UPSIDE TO CAP / BUFFERED DOWNSIDE INVESTMENT ADVISORY AND ADMINISTRATIVE AGREEMENT

eUnits^TM 2 YEAR U.S. MARKET PARTICIPATION TRUST II:

UPSIDE TO CAP / BUFFERED DOWNSIDE

INVESTMENT ADVISORY AND ADMINISTRATIVE AGREEMENT

AGREEMENT effective as of the 29^th day of May, 2012, between eUnits^TM 2 Year U.S. Market Participation Trust II: Upside to Cap / Buffered Downside, a Massachusetts business trust (the “Trust”), and ▇▇▇▇▇ ▇▇▇▇▇ Management, a Massachusetts business trust (“▇▇▇▇▇ ▇▇▇▇▇”).

1. Duties of ▇▇▇▇▇ ▇▇▇▇▇. The Trust hereby employs ▇▇▇▇▇ ▇▇▇▇▇ to act as investment adviser for and to manage the investment and reinvestment of the assets of the Trust and to administer its affairs, subject to the supervision of the Trustees of the Trust, for the period and on the terms set forth in this Agreement.

▇▇▇▇▇ ▇▇▇▇▇ hereby accepts such employment, and undertakes to afford to the Trust the advice and assistance of ▇▇▇▇▇ ▇▇▇▇▇’▇ organization in the choice of investments, in the purchase and sale of securities and in the administration of the Trust and to furnish for the use of the Trust office space and all necessary office facilities, equipment and personnel for servicing the investments of the Trust and for administering its affairs and to pay the salaries and fees of all officers and Trustees of the Trust who are members of ▇▇▇▇▇ ▇▇▇▇▇’▇ organization and all personnel of ▇▇▇▇▇ ▇▇▇▇▇ performing services relating to research and investment and administrative activities. ▇▇▇▇▇ ▇▇▇▇▇ shall for all purposes herein be deemed to be an independent contractor and shall, except as otherwise expressly provided or authorized, have no authority to act for or represent the Trust in any way or otherwise be deemed an agent of the Trust.

▇▇▇▇▇ ▇▇▇▇▇ shall provide the Trust with such investment management and supervision as the Trust may from time to time consider necessary for the proper supervision of the Trust. As investment adviser to the Trust, ▇▇▇▇▇ ▇▇▇▇▇ shall furnish continuously an investment program and shall determine from time to time what securities and other investments shall be acquired, disposed of or exchanged and what portion of the Trust’s assets shall be held uninvested, subject always to the applicable restrictions of the Declaration of Trust (“Declaration of Trust”), By-Laws and registration statement of the Trust under the Investment Company Act of 1940, all as from time to time amended. ▇▇▇▇▇ ▇▇▇▇▇ is authorized, in its discretion and without prior consultation with the Trust, to buy, sell, and otherwise trade in any and all types of securities, commodities and investment instruments on behalf of the Trust. Should the Trustees of the Trust at any time, however, make any specific determination as to investment policy for the Trust and notify ▇▇▇▇▇ ▇▇▇▇▇ thereof in writing, ▇▇▇▇▇ ▇▇▇▇▇ shall be bound by such determination for the period, if any, specified in such notice or until similarly notified that such determination has been revoked. ▇▇▇▇▇ ▇▇▇▇▇ shall take, on behalf of the Trust, all actions which it deems necessary or desirable to implement the investment policies of the Trust.

▇▇▇▇▇ ▇▇▇▇▇ shall place all orders for the purchase or sale of portfolio securities for the account of the Trust either directly with the issuer or with brokers or dealers selected by ▇▇▇▇▇ ▇▇▇▇▇, and to that end ▇▇▇▇▇ ▇▇▇▇▇ is authorized as the agent of the Trust to give instructions to the custodian of the Trust as to deliveries of securities and payments of cash for the account of the Trust. In connection with the selection of such brokers or dealers and the placing of such orders, ▇▇▇▇▇ ▇▇▇▇▇ shall adhere to procedures adopted by the Board of trustees of the Trust.

