AMERISTOCK ETF TRUST DISTRIBUTION AGREEMENT
Exhibit
e(1)
This
Distribution Agreement (the “Agreement”) made this __th day of ___________,
2007, by and between Ameristock ETF Trust, a Delaware statutory trust (the
“Trust”) having its principal place of business at 0000 Xxxxxx Xxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000, and ALPS Distributors, Inc., a Colorado
corporation (the “Distributor”) having its principal place of business at 0000
Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000.
WHEREAS,
the Trust is a registered open-end management investment company organized
as a
series trust offering a number of portfolios of securities (each a “Fund” and
collectively the “Funds”), each investing primarily in U.S. government
securities selected to reflect the performance of a particular market index,
having filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form N-1A under the Securities Act of 1933, as amended
(the “1933 Act”), and the Investment Company Act of 1940, as amended (the “1940
Act”);
WHEREAS,
the Trust intends to create and redeem shares of beneficial interest, par value
$.001 per Share (the “Shares”) of each Fund on a continuous basis at their net
asset value only in aggregations constituting a Creation Unit, as such term
is
defined in the Registration Statement;
WHEREAS,
the Shares of each Fund will be listed on the American Stock Exchange (the
“AMEX”) and traded under the symbols set forth in Exhibit A, attached hereto and
incorporated herein by reference;
WHEREAS,
the Trust desires to retain the Distributor to act as the distributor with
respect to the issuance and distribution of Creation Units of Shares of each
Fund, hold itself available to receive and process orders for such Creation
Units in the manner set forth in the Trust’s Prospectus, and to enter into
arrangements with broker-dealers who may solicit purchases of Shares and with
broker-dealers and others to provide for servicing of shareholder accounts
and
for distribution assistance, including broker-dealer and shareholder
support;
WHEREAS,
the Distributor is a registered broker-dealer under the Securities Exchange
Act
of 1934, as amended (the “1934 Act”) and a member of the National Association of
Securities Dealers (“NASD”); and
WHEREAS,
the Distributor desires to provide the services described herein to the
Trust.
NOW,
THEREFORE, in consideration of the mutual promises and undertakings herein
contained, the parties agree as follows:
1. Appointment.
The
Trust hereby appoints the Distributor as the exclusive distributor for Creation
Unit aggregations of Shares of each Fund listed in Exhibit A hereto, as may
be
amended by the parties from time to time, on the terms and for the period set
forth in this Agreement and subject to the registration requirements of the
1933
Act and of the laws governing the sale of securities in the various states,
and
the Distributor hereby accepts such appointment and agrees to act in such
capacity hereunder.
2. Definitions.
Wherever they are used herein, the following terms have the following respective
meanings:
a. “1940
Act” means the Investment Company Act of 1940 and the rules and regulations
thereunder as amended from time to time;
b. “Prospectus”
means the Prospectus and Statement of Additional Information constituting parts
of the Registration Statement of the Trust under the 1933 Act and the 1940
Act
as such Prospectus and Statement of Additional Information may be amended or
supplemented and filed with the Commission from time to time;
c. “Registration
Statement” means the registration statement most recently filed from time to
time by the Trust with the Commission and effective under the 1933 Act and
the
1940 Act, as such registration statement is amended by any amendments thereto
at
the time in effect;
d. All
capitalized terms used but not defined in this Agreement shall have the meanings
ascribed to such terms in the Registration Statement and the
Prospectus.
3. Duties
of the Distributor.
(a) The
Trust
grants to the Distributor the exclusive right to receive all orders for
purchases and redemptions of Creation Units of each Fund from DTC Participants
which have executed a Participant Agreement (“Authorized Participants”) and to
transmit such orders to the Trust in accordance with the Registration Statement
and Prospectus; provided, however, that nothing herein shall affect or limit
the
right and ability of the Trust to accept Deposit Securities and related Cash
Components through or outside the Clearing Process, and as provided in and
in
accordance with the Registration Statement and Prospectus. The Trust
acknowledges that the Distributor shall not be obligated to accept any certain
number of orders for Creation Units and nothing herein shall prevent the
Distributor from entering into like distribution arrangements with other
investment companies.
