FUND COMPLIANCE SERVICES AGREEMENT
Exhibit
23(h)(5)
AGREEMENT made as of
____________, 2011 by and between FocusShares Trust,
a Delaware statutory trust, with its
principal office and place of business at 000 Xxxxxx Xxxxxx, Xxxxx X-00,
Xxxxxxxx, Xxx Xxxxxx 00000 (the “Fund Company”), FocusShares, LLC, a Delaware
limited liability company, with its principal office and place of business at
000 Xxxxxx Xxxxxx, Xxxxx X-00, Xxxxxxxx, Xxx Xxxxxx 00000 (the “Adviser”) and
Foreside Compliance Services,
LLC, a Delaware limited liability company, with its principal office and
place of business at Three Xxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000
(“Foreside”).
WHEREAS, the Fund Company is
registered under the Investment Company Act of 1940, as amended (the “1940
Act”), as an open-end management investment company and is in the process of
creating and issuing shares in one or more series (each such series a “Fund” and
collectively, the “Funds”); and
WHEREAS, the Fund Company
desires that Foreside perform certain compliance services and Foreside is
willing to provide those services on the terms and conditions set forth in this
Agreement; and
WHEREAS, pursuant to an
Investment Advisory Agreement by and between the Adviser and the Fund Company
(the “Advisory Agreement”), the Adviser serves as investment adviser to the Fund
Company and the Funds; and
WHEREAS, pursuant to a unitary
fee arrangement between the Fund Company and the Adviser under the Advisory
Agreement, the Adviser has agreed to pay all of the fees and expenses due to
Foreside from the Fund Company under Section 5 of this Agreement (the “Payment
Obligations”), and is joining as a party to this Agreement solely for the
purpose of assuming such Payment Obligations;
NOW THEREFORE, for and in
consideration of the mutual covenants and agreements contained herein, and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Fund Company and Foreside hereby agree as follows:
SECTION 1. APPOINTMENT;
DELIVERY OF DOCUMENTS
(a) The
Fund Company hereby appoints Foreside, and Foreside hereby agrees, to provide a
Chief Compliance Officer (“CCO”), as described in Rule 38a-1 of the 1940 Act
(“Rule 38a-1”) to the Fund Company for the period and on the terms and
conditions set forth in this Agreement. A copy of the CCO’s resume has been
provided to the Fund Company and will be updated from time to time as necessary
by Foreside.
(b) In
connection therewith, the Fund Company has delivered to Foreside copies of, and
shall promptly furnish Foreside with all amendments of or supplements to: (i)
the Fund Company’s Declaration of Trust and Bylaws (collectively, as amended
from time to time, “Organizational Documents”); (ii) the Fund Company’s current
Registration Statement, as amended or supplemented, filed with the U.S.
Securities and Exchange Commission (“SEC”) pursuant to the Securities Act of
1933, as amended (the “Securities Act”), and/or the 1940 Act (the “Registration
Statement”); (iii) the current Prospectus and Statement of Additional
Information (collectively, as currently in effect and as amended or
supplemented, the “Prospectus”) in place for each of the Funds covered by this
Agreement; (iv) each plan of distribution or similar document that may be
adopted by the Fund Company under Rule 12b-1 under the 1940 Act and each current
shareholder service plan or similar document adopted by the Fund Company with
respect to any or all of its Funds; (v) copies of the Fund Company’s current
annual and semi-annual reports to shareholders; and (vi) all compliance and risk
management policies, programs and procedures adopted by the Fund Company with
respect to the Funds. The Fund Company shall deliver to Foreside a
certified copy of the resolution of the Board of Trustees of the Fund Company
(the “Board”) appointing the CCO and authorizing the execution and delivery of
this Agreement. In addition, the Fund Company shall deliver, or cause
to deliver, to Foreside upon Foreside’s reasonable request any other documents
that would enable Foreside to perform the services described in this
Agreement.
