will
continue to be a member of NSCC and a participant in the CNSS so long as this
Agreement is in full force and effect. The Participant may place Purchase Orders
or Redemption Orders either through the Clearing Process or outside the Clearing
Process through the DTC, subject to the procedures for purchase and redemption
referred to in paragraph 2 and the AP Handbook. If a Participant loses its
status as a DTC Participant or NSCC member, or its eligibility to participate in
the CNSS, the Participant shall promptly notify the Distributor in writing of
the change in status or eligibility. Upon such notice, the
Distributor, in its sole discretion, may terminate this Agreement.
(b) The
Participant hereby represents and warrants that, to the extent required, it is
registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended, is qualified to act as a broker or dealer in the states or other
jurisdictions where it transacts business, and is a member in good standing of
the Financial Industry Regulatory Authority (the “FINRA”). The Participant
agrees that it will maintain such registrations, qualifications, and membership
in good standing and in full force and effect throughout the term of this
Agreement. The Participant agrees to comply with all applicable federal laws,
the laws of the states or other jurisdictions concerned, and the rules and
regulations promulgated thereunder, and with the Constitution, By-Laws and
Conduct Rules of the FINRA, and that it will not offer or sell Fund Shares of
any Fund in any state or jurisdiction where such shares may not lawfully be
offered and/or sold.
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(c) The
Participant represents, covenants and warrants that it currently is, and will
continue to be throughout the term of this Agreement, a “qualified institutional
buyer” as such term is defined in Rule 144A of the 1933
Act. Participant shall give prompt notice to the Distributor,
Transfer Agent, the Index Receipt Agent and the Trust of any change in the
foregoing status and, at the option of the Trust to be exercised within ten days
after receipt of such notice, shall terminate this Agreement.
(d) If
the Participant is offering and selling Fund Shares of any Fund in jurisdictions
outside the several states, territories and possessions of the United States and
is not otherwise required to be registered or qualified as a broker or dealer,
or to be a member of the FINRA, as set forth above, the Participant nevertheless
agrees to observe the applicable laws of the jurisdiction in which such offer
and/or sale is made, to comply with the full disclosure requirements of the
Securities Act of 1933 as amended (the “1933 Act”) and the regulations
promulgated thereunder, and to conduct its business in accordance with the
spirit of the FINRA Conduct Rules.
(e) The
Participant understands and acknowledges that the proposed method by which
Creation Units will be created and traded may raise certain issues under
applicable securities laws. For example, because new Creation Units may be
issued and sold by the Fund on an ongoing basis, at any point a “distribution,”
as such term is used in the 1933 Act, may occur. The Participant understands and
acknowledges that some activities on its part, depending on the circumstances,
may result in its being deemed a participant in the distribution in a manner
that could render it a statutory underwriter and subject it to the prospectus
delivery and liability provisions of the 1933 Act. (A xxxxxx discussion of these
risks appears in the Prospectuses.) Whether a person is an underwriter depends
upon all of the facts and circumstances pertaining to that person’s activities,
and you should consult legal counsel if you are uncertain of your status.
Neither the Distributor nor the Index Receipt Agent will indemnify the
Participant for any violations of the federal securities laws committed by the
Participant.
2. EXECUTION
OF PURCHASE AND REDEMPTION ORDERS
(a) All
Purchase Orders and Redemption Orders shall be made in accordance with the terms
of the Fund Documents and the procedures as described in the AP Handbook. Each
party hereto agrees to comply with the provisions of such documents to the
extent applicable to it. It is contemplated that the phone lines used in
connection with the purchase and redemption of Creation Units, which includes
use by representatives of the Distributor, Index Receipt Agent or the Trust and
any affiliates thereof, will be recorded, and the Participant hereby consents to
the recording of all calls in connection with the purchase and redemption of
Creation Units. The Funds reserve the right to issue additional or other
procedures relating to the manner of purchasing or redeeming Creation Units, and
the Participant agrees to comply with such procedures as may be issued from time
to time, including but not limited to the Fund Shares cash collateral settlement
procedures that are referenced in the AP Handbook. The Participant acknowledges
and agrees on behalf of itself and any party for which it is acting that a
Purchase Order or Redemption Order shall be irrevocable, and that the Funds (or
the Distributor on behalf of the Funds) reserve the right to reject any Purchase
Order or Redemption Order in accordance with the terms of the Fund Documents.
