TEUCRIUMCOMMODITY TRUST MARKETINGAGENT AGREEMENT

 

(a)

At the time of purchase of a Creation Basket by an Authorized Purchaser under the Authorized Purchaser Agreement, the Registration Statement shall have become effective and no stop order of the SEC with respect thereto has been issued and no proceedings for such purpose have been instituted or, to the Sponsor’s knowledge, is contemplated by the SEC; any Preliminary Prospectus provided to prospective investors, at the time of filing thereof, complied in all material respects with the requirements of the 1933 Act; the Registration Statement will comply when it becomes effective and at the time of purchase of a Creation Basket by an Authorized Purchaser in all material respects with the requirements of the 1933 Act and the Prospectus will comply, as of its date and at the time of purchase of a Creation Basket by an Authorized Purchaser, in all material respects with the requirements of the 1933 Act and any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been and will be so described or filed; the conditions to the use of Form S-1 have been satisfied; the Registration Statement will not when it becomes effective and at the time of purchase of a Creation Basket by an Authorized Purchaser contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus will not, as of its date and at the time of purchase of the Creation Baskets by the Authorized Purchaser, contain an untrue statement of a material fact or omit to state 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; provided, however, that the Sponsor makes no warranty or representation with respect to any statement contained in any Preliminary Prospectus, the Registration Statement or any Prospectus in reliance upon and in conformity with information concerning the Marketing Agent and furnished in writing by or on behalf of the Marketing Agent to the Sponsor expressly for use in the Registration Statement or such Prospectus; and the Sponsor has not distributed nor will distribute, prior to the effective date of the Registration Statement or any subsequent registration statement for the registration of additional Units, any offering material in connection with the offering or creation of the Baskets by the Authorized Purchaser other than any Preliminary Prospectus unless such offering material and its distribution complies with Rule 433 under the 1933 Act or any other applicable SEC rule.

 

(b)

the statement of financial position as set forth in the section of the Registration Statement and the Prospectus entitled “Statement of Financial Condition of the Fund” accurately reflects the financial condition of the Fund as of the date specified in such statement of financial position;

 

(c)

the Trust has been duly formed and is validly existing as a statutory trust under the laws of the State of Delaware and the Fund has been duly established as a series of the Trust, as described in the Registration Statement and the Prospectus;

 

(d)

the Sponsor has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full power and authority to conduct its business as described in the Registration Statement and the Prospectus, and has all requisite power and authority to execute and deliver this Agreement;

 

(e)

each of the Trust and the Sponsor is duly qualified and is in good standing in each jurisdiction where the conduct of its business requires such qualification;

 

(f)

at the time of purchase of a Creation Basket by an Authorized Purchaser, the Units in a Creation Basket will have been duly and validly authorized and, when issued and delivered against payment therefor, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, rights of first refusal and similar rights;

 

(g)

at the time of purchase of a Creation Basket by an Authorized Purchaser, the Units will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus and the holders of the Units will not be subject to personal liability by reason of being such holders, except as set forth in the Trust Agreement as in effect at that time;

 

(h)

this Agreement has been duly authorized, executed and delivered by the Sponsor and constitutes the valid and binding obligations of the Sponsor, enforceable against the Sponsor in accordance with its terms;

 

(i)

the Sponsor is not in breach or violation of or in default under (nor has any event occurred which with notice, lapse of time or both would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a Person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness) its respective constitutive documents, or any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness by which the Sponsor or any of its properties may be bound or affected, and the execution, delivery and performance of this Agreement, the issuance and sale of Units in Creation Baskets to the Authorized Purchaser and the consummation of the transactions contemplated hereby will not conflict with, result in any breach or violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under), respectively, the amended and restated limited liability company agreement of the Sponsor, or any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Sponsor is a party or by which, respectively, the Sponsor or any of its properties may be bound or affected, or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Sponsor;

 

(j)

no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required to be obtained by the Sponsor, the Trust or the Fund in connection with the issuance and sale of the Units other than registration of the Units under the 1933 Act, the registration of the Sponsor as a Commodity Pool Operator with the National Futures Association (the “NFA”) under the Commodities Exchange Act (the “CEA”), the filing of the Prospectus with the NFA and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Units are being offered or any requirements for listing under the rules and regulations of the NYSE Arca, Inc. (“NYSE Arca”);

