PFO/TREASURER SERVICES AGREEMENT
Exhibit
23(h)(4)
AGREEMENT made as of
____________, 2011 by and between FocusShares Trust, a Delaware
statutory trust, with its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the “Fund”), FocusShares, LLC, a Delaware
limited liability company, with its principal office and place of business at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the “Adviser”) and
Foreside Management Services,
LLC, a Delaware limited liability company with its principal office and
place of business at Three ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(“Foreside”).
WHEREAS, the Fund is, or will
be, registered under the Investment Company Act of 1940, as amended (the “1940
Act”), as an open-end management investment company; and
WHEREAS, the Fund desires that
Foreside perform certain 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 (the
“Advisory Agreement”), the Adviser serves as investment adviser to the Fund;
and
WHEREAS, pursuant to a unitary
fee arrangement between the Fund 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 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 and Foreside hereby agree as follows:
SECTION 1. APPOINTMENT;
DELIVERY OF DOCUMENTS
(a) The
Fund hereby appoints Foreside, and Foreside hereby agrees, to provide an
employee of Foreside acceptable to the Board of Trustees of the Fund (the
“Board”) to serve as the Fund’s Principal Financial Officer and Treasurer
(“PFO/Treasurer”) to the Fund for the period and on the terms and conditions set
forth in this Agreement. A copy of the PFO/Treasurer’s resume has been provided
to the Fund and will be updated from time to time as necessary by
Foreside.
(b) In
connection therewith, the Fund has delivered to Foreside copies of, and shall
promptly furnish Foreside with all amendments of or supplements to: (i) the
Fund’s Declaration of Trust and Bylaws (collectively, as amended from time to
time, “Organizational Documents”); (ii) the Fund’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”), or the 1940 Act (the “Registration Statement”); (iii)
the Fund’s current Prospectus and Statement of Additional Information
(collectively, as currently in effect and as amended or supplemented, the
“Prospectus”); (iv) each plan of distribution or similar document that may be
adopted by the Fund under Rule 12b-1 under the 1940 Act and each current
shareholder service plan or similar document adopted by the Fund; and (v) all
compliance policies, programs and procedures adopted by the Fund with respect to
the Fund. The Fund shall deliver to Foreside a certified copy of the
resolution of the Board appointing the PFO/Treasurer hereunder and
authorizing the execution and delivery of this Agreement. In
addition, the Fund 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 an employee of
Foreside who is competent and knowledgeable regarding the management and
internal controls of the Fund to serve as the Fund’s PFO/Treasurer, who will
have the authority normally incident to such office, including the authority to
execute documents required to be executed by the Fund’s “Principal Financial
Officer” and/or “Treasurer”.
(b) Foreside
and/or the PFO/Treasurer, as an agent of Foreside, shall provide the services as
set forth on Appendix
A hereto (the “Services”).
(c) Foreside
shall maintain records relating to the Services, such as policies and
procedures, relevant Board presentations, and other records (collectively, the
“Records”), as are required to be maintained under the relevant securities laws
and regulations. Such reports 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. The Fund, or the Fund’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, copies of any of the Records shall be provided promptly by Foreside to the
Fund or the Fund’s authorized representatives. Such provision of Records shall
be at the Fund’s expense, as set forth in Section 5 of this
Agreement.
(d) 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
the Fund to act in contravention of the Fund’s Prospectus or any provision of
the 1940 Act. Further, while Foreside will provide services under this Agreement
to assist the Fund with respect to the Fund’s obligations under and compliance
with various laws and regulations, Fund 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 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
assumes all responsibility for ensuring that the Fund 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. 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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(e) 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.
(f) In
order for Foreside to perform the Services, the Fund shall take reasonable steps
to (i) encourage all of its service providers to furnish any and all information
to Foreside as reasonably requested; and (ii) ensure that Foreside has access to
all relevant records and documents maintained by the Fund or any service
provider to the Fund.
(g) Foreside
may provide other services and assistance relating to the affairs of the Fund as
the Fund may, from time to time, request subject to mutually acceptable
compensation and implementation agreements.
