As filed with the Securities and Exchange Commission on December 8, 2014
Registration No. 333-192126
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
POWERSHARES DB G10 CURRENCY HARVEST FUND
(Registrant)
(Exact name of registrant as specified in its charter)
Delaware | 16-6562496 (Registrant) | |
(State of Organization) | (I.R.S. Employer Identification Number) | |
60 Wall Street New York, New York 10005 (212) 250-5883 |
Martin Kremenstein 60 Wall Street New York, New York 10005 (212) 250-8779 | |
(Address, including zip code, and telephone number including area code, of registrants principal executive offices) |
(Name, address, including zip code, and telephone number, including area code, of agent for service) |
Copies to:
Michael J. Schmidtberger, Esq.
James C. Munsell, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Approximate date of commencement of proposed sale to the public: As promptly as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨ | Accelerated filer x | Non-accelerated filer ¨ | Smaller reporting company ¨ | |||
(Do not check if a smaller reporting company) |
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement is being filed in anticipation of a change in control of the registrant, PowerShares DB G10 Currency Harvest Fund, or the Fund. As of the date of this filing, DB Commodity Services LLC, or DBCS, is the managing owner of the Fund. DBCS, DB U.S. Financial Markets Holding Corporation and Invesco PowerShares Capital Management LLC, or Invesco, entered into an Asset Purchase Agreement, or the Agreement dated as of October 24, 2014. Pursuant to the Agreement, DBCS has agreed to transfer and sell to Invesco all of DBCS interest in the Fund, including the sole and exclusive power to direct the business and affairs of the Fund, as well as certain other assets pertaining to the management of the Fund, pursuant to the terms and conditions of the Agreement, or the Transaction. Upon consummation of the Transaction, Invesco will become the managing owner, commodity pool operator and commodity trading advisor of the Fund, in replacement of DBCS.
The registrant expects that it will request the Commission to declare this Registration Statement effective shortly after consummation of the Transaction. Accordingly, the information contained in this Registration Statement (including the Prospectus that forms a part of this Registration Statement) assumes the consummation of the Transaction.
The information in this Prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This Prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated December 8, 2014.
POWERSHARES DB G10 CURRENCY HARVEST FUND
51,800,000 Common Units of Beneficial Interest
INVESTING IN THE SHARES INVOLVES SIGNIFICANT RISKS.
PLEASE REFER TO THE RISKS YOU FACE BEGINNING ON PAGE 19.
Futures trading is volatile and even a small movement in market prices could cause large losses.
The success of the Funds trading program depends upon the skill of the Managing Owner and its trading principals. |
You could lose all or substantially all of your investment.
Investors pay fees in connection with their investment in Shares including asset-based fees of 0.75% per annum. Additional charges include brokerage fees of approximately 0.06% per annum in the aggregate. |
Authorized Participants may offer to the public, from time-to-time, Shares from any Baskets they create. Shares offered to the public by Authorized Participants will be offered at a per-Share offering price that will vary depending on, among other factors, the trading price of the Shares on the NYSE Arca, the net asset value per Share and the supply of and demand for the Shares at the time of the offer. Shares initially comprising the same Basket but offered by Authorized Participants to the public at different times may have different offering prices. Authorized Participants will not receive from the Fund, the Managing Owner or any of their affiliates, any fee or other compensation in connection with their sale of Shares to the public.
An Authorized Participant may receive commissions or fees from investors who purchase Shares through their commission or fee-based brokerage accounts. In addition, the Managing Owner pays a distribution services fee to ALPS Distributors, Inc. and pays a marketing services fee to Deutsche Bank Securities Inc. without reimbursement from the Fund. For more information regarding items of compensation paid to FINRA members, please see the Plan of Distribution section on page 90.
These securities have not been approved or disapproved by the Securities and Exchange Commission or any state securities commission nor has the Securities and Exchange Commission or any state securities commission passed upon the accuracy or adequacy of this Prospectus. Any representation to the contrary is a criminal offense.
The Fund is not a mutual fund or any other type of investment company within the meaning of the Investment Company Act of 1940, as amended, and is not subject to regulation thereunder.
THE COMMODITY FUTURES TRADING COMMISSION HAS NOT PASSED UPON THE MERITS OF PARTICIPATING IN THIS POOL NOR HAS THE COMMISSION PASSED ON THE ADEQUACY OR ACCURACY OF THIS DISCLOSURE DOCUMENT.
The Shares are neither interests in nor obligations of any of the Managing Owner, the Trustee, Deutsche Bank, AG, Deutsche Bank, AG London, Deutsche Bank Securities Inc. or any of their respective affiliates. The Shares are not insured by the Federal Deposit Insurance Corporation or any other governmental agency.
[ ] [__], 2014
COMMODITY FUTURES TRADING COMMISSION RISK DISCLOSURE STATEMENT
YOU SHOULD CAREFULLY CONSIDER WHETHER YOUR FINANCIAL CONDITION PERMITS YOU TO PARTICIPATE IN A COMMODITY POOL. IN SO DOING, YOU SHOULD BE AWARE THAT COMMODITY INTEREST TRADING CAN QUICKLY LEAD TO LARGE LOSSES AS WELL AS GAINS. SUCH TRADING LOSSES CAN SHARPLY REDUCE THE NET ASSET VALUE OF THE POOL AND CONSEQUENTLY THE VALUE OF YOUR INTEREST IN THE POOL. IN ADDITION, RESTRICTIONS ON REDEMPTIONS MAY AFFECT YOUR ABILITY TO WITHDRAW YOUR PARTICIPATION IN THE POOL.
FURTHER, COMMODITY POOLS MAY BE SUBJECT TO SUBSTANTIAL CHARGES FOR MANAGEMENT, AND ADVISORY AND BROKERAGE FEES. IT MAY BE NECESSARY FOR THOSE POOLS THAT ARE SUBJECT TO THESE CHARGES TO MAKE SUBSTANTIAL TRADING PROFITS TO AVOID DEPLETION OR EXHAUSTION OF THEIR ASSETS. THIS DISCLOSURE DOCUMENT CONTAINS A COMPLETE DESCRIPTION OF EACH EXPENSE TO BE CHARGED THIS POOL AT PAGE 50 AND A STATEMENT OF THE PERCENTAGE RETURN NECESSARY TO BREAK EVEN, THAT IS, TO RECOVER THE AMOUNT OF YOUR INITIAL INVESTMENT, AT PAGE 14.
THIS BRIEF STATEMENT CANNOT DISCLOSE ALL THE RISKS AND OTHER FACTORS NECESSARY TO EVALUATE YOUR PARTICIPATION IN THIS COMMODITY POOL. THEREFORE, BEFORE YOU DECIDE TO PARTICIPATE IN THIS COMMODITY POOL, YOU SHOULD CAREFULLY STUDY THIS DISCLOSURE DOCUMENT, INCLUDING A DESCRIPTION OF THE PRINCIPAL RISK FACTORS OF THIS INVESTMENT, AT PAGES 19 THROUGH 30.
THIS PROSPECTUS DOES NOT INCLUDE ALL OF THE INFORMATION OR EXHIBITS IN THE REGISTRATION STATEMENT OF THE FUND. YOU CAN READ AND COPY THE ENTIRE REGISTRATION STATEMENT AT THE PUBLIC REFERENCE FACILITIES MAINTAINED BY THE SEC IN WASHINGTON, D.C.
THE FUND FILES QUARTERLY AND ANNUAL REPORTS WITH THE SEC. YOU CAN READ AND COPY THESE REPORTS AT THE SEC PUBLIC REFERENCE FACILITIES IN WASHINGTON, D.C. PLEASE CALL THE SEC AT 1-800-SEC-0330 FOR FURTHER INFORMATION.
THE FILINGS OF THE FUND ARE POSTED AT THE SEC WEBSITE AT HTTP://WWW.SEC.GOV.
REGULATORY NOTICES
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE FUND, THE MANAGING OWNER, THE AUTHORIZED PARTICIPANTS OR ANY OTHER PERSON.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION TO SELL OR A SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY OFFER, SOLICITATION, OR SALE OF THE SHARES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION, OR SALE IS NOT AUTHORIZED OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE ANY SUCH OFFER, SOLICITATION, OR SALE.
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THE BOOKS AND RECORDS OF THE FUND ARE MAINTAINED AS FOLLOWS: ALL MARKETING MATERIALS ARE MAINTAINED AT THE OFFICES OF ALPS DISTRIBUTORS, INC., 1290 BROADWAY, SUITE 1100, DENVER, COLORADO 80203, TELEPHONE NUMBER (303) 623-2577; BASKET CREATION AND REDEMPTION BOOKS AND RECORDS, ACCOUNTING AND CERTAIN OTHER FINANCIAL BOOKS AND RECORDS (INCLUDING FUND ACCOUNTING RECORDS, LEDGERS WITH RESPECT TO ASSETS, LIABILITIES, CAPITAL, INCOME AND EXPENSES, THE REGISTRAR, TRANSFER JOURNALS AND RELATED DETAILS) AND TRADING AND RELATED DOCUMENTS RECEIVED FROM FUTURES COMMISSION MERCHANTS ARE MAINTAINED BY THE BANK OF NEW YORK MELLON, 2 HANSON PLACE, BROOKLYN, NEW YORK 11217, TELEPHONE NUMBER (718) 315-7500. ALL OTHER BOOKS AND RECORDS OF THE FUND (INCLUDING MINUTE BOOKS AND OTHER GENERAL CORPORATE RECORDS, TRADING RECORDS AND RELATED REPORTS AND OTHER ITEMS RECEIVED FROM THE FUNDS COMMODITY BROKERS) ARE MAINTAINED AT THE FUNDS PRINCIPAL OFFICE, C/O INVESCO POWERSHARES CAPITAL MANAGEMENT LLC, 3500 LACEY ROAD, SUITE 700, DOWNERS GROVE, ILLINOIS 60515; TELEPHONE NUMBER (800) 983-0903. SHAREHOLDERS WILL HAVE THE RIGHT, DURING NORMAL BUSINESS HOURS, TO HAVE ACCESS TO AND COPY (UPON PAYMENT OF REASONABLE REPRODUCTION COSTS) SUCH BOOKS AND RECORDS IN PERSON OR BY THEIR AUTHORIZED ATTORNEY OR AGENT. MONTHLY ACCOUNT STATEMENTS CONFORMING TO COMMODITY FUTURES TRADING COMMISSION (THE CFTC) AND THE NATIONAL FUTURES ASSOCIATION (THE NFA) REQUIREMENTS ARE POSTED ON THE MANAGING OWNERS WEBSITE AT HTTP://WWW.INVESCOPOWERSHARES.COM. ADDITIONAL REPORTS MAY BE POSTED ON THE MANAGING OWNERS WEBSITE IN THE DISCRETION OF THE MANAGING OWNER OR AS REQUIRED BY REGULATORY AUTHORITIES. THERE WILL SIMILARLY BE DISTRIBUTED TO SHAREHOLDERS, NOT MORE THAN 90 DAYS AFTER THE CLOSE OF EACH OF THE FUNDS FISCAL YEARS, CERTIFIED AUDITED FINANCIAL STATEMENTS AND (IN NO EVENT LATER THAN MARCH 15 OF THE IMMEDIATELY FOLLOWING YEAR) THE TAX INFORMATION RELATING TO SHARES OF THE FUND NECESSARY FOR THE PREPARATION OF SHAREHOLDERS ANNUAL FEDERAL INCOME TAX RETURNS.
THE DIVISION OF INVESTMENT MANAGEMENT OF THE SECURITIES AND EXCHANGE COMMISSION REQUIRES THAT THE FOLLOWING STATEMENT BE PROMINENTLY SET FORTH HEREIN: THE FUND IS NOT A MUTUAL FUND OR ANY OTHER TYPE OF INVESTMENT COMPANY WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, AND IS NOT SUBJECT TO REGULATION THEREUNDER.
AUTHORIZED PARTICIPANTS MAY BE REQUIRED TO DELIVER A PROSPECTUS WHEN TRANSACTING IN SHARES. SEE PLAN OF DISTRIBUTION.
Deutsche Bank G10 Currency Future Harvest Index® is a registered trademark of Deutsche Bank AG. All rights reserved.
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POWERSHARES DB G10 CURRENCY HARVEST FUND
Table of Contents
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at the Commodity Broker (or another eligible financial institution, as applicable) in accordance with CFTC investor protection and segregation requirements. The Fund is credited with 100% of the interest earned on its average net assets on deposit with the Commodity Broker or such other financial institution each week. In an attempt to increase interest income earned, the Managing Owner expects to invest non-margin assets in United States government securities (which include any security issued or guaranteed as to principal or interest by the United States), or any certificate of deposit for any of the foregoing, including United States Treasury bonds, United States Treasury bills and issues of agencies of the United States government, and certain cash items such as money market funds, certificates of deposit (under nine months) and time deposits or other instruments permitted by applicable rules and regulations. Currently, the rate of interest expected to be earned is estimated to be 0.02% per annum, based upon the yield on 3-month U.S. Treasury bills as of November 24, 2014. This interest income is used by the Fund to pay its expenses. See Fees and Expenses for more details.
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Management Fee | The Fund pays the Managing Owner a Management Fee, monthly in arrears, in an amount equal to 0.75% per annum of the daily net asset value of the Fund. The Management Fee is paid in consideration of the Managing Owners currency futures trading advisory services. | |
Organization and Offering Expenses | Expenses incurred in connection with organizing the Fund and the initial offering of the Shares were paid by DB Commodity Services LLC, or the Predecessor Managing Owner. Expenses incurred in connection with the continuous offering of Shares of the Fund from commencement of the Funds trading operations up to the date of this Prospectus were also paid by the Predecessor Managing Owner. Expenses incurred in connection with the continuous offering of Shares of the Fund on and after the date of this Prospectus are paid by the Managing Owner. | |
Brokerage Commissions and Fees | The Fund pays to the Commodity Broker all brokerage commissions, including applicable exchange fees, NFA fees, give-up fees, pit brokerage fees and other transaction related fees and expenses charged in connection with its trading activities. On average, total charges paid to the Commodity Broker are expected to be less than USD 10.00 per round-turn trade, although the Commodity Brokers brokerage commissions and trading fees are determined on a contract-by-contract basis. The Managing Owner does not expect brokerage commissions and fees to exceed 0.06% of the net asset value of the Fund in any year, although the actual amount of brokerage commissions and fees in any year or any part of any year may be greater. | |
Routine Operational, Administrative and Other Ordinary Expenses | The Managing Owner pays all of the routine operational, administrative and other ordinary expenses of the Fund, including, but not limited to, computer services, the fees and expenses of the Trustee, license and service fees paid to Deutsche Bank Securities Inc., or DBSI, as Marketing Agent and Index Sponsor, legal and accounting fees and expenses, tax preparation expenses, filing fees, and printing, mailing and duplication costs. | |
Extraordinary Fees and Expenses | The Fund pays all the extraordinary fees and expenses, if any, of the Fund. Extraordinary fees and expenses are fees and expenses which are non-recurring and unusual in nature, such as legal claims and liabilities, litigation costs or indemnification or other unanticipated expenses. Such extraordinary fees and expenses, by their nature, are unpredictable in terms of timing and amount. | |
Management Fee and Expenses to be Paid First out of Interest Income | The Management Fee and the brokerage commissions and fees of the Fund are paid first out of interest income from the Funds holdings of U.S. Treasury bills and other high credit quality short-term fixed income securities on deposit with the Commodity Broker as margin or otherwise. If the interest income is not sufficient to cover the fees and expenses of the Fund during any period, the excess of such fees and expenses over such interest income will be paid out of income from futures trading, if any, or from sales of the Funds fixed income securities. | |
Selling Commission | Retail investors may purchase and sell Shares through traditional brokerage accounts. Investors are expected to be charged a customary commission by their brokers in connection with purchases of Shares that will vary from investor to investor. Investors are encouraged to review the terms of their brokerage accounts for applicable charges. |
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Breakeven Table
Dollar Amount and Percentage of Expenses of the Fund1 |
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Expense | USD | % | ||||
Management Fee2 |
USD 0.19 | 0.75 | % | |||
Organization and Offering Expense Reimbursement3 |
USD 0.00 | 0.00 | % | |||
Brokerage Commissions and Fees4 |
USD 0.02 | 0.06 | % | |||
Routine Operational, Administrative and Other Ordinary Expenses5,6 |
USD 0.00 | 0.00 | % | |||
Interest Income7 |
USD(0.01) | (0.02 | )% | |||
12-Month Breakeven8,9 |
USD 0.20 | 0.79 | % |
1. | The breakeven analysis set forth in this column assumes that the Shares have a constant month-end net asset value and is based on USD 25.00 as the net asset value per Share. See Charges on page 50 for an explanation of the expenses included in the Breakeven Table. The Managing Owner will pay a marketing services fee to the Marketing Agent and an index services fee to the Index Sponsor. Because the marketing services fee and the index services fee are not paid by the Fund, these fees are not included in the breakeven analysis. |
2. | From the Management Fee, the Managing Owner is responsible for paying the fees and expenses of the Administrator, ALPS Distributors and the Index Sponsor. |
3. | The Predecessor Managing Owner was responsible for paying the organization and offering expenses prior to the date of this Prospectus. As of the date of this Prospectus, the Managing Owner is responsible for paying the continuous offering costs of the Fund. |
4. | The actual amount of brokerage commissions and trading fees to be incurred will vary based upon the trading frequency of the Fund and the specific futures contracts traded. |
5. | The Managing Owner is responsible for paying all routine operational, administrative and other ordinary expenses of the Fund. |
6. | In connection with orders to create and redeem Baskets, Authorized Participants pay a transaction fee in the amount of USD 500 per order. Because these transaction fees are de minimis in amount, are charged on a transaction-by-transaction basis (and not on a Basket-by-Basket basis), and are borne by the Authorized Participants, they have not been included in the Breakeven Table. |
7. | Interest income currently is estimated to be earned at a rate of 0.02%, based upon the yield on 3-month U.S. Treasury bills as of November 24, 2014. Actual interest income could be higher or lower than the current yield of 3-month U.S. Treasury bills. |
8. | The Fund is subject to (i) a Management Fee of 0.75% per annum and (ii) estimated brokerage commissions and fees of 0.06% per annum. The Fund is subject to fees and expenses in the aggregate amount of approximately 0.81% per annum. The Fund will be successful only if its annual returns from the underlying futures contracts, including annual income from 3-month U.S. Treasury bills, exceed approximately 0.81% per annum. The Fund is expected to earn 0.02% per annum, based upon the yield of 3-month U.S. Treasury bills as of November 24, 2014, or $0.01 per annum per Share at $25.00 as the net asset value per Share. Therefore, based upon the difference between the current yield of 3-month U.S. Treasury bills and the annual fees and expenses, the Fund will be required to earn approximately 0.79% per annum, or $0.20 per annum per Share at $25.00 as the net asset value per Share, in order for an investor to break-even on an investment during the first twelve months of an investment. Actual interest income could be higher or lower than the current yield of 3-month U.S. Treasury bills. |
9. | You may pay customary brokerage commissions in connection with purchases of the Shares. Because such brokerage commission rates are set by your broker, they will vary from investor to investor and have not been included in the Breakeven Table. Investors are encouraged to review the terms of their brokerage accounts for applicable charges. |
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POWERSHARES DB G10 CURRENCY HARVEST FUND
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PERFORMANCE OF POWERSHARES DB G10 CURRENCY HARVEST FUND (TICKER: DBV)
Name of Pool: PowerShares DB G10 Currency Harvest Fund
Type of Pool: Public, Exchange-Listed Commodity Pool
Inception of Trading: September 2006
Aggregate Gross Capital Subscriptions as of October 31, 20141: $1,363,733,066
Net Asset Value as of October 31, 20142: $92,614,027
Net Asset Value per Share as of October 31, 20143: $25.73
Worst Monthly Drawdown4: (6.72)% May 2010
Worst Peak-to-Valley Drawdown5: (36.85)% October 2007 January 20096
Monthly Rate of Return |
2014(%) | 2013(%) | 2012(%) | 2011(%) | 2010(%) | 2009(%) | ||||||
January |
(1.89) | 1.95 | 2.98 | 0.04 | (2.30) | (5.33) | ||||||
February |
1.60 | 0.08 | 4.24 | 0.55 | 0.35 | 3.09 | ||||||
March |
3.16 | 1.91 | (2.03) | 1.84 | 2.30 | 7.62 | ||||||
April |
(0.23) | 0.85 | (0.92) | 3.21 | 2.47 | 0.39 | ||||||
May |
(0.12) | (2.99) | (5.32) | (1.43) | (6.72) | 2.72 | ||||||
June |
0.27 | (4.40) | 4.85 | (0.28) | (2.71) | 1.66 | ||||||
July |
(0.83) | (0.28) | 1.22 | (0.65) | 4.65 | 2.56 | ||||||
August |
0.99 | (2.01) | (0.04) | (1.06) | (5.04) | 1.36 | ||||||
September |
(1.66) | 2.82 | 1.64 | (5.28) | 6.49 | 3.00 | ||||||
October |
0.00 | 0.82 | 0.28 | 6.36 | 0.82 | 0.61 | ||||||
November |
(1.28) | 1.22 | (2.33) | (1.20) | (1.30) | |||||||
December |
(0.04) | 1.63 | (0.13) | 2.64 | 3.02 | |||||||
Compound Rate of Return7 |
1.20% (10 months) |
(2.79)% |
9.74% | 0.38% | 0.94% | 20.62% |
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS.
Footnotes to Performance Information
1. Aggregate Gross Capital Subscriptions is the aggregate of all amounts ever contributed to the pool.
2. Net Asset Value is the net asset value of the pool as of October 31, 2014.
3. Net Asset Value per Share is the Net Asset Value of the pool divided by the total number of Shares outstanding as of October 31, 2014.
4. Worst Monthly Drawdown is the largest single month loss sustained since inception of trading. Drawdown as used in this section of the Prospectus means losses experienced by the relevant pool over the specified period and is calculated on a rate of return basis, i.e., dividing net performance by beginning equity. Drawdown is measured on the basis of monthly returns only, and does not reflect intra-month figures. Month is the month of the Worst Monthly Drawdown.
5. Worst Peak-to-Valley Drawdown is the largest percentage decline in the Net Asset Value per Share over the history of the pool. This need not be a continuous decline, but can be a series of positive and negative returns where the negative returns are larger than the positive returns. Worst Peak-to-Valley Drawdown represents the greatest percentage decline from any month-end Net Asset Value per Share that occurs without such month-end Net Asset Value per Share being equaled or exceeded as of a subsequent month-end. For example, if the Net Asset Value per Share of a particular pool declined by $1 in each of January and February, increased by $1 in March and declined again by $2 in April, a peak-to-valley drawdown analysis conducted as of the end of April would consider that drawdown to be still continuing and to be $3 in amount, whereas if the Net Asset Value per Share had increased by $2 in March, the January-February drawdown would have ended as of the end of February at the $2 level.
6. The Worst Peak-to-Valley Drawdown from October 2007 January 2009 includes the effect of the $0.80 per Share distribution made to Shareholders of record as of December 19, 2007, and the effect of the $0.27 per Share distribution made to Shareholders of record as of December 17, 2008.
7. Compound Rate of Return is calculated by multiplying on a compound basis each of the monthly rates of return set forth in the chart above and not by adding or averaging such monthly rates of return. For periods of less than one year, the results are year-to-date.
THE FUNDS PERFORMANCE INFORMATION FROM INCEPTION UP TO AND EXCLUDING THE DATE OF THIS PROSPECTUS IS A REFLECTION OF THE PERFORMANCE ASSOCIATED WITH DB COMMODITY SERVICES LLC, WHICH SERVED AS THE PREDECESSOR MANAGING OWNER. ALL THE PERFORMANCE INFORMATION ON AND AFTER THE DATE OF THIS PROSPECTUS WILL REFLECT THE PERFORMANCE ASSOCIATED WITH THE MANAGING OWNER.
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DEUTSCHE BANK G10 CURRENCY FUTURE HARVEST INDEX® EXCESS RETURN
CLOSING LEVELS TABLE
Closing Level | Index Changes | |||||||||||||||
High1 | Low2 | Annual3 | Since Inception | |||||||||||||
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105.60 | 94.03 | -0.19 | % | -0.19 | % | ||||||||||
1994 |
108.79 | 99.81 | 7.42 | % | 7.22 | % | ||||||||||
1995 |
110.52 | 94.16 | 2.66 | % | 10.07 | % | ||||||||||
1996 |
140.05 | 110.42 | 27.23 | % | 40.05 | % | ||||||||||
1997 |
146.72 | 137.83 | 2.58 | % | 43.67 | % | ||||||||||
1998 |
151.79 | 132.52 | -6.35 | % | 34.55 | % | ||||||||||
1999 |
151.12 | 134.71 | 9.81 | % | 47.76 | % | ||||||||||
2000 |
158.57 | 146.79 | 4.73 | % | 54.74 | % | ||||||||||
2001 |
171.15 | 154.68 | 10.61 | % | 71.15 | % | ||||||||||
2002 |
199.51 | 172.25 | 15.76 | % | 98.13 | % | ||||||||||
2003 |
234.45 | 199.00 | 18.33 | % | 134.45 | % | ||||||||||
2004 |
252.36 | 230.02 | 6.69 | % | 150.14 | % | ||||||||||
2005 |
286.06 | 248.34 | 10.66 | % | 176.81 | % | ||||||||||
2006 |
280.48 | 254.18 | 1.00 | % | 179.58 | % | ||||||||||
2007 |
315.27 | 276.77 | 5.15 | % | 193.98 | % | ||||||||||
2008 |
295.87 | 200.14 | -28.80 | % | 109.32 | % | ||||||||||
2009 |
260.64 | 196.13 | 21.91 | % | 155.18 | % | ||||||||||
2010 |
264.24 | 236.66 | 1.67 | % | 159.45 | % | ||||||||||
2011 |
274.83 | 241.88 | 1.18 | % | 162.52 | % | ||||||||||
2012 |
290.15 | 258.40 | 10.39 | % | 189.79 | % | ||||||||||
2013 |
310.79 | 276.57 | -1.98 | % | 184.05 | % | ||||||||||
20145 |
295.63 | 276.74 | 1.84 | % | 276.74 | % |
THE FUND WILL TRADE WITH A VIEW TO TRACKING THE DEUTSCHE BANK G10 CURRENCY FUTURE HARVEST INDEX® EXCESS RETURN OVER TIME.
NEITHER THE PAST PERFORMANCE OF THE FUND NOR THE PRIOR INDEX LEVELS AND CHANGES, POSITIVE AND NEGATIVE, SHOULD BE TAKEN AS AN INDICATION OF THE FUNDS FUTURE PERFORMANCE.