SECTION 2. DUTIES OF
FORESIDE
(a) Subject to the approval of the Board,
Foreside shall make available a qualified person who is competent and
knowledgeable regarding the federal securities laws to act as the Fund Company’s
CCO. Foreside’s responsibility for the activities of the CCO are
limited to the extent that the Board shall make all decisions regarding the
designation and termination of the CCO and shall review and approve the
compensation of the CCO as provided by Rule 38a-1.
(b) With
respect to the Fund Company, the CCO shall:
(i) report
directly to the Board, normally in person at each
quarterly Board meeting;
(ii) review
and administer the Fund Company’s compliance program policies and procedures and
review and oversee those policies and procedures of the adviser,
administrator, principal underwriter and transfer agent (collectively, “Service
Providers”) that relate to the Fund Company or its Funds;
(iii) conduct
periodic reviews of the Fund Company’s compliance program and incorporate any
new or changed regulations, best practice recommendations or other guidelines
that may be appropriate;
(iv) review,
no less frequently than annually, the adequacy of the policies and procedures of
the Fund Company and its Service Providers and the effectiveness of their
implementation;
(v) design
and assist in the implementation of testing methods for the Fund Company’s
compliance program policies and procedures;
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(vi) perform
and document periodic testing of certain key control procedures (as appropriate
to the circumstances), including reviewing reports, investigating exceptions,
and making inquiries of Fund Company management and Service
Providers;
(vii) conduct
periodic site visits to the adviser and other Service Providers, as
necessary;
(viii) prepare
CCO Reports for the Board and attend Board meetings quarterly and as requested;
and
(ix) no
less than annually, meet separately with those members of the Board that are not
“interested persons” of the Fund Company.
(c) Foreside
may provide other services and assistance relating to the affairs of the Fund
Company as the Fund Company may, from time to time, request subject to mutually
acceptable compensation and implementation agreements.
(d) Foreside
shall maintain records relating to its services, such as compliance policies and
procedures, relevant Board presentations, annual reviews, and other records, as
are required to be maintained under the 1940 Act and Rule 38a-1 thereunder
(collectively, the “Records”). Such Records shall be maintained in
the manner and for the periods as are required under such laws and
regulations. The Records shall be the property of the Fund
Company. The Fund Company, or the Fund Company’s authorized
representatives, shall have access to the Records at all times during Foreside’s
normal business hours. Upon the reasonable request of the Fund
Company, copies of any of the Records shall be provided promptly by Foreside to
the Fund Company or its authorized representatives. Such provision of Records
shall be at the Fund Company’s expense, as set forth in Section 5 of this
Agreement.
(e) Nothing
contained herein shall be construed to require Foreside to perform any service
that could cause Foreside to be deemed an investment adviser for purposes of the
1940 Act or the Investment Advisers Act of 1940, as amended, or that could cause
any Fund to act in contravention of such Fund’s Prospectus or any provision of
the 1940 Act. Further, while Foreside will provide consulting and
other services under this Agreement to assist the Fund Company with respect to
the Fund Company’s obligations under and compliance with various laws and
regulations, Fund Company understands and agrees that Foreside is not a law firm
and that nothing contained herein shall be construed to create an
attorney-client relationship between Foreside and Fund Company or to require
Foreside to render legal advice or otherwise engage in the practice of law in
any jurisdiction. Thus, except with respect to Foreside’s duties as
set forth in this Section 2 and, except as otherwise specifically provided
herein, the Fund Company assumes all responsibility for ensuring that the Fund
Company and each of its Funds complies with all applicable requirements of the
Securities Act, the Securities Exchange Act of 1934 (the “Exchange Act”), the
1940 Act and any laws, rules and regulations of governmental authorities with
jurisdiction over the Fund Company or the Funds. All references to any law in
this Agreement shall be deemed to include reference to the applicable rules and
regulations promulgated under authority of the law and all official
interpretations of such law or rules or regulations.
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(f) Foreside
does not offer legal or accounting services and does not provide substitute
services for the services provided by legal counsel or that of a certified
public accountant. Foreside will use its best judgment and efforts to
provide the services described in this Agreement.