The Participant agrees that the Distributor and the Trust have and reserve the
right, in their sole discretion without notice, to reject a Purchase Order or
Redemption Order or suspend sales of Fund Shares, in accordance with the terms
of the Fund Documents.
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(b) With
respect to any Redemption Order, the Participant acknowledges and agrees on
behalf of itself and any party for which it is acting to return to a Fund any
dividend, distribution, or other corporate action paid to it or to the party for
which it is acting in respect of any Deposit Security that is transferred to the
Participant or any party for which it is acting that, based on the valuation of
such Deposit Security at the time of transfer, should have been paid to the
Fund. With respect to any Redemption Order, the Participant also acknowledges
and agrees on behalf of itself and any party for which it is acting that a Fund
is entitled to reduce the amount of money or other proceeds due to the
Participant or any party for which it is acting by an amount equal to any
dividend, distribution, or other corporate action to be paid to it or to the
party for which it is acting in respect of any Deposit Security that is
transferred to the Participant or any party for which it is acting that, based
on the valuation of such Deposit Security at the time of transfer, should be
paid to the Fund. With respect to any Purchase Order, each Fund acknowledges and
agrees to return to the Participant or any party for which it is acting any
dividend, distribution, or other corporate action paid to the Fund in respect of
any Deposit Security that is transferred to the Fund that, based on the
valuation of such Deposit Security at the time of transfer, should have been
paid to the Participant or any party for which it is acting.
(c) When
making a Redemption Order, the Participant understands and agrees that in the
event Fund Shares are not transferred to the Fund in accordance with the terms
of the Fund Documents, such Redemption Order may be rejected by the Fund and the
Participant will be solely responsible for all costs and losses and fees
incurred by the Fund, the Index Receipt Agent or the Distributor related to such
rejected Redemption Order.
3. AUTHORIZATION
OF INDEX RECEIPT AGENT
With
respect to Purchase Orders or Redemption Orders processed through the Clearing
Process, the Participant hereby authorizes the Index Receipt Agent to transmit
to the NSCC on behalf of the Participant such instructions, including amounts of
the Deposit Securities and Balancing Amounts as are necessary, consistent with
the instructions issued by the Participant to the Distributor. The Participant
agrees to be bound by the terms of such instructions issued by the Index Receipt
Agent and reported to NSCC as though such instructions were issued by the
Participant directly to NSCC.
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4. MARKETING
MATERIALS AND REPRESENTATIONS.
The
Participant represents, warrants, and agrees that it will not make any
representations concerning Fund Shares, the Trust or the Funds, other than those
contained in the Funds’ then current Prospectuses or in any promotional
materials or sales literature furnished to the Participant by the Distributor.
The Participant agrees not to furnish or cause to be furnished to any person or
display or publish any information or materials relating to Fund Shares
(including, without limitation, promotional materials and sales literature,
advertisements, press releases, announcements, statements, posters, signs, or
other similar materials), except such information and materials as may be
furnished to the Participant by the Distributor and such other information and
materials as may be approved in writing by the Distributor. The Participant
understands that the Fund will not be advertised or marketed as an open-end
investment company, i.e., as a mutual fund, and that any advertising materials
will prominently disclose that the Fund Shares are not individually redeemable.
In addition, the Participant understands that any advertising material that
addresses redemption of Fund Shares will disclose that Fund Shares may be
tendered for redemption to the issuing Fund only in Creation Units.
Notwithstanding the foregoing, the Participant may without the written approval
of the Distributor prepare and circulate in the regular course of its business
research reports that include information, opinions, or recommendations relating
to Fund Shares (i) for public dissemination, provided that such research reports
compare the relative merits and benefits of Fund Shares with other products and
are not used for purposes of marketing Fund Shares and (ii) for internal use by
the Participant.