(b) The
Distributor agrees to act as agent of the Trust with respect to the continuous
distribution of Creation Units of each Fund as set forth in the Registration
Statement and in accordance with the provisions thereof. The Distributor further
agrees as follows: (a) the Distributor shall enter into Participant Agreements
between and among Authorized Participants, the Distributor and the Transfer
Agent in accordance with the Registration Statement and Prospectus; (b) the
Distributor shall generate and transmit confirmations of Creation Unit purchase
order acceptances to the purchaser; (c) the Distributor shall deliver copies
of
the prospectus, included in the Registration Statement, to purchasers of such
Creation Units and upon request the Statement of Additional Information; and
(d)
the Distributor shall maintain telephonic, facsimile and/or access to direct
computer communications links with the Transfer Agent.
(c) (i) The
Distributor agrees to use all reasonable efforts, consistent with its other
business, to facilitate the purchase of Creation Units through Authorized
Participants in accordance with the procedures set forth in the Prospectus
and
the Participant Agreement.
(ii) The
Distributor shall, at its own expense, execute selected or soliciting dealer
participant agreements (“Participant Agreements”) with registered broker-dealers
and other eligible entities providing for the purchase of Creation Units of
Shares of the Funds and related promotional activities, in the forms as approved
by the Board of Trustees of the Trust. The Trust shall not furnish or cause
to
be furnished to any person or display or publish any information or materials
relating to the Funds (including, without limitation, promotional materials
and
sales literature, advertisements, press releases, announcements, statements,
posters, signs or other similar material), except such information and materials
that have been approved in writing by the Distributor. Furthermore, the
Distributor shall review all advertising, sales, marketing and promotional
materials of the Funds for approval and, if required, file such materials with
the NASD.
(d) The
Distributor agrees to administer on behalf of the Trust any distribution plan
under Rule 12b-1 of the 1940 Act (“Distribution Plan”), if and when such plan is
adopted by the Trust. The Distributor shall, at its own expense, set up and
maintain a system of recording and payments for fees and reimbursement of
expenses disseminated in connection with any such Distribution Plan, and shall,
pursuant to the 1940 Act, report such payment activity under such Distribution
Plan to the Trust at least quarterly.
(e) All
activities by the Distributor and its agents and employees which are primarily
intended to result in the sale of Creation Units shall comply with the
Registration Statement and Prospectus, the instructions of the Board of Trustees
of the Trust and all applicable laws, rules and regulations including, without
limitation, all rules and regulations made or adopted pursuant to the 1940
Act
by the Commission or any securities association registered under the 1934 Act,
including the NASD and AMEX.
(f) Except
as
otherwise noted in the Registration Statement and Prospectus, the offering
price
for all Creation Units of Shares will be the aggregate net asset value of the
Shares per Creation Unit of the relevant Fund, as determined in the manner
described in the Registration Statement and Prospectus.
(g) If
and
whenever the determination of net asset value is suspended and until such
suspension is terminated, no further orders for Creation Units will be processed
by the Distributor except such unconditional orders as may have been placed
with
the Distributor before it had knowledge of the suspension. In addition, the
Trust reserves the right to suspend sales and Distributor’s authority to process
orders for Creation Units on behalf of the Trust, upon due notice to the
Distributor, if, in the judgment of the Trust, it is in the best interests
of
the Trust to do so. Suspension will continue for such period as may be
determined by the Trust.
(h) The
Distributor is not authorized by the Trust to give any information or to make
any representations other than those contained in the Registration Statement
or
Prospectus or contained in shareholder reports or other material that may be
prepared by or on behalf of the Trust for the Distributor’s use. The Distributor
shall be entitled to rely on and shall not be responsible in any way for
information provided to it by the Trust and its respective service providers
and
shall not be liable or responsible for the errors and omissions of such service
providers, provided that the foregoing shall not be construed to protect the
Distributor against any liability to the Trust or the Trust’s shareholders to
which the Distributor would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties
or
by reason of its reckless disregard of its obligations and duties under this
Agreement.
(i) The
Board
of Trustees shall approve the form of any Participant Agreement to be entered
into by the Distributor.
(j) At
the
request of the Trust, the Distributor shall enter into agreements in the form
specified by the Trust (each a “Participant Agreement”) with participants in the
system for book-entry of The Depository Trust Company and the NSCC as described
in the Prospectus.
(k) The
Distributor shall ensure that all direct requests for Prospectuses, Statements
of Additional of Information and periodic fund reports, as applicable, are
fulfilled. In addition, the Distributor shall arrange to provide AMEX (and
any
other national stock exchange on which the Shares may be listed) with copies
of
Prospectuses and “Product Descriptions” given to secondary market purchasers in
lieu of the Prospectus to be provided to purchasers in the secondary market.