DEUTSCHE BANK G10 CURRENCY FUTURE HARVEST INDEX® TOTAL RETURN
CLOSING LEVELS TABLE
Closing Level | Index Changes | |||||||||||||||
High1 | Low2 | Annual3 | Since Inception | |||||||||||||
19934 |
106.15 | 95.13 | 2.30 | % | 2.30 | % | ||||||||||
1994 |
116.32 | 102.32 | 12.15 | % | 14.73 | % | ||||||||||
1995 |
124.55 | 102.55 | 8.56 | % | 24.55 | % | ||||||||||
1996 |
166.84 | 125.01 | 33.95 | % | 66.84 | % | ||||||||||
1997 |
180.54 | 164.92 | 8.01 | % | 80.19 | % | ||||||||||
1998 |
195.70 | 172.90 | -1.68 | % | 77.17 | % | ||||||||||
1999 |
203.96 | 177.49 | 15.12 | % | 103.96 | % | ||||||||||
2000 |
227.93 | 202.75 | 11.11 | % | 126.61 | % | ||||||||||
2001 |
259.57 | 226.67 | 14.55 | % | 159.57 | % | ||||||||||
2002 |
307.46 | 261.27 | 17.68 | % | 205.47 | % | ||||||||||
2003 |
365.18 | 306.83 | 19.55 | % | 265.18 | % | ||||||||||
2004 |
398.22 | 359.55 | 8.18 | % | 295.05 | % | ||||||||||
2005 |
465.10 | 392.65 | 14.23 | % | 351.27 | % | ||||||||||
2006 |
479.65 | 421.90 | 5.96 | % | 378.18 | % | ||||||||||
2007 |
554.63 | 477.16 | 9.96 | % | 425.80 | % | ||||||||||
2008 |
531.26 | 362.87 | -27.80 | % | 279.60 | % | ||||||||||
2009 |
473.31 | 355.72 | 22.09 | % | 363.44 | % | ||||||||||
2010 |
480.08 | 430.07 | 1.81 | % | 371.83 | % | ||||||||||
2011 |
499.96 | 440.07 | 1.23 | % | 377.64 | % | ||||||||||
2012 |
528.33 | 470.29 | 10.48 | % | 427.70 | % | ||||||||||
2013 |
566.06 | 503.81 | -1.93 | % | 417.53 | % | ||||||||||
20145 |
538.72 | 504.24 | 1.87 | % | 427.20 | % |
THE FUND WILL NOT TRADE WITH A VIEW TO TRACKING THE DEUTSCHE BANK G10 CURRENCY FUTURE HARVEST INDEX® TOTAL RETURN OVER TIME.
NEITHER THE PAST PERFORMANCE OF THE FUND NOR THE PRIOR INDEX LEVELS AND CHANGES, POSITIVE AND NEGATIVE, SHOULD BE TAKEN AS AN INDICATION OF THE FUNDS FUTURE PERFORMANCE.
See accompanying Notes and Legends.
-41-
INDEX CURRENCY WEIGHTS TABLE
DEUTSCHE BANK G10 CURRENCY FUTURE HARVEST INDEX® EXCESS RETURN
USD | EUR | JPY | CAD | CHF | GBP | AUD | NZD | NOK | SEK | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
High1 | Low2 | High | Low | High | Low | High | Low | High | Low | High | Low | High | Low | High | Low | High | Low | High | Low | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
19934 |
-31.6 | % | -36.8 | % | 33.8 | % | 34.0 | % | -33.7 | % | -37.2 | % | 0.0 | % | -36.8 | % | 0.0 | % | 0.0 | % | 0.0 | % | 0.0 | % | -31.1 | % | 0.0 | % | 0.0 | % | 0.0 | % | 33.9 | % | 34.1 | % | 33.9 | % | 32.3% | |||||||||||||||||||||||||||||||||||||||||
1994 |
0.0 | % | -33.3 | % | -33.0 | % | 32.5 | % | -33.1 | % | -32.5 | % | 0.0 | % | -33.4 | % | -33.1 | % | 0.0 | % | 0.0 | % | 0.0 | % | 33.2 | % | 0.0 | % | 33.3 | % | 33.6 | % | 0.0 | % | 0.0 | % | 33.4 | % | 33.2% | |||||||||||||||||||||||||||||||||||||||||
1995 |
0.0 | % | 0.0 | % | -33.7 | % | -35.7 | % | -33.1 | % | -39.1 | % | 0.0 | % | 35.9 | % | -33.7 | % | -36.8 | % | 0.0 | % | 0.0 | % | 32.4 | % | 0.0 | % | 33.0 | % | 36.3 | % | 0.0 | % | 0.0 | % | 36.2 | % | 34.6% | |||||||||||||||||||||||||||||||||||||||||
1996 |
0.0 | % | 0.0 | % | 0.0 | % | -33.5 | % | -31.7 | % | -32.5 | % | -32.1 | % | 0.0 | % | -31.5 | % | -33.3 | % | 33.3 | % | 0.0 | % | 32.4 | % | 33.3 | % | 32.6 | % | 33.3 | % | 0.0 | % | 0.0 | % | 0.0 | % | 33.2% | |||||||||||||||||||||||||||||||||||||||||
1997 |
0.0 | % | 0.0 | % | 0.0 | % | 0.0 | % | -31.5 | % | -30.6 | % | -31.7 | % | -33.1 | % | -32.2 | % | -30.4 | % | 33.2 | % | 31.7 | % | 31.9 | % | 31.5 | % | 32.6 | % | 32.3 | % | 0.0 | % | 0.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
1998 |
0.0 | % | 0.0 | % | -32.3 | % | -36.7 | % | -32.9 | % | -40.1 | % | 0.0 | % | 0.0 | % | -31.8 | % | -37.5 | % | 32.3 | % | 36.0 | % | 34.2 | % | 0.0 | % | 34.2 | % | 36.5 | % | 0.0 | % | 35.7 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
1999 |
32.6 | % | 33.0 | % | -31.6 | % | -32.2 | % | -31.3 | % | -34.4 | % | 0.0 | % | 0.0 | % | -31.4 | % | -32.0 | % | 31.6 | % | 32.5 | % | 0.0 | % | 0.0 | % | 0.0 | % | 0.0 | % | 32.1 | % | 34.1 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2000 |
31.9 | % | 33.3 | % | -29.4 | % | -33.7 | % | -30.8 | % | -32.9 | % | 0.0 | % | 0.0 | % | -30.5 | % | -33.5 | % | 31.6 | % | 33.5 | % | 0.0 | % | 0.0 | % | 31.6 | % | 0.0 | % | 0.0 | % | 33.5 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2001 |
-33.1 | % | 33.1 | % | 0.0 | % | 0.0 | % | -32.1 | % | -32.4 | % | 0.0 | % | 0.0 | % | -32.5 | % | -34.5 | % | 0.0 | % | 0.0 | % | 32.7 | % | 0.0 | % | 33.0 | % | 34.1 | % | 32.8 | % | 34.1 | % | 0.0 | % | -33.7% | |||||||||||||||||||||||||||||||||||||||||
2002 |
-33.2 | % | -32.9 | % | 0.0 | % | 0.0 | % | -33.1 | % | -31.6 | % | 0.0 | % | 0.0 | % | -33.5 | % | -32.7 | % | 0.0 | % | 0.0 | % | 33.3 | % | 32.6 | % | 33.5 | % | 33.1 | % | 33.5 | % | 33.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2003 |
-33.0 | % | -33.2 | % | 0.0 | % | 0.0 | % | -33.0 | % | -33.4 | % | 0.0 | % | 0.0 | % | -33.5 | % | -34.2 | % | 33.7 | % | 0.0 | % | 33.4 | % | 33.2 | % | 33.4 | % | 33.9 | % | 0.0 | % | 34.1 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2004 |
0.0 | % | -34.6 | % | 0.0 | % | 0.0 | % | -33.2 | % | -33.5 | % | 0.0 | % | 0.0 | % | -33.0 | % | -34.7 | % | 33.4 | % | 34.1 | % | 33.6 | % | 32.6 | % | 33.4 | % | 32.3 | % | -33.1 | % | 0.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2005 |
0.0 | % | 0.0 | % | 0.0 | % | 0.0 | % | -29.1 | % | -34.4 | % | 0.0 | % | 0.0 | % | -30.7 | % | -32.8 | % | 30.7 | % | 32.7 | % | 31.2 | % | 33.9 | % | 32.7 | % | 33.2 | % | 0.0 | % | -33.2 | % | -30.2 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2006 |
32.9 | % | 36.0 | % | 0.0 | % | 0.0 | % | -32.6 | % | -38.1 | % | 0.0 | % | 0.0 | % | -32.9 | % | -39.1 | % | 0.0 | % | 0.0 | % | 33.2 | % | 37.1 | % | 33.7 | % | 35.1 | % | 0.0 | % | 0.0 | % | -33.1 | % | -38.8% | |||||||||||||||||||||||||||||||||||||||||
2007 |
0.0 | % | 33.3 | % | 0.0 | % | 0.0 | % | -33.2 | % | -33.7 | % | 0.0 | % | 0.0 | % | -33.2 | % | -33.1 | % | 33.8 | % | 0.0 | % | 34.2 | % | 32.9 | % | 34.8 | % | 32.8 | % | 0.0 | % | 0.0 | % | -34.1 | % | -32.3% | |||||||||||||||||||||||||||||||||||||||||
2008 |
0.0 | % | -44.2 | % | 0.0 | % | 0.0 | % | -34.8 | % | -50.7 | % | 0.0 | % | 0.0 | % | -35.2 | % | -43.3 | % | 32.7 | % | 0.0 | % | 36.1 | % | 32.9 | % | 35.6 | % | 36.1 | % | 0.0 | % | 36.6 | % | -34.6 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2009 |
-31.2 | % | -35.2 | % | 0.0 | % | 0.0 | % | -31.0 | % | -35.8 | % | 0.0 | % | 0.0 | % | -32.2 | % | -35.6 | % | 0.0 | % | 0.0 | % | 33.7 | % | 33.7 | % | 33.7 | % | 32.7 | % | 33.4 | % | 34.5 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2010 |
-32.1 | % | -34.8 | % | 0.0 | % | 0.0 | % | -30.7 | % | -36.5 | % | 0.0 | % | 0.0 | % | -31.4 | % | 37.7 | % | 0.0 | % | 0.0 | % | 32.7 | % | 34.6 | % | 33.6 | % | 34.9 | % | 31.6 | % | 35.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2011 |
-31.5 | % | -36.7 | % | 0.0 | % | 0.0 | % | -31.8 | % | -38.3 | % | 0.0 | % | 0.0 | % | -33.9 | % | -43.2 | % | 0.0 | % | 0.0 | % | 34.3 | % | 35.3 | % | 34.5 | % | 36.3 | % | 33.9 | % | 36.5 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2012 |
0.0 | % | -36.2 | % | -32.1 | % | 0.0 | % | 30.2 | % | 38.6 | % | 0.0 | % | 0.0 | % | -32.2 | % | -34.2 | % | 0.0 | % | 0.0 | % | 32.4 | % | 33.4 | % | 32.9 | % | 33.2 | % | 32.7 | % | 33.8 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2013 |
0.0 | % | 0.0 | % | -32.3 | % | -34.7 | % | -30.8 | % | -33.6 | % | 0.0 | % | 0.0 | % | -32.5 | % | -34.8 | % | 0.0 | % | 0.0 | % | 32.7 | % | 32.6 | % | 33.7 | % | 33.7 | % | 32.6 | % | 33.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
20145 |
0.0 | % | 0.0 | % | 0.0 | % | -33.4 | % | -33.3 | % | -34.6 | % | 0.0 | % | 0.0 | % | -33.3 | % | -33.4 | % | 0.0 | % | 0.0 | % | 33.3 | % | 33.2 | % | 33.3 | % | 33.3 | % | 33.3 | % | 33.4 | % | 0.0 | % | 0.0% |
THE FUND WILL TRADE WITH A VIEW TO TRACKING THE DEUTSCHE BANK G10 CURRENCY FUTURE HARVEST INDEX® EXCESS
RETURN OVER TIME. NEITHER THE PAST PERFORMANCE OF THE FUND NOR THE PRIOR INDEX LEVELS AND CHANGES, POSITIVE AND
NEGATIVE, SHOULD BE TAKEN AS AN INDICATION OF THE FUNDS FUTURE PERFORMANCE.
See accompanying Notes and Legends
DEUTSCHE BANK G10 CURRENCY FUTURE HARVEST INDEX® TOTAL RETURN
USD | EUR | JPY | CAD | CHF | GBP | AUD | NZD | NOK | SEK | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
High1 | Low2 | High | Low | High | Low | High | Low | High | Low | High | Low | High | Low | High | Low | High | Low | High | Low | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
19934 |
-31.6 | % | -36.8 | % | 33.6 | % | 34.0 | % | -34.8 | % | -37.2 | % | 0.0 | % | -36.8 | % | 0.0 | % | 0.0 | % | 0.0 | % | 0.0 | % | -30.3 | % | 0.0 | % | 0.0 | % | 0.0 | % | 33.6 | % | 34.1 | % | 34.7 | % | 32.3% | |||||||||||||||||||||||||||||||||||||||||
1994 |
0.0 | % | -33.3 | % | -33.1 | % | 32.5 | % | -33.1 | % | -32.5 | % | 0.0 | % | -33.4 | % | -33.1 | % | 0.0 | % | 0.0 | % | 0.0 | % | 33.2 | % | 0.0 | % | 33.3 | % | 33.6 | % | 0.0 | % | 0.0 | % | 33.4 | % | 33.2% | |||||||||||||||||||||||||||||||||||||||||
1995 |
0.0 | % | 0.0 | % | -33.5 | % | -35.7 | % | -32.9 | % | -39.1 | % | 0.0 | % | 35.9 | % | -33.6 | % | -36.8 | % | 0.0 | % | 0.0 | % | 33.4 | % | 0.0 | % | 33.4 | % | 36.3 | % | 0.0 | % | 0.0 | % | 33.2 | % | 34.6% | |||||||||||||||||||||||||||||||||||||||||
1996 |
0.0 | % | 0.0 | % | 0.0 | % | -33.5 | % | -31.7 | % | -32.5 | % | -32.1 | % | 0.0 | % | -31.5 | % | -33.3 | % | 33.3 | % | 0.0 | % | 32.4 | % | 33.3 | % | 32.6 | % | 33.3 | % | 0.0 | % | 0.0 | % | 0.0 | % | 33.2% | |||||||||||||||||||||||||||||||||||||||||
1997 |
32.4 | % | 0.0 | % | -32.1 | % | 0.0 | % | -30.0 | % | -30.6 | % | 0.0 | % | -33.1 | % | -32.8 | % | -30.4 | % | 34.0 | % | 31.7 | % | 0.0 | % | 31.5 | % | 31.3 | % | 32.3 | % | 0.0 | % | 0.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
1998 |
0.0 | % | 0.0 | % | -32.3 | % | -36.7 | % | -32.9 | % | -40.1 | % | 0.0 | % | 0.0 | % | -31.8 | % | -37.5 | % | 32.3 | % | 36.0 | % | 34.2 | % | 0.0 | % | 34.2 | % | 36.5 | % | 0.0 | % | 35.7 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
1999 |
33.1 | % | 33.0 | % | -32.5 | % | -32.2 | % | -32.9 | % | -34.4 | % | 0.0 | % | 0.0 | % | -32.4 | % | -32.0 | % | 32.8 | % | 32.5 | % | 0.0 | % | 0.0 | % | 0.0 | % | 0.0 | % | 32.8 | % | 34.1 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2000 |
32.9 | % | 33.3 | % | 0.0 | % | -33.7 | % | -32.3 | % | -32.9 | % | 0.0 | % | 0.0 | % | -33.7 | % | -33.5 | % | 0.0 | % | 33.5 | % | 0.0 | % | 0.0 | % | 34.0 | % | 0.0 | % | 33.4 | % | 33.5 | % | -33.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2001 |
-33.1 | % | 33.1 | % | 0.0 | % | 0.0 | % | -32.1 | % | -32.4 | % | 0.0 | % | 0.0 | % | -32.5 | % | -34.5 | % | 0.0 | % | 0.0 | % | 32.7 | % | 0.0 | % | 33.0 | % | 34.1 | % | 32.8 | % | 34.1 | % | 0.0 | % | -33.7% | |||||||||||||||||||||||||||||||||||||||||
2002 |
-33.2 | % | -32.9 | % | 0.0 | % | 0.0 | % | -33.1 | % | -31.6 | % | 0.0 | % | 0.0 | % | -33.5 | % | -32.7 | % | 0.0 | % | 0.0 | % | 33.3 | % | 32.6 | % | 33.5 | % | 33.1 | % | 33.5 | % | 33.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2003 |
-33.0 | % | -33.2 | % | 0.0 | % | 0.0 | % | -33.0 | % | -33.4 | % | 0.0 | % | 0.0 | % | -33.5 | % | -34.2 | % | 33.7 | % | 0.0 | % | 33.4 | % | 33.2 | % | 33.4 | % | 33.9 | % | 0.0 | % | 34.1 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2004 |
0.0 | % | -34.2 | % | 0.0 | % | 0.0 | % | -33.5 | % | -33.2 | % | 0.0 | % | 0.0 | % | -33.8 | % | -33.8 | % | 33.7 | % | 33.6 | % | 33.8 | % | 32.6 | % | 33.8 | % | 32.4 | % | -33.7 | % | 0.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2005 |
0.0 | % | 0.0 | % | 0.0 | % | 0.0 | % | -29.7 | % | -33.8 | % | 0.0 | % | 0.0 | % | -30.9 | % | -32.7 | % | 30.8 | % | 32.7 | % | 31.1 | % | 33.8 | % | 32.4 | % | 33.1 | % | 0.0 | % | -33.0 | % | -30.4 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2006 |
33.1 | % | 35.7 | % | 0.0 | % | 0.0 | % | -32.9 | % | -38.0 | % | 0.0 | % | 0.0 | % | -33.1 | % | -38.6 | % | 0.0 | % | 0.0 | % | 33.2 | % | 37.3 | % | 33.7 | % | 34.9 | % | 0.0 | % | 0.0 | % | -33.4 | % | -38.4% | |||||||||||||||||||||||||||||||||||||||||
2007 |
0.0 | % | 33.0 | % | 0.0 | % | 0.0 | % | -33.4 | % | -32.7 | % | 0.0 | % | 0.0 | % | -33.9 | % | -33.0 | % | 34.2 | % | 0.0 | % | 34.4 | % | 33.3 | % | 34.9 | % | 33.7 | % | 0.0 | % | 0.0 | % | -34.9 | % | -33.3% | |||||||||||||||||||||||||||||||||||||||||
2008 |
0.0 | % | -24.4 | % | 0.0 | % | 0.0 | % | -19.4 | % | -28.0 | % | 0.0 | % | 0.0 | % | -19.6 | % | -23.9 | % | 18.2 | % | 0.0 | % | 20.1 | % | 18.1 | % | 19.8 | % | 19.9 | % | 0.0 | % | 20.2 | % | -19.3 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2009 |
-17.2 | % | -19.4 | % | 0.0 | % | 0.0 | % | -17.1 | % | -19.7 | % | 0.0 | % | 0.0 | % | -17.7 | % | -19.6 | % | 0.0 | % | 0.0 | % | 18.6 | % | 18.6 | % | 18.6 | % | 18.0 | % | 18.4 | % | 19.0 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2010 |
-17.7 | % | -19.2 | % | 0.0 | % | 0.0 | % | -16.9 | % | -20.1 | % | 0.0 | % | 0.0 | % | -17.3 | % | -20.7 | % | 0.0 | % | 0.0 | % | 18.0 | % | 19.0 | % | 18.5 | % | 19.2 | % | 17.4 | % | 19.3 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2011 |
-17.3 | % | -20.2 | % | 0.0 | % | 0.0 | % | -17.5 | % | -21.0 | % | 0.0 | % | 0.0 | % | -18.7 | % | -23.8 | % | 0.0 | % | 0.0 | % | 18.9 | % | 19.4 | % | 18.9 | % | 19.9 | % | 18.6 | % | 20.1 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2012 |
0.0 | % | -19.9 | % | -17.6 | % | 0.0 | % | -16.6 | % | -21.2 | % | 0.0 | % | 0.0 | % | -17.7 | % | -18.8 | % | 0.0 | % | 0.0 | % | 17.8 | % | 18.3 | % | 18.1 | % | 18.3 | % | 17.9 | % | 18.6 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
2013 |
0.0 | % | 0.0 | % | -17.8 | % | -19.1 | % | -16.9 | % | -18.5 | % | 0.0 | % | 0.0 | % | -17.9 | % | -19.1 | % | 0.0 | % | 0.0 | % | 18.0 | % | 17.9 | % | 18.5 | % | 18.5 | % | 17.9 | % | 18.1 | % | 0.0 | % | 0.0% | |||||||||||||||||||||||||||||||||||||||||
20145 |
0.0 | % | 0.0 | % | 0.0 | % | -18.3 | % | -18.3 | % | -19.0 | % | 0.0 | % | 0.0 | % | -18.3 | % | -18.4 | % | 0.0 | % | 0.0 | % | 18.3 | % | 18.2 | % | 18.3 | % | 18.3 | % | 18.3 | % | 18.3 | % | 0.0 | % | 0.0% |
THE FUND WILL NOT TRADE WITH A VIEW TO TRACKING THE DEUTSCHE BANK G10 CURRENCY FUTURE HARVEST INDEX® TOTAL
RETURN OVER TIME. NEITHER THE PAST PERFORMANCE OF THE FUND NOR THE PRIOR INDEX LEVELS AND CHANGES, POSITIVE AND
NEGATIVE, SHOULD BE TAKEN AS AN INDICATION OF THE FUNDS FUTURE PERFORMANCE.
See accompanying Notes and Legends.
-42-
VARIOUS STATISTICAL MEASURES* |
INDEX-TR6,7 | INDEX-ER7,8 | DXY9 | EFFAS US Treasuries10 |
S&P 500 TR11 | DBLCI12 | ||||||||||||||||||
Annualized Changes to Index Level13 |
8.9 | % | 4.9 | % | -0.5 | % | 6.6 | % | 5.6 | % | 9.5 | % | ||||||||||||
Average rolling 3-month daily volatility14 |
8.7 | % | 8.7 | % | 7.8 | % | 4.6 | % | 16.7 | % | 19.6 | % | ||||||||||||
Sharpe Ratio15 |
0.60 | 0.57 | -0.53 | 0.64 | 0.12 | 0.30 | ||||||||||||||||||
% of months with positive change |
67 | % | 64 | % | 47 | % | 63 | % | 65 | % | 56 | % | ||||||||||||
Average monthly positive return change |
2.1 | % | 1.9 | % | 1.9 | % | 1.2 | % | 3.3 | % | 4.8 | % | ||||||||||||
Average monthly negative return change |
-2.1 | % | -2.2 | % | -1.7 | % | -0.8 | % | -3.7 | % | -4.2 | % | ||||||||||||
CORRELATION OF MONTHLY INDEX LEVELS*,16 |
INDEX-TR | INDEX-ER | DXY | EFFAS US Treasuries |
S&P 500 TR | DBLCI | ||||||||||||||||||
Index TR |
100 | % | 100 | % | -20 | % | -10 | % | 45 | % | 37 | % | ||||||||||||
Index-ER |
100 | % | -21 | % | -11 | % | 45 | % | 37 | % | ||||||||||||||
DXY |
100 | % | -11 | % | -23 | % | -38 | % | ||||||||||||||||
EFFAS US Treasuries |
100 | % | -17 | % | -6 | % | ||||||||||||||||||
S&P 500 TR |
100 | % | 26 | % | ||||||||||||||||||||
DBLCI |
100 | % |
All Statistics based on data from March 12, 1993 to October 31, 2014.
NEITHER THE PAST PERFORMANCE OF THE FUND NOR THE PRIOR INDEX LEVELS AND CHANGES, POSITIVE AND NEGATIVE, SHOULD BE TAKEN AS AN INDICATION OF THE FUNDS FUTURE PERFORMANCE.
WHILE THE FUNDS OBJECTIVE IS NOT TO GENERATE PROFIT THROUGH ACTIVE PORTFOLIO MANAGEMENT, BUT IS TO TRACK THE INDEX, BECAUSE THE INDEX WAS ESTABLISHED IN DECEMBER 2005, CERTAIN INFORMATION RELATING TO THE INDEX CLOSING LEVELS MAY BE CONSIDERED TO BE HYPOTHETICAL. HYPOTHETICAL INFORMATION MAY HAVE CERTAIN INHERENT LIMITATIONS, SOME OF WHICH ARE DESCRIBED BELOW.
NO REPRESENTATION IS BEING MADE THAT THE INDEX WILL OR IS LIKELY TO ACHIEVE ANNUAL OR CUMULATIVE CLOSING LEVELS CONSISTENT WITH OR SIMILAR TO THOSE SET FORTH HEREIN. SIMILARLY, NO REPRESENTATION IS BEING MADE THAT THE FUND WILL GENERATE PROFITS OR LOSSES SIMILAR TO THE FUNDS PAST PERFORMANCE OR THE HISTORICAL ANNUAL OR CUMULATIVE CHANGES IN INDEX CLOSING LEVELS. IN FACT, THERE ARE FREQUENTLY SHARP DIFFERENCES BETWEEN HYPOTHETICAL RESULTS AND THE ACTUAL RESULTS SUBSEQUENTLY ACHIEVED BY INVESTMENT METHODOLOGIES, WHETHER ACTIVE OR PASSIVE.
ONE OF THE LIMITATIONS OF HYPOTHETICAL INFORMATION IS THAT IT IS GENERALLY PREPARED WITH THE BENEFIT OF HINDSIGHT. TO THE EXTENT THAT INFORMATION PRESENTED HEREIN RELATES TO THE PERIOD MARCH 1993 THROUGH NOVEMBER 2005, THE INDEX CLOSING LEVELS REFLECT THE APPLICATION OF THE INDEX METHODOLOGY, AND SELECTION OF INDEX CURRENCIES, IN HINDSIGHT.
NO HYPOTHETICAL RECORD CAN COMPLETELY ACCOUNT FOR THE IMPACT OF FINANCIAL RISK IN ACTUAL TRADING. FOR EXAMPLE, THERE ARE NUMEROUS FACTORS, INCLUDING THOSE DESCRIBED UNDER THE RISKS YOU FACE HEREIN, RELATED TO THE CURRENCIES MARKETS IN GENERAL OR TO THE IMPLEMENTATION OF THE FUNDS EFFORTS TO TRACK THE INDEX OVER TIME WHICH CANNOT BE, AND HAVE NOT BEEN, ACCOUNTED FOR IN THE PREPARATION OF THE INDEX INFORMATION SET FORTH ON THE FOLLOWING PAGES, ALL OF WHICH CAN ADVERSELY AFFECT ACTUAL PERFORMANCE RESULTS FOR THE FUND. FURTHERMORE, THE INDEX INFORMATION DOES NOT INVOLVE FINANCIAL RISK OR ACCOUNT FOR THE IMPACT OF FEES AND COSTS ASSOCIATED WITH THE FUND.
THE MANAGING OWNER AND ITS TRADING PRINCIPALS HAVE NO EXPERIENCE MANAGING THE DAY-TO-DAY OPERATIONS FOR THE FUND AND HAVE ONLY MANAGED AN EXCHANGE-TRADED FUND THAT RELATES TO A BROAD-BASED COMMODITY INDEX FOR A SHORT PERIOD. BECAUSE THERE ARE NO ACTUAL PERFORMANCE RESULTS OF THE MANAGING OWNER THAT ARE COMPARABLE TO THE INDEX CLOSING LEVELS SET FORTH HEREIN, PROSPECTIVE INVESTORS SHOULD BE PARTICULARLY WARY OF PLACING UNDUE RELIANCE ON THE ANNUAL OR CUMULATIVE INDEX RESULTS.
See accompanying Notes and Legends.
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COMPARISON OF THE INDICES WITH CERTAIN GENERAL MARKET INDICES REPRESENTING
CURRENCIES, BONDS, STOCKS AND COMMODITIES
(MARCH 12, 1993 OCTOBER 31, 2014)*
NEITHER THE PAST PERFORMANCE OF THE FUND NOR THE PRIOR INDEX LEVELS AND CHANGES, POSITIVE AND NEGATIVE,
SHOULD BE TAKEN AS AN INDICATION OF THE FUNDS FUTURE PERFORMANCE.
Each of the Index-TR, EFFAS US Treasuries, S&P 500 TR, DBLCI and DXY are indices and do not reflect actual trading.
Each of the indices, except DXY, are calculated on a total return basis and does not reflect any fees or expenses.
WHILE THE FUNDS OBJECTIVE IS NOT TO GENERATE PROFIT THROUGH ACTIVE PORTFOLIO MANAGEMENT, BUT IS TO TRACK THE INDEX, BECAUSE THE INDEX WAS ESTABLISHED IN DECEMBER 2005, CERTAIN INFORMATION RELATING TO THE INDEX CLOSING LEVELS MAY BE CONSIDERED TO BE HYPOTHETICAL. HYPOTHETICAL INFORMATION MAY HAVE CERTAIN INHERENT LIMITATIONS, SOME OF WHICH ARE DESCRIBED BELOW.
