SUB-ADVISORY AGREEMENT 21Shares US LLC
Exhibit (d)(68)
21Shares US LLC
This Sub-Advisory Agreement (the “Agreement”), entered into as of October 30, 2023, between Empowered Funds, LLC dba EA Advisers or ETF Architect, a Pennsylvania limited liability company with principal place of business in Havertown, Pennsylvania (the “Adviser”), ARK 21Shares Active Bitcoin Futures Cayman Ltd. (the “Fund”), and 21Shares US LLC (the “Sub-Adviser”), a Delaware limited liability company with its principal place of business in New York, New York, (referred to herein as “21Shares”), to provide certain management and investment sub-advisory services to the Fund.
The Fund is a Cayman Islands exempted company. The sole shareholder of the Fund is ARK 21Shares Active Bitcoin Futures Strategy ETF (the “Sole Shareholder”), a series of the EA Series Trust (the “Trust”), a Delaware statutory trust registered under the Investment Company Act of 1940, as amended (collectively with the rules and regulations promulgated thereunder and any exemptive orders thereunder, the “1940 Act”), and consists of more than one series, including the Sole Shareholder. The Fund’s principal purpose is to provide the Sole Shareholder with exposure to certain assets such as Bitcoin Futures and other investments that provide exposure to bitcoin within the limitations of the U.S. federal tax requirements that apply to the Sole Shareholder. The Fund (unlike the Sole Shareholder) may invest without limitation in Bitcoin Futures and other investments that provide exposure to bitcoin, the Fund otherwise is subject to the Sole Shareholder’s investment restrictions and other policies. The Fund wishes to have the benefit of the investment sub-advisory services of 21Shares and 21Shares desires to furnish services for the Fund and to perform the functions assigned to it under this Agreement for the considerations provided. Accordingly, the parties have agreed as follows:
1. Appointment. The Adviser, with the consent and approval of the Board of Trustees of the Trust hereby appoints 21Shares as the Fund’s investment sub-adviser for the period and on the terms set forth in this Agreement. 21Shares accepts such appointment and agrees to render or cause to be rendered the services set forth for the compensation herein specified.
2. Duties. In its capacity as investment sub-adviser to the Fund, 21Shares shall have the following duties:
| (a) | 21Shares shall regularly provide the Fund with investment sub-advisory services, including management, supervision and investment research and advice and shall furnish a continuous investment program for the Fund’s portfolio of securities and other investments to be implemented by the Adviser consistent with the Fund’s investment objectives, policies and restrictions, as stated in the Sole Shareholder’s current Prospectus and Statement of Additional Information. The investment sub-advisory services to be provided shall be subject to the supervision of the Fund’s Board of Directors (the “Board”) and shall include the design, development and ongoing review and evaluation of the Fund and its investment strategy; ongoing portfolio trading oversight and analysis; risk management oversight and analysis; design, development, implementation and ongoing review and evaluation of a process for the valuation of Fund investments; design, development, implementation and ongoing review and evaluation of a compliance program for the Fund; design, development, implementation and ongoing review and evaluation of a process for the voting of proxies and rights to consent to corporate action for Fund investments; participation in Board meetings and oversight of preparation of materials for the Board, including materials for Board meetings and regular communications with the Board; and ongoing cash management services. Nothing in this Agreement shall in any way limit the right of the Board or the Adviser to establish or revise policies in connection with the management of the Fund’s assets or to otherwise exercise its right to control the overall management of the Trust and the Fund. Sub-Adviser acknowledges that the Board retains ultimate authority over the Fund and may take any and all actions necessary and reasonable to protect the interests of Fund shareholders. |
| (b) | 21Shares may execute on behalf of the Fund certain agreements, instruments and documents in connection with the services performed by it under this Agreement. These may include, without limitation, brokerage agreements, clearing agreements, account documentation, futures and option agreements, swap agreements, other investment related agreements, and any other agreements, documents or instruments 21Shares believes are appropriate or desirable in performing its duties under this Agreement. |
3. Activities of 21Shares. Nothing in this Agreement shall limit or restrict the right of any director, officer, or employee of 21Shares, whether or not a Director, officer or employee of the Fund, to engage in any other business or to devote his or her time and attention in part to the management or other aspects of any other business, whether of a similar nature or a dissimilar nature, nor to limit or restrict the right of 21Shares to engage in any other business or to render services of any kind, including investment sub-advisory, administrative and management services, to any other fund, firm, individual or association.