In connection with its administrative responsibilities, ▇▇▇▇▇ ▇▇▇▇▇ (i) will assist in preparing all annual, semi-annual and other reports required to be sent to Trust shareholders, and arrange for the

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printing and dissemination of such reports to shareholders; (ii) will prepare and assemble all reports required to be filed by the Trust with the Securities and Exchange Commission (“SEC”) on Forms N-SAR and N-CSR, or on such other form as the SEC may substitute for Form N-SAR or N-CSR, and file such reports with the SEC; (iii) will review the provision of services by the Trust’s independent accountants, including, but not limited to, the preparation by such accountants of audited financial statements of the Trust and the Trust’s federal, state and local tax returns; and make such reports and recommendations to the Trustees of the Trust concerning the performance of the independent accountants as the Trustees deem appropriate; (iv) will arrange for the filing with the appropriate authorities all required federal, state and local tax returns; (v) will arrange for the dissemination to shareholders of the Trust’s proxy materials, and will oversee the tabulation of proxies by the Trust’s transfer agent or other duly authorized proxy tabulator; (vi) will review and supervise the provision of custodian services to the Trust; and make such reports and recommendations to the Trustees concerning the provision of such services as the Trustees deem appropriate; (vii) will value all such portfolio investments and other assets of the Trust as may be designated by the Trustees (subject to any guidelines, directions and instructions of the Trustees), and review and supervise the calculation of the net asset value of the Trust’s shares by the custodian; (viii) will negotiate the terms and conditions under which transfer agency and dividend disbursing services will be provided to the Trust, and the fees to be paid by the Trust in connection therewith; review and supervise the provision of transfer agency and dividend disbursing services to the Trust; and make such reports and recommendations to the Trustees concerning the performance of the Trust’s transfer and dividend disbursing agent as the Trustees deem appropriate; (ix) will establish the accounting policies of the Trust; reconcile accounting issues which may arise with respect to the Trust’s operations; and consult with the Trust’s independent accountants, legal counsel, custodian, accounting and bookkeeping agents and transfer and dividend disbursing agent as necessary in connection therewith; (x) will determine the amount of all distributions to be paid by the Trust to its shareholders; prepare and arrange for the printing of notices to shareholders regarding such distributions and provide the Trust’s transfer and dividend disbursing agent and custodian with such information as is required for such parties to effect the payment of distributions and to implement the Trust’s dividend reinvestment plan; (xi) will review the Trust’s bills and authorize payments of such bills by the Trust’s custodian; (xii) will make recommendations to the Trustees as to whether the Trust should make repurchase or tender offers for its own shares; arrange for the preparation and filing of all documents required to be filed by the Trust with the SEC; arrange for the preparation and dissemination of all appropriate repurchase or tender offer documents and papers on behalf of the Trust; and supervise and conduct the Trust’s periodic repurchase or tender offers for its own shares; (xiii) monitor any variance between the market value and net asset value per share, and periodically report to the Trustees available actions that may conform such values; (xiv) monitor the activities of any shareholder servicing agent retained by ▇▇▇▇▇ ▇▇▇▇▇ and periodically report to the Trustees about such activities; (xv) will arrange for the preparation and filing of all other reports, forms, registration statements and documents required to be filed by the Trust with the SEC, the Financial Industry Regulatory Authority and any securities exchange where Trust shares are listed; and (xvi) will provide to the Trust such other internal legal, auditing and accounting services and internal executive management and administrative services as the Trustees deem appropriate to conduct the Trust’s business affairs.

2. Compensation of ▇▇▇▇▇ ▇▇▇▇▇. For the investment advisory services, payments and facilities to be furnished hereunder by ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ shall be entitled to receive from the Trust compensation in an amount equal to an annual rate of 0.75% of the initial net assets of the Trust.

Such compensation shall be paid monthly in arrears. ▇▇▇▇▇ ▇▇▇▇▇ may, from time to time, decide to delay payment of its compensation. The Trust’s net assets shall be computed in accordance with the Declaration of Trust and any applicable votes and determinations of the Trustees of the Trust.