NO REPRESENTATION IS BEING MADE THAT THE INDEX WILL OR IS LIKELY TO ACHIEVE ANNUAL OR CUMULATIVE CLOSING LEVELS CONSISTENT WITH OR SIMILAR TO THOSE SET FORTH HEREIN. SIMILARLY, NO REPRESENTATION IS BEING MADE THAT THE FUND WILL GENERATE PROFITS OR LOSSES SIMILAR TO THE FUNDS PAST PERFORMANCE OR THE HISTORICAL ANNUAL OR CUMULATIVE CHANGES IN INDEX CLOSING LEVELS. IN FACT, THERE ARE FREQUENTLY SHARP DIFFERENCES BETWEEN HYPOTHETICAL RESULTS AND THE ACTUAL RESULTS SUBSEQUENTLY ACHIEVED BY INVESTMENT METHODOLOGIES, WHETHER ACTIVE OR PASSIVE.
ONE OF THE LIMITATIONS OF HYPOTHETICAL INFORMATION IS THAT IT IS GENERALLY PREPARED WITH THE BENEFIT OF HINDSIGHT. TO THE EXTENT THAT INFORMATION PRESENTED HEREIN RELATES TO THE PERIOD MARCH 1993 THROUGH NOVEMBER 2005, THE INDEX CLOSING LEVELS REFLECT THE APPLICATION OF THE INDEX METHODOLOGY, AND SELECTION OF INDEX CURRENCIES, IN HINDSIGHT.
NO HYPOTHETICAL RECORD CAN COMPLETELY ACCOUNT FOR THE IMPACT OF FINANCIAL RISK IN ACTUAL TRADING. FOR EXAMPLE, THERE ARE NUMEROUS FACTORS, INCLUDING THOSE DESCRIBED UNDER THE RISKS YOU FACE HEREIN, RELATED TO THE CURRENCIES MARKETS IN GENERAL OR TO THE IMPLEMENTATION OF THE FUNDS EFFORTS TO TRACK THE INDEX OVER TIME WHICH CANNOT BE, AND HAVE NOT BEEN, ACCOUNTED FOR IN THE PREPARATION OF THE INDEX INFORMATION SET FORTH ON THE FOLLOWING PAGES, ALL OF WHICH CAN ADVERSELY AFFECT ACTUAL PERFORMANCE RESULTS FOR THE FUND. FURTHERMORE, THE INDEX INFORMATION DOES NOT INVOLVE FINANCIAL RISK OR ACCOUNT FOR THE IMPACT OF FEES AND COSTS ASSOCIATED WITH THE FUND.
THE MANAGING OWNER AND ITS TRADING PRINCIPALS HAVE NO EXPERIENCE MANAGING THE DAY-TO-DAY OPERATIONS FOR THE FUND AND HAVE ONLY MANAGED AN EXCHANGE-TRADED FUND THAT RELATES TO A BROAD-BASED COMMODITY INDEX FOR A SHORT PERIOD. BECAUSE THERE ARE NO ACTUAL PERFORMANCE RESULTS OF THE MANAGING OWNER THAT ARE COMPARABLE TO THE INDEX CLOSING LEVELS SET FORTH HEREIN, PROSPECTIVE INVESTORS SHOULD BE PARTICULARLY WARY OF PLACING UNDUE RELIANCE ON THE ANNUAL OR CUMULATIVE INDEX RESULTS.
See accompanying Notes and Legends.
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COMPARISON OF ANNUAL PERCENTAGE CHANGE IN THE INDICES
WITH CERTAIN GENERAL MARKET INDICES REPRESENTING BONDS AND STOCKS
(MARCH 12, 1993 OCTOBER 31, 2014)*
NEITHER THE PAST PERFORMANCE OF THE FUND NOR THE PRIOR INDEX LEVELS AND CHANGES, POSITIVE
AND NEGATIVE, SHOULD BE TAKEN AS AN INDICATION OF THE FUNDS FUTURE PERFORMANCE.
Each of the Index-TR, EFFAS US Treasuries and S&P 500 TR are indices and do not reflect actual trading.
Each of these indices are calculated on a total return basis and does not reflect any fees or expenses.
WHILE THE FUNDS OBJECTIVE IS NOT TO GENERATE PROFIT THROUGH ACTIVE PORTFOLIO MANAGEMENT, BUT IS TO TRACK THE INDEX, BECAUSE THE INDEX WAS ESTABLISHED IN DECEMBER 2005, CERTAIN INFORMATION RELATING TO THE INDEX CLOSING LEVELS MAY BE CONSIDERED TO BE HYPOTHETICAL. HYPOTHETICAL INFORMATION MAY HAVE CERTAIN INHERENT LIMITATIONS, SOME OF WHICH ARE DESCRIBED BELOW.
NO REPRESENTATION IS BEING MADE THAT THE INDEX WILL OR IS LIKELY TO ACHIEVE ANNUAL OR CUMULATIVE CLOSING LEVELS CONSISTENT WITH OR SIMILAR TO THOSE SET FORTH HEREIN. SIMILARLY, NO REPRESENTATION IS BEING MADE THAT THE FUND WILL GENERATE PROFITS OR LOSSES SIMILAR TO THE FUNDS PAST PERFORMANCE OR THE HISTORICAL ANNUAL OR CUMULATIVE CHANGES IN INDEX CLOSING LEVELS. IN FACT, THERE ARE FREQUENTLY SHARP DIFFERENCES BETWEEN HYPOTHETICAL RESULTS AND THE ACTUAL RESULTS SUBSEQUENTLY ACHIEVED BY INVESTMENT METHODOLOGIES, WHETHER ACTIVE OR PASSIVE.
ONE OF THE LIMITATIONS OF HYPOTHETICAL INFORMATION IS THAT IT IS GENERALLY PREPARED WITH THE BENEFIT OF HINDSIGHT. TO THE EXTENT THAT INFORMATION PRESENTED HEREIN RELATES TO THE PERIOD MARCH 1993 THROUGH NOVEMBER 2005, THE INDEX CLOSING LEVELS REFLECT THE APPLICATION OF THE INDEX METHODOLOGY, AND SELECTION OF INDEX CURRENCIES, IN HINDSIGHT.
NO HYPOTHETICAL RECORD CAN COMPLETELY ACCOUNT FOR THE IMPACT OF FINANCIAL RISK IN ACTUAL TRADING. FOR EXAMPLE, THERE ARE NUMEROUS FACTORS, INCLUDING THOSE DESCRIBED UNDER THE RISKS YOU FACE HEREIN, RELATED TO THE CURRENCIES MARKETS IN GENERAL OR TO THE IMPLEMENTATION OF THE FUNDS EFFORTS TO TRACK THE INDEX OVER TIME WHICH CANNOT BE, AND HAVE NOT BEEN, ACCOUNTED FOR IN THE PREPARATION OF THE INDEX INFORMATION SET FORTH ON THE FOLLOWING PAGES, ALL OF WHICH CAN ADVERSELY AFFECT ACTUAL PERFORMANCE RESULTS FOR THE FUND. FURTHERMORE, THE INDEX INFORMATION DOES NOT INVOLVE FINANCIAL RISK OR ACCOUNT FOR THE IMPACT OF FEES AND COSTS ASSOCIATED WITH THE FUND.
THE MANAGING OWNER AND ITS TRADING PRINCIPALS HAVE NO EXPERIENCE MANAGING THE DAY-TO-DAY OPERATIONS FOR THE FUND AND HAVE ONLY MANAGED AN EXCHANGE-TRADED FUND THAT RELATES TO A BROAD-BASED COMMODITY INDEX FOR A SHORT PERIOD. BECAUSE THERE ARE NO ACTUAL PERFORMANCE RESULTS OF THE MANAGING OWNER THAT ARE COMPARABLE TO THE INDEX CLOSING LEVELS SET FORTH HEREIN, PROSPECTIVE INVESTORS SHOULD BE PARTICULARLY WARY OF PLACING UNDUE RELIANCE ON THE ANNUAL OR CUMULATIVE INDEX RESULTS.
See accompanying Notes and Legends.
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NOTES AND LEGENDS:
1. High reflects the highest closing level of the Index during the applicable year.
2. Low reflects the lowest closing level of the Index during the applicable year.
3. Annual Index Changes reflect the change to the Index level on an annual basis as of December 31 of each applicable year.
4. Closing levels as of inception on March 12, 1993.
5. Closing levels as of October 31, 2014.
6. INDEX-TR is Deutsche Bank G10 Currency Future Harvest Index® Total Return. The Deutsche Bank G10 Currency Future Harvest Index® is calculated on both an excess return basis and total return. The Index-TR calculation is funded and reflects the change in market value of both the underlying index currencies and the interest income from a hypothetical basket of fixed income securities. The sponsor of the Index, or the Index Sponsor, is Deutsche Bank Securities Inc. Deutsche Bank G10 Currency Future Harvest Index® is a registered trademark of Deutsche Bank AG. All rights reserved.
7. If the Funds interest income from its holdings of fixed income securities were to exceed the Funds fees and expenses, the total return on an investment in the Fund is expected to outperform the INDEX-ER (as such term is defined in the following footnote) and underperform the INDEX-TR. The only difference between the INDEX-ER and the INDEX-TR is that the INDEX-ER does not include interest income from a hypothetical basket of fixed income securities while the INDEX-TR does include such a component. The difference between the INDEX-ER and the INDEX-TR is attributable entirely to the hypothetical interest income from this hypothetical basket of fixed income securities. If the Funds interest income from its holdings of fixed-income securities exceeds the Funds fees and expenses, the amount of such excess is expected to be distributed periodically. The market price of the Shares is expected closely to track the INDEX-ER. The total return on an investment in the Fund over any period is the sum of the capital appreciation or depreciation of the Shares over the period, plus the amount of any distributions during the period. Consequently, the Funds total return is expected to outperform the INDEX-ER by the amount of the excess, if any, of its interest income over its fees and expenses but, as a result of the Funds fees and expenses, the total return on the Fund is expected to underperform the INDEX-TR. If the Funds fees and expenses were to exceed the Funds interest income from its holdings of fixed income securities, the total return on an investment in the Fund is expected to underperform the INDEX-ER.
8. INDEX-ER is the Deutsche Bank G10 Currency Future Harvest Index® Excess Return. The excess return calculation is unfunded and reflects the change in market value of the underlying index currencies.
9. DXY is U.S. Dollar Index®. The U.S. Dollar Index® provides a general indication of the international value of the USD by averaging the exchange rates between the USD and the following six major world currencies: Euro, Japanese Yen, British Pound, Canadian Dollar, Swedish Krona and Swiss Franc. U.S. Dollar Index® is a registered service mark of ICE Futures U.S.
10. EFFAS US Treasuries is Bloomberg/EFFAS Index of U.S. Treasuries. The Bloomberg/EFFAS indices are designed as transparent benchmarks for government bond markets. Indices are grouped by country and maturity sectors. Bloomberg computes daily values and index characteristics for each sector. The Bloomberg/EFFAS Index of U.S. Treasuries includes treasuries with more than one year prior to maturity and is representative of the bond market.
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11. S&P 500 TR is the Standard & Poors index calculated on a total return basis. Widely regarded as the benchmark gauge of the U.S. equities market, this index includes a representative sample of 500 leading companies in leading industries of the U.S. economy. Although the S&P 500 focuses on the large cap segment of the market, with over 80% coverage of U.S. equities, it also serves as a proxy for the total market. The total return calculation provides investors with a price plus gross cash dividend return. Gross cash dividends are applied on the ex date of the dividend.
12. DBLCI is the Deutsche Bank Liquid Commodity Index Total Return. This Index is intended to reflect the change in market value of the following commodities: Light, Sweet Crude Oil, Heating Oil, Aluminum, Gold, Corn and Wheat. The notional amounts of each index commodity included in this index are broadly in proportion to historical levels of the worlds production and stocks of the index commodities. The sponsor of the Index, or the Index Sponsor, is Deutsche Bank Securities Inc.
13. Annualized Changes to Index Level reflects the change to the level of the applicable index on an annual basis as of December 31 of each applicable year.
14. Average rolling 3-month daily volatility. The daily volatility reflects the relative rate at which the price of the applicable index moves up and down, which is found by calculating the annualized standard deviation of the daily change in price. In turn, an average of this value is calculated on a 3-month rolling basis.
15. Sharpe Ratio compares the annualized rate of return minus the annualized risk-free rate of return to the annualized variability often referred to as the standard deviation of the monthly rates of return. A Sharpe Ratio of 1:1 or higher indicates that, according to the measures used in calculating the ratio, the rate of return achieved by a particular strategy has equaled or exceeded the risks assumed by such strategy. The risk-free rate of return that was used in these calculations was assumed to be 3.64%.
16. Correlation of Monthly Index Levels. Every investment asset, by definition, has a correlation coefficient of 1.0 with itself; 1.0 indicates 100% positive correlation. Two investments that always move in the opposite direction from each other have a correlation coefficient of -1.0; -1.0 indicates 100% negative correlation. Two investments that perform entirely independently of each other have a correlation coefficient of 0; 0 indicates 100% non-correlation.
* For the period from March 12, 1993 to October 31, 2014.
WHILE THE FUNDS OBJECTIVE IS NOT TO GENERATE PROFIT THROUGH ACTIVE PORTFOLIO MANAGEMENT, BUT IS TO TRACK THE INDEX, BECAUSE THE INDEX WAS ESTABLISHED IN DECEMBER 2005, CERTAIN INFORMATION RELATING TO THE INDEX CLOSING LEVELS MAY BE CONSIDERED TO BE HYPOTHETICAL. HYPOTHETICAL INFORMATION MAY HAVE CERTAIN INHERENT LIMITATIONS, SOME OF WHICH ARE DESCRIBED BELOW.
NO REPRESENTATION IS BEING MADE THAT THE INDEX WILL OR IS LIKELY TO ACHIEVE ANNUAL OR CUMULATIVE CLOSING LEVELS CONSISTENT WITH OR SIMILAR TO THOSE SET FORTH HEREIN. SIMILARLY, NO REPRESENTATION IS BEING MADE THAT THE FUND WILL GENERATE PROFITS OR LOSSES SIMILAR TO THE FUNDS PAST PERFORMANCE OR THE HISTORICAL ANNUAL OR CUMULATIVE CHANGES IN INDEX CLOSING LEVELS. IN FACT, THERE ARE FREQUENTLY SHARP DIFFERENCES BETWEEN HYPOTHETICAL RESULTS AND THE ACTUAL RESULTS SUBSEQUENTLY ACHIEVED BY INVESTMENT METHODOLOGIES, WHETHER ACTIVE OR PASSIVE.
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ONE OF THE LIMITATIONS OF HYPOTHETICAL INFORMATION IS THAT IT IS GENERALLY PREPARED WITH THE BENEFIT OF HINDSIGHT. TO THE EXTENT THAT INFORMATION PRESENTED HEREIN RELATES TO THE PERIOD MARCH 1993 THROUGH NOVEMBER 2005, THE INDEX CLOSING LEVELS REFLECT THE APPLICATION OF THE INDEX METHODOLOGY, AND SELECTION OF INDEX CURRENCIES, IN HINDSIGHT.
NO HYPOTHETICAL RECORD CAN COMPLETELY ACCOUNT FOR THE IMPACT OF FINANCIAL RISK IN ACTUAL TRADING. FOR EXAMPLE, THERE ARE NUMEROUS FACTORS, INCLUDING THOSE DESCRIBED UNDER THE RISKS YOU FACE HEREIN, RELATED TO THE CURRENCIES MARKETS IN GENERAL OR TO THE IMPLEMENTATION OF THE FUNDS EFFORTS TO TRACK THE INDEX OVER TIME WHICH CANNOT BE, AND HAVE NOT BEEN, ACCOUNTED FOR IN THE PREPARATION OF THE INDEX INFORMATION SET FORTH ON THE FOLLOWING PAGES, ALL OF WHICH CAN ADVERSELY AFFECT ACTUAL PERFORMANCE RESULTS FOR THE FUND. FURTHERMORE, THE INDEX INFORMATION DOES NOT INVOLVE FINANCIAL RISK OR ACCOUNT FOR THE IMPACT OF FEES AND COSTS ASSOCIATED WITH THE FUND.
THE MANAGING OWNER AND ITS TRADING PRINCIPALS HAVE NO EXPERIENCE MANAGING THE DAY-TO-DAY OPERATIONS FOR THE FUND AND HAVE ONLY MANAGED AN EXCHANGE-TRADED FUND THAT RELATES TO A BROAD-BASED COMMODITY INDEX FOR A SHORT PERIOD. BECAUSE THERE ARE NO ACTUAL PERFORMANCE RESULTS OF THE MANAGING OWNER THAT ARE COMPARABLE TO THE INDEX CLOSING LEVELS SET FORTH HEREIN, PROSPECTIVE INVESTORS SHOULD BE PARTICULARLY WARY OF PLACING UNDUE RELIANCE ON THE ANNUAL OR CUMULATIVE INDEX RESULTS.
PowerShares DB G10 Currency Harvest Fund (the Product) is not sponsored or endorsed by Deutsche Bank AG, Deutsche Bank Securities Inc. or any subsidiary or affiliate of Deutsche Bank AG or Deutsche Bank Securities Inc. (collectively, Deutsche Bank). The Deutsche Bank G10 Currency Future Harvest Index® Excess Return (the DB Index) is the exclusive property of Deutsche Bank Securities Inc. Neither Deutsche Bank nor any other party involved in, or related to, making or compiling the DB Index makes any representation or warranty, express or implied, concerning the DB Index, the Product or the advisability of investing in securities generally. Neither Deutsche Bank nor any other party involved in, or related to, making or compiling the DB Index has any obligation to take the needs of Invesco PowerShares Capital Management LLC, the sponsor of the Product, or its clients into consideration in determining, composing or calculating the DB Index. Neither Deutsche Bank nor any other party involved in, or related to, making or compiling the DB Index is responsible for or has participated in the determination of the timing of, prices at, quantities or valuation of the Product. Neither Deutsche Bank nor any other party involved in, or related to, making or compiling the DB Index has any obligation or liability in connection with the administration or trading of the Product.
NEITHER DEUTSCHE BANK NOR ANY OTHER PARTY INVOLVED IN, OR RELATED TO, MAKING OR COMPILING THE DB INDEX, WARRANTS OR GUARANTEES THE ACCURACY AND/OR THE COMPLETENESS OF THE DB INDEX OR ANY DATA INCLUDED THEREIN AND SHALL HAVE NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. NEITHER DEUTSCHE BANK NOR ANY OTHER PARTY INVOLVED IN, OR RELATED TO, MAKING OR COMPILING THE DB INDEX, MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY INVESCO POWERSHARES CAPITAL MANAGEMENT LLC FROM THE USE OF THE DB INDEX OR ANY DATA INCLUDED THEREIN. NEITHER DEUTSCHE BANK NOR ANY OTHER PARTY INVOLVED IN, OR RELATED TO, MAKING OR COMPILING THE DB INDEX, MAKES ANY EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE DB INDEX OR ANY
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DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL DEUTSCHE BANK OR ANY OTHER PARTY INVOLVED IN, OR RELATED TO, MAKING OR COMPILING THE DB INDEX HAVE ANY LIABILITY FOR DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR ANY OTHER DAMAGES OR LOSSES (INCLUDING LOST PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY THEREOF. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY, THERE ARE NO THIRD PARTY BENEFICIARIES OF ANY AGREEMENTS OR ARRANGEMENTS BETWEEN DEUTSCHE BANK AND INVESCO POWERSHARES CAPITAL MANAGEMENT LLC.
No purchaser, seller or holder of the shares of this Product, or any other person or entity, should use or refer to any Deutsche Bank trade name, trademark or service mark to sponsor, endorse, market or promote this Product without first contacting Deutsche Bank to determine whether Deutsche Banks permission is required. Under no circumstances may any person or entity claim any affiliation with Deutsche Bank without the written permission of Deutsche Bank.
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Summary of Items of Value Paid Pursuant to FINRA Rule 2310
Nature of Payment | Recipient | Payor | Amount of Payment | Services Provided | ||||
Selling Commission | Authorized Participants |
Shareholders | No greater than 0.99% of the gross offering proceeds. | Brokering purchases and sales of the Shares and creating and redeeming Baskets. | ||||
Distribution Services Fee | ALPS Distributors |
Managing Owner | Approximately $35,000 per annum, plus any fees or disbursements incurred; not to exceed 0.25% of the gross offering proceeds. | Assisting the Managing Owner and the Administrator with certain functions and duties relating to distribution and marketing, including reviewing and approving marketing materials, consulting with FINRA and ensuring compliance with FINRA marketing rules and maintaining certain books and records pertaining to the Fund. | ||||
Marketing Services Fee | Marketing Agent |
Managing Owner | A range from 0.05%0.345% per annum of the Total Average Net Assets (as defined herein) during each year calculated in U.S. dollars; not to exceed 8.75% of the gross offering proceeds. | Assisting the Managing Owner by providing support to educate institutional investors about the Deutsche Bank indices and to complete governmental or institutional due diligence questionnaires or requests for proposals related to the Deutsche Bank indices. |
For additional details see below.
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Any statement contained in a document that is incorporated by reference will be modified or superseded for all purposes to the extent that a statement contained in this Prospectus (or in any other document that is subsequently filed with the SEC and incorporated by reference) modifies or is contrary to that previous statement. Any statement so modified or superseded will not be deemed a part of this Prospectus except as so modified or superseded.
We will provide to you a copy of the filings that have been incorporated by reference in this Prospectus upon your request, at no cost. Any request may be made by writing or calling us at the following address or telephone number:
Invesco PowerShares Capital Management LLC
3500 Lacey Road, Suite 700
Downers Grove, IL 60515
Telephone: (800) 983-0903
These documents may also be accessed through our website at http://www.invescopowershares.com or as described herein under Additional Information. The information and other content contained on or linked from our website is not incorporated by reference in this Prospectus and should not be considered a part of this Prospectus.
We file annual, quarterly, current reports and other information with the SEC. You may read and copy these materials at the SECs Public Reference Room at 100 F Street, NW, Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an internet site at http://www.sec.gov that contains reports, proxy and information statements and other information regarding the Fund.
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PART TWO
STATEMENT OF ADDITIONAL INFORMATION
POWERSHARES DB G10 CURRENCY HARVEST FUND
Shares of Beneficial Interest
This is a speculative investment which involves the risk of loss.
Past performance is not necessarily indicative of future results.
See The Risks You Face beginning at page 19 in Part One.
THIS PROSPECTUS IS IN TWO PARTS: A DISCLOSURE DOCUMENT
AND A STATEMENT OF ADDITIONAL INFORMATION. THESE
PARTS ARE BOUND TOGETHER, AND BOTH CONTAIN
IMPORTANT INFORMATION. YOU MUST READ THE
STATEMENT OF ADDITIONAL INFORMATION
IN CONJUNCTION WITH THE
DISCLOSURE DOCUMENT.
[ ] [ ], 2014
Invesco PowerShares Capital Management LLC
Managing Owner
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PART TWO
STATEMENT OF ADDITIONAL INFORMATION
TABLE OF CONTENTS
General Information Relating to Invesco Powershares Capital Management LLC |
100 | |||
100 | ||||
100 | ||||
100 | ||||
100 | ||||
101 | ||||
101 | ||||
102 |
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PART II
Information Not Required in Prospectus
Item 14. | Other Expenses of Issuance and Distribution. |
The following expenses reflect the estimated amounts required to prepare and file this Registration Statement (other than selling commissions).
Approximate Amount |
||||
Securities and Exchange Commission Registration Fee* |
$ | 90,268 | ||
Financial Industry Regulatory Authority Filing Fee* |
0 | |||
Printing Expenses |
50,000 | |||
Fees of Independent Registered Public Accounting Firm** |
30,770 | |||
Fees of Counsel |
75,000 | |||
|
|
|||
Total |
$ | 246,038 | ||
|
|
* | Paid in connection with the filing of Form S-3 (File No. 333-170689). |
** | Reflects the sum of $17,500 incurred with original registration statement, $10,750 to PricewaterhouseCoopers LLP and $2,520 to KPMG LLP. |
Item 15. | Indemnification of Directors and Officers. |
Section 4.7 of the Fifth Amended and Restated Declaration of Trust and Trust Agreement of the Fund filed as an exhibit to this Registration Statement and, as amended from time-to-time, or the Trust Agreement, provides for the indemnification of Covered Persons (as such term is defined in the Trust Agreement). Each Covered Person shall be indemnified by the Fund to the fullest extent permitted by law against any losses, judgments, liabilities, expenses, and amounts paid in settlement of any claims sustained by it in connection with its activities for the Fund, except with respect to any matter as to which such Covered Person shall have been finally adjudicated in any action, suit, or other proceeding not to have acted in good faith in the reasonable belief that such Covered Persons action was in the best interest of the Fund and except that no Covered Person shall be indemnified against any liability to the Fund or to the Limited Owners by reason of willful misconduct or gross negligence of such Covered Person. Any such indemnification will only be recoverable from the Trust Estate (as such term is defined in the Trust Agreement). All rights to indemnification permitted therein and payment of associated expenses shall not be affected by the dissolution or other cessation to exist of the Managing Owner, or the withdrawal, adjudication of bankruptcy or insolvency of the Managing Owner, or the filing of a voluntary or involuntary petition in bankruptcy under Title 11 of the Code by or against the Managing Owner. The source of payments made in respect of indemnification under the Trust Agreement shall be the assets of the Fund.
II-1
Item 16. | Exhibits |
The following documents (unless otherwise indicated) are filed herewith and made a part of this Registration Statement:
Exhibit |
Description of Document | |||
4.1 | Form of Fifth Amended and Restated Declaration of Trust and Trust Agreement of the Registrant | |||
4.2 | Form of Participant Agreement1 | |||
5.1 | Form of Opinion of Richards, Layton & Finger as to legality | |||
8.1 | Opinion of Sidley Austin LLP as to income tax matters | |||
23.1 | Consent of Sidley Austin LLP | |||
23.2 | Consent of Richards, Layton & Finger is included as part of Exhibit 5.1 | |||
23.3 | Consent of Sidley Austin LLP as tax counsel is included as part of Exhibit 8.1 | |||
23.4 | Consent of KPMG LLP, Independent Registered Public Accounting Firm | |||
23.5 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm |
1 | Previously filed as an exhibit to Form S-1 on March 16, 2006, and incorporated herein by reference. |
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Item 17. | Undertakings. |
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that:
(A) Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement; and
(B) Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S3 or Form F3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
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as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
(ii) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities under the Securities Act of 1933 may be permitted to directors, officers or controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant
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has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Managing Owner of the Registrant certifies that it has reasonable grounds to believe that the Registrant meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, and State of New York, on the 8th day of December, 2014.
PowerShares DB G10 Currency Harvest Fund | ||
By: |
DB Commodity Services LLC, | |
its Managing Owner | ||
By: |
/s/ Martin Kremenstein | |
Name: Martin Kremenstein | ||
Title: Chief Executive Officer, Chief Investment Officer and Director | ||
By: |
/s/ Michael Gilligan | |
Name: Michael Gilligan | ||
Title: Chief Financial Officer and Director |
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Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 has been signed by the following persons on behalf of the Managing Owner of the Registrant in the capacities and on the date indicated.
