Exhibit 4.2
FORM OF AUTHORIZED PARTICIPANT AGREEMENT
AUTHORIZED PARTICIPANT AGREEMENT (this "Agreement") dated as of [ ] among (i)
[XYZ], a [ ] (the "Authorized Participant"), (ii) The Bank of New York, a New
York Banking corporation acting in its capacity as trustee (in such capacity,
the "Trustee") of the [ABC] trust (the "Trust"), a trust created under New York
law pursuant to the provisions of the Depositary Trust Agreement (the "Trust
Agreement") dated [ ], between the Trustee and Barclays Global Investors,
N.A., a national banking association, in its capacity as sponsor of the Trust
(in such capacity, the "Sponsor"), and (iii) the Sponsor.
R E C I T A L S
A. Pursuant to the provisions of the Trust Agreement, the Trust
may from time to time issue or redeem equity securities representing an interest
in the assets of the Trust ("iShares"), in each case only in aggregate amounts
of [ ] (such aggregate amount, a "Basket"), and integral multiples thereof,
and only in transactions with a party who, at the time of the transaction, shall
have signed and in effect an Authorized Participant Agreement with the Trust.
B. [XYZ] has requested to become an "Authorized Participant" with respect
to the Trust (as such term is defined in the Trust Agreement), and the Sponsor
and the Trustee have agreed to such request.
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties, hereto, intending to be legally bound, agree as follows:
Section 1. Procedures. The Authorized Participant will purchase or redeem
Baskets of iShares of the Trust in compliance with the Trust Agreement as
supplemented by the Creation and Redemption Procedures attached to this
Agreement as Schedule 1 (such procedures, as the same may be amended or modified
from time to time in compliance with the provisions hereof and thereof, the
"Procedures"), using the form attached thereto as Annex I in the case of an
order to purchase one or more Baskets of iShares (the "Purchase Order"), or the
form attached thereto as Annex II in case of an order to redeem one or more
Baskets of iShares (the "Redemption Order"). All Purchase Orders and Redemption
Orders (collectively, "Orders") shall be placed and executed in accordance with
the Trust Agreement as supplemented by the Procedures.
Section 2. Incorporation of Standard Terms. The Standard Terms attached
hereto as Schedule 2 are hereby incorporated by reference into, and made a part
of, this Agreement.
Section 3. Conflicts Rules. In case of any inconsistency between the
provisions of this Agreement and the Trust Agreement, the provisions of the
Trust Agreement shall control. In case of inconsistency between the provisions
incorporated by reference into this Agreement pursuant to Section 2 above and
any other provision of this Agreement, the latter will control.
Section 4. Authorized Representatives. Pursuant to Section 2.01 of the
Standard Terms, attached hereto as Schedule 3 is a certificate listing the
Authorized Representatives of the Authorized Participant.
Section 5. Notices. Except as otherwise specifically provided in the
Procedures, all notices required or permitted to be given pursuant hereto shall
be given in writing and delivered by personal delivery or by postage prepaid
registered or certified United States first class mail, return receipt
requested, or by telex, telegram or facsimile or similar means of same day
delivery (with a confirming copy by mail) addressed as follows:
(i) If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx -- Xxxxx 0X
Xxx Xxxx, XX 00000
Attn:
Telephone:
Facsimile:
(ii) If to the Sponsor:
Barclays Global Investors, N.A.
00 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn:
Telephone:
Facsimile:
with a copy to:
Barclays Global Investors, N.A.
00 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Legal Department
Telephone:
Facsimile:
(iii) If to the Authorized Participant:
[XYZ]
[Address]
[City, State, ZIP]
Attn:
Telephone:
Facsimile:
or to such other address as any of the parties hereto shall have communicated in
writing to the remaining parties in compliance with the provisions hereof.
2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above.
THE BANK OF NEW YORK, in its capacity
as Trustee of the [ABC] Trust,
By:
---------------------------------
NAME:
TITLE:
BARCLAYS GLOBAL INVESTORS, N.A., in
its capacity as Sponsor
By: By:
--------------------------------- ---------------------------------
NAME: NAME:
TITLE: TITLE:
[XYZ]
By:
---------------------------------
NAME:
TITLE:
3
Schedule 1
----------
CREATION AND REDEMPTION PROCEDURES
----------------------------------
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........1
Section 1.01. Definitions................................................1
Section 1.02. Interpretation.............................................3
Section 1.03. Conflicts..................................................3
ARTICLE II CREATION PROCEDURES..............................................3
Section 2.01. Initial Creation of iShares................................3
Section 2.02. Subsequent Creation of iShares.............................3
ARTICLE III REDEMPTION PROCEDURES............................................5
Section 3.01. Redemption of iShares......................................5
-i-
iSHARES COMEX GOLD TRUST
CREATION AND REDEMPTION PROCEDURES
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. For purposes of these Procedures, unless the
context otherwise requires, the following terms will have the following
meanings:
"Authorized Participant" shall have the meaning ascribed to the term in Section
1.1 of the Trust Agreement.
"Authorized Participant Agreement" shall have the meaning ascribed to the term
in Section 1.1 of the Trust Agreement.
"Authorized Representative" shall mean, with respect to an Authorized
Participant, each individual who, pursuant to the provisions of the Authorized
Participant Agreement between such Authorized Participant and the Trustee, has
the power and authority to act on behalf of the Authorized Participant in
connection with the placement of Purchase Orders or Redemption Orders and is in
possession of the personal identification number (PIN) assigned by the Trustee
for use in any communications regarding Purchase or Redemption Orders on behalf
of such Authorized Participant.
"Basket" shall have the meaning ascribed to the term in Section 1.1 of the Trust
Agreement.
"Basket Gold Amount" shall have the meaning ascribed to the term in Section 1.1
of the Trust Agreement.
