Correspondence 0001213900-24-054718 from 21Shares Ethereum Staking ETF (TETH)
21Shares Ethereum Staking ETF
Date: June 21, 2024 · CIK: 0001992508 · Accession: 0001213900-24-054718
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CORRESP
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VIA EDGAR
June 21, 2024
Division of Corporation Finance
Office of Crypto Assets
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Re: 21Shares Core Ethereum ETF
Amendment No. 3 to Registration
Statement on Form S-1
Filed May 31, 2024
File No. 333- 274364
To Whom it May
Concern:
On behalf of 21Shares
Core Ethereum ETF (“Trust”), submitted herewith via the EDGAR system are the responses to the comments of the staff
of the Office of Crypto Assets of the Division of Corporation Finance (the “Staff”) of the Securities and Exchange
Commission (“SEC”) with respect to Amendment No. 3 to the Trust’s registration statement on Form S-1 filed on
May 31, 2024 (“Registration Statement”). The Trust has considered your comments and has authorized us to make the
responses and changes discussed below to the registration statement on its behalf. Below, we describe the changes that have been or will
be incorporated into the Trust’s registration statement in response to the Staff of the SEC’s comments, provided in correspondence
dated June 14, 2024, and provide any responses to or any supplemental explanations of such comments, as requested.
For your convenience,
we have restated your comments below followed by our responses. Capitalized terms used but not defined in this letter have the meaning
given to them in the Registration Statement. We will incorporate any changes referenced below into a future amendment to the Registration
Statement.
Comment 1:
When available, please disclose here the price per Share and aggregate price of the initial Seed Creation Baskets.
Response:
The Trust has incorporated this comment and the impacted disclosure will be revised as follows:
The
Sponsor served as the Seed Capital Investor to the Trust. On May 1, 2024, the Sponsor, in its capacity as Seed Capital Investor, subject
to conditions, purchased Seed Creation Baskets comprising 2 Shares at a per-Share price of $50.00 as described in “Seed Capital
Investor.” Total proceeds to the Trust from the sale of these Seed Creation Baskets were $100. Delivery of the Seed Creation Baskets
was made May 1, 2024. These Seed Creation Baskets were redeemed for cash on or about June 17, 2024.
On
June 18, 2024 (the “Seed Capital Purchase Date”), 21Shares US LLC , in its capacity as Seed Capital Investor,
purchased the initial Seed Creation Baskets comprising 20,000 Shares (the “Initial Seed Creation Baskets”). In its capacity
as the Seed Capital Investor, 21Shares US LLC has acted as a statutory underwriter in connection with this purchase. The total
proceeds to the Trust from the sale of the Initial Seed Creation Baskets were $340,739. On June 18, 2024, the Trust purchased
ether with the proceeds of the Initial Seed Creation Baskets by transacting with an Ether Counterparty to acquire ether on behalf of
the Trust in exchange for cash provided by 21Shares US LLC in its capacity as Seed Capital Investor. Any ether acquired in connection
with the Initial Seed Creation Baskets will be held by the Ether Custodian. The price of the Shares comprising the Initial Seed Creation
Baskets will be determined as of the effective date of this Prospectus as described in this Prospectus, and such Shares could be sold
at different prices if sold by the Seed Capital Investor at different times. It is anticipated that the Seed Capital Investor will redeem
its Shares or sell its Shares to a third party in the weeks following the initial listing of Shares on the Exchange. The Trust will not
receive any of the proceeds of the redemption of any Seed Creation Baskets by the Seed Capital Investor.
Comment 2:
Please revise the cover page to state that the Trust will not participate in the proof-of-stake validation mechanism of the Ethereum
network (i.e., the Trust will not “stake” its ether) to earn additional ether or seek other means of generating income from
its ether holdings.
Response: The Trust has incorporated
this comment and the impacted disclosure will be revised as follows:
The
21Shares Core Ethereum ETF (the “Trust”) is an exchange-traded fund that issues common shares of beneficial interest (the
“Shares”) that trade on the Cboe BZX Exchange, Inc. (the “Exchange”). The Trust’s investment objective
is to seek to track the performance of ether, as measured by the performance of the CME CF Ether-Dollar Reference Rate – New York
Variant (the “Index”), adjusted for the Trust’s expenses and other liabilities. CF Benchmarks Ltd. is the administrator
for the Index (the “Index Provider”). The Index is designed to reflect the performance of ether in U.S. dollars. In seeking
to achieve its investment objective, the Trust will hold ether and will value its Shares daily based on the Index. 21Shares US LLC (the
“Sponsor”) is the sponsor of the Trust, CSC Delaware Trust Company (the “Trustee”) is the trustee of the Trust,
and Coinbase Custody Trust Company, LLC (“Coinbase Custody”) (the “Ether Custodian”) is the ether custodian for
the Trust, and will hold all of the Trust’s ether on the Trust’s behalf.