 

(k)

except as set forth in the Registration Statement and the Prospectus (i) no Person has the right, contractual or otherwise, to cause the Trust to issue or sell to it any Units or other equity interests of the Fund, and (ii) no Person has the right to act as an underwriter to the Trust in connection with the offer and sale of the Units, in the case of each of the foregoing clauses (i) and (ii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Units as contemplated thereby or otherwise; no Person has the right, contractual or otherwise, to cause the Trust to register under the 1933 Act any other equity interests of the Fund, or to include any such units or interests in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Units as contemplated thereby or otherwise;

 

(l)

at the time of purchase of a Creation Basket by an Authorized Purchaser under an Authorized Purchaser Agreement, the Sponsor will have all necessary licenses, authorizations, consents and approvals and will have made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will have obtained all necessary authorizations, consents and approvals from other Persons, in order to conduct its respective business; the Sponsor will not be in violation of, or in default under, or have received notice of any proceedings relating to revocation or modification of, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Sponsor;

(m)

at the time of purchase of a Creation Basket by an Authorized Purchaser under an Authorized Purchaser Agreement, all legal or governmental proceedings, affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement will have been so described or filed as required;

 

(n)

except as set forth in the Registration Statement and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened or, to the Sponsor’s knowledge after due inquiry, contemplated to which the Sponsor, or (to the extent that is or could be material in the context of the offering and sale of the Baskets to the Authorized Purchaser) any of the Sponsor’s directors or officers, is or would be a party or of which any of their respective properties are or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency;

 

(o)

Rothstein Kass, whose report on the audited financial statements of the Fund is filed with the Commission as part of the Registration Statement and the Prospectus, are independent public accountants as required by the 1933 Act;

 

(p)

the audited financial statements of the Fund included in the Prospectus, together with the related notes and schedules, present fairly the financial position of the Fund as of the date indicated and have been prepared in compliance with the requirements of the 1933 Act and in conformity with generally accepted accounting principles; there are no financial statements (historical or pro forma) that are required to be included in the Registration Statement and the Prospectus that are not included as required; and the Fund does not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not disclosed in the Registration Statement and the Prospectus;

 

(q)

to the reasonable belief of the Sponsor, the Fund is not and, after giving effect to the offering and sale of the Baskets, will not be an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);

 

(r)

(i) except as set forth in the Registration Statement and the Prospectus, the Sponsor and the Fund own, or have obtained valid and enforceable licenses for, or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights, trade secrets and other proprietary information described in the Registration Statement and the Prospectus as being owned or licensed by them or which are necessary for the conduct of their respective businesses (collectively, “Intellectual Property”); (ii) except as set forth in the Registration Statement and the Prospectus, to the knowledge of the Sponsor or the Trust, there are no third parties who have or will be able to establish rights to any Intellectual Property, except for the ownership rights of the owners of the Intellectual Property which is licensed to the Sponsor or the Fund; (iii) to the knowledge of the Sponsor or the Trust, there is no infringement by third parties of any Intellectual Property owned by or licensed to the Sponsor or the Fund; (iv) to the knowledge of the Sponsor or the Trust, there is no pending or threatened action, suit, proceeding or claim by others challenging the Sponsor’s or the Fund’s rights in or to any Intellectual Property, and the Sponsor and the Trust are unaware of any facts which could form a reasonable basis for any such claim; (v) to the knowledge of the Sponsor or the Trust, there is no pending or threatened action, suit, proceeding or claim by others challenging the validity or scope of any Intellectual Property; (vi) to the knowledge of the Sponsor or the Trust, there is no pending or threatened action, suit, proceeding or claim by others that the Sponsor or the Fund infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Sponsor and the Trust are unaware of any facts which could form a reasonable basis for any such claim; (vii) to the knowledge of the Sponsor or the Trust, there is no patent or patent application that contains claims that interfere with any issued or pending claims of any of the Intellectual Property owned or licensed to the Sponsor or the Fund; and (viii) to the knowledge of the Sponsor or the Fund, there is no prior art that may render any patent or patent application owned by or licensed to the Sponsor unpatentable, invalid or unenforceable;