4. Allocation of Charges and Expenses. During the term of this Agreement, the Fund will bear all expenses not expressly assumed by the Adviser and/or 21Shares incurred in the operation of the Fund. Without limiting the generality of the foregoing:
| (a) | The Adviser shall be responsible and hereby assumes the obligation for payment of all of its expenses, including: (a) custody fees or expenses; (b) clerical, accounting and other office costs; (c) legal and auditing expenses, if any; (d) cost of maintenance of the Fund’s corporate existence; and (e) expenses and fees related to registration and filing with the Cayman Islands. |
| (b) | The Fund shall be responsible and hereby assumes the obligation for payment of interest charges, taxes, brokerage and other fees and commissions relating to purchases, sales and other transactions in financial instruments. |
| (c) | 21Shares shall pay all expenses incurred by it in the performance of its duties under this Agreement. 21Shares shall provide investment sub-advisory, research and statistical facilities and all clerical services relating to research, statistical and investment work. 21Shares shall authorize and permit any of its directors, officers and employees, who may be elected as Directors or officers of the Trust, to serve in the capacities in which they are elected, and shall pay all compensation, fees and expenses of such Directors and officers. |
5. Obligation to Provide Information. Each party’s obligation to provide information shall be as follows:
| (a) | The Fund shall at all times keep 21Shares fully informed with regard to the securities owned by the Fund, the Fund’s funds available, or to become available, for investment, and generally as to the condition of the Fund’s affairs. The Fund shall furnish 21Shares with such other documents and information with regard to the Fund’s affairs as 21Shares may from time to time reasonably request. The Fund shall provide 21Shares with access to all information, documents, and records of and about the Fund that are necessary for 21Shares to carry out the performance of its duties under this Agreement. The Sole Shareholder shall furnish 21Shares with a certified copy of any financial statement or report prepared for the Sole Shareholder by certified or independent public accountants, and with copies of any financial statements or reports made by such Sole Shareholder to its shareholders or to any governmental body or securities exchange. |
| (b) | 21Shares shall at all times keep the Fund fully informed with regard to the Fund’s investment performance and investment mandate compliance, and generally as to the condition of the Fund’s affairs. 21Shares shall furnish the Fund with such other documents and information with regard to the Fund as the Fund may from time to time reasonably request. |
6. Compensation of 21Shares. The Fund, the Adviser and 21Shares agree that no investment sub-advisory fees are required pursuant to this Agreement but acknowledge that 21Shares will be compensated by the Adviser pursuant to an investment sub-advisory agreement approved by the Trust on behalf of the Sole Shareholder.
7. Compensation of Trustees, Officers and Employees. No Director, officer or employee of the Fund shall receive from the Fund any salary or other compensation as such Director, officer or employee while he is at the same time a director, officer, or employee of the Adviser, 21Shares, or principal underwriter, or affiliate of any of the foregoing, or a consultant, independent contractor or other person who receives remuneration or other benefits from any of the foregoing, except as the Board may decide.
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8. Term. This Agreement will become effective with respect to the Fund on the date set forth above and shall continue in effect with respect to the Fund, unless sooner terminated in accordance with its terms, for two years from its effective date, and shall continue in effect from year to year thereafter, provided such continuance is specifically approved at least annually by the vote of a majority of the Trustees of the Trust who are not parties hereto or interested persons of any such party, cast in person at a meeting called for the purpose of voting on the approval of the terms of such renewal, and by either the Board of Trustees of the Trust or the affirmative vote of a majority of the outstanding voting securities of the Sole Shareholder.
9. Termination. This Agreement may be terminated with respect to the Fund at any time, without penalty, by the Board of Directors of the Fund or the affirmative vote of a majority of the outstanding voting securities of the Fund provided that 60 days’ written notice of termination be given to 21Shares at its principal place of business or by the Adviser on sixty (60) days’ written notice to the Fund and the Sub-Adviser. This Agreement may be terminated with respect to the Fund by 21Shares at any time by giving 60 days’ written notice of termination to the Fund, addressed to its principal place of business. For so long as the Sole Shareholder is the sole shareholder of the Fund, this Agreement may be terminated with respect to the Fund at any time by the Trust, on behalf of the Sole Shareholder, or by vote of a majority of the outstanding voting securities of the Sole Shareholder, upon 60 days’ written notice of termination to 21Shares. This Agreement may be terminated with respect to the Fund upon the mutual written consent of 21Shares and, for so long as the Sole Shareholder is the sole shareholder of the Fund, the Trust. This Agreement shall terminate automatically in the event of its assignment by 21Shares and shall not be assignable by the Fund without the consent of 21Shares. Termination by any party shall be without prejudice to transactions already initiated or acted upon with respect to the Fund, and each party agrees to cooperate with other parties with respect to orderly transition or liquidation of the Fund.
