As filed with the Securities and Exchange Commission on February 12, 2019.
File No. 333-227097
File No. 811-23376
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM N-1A
x | REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
o | Pre-Effective Amendment No. | |
x | Post-Effective Amendment No. 1 | |
and/or
x | REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 |
x | Amendment No. 4 | |
PACIFIC GLOBAL ETF TRUST
(Exact Name of Registrant as Specified in Charter)
840 Newport Center Drive,
7th Floor
Newport Beach, California
92660
(Address
of Principal Executive Offices) (Zip Code)
Registrants Telephone Number, including Area Code: (949) 219-3391
National Registered Agents, Inc.
160 Greentree Drive, Suite 101
Dover, DE 19904
(Name and address of agent for service)
Copies of communications to:
J.G. Lallande, Esq.
Assistant Vice President & Counsel
Pacific Global Asset Management LLC
840 Newport Center Drive, 7th Floor
Newport Beach, CA 92660
Bibb L. Strench, Esq.
Thompson Hine LLP
1919 M Street, N.W., Suite 700
Washington, D.C. 20036-1600
It is proposed that this filing will become effective immediately upon filing pursuant to Rule 462(d) under the Securities Act of 1933, as amended.
Explanatory Note
This Post-Effective Amendment No. 1 to the Registration Statement on Form N-1A (File No. 333-227097) of Pacific Global ETF Trust, with respect to its series Pacific Global US Equity Income ETF (the Registration Statement) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the Securities Act), solely for the purpose of filing an exhibit to the Registration Statement.
This Post-Effective Amendment No. 1 consists of the following:
1. Facing Sheet of the Registration Statement
2. Part C to the Registration Statement
3. Exhibit (g)(4) to Item 28 to the Registration Statement
This Post-Effective Amendment No. 1 does not modify any other part of the Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 1 shall become effective immediately upon filing with the Securities and Exchange Commission. Part A and B of the Pre-Effective Amendment No. 1 to the Registration Statement are hereby incorporated by reference.
PART C: OTHER INFORMATION
Item 28. Exhibits
(a) | (1)(A) | Certificate of Trust dated June 26, 2018, as filed with the State of Delaware on June 26, 2018, for Pacific Global ETF Trust (the Registrant or Trust)1 | ||
(2)(A) | Agreement and Declaration of Trust of the Registrant1 | |||
(b) | (1) | By-Laws of the Registrant1 | ||
(c) | Not Applicable. | |||
(d) | (1) | Form of Management Agreement between the Registrant and Pacific Global Advisors LLC (the Adviser)2 | ||
(2) | Form of Investment Sub-Advisory Agreement between the Adviser and Cadence Capital Management LLC2 | |||
(e) | (1) | Form of Distribution Agreement between the Registrant and Foreside Fund Services, LLC2 | ||
(f) | Not Applicable. | |||
(g) | (1) Custody Agreement between Registrant and U.S. Bank National Association4 | |||
(2) Fund Accounting and Servicing Agreement between Registrant and U.S. Bancorp Fund Services, LLC d/b/a U.S. Bank Global Fund Services4 | ||||
(3) Fund Administration Servicing Agreement between Registrant and U.S. Bancorp Fund Services, LLC d/b/a U.S. Bank Global Fund Services4 | ||||
(4) Transfer Agent Servicing Agreement between Registrant and U.S. Bancorp Fund Services, LLC d/b/a U.S. Bank Global Fund Services5 | ||||
(h) | Form of Authorized Participation Agreement2 | |||
(i) | (1) | Opinion and Consent of Counsel3 | ||
(2) | Private Offering (Seed Money) Agreement3 | |||
(3) | Consent of Counsel4 | |||
(j) | Consent of Independent Registered Public Accounting Firm4 | |||
(k) | Not Applicable. |
(l) | Not Applicable. | ||
(m) | Distribution and Service Plan2 | ||
(n) | Not Applicable. | ||
(o) | Not Applicable. | ||
(p) | (1) | Code of Ethics of the Registrant2 | |
(2) | Code of Ethics of Pacific Global Advisors LLC and Cadence Capital Management LLC2 | ||
(3) | Code of Ethics of Foreside Fund Services, LLC2 | ||
(q) | Powers of Attorney3 |
Other Exhibits:
1 | Incorporated herein by reference to the corresponding exhibit of the Registrants Registration Statement, SEC File No. 333-227097, filed August 29, 2018, accession number 0001104659-18-054109. | |
2 | Incorporated herein by reference to the corresponding exhibit of the Registrants Registration Statement, SEC File No. 333-227097, filed December 11, 2018, accession number 0001104659-18-072400. | |
3 | Incorporated herein by reference to the corresponding exhibit of the Registrants Registration Statement, SEC File No. 333-227097, filed February 1, 2019, accession number 0001104659-19-005066. | |
4 | Incorporated herein by reference to the corresponding exhibit of the Registrants Registration Statement, SEC File No. 333-227097, filed February 6, 2019, accession number 0001104659-19-005914. | |
5 | Is filed herewith. |
Item 29. Persons Controlled by or Under Common Control with the Fund
Not applicable.