DB Commodity Services LLC, Managing Owner Of Registrant |
||||
/s/ Martin Kremenstein Name: Martin Kremenstein |
Chief Executive Officer, Chief Investment Officer and Director (Principal Executive Officer) |
December 8, 2014 | ||
/s/ Michael Gilligan Name: Michael Gilligan |
Chief Financial Officer and Director (Principal Financial Officer) |
December 8, 2014 | ||
/s/ Alex Depetris Name: Alex Depetris |
Chief Operating Officer and Director |
December 8, 2014 |
(Being principal executive officer, the principal financial and accounting officer and all of the managers of the Board of Managers of DB Commodity Services LLC)
DB Commodity Services LLC, Managing Owner Of Registrant and each Co-Registrant |
||||
/s/ Martin Kremenstein Name: Martin Kremenstein |
Chief Executive Officer, Chief Investment Officer and Director (Principal Executive Officer) |
December 8, 2014 | ||
/s/ Michael Gilligan Name: Michael Gilligan |
Chief Financial Officer and Director (Principal Financial Officer) |
December 8, 2014 | ||
/s/ Alex Depetris Name: Alex Depetris |
Chief Operating Officer and Director |
December 8, 2014 |
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Exhibit 4.1
FIFTH AMENDED AND RESTATED
DECLARATION OF TRUST
AND
TRUST AGREEMENT
OF
POWERSHARES DB G10 CURRENCY HARVEST FUND
Dated as of [], 20[]
By and Among
INVESCO POWERSHARES CAPITAL MANAGEMENT LLC
WILMINGTON TRUST COMPANY
and
THE UNITHOLDERS
from time to time hereunder
Table of Contents
Page | ||||||||
ARTICLE I | ||||||||
DEFINITIONS; THE TRUST | 1 | |||||||
SECTION 1.1 | Definitions |
1 | ||||||
SECTION 1.2 | Name |
7 | ||||||
SECTION 1.3 | Delaware Trustee; Business Offices |
7 | ||||||
SECTION 1.4 | Declaration of Trust |
7 | ||||||
SECTION 1.5 | Purposes and Powers |
8 | ||||||
SECTION 1.6 | Tax Treatment |
8 | ||||||
SECTION 1.7 | Legal Title |
9 | ||||||
ARTICLE II | ||||||||
THE TRUSTEE | 9 | |||||||
SECTION 2.1 | Term; Resignation |
9 | ||||||
SECTION 2.2 | Powers |
10 | ||||||
SECTION 2.3 | Compensation and Expenses of the Trustee |
10 | ||||||
SECTION 2.4 | Indemnification |
10 | ||||||
SECTION 2.5 | Successor Trustee |
10 | ||||||
SECTION 2.6 | Liability of Trustee |
11 | ||||||
SECTION 2.7 | Reliance; Advice of Counsel |
12 | ||||||
SECTION 2.8 | Payments to the Trustee |
12 | ||||||
ARTICLE III | ||||||||
UNITS; CAPITAL CONTRIBUTIONS; CREATIONS AND ISSUANCE OF CREATION BASKETS | 13 | |||||||
SECTION 3.1 | General |
13 | ||||||
SECTION 3.2 | Offer of Limited Units |
13 | ||||||
SECTION 3.3 | Procedures for Creation and Issuance of Creation Baskets |
13 | ||||||
SECTION 3.4 | Book-Entry-Only System, Global Security |
15 |
i
SECTION 3.5 | Assets of the Trust |
18 | ||||||
SECTION 3.6 | Liabilities of the Trust |
18 | ||||||
SECTION 3.7 | Distributions |
18 | ||||||
SECTION 3.8 | Voting Rights |
18 | ||||||
SECTION 3.9 | Equality |
18 | ||||||
ARTICLE IV | ||||||||
THE MANAGING OWNER | 19 | |||||||
SECTION 4.1 | Management of the Trust |
19 | ||||||
SECTION 4.2 | Authority of Managing Owner |
19 | ||||||
SECTION 4.3 | Obligations of the Managing Owner |
20 | ||||||
SECTION 4.4 | General Prohibitions |
22 | ||||||
SECTION 4.5 | Liability of Covered Persons |
23 | ||||||
SECTION 4.6 | Fiduciary Duty |
23 | ||||||
SECTION 4.7 | Indemnification of Covered Persons |
24 | ||||||
SECTION 4.8 | Expenses and Limitations Thereon |
25 | ||||||
SECTION 4.9 | Compensation of the Managing Owner |
26 | ||||||
SECTION 4.10 | Other Business of Unitholders |
26 | ||||||
SECTION 4.11 | Voluntary Withdrawal of the Managing Owner |
26 | ||||||
SECTION 4.12 | Authorization of Acts Described in a Registration Statement |
27 | ||||||
SECTION 4.13 | Litigation |
27 | ||||||
ARTICLE V | ||||||||
TRANSFERS OF UNITS | 27 | |||||||
SECTION 5.1 | General Prohibition |
27 | ||||||
SECTION 5.2 | Transfer of Managing Owners General Units |
27 | ||||||
SECTION 5.3 | Transfer of Limited Units |
28 | ||||||
ARTICLE VI | ||||||||
CAPITAL ACCOUNTS; ALLOCATIONS AND DISTRIBUTIONS | 28 | |||||||
SECTION 6.1 | Capital Accounts |
28 | ||||||
SECTION 6.2 | Periodic Closing of Books |
29 |
ii
SECTION 6.3 | Periodic Allocations |
29 | ||||||
SECTION 6.4 | Code Section 754 Adjustments |
30 | ||||||
SECTION 6.5 | Allocation of Profit and Loss for U.S. Federal Income Tax Purposes |
30 | ||||||
SECTION 6.6 | Effect of Section 754 Election |
31 | ||||||
SECTION 6.7 | Allocation of Distributions |
31 | ||||||
SECTION 6.8 | Admissions of Unitholders; Transfers |
31 | ||||||
SECTION 6.9 | Liability for State and Local and Other Taxes |
32 | ||||||
SECTION 6.10 | Consent to Methods |
32 | ||||||
ARTICLE VII | ||||||||
REDEMPTIONS | 32 | |||||||
SECTION 7.1 | Redemption of Redemption Baskets |
32 | ||||||
SECTION 7.2 | Other Redemption Procedures |
34 | ||||||
ARTICLE VIII |
| |||||||
THE LIMITED OWNERS | 34 | |||||||
SECTION 8.1 | No Management or Control; Limited Liability; Exercise of Rights through DTC |
34 | ||||||
SECTION 8.2 | Rights and Duties |
34 | ||||||
SECTION 8.3 | Limitation on Liability |
35 | ||||||
ARTICLE IX | ||||||||
BOOKS OF ACCOUNT AND REPORTS | 36 | |||||||
SECTION 9.1 | Books of Account |
36 | ||||||
SECTION 9.2 | Annual Reports and Monthly Statements |
36 | ||||||
SECTION 9.3 | Tax Information |
37 | ||||||
SECTION 9.4 | Calculation of Net Asset Value |
37 | ||||||
SECTION 9.5 | Maintenance of Records |
37 | ||||||
SECTION 9.6 | Certificate of Trust |
37 |
iii
ARTICLE X | ||||||||
FISCAL YEAR | 37 | |||||||
SECTION 10.1 | Fiscal Year |
37 | ||||||
ARTICLE XI | ||||||||
AMENDMENT OF TRUST AGREEMENT; MEETINGS | 38 | |||||||
SECTION 11.1 | Amendments to this Trust Agreement |
38 | ||||||
SECTION 11.2 | Meetings of the Trust |
39 | ||||||
SECTION 11.3 | Action Without a Meeting |
40 | ||||||
ARTICLE XII | ||||||||
TERM | 40 | |||||||
SECTION 12.1 | Term |
40 | ||||||
ARTICLE XIII | ||||||||
TERMINATION | 40 | |||||||
SECTION 13.1 | Events Requiring Dissolution of the Trust |
40 | ||||||
SECTION 13.2 | Distributions on Dissolution |
41 | ||||||
SECTION 13.3 | Termination; Certificate of Cancellation |
42 | ||||||
ARTICLE XIV | ||||||||
POWER OF ATTORNEY | 42 | |||||||
SECTION 14.1 | Power of Attorney Executed Concurrently |
42 | ||||||
SECTION 14.2 | Effect of Executing and Submitting the Purchase Order Subscription Agreement |
43 | ||||||
SECTION 14.3 | Limitation on Power of Attorney |
43 | ||||||
ARTICLE XV | ||||||||
MISCELLANEOUS | 44 | |||||||
SECTION 15.1 | Governing Law |
44 | ||||||
SECTION 15.2 | Provisions In Conflict With Law or Regulations |
44 |
iv
SECTION 15.3 | Construction |
45 | ||||||
SECTION 15.4 | Notices |
45 | ||||||
SECTION 15.5 | Counterparts |
45 | ||||||
SECTION 15.6 | Binding Nature of Trust Agreement |
45 | ||||||
SECTION 15.7 | No Legal Title to Trust Estate |
45 | ||||||
SECTION 15.8 | Creditors |
45 | ||||||
SECTION 15.9 | Integration |
45 | ||||||
SECTION 15.10 | Goodwill; Use of Name |
45 |
EXHIBIT A | ||||
Certificate of Trust and Certificate of Amendment to Certificate of Trust |
A-1 | |||
EXHIBIT B | ||||
Description of the Index |
B-1 | |||
EXHIBIT C | ||||
Form of Global Certificate |
C-1 | |||
EXHIBIT D | ||||
Form of Participant Agreement |
D-1 |
v
POWERSHARES DB G10 CURRENCY HARVEST FUND
FIFTH AMENDED AND RESTATED
DECLARATION OF TRUST
AND TRUST AGREEMENT
This FIFTH AMENDED AND RESTATED DECLARATION OF TRUST AND TRUST AGREEMENT of POWERSHARES DB G10 CURRENCY HARVEST FUND is made and entered into as of the [] day of [], [], by and among INVESCO POWERSHARES CAPITAL MANAGEMENT LLC, a Delaware limited liability company, WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee, and the UNITHOLDERS from time to time hereunder. This Trust Agreement is effective as of the date hereof, except with regard to Section 1.6(c), which is effective as of January 1, 2012.
* * *
RECITALS
WHEREAS, the Managing Owner and the Trustee entered into the Fourth Amended and Restated Declaration of Trust and Trust Agreement dated as of November 12, 2012 (as amended from time to time, the Existing Agreement); and
WHEREAS, the Managing Owner and the Trustee wish to amend the Existing Agreement pursuant to Section 11.1(b)(iii) thereof.
NOW, THEREFORE, pursuant to Section 11.1(b)(iii) of the Existing Agreement, the Trustee and the Managing Owner hereby amend and restate the Existing Agreement in its entirety as set forth below.
ARTICLE I
DEFINITIONS; THE TRUST
SECTION 1.1. Definitions. As used in this Trust Agreement, the following terms shall have the following meanings unless the context otherwise requires:
Adjusted Capital Account means, as of the last day of a taxable period, a Unitholders Capital Account as maintained pursuant to Section 6.1, increased by any amounts which such Unitholder is obligated to restore pursuant to any provision of this Trust Agreement or is deemed to be obligated to restore pursuant to Treasury Regulation section 1.704-2 and decreased by the amount of all losses and deductions that, as of the end of the taxable period, are reasonably expected to be allocated to such Unitholder in subsequent years under sections 704(e)(2) and 706(d) of the Code and the amount of all distributions that, as of the end of such taxable period, are reasonably expected to be made to such Unitholder in subsequent years in accordance with the terms of this Trust Agreement or otherwise to the extent they exceed offsetting increases to such Capital Account that are reasonably expected to occur during or prior to the year in which such distributions are reasonably expected to be made. The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
Adjusted Property means any property the adjusted basis of which has been adjusted pursuant to Sections 6.1(a) and (b).
Administrator means any Person from time to time engaged to provide administrative services to the Trust pursuant to authority delegated by the Managing Owner.
1
Affiliate An Affiliate of a Person means (i) any Person directly or indirectly owning, controlling or holding with power to vote 10% or more of the outstanding voting securities of such Person, (ii) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by such Person, (iii) any Person, directly or indirectly, controlling, controlled by or under common control of such Person, (iv) any employee, officer, director, member, manager or partner of such Person, or (v) if such Person is an employee, officer, director, member, manager or partner, any Person for which such Person acts in any such capacity.
Basket means a Creation Basket or a Redemption Basket, as the context may require.
Beneficial Owners shall have the meaning assigned to such term in Section 3.4(d).
Book-Tax Disparity means with respect to any item of Adjusted Property, as of the date of any determination, the difference between the adjusted value of such property and the adjusted basis thereof for U.S. federal income tax purposes as of such date. A Unitholders portion of the Trusts Book-Tax Disparities in all of its Adjusted Property will be reflected by the difference between such Unitholders Capital Account balance as maintained pursuant to Section 6.1 and the hypothetical balance of such Unitholders Capital Account computed as if it had been maintained strictly in accordance with U.S. federal income tax accounting principles.
Business Day means any day other than a day when banks in New York City are required or permitted to be closed.
Capital Account means the capital account maintained for a Unitholder pursuant to Section 6.1.
Capital Contributions means the amounts of cash contributed and agreed to be contributed to the Trust by any Participant or by the Managing Owner, as applicable, in accordance with Article III hereof.
CE Act means the Commodity Exchange Act, as amended.
Certain K-1 Unitholders shall have the meaning assigned to such term in Section 1.6(c).
Certificate of Trust means the Certificate of the Trust of the Trust, including all amendments thereto, in the form attached hereto as Exhibit A, filed with the Secretary of State of the State of Delaware pursuant to Section 3810 of the Delaware Trust Statute, as amended from time to time.
CFTC means the Commodity Futures Trading Commission.
Code means the Internal Revenue Code of 1986, as amended.
Commodity Broker means any person who engages in the business of effecting transactions in Currency Contracts for the account of others or for his or her own account.
Continuous Offering means the continuous offering during which additional Limited Units may be sold in Baskets pursuant to this Trust Agreement.
Corporate Trust Office means the principal office at which at any particular time the corporate trust business of the Trustee is administered, which office at the date hereof is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration.
Covered Person means the Managing Owner and their respective Affiliates.
Creation Basket means the minimum number of Limited Units that may be created at any one time, which shall be 200,000 or such greater or lesser number as the Managing Owner may determine from time to time.
2
Creation Basket Capital Contribution means a Capital Contribution made by a Participant in connection with a Purchase Order Subscription Agreement and the creation of a Creation Basket in an amount equal to the product obtained by multiplying (i) the number of Creation Baskets set forth in the relevant Purchase Order Subscription Agreement by (ii) the Net Asset Value per Basket as of closing time of the Exchange or the last to close of the exchanges on which any of the Trusts assets are traded, whichever is later, on the Purchase Order Subscription Date.
Currencies means positions in Currency Contracts, forward contracts, other foreign exchange positions, as well as cash resulting from any of the foregoing positions.
Currency Contract means any futures contract or option thereon providing for the delivery or receipt at a future date of a specified amount of a traded currency at a specified price and delivery point, or any other futures contract or option thereon approved for trading for U.S. persons.
Delaware Trust Statute means the Delaware Statutory Trust Act, Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801 et seq., as the same may be amended from time to time.
Depository means The Depository Trust Company, New York, New York, or such other depository of Limited Units as may be selected by the Managing Owner as specified herein.
Depository Agreement means the Letter of Representations relating to the Trust from the Managing Owner to the Depository, dated as of September 12, 2006 as the same may be amended or supplemented from time to time.
Distributor means any Person from time to time engaged to provide distribution services or related services to the Trust pursuant to authority delegated by the Managing Owner.
DTC shall have the meaning assigned to such term in the legend contained in Section 3.4(b).
DTC Participants shall have the meaning assigned to such term in Section 3.4(c).
DTCC shall have the meaning assigned to such term in Section 3.4(c).
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Event of Withdrawal shall have the meaning set forth in Section 13.1(a) hereof.
Exchange means the NYSE Arca or, if the Limited Units shall cease to be listed on the NYSE Arca and are listed on one or more other exchanges, the exchange on which the Units are principally traded, as determined by the Managing Owner.
Expenses shall have the meaning assigned to such term in Section 2.4.
Fiscal Quarter shall mean each period ending on the last day of each March, June, September and December of each Fiscal Year, or, if the Trust is required by law to have a Fiscal Year other than a calendar year, such other applicable quarterly period.
Fiscal Year shall have the meaning set forth in Article X hereof.
Global Security means the global certificate or certificates for the Trust issued to the Depository as provided in the Depository Agreement, each of which shall be in substantially the form attached hereto as Exhibit B.
Indemnified Parties shall have the meaning assigned to such term in Section 2.4.
3
Index means the Index that the Trust is designed to track as more fully described in Exhibit B hereto, as it may be amended from time to time.
Index Currencies means the underlying Currencies which comprise the Deutsche Bank G10 Currency Future Harvest Index Excess Return from time to time, as described in the Prospectus.
Indirect Participants shall have the meaning assigned to such term in Section 3.4 (c).
Internal Revenue Service or IRS means the U.S. Internal Revenue Service or any successor thereto.
Limited Owner means any person or entity who is or becomes a Beneficial Owner of Limited Units.
Limited Units means Units of the Trust that are owned by a Limited Owner.
Liquidating Trustee shall have the meaning assigned thereto in Section 13.2.
Losses means, in respect of each Fiscal Year of the Trust, losses of the Trust as determined for U.S. federal income tax purposes, and each item of income, gain, loss or deduction entering into the computation thereof.
Management Fee shall have the meaning assigned to such term in Section 4.9.
Managing Owner means Invesco PowerShares Capital Management LLC, or any substitute therefor as provided herein, or any successor thereto by merger or operation of law.
Margin Call means a demand for additional funds after the initial good faith deposit required to maintain a customers account in compliance with the requirements of a particular commodity exchange or of a commodity broker.
Net Asset Value means the total assets of the Trust Estate including, but not limited to, all cash and cash equivalents or other securities less total liabilities of the Trust, each determined on the basis of generally accepted accounting principles in the United States, consistently applied under the accrual method of accounting, including, but not limited to, the extent specifically set forth below:
(a) Net Asset Value shall include any unrealized profit or loss on open Currencies positions and any other credit or debit accruing to the Trust but unpaid or not received by the Trust.
(b) All open currency futures contracts and options traded on a United States exchange are calculated at their then current market value, which shall be based upon the settlement price for that particular currency futures contract and options traded on the applicable United States exchange on the date with respect to which Net Asset Value is being determined; provided, that if a currency futures contract or option traded on a United States exchange could not be liquidated on such day, due to the operation of daily limits or other rules of the exchange upon which that position is traded or otherwise, the Managing Owner may value such currency futures contract or option pursuant to policies the Managing Owner has adopted, which are consistent with industry standards. The current market value of all open currency futures contracts and options traded on a non-United States exchange shall be based upon the settlement price for that particular currency futures contract or option traded on the applicable non-United States exchange on the date with respect to which Net Asset Value is being determined; provided, that if a currency futures contract or options traded on a non-United States exchange could not be liquidated on such day, due to the operation of daily limits (if applicable) or other rules of the exchange upon which that position is traded or otherwise, the Managing Owner may
4
value such currency futures contract pursuant to polices the Managing Owner has adopted, which are consistent with normal industry standards. The current market value of all open forward contracts entered into by the Trust shall be the mean between the last bid and last asked prices quoted by the bank or financial institution which is a party to the contract on the date with respect to which Net Asset Value is being determined; provided, that if such quotations are not available on such date, the mean between the last bid and asked prices on the first subsequent day on which such quotations are available shall be the basis for determining the market value of such forward contract for such day. The Managing Owner may in its discretion (and under extraordinary circumstances, including, but not limited to, periods during which a settlement price of a futures contract is not available due to exchange limit orders or force majeure type events such as systems failure, natural or man-made disaster, act of God, armed conflict, act of terrorism, riot or labor disruption or any similar intervening circumstances) value any asset of the Trust pursuant to such other principles as the Managing Owner deems fair and equitable so long as such principles are consistent with normal industry standards.
(c) Interest earned on the Trusts foreign exchange futures brokerage account shall be accrued at least monthly.
(d) The amount of any distribution made pursuant to Article VI hereof shall be a liability of the Trust from the day when the distribution is declared until it is paid.
Net Asset Value Per Basket means the product obtained by multiplying the Net Asset Value Per Unit by the number of Limited Units comprising a Basket at such time.
Net Asset Value Per Unit means the Net Asset Value divided by the number of Units outstanding on the date of calculation.
NFA means the National Futures Association.
NYSE Arca means NYSE Arca, Inc.
Order Cut-Off Time means 1:00 pm, New York time, on a Business Day.
Organization and Offering Expenses shall have the meaning assigned thereto in Section 4.8(a)(ii).
Participant means a Person that is (1) a registered broker dealer or other securities market participant such as a bank or other financial institution which is not required to register as a broker dealer to engage in securities transactions, (2) a DTC Participant and (3) has entered into a Participant Agreement which, at the relevant time, is in full force and effect.
Participant Agreement means an agreement among the Trust, the Managing Owner and a Participant, substantially in the form of Exhibit D hereto, as it may be amended or supplemented from time to time in accordance with its terms.
Percentage Interest shall be a fraction, the numerator of which is the number of the Unitholders Units and the denominator of which is the total number of Units of the Trust outstanding as of the date of determination.
Person means any natural person, partnership, limited liability company, statutory trust, corporation, association, or other legal entity.
Pit Brokerage Fee shall include floor brokerage, clearing fees, NFA fees and exchange fees.
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Power of Attorney shall have the meaning assigned thereto in Section 14.2.
Profits means, for each Fiscal Year of the Trust, profits of the Trust as determined for U.S. federal income tax purposes, and each item of income, gain, loss or deduction entering into the computation thereof.
Prospectus means the final prospectus and disclosure document of the Trust, constituting a part of a Registration Statement, as filed with the SEC and declared effective thereby, or becoming automatically effective, as applicable, as the same may at any time and from time to time be amended or supplemented.
Purchase Order Subscription Agreement shall have the meaning assigned thereto in Section 3.3(a)(i).
Purchase Order Subscription Date shall have the meaning assigned thereto in Section 3.3(a)(i).
Pyramiding means the use of unrealized profits on existing Currencies to provide margin for additional Currencies positions of the same or related Currencies.
Reconstituted Trust shall have the meaning assigned thereto in Section 13.1(a).
Redemption Basket means the minimum number of Limited Units that may be redeemed pursuant to Section 7.1, which shall be the number of Limited Units constituting a Creation Basket on the relevant Redemption Order Date.
Redemption Distribution means the cash delivered in satisfaction of a redemption of a Redemption Basket as specified in Section 7.1(c).
Redemption Order shall have the meaning assigned thereto in Section 7.1(a).
Redemption Order Date shall have the meaning assigned thereto in Section 7.1(b).
Redemption Settlement Time shall have the meaning assigned thereto in Section 7.1(d).
Registration Statement means a registration statement on Form S-1, or any other form, as applicable as it may be amended from time to time, filed with the SEC pursuant to which the Trust registered the Units, as the same may at any time and from time to time be further amended or supplemented.
SEC means the Securities and Exchange Commission.
Subscribing Participant means a Participant who has submitted a Purchase Order Subscription Agreement to create one or more Units that has not yet been filled or accepted by the Managing Owner.
Suspended Redemption Order shall have the meaning assigned thereto in Section 7.1(d).
Tax Agent shall have the meaning assigned thereto in Section 1.6(c).
Tax Matters Partner shall have the meaning assigned thereto in Section 1.6(b).
Transaction Fee shall have the meaning assigned thereto in Section 3.3(d).
Treasury Regulations means regulations, including proposed or temporary regulations, promulgated under the Code. References herein to specific provisions of proposed or temporary regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.
Trust means PowerShares DB G10 Currency Harvest Fund, a Delaware statutory trust formed pursuant to the Certificate of Trust, the business and affairs of which are governed by this Trust Agreement.
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Trust Agreement means this Fifth Amended and Restated Declaration of Trust and Trust Agreement, as it may at any time or from time to time be amended.
Trustee means Wilmington Trust Company or any substitute therefor as provided herein, acting not in its individual capacity but solely as trustee of the Trust.
Trust Estate means any cash, futures, forward and option contracts, all funds on deposit in the Trusts accounts, and any other property held by the Trust, and all proceeds therefrom, including any rights of the Trust pursuant to any other agreements to which the Trust is a party.
Unitholders means the Managing Owner and all Limited Owners, as holders of Units of the Trust where no distinction is required by the context in which the term is used.
Units means the common units of fractional undivided beneficial interest in the profits, losses, distributions, capital and assets of, and ownership of, the Trust. The Managing Owners Capital Contributions shall be represented by General Units and a Limited Owners Capital Contributions shall be represented by Limited Units.
Unrealized Gain attributable to the Trust property means, as of any date of determination, the excess, if any, of the fair market value of such property as of such date over the propertys adjusted basis for U.S. federal income tax purposes as of the date of determination.
Unrealized Loss attributable to the Trust property means, as of any date of determination, the excess, if any, of the propertys adjusted basis for U.S. federal income tax purposes as of the date of determination over the fair market value of such property as of such date of determination.
SECTION 1.2. Name. The name of the Trust is PowerShares DB G10 Currency Harvest Fund in which name the Trustee and the Managing Owner may engage in the business of the Trust, make and execute contracts and other instruments in the name and on behalf of the Trust and sue and be sued in the name and on behalf of the Trust.
SECTION 1.3. Delaware Trustee; Business Offices.
(a) The sole Trustee of the Trust is Wilmington Trust Company, which is located at the Corporate Trust Office or at such other address in the State of Delaware as the Trustee may designate in writing to the Unitholders. The Trustee shall receive service of process on the Trust in the State of Delaware at the foregoing address. In the event Wilmington Trust Company resigns or is removed as the Trustee, the Trustee of the Trust in the State of Delaware shall be the successor Trustee, subject to Section 2.5.
(b) The principal office of the Trust, and such additional offices as the Managing Owner may establish, shall be located at such place or places inside or outside the State of Delaware as the Managing Owner may designate from time to time in writing to the Trustee and the Unitholders. The principal office of the Trust shall be at c/o Invesco PowerShares Capital Management LLC, 3500 Lacey Road, Suite 700, Downers Grove, IL 60515.
SECTION 1.4. Declaration of Trust. The Trust has received the sum of $1,000 in a bank account in the name of the Trust controlled by the Managing Owner, which funds shall be held in trust, upon and subject to the conditions set forth herein for the use and benefit of the Unitholders. It is the intention of the parties hereto that the Trust shall be a statutory trust under
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the Delaware Trust Statute and that this Trust Agreement shall constitute the governing instrument of the Trust. It is not the intention of the parties hereto to create a general partnership, limited partnership, limited liability company, joint stock association, corporation, bailment or any form of legal relationship other than a Delaware statutory trust except to the extent that the Trust is deemed to constitute a partnership under the Code and applicable state and local tax laws. Nothing in this Trust Agreement shall be construed to make the Unitholders partners or members of a joint stock association except to the extent such Unitholders are deemed to be partners under the Code and applicable state and local tax laws. Notwithstanding the foregoing, it is the intention of the parties hereto to create a partnership among the Unitholders for purposes of taxation under the Code and applicable state and local tax laws. Effective as of the date hereof, the Trustee and the Managing Owner shall have all of the rights, powers and duties set forth herein and in the Delaware Trust Statute with respect to accomplishing the purposes of the Trust. The Trustee has filed the certificate of trust required by Section 3810 of the Delaware Trust Statute in connection with the formation of the Trust under the Delaware Trust Statute.
SECTION 1.5. Purposes and Powers. The purposes of the Trust shall be: (a) directly or indirectly to trade, buy, sell, spread or otherwise acquire, hold or dispose of Index Currencies, including, but not limited to, exchange-traded futures on the Index Currencies with a view to tracking the performance of the Index over time; (b) to enter into forward contracts referencing the Index or one or more of the Index Currencies with a view to tracking the performance of the Index over time; (c) to enter into any lawful transaction and engage in any lawful activities in furtherance of or incidental to the foregoing purposes; and (d) as determined from time to time by the Managing Owner, to engage in any other lawful business or activity for which a statutory trust may be organized under the Delaware Trust Statute. The Trust shall not engage in any other business or activity and shall not acquire or own any other assets or take any of the actions set forth in Section 4.4. The Trust shall have all of the powers specified in Section 15.1 hereof, including, without limitation, all of the powers which may be exercised by a Managing Owner on behalf of the Trust under this Trust Agreement.