 

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In case of initiation or termination of the Agreement (1) during any month, the fee for that month shall be reduced proportionately on the basis of the number of calendar days during which the Agreement is in effect; and (2) should the termination be as a result of ▇▇▇▇▇ ▇▇▇▇▇ being replaced by another investment manager, any fees accumulated, but unpaid to ▇▇▇▇▇ ▇▇▇▇▇, shall be waived.

▇▇▇▇▇ ▇▇▇▇▇ may, from time to time, waive all or a part of the above compensation.

The Board of Trustees of the Trust has currently determined that, based on the current level of compensation payable to ▇▇▇▇▇ ▇▇▇▇▇ by the Trust for its investment advisory services under this Agreement, ▇▇▇▇▇ ▇▇▇▇▇ shall receive no compensation from the Trust in respect of the administrative services to be rendered and the facilities to be provided by ▇▇▇▇▇ ▇▇▇▇▇ in connection with its administrative responsibilities under this Agreement. If the Trustees subsequently determine that the Fund should compensate ▇▇▇▇▇ ▇▇▇▇▇ for such administrative services and facilities, such compensation shall be set forth in an amendment to this Agreement to be entered into by the parties hereto.

3. Allocation of Charges and Expenses. ▇▇▇▇▇ ▇▇▇▇▇ shall pay directly all ordinary operating expenses incurred by the Trust, including but not limited to custody, transfer agent, audit, and printing and postage expenses. The Trust shall be responsible for and will pay all extraordinary expenses incurred by the Trust, including, but not limited to attorneys’ fees and other costs in connection with any litigation or regulatory action.

4. Other Interests. It is understood that Trustees and officers of the Trust and shareholders of the Trust are or may be or become interested in ▇▇▇▇▇ ▇▇▇▇▇ as trustees, officers, employees, shareholders or otherwise and that trustees, officers, employees and shareholders of ▇▇▇▇▇ ▇▇▇▇▇ are or may be or become similarly interested in the Trust, and that ▇▇▇▇▇ ▇▇▇▇▇ may be or become interested in the Trust as a shareholder or otherwise. It is also understood that trustees, officers, employees and shareholders of ▇▇▇▇▇ ▇▇▇▇▇ may be or become interested (as directors, trustees, officers, employees, shareholders or otherwise) in other companies or entities (including, without limitation, other investment companies) which ▇▇▇▇▇ ▇▇▇▇▇ may organize, sponsor or acquire, or with which it may merge or consolidate, and which may include the words “▇▇▇▇▇ ▇▇▇▇▇” or “Boston Management and Research” or any combination thereof as part of their name, and that ▇▇▇▇▇ ▇▇▇▇▇ or its subsidiaries or affiliates may enter into advisory or management agreements or other contracts or relationships with such other companies or entities.

5. Limitation of Liability of ▇▇▇▇▇ ▇▇▇▇▇. The services of ▇▇▇▇▇ ▇▇▇▇▇ to the Trust are not to be deemed to be exclusive, ▇▇▇▇▇ ▇▇▇▇▇ being free to render services to others and engage in other business activities. In the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of obligations or duties hereunder on the part of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ shall not be subject to liability to the Trust or to any shareholder of the Trust for any act or omission in the course of, or connected with, rendering services hereunder or for any losses which may be sustained in the acquisition, holding or disposition of any security or other investment.

6. Sub-Advisers and Sub-Administrators. ▇▇▇▇▇ ▇▇▇▇▇ may employ one or more sub-advisers or sub-administrators from time to time to perform such of the acts and services of ▇▇▇▇▇ ▇▇▇▇▇ including the selection of brokers or dealers or other persons to execute the Trust’s portfolio security transactions, and upon such terms and conditions as may be agreed upon between ▇▇▇▇▇ ▇▇▇▇▇ and such sub-adviser or sub-administrator and approved by the Trustees of the Trust, all as permitted by the Investment Company Act of 1940. This provision does not limit ▇▇▇▇▇ ▇▇▇▇▇’▇ ability, pursuant to this Agreement, to provide the services contemplated without the assistance of a sub-adviser. Moreover, subject to approval of the Trust’s Board of Trustees, ▇▇▇▇▇ ▇▇▇▇▇ retains complete authority at any time immediately to assume direct responsibility for any function delegated to a sub-adviser pursuant to this Section 6 without the need for any approval by the holders of the voting securities of the Trust.