Item 30. Indemnification
Pursuant to Section to section 6.1 of the Agreement and Declaration of Trust (the Declaration), every person who is, or has been, a Trustee, officer, or employee of the Trust, including persons who serve at the request of the Trust as directors, trustees, officers, employees or agents of another organization in which the Trust
has an interest as a shareholder, creditor or otherwise (Covered Person), shall be indemnified by the Trust to the fullest extent permitted by law against liability and against all expenses reasonably incurred or paid by him in connection with any claim, action, suit or proceeding in which he becomes involved as a party or otherwise by virtue of his being or having been such a Trustee, director, officer, employee or agent and against amounts paid or incurred by him in settlement thereof.
Insofar as indemnification for liability arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant 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.
Item 31. Business and Other Connections of the Investment Adviser
See Management in the Statement of Additional Information. Information as to the directors and officers of the Adviser is included in its Form ADV filed with the SEC and is incorporated herein by reference thereto.
Item 32. Principal Underwriters
(a) | Foreside Fund Services, LLC (the Distributor) serves as principal underwriter for the following investment companies registered under the Investment Company Act of 1940, as amended: |
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1. ABS Long/Short Strategies Fund 2. Absolute Shares Trust 3. Active Weighting Funds ETF Trust 4. AdvisorShares Trust 5. American Century ETF Trust |
6. ARK ETF Trust 7. Braddock Multi-Strategy Income Fund, Series of Investment Managers Series Trust 8. Bridgeway Funds, Inc. 9. Brinker Capital Destinations Trust 10. Calvert Ultra-Short Duration Income NextShares, Series of Calvert Management Series 11. Center Coast Brookfield MLP & Energy Infrastructure Fund 12. CornerCap Group of Funds 13. Davis Fundamental ETF Trust 14. Direxion Shares ETF Trust 15. Eaton Vance NextShares Trust 16. Eaton Vance NextShares Trust II 17. EIP Investment Trust 18. EntrepreneurShares Series Trust 19. Evanston Alternative Opportunities Fund 20. Exchange Listed Funds Trust (f/k/a Exchange Traded Concepts Trust II) 21. FEG Absolute Access Fund I LLC 22. Fiera Capital Series Trust 23. FlexShares Trust 24. Forum Funds 25. Forum Funds II 26. FQF Trust 27. Friess Small Cap Growth Fund, Series of Managed Portfolio Series 28. GraniteShares ETF Trust 29. Guinness Atkinson Funds 30. Horizons ETF Trust I (f/k/a Recon Capital Series Trust) 31. Infinity Core Alternative Fund 32. Innovator ETFs Trust 33. Innovator ETFs Trust II (f/k/a Elkhorn ETF Trust) 34. Ironwood Institutional Multi-Strategy Fund LLC 35. Ironwood Multi-Strategy Fund LLC 36. John Hancock Exchange-Traded Fund Trust 37. Manor Investment Funds 38. Miller/Howard Funds Trust 39. Miller/Howard High Income Equity Fund 40. Moerus Worldwide Value Fund, Series of Northern Lights Fund Trust IV 41. Morningstar Funds Trust 42. MProved Systematic Long-Short Fund, Series Portfolios Trust 43. MProved Systematic Merger Arbitrage Fund, Series Portfolios Trust 44. MProved Systematic Multi-Strategy Fund, Series Portfolios Trust 45. NYSE® Pickens Oil Response ETF, Series of ETF Series Solutions 46. OSI ETF Trust 47. Palmer Square Opportunistic Income Fund 48. Partners Group Private Income Opportunities, LLC 49. PENN Capital Funds Trust 50. Performance Trust Mutual Funds, Series of Trust for Professional Managers 51. Plan Investment Fund, Inc. 52. PMC Funds, Series of Trust for Professional Managers 53. Point Bridge GOP Stock Tracker ETF, Series of ETF Series Solutions 54. Quaker Investment Trust 55. Ranger Funds Investment Trust 56. Renaissance Capital Greenwich Funds |