SECTION 1.6. Tax Treatment.
(a) Each of the parties hereto, by entering into this Trust Agreement, (i) expresses its intention that the Units will qualify under applicable tax law as interests in a partnership which holds the Trust Estate, (ii) agrees that it will file its own U.S. federal, state and local income, franchise and other tax returns in a manner that is consistent with the classification of the Trust as a partnership in which each of the Unitholders thereof is a partner and (iii) agrees to use reasonable efforts to notify the Managing Owner promptly upon a receipt of any notice from any taxing authority having jurisdiction over such holders of Units with respect to the treatment of the Units as anything other than interests in a partnership.
(b) The Tax Matters Partner (as defined in Section 6231 of the Code and any corresponding state and local tax law) of the Trust initially shall be the Managing Owner. The Tax Matters Partner, at the expense of the Trust, (i) shall prepare or cause to be prepared and filed the Trusts tax returns as a partnership for U.S. federal, state and local tax purposes and (ii) shall be authorized to perform all duties imposed by Section 6221 et seq. of the Code, including, without limitation, (A) the power to conduct all audits and other administrative proceedings with respect to the Trusts tax items; (B) the power to extend the statute of limitations for all
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Unitholders with respect to the Trusts tax items; (C) the power to file a petition with an appropriate U.S. federal court for review of a final administrative adjustment of the Trust; and (D) the power to enter into a settlement with the IRS on behalf of, and binding upon, those Limited Owners having less than 1% interest in the Trust, unless a Limited Owner shall have notified the IRS and the Managing Owner that the Managing Owner shall not act on such Limited Owners behalf. The designation made by each Unitholder of the Trust in this Section 1.6(b) is hereby approved by each Unitholder as an express condition to becoming a Unitholder. Each Unitholder agrees to take any further action as may be required by regulation or otherwise to effectuate such designation. Subject to Section 4.7, the Trust hereby indemnifies, to the full extent permitted by law, the Managing Owner from and against any damages or losses (including attorneys fees) arising out of or incurred in connection with any action taken or omitted to be taken by it in carrying out its responsibilities as Tax Matters Partner, provided such action taken or omitted to be taken does not constitute fraud, negligence or misconduct.
(c) The Beneficial Owners who are of a type, as identified by the nominee through whom their Units are held, that do not ordinarily have U.S. federal tax return filing requirements (collectively, Certain K-1 Unitholders) shall designate the Managing Owner as their tax agent (the Tax Agent) in dealing with the Trust. In light of such designation and pursuant to Treasury Regulation section 1.6031(b)-1T(c), as amended from time to time, the Trust shall provide to the Tax Agent Certain K-1 Unitholders statements (as such term is defined under Treasury Regulation section 1.6031(b)-1T(a)(3)), as amended from time to time).
SECTION 1.7. Legal Title. Legal title to all of the Trust Estate shall be vested in the Trust as a separate legal entity; provided, however, that where applicable law in any jurisdiction requires any part of the Trust Estate to be vested otherwise, the Managing Owner may cause legal title to the Trust Estate or any portion thereof to be held by or in the name of the Managing Owner or any other Person (other than a Unitholder) as nominee.
ARTICLE II
THE TRUSTEE
SECTION 2.1. Term; Resignation.
(a) Wilmington Trust Company has been appointed and hereby agrees to serve as the Trustee of the Trust. The Trust shall have only one Trustee unless otherwise determined by the Managing Owner. The Trustee shall serve until such time as the Managing Owner removes the Trustee or the Trustee resigns and a successor Trustee is appointed by the Managing Owner in accordance with the terms of Section 2.5 hereof.
(b) The Trustee may resign at any time upon the giving of at least sixty (60) days advance written notice to the Trust; provided, that such resignation shall not become effective unless and until a successor Trustee shall have been appointed by the Managing Owner in accordance with Section 2.5 hereof. If the Managing Owner does not act within such sixty (60) day period, the Trustee may apply, at the expense of the Trust, to the Court of Chancery of the State of Delaware for the appointment of a successor Trustee.
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SECTION 2.2. Powers. The Trustee shall have only the rights, obligations and liabilities specifically provided for herein and shall have no implied rights, duties, obligations and liabilities with respect to the business and affairs of the Trust. The Trustee shall have the power and authority to execute and file certificates as required by the Delaware Trust Statute and to accept service of process on the Trust in the State of Delaware. The Trustee shall provide prompt notice to the Managing Owner of its performance of any of the foregoing. The Managing Owner shall reasonably keep the Trustee informed of any actions taken by the Managing Owner with respect to the Trust that would reasonably be expected to affect the rights, obligations or liabilities of the Trustee hereunder or under the Delaware Trust Statute.
SECTION 2.3. Compensation and Expenses of the Trustee. The Trustee shall be entitled to receive from the Managing Owner or an Affiliate of the Managing Owner (including the Trust) reasonable compensation for its services hereunder as set forth in a separate fee agreement and shall be entitled to be reimbursed by the Managing Owner or an Affiliate of the Managing Owner (including the Trust) for reasonable out-of-pocket expenses incurred by it in the performance of its duties hereunder, including without limitation, the reasonable compensation, out-of-pocket expenses and disbursements of counsel and such other agents as the Trustee may employ in connection with the exercise and performance of its rights and duties hereunder.
SECTION 2.4. Indemnification. The Trust shall be liable for, and does hereby indemnify, protect, save and keep harmless the Trustee (in its capacity as Trustee and individually) and its successors, assigns, legal representatives, officers, directors, employees, agents and servants (the Indemnified Parties) from and against any and all liabilities, obligations, losses, damages, penalties, taxes (excluding any taxes payable by the Trustee on or measured by any compensation received by the Trustee for its services hereunder or any indemnity payments received by the Trustee pursuant to this Section 2.4), claims, actions, suits, costs, expenses or disbursements (including legal fees and expenses) of any kind and nature whatsoever (collectively, Expenses), which may be imposed on, incurred by or asserted against the Indemnified Parties in any way relating to or arising out of the formation, operation or termination of the Trust, the execution, delivery and performance of any other agreements to which the Trust is a party or the action or inaction of the Trustee hereunder or thereunder, except for Expenses resulting from the gross negligence or willful misconduct of the Indemnified Parties. The indemnities contained in this Section 2.4 shall survive the termination of this Trust Agreement or the removal or resignation of the Trustee.
SECTION 2.5. Successor Trustee. Upon the resignation or removal of the Trustee, the Managing Owner shall appoint a successor Trustee by delivering a written instrument to the outgoing Trustee. Any successor Trustee must satisfy the requirements of Section 3807 of the Delaware Trust Statute. Any resignation or removal of the Trustee and appointment of a successor Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Trustee to the outgoing Trustee and the Managing Owner and any fees and expenses due to the outgoing Trustee are paid. Following compliance with the preceding sentence, the successor Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Trustee under this Trust Agreement, with like effect as if originally named as Trustee, and the outgoing Trustee shall be discharged of its duties and obligations under this Trust Agreement.
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SECTION 2.6. Liability of Trustee. Except as otherwise provided in this Article II, in accepting the trust created hereby, Wilmington Trust Company acts solely as Trustee hereunder and not in its individual capacity, and all Persons having any claim against Wilmington Trust Company by reason of the transactions contemplated by this Trust Agreement and any other agreement to which the Trust is a party shall look only to the Trust Estate for payment or satisfaction thereof. The Trustee shall not be liable or accountable hereunder to the Trust or to any other Person or under any other agreement to which the Trust is a party, except for the Trustees own gross negligence or willful misconduct. In particular, but not by way of limitation:
(a) The Trustee shall have no liability or responsibility for the validity or sufficiency of this Trust Agreement or for the form, character, genuineness, sufficiency, value or validity of the Trust Estate;
(b) The Trustee shall not be liable for any actions taken or omitted to be taken by it in accordance with the instructions of the Managing Owner or the Liquidating Trustee;
(c) The Trustee shall not have any liability for the acts or omissions of the Managing Owner or its delegatees;
(d) The Trustee shall not be liable for its failure to supervise the performance of any obligations of the Managing Owner or its delegatees or any Participant;
(e) No provision of this Trust Agreement shall require the Trustee to act or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Trustee shall have reasonable grounds for believing that such action, repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(f) Under no circumstances shall the Trustee be liable for indebtedness evidenced by or other obligations of the Trust arising under this Trust Agreement or any other agreements to which the Trust is a party;
(g) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement, or to institute, conduct or defend any litigation under this Trust Agreement or any other agreements to which the Trust is a party, at the request, order or direction of the Managing Owner unless the Managing Owner has offered to Wilmington Trust Company (in its capacity as Trustee and individually) security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by Wilmington Trust Company (including, without limitation, the reasonable fees and expenses of its counsel) therein or thereby;
(h) Notwithstanding anything contained herein to the contrary, the Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (A) require the consent or approval or authorization or order of or the giving of notice to, or the registration with or taking of any action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware, (B) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivision thereof in existence as of the date hereof other than the State of Delaware
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becoming payable by the Trustee or (C) subject the Trustee to personal jurisdiction, other than in the State of Delaware, for causes of action arising from personal acts unrelated to the consummation of the transactions by the Trustee, as the case may be, contemplated hereby; and
(i) To the extent that, at law or in equity, the Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust, the Unitholders or to any other Person, the Trustee acting under this Trust Agreement shall not be liable to the Trust, the Unitholders or to any other Person for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of the Trustee otherwise existing at law or in equity are agreed by the parties hereto to replace such other duties and liabilities of the Trustee.
SECTION 2.7. Reliance; Advice of Counsel.
(a) In the absence of bad faith, the Trustee may conclusively rely upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Trust Agreement in determining the truth of the statements and the correctness of the opinions contained therein, and shall incur no liability to anyone in acting on any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties and need not investigate any fact or matter pertaining to or in any such document; provided, however, that the Trustee shall have examined any certificates or opinions so as to reasonably determine compliance of the same with the requirements of this Trust Agreement. The Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of the determination of which is not specifically prescribed herein, the Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officer of the relevant party, as to such fact or matter, and such certificate shall constitute full protection to the Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the performance of its duties and obligations under this Trust Agreement, the Trustee, at the expense of the Managing Owner or an Affiliate of the Managing Owner (including the Trust) (i) may act directly or through its agents, attorneys, custodians or nominees pursuant to agreements entered into with any of them, and the Trustee shall not be liable for the conduct or misconduct of such agents, attorneys, custodians or nominees if such agents, attorneys, custodians or nominees shall have been selected by the Trustee with reasonable care and (ii) may consult with counsel, accountants and other skilled professionals to be selected with reasonable care by it. The Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the opinion or advice of any such counsel, accountant or other such Persons.
SECTION 2.8. Payments to the Trustee. Any amounts paid to the Trustee pursuant to this Article shall be deemed not to be a part of the Trust Estate immediately after such payment. Any amounts owing to the Trustee under this Trust Agreement shall constitute a claim against the Trust Estate.
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ARTICLE III
UNITS; CAPITAL CONTRIBUTIONS; CREATIONS AND ISSUANCE OF CREATION BASKETS
SECTION 3.1. General. The Managing Owner shall have the power and authority, without Limited Owner approval, to issue Units from time to time as it deems necessary or desirable. The number of Units authorized shall be unlimited, and the Units so authorized may be represented in part by fractional Units, calculated to four decimal places. From time to time, the Managing Owner may divide or combine the Units into a greater or lesser number without thereby changing the proportionate beneficial interests. The Managing Owner may issue Units for such consideration and on such terms as it may determine (or for no consideration if pursuant to a Unit dividend or split-up), all without action or approval of the Limited Owners. All Units when so issued on the terms determined by the Managing Owner shall be fully paid and non-assessable. The Units initially shall be divided into two classes: General Units and Limited Units. Every Unitholder, by virtue of having purchased or otherwise acquired a Unit, shall be deemed to have expressly consented and agreed to be bound by the terms of this Trust Agreement.
SECTION 3.2. Offer of Limited Units. The Trust may offer Limited Units to Participants in Creation Baskets and admit additional Limited Owners and/or accept additional contributions from existing Limited Owners pursuant to the Prospectus, Sections 3.3 and 3.4 of this Trust Agreement and the Participant Agreements.
SECTION 3.3. Procedures for Creation and Issuance of Creation Baskets.
(a) General. The following procedures, as supplemented by the more detailed procedures specified in the Exhibits, annexes, attachments and procedures, as applicable, to the Participant Agreement, which may be amended from time to time in accordance with the provisions of the Participant Agreement (and any such amendment will not constitute an amendment of this Trust Agreement), will govern the Trust with respect to the creation and issuance of additional Creation Baskets. Subject to the limitations upon and requirements for issuance of Creation Baskets stated herein and in such procedures, the number of Creation Baskets which may be issued by the Trust is unlimited.
(i) On any Business Day, a Participant may submit to the Managing Owner a purchase order and subscription agreement to subscribe for and agree to purchase one or more Creation Baskets (such request by a Participant, a Purchase Order Subscription Agreement) in the manner provided in the Participant Agreement. Purchase Order Subscription Agreements must be received by the Order Cut-Off Time on a Business Day (the Purchase Order Subscription Date). The Managing Owner will process Purchase Order Subscription Agreements only from Participants with respect to which the Participant Agreement is in full force and effect. The Managing Owner will maintain and make available at the Trusts principal offices during normal business hours a current list of the Participants with respect to which the Participant Agreement is in full force and effect. The Managing Owner will deliver (or cause to be delivered) a copy of the Prospectus to each Participant prior to its execution and delivery of the Participant Agreement and prior to accepting any Purchase Order Subscription Agreement.
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(ii) Any Purchase Order Subscription Agreement is subject to rejection by the Managing Owner pursuant to Section 3.3(c).
(iii) After accepting a Participants Purchase Order Subscription Agreement, the Managing Owner will issue and deliver Creation Baskets to fill a Participants Purchase Order Subscription Agreement within three Business Days immediately following the Purchase Order Subscription Date, but only if by such time as provided in the Participant Agreement the Managing Owner has received (A) for its own account, the Transaction Fee, and (B) for the account of the Trust the Creation Basket Capital Contribution due from the Participant submitting the Purchase Order Subscription Agreement.
(b) Deposit with the Depository. Upon issuing a Creation Basket pursuant to a Purchase Order Subscription Agreement, the Managing Owner will cause the Trust to deposit the Creation Basket with the Depository in accordance with the Depositorys customary procedures, for credit to the account of the Participant that submitted the Purchase Order Subscription Agreement.
(c) Rejection. The Managing Owner shall have the absolute right, but shall have no obligation, to reject any Purchase Order Subscription Agreement or Creation Basket Capital Contribution: (i) determined by the Managing Owner not to be in proper form; (ii) that the Managing Owner has determined would have adverse tax consequences to the Trust or to the Limited Owners; (iii) the acceptance or receipt of which would, in the opinion of counsel to the Managing Owner, be unlawful; or (iv) if circumstances outside the control of the Managing Owner make it for all practical purposes not feasible to process creations of Creation Baskets. The Managing Owner shall not be liable to any person by reason of the rejection of any Purchase Order Subscription Agreement or Creation Basket Capital Contribution.
(d) Transaction Fee. A non-refundable transaction fee will be payable by a Participant to the Managing Owner for its own account in connection with each Purchase Order Subscription Agreement pursuant to this Section and in connection with each Redemption Order of such Participant pursuant to Section 7.1 (each a Transaction Fee). The Transaction Fee charged in connection with each such creation and redemption shall be initially $500, but may be changed as provided below. Even though a single Purchase Order Subscription Agreement or Redemption Order may relate to multiple Creation Baskets, only a single Transaction Fee will be due for each Purchase Order or Redemption Order. The Transaction Fee may subsequently be waived, modified, reduced, increased or otherwise changed by the Managing Owner, but will not in any event exceed 0.10% of the Net Asset Value Per Basket at the time of creation of a Creation Basket or redemption of a Redemption Basket, as the case may be. The Managing Owner shall notify the Depository of any agreement to change the Transaction Fee and shall not implement any increase for redemptions of outstanding Units until 30 days after the date of that notice. The amount of the Transaction Fee in effect at any given time shall be made available by the Trustee upon request.
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(e) Global Certificate Only. Certificates for Creation Baskets will not be issued, other than the Global Security issued to the Depository. So long as the Depository Agreement is in effect, Creation Baskets will be issued and redeemed and Limited Units will be transferable solely through the book-entry systems of the Depository and the DTC Participants and their Indirect Participants as more fully described in Section 3.4. The Depository may determine to discontinue providing its service with respect to Creation Baskets and Limited Units by giving notice to the Managing Owner pursuant to and in conformity with the provisions of the Depository Agreement and discharging its responsibilities with respect thereto under applicable law. Under such circumstances, the Managing Owner shall take action either to find a replacement for the Depository to perform its functions at a comparable cost and on terms acceptable to the Managing Owner or, if such a replacement is unavailable, to terminate the Trust.
SECTION 3.4. Book-Entry-Only System, Global Security.
(a) Global Security. The Trust and the Managing Owner will enter into the Depository Agreement pursuant to which the Depository will act as securities depository for Limited Units. Limited Units will be represented by the Global Security (which may consist of one certificate or more certificates as required by the Depository), which will be registered, as the Depository shall direct, in the name of Cede & Co., as nominee for the Depository and deposited with, or on behalf of, the Depository. No other certificates evidencing Limited Units will be issued. The Global Security shall be in the form attached hereto as Exhibit C and shall represent such Limited Units as shall be specified therein, and may provide that it shall represent the aggregate amount of outstanding Limited Units from time to time endorsed thereon and that the aggregate amount of outstanding Limited Units represented thereby may from time to time be increased or decreased to reflect creations or redemptions of Baskets. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of outstanding Limited Units represented thereby shall be made in such manner and upon instructions given by the Managing Owner on behalf of the Trust as specified in the Depository Agreement.
(b) Legend. Any Global Security issued to The Depository Trust Company or its nominee shall bear a legend substantially to the following effect: Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (DTC), to the Trust or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is required by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
(c) The Depository. The Depository has advised the Trust and the Managing Owner as follows. The Depository is a limited-purpose trust company organized under the New York Banking Law, a banking organization within the meaning of the New York Banking Law, a member of the U.S. Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code, and a clearing agency registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended. DTC holds and
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provides asset servicing for DTCs participants (the DTC Participants). DTC also facilitates the post-trade settlement among DTC Participants of sales and other securities transactions among the DTC Participants in deposited securities, through electronic computerized book-entry transfers and pledges between DTC Participants accounts. This eliminates the need for physical movement of securities certificates. DTC Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation (DTCC). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a DTC Participant, either directly or indirectly (Indirect Participants).
(d) Beneficial Owners. As provided in the Depository Agreement, the settlement date of any creation, transfer or redemption of Limited Units, the Depository will credit or debit, on its book-entry registration and transfer system, the number of Limited Units so created, transferred or redeemed to the accounts of the appropriate DTC Participants. The accounts to be credited and charged shall be designated by the Managing Owner on behalf of the Trust and each Participant, in the case of a creation or redemption of Baskets. Ownership of beneficial interests in Limited Units will be limited to DTC Participants, Indirect Participants and persons holding interests through DTC Participants and Indirect Participants. Owners of beneficial interests in Limited Units (Beneficial Owners) will be shown on, and the transfer of beneficial ownership by Beneficial Owners will be effected only through, in the case of DTC Participants, records maintained by the Depository and, in the case of Indirect Participants and Beneficial Owners holding through a DTC Participant or an Indirect Participant, through those records or the records of the relevant DTC Participants. Beneficial Owners are expected to receive from or through the broker or bank that maintains the account through which the Beneficial Owner has purchased or sold Limited Units a written confirmation relating to their purchase or sale of Limited Units.
(e) Reliance on Procedures. So long as Cede & Co., as nominee of the Depository, is the registered owner of Limited Units, references herein to the registered or record owners of Limited Units shall mean Cede & Co. and shall not mean the Beneficial Owners of Limited Units. Beneficial Owners of Limited Units will not be entitled to have Limited Units registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered the record or registered holder of Limited Units under this Trust Agreement. Accordingly, to exercise any rights of a holder of Limited Units under this Trust Agreement, a Beneficial Owner must rely on the procedures of the Depository and, if such Beneficial Owner is not a DTC Participant, on the procedures of each DTC Participant or Indirect Participant through which such Beneficial Owner holds its interests.
The Trust and the Managing Owner understand that under existing industry practice, if the Trust requests any action of a Beneficial Owner, or a Beneficial Owner desires to take any action that the Depository, as the record owner of all outstanding Limited Units of the Trust, is entitled to take, in the case of a Trustee request, the Depository will notify the DTC Participants regarding such request, such DTC Participants will in turn notify each Indirect Participant holding Limited Units through it, with each successive Indirect Participant continuing to notify each person holding Limited Units through it until the request has reached the Beneficial Owner, and in the case of a
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request or authorization to act being sought or given by a Beneficial Owner, such request or authorization is given by the Beneficial Owner and relayed back to the Trust through each Indirect Participant and DTC Participant through which the Beneficial Owners interest in the Limited Units is held.
(f) Communication between the Trust and the Beneficial Owners. As described above, the Trust will recognize the Depository or its nominee as the owner of all Limited Units for all purposes except as expressly set forth in this Trust Agreement. Conveyance of all notices, statements and other communications to Beneficial Owners will be effected as follows. Pursuant to the Depository Agreement, the Depository is required to make available to the Trust upon request and for a fee to be charged to the Trust a listing of the Limited Unit holdings of each DTC Participant. The Trust shall inquire of each such DTC Participant as to the number of Beneficial Owners holding Limited Units, directly or indirectly, through such DTC Participant. The Trust shall provide each such DTC Participant with sufficient copies of such notice, statement or other communication, in such form, number and at such place as such DTC Participant may reasonably request, in order that such notice, statement or communication may be transmitted by such DTC Participant, directly or indirectly, to such Beneficial Owners. In addition, the Trust shall pay to each such DTC Participant an amount as reimbursement for the expenses attendant to such transmittal, all subject to applicable statutory and regulatory requirements.
(g) Distributions. Distributions on Limited Units pursuant to Section 3.7 shall be made to the Depository or its nominee, Cede & Co., as the registered owner of all Limited Units. The Trust and the Managing Owner expect that the Depository or its nominee, upon receipt of any payment of distributions in respect of Limited Units, shall credit immediately DTC Participants accounts with payments in amounts proportionate to their respective beneficial interests in Limited Units as shown on the records of the Depository or its nominee. The Trust and the Managing Owner also expect that payments by DTC Participants to Indirect Participants and Beneficial Owners held through such DTC Participants and Indirect Participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in a street name, and will be the responsibility of such DTC Participants and Indirect Participants. None of the Trust, the Trustee or the Managing Owner will have any responsibility or liability for any aspects of the records relating to or notices to Beneficial Owners, or payments made on account of beneficial ownership interests in Limited Units, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests or for any other aspect of the relationship between the Depository and the DTC Participants or the relationship between such DTC Participants and the Indirect Participants and Beneficial Owners owning through such DTC Participants or Indirect Participants or between or among the Depository, any Beneficial Owner and any person by or through which such Beneficial Owner is considered to own Limited Units.
(h) Limitation of Liability. Each Global Security to be issued hereunder is executed and delivered solely on behalf of the Trust by the Managing Owner, as Managing Owner, in the exercise of the powers and authority conferred and vested in it by this Trust Agreement. The representations, undertakings and agreements made on the part of the Trust in each Global Security are made and intended not as personal representations, undertakings and agreements by the Managing Owner or the Trustee, but are made and intended for the purpose of binding only the Trust. Nothing in the Global Security shall be construed as creating any liability of the Managing Owner or the Trustee, individually or personally, to fulfill any representation, undertaking or agreement other than as provided in this Trust Agreement.
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(i) Successor Depository. If a successor to The Depository Trust Company shall be employed as Depository hereunder, the Trust and the Managing Owner shall establish procedures acceptable to such successor with respect to the matters addressed in this Section 3.4.
SECTION 3.5. Assets of the Trust. All consideration received by the Trust for the issue or sale of Units together with all of the Trust Estate in which such consideration is invested or reinvested, all income, earnings, profits, and proceeds thereof, including any proceeds derived from the sale, exchange or liquidation of such assets, and any funds or payments derived from any reinvestment of such proceeds in whatever form the same may be, shall irrevocably belong to the Trust for all purposes, subject only to the rights of creditors of the Trust and except as may otherwise be required by applicable tax laws, and shall be so recorded upon the books of account of the Trust.
SECTION 3.6. Liabilities of the Trust. The Trust Estate shall be charged with the liabilities of the Trust. The Managing Owner shall have full discretion, to the extent not inconsistent with applicable law, to determine which items shall be treated as income and which items as capital, and each such determination and allocation shall be conclusive and binding upon the Unitholders.
SECTION 3.7. Distributions.
(a) Distributions on Units may be paid with such frequency as the Managing Owner may determine, which may be daily or otherwise, to the Unitholders, from such of the income and capital gains, accrued or realized, from the Trust Estate, after providing for actual and accrued liabilities. All distributions on Units thereof shall be distributed pro rata to the Unitholders in proportion to the total outstanding Units held by such Unitholders at the date and time of record established for the payment of such distribution and in accordance with Section 3.4(g). Such distributions may be made in cash or Units as determined by the Managing Owner or pursuant to any program that the Managing Owner may have in effect at the time for the election by each Unitholder of the mode of the making of such distribution to that Unitholder.
(b) The Units shall represent units of beneficial interest in the Trust Estate. Each Unitholder shall be entitled to receive its pro rata share of distributions of income and capital gains in accordance with Section 3.7(a).
SECTION 3.8. Voting Rights. Notwithstanding any other provision hereof, on each matter submitted to a vote of the Unitholders, each Unitholder shall be entitled to a proportionate vote based upon the product of the Net Asset Value Per Unit multiplied by the number of Units, or fraction thereof, standing in its name on the books of the Trust in accordance with Section 3.4(d).
SECTION 3.9. Equality. Except as provided herein, all Units shall represent an equal proportionate beneficial interest in the assets of the Trust subject to the liabilities of the Trust, and each Unit shall be equal to each other Unit. The Managing Owner may from time to time divide or combine the Units into a greater or lesser number of Units without thereby changing the proportionate beneficial interest in the assets of the Trust or in any way affecting the rights of Unitholders.
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ARTICLE IV
THE MANAGING OWNER
SECTION 4.1. Management of the Trust. Pursuant to Section 3806(b)(7) of the Delaware Trust Statute, the Trust shall be managed by the Managing Owner and the conduct of the Trusts business shall be controlled and conducted solely by the Managing Owner in accordance with this Trust Agreement. The Managing Owner may delegate as provided herein, the duty and authority to manage the business and affairs of the Trust.
SECTION 4.2. Authority of Managing Owner. In addition to and not in limitation of any rights and powers conferred by law or other provisions of this Trust Agreement, and except as limited, restricted or prohibited by the express provisions of this Trust Agreement or the Delaware Trust Statute, the Managing Owner shall have and may exercise on behalf of the Trust, all powers and rights necessary, proper, convenient or advisable to effectuate and carry out the purposes, business and objectives of the Trust, which shall include, without limitation, the following:
(a) To enter into, execute, deliver and maintain, and to cause the Trust to perform its obligations under, contracts, agreements and any or all other documents and instruments, and to do and perform all such things as may be in furtherance of Trust purposes or necessary or appropriate for the offer and sale of the Units and the conduct of Trust activities, including, but not limited to, contracts with third parties for commodity brokerage services and/or administrative services, provided, however, that such services may be performed by an Affiliate or Affiliates of the Managing Owner so long as the Managing Owner has made a good faith determination that: (A) the Affiliate which it proposes to engage to perform such services is qualified to do so (considering the prior experience of the Affiliate or the individuals employed thereby); (B) the terms and conditions of the agreement pursuant to which such Affiliate is to perform services for the Trust are no less favorable to the Trust than could be obtained from equally-qualified unaffiliated third parties; and (C) the maximum period covered by the agreement pursuant to which such affiliate is to perform services for the Trust shall not exceed one year, and such agreement shall be terminable without penalty upon sixty (60) days prior written notice by the Trust.