"Business Day" shall have the meaning ascribed to the term in Section 1.1 of the
Trust Agreement.
"COMEX" means Commodity Exchange, Inc., a subsidiary of New York Mercantile
Exchange, Inc.
"Creation" means the process that begins when an Authorized Participant first
indicates to the Trustee its intention to purchase one or more Baskets pursuant
to these Procedures and concludes with the issuance by the Trustee and Delivery
to such Authorized Participant of the corresponding number of iShares.
"Custodian Day" shall mean a day on which the Custodian is open for business at
each location at which a Delivery of Gold to or by the Custodian is expected to
take place pursuant to a Purchase Order or Redemption Order (as applicable).
"Creation and Redemption Line" shall mean a telephone number designated as such
by the Trustee and communicated to each Authorized Participant in compliance
with the notice provisions of the respective Authorized Participant Agreement.
"Custodian" shall mean The Bank of Nova Scotia, a bank organized under the laws
of Canada, in its capacity as custodian under the Custodian Agreement, and any
successor thereto in compliance with the provisions thereof.
"Custodian Agreement" shall mean the Custodian Agreement dated [ ], 2004 by
and between the Trustee and the Custodian.
S1-1
"Custodial Account" shall mean the account established by the Trustee with the
Custodian pursuant to the Custodian Agreement.
"Delivery" shall mean a delivery of Gold or Shares, as applicable, in each case
effected according to the definition of "Deliver" in Section 1.1 of the Trust
Agreement.
"DTC" shall mean The Depository Trust Company, its nominees and their respective
successors.
"Fine Ounces" shall have the meaning ascribed to the term in Section 1.1 of the
Trust Agreement.
"Gold" shall have the meaning ascribed to the term in Section 1.1 of the Trust
Agreement.
"iShares" shall mean shares issued by the Trustee representing fractional,
undivided interests in the net assets of the Trust.
"Initial Creation" shall mean the initial creation of iShares pursuant to the
provisions of 2.01.
"Order Cut-Off Time" shall have the meaning ascribed to the term in Section 1.1
of the Trust Agreement.
"Order Date" shall have, (i) with respect to a Purchase Order, the meaning
ascribed to the term in Section 2.3 of the Trust Agreement; and (ii) with
respect to a Redemption Order, the meaning ascribed to the term in Section 2.6
of the Trust Agreement.
"Purchase Order" shall mean an order to purchase one or more Baskets in the form
attached hereto as Annex I.
"Redemption Order" shall mean an order to redeem one or more Baskets in the form
attached hereto as Annex II.
"Sponsor" shall mean Barclays Global Investors, N.A., a national banking
association, in its capacity as sponsor under the Trust Agreement.
"Trustee" shall mean The Bank of New York, a New York banking corporation, in
its capacity as Trustee under the Trust Agreement, and any successor thereto in
compliance with the provisions thereof.
"Trust" shall mean the iShares COMEX Gold Trust, a trust governed by the
provisions of the Trust Agreement.
"Trust Agreement" shall mean the Depositary Trust Agreement dated [ ], 2004
among the Trustee, the Sponsor, all owners and beneficial owners from time to
time of iShares and all depositors.
"Unallocated Basis" shall have the meaning ascribed to the term in Section 1.1
of the Trust Agreement.
Section 1.02. Interpretation. In these Procedures:
Unless otherwise indicated, all references to Sections, clauses,
paragraphs, schedules or exhibits, are to Sections, clauses, paragraphs,
schedules or exhibits in or to these Procedures.
The words "hereof", "herein", "hereunder" and words of similar import shall
refer to these Procedures as a whole, and not to any individual provision in
which such words may appear.
S1-2
A reference to any statute, law, decree, rule, regulation or other
applicable norm shall be construed as a reference to such statute, law, decree,
rule, regulation or other applicable norm as re-enacted, re-designated or
amended from time to time.
A reference to any agreement, instrument or document shall be construed as
a reference to such agreement, instrument or document as the same may have been
amended from time to time in compliance with the provisions thereof.
S1-3
Section 1.03. Conflicts. In case of conflict between any provision of
these Procedures and the terms of the Trust Agreement, the terms of the Trust
Agreement shall control.
ARTICLE II
CREATION PROCEDURES
Section 2.01. Initial Creation of iShares. The initial creation of iShares
will take place in compliance with such procedures as the Trustee, the Sponsor
and the initial Depositor may agree.
Section 2.02. Subsequent Creation of iShares. After the Initial Creation,
the issuance and Delivery of iShares shall take place only in integral numbers
of Baskets in compliance with the following rules:
a. Authorized Participants wishing to acquire from the Trustee one or
more Baskets shall place a Purchase Order with the Trustee no later than 4:00
p.m. (New York time) on any Business Day; provided, however, that only Purchase
Orders received by the Trustee prior to the Order Cut-Off Time on a Business Day
on which a COMEX Relevant Price is announced shall have such Business Day as the
Order Date. Purchase Orders received by the Trustee on or after the Order
Cut-Off Time on a Business Day, or on a Business Day on which COMEX does not
announce a COMEX Relevant Price, shall be considered received at the opening of
business on the next Business Day on which a COMEX Relevant Price is announced
and shall have as their Order Date such next Business Day.
b. For purposes of paragraph "a" above, a Purchase Order shall be deemed
"received" by the Trustee only when each of the following has occurred:
c. An Authorized Representative shall have placed a telephone call to the
Trustee's Creation and Redemption Line informing the Trustee that the Authorized
Participant wishes to place a Purchase Order for a specified number of Baskets
and the city or cities where the Authorized Participant expects to make Delivery
to the Custodian of the Basket Gold Amount corresponding to each Basket (such
city or cities to be limited to those where, in compliance with the Custodian
Agreement, the Custodian is authorized to hold Gold on behalf of the Trust).