(g) In
order for Foreside to perform the services required by this Section 2, the Fund
Company shall (1) instruct all Service Providers to furnish any and all
information to Foreside as reasonably requested by Foreside, and assist Foreside
as may be required and (2) ensure that Foreside has access to all records and
documents maintained by the Fund Company or any Service Provider.
SECTION
3. STANDARD OF CARE; LIMITATION OF LIABILITY;
INDEMNIFICATION
(a) Foreside
shall be under no duty to take any action except as specifically set forth
herein or as may be specifically agreed to by Foreside in
writing. Foreside shall use its best judgment and efforts in
rendering the services described in this Agreement and shall not be liable to
the Fund Company, any Fund or any of the Funds’ stockholders for any action or
inaction of Foreside or the CCO relating to any event whatsoever in the absence
of bad faith, reckless disregard, negligence, willful misfeasance, fraud or
breach of this Agreement. Further, neither Foreside nor the CCO shall
be liable to the Fund Company, any Fund or any of the Funds’ stockholders for
any action taken, or failure to act, in good faith reliance upon: (i) the advice
and opinion of Fund Company counsel; and/or (ii) any certified copy of any
resolution of the Board. Neither Foreside nor the CCO shall be under
any duty or obligation to inquire into the validity or invalidity or authority
or lack thereof of any statement, oral or written instruction, resolution,
signature, request, letter of transmittal, certificate, opinion of counsel,
instrument, report, notice, consent, order, or any other document or instrument
which Foreside or the CCO reasonably believes in good faith to be
genuine.
(b) The
Fund Company agrees to indemnify and hold harmless Foreside, its affiliates and
each of their respective directors, officers, employees and agents and any
person who controls Foreside within the meaning of Section 15 of the Securities
Act (any of Foreside, its affiliates, their respective officers, employees,
agents and directors or such control persons, for purposes of this paragraph, a
“Foreside 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) Foreside’s performance of
its duties under this Agreement, or (ii) the breach of any obligation,
representation or warranty under this Agreement by the Fund
Company.
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In no
case (i) is the indemnity of the Fund Company in favor of any Foreside
Indemnitee to be deemed to protect or indemnify the Foreside Indemnitee against
any liability to which the Foreside Indemnitee would otherwise be subject by
reason of its willful misfeasance, bad faith, fraud or negligence in
the performance of its duties or by reason of its reckless disregard or breach
of its obligations and duties under this Agreement, or (ii) is the Fund Company
to be liable with respect to any claim made against any Foreside Indemnitee
unless the Foreside Indemnitee notifies the Fund Company 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 are served upon the Foreside
Indemnitee (or after the Foreside Indemnitee receives notice of service on any
designated agent). Notwithstanding the foregoing, failure to notify the Fund
Company of any claim shall not relieve the Fund Company from any liability that
it may have to any Foreside Indemnitee unless failure or delay to so notify the
Fund Company prejudices the Fund Company’s ability to defend against such
claim.
The Fund
Company 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 Fund Company elects to assume the defense, the
defense shall be conducted by counsel chosen by it and satisfactory to the
Foreside Indemnitee, defendant or defendants in the suit. In the event the Fund
Company elects to assume the defense of any suit and retain counsel, the
Foreside Indemnitee, defendant or defendants in the suit, shall bear the fees
and expenses of any additional counsel retained by them. If the Fund Company
does not elect to assume the defense of any suit, it will reimburse the Foreside
Indemnitee, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them.
(c) Foreside
agrees to indemnify and hold harmless the Fund Company and each of its Trustees,
officers and employees and any person who controls the Fund Company within the
meaning of Section 15 of the Securities Act (for purposes of this paragraph, the
Fund Company and each of its Trustees, officers and employees and its
controlling persons are collectively referred to as the “Fund Indemnitees”)
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 breach of any obligation, representation or
warranty under this Agreement by Foreside, or (ii) Foreside’s failure to comply
in any material respect with applicable securities laws.