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 and shall not be liable to the Fund or any of the Fund’s
stockholders for any action or inaction of Foreside or the PFO/Treasurer
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 PFO/Treasurer shall be
liable to the Fund or any of the Fund’s stockholders for any action taken, or
failure to act, in good faith reliance upon: (i) the advice and opinion of Fund
counsel; and/or (ii) any certified copy of any resolution of the
Board. Neither Foreside nor the PFO/Treasurer 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 and/or the PFO/Treasurer reasonably believe(s) in good faith to be
genuine.
(b) The
Fund 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.
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In no
case (i) is the indemnity of the Fund 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, negligence or fraud 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 to be liable with respect to
any claim made against any Foreside Indemnitee unless the Foreside Indemnitee
notifies the Fund 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 of any claim shall not relieve the
Fund from any liability that it may have to any Foreside Indemnitee unless
failure or delay to so notify the Fund prejudices the Fund’s ability to defend
against such claim.
The Fund
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 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 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 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 and each of its Trustees,
officers and employees and any person who controls the Fund within the meaning
of Section 15 of the Securities Act (for purposes of this paragraph, the Fund
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 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) Foreside
shall not be liable for the errors of other service providers to the Fund or
their systems.
(f) The
Fund agrees that Foreside, its employees, officers and directors shall not be
liable to the Fund for any actions, damages, claims, liabilities, costs,
expenses or losses in any way arising out of or relating to the Services 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).
The
foregoing paragraphs of this Section 3(f) shall not be construed to protect the
PFO/Treasurer against any liability to the Fund or to its security holders to
which he or she would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office.
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SECTION 4. REPRESENTATIONS
AND WARRANTIES
(a) Foreside
covenants, represents and warrants to the Fund 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;
(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 PFO/Treasurer 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
report to the Board promptly if Foreside learns about PFO/Treasurer malfeasance
or in the event the PFO/Treasurer is terminated as an officer by another fund or
terminated by Foreside;
(viii) it shall
comply with all applicable laws;
(ix) it shall
maintain policies of insurance reasonable and customary for its
business;
(x) the
individual designated by Foreside pursuant to this Agreement to serve as the
Fund’s PFO/Treasurer is reasonably qualified to serve in such capacity;
and
(xi) to
Foreside’s actual knowledge, the individual designated by Foreside pursuant to
this Agreement to serve as the Fund’s PFO/Treasurer is not and has not been
subject to any court, regulatory agency or other organization order, sanction or
ban that would (a) interfere with his or her ability to serve in such capacity
or (b) require disclosure in the Fund’s Registration Statement with the
SEC.
(b) The
Fund covenants, represents and warrants to Foreside that:
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(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;
(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, or will be within a reasonable date, 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, enforceable against the Fund 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 or will be
effective and will remain effective and appropriate State securities law filings
will be or have been made and will continue to be made with respect to the
Fund;
(vii) the
PFO/Treasurer shall be covered by the Fund’s Directors & Officers Liability
Insurance Policy (the “Policy”), and the Fund shall use reasonable efforts to
ensure that such coverage be (a) reinstated should the Policy be cancelled; (b)
continued after the PFO/Treasurer ceases to serve as an officer of the Fund on
substantially the same terms as such coverage is provided for all other Fund
officers after such persons are no longer officers of the Fund; and (c)
continued in the event the Fund merges or terminates, on substantially the same
terms as such coverage is provided for all other Fund officers (and for a period
no less than three years). The Fund 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 PFO/Treasurer is a named officer in the Fund’s
corporate resolutions and subject to the provisions of the Fund’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;
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(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.
SECTION
5. COMPENSATION AND EXPENSES
(a) In
consideration of the services provided by Foreside pursuant to this Agreement,
the Adviser shall pay Foreside the fees and expenses set forth in Appendix B hereto due
to Foreside from the Fund.
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 counsel. The costs of any such
advice shall be borne by the Fund and paid by the Fund or the
Adviser.