d. Within one hour following such telephone call, the Trustee shall have
received, via facsimile or electronic mail message, a duly completed,
irrevocable Purchase Order executed by an Authorized Representative of such
Authorized Participant.
e. The Trustee will ask the Custodian to confirm whether it can take
delivery in the cities indicated by the Authorized Participant and, if so, to
identify the facilities where the Authorized Participant shall make Delivery of
the Basket Gold Amount. The Custodian shall have no obligation to take delivery
if the Custodian confirms to the Trustee that it cannot take delivery because of
lack of capacity. For purposes of the foregoing sentence, "capacity" means: (i)
the maximum amount of gold that can be physically stored in vaults available to
the Custodian in the relevant city; and (ii) the maximum amount of gold that the
can be physically accepted on a given date at vaults available to the Custodian
in the relevant city. The Custodian will also be deemed to lack "capacity" to
accept additional gold if, after giving effect to a new delivery, the value of
gold held in the Custodial Account would exceed $2 billion.
S1-4
f. Should the Trustee elect to accept the Purchase Order, it shall
communicate its decision by sending to the Authorized Participant (with copies
to the Custodian at the offices of the Custodian in New York and at each
location at which the Authorized Participant will be expected to Deliver Gold
pursuant to "e" above), via facsimile or electronic mail message, no later than
5:00 p.m. (New York time) on the Order Date for such Purchase Order a copy of
the corresponding Purchase Order endorsed "Accepted" by the Trustee and
indicating the Basket Gold Amount that the Authorized Participant shall Deliver
to the Custodian in respect of each Basket.
g. The Basket Gold Amount corresponding to each Basket must be delivered
no later than 11:30 a.m. (local time at the place of Delivery) on the first
Custodian Day following the Order Date, at the locations specified by the
Custodian. At the election of the Authorized Participant such delivery may be
made for deposit in the Trustee's Custodial Account or in the account of the
Authorized Participant with the Custodian. If delivery is made for deposit in
the Authorized Participant's Account, it will be accompanied by an irrevocable
order to the Custodian authorizing the transfer of the Gold so delivered to the
Trustee's Custodial Account against the delivery by the Trustee of the
corresponding number of iShares as provided in paragraph "j" or "l" below, as
applicable. The Authorized Participant shall contact the Custodian to obtain
information regarding the location of the facilities where Delivery shall take
place. The Custodian shall take all necessary measures to ensure that the
facilities at which Delivery is to take place in respect of a Purchase Order are
prepared to take such Delivery no later than 11:30 a.m. (local time at the place
of Delivery) on the first Custodian Day following the applicable Order Date.
h. Gold must be Delivered to the Custodian in the form of Gold bars only
and must be accompanied by the corresponding bar list; provided, that an amount
of Gold not exceeding 430 Ounces may be Delivered to the Custodian on an
Unallocated Basis. Gold that has been Delivered to the Custodian no later than
11:30 a.m. (local time at the place of Delivery) on a Custodian Day shall be
allocated by the Custodian to the Trustee's Custodial Account no later than 9:00
a.m. (New York time) (A) on the second Custodian Day following the date of such
Delivery, provided that it does not exceed (i) in the case of Gold already in
the possession of the Custodian prior to such Delivery, 500,000 Fine Ounces, and
(ii) in the case of Gold that was not in the possession of the Custodian prior
to such Delivery, 50,000 Fine Ounces, or (B) on the fourth Custodian Day
following the date of such Delivery, in the case of more than 50,000, but less
than 100,000, Fine Ounces of Gold that was not in the possession of the
Custodian prior to such Delivery. In all other cases Gold Delivered to the
Custodian shall be allocated by the Custodian to the Trustee's Custodial Account
as soon as practicable.
i. The Custodian shall allocate Gold to the Trustee's Custodial Account
by (i) making entries in the Custodian's books and records to identify such Gold
as being held for the Trust, it being understood that such entries shall
identify each bar of Gold so allocated by refiner, assay, serial number and
gross and fine weight; (ii) physically segregating from Gold held by the
Custodian for its own account or on behalf of other clients the Gold so
allocated to the Trustee's Custodial Account; and (iii) sending to the Trustee,
via signed facsimile and electronic mail message, a written confirmation of the
allocation, including the identification of the bars allocated as described
above. Any Gold received by the Custodian on an Unallocated Basis in compliance
with the provisions of paragraph "h" above, shall be transferred to the
Trustee's Custodial Account by the Custodian.
j. Provided that, by 9:00 a.m. (New York time) on the third Custodian Day
following the Order Date corresponding to a Purchase Order,
S1-5
(i) the Custodian shall have reported in writing to the Trustee that
it has reviewed the bar list and the Gold received from the Authorized
Participant to assure that the Gold matches the description in the bar list in
terms of weight, fineness, refiner's marks and bar numbers and that, based on
that review and on such further examination as the Custodian customarily
performs in respect of gold purchased for its own account, the Gold deposited by
the Authorized Participant in respect to such Purchase Order (A) complies with
(1) the "Good Delivery" Rules of the London Bullion Market Association, and/or
(2) the specifications for delivery in settlement of a COMEX gold futures
contract, and/or (3) such other standards as the Custodian and the Trustee, with
the approval of the Sponsor, may have adopted; and (B) is held by the Custodian
on behalf of the Trust in allocated form (except for amounts not to exceed in
the aggregate 430 Fine Ounces);
(ii) the Trustee shall have received from the Authorized Participant
a per order transaction fee in the amount of US$1,000.00; and
(iii) any other conditions to the issuance under the Trust Agreement
shall have been satisfied,
k. the Trustee (on such date, if it is a Business Day and, if not, on the
next Business Day) shall issue the aggregate number of iShares corresponding to
the Baskets ordered by the Authorized Participant and Deliver them by credit to
the account at DTC which the Authorized Participant shall have identified for
such purpose in its Purchase Order.
l. In all other cases, the Trustee shall issue the aggregate number of
iShares corresponding to the Baskets ordered by the Authorized Participant and
Deliver them by credit to the account at DTC which the Authorized Participant
shall have identified for such purpose in its Purchase Order on the Business Day
following the date on which the conditions set forth in clauses (i) to (iii) of
paragraph "j" above shall have been met.