(b) To establish, maintain, deposit into, sign checks and/or otherwise draw upon accounts on behalf of the Trust with appropriate banking and savings institutions, and execute and/or accept any instrument or agreement incidental to the Trusts business and in furtherance of its purposes, any such instrument or agreement so executed or accepted by the Managing Owner in the Managing Owners name shall be deemed executed and accepted on behalf of the Trust by the Managing Owner;
(c) To deposit, withdraw, pay, retain and distribute the Trust Estate or any portion thereof in any manner consistent with the provisions of this Trust Agreement;
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(d) To supervise the preparation and filing of a Registration Statement and any supplements and amendments thereto and a Prospectus;
(e) To pay or authorize the payment of distributions to the Unitholders and expenses of the Trust;
(f) To make any elections on behalf of the Trust under the Code, or any other applicable U.S. federal or state tax law as the Managing Owner shall determine to be in the best interests of the Trust; and
(g) In the sole discretion of the Managing Owner, to admit an Affiliate or Affiliates of the Managing Owner as additional Managing Owners. Notwithstanding the foregoing, the Managing Owner may not admit Affiliate(s) of the Managing Owner as an additional Managing Owner if it has received notice of its removal as a Managing Owner, pursuant to Section 8.2(d) hereof.
SECTION 4.3. Obligations of the Managing Owner. In addition to the obligations expressly provided by the Delaware Trust Statute or this Trust Agreement, the Managing Owner shall:
(a) Devote such of its time to the business and affairs of the Trust as it shall, in its discretion exercised in good faith, determine to be necessary to conduct the business and affairs of the Trust for the benefit of the Trust and the Limited Owners;
(b) Execute, file, record and/or publish all certificates, statements and other documents and do any and all other things as may be appropriate for the formation, qualification and operation of the Trust and for the conduct of its business in all appropriate jurisdictions;
(c) Retain independent public accountants to audit the accounts of the Trust;
(d) Employ attorneys to represent the Trust;
(e) Select the Trusts Trustee, Administrator and clearing brokers, and any other service provider;
(f) Use its best efforts to maintain the status of the Trust as a statutory trust for state law purposes, and as a partnership for U.S. federal income tax purposes;
(g) Monitor the brokerage fees charged to the Trust, and the services rendered by futures commission merchants to the Trust, to determine whether the fees paid by, and the services rendered to, the Trust for futures brokerage are at competitive rates and are the best price and services available under the circumstances, and if necessary, renegotiate the brokerage fee structure to obtain such rates and services for the Trust. No material change related to brokerage fees shall be made except upon sixty (60) Business Days prior notice to the Limited Owners, which notice shall include a description of the Limited Owners voting rights as set forth in Section 8.2 hereof and a description of the Limited Owners redemption rights as set forth in Section 7.1 hereof;
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(h) Have fiduciary responsibility for the safekeeping and use of the Trust Estate, whether or not in the Managing Owners immediate possession or control, and the Managing Owner will not employ or permit others to employ such funds or assets (including any interest earned thereon as provided for in the Prospectus) in any manner except for the benefit of the Trust, including, among other things, the utilization of any portion of the Trust Estate as compensating balances for the exclusive benefit of the Managing Owner.
(i) Enter into a Participant Agreement with each Participant and discharge the duties and responsibilities of the Trust and the Managing Owner thereunder;
(j) Receive from Participants and process properly submitted Purchase Order Subscription Agreements, as described in Section 3.3(a);
(k) In connection with Purchase Order Subscription Agreements, receive Creation Basket Capital Contributions from Participants;
(l) In connection with Purchase Order Subscription Agreements, deliver or cause the delivery of Creation Baskets to the Depository for the account of the Participant submitting a Purchase Order Subscription Agreement for which the Managing Owner has received the requisite Transaction Fee and the Trust has received the requisite Creation Basket Capital Contribution, as described in Section 3.3(a)(iii);
(m) Receive from Participants and process properly submitted Redemption Orders, as described in Section 7.1(a), or as may from time to time be permitted by Section 7.2;
(n) In connection with Redemption Orders, receive from the redeeming Participant through the Depository, and thereupon cancel or cause to be cancelled, Limited Units corresponding to the Redemption Baskets to be redeemed as described in Section 7.1, or as may from time to time be permitted by Section 7.2;
(o) Interact with the Depository as required;
(p) Delegate those of its duties hereunder as it shall determine from time to time to one or more Administrators or Distributors, as applicable;
(q) In its sole discretion, cause the Trust to do one or more of the following: make, refrain from making, or once having made, to revoke, the election referred to in section 754 of the Code, and any similar election provided by state or local law, or any similar provision enacted in lieu thereof;
(r) In its sole discretion, cause the Trust to do one or more of the following: make, refrain from making, or once having made, to revoke the election by a qualified fund under Code section 988(c)(1)(E)(iii)(V), and any similar election provided by state or local law, or any similar provision enacted in lieu thereof; and
(s) Perform such other services as the Managing Owner believes that the Trust may from time to time require.
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SECTION 4.4. General Prohibitions. The Trust shall not:
(a) Redeem the Units other than to fund a redemption request from a Participant;
(b) Borrow money from or loan money to any Unitholder (including the Managing Owner) or other Person, except that the foregoing is not intended to prohibit (i) the deposit on margin with respect to the initiation and maintenance of Currencies, or (ii) obtaining lines of credit for the trading of forward contracts; provided, however, that the Trust is prohibited from incurring any indebtedness on a non-recourse basis;
(c) Create, incur, assume or suffer to exist any lien, mortgage, pledge conditional sales or other title retention agreement, charge, security interest or encumbrance, except (i) the right and/or obligation of a Commodity Broker to close out sufficient Currencies positions of the Trust so as to restore the Trusts account to proper margin status in the event that the Trust fails to meet a Margin Call, (ii) liens for taxes not delinquent or being contested in good faith and by appropriate proceedings and for which appropriate reserves have been established, (iii) deposits or pledges to secure obligations under workmens compensation, social security or similar laws or under unemployment insurance, (iv) deposits or pledges to secure contracts (other than contracts for the payment of money), leases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of business, or (v) mechanics, warehousemens, carriers, workmens, materialmens or other like liens arising in the ordinary course of business with respect to obligations which are not due or which are being contested in good faith, and for which appropriate reserves have been established if required by generally accepted accounting principles, and liens arising under ERISA;
(d) Commingle its assets with those of any other Person, except to the extent permitted under the CE Act and the regulations promulgated thereunder;
(e) Engage in Pyramiding of its Currencies positions; provided, however, that the Managing Owner may take into account open trade equity positions in determining generally whether to require additional Index Currencies positions;
(f) Permit rebates to be received by the Managing Owner or any Affiliate of the Managing Owner, or permit the Managing Owner or any Affiliate of the Managing Owner to engage in any reciprocal business arrangements which would circumvent the foregoing prohibition;
(g) Permit the Managing Owner to share in any portion of brokerage fees related to commodity brokerage services paid with respect to the purchase or sale of Currencies;
(h) Enter into any contract with the Managing Owner or an Affiliate of the Managing Owner (except for selling agreements for the sale of Units) which has a term of more than one year and which does not provide that it may be canceled by the Trust without penalty on sixty (60) days prior written notice or for the provision of goods and services, except at rates and terms at least as favorable as those which may be obtained from third parties in arms-length negotiations;
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(i) Permit churning of its currency trading account(s) for the purpose of generating excess brokerage commissions;
(j) Enter into any exclusive brokerage contract; or
(k) Cause the Trust to elect to be classified as an association taxable as a corporation for U.S. federal income tax purposes.
SECTION 4.5. Liability of Covered Persons. A Covered Person shall have no liability to the Trust or to any Unitholder, other Covered Person, or other Person for any loss suffered by the Trust which arises out of any action or inaction of such Covered Person if such Covered Person, in good faith, determined that such course of conduct was in the best interest of the Trust and such course of conduct did not constitute gross negligence or willful misconduct of such Covered Person. Subject to the foregoing, neither the Managing Owner nor any other Covered Person shall be personally liable for the return or repayment of all or any portion of the capital or profits of any Limited Owner or assignee thereof, it being expressly agreed that any such return of capital or profits made pursuant to this Trust Agreement shall be made solely from the assets of the Trust without any rights of contribution from the Managing Owner or any other Covered Person. A Covered Person shall not be liable for the conduct or misconduct of any Administrator or other delegatee selected by the Managing Owner with reasonable care.
SECTION 4.6. Fiduciary Duty.
(a) To the extent that, at law or in equity, the Managing Owner has duties (including fiduciary duties) and liabilities relating thereto to the Trust, the Unitholders or to any other Person, the Managing Owner acting under this Trust Agreement shall not be liable to the Trust, the Unitholders or to any other Person for its good faith reliance on the provisions of this Trust Agreement subject to the standard of care in Section 4.5 herein. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of the Managing Owner otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of the Managing Owner. Any material changes in the Trusts basic investment policies or structure shall occur only upon the written approval or affirmative vote of Limited Owners holding Units equal to at least a majority (over 50%) of the Net Asset Value (excluding Units held by the Managing Owner and its Affiliates) of the Trust pursuant to Section 11.1(a) below.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between the Managing Owner or any of its Affiliates, on the one hand, and the Trust or any Unitholder or any other Person, on the other hand; or
(ii) whenever this Trust Agreement or any other agreement contemplated herein or therein provides that the Managing Owner shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust, any Unitholder or any other Person,
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the Managing Owner shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Managing Owner, the resolution, action or terms so made, taken or provided by the Managing Owner shall not constitute a breach of this Trust Agreement or any other agreement contemplated herein or of any duty or obligation of the Managing Owner at law or in equity or otherwise.
(c) Notwithstanding anything herein to the contrary, the Managing Owner and any Affiliate of the Managing Owner may engage in or possess an interest in other profit-seeking or business ventures of any nature or description, independently or with others, whether or not such ventures are competitive with the Trust and the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to the Managing Owner. Notwithstanding anything herein to the contrary, if the Managing Owner acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Trust, it shall have no duty to communicate or offer such opportunity to the Trust, and the Managing Owner shall not be liable to the Trust or to the Unitholders for breach of any fiduciary or other duty by reason of the fact that the Managing Owner pursues or acquires for, or directs such opportunity to another Person or does not communicate such opportunity or information to the Trust. Neither the Trust nor any Unitholder shall have any rights or obligations by virtue of this Trust Agreement or the trust relationship created hereby in or to such independent ventures or the income or profits or losses derived therefrom, and the pursuit of such ventures, even if competitive with the activities of the Trust, shall not be deemed wrongful or improper. Except to the extent expressly provided herein, the Managing Owner may engage or be interested in any financial or other transaction with the Trust, the Unitholders or any Affiliate of the Trust or the Unitholders.
SECTION 4.7. Indemnification of Covered Persons.
(a) Each Covered Person shall be indemnified by the Trust to the fullest extent permitted by law against any losses, judgments, liabilities, expenses, and amounts paid in settlement of any claims sustained by it in connection with its activities for the Trust, except with respect to any matter as to which such Covered Person shall have been finally adjudicated in any action, suit, or other proceeding not to have acted in good faith in the reasonable belief that such Covered Persons action was in the best interest of the Trust and except that no Covered Person shall be indemnified against any liability to the Trust or to the Limited Owners by reason of willful misconduct or gross negligence of such Covered Person. Any such indemnification will only be recoverable from the Trust Estate. All rights to indemnification permitted herein and payment of associated expenses shall not be affected by the dissolution or other cessation to exist of the Managing Owner, or the withdrawal, adjudication of bankruptcy or insolvency of the Managing Owner, or the filing of a voluntary or involuntary petition in bankruptcy under Title 11 of the Code by or against the Managing Owner. The source of payments made in respect of indemnification under the Trust Agreement shall be the assets of the Trust.
(b) The Trust shall not incur the cost of that portion of any insurance which insures any party against any liability, the indemnification of which is herein prohibited.
(c) Expenses incurred in defending a threatened or pending civil, administrative or criminal action suit or proceeding against the Managing Owner shall be paid by
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the Trust in advance of the final disposition of such action, suit or proceeding, if (i) the legal action relates to the performance of duties or services by the Managing Owner on behalf of the Trust; and (ii) the Managing Owner undertakes to repay the advanced funds with interest to the Trust in cases in which it is not entitled to indemnification under this Section 4.7.
(d) The term Managing Owner as used only in this Section 4.7 shall include, in addition to the Managing Owner, any other Covered Person performing services on behalf of the Trust and acting within the scope of the Managing Owners authority as set forth in this Trust Agreement.
(e) In the event the Trust is made a party to any claim, dispute, demand or litigation or otherwise incurs any loss, liability, damage, cost or expense as a result of or in connection with any Limited Owners (or assignees) obligations or liabilities unrelated to Trust business, such Limited Owner (or assignees cumulatively) shall indemnify, defend, hold harmless, and reimburse the Trust for all such loss, liability, damage, cost and expense incurred, including attorneys and accountants fees.
SECTION 4.8. Expenses and Limitations Thereon.
(a) Organization and Offering Expenses.
(i) The Managing Owner or an Affiliate of the Managing Owner shall be responsible for the payment of all Organization and Offering Expenses as defined in Section 4.8(a)(ii).
(ii) Organization and Offering Expenses shall mean those expenses incurred in connection with the formation, qualification and registration of the Trust and the Units and in offering, distributing and processing the Units under applicable U.S. federal and state law, as applicable, and any other expenses actually incurred and, directly or indirectly, related to the organization of the Trust or the continuous offering of the Units, including, but not limited to, expenses such as: (A) initial and ongoing registration fees, filing fees, escrow fees and taxes, (B) costs of preparing, printing (including typesetting), amending, supplementing, mailing and distributing the Registration Statement, the Exhibits thereto and the Prospectus, (C) the costs of qualifying, printing (including typesetting), amending, supplementing, mailing and distributing sales materials used in connection with the offering and issuance of the Units during the Continuous Offering, (D) travel, telegraph, telephone and other expenses in connection with the offering and issuance of the Units during the Continuous Offering, (E) accounting, auditing and legal fees (including disbursements related thereto) incurred in connection therewith. However, such Organization and Offering Expenses shall exclude any extraordinary expenses (including, but not limited to, legal claims and liabilities and litigation costs and any permitted indemnification associated therewith) related thereto.
(b) Routine Operational, Administrative and Other Ordinary and Extraordinary Fees and Expenses. All ongoing charges, costs and expenses of the Trusts
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operation, including, but not limited to, the routine expenses associated with (i) preparation of monthly, quarterly, annual and other reports required by applicable U.S. federal and state regulatory authorities; (ii) Trust meetings and preparing, printing and mailing of proxy statements and reports to Unitholders; (iii) the payment of any distributions related to redemption of Units; (iv) routine services of the Trustee, legal counsel and independent accountants; (v) routine accounting and bookkeeping services, whether performed by an outside service provider or by Affiliates of the Managing Owner; (vi) postage and insurance; (vii) client relations and services; (viii) computer equipment and system maintenance; and (ix) required payments to any other service providers of the Trust pursuant to any applicable contract shall be billed to and/or paid by the Managing Owner. The Management Fee and extraordinary fees and expenses (including, but not limited to, legal claims and liabilities and litigation costs and any indemnification related thereto) shall be billed to and/or paid by the Trust. The Trust shall pay all its extraordinary fees and expenses (as defined in the next sentence), if any, of the Trust generally, if any, as determined by the Managing Owner. Extraordinary fees and expenses shall include, but not be limited to, fees and expenses which are non-recurring and unusual in nature, such as legal claims and liabilities and litigation costs or indemnification or other unanticipated expenses. Extraordinary fees and expenses shall also include material expenses which are not currently anticipated obligations of the Trust or of managed futures trusts in general. Routine operational, administrative and other ordinary expenses will not be deemed extraordinary fees and expenses.
(c) Brokerage Commissions and Fees. The Trust shall pay to the Commodity Broker all brokerage commissions, including applicable exchange fees, NFA fees, give-up fees, pit brokerage fees and other transaction related fees and expenses charged in connection with its trading activities.
(d) The Managing Owner or any Affiliate of the Managing Owner may only be reimbursed for the actual cost to the Managing Owner or such Affiliate of any expenses which it advances on behalf of the Trust for which payment the Trust is responsible. In addition, payment to the Managing Owner or such Affiliate for indirect expenses incurred in performing services for the Trust in its capacity as the managing owner of the Trust, such as salaries and fringe benefits of officers and directors, rent or depreciation, utilities and other administrative items generally falling within the category of the Managing Owners overhead, is prohibited.
SECTION 4.9. Compensation of the Managing Owner. The Managing Owner shall be entitled to compensation for its services as managing owner of the Trust as set forth in the Prospectus (the Management Fee).
SECTION 4.10. Other Business of Unitholders. Except as otherwise specifically provided herein, any of the Unitholders and any shareholder, officer, director, employee or other person holding a legal or beneficial interest in an entity which is a Unitholder, may engage in or possess an interest in other business ventures of every nature and description, independently or with others, and the pursuit of such ventures, even if competitive with the business of the Trust, shall not be deemed wrongful or improper.
SECTION 4.11. Voluntary Withdrawal of the Managing Owner. The Managing Owner may withdraw voluntarily as the Managing Owner of the Trust only upon one hundred
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and twenty (120) days prior written notice to all Limited Owners and the Trustee. If the withdrawing Managing Owner is the last remaining Managing Owner, Limited Owners holding Units equal to at least a majority (over 50%) of the Trusts aggregate Net Asset Value (excluding Units held by the Managing Owner) may vote to elect and appoint, effective as of a date on or prior to the withdrawal, a successor Managing Owner who shall carry on the business of the Trust. In the event of its removal or withdrawal, the Managing Owner shall be entitled to a redemption of its Units at their respective Net Asset Value. If the Managing Owner withdraws and a successor Managing Owner is named, the withdrawing Managing Owner shall pay all expenses as a result of its withdrawal.
SECTION 4.12. Authorization of Acts Described in a Registration Statement. Each Limited Owner (or any permitted assignee thereof) hereby agrees that the Trust, the Managing Owner and the Trustee are authorized to execute, deliver and perform the agreements, acts, transactions and matters contemplated hereby or described in or contemplated by the Registration Statements on behalf of the Trust without any further act, approval or vote of the Limited Owners of the Trust, notwithstanding any other provision of this Trust Agreement, the Delaware Trust Statute or any applicable law, rule or regulation.
SECTION 4.13. Litigation. The Managing Owner is hereby authorized to prosecute, defend, settle or compromise actions or claims at law or in equity as may be necessary or proper to enforce or protect the Trusts interests. The Managing Owner shall satisfy any judgment, decree or decision of any court, board or authority having jurisdiction or any settlement of any suit or claim prior to judgment or final decision thereon, first, out of any insurance proceeds available therefor, next, out of the Trusts assets and, thereafter, out of the assets (to the extent that it is permitted to do so under the various other provisions of this Trust Agreement) of the Managing Owner.
ARTICLE V
TRANSFERS OF UNITS
SECTION 5.1. General Prohibition. To the fullest extent permitted by law, a Limited Owner may not sell, assign, transfer or otherwise dispose of, or pledge, hypothecate or in any manner encumber any or all of his Units or any part of his right, title and interest in the capital or profits in the Trust except as permitted in this Article V and any act in violation of this Article V shall not be binding upon or recognized by the Trust (regardless of whether the Managing Owner shall have knowledge thereof), unless approved in writing by the Managing Owner.
SECTION 5.2. Transfer of Managing Owners General Units.
(a) Upon an Event of Withdrawal (as defined in Section 13.1(a)), the Units then owned by the Managing Owner shall be purchased by the Trust for a purchase price in cash equal to the Net Asset Value thereof. The Managing Owner will not cease to be a Managing Owner of the Trust merely upon the occurrence of its making an assignment for the benefit of creditors, filing a voluntary petition in bankruptcy, filing a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, filing an answer or other pleading admitting or failing
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to contest material allegations of a petition filed against it in any proceeding of this nature or seeking, consenting to or acquiescing in the appointment of a trustee, receiver or liquidator for itself or of all or any substantial part of its properties.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Managing Owner shall be permitted to transfer any Units it may own to any Person, whether or not an Affiliate of the Managing Owner, and/or to appoint a successor or additional Managing Owner, whether or not an Affiliate of the Managing Owner, at any time without restriction. Without limiting the foregoing, none of the transactions referenced in the preceding sentence shall be deemed to be a voluntary withdrawal for purposes of Section 4.11 or an Event of Withdrawal or assignment of Units for purposes of Sections 5.2(a) or 5.2(c).
(c) Upon assignment of all of its Units, the Managing Owner shall not cease (x) to be a Managing Owner of the Trust, or (y) to have the power to exercise any rights or powers as a Managing Owner until the withdrawal of the Managing Owner and until one or more successor Managing Owners shall exist who will carry on the business of the Trust.
SECTION 5.3. Transfer of Limited Units. Beneficial Owners that are not DTC Participants may transfer Limited Units by instructing the DTC Participant or Indirect Participant holding the Limited Units for such Beneficial Owner in accordance with standard securities industry practice. Beneficial Owners that are DTC Participants may transfer Limited Units by instructing the Depository in accordance with the rules of the Depository and standard securities industry practice.
ARTICLE VI
CAPITAL ACCOUNTS; ALLOCATIONS AND DISTRIBUTIONS
SECTION 6.1. Capital Accounts. The Trust shall maintain for each Unitholder (which includes beneficial owners of Units where information regarding the identity of such owner has been furnished to the Trust in accordance with section 6031(c) of the Code or any other method acceptable to the Managing Owner in its sole discretion) owning a Unit a separate Capital Account with respect to such Unit in accordance with the rules of Treasury Regulation section 1.704-1(b)(2)(iv). The initial balance of each Unitholders book capital account shall be the amount of its initial Capital Contribution. Such Capital Account shall be (i) increased by the amount of all Capital Contributions made with respect to the Unit and all items of income and gain with respect to the Trust computed and allocated to the Unitholders Units in accordance with this Trust Agreement and (ii) decreased by the amount of cash distributions made with respect to the Unit and all items of deduction and loss with respect to the Trust computed and allocated in accordance with this Trust Agreement.
(a) Consistent with the provisions of Treasury Regulation section 1.704-1(b)(2)(iv)(f), upon an issuance of additional Units with respect to the Trust for cash, the Capital Accounts of all Unitholders with respect to the Trust shall, immediately prior to such issuances, be adjusted (consistent with the provisions hereof) upwards or downwards to reflect any Unrealized Gain or Unrealized Loss attributable to the Trust property, as if such Unrealized Gain or Unrealized Loss had been recognized upon an actual sale of each such property, immediately prior to such issuance, and had been allocated to its Unitholders at such time pursuant to Section 6.3.
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(b) In accordance with Treasury Regulation section 1.704-1(b)(2)(iv)(f), immediately prior to the distribution of cash in redemption of all or a portion of a Unitholders Units, the capital accounts of all Unitholders with respect to the Trust shall, immediately prior to any such distribution, be adjusted (consistent with the provisions hereof) upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to Trust property, as if such Unrealized Gain or Unrealized Loss had been recognized upon an actual sale of each such property, immediately prior to such distribution, and had been allocated to the Unitholders at such time pursuant to Section 6.3.
SECTION 6.2. Periodic Closing of Books. Within forty-five (45) days after the end of each calendar month (or such other period as the Managing Owner may determine in its sole discretion) or such shorter period as required for the final closing of the books for the taxable year, the Trust shall conduct an interim closing of the books of the Trust as of the end of the last day of that calendar month (or such other period as the Managing Owner may determine in its sole discretion). On the basis of the closing of the books for each calendar month (or such other period as the Managing Owner may determine in its sole discretion), the Trust shall determine the amount of Profit and Loss of the Trust attributable to that calendar month (or such other period as the Managing Owner may determine in its sole discretion). Trust Profits and Losses shall be determined in accordance with the accounting methods followed by the Trust for U.S. federal income tax purposes.
SECTION 6.3. Periodic Allocations. All allocations to Unitholders of items included within the Trusts Profits and Losses attributable to each calendar month (or such other periods as the Managing Owner may determine in its sole discretion) shall be allocated solely among the Unitholders recognized as Unitholders as of the close of the last trading day of the preceding month (or the last trading day of such other period as the Managing Owner may determine in its sole discretion), as follows:
(a) For purposes of maintaining the Capital Accounts and in determining the rights of the Unitholders among themselves, except as otherwise provided in this Article VI, each item of income, gain, loss and deduction shall be allocated among Unitholders in accordance with their respective Percentage Interests.
(b) If any Unitholder unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Trust income and gain shall be specially allocated to such Unitholder in an amount and manner sufficient to eliminate a deficit in its Adjusted Capital Account created by such adjustments, allocations or distributions as quickly as possible. This Section 6.3(c) is intended to constitute a qualified income offset within the meaning of Treasury Regulation section 1.704-1(b)(2)(ii)(d).
(c) Notwithstanding any other provision of this Trust Agreement, upon or prior to the issuance of additional Units, the Managing Owner shall have the sole and complete discretion, without the approval of any other Unitholder, to amend any provision of this Article
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VI in any manner, as is necessary, appropriate or advisable to comply with any current or future provisions of the Code or the Treasury Regulations or to implement the terms and conditions of any Units.
SECTION 6.4. Code Section 754 Adjustments. To the extent an adjustment to the tax basis of any Trust asset pursuant to Section 743(b) or 743(c) of the Code is required, pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such item of gain or loss shall be specially allocated to the Unitholders in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such regulation. For purposes of computing the adjustments under section 743(b) of the Code, the Trust is authorized (but not required), in the Managing Owners sole and complete discretion, to adopt a convention whereby the price paid by a transferee of Units will be deemed to be the weighted average closing price of the Units of the Trust on the Exchange during the calendar month in which such transfer is deemed to occur pursuant to Section 5.3 without regard to the actual price paid by the transferee (or any other convention as the Managing Owner may determine in its sole and complete discretion).
SECTION 6.5. Allocation of Profit and Loss for U.S. Federal Income Tax Purposes.
(a) Except as otherwise provided, each item of income, gain, loss, deduction and credit of the Trust shall be allocated among the Unitholders in accordance with their respective Percentage Interests.
(b) In an attempt to eliminate Book-Tax Disparities attributable to Adjusted Property, items of income, gain, and loss will be allocated for U.S. federal income tax purposes among the Unitholders as follows:
(i) Items attributable to an Adjusted Property will be allocated among the Unitholders in a manner consistent with the principles of section 704(c) of the Code to take into account the Unrealized Gain or Loss attributable to the property and the allocations thereof pursuant to Section 6.3(a) and (b).
(ii) Any items of income, gain, loss or deduction otherwise allocable under this Section 6.5 shall be subject to allocation by the Managing Owner in a manner designed to eliminate, to the maximum extent possible, Book-Tax Disparities in an Adjusted Property otherwise resulting from the application of the ceiling limitation under section 704(c) principles to the allocations provided under this Section.
(iii) Subject to this Section 6.5(b), any items of income, gain, loss or deduction otherwise allocable to the Managing Owner pursuant to Section 6.3(a) that constitutes the tax corollary of an item of book income, gain, loss or deduction that has been allocated to such other Unitholders pursuant to Section 6.3(b) shall be allocated to the other Unitholders in the same manner and to the same extent provided in this Section 6.5(b).
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(iv) If any Unitholder unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation section 1.704-1(b)(2)(ii)(d), items of income and gain shall be specially allocated to such Unitholder in an amount and manner consistent with the allocations of income and gain pursuant to Section 6.3(c).