57. RMB Investors Trust (f/k/a Burnham Investors Trust) 58. Robinson Opportunistic Income Fund, Series of Investment Managers Series Trust 59. Robinson Tax Advantaged Income Fund, Series of Investment Managers Series Trust 60. Salient MF Trust 61. SharesPost 100 Fund 62. Six Circles Trust 63. Sound Shore Fund, Inc. 64. Steben Alternative Investment Funds 65. Steben Select Multi-Strategy Fund 66. Strategy Shares 67. The 504 Fund (f/k/a The Pennant 504 Fund) 68. The Chartwell Funds 69. The Community Development Fund 70. The Relative Value Fund 71. Third Avenue Trust 72. Third Avenue Variable Series Trust 73. TIFF Investment Program 74. Transamerica ETF Trust 75. U.S. Global Investors Funds 76. Variant Alternative Income Fund 77. VictoryShares Developed Enhanced Volatility Wtd ETF, Series of Victory Portfolios II 78. VictoryShares Dividend Accelerator ETF, Series of Victory Portfolios II 79. VictoryShares Emerging Market High Div Volatility Wtd ETF, Series of Victory Portfolios II 80. VictoryShares Emerging Market Volatility Wtd ETF, Series of Victory Portfolios II 81. VictoryShares International High Div Volatility Wtd ETF, Series of Victory Portfolios II 82. VictoryShares International Volatility Wtd ETF, Series of Victory Portfolios II 83. VictoryShares US 500 Enhanced Volatility Wtd ETF, Series of Victory Portfolios II 84. VictoryShares US 500 Volatility Wtd ETF, Series of Victory Portfolios II 85. VictoryShares US Discovery Enhanced Volatility Wtd ETF, Series of Victory Portfolios II 86. VictoryShares US EQ Income Enhanced Volatility Wtd ETF, Series of Victory Portfolios II 87. VictoryShares US Large Cap High Div Volatility Wtd ETF, Series of Victory Portfolios II 88. VictoryShares US Multi-Factor Minimum Volatility ETF, Series of Victory Portfolios II 89. VictoryShares US Small Cap High Div Volatility Wtd ETF, Series of Victory Portfolios II 90. VictoryShares US Small Cap Volatility Wtd ETF, Series of Victory Portfolios II 91. Vivaldi Opportunities Fund 92. West Loop Realty Fund, Series of Investment Managers Series Trust (f/k/a Chilton Realty Income & Growth Fund) 93. Wintergreen Fund, Inc. 94. WisdomTree Trust 95. WST Investment Trust |
(b) | The following are the Officers and Manager of the Distributor, the Registrants underwriter. The Distributors main business address is Three Canal Plaza, Suite 100, Portland, Maine 04101. |
Name | Address | Position with Underwriter | Position with Registrant |
Richard J. Berthy | Three Canal Plaza, Suite 100, Portland, ME 04101 | President, Treasurer and Manager | None |
Mark A. Fairbanks | Three Canal Plaza, Suite 100, Portland, ME 04101 | Vice President | None |
Jennifer K. DiValerio | 899 Cassatt Road, 400 Berwyn Park, Suite 110, Berwyn, PA 19312 | Vice President | None |
Nanette K. Chern | Three Canal Plaza, Suite 100, Portland, ME 04101 | Vice President and Chief Compliance Officer | None |
Jennifer E. Hoopes | Three Canal Plaza, Suite 100, Portland, ME 04101 | Secretary | None |
(c) | Not Applicable. |
Item 33. Location of Accounts and Records
The books, accounts and other documents required by Section 31(a) under the Investment Company Act of 1940, as amended, and the rules promulgated thereunder are maintained in the physical possession of Pacific Global Advisors LLC, 840 Newport Center Drive, 7th Floor, Newport Beach, CA 92660, U.S. Bancorp Fund Services, LLC, 777 East Wisconsin Avenue, Milwaukee, WI 53202. Foreside Fund Services, LLC maintains all records relating to its services as
Distributor of the Registrant at Three Canal Plaza, Suite 100, Portland, Maine 04101
Item 34. Management Services
Not applicable.
Item 35. Undertakings
None.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the Investment Company Act of 1940 the Fund has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Boston, and State of Massachusetts, on the 12th day of February, 2019.
| Pacific Global ETF Trust | |
| (Registrant) | |
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| By: | /s/ Michael Skillman |
| Name: | Michael Skillman |
Title: | President and CEO |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on February 12, 2019.
Signature |
| Title |
| Date |
/s/ Michael Skillman |
| President and Chief Executive Officer |
| February 12, 2019 |
Michael Skillman |
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/s/ Kevin Byrne* | Trustee and Chairman of the Board | February 12, 2019 | ||
Kevin Byrne | ||||
/s/ Sharon Cheever* | Trustee | February 12, 2019 | ||
Sharon Cheever | ||||
/s/ D. Robinson Cluck* | Trustee | February 12, 2019 | ||
D. Robinson Cluck | ||||
/s/ Robert J. Blattenberg* | Trustee | February 12, 2019 | ||
Robert J. Blattenberg |
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/s/ John C. Siciliano* | Trustee | February 12, 2019 | ||
John C. Siciliano | ||||
/s/ Joshua Schwab | Treasurer and Principal Financial Officer | February 12, 2019 | ||
Joshua Schwab | ||||
*By: /s/ J.G. Lallande
J.G. Lallande, Attorney-in-Fact, pursuant to Powers of Attorney previously filed on February 1, 2019 to the Registrants Registration Statement in Pre-Effective Amendment No. 2, which is hereby incorporated by reference.