ARTICLE III
REDEMPTION PROCEDURES
Section 3.01. Redemption of iShares. Redemption of iShares shall take
place only in integral numbers of Baskets in compliance with the following
rules:
a. Authorized Participants wishing to redeem one or more Baskets shall
place a Redemption Order with the Trustee no later than 4:00 p.m. (New York
time) on any Business Day; provided, however, that only Redemption Orders
received by the Trustee prior to the Order Cut-Off Time on a Business Day on
which a COMEX Relevant Price is announced shall have such Business Day as the
Order Date. Redemption Orders received by the Trustee on or after the Order
Cut-Off Time on any Business Day, or on a Business Day on which COMEX does not
announce a COMEX Relevant Price, shall be considered received at the opening of
business on the next Business Day on which a COMEX Relevant Price is announced
and shall have as their Order Date such next Business Day.
b. For purposes of paragraph "a" above, a Redemption Order shall be
deemed "received" by the Trustee only when each of the following has occurred:
(i) An Authorized Representative shall have placed a telephone call
to the Trustee's Creation and Redemption Line informing the Trustee that the
Authorized Participant wishes to place a Redemption Order for a specified number
of Baskets.
S1-6
(ii) Within one hour following such telephone call, the Trustee shall
have received, via facsimile or electronic mail message, a duly completed,
irrevocable Redemption Order executed by an Authorized Representative of such
Authorized Participant.
(iii) Should the Trustee elect to accept such Redemption Order, it
shall communicate its decision to the Authorized Participant by sending to the
Authorized Participant (with copy to the Custodian), via facsimile or electronic
mail message, no later than 5:00 p.m. (New York time) on the Order Date for such
Redemption Order a copy of the corresponding Redemption Order endorsed
"Accepted" by the Trustee and indicating the Gold Basket Amount that the
Custodian shall Deliver to the Authorized Participant in respect of each Basket
being redeemed.
c. Gold will be Delivered by the Custodian in the form of Gold bars only;
provided, that an amount of Gold not exceeding 430 Ounces may be Delivered by
the Custodian on an Unallocated Basis. While a redeeming Authorized Participant
will be entitled to express a preference as to the city or facility where it
would like to have the Gold Basket Amount delivered, the Trustee, in
consultation with the Custodian and taking into account the best interests of
the Trust and the Owners, will have final authority to decide where such
delivery will take place. The Custodian shall inform via electronic mail message
or facsimile sent to an Authorized Person of the redeeming Authorized
Participant no later than 11:00 a.m. (New York time) on the first Custodian Day
following the Order Date of such Redemption Order the exact location(s) where
Delivery will be made, and the amount of Gold to be Delivered to the Authorized
Participant at each such location.
d. Provided that (1) a Redemption Order does not require Delivery by the
Custodian of more than 500,000 Fine Ounces of Gold that, following such
Delivery, will continue to be held at the Custodian, or more than 50,000 Fine
Ounces of Gold that will not be held at the Custodian following such Delivery,
and (2) by 9:00 a.m. (New York time) on the third Custodian Day following the
Order Date of a Redemption Order, the Trustee shall have confirmed in writing to
the Custodian that
(i) the Authorized Participant has Delivered to the Trustee's
account at DTC the total number of iShares to be redeemed by such Authorized
Participant pursuant to such Redemption Order;
(ii) the Trustee has received a per order transaction fee of
US$1,000.00; and
(iii) any other conditions to the redemption under the Trust Agreement
have been satisfied,
the Custodian will, as applicable, on such day, at the locations and in the
amounts specified in the communication sent in compliance with paragraph
"c" above, effect physical Delivery to such Authorized Participant of the
corresponding amounts of Gold which complies with (1) the "Good Delivery"
Rules of the London Bullion Market Association, and/or (2) the
specifications for delivery in settlement of a COMEX gold futures contract,
and/or (3) such other standards as the Custodian and the Trustee, with the
approval of the Sponsor, may have adopted. Having made such Delivery, the
Custodian will send written confirmation thereof to the Trustee who will
then cancel the iShares so redeemed.
S1-7
e. If a Redemption Order requires Delivery by the Custodian of between
50,000 and 100,000 Fine Ounces of Gold that will not be held at the Custodian
following such Delivery, the Custodian, following receipt of written
confirmation from the Trustee as described in clauses "i" to "iii" of paragraph
"d" above, will make such Delivery on the fourth Custodian Day following the
Order Date of such Redemption Order.
f. In all other cases, Delivery must be completed by the Custodian as
soon as, in the reasonable judgment of the Custodian, it is practicable
following receipt of written confirmation from the Trustee as described in
clauses "i" to "iii" of paragraph "d" above.
g. The foregoing provisions notwithstanding, the Custodian shall not be
liable for any failure or delay in making Delivery of Gold in respect of a
Redemption Order arising from nuclear fission or fusion, radioactivity, war,
terrorist event, invasion, insurrection, civil commotion, riot, strike, act of
government, public authority or act of God, or a similar cause that is beyond
the Custodian's control. In the event of any such delay, the time to complete
Delivery in respect of a Redemption Order will be extended for a period equal to
that during which the inability to perform continues.
h. In the event that, by 9:00 a.m. (New York time) on the third Custodian
Day following the Order Date of a Redemption Order governed by paragraph "d"
above, or on the fourth Custodian Day following the Order Date of a Redemption
Order governed by paragraph "e" above, Trustee's account at DTC shall not have
been credited with the total number of iShares corresponding to the total number
of Baskets to be redeemed pursuant to such Redemption Order, the Trustee will
cancel such Redemption Order and will send via fax or electronic mail message
notice of such cancellation to the respective Authorized Participant and the
Custodian.
