SUB-LICENSING AGREEMENT
EX-99.h.v
SUB-LICENSING AGREEMENT
This AGREEMENT, dated as of May 23, 2018 by and among O'Shares Investments Inc., a Canadian corporation ("O'Shares"), and OSI ETF Trust, a Delaware statutory trust (the "Trust") that is registered as an open-end management investment company under the Investment Company Act of 1940, as amended (the "1940 Act"), on behalf of certain series of the Trust identified on Exhibit A, as it may be amended from time to time (each, a "Fund" and, collectively, the "Funds").
WHEREAS, O'Shares is a party to the FTSE Index License Exchange Traded Fund Agreement with FTSE International Limited ("FTSE") effective as of June 4, 2015, as may be amended from time to time in accordance with the terms thereof (the "License Agreement"); and
WHEREAS, pursuant to the License Agreement, O'Shares has a non-exclusive, non-transferable license to use certain FTSE indexes (each an ''Index" and collectively, the "Indexes") and their related trademarks ("Index Trademarks") in connection with the issuance, operation, marketing, and promotion of the Funds; and
WHEREAS, O'Shares Investment Advisers, LLC, a wholly owned subsidiary of O'Shares, serves as the investment adviser to the Funds; and
WHEREAS, O'Shares wishes to authorize the Trust to use the Indexes and Index Trademarks on behalf of the Funds consistent with the terms of the License Agreement and as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt whereof is hereby acknowledged, and the mutual performance of the undertakings herein, it is agreed by and among the parties hereto as follows:
| 1. | Indexes. |
(a) The Trust may use the Indexes in connection with factual statements, tables, graphs or diagrams referring to past performance of the relevant Index in documents relating to a Fund, including, without limitation any Fund summary prospectus, statutory prospectus, statement of additional information or shareholder reports ("Fund Documents").
(b) The parties acknowledge and agree that FTSE may make changes to the Index as provided in the License Agreement.
| 2. | Index Trademarks. |
(a) The Index Trademarks may only be used in connection with the Funds.
(b) The applicable Index Trademark shall be used in the name of a Fund. The Trust shall give O'Shares two week's advance notice of any change in the name of a Fund so that O'Shares can provide notice of the name change to FTSE.
3. No Ownership Rights. The Trust acknowledges and agrees that nothing in this Agreement shall transfer to the Trust or the Funds any title to, or any right or interest in, any Indexes or Index Trademarks, and that all rights to or in the Indexes or the Index Trademarks are reserved to FTSE.
4. Compliance of Fund Documents with License Agreement.
(a) The Trust shall provide Fund Documents to O'Shares no less than five (5) business days' prior to their first use, publication or filing, in order for O'Shares to confirm that such Fund Documents comply with the requirements of the License Agreement.
(b) In the event that O'Shares informs the Trust within two (2) business days after receipt of the Fund Documents that such Fund Documents do not comply with the License Agreement, the parties shall use their best efforts to cause such Fund Documents to so comply. The Trust shall not use, publish or file such Fund Documents until such compliance issues have been resolved.
(c) Nothing in this paragraph shall prevent the Trust from making any statements, filings or disclosures that are required by applicable law or regulation.
(d) Upon the request of O'Shares, the Trust shall, to the extent consistent with applicable laws or regulations, amend, cease distribution of, or recall any Fund Documents that are in breach of the License Agreement.
(e) The Trust shall cooperate with O'Shares' reasonable requests for information necessary to confirm O'Shares' compliance with the License Agreement, including details of assets under management, total expense ratio, and/or net asset value of the Funds.
5. No Fees. The rights of the Trust, on behalf of the Funds, to use the Indexes and the Index Trademarks are provided by O'Shares at no cost to the Trust or the Funds.
| 6. | Warranty by O'Shares. |
(a) O'Shares warrants that is has the right under the License Agreement to permit the Funds to use the Indexes and the Index Trademarks under this Agreement, and that to its actual knowledge, each Fund's use of the Indexes and the Index Trademarks in accordance with this Agreement shall not infringe on the intellectual property rights of any third party.
(b) O'Shares makes no other warranties as to the Indexes or the Index Trademarks, including no warranties that the Indexes or the Index Trademarks: (i) are of any particular quality (satisfactory or otherwise); (ii) are fit for any particular purpose or use, including but not limited to producing any particular investment outcome or suitability for any use made of the Indexes or the Index Trademarks (whether or not this use has been made known to O'Shares); or (iii) are accurate or complete.
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7. Limitation of Liability. O'Shares shall not be liable to any Fund (whether by breach of contract, negligence, or for any other reason) for any loss of profits; loss of sales; loss of revenue; loss of goodwill; loss of reputation; loss of opportunity; loss or damage arising from any claim by a shareholder of a Fund; loss of value in or relating to the Funds, the Indexes or the Index Trademarks; or indirect, consequential or special loss or damage.
8. Term and Termination. This Agreement shall become effective as of the date hereof. This Agreement may be terminated by either party upon 60 days' written notice to the other party. In addition, this Agreement shall terminate immediately upon termination of the License Agreement. Upon the effectiveness of the termination, the Trust and the Funds shall immediately cease to use the Indexes and the Index Trademarks.
9. Confidentiality. The Trust shall keep confidential any confidential information with respect to the License Agreement, the Indexes and the Index Trademarks, disclosed to it by O'Shares and marked as being confidential. The Trust shall not disclose any such information, unless written consent is obtained from O'Shares. The contents of the License Agreement but not its existence shall be treated as confidential. The obligations of confidentiality in this Agreement do not apply to any information: (a) that is generally available to the public, unless this availability results from a breach of this Agreement; (b) that the Trust already possesses or which it obtains or originates independently in circumstances in which the Trust is free to disclose it to others; (c) that is trivial or obvious; or (d) that is required to be disclosed by any court, regulatory or governmental body or tribunal that is authorized to order its disclosure.
10. Amendments. This Agreement may be amended by a writing signed by both parties.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed in duplicate originals by their officers thereunto duly authorized as of the day and year first written above.
| O’SHARES INVESTMENTS INC. | |
| /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: CFO | |
| OSI ETF Trust, on behalf of the Funds | |
| Listed on Exhibit A | |
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: President |
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EXHIBIT A
Series of the Trust
O'Shares FTSE Asia Pacific Quality Dividend ETF
O'Shares FTSE Europe Quality Dividend ETF
O'Shares FTSE U.S. Quality Dividend ETF
O'Shares FTSE ▇▇▇▇▇▇▇ Emerging Markets Quality Dividend ETF
O'Shares FTSE ▇▇▇▇▇▇▇ Emerging Markets Quality Dividend ETF (Currency Hedged)
O'Shares FTSE ▇▇▇▇▇▇▇ International Quality Dividend ETF
O'Shares FTSE ▇▇▇▇▇▇▇ International Quality Dividend ETF (Currency Hedged)
O'Shares FTSE ▇▇▇▇▇▇▇ ▇▇▇▇▇ Cap Quality Dividend ETF