Exhibit Index
(g)(4) | Transfer Agent Servicing Agreement between Registrant and U.S. Bancorp Fund Services, LLC d/b/a U.S. Bank Global Fund Services | |
Exhibit 99.(g)(4)
Execution Version
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of the last day written in the signature block below, by and between PACIFIC GLOBAL ETF TRUST, a Delaware statutory trust (the Trust) and U.S. BANCORP FUND SERVICES, LLC d/b/a U.S. BANK GLOBAL FUND SERVICES, a Wisconsin limited liability company (Fund Services). Pacific Global Advisors LLC, a Delaware limited liability company and the investment adviser to the series of Trust (the Adviser), is a party hereto with respect to Section 5 only.
WHEREAS, the Trust is a series trust that consists of multiple series, and is currently comprised of the series listed on Exhibit A attached hereto (each a Fund or an ETF Series). Each Fund issues shares of beneficial interest (Shares) for each ETF Series. The Shares shall be created and redeemed in bundles called Creation Units. The Trust, on behalf of the ETF Series, shall create and redeem Shares of each ETF Series only in Creation Units principally in kind for portfolio securities of the particular ETF Series (Deposit Securities), as more fully described in the current prospectus and statement of additional information of the Trust, included in its registration statement on Form N-1A; and as authorized under the Order of Exemption granted by the Securities and Exchange Commission. Only brokers or dealers that are Authorized Participants and that have entered into an Authorized Participant Agreement with Foreside Fund Services, LLC, the Funds Distributor (the Distributor), acting on behalf of the Trust, shall be authorized to create and redeem Shares in Creation Units from the Trust. The Trust wishes to engage Fund Services to perform certain services on behalf of the Trust with respect to the creation and redemption of Shares, as the Trusts agent, namely to provide transfer agent services for Shares of each ETF Series; and to act as Index Receipt Agent (as such term is defined in the rules of the National Securities Clearing Corporation (NSCC)) with respect to the settlement of trade orders with Authorized Participants. The Trust has engaged U.S. Bank, National Association (the Custodian) to provide custody services under the terms of a Custody Agreement, as supplemented hereby, for the settlement of Creation Units against Deposit Securities and/or cash that shall be delivered by Authorized Participants in exchange for Shares and the redemption of Shares in Creation Unit size against the delivery of Redemption Securities and/or cash of each ETF Series.
WHEREAS, the Trust is registered as an open-end management investment company under the Investment Company Act of 1940, as amended (the 1940 Act); and
WHEREAS, the Trust will ordinarily issue for purchase and redeem Shares only in aggregations of Shares known as Creation Units (at least 25,000 Shares) principally in kind or in cash;
WHEREAS, The Depository Trust Company, a limited purpose trust company organized under the laws of the State of New York (DTC), or its nominee Cede & Company, will be the registered owner (the Shareholder) of all Shares; and
WHEREAS, the Trust desires to retain Fund Services as its transfer agent, dividend disbursing agent, and agent in connection with certain other activities to each series of the Trust listed on Exhibit A attached hereto (as amended from time to time).
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Appointment of Fund Services as Transfer Agent
The Trust hereby appoints Fund Services as transfer agent of the Trust on the terms and conditions set forth in this Agreement, and Fund Services hereby accepts such appointment and agrees to perform the services and duties set forth in this Agreement. The services and duties of Fund Services shall be confined to those matters expressly set forth herein, and no implied duties are assumed by or may be asserted against Fund Services hereunder.
2. Services and Duties of Fund Services
Fund Services shall provide the following transfer agent and dividend disbursing agent services to each Fund:
A. Facilitate purchases and redemption of Creation Units;
B. Prepare and transmit by means of DTCs book-entry system payments for dividends and distributions on or with respect to the Shares declared by the Trust on behalf of the applicable Fund;
C. Maintain the record of the name and address of the Shareholder and the number of Shares issued by the Trust and held by the Shareholder;
D. Record the issuance of Shares of the Trust and maintain a record of the total number of Shares of the Trust which are outstanding, and, based upon data provided to it by the Trust, the total number of authorized Shares. Fund Services shall have no obligation, when recording the issuance of Shares, to monitor the issuance of such Shares;
E. Prepare and transmit to the Trust and the Trusts administrator and to any applicable securities exchange (as specified to Fund Services by the Trust) information with respect to purchases and redemptions of Shares;
F. On days that the Trust may accept orders for purchases or redemptions, calculate and transmit to Fund Services and the Trust the number of outstanding Shares;
G. On days that the Trust may accept orders for purchases or redemptions (pursuant to the Participant Agreement), transmit to Fund Services, the Trust and DTC the amount of Shares purchased on such day;
H. Confirm to DTC the number of Shares issued to the Shareholder, as DTC may reasonably request;
I. Prepare and deliver other reports, information and documents to DTC as DTC may reasonably request;
J. Extend the voting rights to the Shareholder for extension by DTC to DTC participants and the beneficial owners of Shares in accordance with policies and procedures of DTC for book-entry only securities;
K. Maintain those books and records of the Trust specified by the Trust and agreed upon by Fund Services;
L. Prepare a monthly report of all purchases and redemptions of Shares during such month on a gross transaction basis, and identify on a daily basis the net number of Shares either redeemed or purchased on such business day and with respect to each Authorized Participant purchasing or redeeming Shares, the amount of Shares purchased or redeemed;
M. Receive from the Distributor or from its agent purchase orders from Authorized Participants (as defined in the Authorized Participant Agreement) for Creation Unit Aggregations of Shares received in good form and accepted by or on behalf of the Trust by the Distributor, transmit appropriate trade instructions to the NSCC, if applicable, and pursuant to such orders issue the appropriate number of Shares of the Trust and hold such Shares in the account of the Shareholder for each of the respective Funds;
N. Receive from the Authorized Participants redemption requests, deliver the appropriate documentation thereof to the Trusts custodian, generate and transmit or cause to be generated and transmitted confirmation of receipt of such redemption requests to the Authorized Participants submitting the same; transmit appropriate trade instructions to the NSCC, if applicable, and redeem the appropriate number of Creation Unit Aggregations of Shares held in the account of the Shareholder for each of the respective Funds; and