S1-8
ANNEX I TO CREATION AND REDEMPTION PROCEDURES
---------------------------------------------
PURCHASE ORDER
--------------
Authorized Participant: ______________________
Date: ____________________________
PIN: _________________________
Number of fine ounces of gold to be delivered:
---------------------
Location(s) where gold will be delivered:
Number of Baskets to be Issued:
------------------------
Additional information required for issuance of iShares:
This Purchase Order is subject to the terms and conditions of the Depositary
Trust Agreement of the iShares COMEX Gold Trust as currently in effect and the
Authorized Participant Agreement between the Authorized Participant, the Trustee
and the Sponsor named therein. All representations and warranties of the
Authorized Participant set forth in such Depositary Trust Agreement and the
Authorized Participant Agreement are incorporated herein by reference and are
true and accurate as of the date hereof.
The undersigned does hereby certify as of the date set forth below that he/she
is an Authorized Representative under the Authorized Participant Agreement and
that he/she is authorized to deliver this Purchase Order to the Trustee on
behalf of the Authorized Participant.
Date: By:
-------------------------------- ----------------------------------
Name:
Title:
S1-9
ANNEX II TO CREATION AND REDEMPTION PROCEDURES
----------------------------------------------
REDEMPTION ORDER
----------------
Authorized Participant: ______________________
Date: ____________________________
PIN: _________________________
Number of iShares to be redeemed:
---------------------
Additional information required for delivery of the Trust Property:
This Redemption Order is subject to the terms and conditions of the Depositary
Trust Agreement of the iShares COMEX Gold Trust as currently in effect and the
Authorized Participant Agreement between the Authorized Participant, the Trustee
and the Sponsor named therein. All representations and warranties of the
Authorized Participant set forth in such Depositary Trust Agreement and the
Authorized Participant Agreement are incorporated herein by reference and are
true and accurate as of the date hereof.
The undersigned does hereby certify as of the date set forth below that he/she
is an Authorized Representative under the Authorized Participant Agreement and
that he/she is authorized to deliver this Redemption Order to the Trustee on
behalf of the Authorized Participant.
Date: By:
-------------------------------- ----------------------------------
Name:
Title:
S1-10
Schedule 2
----------
Standard Terms
--------------
STANDARD TERMS FOR AUTHORIZED PARTICIPANT AGREEMENTS (the "Standard Terms")
agreed to as of [ ], 2004 by and between The Bank of New York, a New York
banking corporation, and Barclays Global Investors, N.A., a national banking
association.
S2-1
ARTICLE I
ORDERS FOR PURCHASE AND REDEMPTION
Section 1.01. Authorization to Purchase and Redeem Baskets. Subject to the
provisions of the Authorized Participant Agreement, during the term of the
Authorized Participant Agreement the Authorized Participant will be authorized
to purchase and redeem Baskets of iShares in compliance with the provisions of
the Trust Agreement.
Section 1.02. Procedures for Orders. Each party hereto agrees to comply
with the provisions of the Trust Agreement and the Procedures to the extent
applicable to it.
Section 1.03. Consent to Recording. The phone lines used by the Trustee,
the Custodian or their affiliated persons may be recorded, and the Authorized
Participant hereby consents to the recording of all calls with any of those
parties.
Section 1.04. Irrevocability. The Authorized Participant agrees on behalf
of itself and any Authorized Participant Client that delivery to the Trustee of
an Order shall be irrevocable; provided that each of the Trust and the Sponsor
reserves the right to reject any Order in compliance with the provisions of the
Trust Agreement.
Section 1.05. Costs and Expenses. The Authorized Participant shall be
responsible for any and all expenses and costs incurred by the Trust in
connection with any Orders.
Section 1.06. Delivery of Property to the Trust. The Authorized
Participant understands and agrees that in the event Deposit Property is not
transferred to the Trust by the time specified in the Purchase Order and in
compliance with the Procedures and the Trust Agreement, a Purchase Order may be
cancelled by the Trustee and the Authorized Participant will be solely
responsible for all costs incurred by the Trust or the Trustee related to the
cancelled Order.
Section 1.07. Title to Deposit Property and iShares Surrendered for
Redemption. The Authorized Participant represents and warrants to the Trustee
that
a. in connection with each Purchase Order, the Authorized Participant
will have full power and authority to transfer to the Trust the corresponding
Deposit Property, and that upon delivery of such Deposit Property to the
Custodian and/or the relevant subcustodian in accordance with the Procedures,
the Trust will acquire good and unencumbered title to such property, free and
clear of all liens, charges, duties imposed on the transfer of assets and
encumbrances and not subject to any adverse claims or transferability
restrictions, whether arising by operation of law or otherwise; and
b. in connection with a Redemption Order, the Authorized Participant will
have full power and authority to surrender to the Trustee for redemption the
corresponding iShares, and upon such surrender the Trust will acquire good and
unencumbered title to such iShares, free and clear of all liens, charges, duties
imposed on the transfer of assets and encumbrances and not subject to any
adverse claims, transferability restrictions (whether arising by operation of
law or otherwise), loan, pledge, repurchase or securities lending agreements or
other arrangements which would preclude the delivery of such iShares on a
"regular way" basis.
Section 1.08. Certain Payments or Distributions.