The
Distributor will generally make it known in the brokerage community that
prospectuses and statements of additional information are available, including
by (i) advising AMEX on behalf of its member firms of the same, (ii) ensuring
that such disclosure is included in all marketing and advertising materials
relating to the Funds that is reviewed by the Distributor, and (iii) as may
otherwise be required by the Commission.
(l) The
Distributor agrees to make available, at the Trust’s request, one or more
members of its staff to attend Board meetings of the Trust in order to provide
information with regard to the ongoing distribution process and for such other
purposes as may be requested by the Board of Trustees of the Trust.
(m) The
Distributor shall review all sales and marketing materials for compliance with
applicable laws and conditions of any applicable exemptive order, and file such
materials with the NASD when necessary or appropriate. All such sales and
marketing materials must be approved, in writing, by the Distributor prior
to
use.
4. Duties
of the Trust.
(a) The
Trust
agrees to issue Creation Unit aggregations of Shares of each Fund and to request
The Depository Trust Company to record on its books the ownership of such Shares
in accordance with the book-entry system procedures described in the Prospectus
in such amounts as the Distributor has requested through the Transfer Agent
in
writing or other means of data transmission, as promptly as practicable after
receipt by the Trust of the requisite Deposit Securities and Cash Component
(together with any fees) and acceptance of such order, upon the terms described
in the Registration Statement. The Trust may reject any order for Creation
Units
or stop all receipts of such orders at any time upon reasonable notice to the
Distributor, in accordance with the provisions of the Prospectus.
(b) The
Trust
agrees that it will take all action necessary to register an indefinite number
of Shares under the 1933 Act. The Trust will make available to the Distributor
such number of copies of its then currently effective Prospectus as the
Distributor may reasonably request. The Trust will furnish to the Distributor
copies of all information, financial statements and other papers, which the
Distributor may reasonably request for use in connection with the distribution
of Creation Units. The Trust shall keep the Distributor informed of the
jurisdictions in which Shares of the Trust are authorized for sale and shall
promptly notify the Distributor of any change in this information. The
Distributor shall not be liable for damages resulting from the sale of Shares
in
authorized jurisdictions where the Distributor had no information from the
Trust
that such sale or sales were unauthorized at the time of such sale or
sales.
(c) The
Trust
represents to the Distributor that the Registration Statement and Prospectus
filed by the Trust with the Commission with respect to the Trust have been
prepared in conformity with the requirements of the 1933 Act, the 1940 Act
and
the rules and regulations of the Commission, except with respect to information
included or omitted in reliance upon and in conformity with information
furnished to the Trust by or on behalf of the Distributor. The Trust will notify
the Distributor promptly of any amendment to the Registration Statement or
supplement to the Prospectus and any stop order suspending the effectiveness
of
the Registration Statement.
5. Fees
and Expenses.
(a) The
Distributor will be compensated pursuant to the Letter Agreement dated ________,
2007 between the Distributor and Ameristock Corporation (the “Adviser”), and
attached to this Agreement. The Trust will, with respect to each Fund, pay
to
the Distributor all fees and expenses pursuant to the terms of any Distribution
Plan in effect for each respective Fund.
(b) The
Distributor will bear the following costs and expenses relating to the
distribution of Creation Units of the Funds: (a) the costs of processing and
maintaining records of creations of Creation Units; (b) the costs of maintaining
the records required of a broker-dealer registered under the 1934 Act; (c)
the
expenses of maintaining its registration or qualification as a dealer or broker
under federal or state laws; and (d) all other expenses incurred in connection
with the distribution services contemplated herein, except as specifically
provided in this Agreement.