O. Confirm the name, U.S. taxpayer identification number and principal place of business of each Authorized Participant.
In addition to the services set forth above, Fund Services shall: perform the customary services of a transfer agent and dividend disbursing agent including, but not limited to, maintaining the account of the Shareholder; and obtaining at the request of the Trust from the Shareholder a list of DTC participants holding interests in the Global Certificate.
Fund Services shall keep records relating to the services to be performed hereunder, in the form and manner required by applicable laws, rules, and regulations under the 1940 Act and to the extent required by Section 31 of the 1940 Act and the rules thereunder (the Rules), all such books and records shall be the property of the Trust, will be preserved, maintained and made available in accordance with such Section and Rules, and will be surrendered promptly to the Trust on and in accordance with its request.
3. Lost Shareholder Due Diligence Searches and Servicing
The Trust hereby acknowledges that Fund Services has an arrangement with an outside vendor to conduct lost shareholder searches required by Rule 17Ad-17 under the Securities Exchange Act of 1934, as amended (the Exchange Act). Costs associated with such searches will be passed through to the Trust as miscellaneous expenses in accordance with the fee schedule set forth on Exhibit B attached hereto. If a shareholder remains lost and the shareholders account unresolved after completion of the mandatory Rule 17Ad-17 search, the Trust hereby authorizes vendor to enter, at its discretion, into fee sharing arrangements with the lost shareholder (or such lost shareholders representative or executor) to conduct a more in-depth search in order to locate the lost shareholder before the shareholders assets escheat to the applicable state. The Trust hereby acknowledges that Fund Services is not a party to these arrangements and does not receive any revenue sharing or other fees relating to these arrangements. Furthermore, the Trust hereby acknowledges that vendor may receive up to 35% of the lost shareholders assets as compensation for its efforts in locating the lost shareholder.
4. Anti-Money Laundering and Red Flag Identity Theft Prevention Programs
The Trust acknowledges that it has had an opportunity to review, consider and comment upon the written procedures provided by Fund Services describing various tools used by Fund Services which are designed to promote the detection and reporting of potential money laundering activity and identity theft by monitoring certain aspects of shareholder activity as well as written procedures for verifying a customers identity (collectively, the Procedures). Further, the Trust and Fund Services have each determined that the Procedures, as part of the Trusts overall Anti-Money Laundering Program and Red Flag Identity Theft Prevention Program, are reasonably designed to: (i) prevent each Fund from being used for money laundering or the financing of terrorist activities; (ii) prevent identity theft; and (iii) achieve compliance with the applicable provisions of the Bank Secrecy Act, Fair and Accurate Credit Transactions Act of 2003 and the USA Patriot Act of 2001 and the implementing regulations thereunder.
Based on this determination, the Trust hereby instructs and directs Fund Services to implement the Procedures on the Trusts behalf, as such may be amended or revised from time to time. It is contemplated that these Procedures will be amended from time to time by the parties as additional regulations are adopted and/or regulatory guidance is provided relating to the Trusts anti-money laundering and identity theft responsibilities.
Fund Services agrees to provide to the Trust:
(a) Prompt written notification of any transaction or combination of transactions that Fund Services believes, based on the Procedures, evidence money laundering or identity theft activities in connection with the Trust or any Fund shareholder;
(b) Prompt written notification of any customer(s) that Fund Services reasonably believes, based upon the Procedures, to be engaged in money laundering or identity theft activities, provided that the Trust agrees not to communicate this information to the customer;
(c) Any reports received by Fund Services from any government agency or applicable industry self-regulatory organization pertaining to Fund Services Anti-Money Laundering Program or the Red Flag Identity Theft Prevention Program on behalf of the Trust;
(d) Prompt written notification of any action taken in response to anti-money laundering violations or identity theft activity as described in (a), (b) or (c) immediately above; and
(e) Certified annual and quarterly reports of its monitoring and customer identification activities pursuant to the Procedures on behalf of the Trust.