 

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7. Duration and Termination of this Agreement. This Agreement shall become effective upon the date of its execution, and, unless terminated as herein provided, shall remain in full force and effect through and including the second anniversary of the execution of this Agreement and shall continue in full force and effect indefinitely thereafter, but only so long as such continuance after such date is specifically approved at least annually (i) by the Board of Trustees of the Trust or by vote of a majority of the outstanding voting securities of the Trust and (ii) by the vote of a majority of those Trustees of the Trust who are not interested persons of ▇▇▇▇▇ ▇▇▇▇▇ or the Trust cast in person at a meeting called for the purpose of voting on such approval.

Either party hereto may, at any time on sixty (60) days’ prior written notice to the other, terminate this Agreement without the payment of any penalty, by action of Trustees of the Trust or the trustees of ▇▇▇▇▇ ▇▇▇▇▇, as the case may be, and the Trust may, at any time upon such written notice to ▇▇▇▇▇ ▇▇▇▇▇, terminate this Agreement by vote of a majority of the outstanding voting securities of the Trust. This Agreement shall terminate automatically in the event of its assignment.

8. Amendments of the Agreement. This Agreement may be amended by a writing signed by both parties hereto, provided that no amendment to this Agreement shall be effective until approved (i) by the vote of a majority of those Trustees of the Trust who are not interested persons of ▇▇▇▇▇ ▇▇▇▇▇ or the Trust cast in person at a meeting called for the purpose of voting on such approval, and (ii) if required by the Investment Company Act of 1940, by vote of a majority of the outstanding voting securities of the Trust.

9. Limitation of Liability. The Adviser expressly acknowledges the provision in the Declaration of Trust of the Trust limiting the personal liability of the Trustees of the Trust and the shareholders of the Fund, and the Adviser hereby agrees that it shall have recourse to the Trust or the Fund for payment of claims or obligations as between the Trust or the Fund and the Adviser arising out of this Agreement and shall not seek satisfaction from the Trustees or shareholders or any Trustee of the Trust or shareholder of the Fund.

10. Use of the Name “▇▇▇▇▇ ▇▇▇▇▇”. ▇▇▇▇▇ ▇▇▇▇▇ hereby consents to the use by the Trust of the name “▇▇▇▇▇ ▇▇▇▇▇” as part of the Trust’s name; provided, however, that such consent shall be conditioned upon the employment of ▇▇▇▇▇ ▇▇▇▇▇ or one of its affiliates as the investment adviser or administrator of the Trust. The name “▇▇▇▇▇ ▇▇▇▇▇” or any variation thereof may be used from time to time in other connections and for other purposes by ▇▇▇▇▇ ▇▇▇▇▇ and its affiliates and other investment companies that have obtained consent to the use of the name “▇▇▇▇▇ ▇▇▇▇▇”. ▇▇▇▇▇ ▇▇▇▇▇ shall have the right to require the Trust to cease using the name “▇▇▇▇▇ ▇▇▇▇▇” as part of the Trust’s name if the Trust ceases, for any reason, to employ ▇▇▇▇▇ ▇▇▇▇▇ or one of its affiliates as the Trust’s investment adviser or administrator. Future names adopted by the Trust for itself, insofar as such names include identifying words requiring the consent of ▇▇▇▇▇ ▇▇▇▇▇, shall be the property of ▇▇▇▇▇ ▇▇▇▇▇ and shall be subject to the same terms and conditions.

11. Certain Definitions. The terms “assignment” and “interested persons” when used herein shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended subject, however, to such exemptions as may be granted by the SEC by any rule, regulation or order. The term “vote of a majority of the outstanding voting securities” shall mean the vote, at a meeting of shareholders, of the lesser of (a) 67 per centum or more of the shares of the Trust present or represented by proxy at the meeting if the holders of more than 50 per centum of the shares of the Trust are present or represented by proxy at the meeting, or (b) more than 50 per centum of the shares of the Trust.

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.

 

 

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