5. TITLE
TO SECURITIES; RESTRICTED SHARES
The
Participant represents on behalf of itself and any party for which it acts that
upon delivery of Deposit Securities to the Custodian, the Fund will acquire good
and unencumbered title to such securities, free and clear of all liens,
restrictions, charges, and encumbrances, and not subject to any adverse claims,
including without limitation any restrictions upon the sale or transfer of such
securities imposed by (i) any agreement or arrangement entered into by the
Participant or any party for which it is acting in connection with a Purchase
Order; or (ii) any provision of the 1933 Act, and any regulations thereunder
(except that portfolio securities of issuers other than U.S. issuers shall not
be required to have been registered under the 1933 Act if exempt from such
registration), or of the applicable laws or regulations of any other applicable
jurisdiction. In particular, the Participant represents on behalf of itself and
any party for which it acts that no such securities are “restricted securities”
as such term is used in Rule 144(a)(3)(i) under the 1933 Act.
6. BALANCING
AMOUNT
The
Participant hereby agrees that, in connection with a Purchase Order, whether for
itself or any party for which it acts, it will make available on or before the
contractual settlement date (the “Contractual Settlement Date”), by means
satisfactory to the Trust, and in accordance with the provisions of the Fund
Documents, immediately available or same day funds estimated by the Trust to be
sufficient to pay the Balancing Amount next determined after acceptance of the
Purchase Order, together with the applicable purchase transaction
fee. Any excess funds will be returned following settlement of the
Purchase Order. The Participant should ascertain the applicable
deadline for cash transfers by contacting the operations department of the
broker or depositary institution effectuating the transfer of the Balancing
Amount. The Participant hereby agrees to ensure that the Balancing Amount will
be received by the issuing Fund in accordance with the terms of the Fund
Documents, but in any event on or before the Contractual Settlement Date, and in
the event payment of such Balancing Amount has not been made in accordance with
the provisions of the Fund Documents or by such Contractual Settlement Date, the
Participant agrees on behalf of itself or any party for which it acts in
connection with a Purchase Order to pay the amount of the Balancing Amount, plus
interest, computed at such reasonable rate as may be specified by the Fund from
time to time. The Participant shall be liable to the Custodian, any
sub-custodian or the Trust for any amounts advanced by the Custodian or any
sub-custodian in its sole discretion to the Participant for payment of the
amounts due and owing for the Balancing Amount. Computation of the Balancing
Amount shall exclude any taxes, duties or other fees and expenses payable upon
the transfer of beneficial ownership of the Deposit Securities, which shall be
the sole responsibility of the Participant and not the Trust.
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7. ROLE
OF PARTICIPANT
(a) The
Participant acknowledges and agrees that, for all purposes of this Agreement,
the Participant will be deemed to be an independent contractor, and will have no
authority to act as agent for the Funds or the Distributor in any matter or in
any respect. The Participant agrees to make itself and its employees available,
upon request, during normal business hours to consult with the Funds, the
Distributor, the Index Receipt Agent or their designees concerning the
performance of the Participant’s responsibilities under this
Agreement.
(b) The
Participant agrees as a DTC Participant and in connection with any purchase or
redemption transactions in which it acts on behalf of a third party, that it
shall extend to such party all of the rights, and shall be bound by all of the
obligations, of a DTC Participant in addition to any obligations that it
undertakes hereunder or in accordance with the Fund Documents.
(c) The
Participant agrees to maintain all books and records of all sales of Fund Shares
made by or through it pursuant to its obligations under the federal securities
laws and to furnish copies of such records to the Fund or the Distributor upon
the request of the Fund or the Distributor.
(d) The
Participant represents that from time to time it may be a Beneficial Owner (as
that term is defined Rule 16a-1(a)(2) of the Securities Exchange Act of 1934) of
Fund Shares. To the extent that it is a Beneficial Owner of Fund Shares, the
Participant agrees to irrevocably appoint Distributor as its attorney and proxy
with full authorization and power to vote (or abstain from voting) its
beneficially owned shares. The Distributor intends to vote (or abstain from
voting) the Participant’s beneficially owned shares in the same proportion as
the votes (or abstentions) of all other shareholders of the Fund on any matter
submitted to the vote of shareholders of the Fund or Trust. The Distributor, as
attorney and proxy for Participant under this Paragraph, (i) is hereby given
full power of substitution and revocation; (ii) may act through such agents,
nominees, or attorneys as it may appoint from time to time; and (iii) may
provide voting instructions to such agents, nominees, or substitute attorneys.