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a. With respect to any Purchase Order, the Trust acknowledges and agrees
to return to the Authorized Participant any payment, distribution or other
amount paid to the Trust in respect of any Deposit Property transferred to the
Trust that, based on the valuation of such Deposit Property at the time of
transfer, should have been paid to the Authorized Participant. Likewise, the
Authorized Participant acknowledges and agrees to return to the Trust any
payment, distribution or other amount paid to the Authorized Participant or any
Authorized Participant Client in respect of any Deposit Property transferred to
the Trust that, based on the valuation of such Deposit Property at the time of
transfer, should have been paid to the Trust.
b. With respect to any Redemption Order, the Authorized Participant on
behalf of itself and any Authorized Participant Client acknowledges and agrees
to return to the Trust any payment, distribution or other amount paid to it or
an Authorized Participant Client in respect of any property transferred to the
Authorized Participant or any Authorized Participant Client that, based on the
valuation of such property at the time of transfer, should have been paid to the
Trust. The Trust is entitled to reduce the amount of any property due to the
Authorized Participant or any Authorized Participant Client by an amount equal
to any payment, distribution or other sum to be paid to the Authorized
Participant or to the Authorized Participant Client in respect of any property
transferred to the Authorized Participant or any Authorized Participant Client
that, based on the valuation of such property at the time of transfer, should be
paid to the Trust. Likewise, the Trust acknowledges and agrees to return to the
Authorized Participant or any Authorized Participant Client any payment,
distribution or other amount paid to it in respect of any iShares transferred to
the Trust that, based on the valuation of such iShares at the time of transfer,
should have been paid to the Authorized Participant or such Authorized
Participant Client.
ARTICLE II
AUTHORIZED REPRESENTATIVES
Section 2.01. Certification. Concurrently with the execution of the
Authorized Participant Agreement, and as requested from time to time by the
Trustee but no less frequently than annually, the Authorized Participant shall
deliver to the Trust a certificate signed by the Authorized Participant's
Secretary or other duly authorized official setting forth the names, e-mail
addresses and telephone and facsimile numbers of all persons authorized to give
instructions relating to any activity contemplated hereby or any other notice,
request or instruction on behalf of the Authorized Participant (each an
"Authorized Representative"). Such certificate may be accepted and relied upon
by the Trust as conclusive evidence of the facts set forth therein and shall be
considered to be in full force and effect until delivery to the Trust of a
superseding certificate in a form approved by the Trust bearing a subsequent
date.
Section 2.02. PIN Numbers. The Trustee shall issue to each Authorized
Participant a unique personal identification number ("PIN Number") by which such
Authorized Participant shall be identified and instructions issued by the
Authorized Participant shall be authenticated. The PIN Number shall be kept
confidential and only provided to Authorized Representatives. The Authorized
Participant may revoke the PIN Number at any time upon written notice to the
Trustee, and the Authorized Participant shall be responsible for doing so in the
event that it becomes aware that an unauthorized person has received access to
its PIN Number or has or intends to use the PIN Number in an unauthorized
manner. Upon receipt of such written request, the Trustee shall, as promptly as
practicable, de-activate the PIN Number. If an Authorized Participant's PIN
Number is changed, the new PIN Number will become effective on a date mutually
agreed upon by the Authorized Participant and the Trustee. The Authorized
Participant agrees that none of the Trust or the Trustee shall be liable, absent
fraud or willful misconduct, for losses incurred by the Authorized Participant
as a result of unauthorized use of the Authorized Participant's PIN Number.
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Section 2.03. Termination of Authority. Upon the termination or revocation
of authority of an Authorized Representative by the Authorized Participant, the
Authorized Participant shall (i) give immediate written notice of such fact to
the Trustee and such notice shall be effective upon receipt by the Trustee; and
(ii) request a new PIN Number. The Trustee shall, as promptly as practicable,
de-activate the PIN Number upon receipt of such written notice.
Section 2.04. Verification. The Trustee may assume that all instructions
issued to it using the Authorized Participant's PIN Number have been properly
placed by Authorized Representatives, unless the Trustee has actual knowledge to
the contrary or the Authorized Participant has revoked its PIN Number. The
Trustee shall have no duty to verify that an Order is being placed by an
Authorized Representative. The Authorized Participant agrees that the Trustee
shall not be responsible for any losses incurred by the Authorized Participant
as a result of an Authorized Representative identifying himself or herself as a
different Authorized Representative or an unauthorized person identifying
himself or herself as an Authorized Representative, unless the Trustee
previously received from the Authorized Participant written notice to revoke its
PIN Number.
ARTICLE III
STATUS OF THE AUTHORIZED PARTICIPANT
Section 3.01. Clearing Status. The Authorized Participant represents,
covenants and warrants that, as of the date of execution of the Authorized
Participant Agreement, and at all times during the term of the Authorized
Participant Agreement, the Authorized Participant is and will be entitled to use
the clearing and settlement services of each of the national or international
clearing and settlement organizations through which, in compliance with the
Procedures, the transactions contemplated hereby will clear and settle. Any
change in the foregoing status of the Authorized Participant shall terminate the
Authorized Participant Agreement and the Authorized Participant shall give
prompt written notice thereof to the Trustee.
Section 3.02. Broker-Dealer Status. The Authorized Participant represents
and warrants that, unless the following paragraph is applicable to it, it is (i)
registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended, (ii) qualified to act as a broker or dealer in the states or other
jurisdictions where it transacts business, and (iii) a member in good standing
of the NASD. The Authorized Participant agrees that it will maintain such
registrations, qualifications, and membership in good standing and in full force
and effect throughout the term of the Authorized Participant Agreement. The
Authorized Participant further 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 NASD, and that it will not offer or sell iShares in any
state or jurisdiction where they may not lawfully be offered and/or sold.