In no
case (i) is the indemnity of Foreside in favor of any Fund Indemnitee to be
deemed to protect or indemnify any Fund Indemnitee against any liability to
which such Fund Indemnitee would otherwise be subject by reason of its willful
misfeasance, bad faith, fraud or negligence in the performance of its duties or
by reason of its reckless disregard or breach of its obligations and duties
under this Agreement, or (ii) is Foreside to be liable under its indemnity
agreement contained in this paragraph with respect to any claim made against any
Fund Indemnitee unless the Fund Indemnitee notifies Foreside 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 are served upon the
Fund Indemnitee (or after the Fund Indemnitee has received notice of service on
any designated agent). Notwithstanding the foregoing, failure to notify Foreside
of any claim shall not relieve Foreside from any liability that it may have to
the Fund Indemnitee against whom such action is brought unless failure or delay
to so notify Foreside prejudices Foreside’s ability to defend against such
claim.
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Foreside
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
Foreside elects to assume the defense, the defense shall be conducted by counsel
chosen by it and satisfactory to the Fund Indemnitee, defendant or defendants in
the suit. In the event that Foreside elects to assume the defense of any suit
and retain counsel, the Fund Indemnitee, defendant or defendants in the suit,
shall bear the fees and expenses of any additional counsel retained by them. If
Foreside does not elect to assume the defense of any suit, it will reimburse the
Fund Indemnitee, defendant or defendants in the suit, for the reasonable fees
and expenses of any counsel retained by them.
(d) 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 3(b) or
3(c) above, without 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.
(e) The
Fund Company, and not Foreside, shall be solely responsible for approval of the
designation of the CCO, as well as for removing the CCO, as the case may be,
from his or her responsibilities related to the Funds in accordance with Rule
38a-1. Therefore, notwithstanding the provisions of this Section 3,
the Fund Company shall supervise the activities of the CCO with regard to such
activities.
(f) The
Fund Company agrees that Foreside, its employees, officers and directors shall
not be liable to the Fund Company for any actions, damages, claims, liabilities,
costs, expenses or losses in any way arising out of or relating to the services
described in this Agreement for an aggregate amount in excess of two times the
amount of fees paid to Foreside in performing services hereunder. The provisions
of this paragraph shall apply regardless of the form of action, damage, claim,
liability, cost, expense or loss, whether in contract, statute, tort (including,
without limitation, negligence) or otherwise.
In no
event shall the parties hereto or their respective employees, officers and
directors be liable for consequential, special, indirect, incidental, punitive
or exemplary damages, costs, expenses or losses (including, without limitation,
lost profits and opportunity costs or fines).
(g) Foreside
shall not be liable for the errors of other service providers to the Fund
Company or their systems.
SECTION 4. REPRESENTATIONS
AND WARRANTIES
(a) Foreside
covenants, represents and warrants to the Fund Company that:
(i) it
is a limited liability company duly organized and in good standing under the
laws of the State of Delaware;
(ii) it
is duly qualified to carry on its business in the State of
Maine;
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(iii) it
is empowered under applicable laws and by its Operating Agreement to enter into
this Agreement and perform its duties under this Agreement;
(iv) all
requisite corporate proceedings have been taken to authorize it to enter into
this Agreement and perform its duties under this Agreement;
(v) it
has access to the necessary facilities, equipment, and personnel with the
requisite knowledge and experience to assist the CCO in the performance of his
or her duties and obligations under this Agreement;
(vi) this
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of Foreside, enforceable against Foreside in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the rights and remedies of creditors
and secured parties;
(vii) it
shall make available a person who is competent and knowledgeable regarding the
federal securities laws and is otherwise reasonably qualified to act as a CCO
and who will, in the exercise of his or her duties to the Fund Company, act in
good faith and in a manner reasonably believed by him or her to be in the best
interests of the Funds;
(viii) it
shall compensate the CCO fairly, subject to the Board’s right under any
applicable regulation (e.g., Rule 38a-1) to approve the designation, termination
and level of compensation of the CCO. In addition, it shall not
retaliate against the CCO should the CCO inform the Board of a compliance
failure or take aggressive action to ensure compliance with the federal
securities laws by the Fund Company or a Service Provider;
(ix) it
shall report to the Board promptly if it learns of CCO malfeasance or in the
event the CCO is terminated as a CCO by another fund company or if the CCO is
terminated by Foreside; and
(x) it
shall report to the Board if at any time the CCO is subject to the
disqualifications set forth in Section 15(b)(4) of the Exchange Act or Section 9
of the 1940 Act.