Distributor may terminate this irrevocable proxy within sixty (60) days written
notice to the Participant.
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(e) The
Participant represents that it has policies, procedures and internal controls in
place that are reasonably designed to comply with applicable anti-money
laundering laws and regulations, including applicable provisions of the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (the “USA Patriot Act”), the regulations
administered by the U.S. Department of the Treasury’s Office of Foreign Assets
Control, and the rules promulgated by the SEC.
(f) The
Participant agrees that it shall safeguard the privacy of non-public personal
information in accordance with the procedures required under Section 11(b)
hereof.
8. AUTHORIZED
PERSONS OF THE PARTICIPANT
(a) Concurrently
with the execution of this Agreement and from time to time thereafter as may be
requested by the Funds, the Participant shall deliver to the Funds, with copies
to the Index Receipt Agent, a certificate in a form approved by the Funds (see
Annex II hereto), duly certified as appropriate by the Participant’s Secretary
or other duly authorized official, setting forth the names and signatures of all
persons authorized to give instructions relating to any activity contemplated
hereby or any other notice, request, or instruction on behalf of the Participant
(each an “Authorized Person”). Such certificate may be accepted and relied upon
by the Distributor and the Funds as conclusive evidence of the facts set forth
therein and shall be considered to be in full force and effect until delivery to
the Funds of a superseding certificate. Upon the termination or revocation of
authority of such Authorized Person by the Participant, the Participant shall
give immediate written notice of such fact to the Funds with copy to the Index
Receipt Agent and such notice shall be effective upon receipt by the
Funds.
(b) The
Distributor shall issue to the Participant a unique personal identification
number (“PIN Number”) by which the Participant shall be identified and
instructions issued by the Participant hereunder shall be authenticated. The PIN
Number shall be kept confidential and provided to Authorized Persons only. If
the Participant’s PIN Number is changed, the new PIN Number will become
effective on a date mutually agreed upon by the Participant and the Distributor.
If for some reason, the Participant’s PIN number is compromised, the Participant
shall contact the Distributor immediately in order for a new one to be
issued.
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(c) The
Distributor shall assume that all instructions issued to it using the
Participant’s PIN Number have been properly placed, unless the Distributor has
actual knowledge to the contrary or the Participant has revoked its PIN Number.
The Distributor shall not verify that an Order is being placed by or on behalf
of the Participant. The Participant agrees that the Distributor, the Index
Receipt Agent and the Trust shall not be liable, absent fraud or willful
misconduct, for losses incurred by the Participant as a result of unauthorized
use of the Participant’s PIN Number, unless the Participant previously submitted
written notice to revoke its PIN Number.
9. REDEMPTIONS
(a) The
Participant understands and agrees that Redemption Orders may be submitted only
on days that the Trust is open for business, as required by Section 22(e) of the
Investment Company Act of 1940.
(b) The
Participant represents, covenants and warrants that it will not attempt to place
a Redemption Order for the purpose of redeeming any Creation Units unless it
first ascertains that it or its customer, as the case may be, owns outright or
has full legal authority and legal and beneficial right to tender for redemption
the requisite number of Fund Shares, and that such Fund Shares have not been
loaned or pledged to another party and are not the subject of a repurchase
agreement, securities lending agreement, or any other agreement that would
preclude the delivery of such Fund Shares to the Fund.
(c) The
Participant understands that Fund Shares of any Fund may be redeemed only when
one or more Creation Units are held in the account of a single
Participant.
(d) Notwithstanding
anything to the contrary in this Agreement or the Prospectuses, the Participant
understands and agrees that residents of certain countries are entitled to
receive only cash upon redemption of a Creation Unit. Accordingly, the
Participant is required to confirm that any request it submits for an in-kind
redemption has not been submitted on behalf of a Beneficial Owner who is a
resident of a country requiring that all redemptions be made in
cash.