(c) The allocation of income and loss (and items thereof) for U.S. federal income tax purposes set forth in this Section 6.5 is intended to allocate taxable income and loss among Unitholders generally in the ratio and to the extent that net profit and net loss shall be allocated to such Unitholders under Section 6.3 so as to eliminate, to the extent possible, any disparity between a Unitholders book capital account and his tax capital account, consistent with the principles set forth in Sections 704(b) and (c)(2) of the Code.
(d) Notwithstanding this Section 6.5, if after taking into account any distributions to be made with respect to such Unit for the relevant period pursuant to Section 6.7 herein, any allocation would produce a deficit in the book capital account of a Unit, the portion of such allocation that would create such a deficit shall instead be allocated pro rata to the book capital accounts of all the remaining Unitholders in the Trust (subject to the same limitation).
SECTION 6.6. Effect of Section 754 Election. All items of income, gain, loss, deduction and credit recognized by the Trust for U.S. federal income tax purposes and allocated to Unitholders in accordance with the provisions of this Trust Agreement shall be determined without regard to any election under section 754 of the Code which may be made by the Trust; provided, however, that such allocations, once made, shall be adjusted as necessary or appropriate to take into account those adjustments permitted or required by sections 734 or 743 of the Code.
SECTION 6.7. Allocation of Distributions. Initially, distributions shall be made by the Managing Owner, and the Managing Owner shall have sole discretion in determining the amount and frequency of distributions, other than redemptions, with respect to the Units; provided, however, that no distribution shall be made that violates the Delaware Trust Statute. The aggregate distributions made in a Fiscal Year (other than distributions on termination, which shall be allocated in the manner described in Article XIII) shall be allocated among the holders of record of Units in the ratio in which the number of Units held of record by each of them bears to the number of Units held of record by all of the Unitholders as of the record date of such distribution; provided, further, however, that any distribution made in respect of a Unit shall not exceed the book capital account for such Unit.
SECTION 6.8. Admissions of Unitholders; Transfers. For purposes of this Article VI, items of the Trusts income, gain, loss, deduction and credit attributable to a transferred Unit shall, for U.S. federal income tax purposes, be determined on an annual basis and prorated on a monthly basis (or other basis, as required or permitted by section 706 of the Code) and shall be allocated to such Unitholders who own the Units as of the close of the NYSE Arca on the last day of the month in which the transfer is recognized by the Trust; provided that, gain or loss on the sale or other disposition of all or a substantial portion of the assets of the Trust shall be allocated to the Unitholders who own Units as of the close of the NYSE Arca on the last day of the month in which such gain or loss is recognized for federal income tax purposes. The
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Managing Owner may revise, alter or otherwise modify such methods of determination and allocation as it determines necessary, to the extent permitted by section 706 of the Code and the regulations or rulings promulgated thereunder.
SECTION 6.9. Liability for State and Local and Other Taxes. In the event that the Trust shall be separately subject to taxation by any state or local or by any foreign taxing authority, the Trust shall be obligated to pay such taxes to such jurisdiction. In the event that the Trust shall be required to make payments to any U.S. federal, state or local or any foreign taxing authority in respect of any Unitholders allocable share of income, the amount of such taxes shall be considered a loan by the Trust to such Unitholder, and such Unitholder shall be liable for, and shall pay to the Trust, any taxes so required to be withheld and paid over by the Trust within ten (10) days after the Managing Owners request therefor. Such Unitholder shall also be liable for (and the Managing Owner shall be entitled to redeem additional Units of the foreign Unitholder as necessary to satisfy) interest on the amount of taxes paid over by the Trust to the IRS or other taxing authority, from the date of the Managing Owners request for payment to the date of payment or the redemption, as the case may be, at the rate of two percent (2%) over the prime rate charged from time to time by Citibank, N.A. The amount, if any, payable by the Trust to the Unitholder in respect of its Units so redeemed, or in respect of any other actual distribution by the Trust to such Unitholder, shall be reduced by any obligations owed to the Trust by the Unitholder, including, without limitation, the amount of any taxes required to be paid over by the Trust to the IRS or other taxing authority and interest thereon as aforesaid. Amounts, if any, deducted by the Trust from any actual distribution or redemption payment to such Unitholder shall be treated as an actual distribution to such Unitholder for all purposes of this Trust Agreement.
SECTION 6.10. Consent to Methods. The methods set forth in this Article VI by which Distributions are made and items of Profit and Losses are allocated are hereby expressly consented to by each Unitholder as an express condition to becoming a Unitholder.
ARTICLE VII
REDEMPTIONS
SECTION 7.1. Redemption of Redemption Baskets. The following procedures, as supplemented by the more detailed procedures specified in the attachment to the Participant Agreement, which may be amended from time to time in accordance with the provisions of the Participant Agreement (and any such amendment will not constitute an amendment of this Trust Agreement), will govern the Trust with respect to the redemption of Redemption Baskets.
(a) On any Business Day, a Participant with respect to which a Participant Agreement is in full force and effect (as reflected on the list maintained by the Managing Owner pursuant to Section 3.3(a)(i)) may redeem one or more Redemption Baskets standing to the credit of the Participant on the records of the Depository by delivering a request for redemption to the Managing Owner (such request, a Redemption Order) in the manner specified in the procedures specified in the attachment to the Participant Agreement, as amended from time to time in accordance with the provisions of the Participant Agreement (and any such amendment will not constitute an amendment of this Trust Agreement).
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(b) To be effective, a Redemption Order must be submitted on a Business Day by the Order Cut-Off Time in form satisfactory to the Managing Owner (the Business Day on which the Redemption Order is so submitted, the Redemption Order Date). The Managing Owner shall reject any Redemption Order the fulfillment of which its counsel advises may be illegal under applicable laws and regulations, and the Managing Owner shall have no liability to any person for rejecting a Redemption Order in such circumstances.
(c) Subject to deduction of any tax or other governmental charges due thereon, the redemption distribution (Redemption Distribution) shall consist of cash in an amount equal to the product obtained by multiplying (i) the number of Redemption Baskets set forth in the relevant Redemption Order by (ii) the Net Asset Value Per Basket as of the closing time of the Exchange or the last to close of the exchanges on which any of the Trusts assets are traded, whichever is later, on the Redemption Order Date.
(d) Within three Business Days immediately following the Redemption Order Date (the Redemption Settlement Time), if the Managing Owners account at the Depository has by such time as provided in the Participant Agreement, on such day been credited with the Redemption Baskets being tendered for redemption and the Managing Owner has by such time received the Transaction Fee, the Managing Owner shall deliver the Redemption Distribution through the Depository to the account of the Participant as recorded on the book entry system of the Depository. If by such Redemption Settlement Time the Managing Owner has not received from a redeeming Participant all Redemption Baskets comprising the Redemption Order, the Managing Owner will (i) settle the Redemption Order to the extent of whole Redemption Baskets received from the Participant and (ii) keep the redeeming Participants Redemption Order open until such time as provided in the Participant Agreement, on the first Business Day following the Redemption Settlement Date as to the balance of the Redemption Order (such balance, the Suspended Redemption Order). If the Redemption Basket(s) comprising the Suspended Redemption Order are credited to the Managing Owners account at the Depository by such time as provided in the Participant Agreement, on such following Business Day, the Redemption Distribution with respect to the Suspended Redemption Order shall be paid in the manner provided in the second preceding sentence. If by such Redemption Settlement Time the Managing Owner has not received from the redeeming Participant all Redemption Baskets comprising the Suspended Redemption Order, the Managing Owner will settle the Suspended Redemption Order to the extent of whole Redemption Baskets then received and any balance of the Suspended Redemption will be cancelled. Notwithstanding the foregoing, when and under such conditions as the Managing Owner may from time to time determine, the Managing Owner shall be authorized to deliver the Redemption Distribution notwithstanding that a Redemption Basket has not been credited to the Trusts account at the Depository if the Participant has collateralized its obligation to deliver the Redemption Basket on such terms as the Managing Owner may, in its sole discretion, from time to time agree.
(e) The Managing Owner may, in its discretion, suspend the right of redemption, or postpone the Redemption Settlement Date, (i) for any period during which the Exchange is closed other than customary weekend or holiday closings, or trading is suspended or restricted; (ii) for any period during which an emergency exists as a result of which delivery, disposal or evaluation of the Trusts assets is not reasonably practicable; or (iii) for such other period as the Managing Owner determines to be necessary for the protection of Beneficial Owners. The Managing Owner is not liable to any person or in any way for any loss or damages that may result from any such suspension or postponement.
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(f) Redemption Baskets effectively redeemed pursuant to the provisions of this Section 7.1 shall be cancelled by the Trust in accordance with the Depositorys procedures.
SECTION 7.2. Other Redemption Procedures. The Managing Owner from time to time may, but shall have no obligation to, establish procedures with respect to redemption of Limited Units in lot sizes smaller than the Redemption Basket and permitting the Redemption Distribution to be in a form, and delivered in a manner, other than that specified in Section 7.1.
ARTICLE VIII
THE LIMITED OWNERS
SECTION 8.1. No Management or Control; Limited Liability; Exercise of Rights through DTC. The Limited Owners shall not participate in the management or control of the Trusts business nor shall they transact any business for the Trust or have the power to sign for or bind the Trust, said power being vested solely and exclusively in the Managing Owner. Except as provided in Section 8.3 hereof, no Limited Owner shall be bound by, or be personally liable for, the expenses, liabilities or obligations of the Trust in excess of its Capital Contribution plus its share of the Trust Estate and profits remaining, if any. Except as provided in Section 8.3 hereof, each Limited Unit owned by a Limited Owner shall be fully paid and no assessment shall be made against any Limited Owner. No salary shall be paid to any Limited Owner in its capacity as a Limited Owner, nor shall any Limited Owner have a drawing account or earn interest on its Capital Contribution. By the purchase and acceptance or other lawful delivery and acceptance of Limited Units, each Beneficial Owner shall be deemed to be a Limited Owner and beneficiary of the Trust and vested with beneficial undivided interest in the Trust to the extent of the Limited Units owned beneficially by such Beneficial Owner, subject to the terms and conditions of this Trust Agreement. The rights of Beneficial Owners under this Trust Agreement must be exercised by DTC Participants, or Indirect Participants, as applicable, acting on their behalf in accordance with the rules and procedures of the Depository, as provided in Section 3.4.
SECTION 8.2. Rights and Duties. The Limited Owners shall have the following rights, powers, privileges, duties and liabilities:
(a) The Limited Owners shall have the right to obtain from the Managing Owner information on all things affecting the Trust, provided that such is for a purpose reasonably related to the Limited Owners interest as a beneficial owner of the Trust, including, without limitation, such reports as are set forth in Article IX and the list of Participants contemplated by Section 3.3(a)(i). In the event that the Managing Owner neglects or refuses to produce or mail to a Limited Owner a copy of the list of Participants contemplated by Section 3.3(a)(i), the Managing Owner shall be liable to such Limited Owner for the costs, including reasonable attorneys fees, incurred by such Limited Owner to compel the production of such information, and for any actual damages suffered by such Limited Owner as a result of such refusal or neglect; provided, however, it shall be a defense of the Managing Owner that the actual purpose of the Limited Owners request for such information was not reasonably related to
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the Limited Owners interest as a beneficial owner in the Trust (e.g., to secure such information in order to sell it, or to use the same for a commercial purpose unrelated to the participation of such Limited Owner in the Trust). The foregoing rights are in addition to, and do not limit, other remedies available to Limited Owners under U.S. federal or state law.
(b) The Limited Owners shall receive the share of the distributions provided for in this Trust Agreement in the manner and at the times provided for in this Trust Agreement.
(c) Except for the Limited Owners redemption rights set forth in Article VII hereof, the Limited Owners shall have the right to demand the return of their Capital Account only upon the dissolution and winding up of the Trust and only to the extent of funds available therefor. In no event shall a Limited Owner be entitled to demand or receive property other than cash. No Limited Owner shall have priority over any other Limited Owner either as to the return of capital or as to profits, losses or distributions. The Limited Owners shall not have any right to bring an action for partition against the Trust.
(d) Limited Owners holding Units representing at least a majority (over 50%) in Net Asset Value (not including Units held by the Managing Owner and its Affiliates) may vote to (i) continue the Trust as provided in Section 13.1(a), (ii) remove the Managing Owner on prior written notice to the Managing Owner, (iii) elect and appoint one or more additional Managing Owners, (iv) approve a material change in the trading policies, as set forth in the Prospectus, which change shall not be effective without the prior written approval of such majority, (v) approve the termination of any agreement entered into between the Trust and the Managing Owner or any Affiliate of the Managing Owner for any reason, without penalty, on prior written notice to the Managing Owner, (vi) approve amendments to this Trust Agreement as set forth in Section 11.1 hereof, and (vii) terminate the Trust as provided in Section 13.1(e), and in the case of (ii), (iii), (iv), and (v) in each instance on 10 days prior written notice.
(e) Certain K-1 Unitholders representing at least a majority (over 50%) in Net Asset Value (not including Units held by the Managing Owner and its Affiliates) may vote to (i) remove the Tax Agent on prior written notice to the Managing Owner, and (ii) designate a replacement Tax Agent on prior written notice to the Managing Owner, in each instance on 10 days prior written notice.
Except as set forth above, the Limited Owners shall have no voting or other rights with respect to the Trust.
SECTION 8.3. Limitation on Liability.
(a) Except as provided in Sections 4.7(f) and 6.9 hereof, and as otherwise provided under Delaware law, the Limited Owners shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the general corporation law of Delaware and no Limited Owner shall be liable for claims against, or debts of the Trust in excess of its Capital Contribution and its share of the Trust Estate and undistributed profits, except in the event that the liability is founded upon misstatements or omissions contained in such Limited Owners Participant Agreement delivered in connection with his purchase of Units. In addition, and subject to the exceptions set forth in the immediately preceding sentence, the Trust shall not make a claim against a Limited Owner with respect to amounts distributed to such Limited Owner or amounts received by such Limited Owner upon redemption unless, under Delaware law, such Limited Owner is liable to repay such amount.
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(b) The Trust shall indemnify to the full extent permitted by law and the other provisions of this Trust Agreement, and to the extent of the applicable Trust Estate, each Limited Owner against any claims of liability asserted against such Limited Owner solely because he is a beneficial owner of one or more Units as a Limited Owner (other than for taxes for which such Limited Owner is liable under Section 6.2 hereof).
(c) Every written note, bond, contract, instrument, certificate or undertaking made or issued by the Managing Owner shall give notice to the effect that the same was executed or made by or on behalf of the Trust and that the obligations of such instrument are not binding upon the Limited Owners individually but are binding only upon the assets and property of the Trust, and no resort shall be had to the Limited Owners personal property for satisfaction of any obligation or claim thereunder, and appropriate references may be made to this Trust Agreement and may contain any further recital which the Managing Owner deems appropriate, but the omission thereof shall not operate to bind the Limited Owners individually or otherwise invalidate any such note, bond, contract, instrument, certificate or undertaking. Nothing contained in this Section 8.3 shall diminish the limitation on the liability of the Trust to the extent set forth in Section 3.5 and 3.6 hereof.
ARTICLE IX
BOOKS OF ACCOUNT AND REPORTS
SECTION 9.1. Books of Account. Proper books of account for the Trust shall be kept and shall be audited annually by an independent certified public accounting firm selected by the Managing Owner in its sole discretion, and there shall be entered therein all transactions, matters and things relating to the Trusts business as are required by the CE Act and regulations promulgated thereunder, and all other applicable rules and regulations, and as are usually entered into books of account kept by Persons engaged in a business of like character. The books of account shall be kept at the principal office of the Trust and each Limited Owner (or any duly constituted designee of a Limited Owner) shall have, at all times during normal business hours, free access to and the right to inspect and copy the same for any purpose reasonably related to the Limited Owners interest as a beneficial owner of the Trust, including such access as is required under CFTC rules and regulations. Such books of account shall be kept, and the Trust shall report its Profits and Losses on, the accrual method of accounting for financial accounting purposes on a Fiscal Year basis as described in Article X.
SECTION 9.2. Annual Reports and Monthly Statements.
(a) Each Limited Owner shall be furnished as of the end of each month and as of the end of each Fiscal Year with (i) such reports (in such detail) as are required to be given to Limited Owners by the CFTC and the NFA, subject to, as applicable, either (y) certain relief granted by the CFTC, or (z) pursuant to the applicable rules and regulations of the CFTC; (ii) any other reports (in such detail) required to be given to Limited Owners by any other governmental authority which has jurisdiction over the activities of the Trust; and (iii) any other reports or information which the Managing Owner, in its discretion, determines to be necessary or appropriate.
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(b) The Limited Owners will have access to periodic reports filed with the SEC by the Managing Owner on behalf of the Trust. The Managing Owner will file (i) the Quarterly Reports on Form 10-Q, filed for the first three quarters of each fiscal year; (ii) the Annual Reports on Form 10-K, filed at end of each fiscal year; and (iii) Current Reports on Form 8-K, which will be filed as necessary to announce material events not disclosed in either Form 10-Q or 10-K.
SECTION 9.3. Tax Information. Appropriate tax information (adequate to enable each Limited Owner to complete and file its U.S. federal tax return) shall be delivered to each Limited Owner as soon as practicable following the end of each Fiscal Year but generally no later than March 15.
SECTION 9.4. Calculation of Net Asset Value. Net Asset Value shall be calculated at such times as the Managing Owner shall determine from time to time.
SECTION 9.5. Maintenance of Records. The Managing Owner shall maintain: (a) for a period of at least six Fiscal Years all books of account required by Section 9.1 hereof; a list of the names and last known addresses of, and number of Units owned by, all Unitholders, a copy of the Certificate of Trust and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate has been executed; copies of the Trusts U.S. federal, state and local income tax returns and reports, if any; and (b) for a period of at least six Fiscal Years copies of any effective written Trust Agreements, Participant Agreements, including any amendments thereto, and any financial statements of the Trust. The Managing Owner may keep and maintain the books and records of the Trust in paper, magnetic, electronic or other format at the Managing Owner may determine in its sole discretion, provided the Managing Owner uses reasonable care to prevent the loss or destruction of such records.
SECTION 9.6. Certificate of Trust. Except as otherwise provided in the Delaware Trust Statute or this Trust Agreement, the Managing Owner shall not be required to mail a copy of any Certificate of Trust filed with the Secretary of State of the State of Delaware to each Limited Owner; however, such certificates shall be maintained at the principal office of the Trust and shall be available for inspection and copying by the Limited Owners in accordance with this Trust Agreement.
ARTICLE X
FISCAL YEAR
SECTION 10.1. Fiscal Year. The Fiscal Year shall begin on the 1st day of January and end on the 31st day of December of each year. The first Fiscal Year of the Trust shall commence on the date of filing of the Certificate of Trust and end on the 31st day of December 2006. If, after commencement of operations, applicable tax rules require the Trust to adopt a taxable year other than the calendar year, the term Fiscal Year for the Trust shall mean such other taxable year as required by Code Section 706 or an alternative taxable year chosen by the Managing Owner which has been approved by the Internal Revenue Service. The Fiscal Year in which the Trust shall terminate shall end on the date of such termination.
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ARTICLE XI
AMENDMENT OF TRUST AGREEMENT; MEETINGS
SECTION 11.1. Amendments to this Trust Agreement.
(a) Amendments to this Trust Agreement may be proposed by the Managing Owner or by Limited Owners holding Units equal to at least 10% of the Net Asset Value of the Trust. Following such proposal, the Managing Owner shall submit to the Limited Owners a verbatim statement of any proposed amendment, and statements concerning the legality of such amendment and the effect of such amendment on the limited liability of the Limited Owners. The Managing Owner shall include in any such submission its recommendations as to the proposed amendment. The amendment shall become effective only upon the written approval or affirmative vote of Limited Owners holding Units (excluding Units held by the Managing Owner and its Affiliates) equal to at least a majority (over 50%) of the Net Asset Value (excluding Units held by the Managing Owner and its Affiliates) of the Trust or such higher percentage as may be required by applicable law. Notwithstanding the foregoing, where any action taken or authorized pursuant to any provision of this Trust Agreement requires the approval or affirmative vote of Limited Owners holding a greater interest in Limited Units than is required to amend this Trust Agreement under this Section 11.1, and/or the approval or affirmative vote of the Managing Owner, an amendment to such provision(s) shall be effective only upon the written approval or affirmative vote of the minimum number of Unitholders which would be required to take or authorize such action, or as may otherwise be required by applicable law. In addition, except as otherwise provided below, reduction of the capital account of any assignee or modification of the percentage of Profits, Losses or distributions to which an assignee is entitled hereunder shall not be affected by amendment to this Trust Agreement without such assignees approval.
(b) Notwithstanding any provision to the contrary contained in Section 11.1(a) hereof, the Managing Owner may, without the approval of the Limited Owners, make such amendments to this Trust Agreement which (i) are necessary to add to the representations, duties or obligations of the Managing Owner or surrender any right or power granted to the Managing Owner herein, for the benefit of the Limited Owners, (ii) are necessary to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein or in the Prospectus, or to make any other provisions with respect to matters or questions arising under this Trust Agreement or the Prospectus which will not be inconsistent with the provisions of this Trust Agreement or the Prospectus, or (iii) the Managing Owner deems advisable, provided, however, that no amendment shall be adopted pursuant to this clause (iii) unless the adoption thereof (A) is not adverse to the interests of the Limited Owners; (B) is consistent with Section 4.1 hereof; (C) except as otherwise provided in Section 11.1(c) below, does not affect the allocation of Profits and Losses among the Limited Owners or between the Limited Owners and the Managing Owner; and (D) does not adversely affect the limitations on liability of the Limited Owners, as described in Article VIII hereof or the status of the Trust as a partnership for U.S. federal income tax purposes. Amendments to this Trust Agreement that (i) adversely affect the rights of Limited Owners, (ii) relate to the dissolution of the Trust pursuant
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to Section 13.1(f) below, or (iii) relate to any material changes in the Trusts basic investment policies or structure shall occur only upon the written approval or affirmative vote of Limited Owners holding Units equal to at least a majority (over 50%) of the Net Asset Value (excluding Units held by the Managing Owner and its Affiliates) pursuant to Section 11.1(a) above.
(c) Notwithstanding any provision to the contrary contained in Sections 11.1(a) and (b) hereof, the Managing Owner may, without the approval of the Limited Owners, amend the provisions of this Trust Agreement if the Trust is advised at any time by the Trusts accountants or legal counsel that the amendments made are necessary to ensure that the Trusts status as a partnership will be respected for U.S. federal income tax purposes.
(d) Upon amendment of this Trust Agreement, the Certificate of Trust shall also be amended, if required by the Delaware Trust Statute, to reflect such change.
(e) No amendment shall be made to this Trust Agreement without the consent of the Trustee if it reasonably believes that such amendment adversely affects any of the rights, duties or liabilities of the Trustee; provided, however, that the Trustee may not withhold its consent for any action which the Limited Owners are permitted to take under Section 8.2(d) above. At the expense of the Managing Owner, the Trustee shall execute and file any amendment to the Certificate of Trust if so directed by the Managing Owner or if such amendment is required in the opinion of the Trustee.
(f) The Trustee shall be under no obligation to execute any amendment to this Trust Agreement or to any agreement to which the Trust is a party until it has received an instruction letter from the Managing Owner, in form and substance reasonably satisfactory to the Trustee (i) directing the Trustee to execute such amendment, (ii) representing and warranting to the Trustee that such execution is authorized and permitted by the terms of this Trust Agreement and (if applicable) such other agreement to which the Trust is a party and does not conflict with or violate any other agreement to which the Trust is a party and (iii) confirming that such execution and acts related thereto are covered by the indemnity provisions of this Trust Agreement in favor of the Trustee.
(g) To the fullest extent permitted by law, no provision of this Trust Agreement may be amended, waived or otherwise modified orally but only by a written instrument adopted in accordance with this Section.
SECTION 11.2. Meetings of the Trust. Meetings of the Unitholders may be called by the Managing Owner and will be called by it upon the written request of Limited Owners holding Units equal to at least 10% of the Net Asset Value. Such call for a meeting shall be deemed to have been made upon the receipt by the Managing Owner of a written request from the requisite percentage of Limited Owners. The Managing Owner shall deposit in the United States mail, within fifteen (15) days after receipt of said request, written notice to all Limited Owners of the meeting and the purpose of the meeting, which shall be held on a date, not less than thirty (30) nor more than sixty (60) days after the date of mailing of said notice, at a reasonable time and place. Any notice of meeting shall be accompanied by a description of the action to be taken at the meeting and an opinion of independent counsel as to the effect of such proposed action on the liability of Limited Owners for the debts of the Trust. Unitholders may vote in person or by proxy at any such meeting.
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SECTION 11.3. Action Without a Meeting. Any action required or permitted to be taken by Unitholders by vote may be taken without a meeting by written consent setting forth the actions so taken. Such written consents shall be treated for all purposes as votes at a meeting. If the vote or consent of any Unitholder to any action of the Trust or any Unitholder, as contemplated by this Trust Agreement, is solicited by the Managing Owner, the solicitation shall be effected by notice to each Unitholder given in the manner provided in Section 15.4. The vote or consent of each Unitholder so solicited shall be deemed conclusively to have been cast or granted as requested in the notice of solicitation, whether or not the notice of solicitation is actually received by that Unitholder, unless the Unitholder expresses written objection to the vote or consent by notice given in the manner provided in Section 15.4 below and actually received by the Trust within twenty (20) days after the notice of solicitation is effected. The Managing Owner and all persons dealing with the Trust shall be entitled to act in reliance on any vote or consent which is deemed cast or granted pursuant to this Section and shall be fully indemnified by the Trust in so doing. Any action taken or omitted in reliance on any such deemed vote or consent of one or more Unitholders shall not be void or voidable by reason of timely communication made by or on behalf of all or any of such Unitholders in any manner other than as expressly provided in Section 15.4.
ARTICLE XII
TERM
SECTION 12.1. Term. The term for which the Trust is to exist shall commence on the date of the filing of the Certificate of Trust, and shall be perpetual, unless terminated pursuant to the provisions of Article XIII hereof or as otherwise provided by law.
ARTICLE XIII
TERMINATION
SECTION 13.1. Events Requiring Dissolution of the Trust. The Trust shall dissolve at any time upon the happening of any of the following events:
(a) The filing of a certificate of dissolution or revocation of the Managing Owners charter (and the expiration of ninety (90) days after the date of notice to the Managing Owner of revocation without a reinstatement of its charter) or upon the withdrawal, removal, adjudication or admission of bankruptcy or insolvency of the Managing Owner (each of the foregoing events an Event of Withdrawal) unless (i) at the time there is at least one remaining Managing Owner and that remaining Managing Owner carries on the business of the Trust or (ii) within ninety (90) days of such Event of Withdrawal all the remaining Unitholders agree in writing to continue the business of the Trust and to select, effective as of the date of such event, one or more successor Managing Owners. If the Trust is terminated as the result of an Event of Withdrawal and a failure of all remaining Unitholders to continue the business of the Trust and to appoint a successor Managing Owner as provided in clause (a)(ii) above, within one hundred and twenty (120) days of such Event of Withdrawal, Limited Owners holding Units representing
40
at least a majority (over 50%) of the Net Asset Value (not including Units held by the Managing Owner and its Affiliates) may elect to continue the business of the Trust by forming a new statutory trust (the Reconstituted Trust) on the same terms and provisions as set forth in this Trust Agreement (whereupon the parties hereto shall execute and deliver any documents or instruments as may be necessary to reform the Trust). Any such election must also provide for the election of a Managing Owner to the Reconstituted Trust. If such an election is made, all Limited Owners of the Trust shall be bound thereby and continue as Limited Owners of the Reconstituted Trust.
(b) The occurrence of any event which would make unlawful the continued existence of the Trust.
(c) In the event of the suspension, revocation or termination of the Managing Owners registration as a commodity pool operator or commodity trading advisor under the CE Act, or membership as a commodity pool operator or commodity trading advisor with the NFA (if, in either case, such registration is required under the CE Act or the rules promulgated thereunder) unless at the time there is at least one remaining Managing Owner whose registration or membership has not been suspended, revoked or terminated.