(b) The
Fund Company covenants, represents and warrants to Foreside that:
(i) it
is a statutory trust duly organized and in good standing under the laws of the
State of Delaware;
(ii) it
is empowered under applicable laws and by its Organizational Documents to enter
into this Agreement and perform its duties under this
Agreement;
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(iii) all
requisite corporate proceedings have been taken to authorize it to enter into
this Agreement and perform its duties under this Agreement;
(iv) it
is an open-end management investment company registered under the 1940
Act;
(v) this
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of the Fund Company, enforceable against the
Fund Company in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties;
(vi) a
registration statement under the Securities Act and the 1940 Act is effective
and will remain effective and appropriate State securities law filings have been
made and will continue to be made with respect to the Funds;
(vii) The
CCO shall be covered by the Fund Company’s Directors & Officers Liability
Insurance Policy (the “Policy”), and the Fund Company shall use reasonable
efforts to ensure that such coverage be (a) reinstated should the Policy be
cancelled; (b) continued after the CCO ceases to serve as an officer of the Fund
Company on substantially the same terms as such coverage is provided for all
other Fund Company officers after such persons are no longer officers of the
Fund Company; and (c) continued in the event the Fund Company merges or
terminates, on substantially the same terms as such coverage is provided for all
other Fund Company officers (and for a period of no less than three
years). The Fund Company shall provide Foreside with proof of current
coverage, including a copy of the Policy, and shall notify Foreside immediately
should the Policy be cancelled or terminated; and
(viii) the CCO is a named officer in the Fund Company’s
corporate resolutions and subject to the provisions of the Fund Company’s
Organizational Documents regarding indemnification of its
officers.
(c) The
Adviser covenants, represents and warrants to Foreside that:
(i)
it is a limited liability company duly organized and in good standing under the
laws of the State of Delaware;
(ii) it
is empowered under applicable laws and by its organizational documents, and all
requisite corporate proceedings have been taken to authorize it, to enter into
this Agreement and perform its Payment Obligations under this Agreement;
and
(iii) with
respect to its Payment Obligations hereunder, this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the Adviser,
enforceable against the Adviser in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties.
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SECTION
5. COMPENSATION AND EXPENSES
(a) In
consideration of the compliance services provided by Foreside pursuant to this
Agreement, the Adviser shall pay Foreside the fees and expenses set forth in
Appendix A
hereto due to Foreside from the Fund Company.
All fees payable hereunder shall be
accrued daily and shall be payable monthly in arrears on the first business day
of each calendar month for services performed during the prior calendar
month. All out-of-pocket charges incurred by Foreside shall be paid
as incurred. If fees begin to accrue in the middle of a month or if
this Agreement terminates before the end of any month, all fees for the period
from that date to the end of that month or from the beginning of that month to
the date of termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the effectiveness or
termination occurs. Upon the termination of this Agreement, the
Adviser shall pay to Foreside such compensation as shall be due and payable as
of the effective date of termination.
(b) Foreside
may, with respect to questions of law relating to its services hereunder, apply
to and obtain the advice of Fund Company counsel. The costs of any such advice
shall be borne by the Fund Company and paid by the Fund Company or the
Adviser.
(c) The
CCO is serving solely as an officer of the Fund Company and neither the CCO nor
Foreside shall be responsible for, or have any obligation to pay, any of the
expenses of the Fund Company or any of its Funds. All Fund Company
expenses shall be the obligation of the Fund Company or the Adviser, which shall
pay or cause to be paid all Fund expenses.
SECTION
6. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This
Agreement shall become effective on the date indicated above or at such time as
Foreside commences providing services under this Agreement, whichever is later
(the “Effective Date”). Upon the Effective Date, this Agreement shall
constitute the entire agreement between the parties and shall supersede all
previous agreements between the parties, whether oral or written, relating to
the Fund Company.