10. COMPLIANCE
WITH INTERNAL REVENUE CODE SECTION 351
(a) The
Participant represents, covenants and warrants that, based upon the number of
outstanding Fund Shares of any particular Fund, it does not, and will not in the
future, hold for the account of any single Beneficial Owner, or group of related
Beneficial Owners, 80 percent or more of the currently outstanding Fund Shares
of such Fund, so as to cause the Fund to have a basis in the portfolio
securities deposited with the Fund different from the market value of such
portfolio securities on the date of such deposit, pursuant to section 351 of the
Internal Revenue Code of 1986, as amended.
(b) The
Participant agrees that the confirmation relating to any order for one or more
Creation Units shall state as follows: “Purchaser represents and warrants that,
after giving effect to the purchase of Fund Shares to which this confirmation
relates, it will not hold 80% or more of the outstanding Fund Shares of the
issuing Fund and will not treat such purchase as eligible for tax-free treatment
under Section 351 of the Internal Revenue Code of 1986, as amended. If purchaser
is a dealer, it agrees to deliver similar written confirmations to any person
purchasing from it any of the Fund Shares to which this confirmation
relates.”
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(c) A
Fund and its Index Receipt Agent and Distributor shall have the right to
require, as a condition to the acceptance of a deposit of Deposit Securities,
information from the Participant regarding ownership of the Fund Shares by such
Participant and its customers, and to rely thereon to the extent necessary to
make a determination regarding ownership of 80 percent or more of the Fund’s
currently outstanding Fund Shares by a Beneficial Owner.
11. OBLIGATIONS
OF PARTICIPANT
(a) The
Participant agrees to maintain records of all sales of Fund Shares made by or
through it and to furnish copies of such records to the Trust or the Distributor
upon their reasonable request.
(b) The
Participant affirms that 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.
(c) The
Participant represents, covenants and warrants that, during the term of this
Agreement, it will not be an affiliated person of a Fund, a promoter or a
principal underwriter of a Fund or an affiliated person of such persons, except
under 2(a)(3)(A) or 2(a)(3)(C) of the Investment Company Act of 1940, as amended
(the “1940 Act”) due to ownership of Fund Shares.
(d) The
Participant agrees that it will meet Distributor’s written creditworthiness
standards at all times at which it performs activities pursuant to this
Agreement and will inform the Distributor immediately should Participant not
meet such standards. Participant agrees that it will be subject to various tests
performed by Distributor to determine if the Participant is in compliance with
the Distributor’s written creditworthiness standards and agrees to comply with
all requests for information in order to permit the Distributor to perform such
tests.
12. INDEMNIFICATION
Section
12 shall survive the termination of this Agreement.
(a) The
Participant hereby agrees to indemnify and hold harmless the Distributor, the
Funds, the Index Receipt Agent, their respective
subsidiaries, affiliates, directors, officers, employees, and agents, and each
person, if any, who controls such persons within the meaning of Section 15 of
the 1933 Act (each an “Indemnified Party”), from and against any loss,
liability, cost, or expense (including attorneys’ fees) incurred by such
Indemnified Party as a result of (i) any breach by the Participant of any
provision of this Agreement; (ii) any failure on the part of the Participant to
perform any of its obligations set forth in this Agreement; (iii) any failure by
the Participant to comply with applicable laws, including rules and regulations
of self-regulatory organizations; (iv) actions of such Indemnified Party in
reliance upon any instructions issued in accordance with the Fund Documents or
Annex II (as each may be amended from time to time) reasonably believed by the
Distributor and/or the Index Receipt Agent to be genuine and to have been given
by the Participant; or (v) the Participant’s failure to complete a Purchase
Order or Redemption Order that has been accepted. The Participant understands
and agrees that the Funds as third party beneficiaries to this Agreement are
entitled to proceed directly against the Participant in the event that the
Participant fails to honor any of its obligations under this Agreement that
benefit the Fund. The Distributor shall not be liable to the Participant for any
damages arising out of mistakes or errors in data provided to the Distributor,
or out of interruptions or delays of communications with the Indemnified Parties
who are service providers to the Fund, nor is the Distributor liable for any
action, representation, or solicitation made by the wholesalers of the
Fund.