6. Indemnification.
(a) The
Trust
agrees to indemnify and hold harmless the Distributor and each of the directors,
officers, agents and employees and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act (any of the Distributor, their
officers, agents, employees and directors or such control persons, for purposes
of this paragraph, an “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 the claim that
the Registration Statement, Prospectus, shareholder reports or other information
filed or made public by the Trust (as from time to time amended) included an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein (and
in the case of the Prospectus, in light of the circumstances under which they
were made) not misleading under the 1933 Act, or any other statute or the common
law. However, the Trust does not agree to indemnify the Distributor or hold
it
harmless to the extent that the statement or omission was made in reliance
upon,
and in conformity with information furnished to the Trust by or on behalf of
the
Distributor. The Trust will also not indemnify any Indemnitee with respect
to
any untrue statement or omission made in the Registration Statement or
Prospectus that is subsequently corrected in such document (or an amendment
thereof or supplement thereto) if a copy of the Prospectus (or such amendment
or
supplement) was not sent or given to the person asserting any such loss,
liability, claim, damage or expense at or before the written confirmation to
such person in any case where such delivery is required by the 1933 Act and
the
Trust had notified the Distributor of the amendment or supplement prior to
the
sending of the confirmation. In no case (i) is the indemnity of the Trust in
favor of any Indemnitee to be deemed to protect the Indemnitee against any
liability to the Trust or its shareholders to which the Indemnitee would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Trust to be liable under its indemnity agreement contained in this paragraph
with respect to any claim made against any Indemnitee unless the Indemnitee
shall have notified the Trust in writing of the claim within a reasonable time
after the summons or other first written notification giving information of
the
nature of the claim shall have been served upon Indemnitee (or after Indemnitee
shall have received notice of service on any designated agent). However, failure
to notify the Trust of any claim shall not relieve the Trust from any liability
which it may have to any Indemnitee against whom such action is brought
otherwise than on account of its indemnity agreement contained in this
paragraph. The Trust shall be entitled to participate at its own expense in
the
defense, or, if it so elects, to assume the defense of any suit brought to
enforce any claims, but if the Trust elects to assume the defense, the defense
shall be conducted by counsel chosen by it and satisfactory to Indemnitee,
defendant or defendants in the suit. In the event the Trust elects to assume
the
defense of any suit and retain counsel, Indemnitee, defendant or defendants
in
the suit, shall bear the fees and expenses of any additional counsel retained
by
them. If the Trust does not elect to assume the defense of any suit, it will
reimburse the Indemnitee, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them. The Trust agrees
to notify the Distributor promptly of the commencement of any litigation or
proceedings against it or any of its officers or trustees in connection with
the
issuance or sale of any of the Creation Units or the Shares.
(b) The
Distributor agrees to indemnify and hold harmless the Trust and each of its
Trustees and officers and any person who controls the Trust within the meaning
of Section 15 of the 1933 Act (for purposes of this paragraph, the Trust and
each of its Trustees and officers and its controlling persons are collectively
referred to as the “Trust Affiliates”) against any loss, liability, claim,
damages or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damages or expense and reasonable counsel
fees incurred in connection therewith) which the Trust Affiliate may incur
under
the 1933 Act or any other statute or common law, but only to the extent that
such loss, liability, claim, damages or expense shall arise out of or be based
upon (i) the allegation of any wrongful act or wrongful failure to act of the
Distributor or any of its employees or (ii) allegation that the Registration
Statement, Prospectus, shareholder reports or other information filed or made
public by the Trust (as from time to time amended) included an untrue statement
of a material fact or omitted to state a material fact required to be stated
or
necessary in order to make the statements not misleading, insofar as the
statement or omission was made in reliance upon, and in conformity with
information furnished to the Trust by or on behalf of the Distributor. In no
case (i) is the indemnity of the Distributor in favor of any Trust Affiliate
to
be deemed to protect any Trust Affiliate against any liability to the Trust
or
its security holders to which such Trust Affiliate would otherwise be subject
by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations and
duties under this Agreement, or (ii) is the Distributor to be liable under
its
indemnity agreement contained in this paragraph with respect to any claim made
against any Trust Affiliate unless the Trust Affiliate shall have notified
the
Distributor in writing of the claim within a reasonable time after the summons
or the first written notification giving information of the nature of the claim
shall have been served upon the Trust Affiliate (or after the Trust Affiliate
shall have received notice of service on any designated agent). However, failure
to notify the Distributor of any claim shall not relieve the Distributor from
any liability which it may have to the Trust Affiliate against whom the action
is brought otherwise than on account of its indemnity agreement contained in
this paragraph. The Distributor shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume the defense of any suit
brought to enforce the claim, but if the Distributor elects to assume the
defense, the defense shall be conducted by counsel chosen by it and satisfactory
to the Trust, its officers and Board and to any controlling person or persons,
defendant or defendants in the suit. In the event that Distributor elects to
assume the defense of any suit and retain counsel, the Trust or controlling
person or persons, defendant or defendants in the suit, shall bear the fees
and
expenses of any additional counsel retained by them. If the Distributor does
not
elect to assume the defense of any suit, it will reimburse the Trust, its
officers and Board or controlling person or persons, defendant or defendants
in
the suit, for the reasonable fees and expenses of any counsel retained by them.