 

(s)

all tax returns required to be filed by the Sponsor have been filed, and all taxes and other assessments of a similar nature (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from such entities have been paid; and no tax returns or tax payments are due with respect to the Fund as of the date of this Agreement;

 

(t)

the Sponsor has not sent or received any communication regarding termination of, or intent not to renew, any of the contracts or agreements referred to or described in, or filed as an exhibit to, the Registration Statement, and no such termination or non-renewal has been threatened by the Sponsor or any other party to any such contract or agreement;

 

(u)

at the time of purchase of a Creation Basket by an Authorized Purchaser under an Authorized Purchaser Agreement, the Sponsor, on behalf of the Fund, will have established and will maintain disclosure controls and procedures (as such term is defined in Rule 13a-14 and 15d-14 under the Exchange Act of 1934, as amended (the “Exchange Act”), giving effect to the rules and regulations, and SEC staff interpretations thereunder); such disclosure controls and procedures will be designed to ensure that material information relating to the Fund, is made known to the Sponsor, and such disclosure controls and procedures will be effective to perform the functions for which they were established; on behalf of the Fund, the Sponsor will have disclosed to the Fund’s auditors when and to the extent required: (i) any significant deficiencies in the design or operation of internal controls which could adversely affect the Fund’s ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees who have a role in the Fund’s internal controls;

 

(v)

any statistical and market-related data included in the Registration Statement and the Prospectus will be based on or derived from sources that the Sponsor believes to be reliable and accurate, and the Sponsor will have obtained the written consent to the use of such data from such sources to the extent required; and

(w)

neither the Sponsor, nor any of the Sponsor’s directors, members, officers, affiliates or controlling Persons has taken, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security or asset of the Fund to facilitate the sale or resale of the Units; and to the Sponsor’s knowledge after due inquiry, there are no affiliations or associations between any member of the NYSE Arca and any of the Sponsor’s officers, directors or 5% or greater securityholders, except as may be set forth in the Registration Statement and the Prospectus.

 

to furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale under any applicable securities or blue sky laws of such states and foreign jurisdictions as the Marketing Agent may reasonably designate and to maintain such qualifications in effect so long as the Marketing Agent may request during the term of this Agreement; provided that the Fund shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Units); and to promptly advise the Marketing Agent of the receipt by the Sponsor or the Fund of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

 

to take all necessary action to register the Units under the 1933 Act in order to sell the initial Creation Basket and take, from time to time, such steps, including payment of the related filing fees, as may be necessary to register additional Units under the 1933 Act to the end that all Units sold in additional Creation Baskets will be properly registered under the 1933 Act and to keep the Registration Statement effective and current during the term of this Agreement;

 

to make available to the Marketing Agent, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time, furnish to the Marketing Agent, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if any amendments or supplements have been made thereto after the effective date of the Registration Statement) as the Marketing Agent may request for the purposes contemplated by the 1933 Act;

 

to advise the Marketing Agent promptly and, if requested by the Marketing Agent, to  confirm such advice in writing when the Registration Statement and any post-effective amendment thereto has become effective, and upon receipt of request from the Marketing Agent therefore and to the extent legally permissible, to file a post-effective amendment removing any reference to the Marketing Agent thereunder;

 

to prepare, at the expense of the Fund, such amendments or supplements to the Registration Statement or the Prospectus and to file such amendments or supplements with the Commission, when and as required, by the 1933 Act, the Exchange Act, and the rules and regulations of the Commission thereunder, including if requested by the Marketing Agent; to advise the Marketing Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and to provide the Marketing Agent and the Marketing Agent’s counsel with copies of any such documents for review and comment within a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Marketing Agent or its counsel shall reasonably object in writing; and to advise the Marketing Agent promptly, confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible;

 

to file promptly all reports and any information statement required to be filed by the Fund with the Commission in order to comply with the Exchange Act and the CEA subsequent to the date of the Prospectus and for so long as the term of this Agreement;

 

if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the 1933 Act;