(b) This
Agreement shall continue in effect until terminated in accordance with the
provisions hereof.
(c) This
Agreement may be terminated at any time, without the payment of any penalty (i)
by the Board on sixty (60) days’ written notice to Foreside or (ii) by Foreside
on sixty (60) days’ written notice to the Fund Company, provided, however, that
the Board will have the right and authority to remove the individual designated
by Foreside as the Fund Company’s CCO at any time, with or without cause,
without payment of any penalty. In this case, Foreside will designate
another employee of Foreside, subject to approval of the Board and the
Independent Directors, to serve as temporary CCO until the earlier of: (i) the
designation of a new permanent CCO; or (ii) the termination of this
Agreement.
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(d) Should
the employment of the individual designated by Foreside to serve as the Fund
Company’s CCO be terminated for any reason, Foreside will immediately designate
another qualified individual, subject to ratification by the Board and the
Independent Directors, to serve as temporary CCO until the earlier of:
(i) the designation, and approval by the Board, of a new permanent CCO; or
(ii) the termination of this Agreement.
(e) The
provisions of Sections 3, 6(e), 7, 10, 11, and 12 shall survive any termination
of this Agreement.
(f) This
Agreement and the rights and duties under this Agreement shall not be assignable
by the Fund Company and/or the Adviser except by the specific written consent of
Foreside or by Foreside except by the specific written consent of the Fund
Company. All terms and provisions of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the respective successors
and permitted assigns of the parties hereto.
SECTION
7. CONFIDENTIALITY
Each party shall comply with the laws
and regulations applicable to it in connection with its use of confidential
information, including, without limitation, Regulation S-P (if
applicable). Foreside agrees to treat all records and other
information related to the Fund Company as proprietary information of the Fund
Company and, on behalf of itself and its employees, to keep confidential all
such information, except that Foreside may release such other information (a) as
approved in writing by the Fund Company, which approval shall not be
unreasonably withheld and may not be withheld where Foreside is
advised by counsel that it may be exposed to civil or criminal contempt
proceedings for failure to release the information (provided, however, that
Foreside shall seek the approval of the Fund Company as promptly as possible so
as to enable the Fund Company to pursue such legal or other action as it may
desire to prevent the release of such information) or (b) when so requested by
the Fund Company.
SECTION 8. FORCE
MAJEURE
Foreside shall not be responsible or
liable for any failure or delay in performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control including, without limitation, acts of civil or
military authority, national emergencies, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication system or power supply. In addition, to
the extent Foreside’s obligations hereunder are to oversee or monitor the
activities of third parties, Foreside shall not be liable for any failure or
delay in the performance of Foreside’s duties caused, directly or indirectly, by
the failure or delay of such third parties in performing their respective duties
or cooperating reasonably and in a timely manner with Foreside.
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SECTION 9. ACTIVITIES OF
FORESIDE
(a) Except
to the extent necessary to perform Foreside’s obligations under this Agreement,
nothing herein shall be deemed to limit or restrict Foreside’s right, or the
right of any of Foreside’s managers, officers or employees who also may be a
director, trustee, officer or employee of the Fund (including, without limitation, the CCO), or who
are otherwise affiliated persons of the Fund, to engage in any other business or
to devote time and attention to the management or other aspects of any other
business, whether of a similar or dissimilar nature, or to render services of
any kind to any other corporation, trust, firm, individual or
association.
(b) Upon
prior written approval by the Fund Company, Foreside may subcontract any or all
of its functions or responsibilities pursuant to this Agreement to one or more
persons, which may be affiliated persons of Foreside who agree to comply with
the terms of this Agreement; provided, that any such subcontracting shall not
relieve Foreside of its responsibilities hereunder. Foreside may pay
those persons for their services, but no such payment will increase Foreside’s
compensation or reimbursement of expenses hereunder.
