Re: Distribution Agreement
Xxxxxxxx Xxxxxxxxx ETF Trust
One Franklin Parkway
San Mateo, California 94403-1906
Franklin Distributors, LLC
One Franklin Parkway
San Mateo, CA 94403-1906
Re: |
Gentlemen:
We, Xxxxxxxx Xxxxxxxxx ETF Trust (the “Trust”), are a Delaware statutory trust operating as an open-end management investment company, which is registered under the Investment Company Act of 1940, as amended (the “1940 Act”), and whose shares are registered under the Securities Act of 1933, as amended (the “1933 Act”). We desire to issue one or more series of our authorized but unissued shares of beneficial interest (the “Shares”), generally only in aggregations constituting a Creation Unit, as such term is defined in the registration statement filed from time to time by the Trust with the U.S. Securities and Exchange Commission (the “Commission”) and effective under the 1933 Act and the 1940 Act (the “Registration Statement”), only to Authorized Participants (as that term is defined in the Registration Statement) in accordance with applicable Federal and State securities laws. The Trust’s Shares may be made available in one or more separate series. Shares are anticipated to be listed for trading on one or more national securities exchanges (“Exchanges”).
You have informed us that your company is registered as a broker-dealer under the provisions of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and that your company is a member of the Financial Industry Regulatory Authority (“FINRA”). You have indicated your desire to act as the exclusive selling agent and distributor for Shares of each series of the Trust listed on Exhibit A hereto (each a “Fund” and collectively, the “Funds”) in the manner set forth in the statutory prospectuses or summary prospectuses (individually or collectively, the “Prospectus”) and statements of additional information (individually or collectively, the “SAI”) relating to each applicable Fund and included in the most current effective Registration Statement, and as supplemented from time to time. We have been authorized to execute and deliver this Distribution Agreement (“Agreement”) to you by a resolution of our Board of Trustees (“Board”) passed at a meeting at which a majority of Board members, including a majority who are not otherwise interested persons of the Trust and who are not interested persons of any investment adviser to the Funds, its related organizations or of you or your related organizations (the “Independent Trustees”), were present and voted in favor of the resolution approving this Agreement at a meeting called for that purpose.
1) | Appointment of Underwriter. Upon the execution of this Agreement and in consideration of the agreements on your part herein expressed and upon the terms and conditions set forth herein, we hereby appoint you as the exclusive sales agent to receive all orders for purchases of Creation Units of each Fund only from Authorized Participants that have entered into an agreement (a “Participant Agreement”) for book-entry of The Depository Trust Company and the National Securities Clearing Corporation (“NSCC”) as described in the Prospectus and SAI to transmit such orders to the Trust, all in accordance with the Prospectus and SAI. |
The Trust retains the right to make direct sales of Shares consistent with the terms of the then current Prospectus and SAI and applicable law, and to engage in other legally authorized transactions in its Shares which do not involve sales to the general public. Such other transactions may include, without limitation: (i) transactions between the Trust or any Fund and its shareholders only; (ii) transactions involving the reorganization of the Trust or any Fund; (iii) transactions involving the merger or combination of the Trust or any Fund with another corporation, trust, series of a trust or similar entity; or (iv) transactions with other registered or unregistered investment companies in accordance with any rule, regulation, or order of the Commission (including, without limitation, any exemptive order issued to the Trust, any investment adviser to a Fund or any of their affiliates by the Commission (individually or collectively, the “ETF Order”)).
2) | Duties of Underwriter. |
a) | You shall act as agent of the Trust in connection with the issuance and distribution of Creation Units of each Fund through Authorized Participants. You shall, at your own expense, execute Participant Agreements with registered broker-dealers and other eligible entities to act as Authorized Participants, and provide for the purchase of Creation Units of the Funds by such Authorized Participants. You agree to use your best efforts to promote the sale of Shares or Creation Units to Authorized Participants, but are not obligated to sell any specific number of Creation Units. |
b) | The Participant Agreement shall instruct Authorized Participants that the Prospectus must be distributed in accordance with: (i) the 1933 Act, the 1934 Act, the 1940 Act, and the rules and regulations made or adopted thereunder; (ii) the ETF Order (iii) the rules of FINRA; and (iv) the rules of, and orders issued by the Commission to, the Exchanges ((i) through (iv) collectively, “Rules and Regulations”). You shall not be liable for an Authorized Participant’s failure to comply with these requirements. You shall use commercially reasonable efforts to fulfill all direct requests from Authorized Participants for the Prospectus, SAI, and periodic Fund reports, as applicable. In addition, you will use commercially reasonable efforts to provide each Exchange with copies of the Prospectus to be provided to purchasers in the secondary market. You will use commercially reasonable efforts to make it known in the brokerage community that the Prospectus and SAI are available, including (i) advising each Exchange on behalf of their member firms of the same, (ii) making such disclosure in all marketing and advertising materials prepared and/or filed by you with FINRA, and (iii) as may otherwise be required by the Commission. |
c) | You shall accept orders for the purchase of Creation Units by Authorized Participants only to the extent of purchase orders actually received from Authorized Participants and not in excess of such orders, and will not avail yourself of any opportunity of making a profit by expediting or withholding orders. The Trust may reject purchase orders where, in the judgment of the Trust, such rejection is in the best interest of the Trust or a Fund. You shall generate and transmit confirmations of Creation Unit purchase order acceptances to the Authorized Participant. You shall maintain telephonic, facsimile and/or access to direct computer communications links with the applicable transfer agent (the “Transfer Agent”). |