 

to advise the Marketing Agent promptly of the happening of any event during the term of this Agreement which could require the making of any change in the Prospectus then being used so that such Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, to prepare and furnish, at the expense of the Fund, to the Marketing Agent promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;

 

to furnish to the holders of the Fund’s Units as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income and cash flow of the Fund for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);

 

to furnish to the Marketing Agent a copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto);

 

to (1) furnish to the Marketing Agent promptly during the term of this Agreement (i) copies of any reports, proxy statements, or other communications which are sent to the holders of the Fund’s Units or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (iii) copies of documents or reports filed with the NYSE Arca, (iv) copies of documents or reports filed with the NFA and with the Commodity Futures Trading Commission, and (v) such other information as the Marketing Agent may reasonably request regarding the Fund; and (2) make available for inspection by the Marketing Agent, its attorneys, accountants and other advisors or agents, all financial and other records, pertinent corporate documents and properties, and cause the officers, directors and employees of the Sponsor and independent accountants to supply all information reasonably requested by the Marketing Agent, its attorneys, accountants and other advisors and agents;

 

to use its best efforts to cause the Units to be listed on the NYSE Arca;

to furnish to the Marketing Agent (i) at the time of the purchase of the initial Creation Basket by the Initial Authorized Purchaser and (ii) if requested by the Marketing Agent, at the time of the purchase of the first Creation Basket subsequent to the registration of additional Units, an opinion of Sutherland Asbill & Brennan LLP, counsel for the Sponsor, addressed to the Marketing Agent and substantially in the form attached hereto as Exhibit B;

 

to cause Rothstein Kass to deliver to the Marketing Agent upon the request of the Marketing Agent (i) at the time of filing of any pre-effective or post-effective amendment to the Registration Statement or a new Registration Statement filed to register additional Units in reliance on Rule 429 or any amendment thereto, if in any such case the Registration Statement or amendment includes or incorporates by reference financial information not previously included or incorporated by reference in a Registration Statement or amendment, and (ii) at the time of effectiveness of any such Registration Statement or amendment, letters dated such dates and addressed to the Marketing Agent, containing statements and information of the type ordinarily included in accountants’ letters to underwriters with respect to the financial statements and other financial information contained in or incorporated by reference into the Registration Statement and the Prospectus;

 

to deliver to the Marketing Agent (i) at the time of purchase of the initial Creation Basket by the Initial Authorized Purchaser, and (ii) if requested by the Marketing Agent, at the time of the purchase of the first Creation Basket subsequent to the registration of additional Units, an officer’s certificate substantially in the form attached as Exhibit D hereto;

 

to furnish to the Marketing Agent (i) at the time of purchase of the initial Creation Basket by the Initial Authorized Purchaser, (ii) if requested by the Marketing Agent, at the time of the purchase of the first Creation Basket subsequent to the registration of additional Units, and (iii) at such other times as the Marketing Agent reasonably requests, such other documents and certificates as of such dates as the Marketing Agent may reasonably request; and

 

to cause the Trust to file a supplement to the Registration Statement on or about the same time that the Trust files a quarterly or annual report pursuant to Section 13 or 15(d) of the Exchange Act (including the information contained in such report), until such time as the Trust’s reports filed pursuant to Section 13 or 15(d) of the Exchange Act are incorporated by reference in the Registration Statement.

 

The Sponsor and the Marketing Agent will develop the Fund’s marketing plan prior to the effective date of the Registration Statement in accordance with the provisions of this Section 6.1 and the marketing strategy as described in Exhibit C.

 

The Sponsor and the Marketing Agent will use commercially reasonable efforts and commit sufficient resources to finalize the Registration Statement, the governing documents of the Trust and the Fund, and agreements with the Fund’s service providers, communicate with the Commission to obtain approval of the Registration Statement and communicate with the NYSE Arca to obtain approval of the listing of the Units on the NYSE Arca.

 

The Sponsor and the Marketing Agent will market the Fund and the Units on an ongoing basis after the Registration Statement is declared effective and the Units have been listed on the NYSE Arca in accordance with the provisions of this Section 6.2.