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(b) The
Distributor hereby agrees to indemnify and hold harmless the Participant and the
Index Receipt Agent, their respective subsidiaries, affiliates, directors,
officers, employees, and agents, and each person, if any, who controls such
persons within the meaning of Section 15 of the 1933 Act (each an “Indemnified
Party”), from and against any loss, liability, cost, or expense (including
attorneys’ fees) incurred by such Indemnified Party as a result of (i) any
breach by the Distributor of any provision of this Agreement; (ii) any failure
on the part of the Distributor to perform any of its obligations set forth in
this Agreement; (iii) any failure by the Distributor to comply with applicable
laws, including rules and regulations of self-regulatory organizations; or (iv)
actions of such Indemnified Party in reliance upon any representations made in
accordance with the Fund Documents and Annex II (as each may be amended from
time to time) reasonably believed by the Participant to be genuine and to have
been given by the Distributor. The Participant shall not be liable to the
Distributor for any damages arising out of mistakes or errors in data provided
to the Participant, or out of interruptions or delays of communications with the
Indemnified Parties who are service providers to the Fund, nor is the
Participant liable for any action, representation, or solicitation made by the
wholesalers of the Fund.
(c) The
Funds, the Distributor, the Index Receipt Agent, or any person who controls such
persons within the meaning of Section 15 of the 1933 Act, shall not be liable to
the Participant for any damages arising from any differences in performance
between the Deposit Securities in a Fund Deposit and the Fund’s benchmark
index.
13. INFORMATION
ABOUT DEPOSIT SECURITIES
The
Trust’s investment adviser, U.S. One, Inc. (the “Advisor”) will make available
on each day that the Trust is open for business, through the facilities of the
NSCC, the names and amounts of Deposit Securities to be included in the current
Fund Deposit for each Fund.
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14. RECEIPT
OF PROSPECTUS BY PARTICIPANT
The
Participant acknowledges receipt of the Prospectus and represents that it has
reviewed that document (including the Statement of Additional Information
incorporated therein) and understands the terms thereof.
15. CONSENT
TO ELECTRONIC DELIVERY OF PROSPECTUS
The
Distributor may deliver electronically a single prospectus, annual or
semi-annual report or other shareholder information (each, a “Shareholder
Document”) to persons who have effectively consented to such electronic
delivery. The Distributor will deliver Shareholder Documents electronically by
sending consenting persons an e-mail message informing them that the applicable
Shareholder Document has been posted and is available on the Fund’s website,
[_________], and providing a hypertext link to the document. The electronic
versions of the Shareholder Documents will be in PDF format and can be
downloaded and printed using Adobe Acrobat.
By
signing this Agreement, the Participant hereby consents to the foregoing
electronic delivery of all Shareholder Documents to the e-mail address set forth
on the signature page attached to this Agreement. The Participant further
understands and agrees that unless such consent is revoked, the Participant can
obtain access to the Shareholder Documents from the Distributor only
electronically. The Participant can revoke the consent to electronic delivery of
Shareholder Documents at anytime by providing written notice to the Distributor.
The Participant agrees to maintain the e-mail address set forth on the signature
page to this Agreement and further agrees to promptly notify the Distributor if
its e-mail address changes. The Participant understands that it must have
continuous Internet access to access all Shareholder Documents.
16. CONSENT
TO RECORDING OF CONVERSATIONS
By
signing this Agreement, the Participant acknowledges that certain telephone
conversations between and among the Distributor, the Index Receipt Agent and the
Participant in connection with the placing of orders may be recorded, and the
Participant hereby grants its consent to such recordings.
17. NOTICES
Except as
otherwise specifically provided in this Agreement, all notices required or
permitted to be given pursuant to this Agreement shall be given in writing and
delivered by personal delivery; by Federal Express or other similar delivery
service; by registered or certified United States first class mail, return
receipt requested; or by telex, telegram, facsimile, or similar means of same
day delivery (with a confirming copy by mail). Unless otherwise notified in
writing, all notices to the Fund shall be at the address or telephone,
facsimile, or telex numbers indicated below the signature of the Distributor.