(c) The
PFO/Treasurer is serving solely as an officer of the Fund and neither the
PFO/Treasurer nor Foreside shall be responsible for, or have any obligation to
pay, any of the expenses of the Fund. All Fund expenses shall be the
obligation of the Fund 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 the Services, 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.
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(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.
(d) The
provisions of Sections 3, 6(d), 7, 10, 11, and 12 shall survive any termination
of this Agreement.
(e) This
Agreement and the rights and duties under this Agreement shall not be assignable
by the Fund and/or the Adviser except by the specific written consent
of Foreside or by Foreside except by the specific written consent of the
Fund. 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 as proprietary information of the Fund 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, 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 as promptly as possible so as to enable the Fund 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.
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
PFO/Treasurer), 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 approval by the Fund, 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 PFO/Treasurer shall
cooperate with the Fund’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
STOCKHOLDER AND TRUSTEE LIABILITY
The Trustees of the Fund and the
stockholders of the Fund shall not be liable for any obligations of the Fund
under this Agreement, and Foreside agrees that, in asserting any rights or
claims under this Agreement with regard to the Fund, it shall look only to the
assets and property of the Fund.
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 either 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 Fund and the Adviser, as
the case may be. Notice shall be given to each party at the following
address(es):
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(i) To Foreside:
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(ii) To Fund and Adviser:
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Foreside
Management Services, LLC
Attn:
Compliance Services ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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Attn: President
▇▇▇
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▇▇▇▇▇▇▇▇,
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Phone:
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇
with
a copy to:
FocusShares,
LLC
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief
Financial Officer
c/o
Scottrade, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇
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(f) Invoices
for fees and expenses due to Foreside hereunder and as set forth in Appendix B hereto
shall be sent by Foreside to the address furnished below unless and until
changed by Fund and the Adviser (Fund and Adviser to provide reasonable advance
notice of any change of billing address to Foreside):
11
FocusShares,
LLC
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer
c/o
Scottrade, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Email:
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
(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 business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund 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 ▇▇▇▇ ▇▇▇.
[SIGNATURE
PAGE FOLLOWS]
12
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.
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By:
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Name:
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Title:
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FOCUSSHARES,
LLC
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By:
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Name:
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Title:
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FORESIDE
MANAGEMENT SERVICES, LLC
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By:
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Name:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title:
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Vice
President
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13
Appendix
A
Services
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·
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Attend
and represent the Fund in person at quarterly Board meetings and at
special Board meetings as may be requested by the
Board;
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·
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Present
materials to the Board, audit committees and senior management, as
required or requested;
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·
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Make
all necessary representations and certifications including obtaining
sub-certifications from various providers (i.e., ▇▇▇▇▇▇▇▇-▇▇▇▇▇
certifications, conformity with GAAP principles, SEC filings, management
representation letters to fund
auditors);
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·
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Review
and sign as PFO/Treasurer on all shareholder communications and all SEC
filings as required;
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·
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Coordinate
timing of financial statement preparation and
filings;
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·
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Perform
detailed review of the quarterly SEC filings (i.e., Form N-Q, Form N-CSR
and Form N-SAR);
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·
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Design
and recommend disclosure controls and procedures for SEC filings to ensure
that all relevant Fund information is properly
disclosed;
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·
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Ensure
the fund administrator is in compliance with Board policies, procedures,
by-laws and resolutions as they pertain to expense
management;
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·
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Oversee
the budgeting process and authorize the procedures under which the fund
administrator will make expense payments on behalf of the
Fund;
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·
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Assist
with the negotiation of contracts related to audit fees and fees for
services with service providers and independent
accountants;
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·
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Represent
the Fund as PFO/Treasurer at SEC examinations as
required;
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·
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Periodic
review of performance of each service provider against the Fund’s
policies, procedures and contracts in cooperation with the Fund’s Chief
Compliance Officer and President;
and
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·
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Other
attendant duties of PFO/Treasurer as
required.
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