 

Subject to necessary regulatory approvals and compliance with all applicable legal and regulatory requirements, the Marketing Agent shall, in good faith and subject to existing market conditions, use its best efforts to market the Fund; and

 

The Marketing Agent shall provide the Sponsor with copies of all written marketing materials distributed by it connected with the Fund.

 

The Marketing Agent shall process orders for Baskets as set forth in the Authorized Purchaser Agreement.

 

In order to oversee the pre-launch development and post-launch performance of the Fund on a regular basis, the parties shall:

 

(i)

conduct at least once each calendar quarter in which the annual review described in clause (ii) below is not conducted, a review of the performance of the Fund, with such review to include the senior management of the Sponsor and the senior management of the Marketing Agent and to cover such topics as asset growth/decline, sales strategy, new business efforts, new product initiatives and stock exchange trading activity; and

 

(ii)

conduct at least once each calendar year, a review of the overall performance of the Fund, which will include a review of the most recent quarterly period, with such review to include the chief executive officer of the Sponsor and senior management of the Marketing Agent and to cover such topics as strategic direction and new business initiatives.

 

Prior to each of the quarterly and annual reviews which will take place pursuant to this Section 6.3, the Sponsor and the Marketing Agent will jointly prepare and circulate among the parties, a report covering the quarterly or annual period which is the subject of each review, with such report to cover such topics described above.

 

any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or in the Registration Statement as amended or supplement) or in a Prospectus (the term Prospectus for the purpose of this Section 7 being deemed to include the Prospectus and the Prospectus as amended or supplemented), or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in either such Registration Statement or such Prospectus or necessary to make the statements made therein not misleading, except insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information concerning the Marketing Agent furnished in writing by or on behalf of the Marketing Agent to the Sponsor expressly for use in such Registration Statement or such Prospectus;

 

any untrue statement or alleged untrue statement of a material fact or breach by the Sponsor of any representation or warranty contained in Section 2 hereof or in any certificate delivered by the Sponsor pursuant to paragraph (o) of Section 5.1 hereof;

 

the failure by the Sponsor to perform when and as required any agreement or covenant contained herein;

 

any untrue statement of any material fact contained in any audio or visual materials provided by the Sponsor or based upon written information furnished by or on behalf of the Sponsor including, without limitation, slides, videos, films or tape recordings used in connection with the marketing of the Units;

 

the Marketing Agent’s performance of its duties under this Agreement except in the case of this clause (e), for any loss, damage, expense, liability or claim resulting from the gross negligence or willful misconduct of the Marketing Agent; provided, however, that the indemnity agreement contained in clause (a) above with respect to any amended Preliminary Prospectus shall not inure to the benefit of the Marketing Agent (or to the benefit of any Person controlling the Marketing Agent) if the Prospectus corrected any such alleged untrue statement or omission in any case where the Marketing Agent was required to send or give a copy of the Prospectus to such Person by the 1933 Act, the Sponsor had notified the Marketing Agent of the amendment or supplement prior to the sending of the written confirmation of sale and the Marketing Agent failed to send or give a copy of the Prospectus to such Person, unless the failure is the result of noncompliance by the Sponsor with paragraph (c) of Section 5.1 hereof.

9.1 

 

“Confidential Information” shall mean all information or data of a party that is disclosed to or received by the other party, whether orally, visually or in writing, in any form, including, without limitation, information or data which relates to such party’s business or operations, research and development, marketing plans or activities, or actual or potential products.

 

(b)

Notwithstanding the provisions of this Agreement to the contrary, a party shall have no liability to the other party for the disclosure or use of any Confidential Information of the other party if the Confidential Information:

 

(i)

is known to such party at the time of disclosure other than as the result of a breach of this Section 9 by such party;

 

(ii)

has been or becomes publicly known, other than as the result of a breach of this Section 9 by such party, or has been or is publicly disclosed by the other party;

 

(iii)

is received by such party after the date of this Agreement from a third party (unless such third party breaches an obligation of confidentiality to the other party); or

 

(iv)

is required to be disclosed by Law or similar compulsion or in connection with any legal proceeding, provided that such party shall promptly inform the other party in writing of such requirement and that such disclosure shall be limited to the extent so required and, except to the extent prohibited by Law, such party shall reasonably cooperate with the other party (at the expense of the other party) in seeking a protective order or other suitable confidentiality protections.