(d) The Trust becomes insolvent or bankrupt.
(e) The Limited Owners holding Units representing at least a majority (over 50%) of the Net Asset Value (which excludes the Units of the Managing Owner) vote to dissolve the Trust, notice of which is sent to the Managing Owner not less than ninety (90) Business Days prior to the effective date of termination.
(f) The determination of the Managing Owner that the aggregate net assets of the Trust in relation to the operating expenses of the Trust make it unreasonable or imprudent to continue the business of the Trust, or, in the exercise of its reasonable discretion, the determination by the Managing Owner to dissolve the Trust because the aggregate Net Asset Value of the Trust as of the close of business on any Business Day declines below $10 million.
(g) The Trust is required to be registered as an investment company under the Investment Company Act of 1940.
(h) DTC is unable or unwilling to continue to perform its functions, and a comparable replacement is unavailable.
The death, legal disability, bankruptcy, insolvency, dissolution, or withdrawal of any Limited Owner (as long as such Limited Owner is not the sole Limited Owner of the Trust) shall not result in the termination of the Trust, and such Limited Owner, his estate, custodian or personal representative shall have no right to withdraw or value such Limited Owners Units. Each Limited Owner (and any assignee thereof) expressly agrees that in the event of his death, he waives on behalf of himself and his estate, and he directs the legal representative of his estate and any person interested therein to waive the furnishing of any inventory, accounting or appraisal of the assets of the Trust and any right to an audit or examination of the books of the Trust, except for such rights as are set forth in Article IX hereof relating to the books of account and reports of the Trust.
SECTION 13.2. Distributions on Dissolution. Upon the dissolution of the Trust, the Managing Owner (or in the event there is no Managing Owner, such person (the Liquidating
41
Trustee) as the majority in interest of the Limited Owners may propose and approve) shall take full charge of the Trust Estate. Any Liquidating Trustee so appointed shall have and may exercise, without further authorization or approval of any of the parties hereto, all of the powers conferred upon the Managing Owner under the terms of this Trust Agreement, subject to all of the applicable limitations, contractual and otherwise, upon the exercise of such powers, and provided that the Liquidating Trustee shall not have general liability for the acts, omissions, obligations and expenses of the Trust. Thereafter, in accordance with Section 3808(e) of the Delaware Trust Statute, the business and affairs of the Trust shall be wound up and all assets shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom shall be applied and distributed in the following order of priority: (a) to the expenses of liquidation and termination and to creditors, including Unitholders who are creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the Trust (whether by payment or the making of reasonable provision for payment thereof) other than liabilities for distributions to Unitholders, and (b) to the Managing Owner and each Limited Owner pro rata in accordance with his positive book capital account balance, less any amount owing by such Unitholder, after giving effect to all adjustments made pursuant to Article VI and all distributions theretofore made to the Unitholders pursuant to Article VI.
SECTION 13.3. Termination; Certificate of Cancellation. Following the dissolution and distribution of the assets of the Trust, the Trust shall terminate and the Managing Owner or Liquidating Trustee, as the case may be, shall instruct the Trustee to execute and cause a certificate of cancellation of the Certificate of Trust to be filed in accordance with the Delaware Trust Statute. Notwithstanding anything to the contrary contained in this Trust Agreement, the existence of the Trust as a separate legal entity shall continue until the filing of such certificate of cancellation.
ARTICLE XIV
POWER OF ATTORNEY
SECTION 14.1. Power of Attorney Executed Concurrently. Concurrently with the written acceptance and adoption of the provisions of this Trust Agreement, each Limited Owner shall execute and deliver to the Managing Owner a Power of Attorney as part of the Purchase Order Subscription Agreement, or in such other form as may be prescribed by the Managing Owner. Each Limited Owner, by its execution and delivery hereof, irrevocably constitutes and appoints the Managing Owner and its officers and directors, with full power of substitution, as the true and lawful attorney-in-fact and agent for such Limited Owner with full power and authority to act in his name and on his behalf in the execution, acknowledgment, filing and publishing of Trust documents, including, but not limited to, the following:
(a) Any certificates and other instruments, including but not limited to, any applications for authority to do business and amendments thereto, which the Managing Owner deems appropriate to qualify or continue the Trust as a business or statutory trust in the jurisdictions in which the Trust may conduct business, so long as such qualifications and continuations are in accordance with the terms of this Trust Agreement or any amendment hereto, or which may be required to be filed by the Trust or the Unitholders under the laws of any jurisdiction;
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(b) Any instrument which may be required to be filed by the Trust under the laws of any state or by any governmental agency, or which the Managing Owner deems advisable to file; and
(c) This Trust Agreement and any documents which may be required to effect an amendment to this Trust Agreement approved under the terms of this Trust Agreement, and the continuation of the Trust, the admission of the signer of the Power of Attorney as a Limited Owner or of others as additional or substituted Limited Owners, or the termination of the Trust, provided such continuation, admission or termination is in accordance with the terms of this Trust Agreement.
SECTION 14.2. Effect of Executing and Submitting the Purchase Order Subscription Agreement. By executing and submitting the Purchase Order Subscription Agreement, each Limited Owner has agreed to concurrently grant the following power of attorney to the Managing Owner (the Power of Attorney) which:
(a) Is a special, irrevocable Power of Attorney coupled with an interest, and shall survive and not be affected by the death, disability, dissolution, liquidation, termination or incapacity of the Limited Owner;
(b) May be exercised by the Managing Owner for each Limited Owner by a facsimile signature of one of its officers or by a single signature of one of its officers acting as attorney-in-fact for all of them; and
(c) Shall survive the delivery of an assignment by a Limited Owner of the whole or any portion of his Limited Units; except that where the assignee thereof has been approved by the Managing Owner for admission to the Trust as a substituted Limited Owner, the Power of Attorney of the assignor shall survive the delivery of such assignment for the sole purpose of enabling the Managing Owner to execute, acknowledge and file any instrument necessary to effect such substitution.
Each Limited Owner agrees to be bound by any representations made by the Managing Owner and by any successor thereto, determined to be acting in good faith pursuant to such Power of Attorney and not constituting negligence or misconduct.
SECTION 14.3. Limitation on Power of Attorney. The Power of Attorney concurrently granted by each Limited Owner to the Managing Owner shall not authorize the Managing Owner to act on behalf of Limited Owners in any situation in which this Trust Agreement requires the approval of Limited Owners unless such approval has been obtained as required by this Trust Agreement. In the event of any conflict between this Trust Agreement and any instruments filed by the Managing Owner or any new Managing Owner pursuant to this Power of Attorney, this Trust Agreement shall control.
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ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Governing Law. The validity and construction of this Trust Agreement and all amendments hereto shall be governed by the laws of the State of Delaware, and the rights of all parties hereto and the effect of every provision hereof shall be subject to and construed according to the laws of the State of Delaware without regard to the conflict of laws provisions thereof; provided, however, that causes of action for violations of U.S. federal or state securities laws shall not be governed by this Section, and provided, further, that the parties hereto intend that the provisions hereof shall control over any contrary or limiting statutory or common law of the State of Delaware (other than the Delaware Trust Statute) and that, to the maximum extent permitted by applicable law, there shall not be applicable to the Trust, the Trustee, the Managing Owner, the Unitholders or this Trust Agreement any provision of the laws (statutory or common) of the State of Delaware (other than the Delaware Trust Statute) pertaining to trusts which relate to or regulate in a manner inconsistent with the terms hereof: (a) the filing with any court or governmental body or agency of trustee accounts or schedules of trustee fees and charges, (b) affirmative requirements to post bonds for trustees, officers, agents, or employees of a trust, (c) the necessity for obtaining court or other governmental approval concerning the acquisition, holding or disposition of real or personal property, (d) fees or other sums payable to trustees, officers, agents or employees of a trust, (e) the allocation of receipts and expenditures to income or principal, (f) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding of trust assets, or (g) the establishment of fiduciary or other standards or responsibilities or limitations on the acts or powers of trustees or managers that are inconsistent with the limitations on liability or authorities and powers of the Trustee or the Managing Owner set forth or referenced in this Trust Agreement. Section 3540 of Title 12 of the Delaware Code shall not apply to the Trust. The Trust shall be of the type commonly called a statutory trust, and without limiting the provisions hereof, the Trust may exercise all powers that are ordinarily exercised by such a statutory trust under Delaware law. The Trust specifically reserves the right to exercise any of the powers or privileges afforded to statutory trusts and the absence of a specific reference herein to any such power, privilege or action shall not imply that the Trust may not exercise such power or privilege or take such actions.
SECTION 15.2. Provisions In Conflict With Law or Regulations.
(a) The provisions of this Trust Agreement are severable, and if the Managing Owner shall determine, with the advice of counsel, that any one or more of such provisions (the Conflicting Provisions) are in conflict with the Code, the Delaware Trust Statute or other applicable U.S. federal or state laws, the Conflicting Provisions shall be deemed never to have constituted a part of this Trust Agreement, even without any amendment of this Trust Agreement pursuant to this Trust Agreement; provided, however, that such determination by the Managing Owner shall not affect or impair any of the remaining provisions of this Trust Agreement or render invalid or improper any action taken or omitted prior to such determination. No Managing Owner or Trustee shall be liable for making or failing to make such a determination.
(b) If any provision of this Trust Agreement shall be held invalid or unenforceable in any jurisdiction, such holding shall not in any manner affect or render invalid or unenforceable such provision in any other jurisdiction or any other provision of this Trust Agreement in any jurisdiction.
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SECTION 15.3. Construction. In this Trust Agreement, unless the context otherwise requires, words used in the singular or in the plural include both the plural and singular and words denoting any gender include all genders. The title and headings of different parts are inserted for convenience and shall not affect the meaning, construction or effect of this Trust Agreement.
SECTION 15.4. Notices. All notices or communications under this Trust Agreement (other than requests for redemption of Units, notices of assignment, transfer, pledge or encumbrance of Units, and reports and notices by the Managing Owner to the Limited Owners) shall be in writing and shall be effective upon personal delivery, or if sent by mail, postage prepaid, or if sent electronically, by facsimile or by overnight courier; and addressed, in each such case, to the address set forth in the books and records of the Trust or such other address as may be specified in writing, of the party to whom such notice is to be given, upon the deposit of such notice in the United States mail, upon transmission and electronic confirmation thereof or upon deposit with a representative of an overnight courier, as the case may be. Requests for redemption, notices of assignment, transfer, pledge or encumbrance of Units shall be effective upon timely receipt by the Managing Owner in writing.
SECTION 15.5. Counterparts. This Trust Agreement may be executed in several counterparts, and all so executed shall constitute one agreement, binding on all of the parties hereto, notwithstanding that all the parties are not signatory to the original or the same counterpart.
SECTION 15.6. Binding Nature of Trust Agreement. The terms and provisions of this Trust Agreement shall be binding upon and inure to the benefit of the heirs, custodians, executors, estates, administrators, personal representatives, successors and permitted assigns of the respective Unitholders. For purposes of determining the rights of any Unitholder or assignee hereunder, the Trust and the Managing Owner may rely upon the Trust records as to who are Unitholders and permitted assignees, and all Unitholders and assignees agree that the Trust and the Managing Owner, in determining such rights, shall rely on such records and that Limited Owners and assignees shall be bound by such determination.
SECTION 15.7. No Legal Title to Trust Estate. Subject to the provisions of Section 1.8 in the case of the Managing Owner, the Unitholders shall not have legal title to any part of the Trust Estate.
SECTION 15.8. Creditors. No creditors of any Unitholders shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to the Trust Estate.
SECTION 15.9. Integration. This Trust Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
SECTION 15.10. Goodwill; Use of Name. No value shall be placed on the name or goodwill of the Trust, which shall belong exclusively to Invesco PowerShares Capital Management LLC.
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IN WITNESS WHEREOF, the undersigned have duly executed this Fifth Amended and Restated Declaration of Trust and Trust Agreement as of the day and year first above written.
46
WILMINGTON TRUST COMPANY, as Trustee | ||
By: | /s/ | |
Name: | ||
Title: | ||
INVESCO POWERSHARES CAPITAL MANAGEMENT LLC, as Managing Owner | ||
By: | /s/ | |
Name: | ||
Title: | ||
By: | /s/ | |
Name: | ||
Title: |
47
All Limited Owners now and hereafter admitted as Limited Owners of the Trust and reflected in the records maintained by the Depository, the DTC Participants or the Indirect Participants, as the case may be, as Limited Owners from time to time, pursuant to powers of attorney now and hereafter executed in favor of, and granted and delivered to, the Managing Owner by each of the Limited Owners
INVESCO POWERSHARES CAPITAL MANAGEMENT LLC, as attorney-in-fact | ||
By: | /s/ | |
Name: | ||
Title: | ||
By: | /s/ | |
Name: | ||
Title: |
48
EXHIBIT A
CERTIFICATE OF TRUST AND CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF TRUST
A-1
A-2
EXHIBIT B
DESCRIPTION OF THE INDEX
B-1
EXHIBIT C
FORM OF GLOBAL CERTIFICATE
CERTIFICATE OF BENEFICIAL INTEREST
-Evidencing-
All Limited Units
-in-
POWERSHARES DB G10 CURRENCY HARVEST FUND
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
This is to certify that CEDE & CO. is the owner and registered holder of this Certificate evidencing the ownership of all issued and outstanding Limited Units (Units), each of which represents a fractional undivided unit of beneficial interest in PowerShares DB G10 Currency Harvest Fund (the Trust), a Delaware statutory trust formed under the Delaware Statutory Trust Act (12 Del. C. § 3801 et seq.) pursuant to a Certificate of Trust, dated as of and filed in the offices of the Secretary of State of the State of Delaware on April 12, 2006 and as amended from time-to-time (as applicable), and a Amended and Restated Declaration of Trust and Trust Agreement, dated as of [], 20[], by and among Invesco PowerShares Capital Management LLC, a Delaware limited liability company, as managing owner, Wilmington Trust Company, a Delaware banking company, as trustee, and the unitholders from time to time thereunder (hereinafter called the Trust Agreement), copies of which are available at the principal offices of the Trust.
At any given time this Certificate shall represent all limited units of beneficial interest in the Trust, which shall be the total number of Units that are outstanding at such time. The Trust Agreement provides for the deposit of cash with the Trust from time to time and the issuance by the Trust of additional Creation Baskets representing the undivided units of beneficial interest in the assets of the Trust. At the request of the registered holder this Certificate may be exchanged for one or more Certificates issued to the registered holder in such denominations as the registered holder may request, provided, however, that, in the aggregate, the Certificates issued to the registered holder hereof shall represent all Units outstanding at any given time.
Each Authorized Participant hereby grants and conveys all of its rights, title and interest in and to the Trust to the extent of the undivided interest represented hereby to the registered holder of this Certificate subject to and in pursuance of this Trust Agreement, all the terms, conditions and covenants of which are incorporated herein as if fully set forth at length.
The registered holder of this Certificate is entitled at any time upon tender of this Certificate to the Trust, endorsed in blank or accompanied by all necessary instruments of assignment and transfer in proper form, at its principal office in the State of New York and, upon payment of any tax or other governmental charges, to receive at the time and in the manner provided in this Trust Agreement, such holders ratable portion of the assets of the Trust for each Redemption Basket tendered and evidenced by this Certificate.
The holder of this Certificate, by virtue of the purchase and acceptance hereof, assents to and shall be bound by the terms of this Trust Agreement, copies of which are on file and available for inspection at reasonable times during business hours at the principal office of the Trust, to which reference is made for all the terms, conditions and covenants thereof.
C-1
The Trust may deem and treat the person in whose name this Certificate is registered upon the books of the Trust as the owner hereof for all purposes and the Trust shall not be affected by any notice to the contrary.
The Trust Agreement permits, with certain exceptions as therein provided, the amendment thereof, by the Managing Owner with the consent of the Beneficial Owners holding Units (excluding Units held by the Managing Owner and its Affiliates) equal to at least a majority (over 50%) of the net asset value of the Trust or such higher percentage as may be required by applicable law; provided, however that the Managing Owner may, without the approval of the Beneficial Owners, make such amendments to this Trust Agreement which (i) are necessary to add to the representations, duties or obligations of the Managing Owner or surrender any right or power granted to the Managing Owner in this Trust Agreement, for the benefit of the Beneficial Owners, (ii) are necessary to cure any ambiguity, to correct or supplement any provision in this Trust Agreement which may be inconsistent with any other provision in this Trust Agreement or in the Prospectus, or to make any other provisions with respect to matters or questions arising under this Trust Agreement or the Prospectus which will not be inconsistent with the provisions of this Trust Agreement or the Prospectus, or (iii) the Managing Owner deems advisable, provided, however, that no amendment shall be adopted pursuant to clause (iii) unless the adoption thereof (A) is not adverse to the interests of the Beneficial Owners; (B) is consistent with Managing Owners control of and power to conduct the business of the Trust; (C) with certain exceptions, does not affect the allocation of Profits and Losses among the Beneficial Owners or between the Beneficial Owners and the Managing Owner; and (D) does not adversely affect the limitations on liability of the Beneficial Owners or the status of the Trust as a partnership for U.S. federal income tax purposes. Any such consent or waiver by the holder of Units shall be conclusive and binding upon such holder of Units andupon all future holders of Units, and shall be binding upon any Units, whether evidenced by a Certificate or held in uncertificated form, issued upon the registration or transfer hereof whether or not notation of such consent or waiver is made upon this Certificate and whether or not the Units evidenced hereby are at such time in uncertificated form. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of any holders of Units.
The Trust Agreement, and this Certificate, is executed and delivered by Invesco PowerShares Capital Management LLC, as Managing Owner, in the exercise of the powers and authority conferred and vested in it by this Trust Agreement. The representations, undertakings and agreements made on the part of the Trust in this Trust Agreement or this Certificate are made and intended not as personal representations, undertakings and agreements by Invesco PowerShares Capital Management LLC but are made and intended for the purpose of binding only the Trust. Nothing in the Agreement or this Certificate shall be construed as creating any liability on Invesco PowerShares Capital Management LLC, individually or personally, to fulfill any representation, undertaking or agreement other than as provided in this Trust Agreement or this Certificate.
This Certificate shall not become valid or binding for any purpose until properly executed by the Managing Owner pursuant to this Trust Agreement.
Terms not defined herein have the same meaning as in this Trust Agreement.
C-2
IN WITNESS WHEREOF, Invesco PowerShares Capital Management LLC, as Managing Owner, has caused this Certificate to be executed in its name by the manual or facsimile signature of the following Authorized Officers.
Invesco PowerShares Capital Management LLC, as Managing Owner | ||
By: | ||
Authorized Officer | ||
Date: | , 20[] |
C-3
EXHIBIT D
FORM OF PARTICIPANT AGREEMENT
D-1
Exhibit 5.1
, 201
PowerShares DB G10 Currency Harvest Fund
c/o DB Commodity Services LLC
60 Wall Street
New York, New York 10005
Re: | PowerShares DB G10 Currency Harvest Fund |
Ladies and Gentlemen:
We have acted as special Delaware counsel to PowerShares DB G10 Currency Harvest Fund (the Fund), a Delaware statutory trust (the Fund), in connection with the matters set forth herein. This opinion is being delivered to you at your request.
We have examined and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to enable us to render the opinions expressed below, including the following documents:
(a) | The Certificate of Trust of the Fund, as filed with the Secretary of State of the State of Delaware (the Secretary of State) on April 12, 2006 and as amended on July 20, 2006 (the Certificate of Trust); |
(b) | The Declaration of Trust and Trust Agreement of the Fund, dated as of April 12, 2006, between DB Commodity Services LLC, a Delaware limited liability company, as managing owner, and Wilmington Trust Company, a Delaware corporation with trust powers, as trustee (the Trustee) of the Fund, and as amended on July 19, 2006; |
PowerShares DB G10 Currency Harvest Fund
, 201
Page 2
(c) | The Post-Effective Amendment No. to Registration Statement on Form S-3, to be filed by the Fund with the Securities and Exchange Commission on or about , 201 (the Registration Statement), including a preliminary prospectus (the Prospectus) relating to the common units of beneficial interests in the Fund (collectively, the Limited Units); |
(d) | The Fifth Amended and Restated Declaration of Trust and Trust Agreement of the Fund, dated as of , 201 , by and among Invesco Powershares Capital Management LLC, as managing owner (the Managing Owner), the Trustee and the Unitholders from time to time thereunder (the Trust Agreement); |
(e) | A form of Participant Agreement entered into by the Fund, the Managing Owner and each Authorized Participant (as defined in the Prospectus (collectively, the Participant Agreements); and |
(f) | Certificate of Good Standing for the Fund, dated , 201 , obtained from the Secretary of State. |
As to various questions of fact material to our opinion, we have relied upon the representations made in the foregoing documents. With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures. Capitalized terms used herein and not otherwise defined are used as defined in, or by reference in, the Trust Agreement.
Based upon and subject to the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinbelow, it is our opinion that:
1. The Fund has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801 et seq. (the Act).
2. The Limited Units to be issued by the Fund will be validly issued and, subject to the qualifications set forth herein, will be fully paid and nonassessable beneficial interests in the Funds, as to which the Limited Owners, as beneficial owners of the Fund, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit under the General Corporation Law of the State of Delaware. The Limited Owners may be obligated to make certain payments provided for in Sections 4.7(f) and 6.9 of the Trust Agreement.
PowerShares DB G10 Currency Harvest Fund
, 201
Page 3
The foregoing opinions are subject to the following assumptions, exceptions, qualifications and limitations:
A. We are admitted to practice law in the State of Delaware, and we do not hold ourselves out as being experts on the law of any other jurisdiction. The foregoing opinions are limited to the laws of the State of Delaware (excluding securities laws) currently in effect. We have not considered and express no opinion on the laws of any other state or jurisdiction, including federal laws or rules and regulations thereunder.
B. We have assumed (i) that the Trust Agreement and the Certificate of Trust are in full force and effect and have not been amended and the Trust Agreements will be in full force and effect when the Limted Units are issued by the Funds, (ii) except to the extent set forth in paragraph 1 above, the due creation, due formation or due organization, as the case may be, and valid existence in good standing of each party to the documents examined by us (other than the Fund) under the laws of the jurisdiction governing its creation, formation or organization, (iii) the legal capacity of each natural person who is a party to the documents examined by us, (iv) that each of the parties to the documents examined by us (other than the Fund) has the power and authority to execute and deliver, and to perform its obligations under, such documents, (v) that each of the parties to the documents examined by us (other than the Fund) has duly authorized, executed and delivered such documents, (vi) to the extent applicable, the due submission to the Managing Owner of a Purchase Order Subscription Agreement by each Authorized Participant (as defined in the Prospectus); (vii) the due acceptance by the Managing Owner of each Purchase Order Subscription Agreement and the due issuance in accordance with the Trust Agreement of the Limited Units relating thereto to the Authorized Participants (as defined in the Prospectus); (viii) the payment by each Authorized Participant (as defined in the Prospectus) to the Fund of the full consideration due from it for the Limited Units subscribed to by it; (ix) the Limited Units will be offered and sold as described in the Registration Statement, the Participant Agreements and the Trust Agreement and (x) that any amendment or restatement of any document reviewed by us has been accomplished in accordance with, and was permitted by, the relevant provisions of said document prior to its amendment or restatement from time to time.
C. We have not participated in the preparation of the Registration Statement (except for providing this opinion) or the Prospectus and assume no responsibility for their contents, other than this opinion.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement filed with the Securities and Exchange Commission. We also hereby consent to the
PowerShares DB G10 Currency Harvest Fund
, 201
Page 4
use of our name under the heading Legal Matters in the Prospectus. In giving the foregoing consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations thereunder.
Very truly yours,
EAM/JWP
Exhibit 8.1
December 8, 2014
DB Commodity Services LLC
as Managing Owner of PowerShares DB G10
Currency Harvest Fund
c/o DB Commodity Services LLC
60 Wall Street
New York, New York 10005
Re: | PowerShares DB G10 Currency Harvest Fund |
Post-Effective Amendment No. 1 to |
Registration Statement on Form S-3 filed with the Securities and |
Exchange Commission on or about December 8, 2014 |
Dear Sir or Madam:
We have acted as your counsel in connection with the preparation and filing with the Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended, of the Post-Effective Amendment No. 1 to Registration Statement on Form S-3, filed with the SEC on or about December 8, 2014 (the Registration Statement) of PowerShares DB G10 Currency Harvest Fund (the Fund), a Delaware statutory trust organized on April 12, 2006.
We have reviewed such documents, questions of law and fact and other matters as we have deemed pertinent for the purpose of this opinion. Based upon the foregoing, we hereby confirm our opinion contained under the heading Material U.S. Federal Income Tax Considerations in the Prospectus constituting a part of the Registration Statement that the Fund will be classified as a partnership for U.S. federal income tax purposes.
We also advise you that the tax discussion under the captions The Risks You Face, paragraphs (25), (26) and (27), Summary U.S. Federal Income Tax Considerations, and Material U.S. Federal Income Tax Considerations in the Prospectus constituting a part of the Registration Statement correctly describes the material aspects of the U.S. federal income tax treatment to a United States individual taxpayer, as of the date hereof, of an investment in the Fund.
Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships. |
DB Commodity Services LLC
December 8, 2014
Page 2
Our opinion represents our best legal judgment with respect to the proper U.S. federal income tax treatment of the Fund and United States individual taxpayers investing in the Fund, based on the materials reviewed. Our opinion assumes the accuracy of the facts as represented in documents reviewed or as described to us and could be affected if any of the facts as so represented or described are inaccurate.
We hereby consent to the filing of our opinion as Exhibit 8.1 to this Registration Statement and to all references to our Firm included or made a part of this Registration Statement. In addition, we hereby consent to the discussion of our opinion in the Prospectus constituting part of this Registration Statement under the caption Material U.S. Federal Income Tax Considerations.
Very truly yours,
/s/ Sidley Austin LLP
Exhibit 23.1
CONSENT OF COUNSEL
We hereby consent to the reference to us in the Prospectus constituting part of this Post-Effective Amendment No. 1 to Registration Statement, under the captions Material U.S. Federal Income Tax Considerations and Legal Matters.
New York, New York | /s/ Sidley Austin LLP | |||||
December 8, 2014 |
Exhibit 23.4
Consent of Independent Registered Public Accounting Firm
The Board of Managers
DB Commodity Services LLC:
We consent to the incorporation by reference in the Prospectus that is a part of the Registration Statement on Form S-3 of PowerShares DB G10 Currency Harvest Fund of our report dated February 22, 2013, with respect to the statement of financial condition, including the schedule of investments, of PowerShares DB G10 Currency Harvest Fund as of December 31, 2012, and the related statements of income and expenses, changes in shareholders equity, and cash flows for each of the years in the two-year period ended December 31, 2012, incorporated in the Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2013.
We consent to the incorporation by reference in the Prospectus that is a part of the Registration Statement on Form S-3 of PowerShares DB G10 Currency Harvest Fund of our report dated March 20, 2013, with respect to the statement of financial condition of DB Commodity Services LLC as of December 31, 2012, and the related statements of income and expenses, changes in members capital, and cash flows for the year then ended, incorporated in the Prospectus by reference to the Current Report on Form 8-K dated March 13, 2014.
We also consent to the reference to our firm under the heading Experts in the above noted Prospectus filing.
/s/ KPMG LLP
New York, New York
December 8, 2014
Exhibit 23.5
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (No. 333-192126) of our report dated March 3, 2014 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in PowerShares DB G10 Currency Harvest Funds Annual Report on Form 10-K for the year ended December 31, 2013.
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (No. 333-192126) of PowerShares DB G10 Currency Harvest Fund of our report dated February 24, 2014 relating to the financial statements of DB Commodity Services LLC which appears in the current report on Form 8-K dated March 13, 2014.
We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
December 5, 2014
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