Neither
the Trust, nor the Sponsor, nor the Ether Custodian, nor any other person associated with the Trust will, directly or indirectly, employ
any portion of the Trust’s assets in actions where any portion of the Trust’s ether becomes subject to the Ethereum proof-of-stake
validation or is used to earn additional ether or generate income or other earnings (collectively, “Staking Activities”).
Accordingly, the Trust will not derive any income from, or receive any form of staking rewards of any kind in connection with, or otherwise
recognize any economic benefit from, any Staking Activity.
The
Trust is an exchange-traded fund. Barring a liquidation or extraordinary circumstances, the Trust does not intend on purchasing or selling
ether other than in connection with the creation and redemption of Shares. The Sponsor may also sell ether to pay certain expenses, which
may be facilitated by the Prime Broker (as defined below) or any other prime brokers with whom the Trust contracts.
Comment 3:
Please disclose here that the Trust is a passive investment vehicle that does not seek to generate
returns beyond tracking the price of ether.
Response:
The Trust has incorporated this comment and the impacted disclosure will be revised as follows:
The
21Shares Core Ethereum ETF (the “Trust”) is an exchange-traded fund that issues common shares of beneficial interest (the
“Shares”) that trade on the Cboe BZX Exchange, Inc. (the “Exchange”). The Trust is a passive investment vehicle
that does not seek to generate returns beyond tracking the price of ether. This means the Sponsor does not speculatively sell ether at
times when its price is high or speculatively acquire ether at low prices in the expectation of future price increases. It also means
the Trust will not utilize leverage, derivatives or any similar arrangements in seeking to meet its investment objective. The Trust’s
investment objective is to seek to track the performance of ether, as measured by the performance of the CME CF Ether-Dollar Reference
Rate – New York Variant (the “Index”), adjusted for the Trust’s expenses and other liabilities. CF Benchmarks
Ltd. is the administrator for the Index (the “Index Provider”). The Index is designed to reflect the performance of ether
in U.S. dollars. In seeking to achieve its investment objective, the Trust will hold ether and will value its Shares daily based on the
Index. 21Shares US LLC (the “Sponsor”) is the sponsor of the Trust, CSC Delaware Trust Company (the “Trustee”)
is the trustee of the Trust, and Coinbase Custody Trust Company, LLC (“Coinbase Custody”) (the “Ether Custodian”)
is the ether custodian for the Trust, and will hold all of the Trust’s ether on the Trust’s behalf.
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Comment 4:
Please revise your Prospectus Summary disclosure to clarify, if true, that with respect to any fork, airdrop or similar event, the Sponsor
will cause the Trust to irrevocably abandon the Incidental Rights or IR Virtual Currency and in the event the Trust seeks to change this
position, an application would need to be filed with the SEC by your listing exchange seeking approval to amend its listing rules.
Response:
The Trust has incorporated this comment and the impacted disclosure will be revised as follows:
If
a modification is accepted by only a percentage of users and validators, a division will occur such that one network will run the pre-modification
source code and the other network will run the modified source code. Such a division is known as a “fork.” A fork may be
intentional such as the Ethereum “Merge.” The Merge represents the Ethereum Network’s shift from proof-of-work to proof-of-stake.
This means that instead of being required to solve complex mathematical problems validators are required to stake ether. With respect
to any fork, airdrop or similar event, the Sponsor will cause the Trust to irrevocably abandon the Incidental Rights (as defined below)
or IR Virtual Currency (as defined below). In the event the Trust seeks to change this position, an application would need to be filed
with the SEC by the Exchange seeking approval to amend its listing rules.
Comment 5:
Please revise your Prospectus Summary to disclose that shareholders do not have voting rights under the Trust Agreement except in limited
circumstances and briefly describe those circumstances here and in the Voting by Shareholders section.
Response:
The Trust has incorporated this comment and the impacted disclosure will be revised as follows:
Other
Risks
● The
Exchange on which the Shares are listed may halt trading in the Trust’s Shares, which
would adversely impact a Shareholder’s ability to sell Shares.