The Distributor agrees to notify the Trust promptly of the commencement of
any
litigation or proceedings against it in connection with the issuance and sale
of
any of the shares.
(c) No
indemnified party shall settle any claim against it for which it intends to
seek
indemnification from the indemnifying party, under the terms of section 6(a)
or
6(b) above, without the prior written notice to and consent from the
indemnifying party, which consent shall not be unreasonably withheld. No
indemnified or indemnifying party shall settle any claim unless the settlement
contains a full release of liability with respect to the other party in respect
of such action. This section 6 shall survive the termination of this
Agreement.
7. Representations.
(a) The
Distributor represents and warrants that (i) it is duly organized as a Colorado
corporation and is and at all times will remain duly authorized and licensed
to
carry out its services as contemplated herein; (ii) the execution, delivery
and
performance of this Agreement are within its power and have been duly authorized
by all necessary action; and (iii) its entering into this Agreement or providing
the services contemplated hereby does not conflict with or constitute a default
or require a consent under or breach of any provision of any agreement or
document to which the Distributor is a party or by which it is bound and (iv)
it
is registered as a broker-dealer under the 1934 Act and is a member of the
NASD.
(b)
The
Distributor represents and warrants that: (i) it understands that pursuant
to
various U.S. regulations, it is required to establish an anti-money laundering
program, which satisfies the requirements of Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and
Obstruct Terrorism Act of 2001 (the “USA Patriot Act”); (ii) it has developed,
implemented, and will maintain such an anti-money laundering program and will
comply with all applicable laws and regulations designed to guard against money
laundering activities set out in such program; (iii) it will allow for
appropriate regulators to examine its anti-money laundering books and records;
and (iv) it will perform all obligations required under applicable anti-money
laundering requirements with respect to all Authorized Participants and
persons seeking to become Authorized Participants.
(c) The
Distributor represents and warrants 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.
(d) The
Trust
represents and warrants that (i) it is duly organized as a Delaware statutory
trust and is and at all times will remain duly authorized to carry out its
obligations as contemplated herein; (ii) it is registered as an investment
company under the 1940 Act; (iii) the execution, delivery and performance of
this Agreement are within its power and have been duly authorized by all
necessary action; and (iv) its entering into this Agreement does not conflict
with or constitute a default or require a consent under or breach of any
provision of any agreement or document to which the Trust is a party or by
which
it is bound.
8. Duration,
Termination and Amendment.
(a) This
Agreement shall be effective on _____________, 2007, and unless terminated
as
provided herein, shall continue for two years from its effective date, and
thereafter from year to year, provided such continuance is approved annually
by
the vote of a majority of the Board of Trustees, and by the vote of those
Trustees who are not “interested persons” of the Trust (the “Independent
Trustees”) and if a Distribution Plan is in effect, by the vote of those
Trustees who are not “interested persons” of the Trust and who are not parties
to such Distribution Plan or this Agreement and have no financial interest
in
the operation of such Distribution Plan or in any agreements related to such
Distribution Plan, cast in person at a meeting called for the purpose of voting
on the approval. This Agreement may be terminated at any time, without the
payment of any penalty, as to each Fund (i) by vote of a majority of the
Independent Trustees or (ii) by vote of a majority (as defined in the 0000
Xxx)
of the outstanding voting securities of the Fund, on at least sixty (60) days
prior written notice to the Distributor. In addition, this Agreement may be
terminated at any time by the Distributor upon at least sixty (60) days prior
written notice to the Trust. This Agreement shall automatically terminate in
the
event of its assignment. As used in this paragraph, the terms “assignment” and
“interested persons” shall have the respective meanings specified in the 1940
Act.
(b) During
such period as the Distributor receives compensation pursuant to a Distribution
Plan, and this Agreement constitutes a 12b-1 plan related agreement, (i) any
material amendment to this Agreement requires the approval provided for in
paragraph (a) with respect to annual renewals of this Agreement, and (ii) any
amendment that materially increases the amount to be spent for distribution
services requires the additional approval of the majority of the Trust’s
outstanding voting securities (as defined in the 0000 Xxx) of each affected
Fund.
(c) No
provision of this Agreement may be changed, waived, discharged or terminated
except by an instrument in writing signed by the party against which an
enforcement of the change, waiver, discharge or termination is sought.