Section 3.03. Foreign Status. If the Authorized Participant is offering
and selling iShares in jurisdictions outside the several states, territories and
possessions of the United States and is not otherwise required to be registered,
qualified, or a member of the NASD as set forth in the preceding paragraph, the
Authorized Participant nevertheless agrees to observe the applicable laws of the
jurisdiction in which such offer and/or sale is made (e.g., it will not offer or
sell iShares of any Trust in any state or jurisdiction where they may not
lawfully be offered and/or sold), to comply with the full disclosure
requirements of the 1933 Act and the regulations promulgated thereunder and to
conduct its business in accordance with the spirit of the NASD Conduct Rules.
Section 3.04. Compliance with Certain Laws. If the Authorized Participant
is subject to the requirements of the Uniting and Strengthening America by
Providing Appropriate Tools Required to
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Intercept and Obstruct Terrorism ("U.S.A. PATRIOT Act"), the Authorized
Purchaser is in compliance with the anti-money laundering and related provisions
of the U.S.A. PATRIOT Act.
Section 3.05. Authorized Participant Status. The Authorized Participant
understands and acknowledges that the method by which Baskets of iShares will be
created and traded may raise certain issues under applicable securities laws.
For example, because new Baskets of iShares may be issued and sold by the Trust
on an ongoing basis, at any point a "distribution", as such term is used in the
1933 Act, may occur. The Authorized Participant understands and acknowledges
that some activities on its part, depending on the circumstances, may result in
its being deemed a participant in a distribution in a manner which could render
it a statutory underwriter and subject it to the prospectus delivery and
liability provisions of the 1933 Act.
ARTICLE IV
ROLE OF AUTHORIZED PARTICIPANT
Section 4.01. Independent Contractor. The Authorized Participant
acknowledges and agrees that for all purposes of the Authorized Participant
Agreement, the Authorized Participant will be deemed to be an independent
contractor, and will have no authority to act as agent for the Trust or the
Trustee in any matter or in any respect. The Authorized Participant agrees to
make itself and its employees available, upon request, during normal business
hours to consult with the Trustee, the Sponsor or their designees concerning the
performance of the Authorized Participant's responsibilities under the
Authorized Participant Agreement.
Section 4.02. Rights and Obligations of DTC Participant. In executing the
Authorized Participant Agreement, the Authorized Participant agrees in
connection with any purchase or redemption transactions in which it acts for an
Authorized Participant Client or for any other DTC Participant or indirect
participant, or any other Beneficial Owner, that it shall extend to any 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 Procedures.
Section 4.03. Maintenance of Records. The Authorized Participant agrees to
maintain records of all sales of iShares made by or through it and to furnish
copies of such records to the Trustee or the Sponsor upon request.
ARTICLE V
MARKETING MATERIALS AND REPRESENTATIONS
Section 5.01. Authorized Participant's Representation. The Authorized
Participant represents, warrants and agrees that it will not make, or permit any
of its representatives to make, any representations concerning iShares other
than those contained in the Trust's then current Prospectus or in any
promotional materials or sales literature furnished to the Authorized
Participant by the Sponsor. The Authorized Participant agrees not to furnish or
cause to be furnished to any person or display or publish any information or
materials relating to iShares (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 Authorized Participant by the Sponsor
and such other information and materials as may be approved in writing by the
Sponsor. The Authorized Participant understands that the Trust will not be
advertised as offering redeemable securities, and that any advertising materials
will prominently disclose that the iShares are not redeemable units of
beneficial interest in the Trust. Notwithstanding the foregoing, the Authorized
Participant may, without
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the written approval of the Sponsor, prepare and circulate in the regular course
of its business reports, research or similar materials that include information,
opinions or recommendations relating to iShares (i) for public dissemination,
provided that such reports, research or similar materials compare the relative
merits and benefits of iShares with other products and are not used for purposes
of marketing iShares and (ii) for internal use by the Authorized Participant.
Copies of the then current Prospectus of the Trust will be supplied by the
Sponsor to the Authorized Participant in reasonable quantities upon request.
ARTICLE VI
INDEMNIFICATION; LIMITATION OF LIABILITY
Section 6.01. Indemnification. The provisions of this Article shall
survive termination of the Agreement.
a. The Authorized Participant shall indemnify and hold harmless the
Trustee, the Trust, the Custodian (which the parties agree is a third-party
beneficiary under this Subsection 6.01(a)) 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
a "Trustee Indemnified Party") from and against any loss, liability, cost and
expense (including attorneys' fees) incurred by such Trustee Indemnified Party
as a result of (i) any breach by the Authorized Participant of any
representations or warranties of the Authorized Participant; (ii) any failure on
the part of the Authorized Participant to perform any of its obligations set
forth in the Authorized Participant Agreement; (iii) any failure by the
Authorized Participant to comply with applicable laws, including rules and
regulations of self-regulatory organizations; (iv) actions of such Trustee
Indemnified Party in reliance upon any instructions issued in accordance with
the Procedures reasonably believed by such Trustee Indemnified Party to be
genuine and to have been given by the Authorized Participant; (v) any
representation by the Authorized Participant, its employees, agents or other
representatives about the iShares, the Trust or any Trustee Indemnified Party
that is not consistent with the Trust's then current Prospectus made in
connection with the offer or the solicitation of an offer to buy or sell iShares
or (vi) any untrue statement or alleged untrue statement of a material fact
contained in any marketing materials or research regarding the iShares prepared
by the Authorized Participant, or the omission, or alleged omission, of a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
b. The Authorized Participant shall not be liable to any Trustee
Indemnified Party for any damages arising out of (i) mistakes or errors in data
provided in connection with purchase or redemption transactions except for data
provided by the Authorized Participant, or (ii) mistakes or errors by, or
arising out of interruptions or delays of communications with, the Trustee or
any Trustee Indemnified Party.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Commencement of Trading. The Authorized Participant may not
submit an Order until five Business Days after the date of execution of the
Authorized Participant Agreement or a date agreed upon by the Trustee and the
Authorized Participant.