SECTION
10. COOPERATION WITH INDEPENDENT PUBLIC ACCOUNTANTS
Foreside and the CCO shall cooperate
with the Fund Company’s independent public accountants and shall take reasonable
action to make all necessary information available to the accountants for the
performance of such accountants’ duties.
SECTION 11. LIMITATION OF
SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Fund Company and
the shareholders of the Funds shall not be liable for any obligations of the
Fund Company under this Agreement, and Foreside agrees that, in asserting any
rights or claims under this Agreement with regard to the Fund Company, it shall
look only to the assets and property of the Fund Company and the
Funds.
SECTION
12. MISCELLANEOUS
(a) This
Agreement shall be governed by, and construed in accordance with, the laws of
the state of New York, without giving effect to the choice of laws provisions
thereof. Venue for any lawsuit or other judicial proceeding relating to or
arising from this Agreement shall be in any court of competent jurisdiction
located in the County and State of New York. These courts will have the proper
venue for any such lawsuit or judicial proceeding, and the parties waive any
objection to venue or their convenience as a forum. The parties agree to
submit to the jurisdiction of any of the courts specified and to accept service
of process to vest personal jurisdiction over them in any of these courts.
(b) This
Agreement may be executed by the parties hereto in any number of counterparts,
and all of the counterparts taken together shall be deemed to constitute one and
the same instrument.
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(c) If
any part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid, the remaining portion or portions shall be
considered severable and not be affected, and the rights and obligations of the
parties shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by
the parties hereto and no presumptions shall arise favoring any party by virtue
of authorship of any provision of this Agreement.
(d) Section
headings in this Agreement are included for convenience only and are not to be
used to construe or interpret this Agreement.
(e) Any
notice required or permitted to be given hereunder by a party to the other shall
be deemed sufficiently given if in writing and personally delivered or sent by
facsimile or registered, certified or overnight mail, postage prepaid, addressed
by the party giving such notice to the other party at the address furnished
below unless and until changed by Foreside or the Fund Company and the Adviser,
as the case may be. Notice shall be given to each party at the following
address(es):
|
(i) To
Foreside:
|
(ii) To Fund Company and
Adviser:
|
|
|
Foreside
Compliance Services, LLC
Xxxxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax: (000)
000-0000
|
Attn: President
000
Xxxxxx Xxxxxx
Xxxxx
X-00
Xxxxxxxx,
XX 00000
Phone:
(000) 000-0000 x0000
with
a copy to:
FocusShares,
LLC
Attn:
Xxxx Xxxxxxxx
Chief
Financial Officer
c/o
Scottrade, Inc.
00000
Xxxxxxxxx Xxxx Xxxxx
Xx.
Xxxxx, XX 00000
Phone:
(000) 000-0000 x0000
|
(f) Invoices
for fees and expenses due to Foreside hereunder and as set forth in Appendix A hereto
shall be sent by Foreside to the address furnished below unless and until
changed by the Fund Company and the Adviser (Fund Company and Adviser to provide
reasonable advance notice of any change of billing address to
Foreside):
12
FocusShares,
LLC
Attn:
Xxxx Xxxxxxxx, Chief Financial Officer
c/o
Scottrade, Inc.
00000
Xxxxxxxxx Xxxx Xxxxx
Xx.
Xxxxx, XX 00000
Phone:
(000) 000-0000 x0000
Email:
xxxxxxxxx@xxxxxxxxx.xxx
(g) Nothing
contained in this Agreement is intended to or shall require Foreside, in any
capacity hereunder, to perform any functions or duties on any day other than a
Fund Company business day. Functions or duties normally scheduled to
be performed on any day which is not a Fund Company business day shall be
performed on, and as of, the next Fund Company business day, unless otherwise
required by law.
(h) The
term “affiliate” and all forms thereof used herein shall have the meanings
ascribed thereto in the 1940 Act.
13
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed in their names and on
their behalf by and through their duly authorized officers, as of the day and
year first above written.
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
FOCUSSHARES,
LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
FORESIDE
COMPLIANCE SERVICES, LLC
|
||
|
By:
|
||
| Xxxxxxx X. Xxxxx, President | ||
14