10. Liability of 21Shares. 21Shares may rely on information reasonably believed by it to be accurate and reliable. 21Shares assumes no responsibility under this Agreement other than to render the services called for hereunder, in good faith, and shall not be liable for any error of judgment or mistake of law, or for any loss arising out of any investment or for any act or omission in the execution of securities transactions for the Fund, provided that nothing in this Agreement shall protect 21Shares against any liability to the Fund to which 21Shares 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 hereunder. As used in this Section 10, the term “21Shares” shall include any affiliates of 21Shares performing services for the Fund contemplated hereby and the partners, shareholders, directors, officers and employees of 21Shares and such affiliates.
11. Meanings of Certain Terms. For the purposes of this Agreement, the terms “assignment,” “interested person,” and “majority of the outstanding voting securities” shall have the meanings given to them by Section 2(a) of the 1940 Act, subject to such exemptions as may be granted by the Securities and Exchange Commission by any rule, regulation or order.
12. Amendments. No provision of this Agreement may be changed, waived, discharged or terminated orally with respect to the Fund, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. No material amendment of the Agreement shall be effective with respect to the Fund until approved by the Board of Trustees of the Trust.
13. Miscellaneous. To the extent there is any conflict between this Agreement and the Investment Sub-Advisory Agreement between 21Shares US LLC and Empowered Funds LLC (the “ETF Sub-Advisory Agreement), the ETF Sub-Advisory Agreement shall control. Should any part of this Agreement be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors.
14. Governing Law. This Agreement shall be construed and the provisions thereof interpreted under and in accordance with the laws of the State of Delaware and the applicable provisions of the 1940 Act.
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15. Confidential Information. Each party to this Agreement acknowledges that in order to perform the duties called for in this Agreement, it may be necessary for a party (“owner”) to disclose to the other party(ies) certain “Confidential Information.” Confidential Information means non-public, proprietary information, data or know-how of an owner, including, but not limited to, personal information of an owner’s customers. No party will use another party’s Confidential Information except as required for the performance of this Agreement. Each party will use commercially reasonable efforts in a manner fully consistent with industry standards and applicable federal, state and international laws and regulations to hold in confidence a party’s Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party or its subsidiaries and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed or in the public domain through no fault of the receiving party; (iv) rightfully received by the receiving party or its subsidiaries from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the owner; or (vi) disclosed pursuant to the requirements of law, regulation or court order or as required or requested by any regulatory authority.
Each party to this Agreement represents, warrants and agrees that it has adopted and implemented, and will continue to have in place and follow for the term of this Agreement and thereafter, appropriate policies and procedures designed to detect, prevent and mitigate the risk of identity theft and other breaches of privacy concerning Confidential Information. Each party agrees to take immediate and appropriate measures to respond to any breach of privacy concerning Confidential Information of the owner, and to notify the owner in writing regarding such breach in the most expedient time possible and without unreasonable delay; provided, however, that a party may postpone providing such notice as the party deems consistent with the legitimate needs of law enforcement. Each party further agrees to provide the owner with a copy of its plan to remediate any such breach and to pay for all costs associated with such remediation and with providing written notice of such breach to the applicable party.
Each party agrees to establish and maintain (i) administrative, technical and physical safeguards against the destruction, loss or alteration of Confidential Information, and (ii) appropriate security measures to protect Confidential Information, which measures are consistent applicable Cayman Islands, federal, state and international laws and regulations relating to personal information security.
The provisions found in this Section on Confidential Information will survive any expiration or termination of the Agreement.
16. Limitation of Liability. The undersigned Director of the Fund has executed this Agreement not individually, but as a Director under the Fund’s Articles and the obligations of this Agreement are not binding upon any of the Directors, officers or shareholders of the Fund individually. 21Shares agrees that for services rendered to the Fund, or for any claim by it in connection with services rendered to the Fund, it shall look only to assets of the Fund for satisfaction.
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The parties hereto have caused this Agreement to be executed by their duly authorized signatories as of the date and year first above written.
| Empowered Funds, LLC dba EA Advisers | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Chief Executive Officer | |
| ARK21 Shares Active Bitcoin Futures Cayman Ltd. | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Director | |
| 21Shares US LLC | ||
| By: | /s/ Xxxxxxx Xxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx Xxxxxx | |
| Title: | President | |
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