Section 7.02. Definitions. The capitalized terms used herein are defined
as follows.
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a. "1933 Act" means the U.S. Securities Act of 1933, as amended.
b. "Affiliate" shall have the meaning given to it by Rule 501(b) under
the 1933 Act.
c. "Authorized Participant Agreement" shall mean each Authorized
Participant Agreement among the Authorized Participant, the Trustee and the
Sponsor into which these Standard Terms shall have been incorporated by
reference.
d. "Authorized Participant" shall have the meaning ascribed to it in the
introductory paragraph of the Authorized Participant Agreement.
e. "Authorized Participant Client" means any party on whose behalf the
Authorized Participant acts in connection with an Order (whether a customer or
otherwise).
f. "Authorized Representative" shall have the meaning ascribed to it in
Section 2.01 hereof.
g. "Basket" shall have the meaning ascribed to it in the Recitals to the
Authorized Participant Agreement.
h. "Beneficial Owner" shall have the meaning given to it by Rule
16a-1(a)(2) of the Securities Exchange Act of 1934.
i. "Business Day" shall mean each day the exchange on which the iShares
trade is open for regular trading.
j. "Custodian" shall have the meaning ascribed to it in the Procedures.
k. "Deposit Property" means property which, in compliance with the
provisions of the Trust Agreement, must be transferred by the Authorized
Participant to the Trust in exchange for iShares.
l. "DTC" means The Depository Trust Company.
m. "iShares" means iShares issued by the Trust pursuant to the provisions
of the Trust Agreement.
n. "NASD" means the National Association of Securities Dealers, Inc.
o. "Order" shall have the meaning ascribed to it in Section 1 of the
Authorized Participant Agreement.
p. "Procedures" shall have the meaning ascribed to it in Section 1 of the
Authorized Participant Agreement.
q. "Prospectus" means the Trust's current prospectus included in its
effective registration statement, as supplemented or amended from time to time.
r. "Purchase Order" shall have the meaning ascribed to it in Section 1 of
the Authorized Participant Agreement.
s. "Redemption Order" shall have the meaning ascribed to it in Section 1
of the Authorized Participant Agreement.
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t. "Sponsor" shall have the meaning ascribed to it in the introductory
paragraph of the Authorized Participant Agreement.
u. "Trust" shall have the meaning ascribed to it in the introductory
paragraph of the Authorized Participant Agreement.
v. "Trust Agreement" shall have the meaning ascribed to it in the
introductory paragraph of the Authorized Participant Agreement.
w. "Trustee" shall have the meaning ascribed to it in the introductory
paragraph of the Authorized Participant Agreement.
x. "Trustee Indemnified Party" shall have the meaning ascribed to it in
Section 6.01.a hereof.
Section 7.03. Effectiveness, Termination and Amendment. The Authorized
Participant Agreement shall become effective upon execution and delivery by each
of the parties thereto. The Authorized Participant 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 Trustee or the Sponsor at any time
in the event of a breach by the Authorized Participant of any provision of the
Authorized Participant Agreement or the Procedures. The Authorized Participant
Agreement supersedes any such prior agreement between or among the parties. The
Authorized Participant Agreement may be amended by the Trustee and the Sponsor
from time to time without the consent of the Authorized Participant or any
Beneficial Owner by the following procedure: the Trustee and the Sponsor will
mail a copy of the amendment to the Authorized Participant in compliance with
the notice provisions of the Authorized Participant Agreement; if the Authorized
Participant does not object in writing to the amendment within ten Business Days
after receipt of the proposed amendment, the amendment will become part of the
Authorized Participant Agreement in accordance with its terms.
Section 7.04. Governing Law. The Authorized Participant Agreement shall be
governed by and interpreted in accordance with the laws of the State of New
York. The parties irrevocably submit to the non-exclusive jurisdiction of any
New York State or United States Federal court sitting in New York City over any
suit, action or proceeding arising out of or relating to the Authorized
Participant Agreement.
Section 7.05. Assignment. No party to the Authorized Participant Agreement
shall assign any rights, or delegate the performance of any obligations, arising
hereunder without the prior written consent of the other parties hereto;
provided, that an entity into which a party hereto may be merged or converted,
or with which it may be consolidated, or any entity resulting from any merger,
consolidation or conversion to which a party hereunder shall be a party, shall
be the successor of such party hereto. Any purported assignment or delegation in
violation of these provisions shall be null and void. Notwithstanding the
foregoing, any successor Trustee appointed in compliance with the Trust
Agreement shall automatically become a party hereto and shall assume all the
obligations, and be entitled to all the rights and remedies of the Trustee
hereunder.
Section 7.06. Counterparts. The Authorized Participant 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.
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Schedule 3
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CERTIFICATE OF AUTHORIZED REPRESENTATIVES
-----------------------------------------
Each of the following employees of [XYZ] (each, an "Authorized Representative")
is authorized, in accordance with the Authorized Participant Agreement dated
[ ] among [XYZ], the Sponsor and the Trustee, to submit Purchase Orders and
Redemption Orders on behalf and in the name of [XYZ] and to give instructions or
any other notice or request on behalf of [XYZ] with respect to such Orders or
any other activity contemplated by the Authorized Participant Agreement.
Name:
e-mail Address:
Telephone:
Fax:
Name:
e-mail Address:
Telephone:
Fax:
Name:
e-mail Address:
Telephone:
Fax:
Name:
e-mail Address:
Telephone:
Fax:
The undersigned, [name of secretary or authorized officer], [title] of [XYZ],
does hereby certify that the persons listed above have been duly authorized to
act as Authorized Representatives pursuant to the Authorized Participant
Agreement.
By:
---------------------------------
Name:
Title:
Date:
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