The Trust hereby directs, and Fund Services acknowledges, that Fund Services shall (i) permit federal regulators access to such information and records maintained by Fund Services and relating to Fund Services implementation of the Procedures, on behalf of the Trust, as they may request, and (ii) permit such federal regulators to inspect Fund Services implementation of the Procedures on behalf of the Trust.
5. Compensation
In consideration for the services to be performed hereunder by Fund Services, the Adviser shall compensate Fund Services as set forth on Exhibit B attached hereto (as amended from time to time by written request of the parties to this Agreement). The Adviser shall pay the fees set out in Exhibit B together with the fees for all other services provided to the Trust by Fund Services (including its parent and affiliated entities) pursuant to a certain Fund Administration Servicing Agreement, Fund Accounting Agreement and Custody Agreement as a combined unitary fee to Fund Services. Fund Services shall be reimbursed for such miscellaneous expenses (e.g., telecommunication charges, postage and delivery charges, and reproduction charges) as are reasonably incurred by Fund Services in performing its duties hereunder. Fund Services shall also be compensated for any increases in costs due to the adoption of any material new or amended industry, regulatory or other applicable rules. The Adviser shall pay all such fees and reimbursable expenses within thirty (30) calendar days following receipt of the monthly billing notice, except for any fee or expense subject to a good faith dispute. The Adviser shall notify Fund Services in writing within thirty (30) calendar days following receipt of each invoice if the Trust is disputing any amounts in good faith. The Adviser shall pay such disputed amounts within 10 calendar days of the day on which the parties agree to the amount to be paid, if any.
6. Representations and Warranties
A. The Trust hereby represents and warrants to Fund Services, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement and to perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered by the Trust in accordance with all requisite action and constitutes a valid and legally binding obligation of the Trust, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties;
(3) It is conducting its business in compliance in all material respects with all applicable laws and regulations, both state and federal, and has obtained all regulatory approvals necessary to carry on its business as now conducted; there is no statute, rule, regulation, order or judgment binding on it and no provision of its charter, bylaws or any contract binding it or affecting its property which would prohibit its execution or performance of this Agreement; and
(4) A registration statement under the 1940 Act and the Securities Act of 1933, as amended, will be made effective prior to the effective date of this Agreement and will remain effective during the term of this Agreement, and appropriate state securities law filings will be made prior to the effective date of this Agreement and will continue to be made during the term of this Agreement as necessary to enable the Trust to make a continuous public offering of its shares.
B. Fund Services hereby represents and warrants to the Trust, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement and to perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered by Fund Services in accordance with all requisite action and constitutes a valid and legally binding obligation of Fund Services, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties;
(3) It is conducting its business in compliance in all material respects with all applicable laws and regulations, both state and federal, and has obtained all regulatory approvals necessary to carry on its business as now conducted; there is no statute, rule, regulation, order or judgment binding on it and no provision of its charter, bylaws or any contract binding it or affecting its property which would prohibit its execution or performance of this Agreement; and
(4) It is a registered transfer agent under the Exchange Act.
7. Standard of Care; Indemnification; Limitation of Liability
A. Fund Services shall exercise reasonable care in the performance of its duties under this Agreement. Fund Services shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Trust in connection with its duties under this Agreement, including losses resulting from mechanical breakdowns or the failure of communication or power supplies beyond fund Services control, except a loss arising out of or relating to Fund Services refusal or failure to comply with the terms of this Agreement or from its bad faith, negligence, or willful misconduct in the performance of its duties under this Agreement. Notwithstanding any other provision of this Agreement, if Fund Services has exercised reasonable care in the performance of its duties under this Agreement, the Trust shall indemnify and hold harmless Fund Services from and against any and all claims, demands, losses, expenses, and liabilities of any and every nature (including reasonable attorneys fees) that Fund Services may sustain or incur or that may be asserted against Fund Services by any person arising out of any action taken or omitted to be taken by it in performing the services hereunder (i) in accordance with the foregoing standards, or (ii) in reliance upon any written or oral instruction provided to Fund Services by any duly authorized officer of the Trust, as approved by the Board of Trustees of the Trust (the Board of Trustees), except for any and all claims, demands, losses, expenses, and liabilities arising out of or relating to Fund Services refusal or failure to comply with the terms of this Agreement or from its bad faith, negligence or willful misconduct in the performance of its duties under this Agreement. This indemnity shall be a continuing obligation of the Trust, its successors and assigns, notwithstanding the termination of this Agreement. As used in this paragraph, the term Fund Services shall include Fund Services directors, officers and employees.