9. Notice.
Any
notice or other communication authorized or required by this Agreement to be
given to either party shall be in writing and deemed to have been given when
delivered in person or by confirmed facsimile, or posted by certified mail,
return receipt requested, to the following address (or such other address as
a
party may specify by written notice to the other):
if
to the
Distributor:
ALPS
Distributors, Inc.
0000
Xxxxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attn.:
General Counsel
fax:
000.000.0000
if
to the
Trust:
0000
Xxxxxx Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxx 00000
Attn.:
President
fax:
000.000.0000
10. Choice
of Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Colorado, without giving effect to the choice of laws provisions
thereof.
11. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
12. Severability.
If any
provisions of this Agreement shall be held or made invalid, in whole or in
part,
then the other provisions of this Agreement shall remain in force. Invalid
provisions shall, in accordance with this Agreement’s intent and purpose, be
amended, to the extent legally possible, by valid provisions in order to
effectuate the intended results of the invalid provisions.
13. Insurance.
The
Distributor will maintain at its expense an errors and omissions insurance
policy which covers services by the Distributor hereunder.
14. Segregation
of Fees and Expenses.
Amounts
paid by each Fund to the Distributor under any Distribution Plan hereafter
adopted by the Trust for distribution related services or shareholder services
shall not be used to pay for the distribution of Shares of, or shareholder
servicing in respect of, any other Fund. However, fees under a Distribution
Plan
attributable to the Trust as a whole shall be allocated to each Fund according
to the method adopted by the Trust’s Board of Trustees. Fees attributable to the
Trust as a whole shall include any amounts payable under a Distribution Plan
to
the Distributor for its services rendered hereunder. The Distributor’s
allocation of such Distribution Plan fees shall be subject to review by the
Trust’s Board of Trustees.
15. Confidentiality.
During
the term of this Agreement, the Distributor and the Trust may have access to
confidential information relating to such matters as either party’s business,
trade secrets, systems, procedures, manuals, products, contracts, personnel,
and
clients. As used in this Agreement, “Confidential Information” means information
belonging to one of the parties which is of value to such party and the
disclosure of which could result in a competitive or other disadvantage to
such
party. Confidential Information includes, without limitation, financial
information, proposal and presentations, reports, forecasts, inventions,
improvements and other intellectual property; trade secrets; know-how; designs,
processes or formulae; software; market or sales information or plans; customer
lists; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities). Confidential
Information includes information developed by either party in the course of
engaging in the activities provided for in this Agreement, unless: (i) the
information is or becomes publicly known through lawful means; (ii) the
information is disclosed to the other party without a confidential restriction
by a third party who rightfully possesses the information and did not obtain
it,
either directly or indirectly, from one of the parties, as the case may be,
or
any of their respective principals, employees, affiliated persons, or affiliated
entities. The parties understand and agree that all Confidential Information
shall be kept confidential by the other both during and after the term of this
Agreement. The parties further agree that they will not, without the prior
written approval by the other party, disclose such Confidential Information,
or
use such Confidential Information in any way, either during the term of this
Agreement or at any time thereafter, except as required in the course of this
Agreement (including as required to effectuate purchases and redemptions of
Creation Units and Fund Shares) or as required by law.
16. Limitation
of Liability.
The
execution and delivery of this Agreement have been authorized by the Trustees
of
the Trust and signed by an officer of the Trust, acting as such, and neither
such authorization by such Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in its Declaration of Trust. The Distributor
understands that the rights and obligations of each series of shares of the
Trust under the Declaration of Trust are separate and distinct from those of
any
and all other series.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their officers designated below as of the date first set forth above.
| AMERISTOCK ETF TRUST | ||
| |
|
|
| By: | ||
|
Name:
Xxxxxxxx
X. Xxxxxx
Title:
President
& Treasurer
|
||
| ALPS DISTRIBUTORS, INC. | ||
| |
|
|
| By: | ||
|
Name:
Xxxxxx X. Xxxxxx
Title:
Chief Financial Officer
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||
EXHIBIT
A
|
Name
of Fund
|
Trading
Symbol
|
|
|
Ameristock/Xxxx
1-Year Treasury Fund
|
GKA
|
|
|
Ameristock/Xxxx
2-Year Treasury Fund
|
GKB
|
|
|
Ameristock/Xxxx
5-Year Treasury Fund
|
GKC
|
|
|
Ameristock/Xxxx
10-Year Treasury Fund
|
GKD
|
|
|
Ameristock/Xxxx
20-Year Treasury Fund
|
GKE
|