 

(c)

The parties recognize and acknowledge that a breach or threatened breach by a party of the provisions of this Section 9 may cause irreparable and material loss and damage to the other party which cannot be adequately remedied at law and that, accordingly, in addition to, and not in lieu of, any damages or other remedy to which the non-breaching party may be entitled, the issuance of an injunction or other equitable remedy (without the requirement that a bond or other security be posted) is an appropriate remedy for the non-breaching party for any breach or threatened breach of the obligations set forth in this Section 9.

 

(d)

Each party agrees that it will use the same degree of care, but no less than a reasonable degree of care, in safeguarding the Confidential Information of the other party as it uses for its own Confidential Information of a similar nature. Each party shall promptly notify the other party in writing of any misuse, misappropriation or unauthorized disclosure of the Confidential Information of the other party which may come to such party’s attention.

 

(e)

Upon the termination of this Agreement, if requested in writing by a party, the other party shall, at such party’s option, promptly destroy or return to the party all Confidential Information received from the other party, all copies and extracts of such Confidential Information and all documents or other media containing any such Confidential Information.

(a) 

if to Sponsor or the Trust, to:

(b) 

if to the Marketing Agent, to:

 

(a)

All questions concerning the construction, interpretation and validity of this Agreement shall be governed by, and construed and enforced in accordance with, the domestic laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether in the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. In furtherance of the foregoing, the internal law of the State of New York will control the interpretation and construction of this Agreement, even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily or necessarily apply.

 

(b)

Each party irrevocably consents and agrees, for the benefit of the other parties, that any legal action, suit or proceeding against it with respect to its obligations, liabilities or any other matter arising out of or in connection with this Agreement may be brought in the courts of the State of New York and hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself and in respect of its properties, assets and revenues. Each party irrevocably waives any immunity to jurisdiction to which it may otherwise be entitled or become entitled (including sovereign immunity and immunity to pre-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Agreement or the transactions contemplated hereby or thereby which is instituted in any court of the State of New York.

 

(a)

ALPS senior management will:

 

·

Develop an overall strategic sales and marketing plan with the National Accounts Manager of ALPS, the Fund and the specialist firm.

 

·

Supervise sales related activities.

 

·

Participate in field sales activities.

 

(b)

ALPS will provide a shared National Accounts Manager who will:

 

·

Implement a tactical sales strategy.

 

·

Establish home office contacts with targeted broker/dealers.

 

·

Develop product education presentations.

 

·

Conduct product education presentations with fee based financial advisors.

 

·

Attend major fee based advisor conferences.

(c) 

 

·

Assist the National Accounts Manager in implementing the tactical sales strategy.

 

·

Establish regional relationships with wire houses and fee based advisors.

 

·

Deliver product education presentations.

 

·

Conduct product education presentations with wire house brokers and fee based financial advisors.

 

·

Attend major fee based advisor conferences.

(d) 

 

·

Support the National Accounts Manager’s and Wholesaler’s field activities.

 

·

Telemarket to independent financial planners.

 

·

Coordinate conference participation.

 

·

Attend various conferences.

 

·

Place outbound follow-up calls on 100% of phone and internet requests for information.

 

·

Receive creation/redemption calls and communicate with authorized purchasers, advisors and the custodian.

 

·

Transfer “hot” advisor leads to Internal Wholesaler.

 

·

Support a dedicated Fund toll-free line for advisors.

 

(f)

ALPS will provide appropriate staff to:

 

·

Write, design and produce sales and marketing materials.

 

·

Create seminars and product presentations.

 

·

Coordinate advisor specific advertising with the advertising agency.

 

·

Manage marketing budget.

 

·

Create and maintain Sponsor and Fund websites.

 

(p)

(i) except as set forth in the Registration Statement and the Prospectus, the Sponsor and the Fund own, or have obtained valid and enforceable licenses for, or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights, trade secrets and other proprietary information described in the Registration Statement and the Prospectus as being owned or licensed by them or which are necessary for the conduct of their respective businesses (collectively, “Intellectual Property”);