● The
market infrastructure of the ether spot market could result in the absence of active Authorized
Participants able to support the trading activity of the Trust, which would affect the liquidity
of the Shares in the secondary market and make it difficult to dispose of Shares.
● Shareholders
that are not Authorized Participants may only purchase or sell their Shares in secondary
trading markets, and the conditions associated with trading in secondary markets may adversely
affect Shareholders’ investment in the Shares.
● The
Sponsor is leanly staffed and rely heavily on key personnel. The departure of any such key
personnel could negatively impact the Trust’s operations and adversely impact an investment
in the Trust.
● Shareholders
do not have the rights enjoyed by investors in certain other vehicles and may be adversely
affected by a lack of statutory rights and by limited voting and distribution rights. In
certain circumstances, Shareholders may vote to appoint a successor Sponsor following the
Voluntary Withdrawal of the Sponsor, or to continue the Trust in certain instances of dissolution
of the Trust. Shareholders shall otherwise have no voting rights with respect to the Trust.
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Additionally, the
section “Voting by Shareholders” will be revised as follows:
Owners
of Shares do not generally have any voting rights. The Shares do not represent a traditional investment and are not similar to shares
of a corporation operating a business enterprise with management and a board of directors. All Shares are of the same class with equal
rights and privileges. By acquiring Shares, you are not acquiring the right to elect directors, to receive dividends, to vote on certain
matters regarding the issuer of your Shares or to take other actions normally associated with the ownership of shares. The Shares do
not entitle their holders to any conversion or pre-emptive rights or any redemption rights. In certain circumstances, Shareholders
may vote to appoint a successor Sponsor following the Voluntary Withdrawal of the Sponsor, or to continue the Trust in certain instances
of dissolution of the Trust. Shareholders shall otherwise have no voting rights with respect to the Trust.
Comment 6:
We note your disclosure in your Creation and Redemption of Shares section beginning on page 91 regarding the Ether Counterparties. Please
revise your Prospectus Summary to:
● Identify
any Ether Trading Counterparties with whom the Sponsor has entered into an agreement. Clarify
whether and to what extent any of the Ether Trading Counterparties are affiliated with or
have any material relationships with any of the Authorized Participants. Alternatively, clarify,
if true, that you are not able to identify any particular Ether Trading Counterparties at
this time.
● Disclose,
if known, the material terms of any agreement you have entered into, or will enter into with
an Ether Trading Counterparty, including whether and to what extent there will be contractual
obligations on the part of the Ether Trading Counterparty to participate in cash orders for
creations or redemptions.
Response:
The Trust has incorporated this comment and the impacted disclosure will be revised as follows:
The
Trust will create Shares by receiving ether from an Ether Counterparty that is not the Authorized Participant, and the Trust––not
the Authorized Participant––is responsible for selecting the Ether Counterparty to deliver the ether. Further, the Ether
Counterparty will not be acting as an agent of the Authorized Participant with respect to the delivery of the ether to the Trust or acting
at the direction of the Authorized Participant with respect to the delivery of the ether to the Trust.
The
Trust will redeem Shares by delivering ether to an Ether Counterparty that is not the Authorized Participant and the Trust––not
the Authorized Participant––is responsible for selecting the Ether Counterparty to receive the ether. Further, the Ether
Counterparty will not be acting as an agent of the Authorized Participant with respect to the receipt of the ether from the Trust.
As
of the date of this Prospectus, the Authorized Participants are Jane Street Capital, LLC Macquarie Capital (USA) Inc., ABN AMRO Clearing
USA LLC and Virtu Americas LLC. As of the date of this Prospectus, the Prime Broker, Coinbase, Inc., and the Lender, Coinbase Credit,
Inc., serve as Ether Counterparties. The Trust and/or Sponsor will bear the expense and risk of delivery and ownership of ether once
such ether has been received by the Ether Custodian on behalf of the Trust and until transferred by the Ether Custodian on behalf of
the Trust to the Ether Counterparty for conversion to cash.
All
ether will be held by the Ether Custodian. The Transfer Agent (as defined below) will facilitate the processing of purchase and sale
orders in Baskets to and from the Trust.
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Comment 7:
Please add a risk factor describing the risks to Shareholders of the exclusive jurisdiction provision of the Trust Agreement and state
whether this provision applies to causes of action arising under the U.S. federal securities law