Fund Services shall indemnify and hold the Trust harmless from and against any and all claims, demands, losses, expenses, and liabilities of any and every nature (including reasonable attorneys fees) that the Trust may sustain or incur or that may be asserted against the Trust by any person arising out of any action taken or omitted to be taken by Fund Services as a result of Fund Services refusal or
failure to comply with the terms of this Agreement, or from its bad faith, negligence, or willful misconduct in the performance of its duties under this Agreement. This indemnity shall be a continuing obligation of Fund Services, its successors and assigns, notwithstanding the termination of this Agreement. As used in this paragraph, the term Trust shall include the Trusts directors, trustees, officers and employees.
Neither party to this Agreement shall be liable to the other party for consequential, special or punitive damages under any provision of this Agreement.
In the event of a mechanical breakdown or failure of communication or power supplies beyond its control, Fund Services shall take all reasonable steps to minimize service interruptions for any period that such interruption continues. Fund Services will make every reasonable effort to restore any lost or damaged data and correct any errors resulting from such a breakdown at the expense of Fund Services. Fund Services agrees that it shall, at all times, have reasonable contingency plans with appropriate parties, making reasonable provision for emergency use of electrical data processing equipment to the extent appropriate equipment is available. Representatives of the Trust shall be entitled to inspect Fund Services premises and operating capabilities at any time during regular business hours of Fund Services, upon reasonable notice to Fund Services. Moreover, Fund Services shall provide the Trust, at such times as the Trust may reasonably require, copies of reports rendered by independent accountants on the internal controls and procedures of Fund Services relating to the services provided by Fund Services under this Agreement.
Notwithstanding the above, Fund Services reserves the right to reprocess and correct administrative errors at its own expense.
B. In order that the indemnification provisions contained in this section shall apply, it is understood that if in any case the indemnitor may be asked to indemnify or hold the indemnitee harmless, the indemnitor shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that the indemnitee will use all reasonable care to notify the indemnitor promptly concerning any situation that presents or appears likely to present the probability of a claim for indemnification. The indemnitor shall have the option to defend the indemnitee against any claim that may be the subject of this indemnification. In the event that the indemnitor so elects, it will so notify the indemnitee and thereupon the indemnitor shall take over complete defense of the claim, and the indemnitee shall in such situation initiate no further legal or other expenses for which it shall seek indemnification under this section. The indemnitee shall in no case confess any claim or make any compromise in any case in which the indemnitor will be asked to indemnify the indemnitee except with the indemnitors prior written consent.
C. The indemnity and defense provisions set forth in this Section 7 shall indefinitely survive the termination and/or assignment of this Agreement.
D. If Fund Services is acting in another capacity for the Trust pursuant to a separate agreement, nothing herein shall be deemed to relieve Fund Services of any of its obligations in such other capacity.
8. Data Necessary to Perform Services
The Trust or its agent shall furnish to Fund Services the data necessary to perform the services described herein at such times and in such form as mutually agreed upon.
9. Proprietary and Confidential Information
Fund Services agrees on behalf of itself and its directors, officers, and employees to treat confidentially and as proprietary information of the Trust, all records and other information relative to the Trust and prior, present, or potential shareholders of the Trust (and clients of said shareholders), and not to use such records and information for any purpose other than the performance of its responsibilities and duties hereunder, except (i) after prior notification to and approval in writing by the Trust, which approval shall not be unreasonably withheld and may not be withheld where Fund Services may be exposed to civil or criminal contempt proceedings for failure to comply, (ii) when requested to divulge such information by duly constituted authorities, or (iii) when so requested by the Trust. Records and other information which have become known to the public through no wrongful act of Fund Services or any of its employees, agents or representatives, and information that was already in the possession of Fund Services prior to receipt thereof from the Trust or its agent, shall not be subject to this paragraph.
Further, Fund Services will adhere to the privacy policies adopted by the Trust pursuant to Title V of the Gramm-Leach-Bliley Act, as may be modified from time to time. In this regard, Fund Services shall have in place and maintain physical, electronic and procedural safeguards reasonably designed to protect the security, confidentiality and integrity of, and to prevent unauthorized access to or use of, records and information relating to the Trust and its shareholders.
10. Records
Fund Services shall keep records relating to the services to be performed hereunder in the form and manner, and for such period, as it may deem advisable and is agreeable to the Trust, but not inconsistent with the rules and regulations of appropriate government authorities, in particular, Section 31 of the 1940 Act and the rules thereunder. Fund Services agrees that all such records prepared or maintained by Fund Services relating to the services to be performed by Fund Services hereunder are the property of the Trust and will be preserved, maintained, and made available in accordance with such applicable sections and rules of the 1940 Act and will be promptly surrendered to the Trust or its designee on and in accordance with its request.
11. Compliance with Laws
The Trust has and retains primary responsibility for all compliance matters relating to the Fund, including but not limited to compliance with the 1940 Act, the Internal Revenue Code of 1986, the Sarbanes-Oxley Act of 2002, the USA Patriot Act of 2001 and the policies and limitations of the Fund relating to its portfolio investments as set forth in its Prospectus and statement of additional information. Fund Services services hereunder shall not relieve the Trust of its responsibilities for assuring such compliance or the Board of Trustees oversight responsibility with respect thereto.
12. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written above and will continue in effect for a period of two (2) years. This Agreement may be terminated by either party upon giving 90 days prior written notice to the other party or such shorter period as is mutually agreed upon by the parties. Subsequent to the end of the two (2) year period, this Agreement continues until one party gives 90 days prior written notice to the other party or such shorter period as is mutually agreed upon by the parties. Notwithstanding the foregoing, this Agreement may be terminated by any party upon the breach of the other party of any material term of this Agreement if such breach is not cured within 15 days of notice of such breach to the breaching party. This Agreement may not be amended or modified in any manner except by written agreement executed by Fund Services and the Trust, and authorized or approved by the Board of Trustees.
13. Early Termination
In the absence of any material breach of this Agreement, should the Trust elect to terminate this Agreement prior to the end of the two (2) year term, the Trust agrees to pay the following fees:
a. all monthly fees through the life of the Agreement, including the repayment of any negotiated discounts;
b. all fees associated with converting services to successor service provider;
c. all fees associated with any record retention and/or tax reporting obligations that may not be eliminated due to the conversion to a successor service provider;
d. all miscellaneous costs associated with a-c above
14. Duties in the Event of Termination
In the event that, in connection with the termination of this Agreement, a successor to any of Fund Services duties or responsibilities hereunder is designated by the Trust by written notice to Fund Services, Fund Services will promptly, upon such termination and at the expense of the Trust, transfer to such successor all relevant books, records, correspondence, and other data established or maintained by Fund Services under this Agreement in a form reasonably acceptable to the Trust (if such form differs from the form in which Fund Services has maintained the same, the Trust shall pay any expenses associated with transferring the data to such form), and will cooperate in the transfer of such duties and responsibilities, including provision for assistance from Fund Services personnel in the establishment of books, records,
and other data by such successor. The Fund shall also be responsible for any fees associated with any record retention and/or tax reporting obligations that may not be eliminated due to the conversion to a successor provider. If no such successor is designated, then such books, records and other data shall be returned to the Trust.
15. Assignment
This Agreement shall extend to and be binding upon the parties hereto and their respective successors and assigns; provided, however, that this Agreement shall not be assignable by the Trust without the written consent of Fund Services, or by Fund Services without the written consent of the Trust accompanied by the authorization or approval of the Board of Trustees.
16. Governing Law
This Agreement shall be governed and construed in accordance with the laws of the State of Wisconsin, without regard to conflicts of law principles. To the extent that the applicable laws of the State of Wisconsin, or any of the provisions herein, conflict with the applicable provisions of the 1940 Act, the latter shall control, and nothing herein shall be construed in a manner inconsistent with the 1940 Act or any rule or order of the Securities and Exchange Commission thereunder.
17. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower either party to act as agent for the other party to this Agreement, or to conduct business in the name, or for the account, of the other party to this Agreement.
18. Services Not Exclusive
Nothing in this Agreement shall limit or restrict Fund Services from providing services to other parties that are similar or identical to some or all of the services provided hereunder.
19. Invalidity
Any provision of this Agreement which may be determined by competent authority to be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In such case, the parties shall in good faith modify or substitute such provision consistent with the original intent of the parties.
20. Notices
Any notice required or permitted to be given by either party to the other shall be in writing and shall be deemed to have been given on the date delivered personally or by courier service, or three days after sent by registered or certified mail, postage prepaid, return receipt
requested, or on the date sent and confirmed received by facsimile transmission to the other partys address set forth below:
Notice to Fund Services shall be sent to:
U.S. Bancorp Fund Services, LLC
615 East Michigan Street
Milwaukee, WI 53202
Attn: President
and notice to the Trust shall be sent to:
Pacific Global ETF Trust
840 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Attn: Mr. Josh Schwab, CFA, CPA, Pacific Global Asset Management, LLC
21. Multiple Originals
This Agreement may be executed on two or more counterparts, each of which when so executed shall be deemed to be an original, but such counterparts shall together constitute but one and the same instrument.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by a duly authorized officer on one or more counterparts as of the date last written below.
PACIFIC GLOBAL ETF TRUST |
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U.S. BANCORP FUND SERVICES, LLC |
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By: /s/ Joshua Schwab |
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By: /s/ Anita Zagrodnik |
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Name: Joshua Schwab |
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Name: Anita Zagrodnik |
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Title: Vice President |
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Title: Senior Vice President |
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Date: January 9, 2019 |
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Date: January 14, 2019 |
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PACIFIC GLOBAL ADVISORS LLC (with respect to Section 5 only) | ||
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By: /s/ Joseph G. Lallande |
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Name: Joseph G. Lallande |
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Title: Counsel and Assistant Secretary |
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Date: January 9, 2019 |
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