All notices to the Participant, the Distributor, and the Index Receipt Agent
shall be directed to the address or telephone, facsimile or telex numbers
indicated below the signature line of such party.
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18.
EFFECTIVENESS, TERMINATION, AND AMENDMENT OF AGREEMENT
(a) This
Agreement shall become effective five Business Days after execution and delivery
to the Distributor upon notice by the Distributor to the Authorized Participant.
A “Business Day” shall mean each day the Listing Exchange is open for
business.
(b) This
Agreement may be terminated at any time by any party upon sixty days’ prior
written notice to the other parties, and may be terminated earlier by the Fund
or the Distributor at any time in the event of a breach by the Participant of
any provision of this Agreement or the procedures described or incorporated
herein. This Agreement will be binding on each party’s successors and assigns,
but the parties agree that neither party can assign its rights and obligations
under this Agreement without the prior written consent of the other
party.
(c) This
Agreement may be amended by the Distributor from time to time without the
consent of the Participant or Index Receipt Agent by the following procedure.
The Distributor will deliver a copy of the amendment to the Participant and the
Index Receipt Agent in accordance with paragraph 17 above. If neither the
Participant nor the Index Receipt Agent objects in writing to the amendment
within five business days after its receipt, the amendment will become part of
this Agreement in accordance with its terms.
19. TRUST
AS THIRD PARTY BENEFICIARY
The
Participant and the Distributor understand and agree that the Trust as a third
party beneficiary to this Agreement is entitled and intends to proceed directly
against the Participant in the event that the Participant fails to honor any of
its obligations pursuant to this Agreement that benefit the Trust.
20. INCORPORATION
BY REFERENCE
The
Participant acknowledges receipt of the Prospectuses and AP Handbook, represents
that it has reviewed such documents and understands the terms thereof, and
further acknowledges that the procedures contained therein pertaining to the
creation and redemption of Creation Units are incorporated herein by
reference.
21. GOVERNING
LAW
This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Delaware.
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22. COUNTERPARTS
This
Agreement may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year written below.
DATED:__________________________________
|
Foreside
Fund Services, LLC
|
|
By: __________________________________________
|
|
Name:
________________________________________
Title:
_________________________________________
Address:
Three Canax Xxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxx 00000
Xxxephone:
____________________________________
Facsimile:
_____________________________________
|
|
[Name of
Participant]
|
|
By: _______________________________________
|
|
Name:
________________________________________
Title:
_________________________________________
Address:
______________________________________
Telephone:
____________________________________
Facsimile:
_____________________________________
E-mail:
_______________________________________
|
|
ACCEPTED
BY:
|
|
The
Bank of New York Mellon, as Index Receipt Agent and
Custodian
|
|
By:
__________________________________________
|
|
Name:
________________________________________
Title:
_________________________________________
Address:
______________________________________
______________________________________
Telephone:
____________________________________
Facsimile:
_____________________________________
|
14
ANNEX I
CREATION
UNIT SIZE FOR FUND SHARES
Shares per Creation
Unit
|
Fund
|
Shares
per Creation Unit
|
|
One
Fund
|
50,000
|
15
FORM OF CERTIFIED AUTHORIZED
PERSONS OF PARTICIPANT
The
following are the names, titles and signatures of all persons (each an
“Authorized Person”) authorized to give instructions relating to any activity
contemplated by this U.S. One Trust
Authorized Participant Agreement, or any other notices, request or
instruction on behalf of Participant pursuant to this Authorized Participant
Agreement.
For each
Authorized Person:
Name:
Title:
Signature:
E-Mail
Address:
Telephone:
Facsimile:
Name:
Title:
Signature:
E-Mail
Address:
Telephone:
Facsimile:
The
undersigned [name],
[title], [company] does hereby certify that the persons listed above have
been duly elected to the offices set forth beneath their names, that they
presently hold such offices, that they have been duly authorized to act as
Authorized Persons pursuant to the Authorized Participant Agreement by and among
Foreside Fund Services, LLC and [Participant] dated
[date] and that
their signatures set forth above are their own true and genuine
signatures.
|
By: ___________________________
Date:
Name:
Title:
[Participant’s]
Secretary or Other Duly Authorized Officer
|
|
16