3) | Independent Contractor. You will undertake and discharge your obligations hereunder as an independent contractor and shall have no authority or power to obligate or bind us by your actions, conduct or contracts except that you are authorized to promote and process the sale of Creation Units to Authorized Participants. |
4) | Offering Price. A Creation Unit of a Fund shall be offered for sale at a price equivalent to the net asset value per Share (“NAV”) of that Fund next determined after receipt, on any Business Day (as defined in the Fund’s SAI), of an order received by you or your agent in proper form, multiplied by the number of Shares per Creation Unit, generally in exchange for (i) a designated portfolio of securities, assets or other positions (including any portion of such securities, assets or other positions for which cash may be substituted) together with a specified cash component, as posted each Business Day by the Fund (a “Deposit Basket”); or (ii) such other specified amounts of cash and/or portfolio securities, assets or other positions as may be agreed upon by the Fund and an Authorized Participant from time to time (a “Custom Basket”); in each case, in accordance with the ETF Order and as set forth in the Prospectus or SAI. On each Business Day on which the New York Stock Exchange is open for business, we will furnish you with the NAV of the Shares and Deposit Basket of each available Fund, which shall be determined in accordance with the Prospectus, SAI and the ETF Order. All Creation Units will be sold in the manner set forth in the Prospectus, SAI and ETF Order, and in compliance with applicable law. |
5) | Compensation. No compensation shall be due or payable by the Trust or any Fund to you pursuant to this Agreement. |
6) | Terms and Conditions of Sales. You shall offer Creation Units for sale only in those jurisdictions where: (i) they have been properly registered; (ii) they are exempt from registration; or (iii) for which appropriate notice filings have been made. You shall offer Creation Units for sale only to Authorized Participants. |
7) | Orders and Payment for Creation Units. Orders for Creation Units shall be directed to the applicable Fund’s Transfer Agent, for acceptance on behalf of such Fund. At or prior to the time of delivery of any of our Creation Units, you will pay or cause to be paid to the custodian of the Fund’s assets, for our account, an amount in cash or other consideration as described from time to time in the Fund’s Prospectus equal to the aggregate NAV of such |
Creation Units. Sales of Creation Units shall be deemed to be made when and where accepted by the Fund’s Transfer Agent. The Fund’s custodian and Transfer Agent shall be identified in its Prospectus or SAI. |
8) | Allocation of Expenses. We will pay (or enter into arrangements providing that persons other than us shall pay) the expenses of: |
a) | Preparing and typesetting of our audited and certified financial statements to be included in any Post-Effective Amendments (“Amendments”) to our Registration Statement under the 1933 Act or 1940 Act, including the Prospectus and SAI included therein; |
b) | Preparing (including legal fees) and typesetting of all Amendments or supplements filed with the Commission, including the copies of the Prospectus and SAI included in the Amendments, other than those necessitated by your (including your affiliates’) activities or Rules and Regulations related to your activities where such Amendments or supplements result in expenses which we would not otherwise have incurred; |
c) | Preparing, printing, mailing and distributing any reports or communications which we send to our existing shareholders, including expenses associated with printing, mailing and distributing annually any updated Prospectus, report or SAI to existing shareholders, other than those necessitated by your (including your affiliates’) activities or Rules and Regulations related to your activities where such communications result in expenses which we would not otherwise have incurred; |
d) | Printing, mailing and distributing any Prospectus included with the confirmation of any purchase order of Creation Units to an Authorized Participant; and |
e) Any filings or fees to Federal and State securities regulatory authorities necessary to continue offering our Shares to Authorized Participants.
You will pay (or enter into arrangements providing that persons other than you shall pay) the expenses of:
a) | Preparing (including legal fees), typesetting, printing, and distributing (including mailing) of all Amendments and supplements to our Prospectus and SAI, if the Amendment or supplement arises from your (including your affiliates’) activities or Rules and Regulations related to your activities, and those expenses would not otherwise have been incurred by us; |
b) | Printing and distributing (including mailing) additional copies, for use by you as sales literature or for other marketing or offering purposes, of reports, Prospectuses, SAIs, supplements or other communications, other than those that we have prepared for distribution to our existing shareholders; and |
c) | Your advertising, promoting and selling our Shares. |
9) | Furnishing of Information. We will furnish to you such information with respect to each Fund and its Shares, in such form and signed by such of our officers as you may reasonably request, and we warrant that the statements therein contained, when so signed, will be true and correct. We will also furnish you with such information and will take such action as you may reasonably request in order to qualify our Shares for sale to Authorized Participants under the Blue Sky Laws of jurisdictions in which you may wish to offer them. We will furnish you with annual audited financial statements of our books and accounts certified by independent public accountants, with semi-annual financial statements prepared by us, with Registration Statements and, from time to time, with such additional information regarding our financial condition as you may reasonably request. |
10) | Conduct of Business. Other than our Prospectus, you will not issue any sales material or statements except literature or advertising that conforms to the requirements of the Rules and Regulations, and State securities laws and regulations, and that have been filed, where necessary, with the appropriate regulatory authorities, including but not limited to FINRA. You will furnish us with copies of all such materials prior to their use and no such material shall be published if we shall reasonably and promptly object. |
You shall comply with the applicable Rules and Regulations, and State laws and regulations, where our Shares are offered for sale and conduct your affairs with us and with Authorized Participants in accordance with FINRA rules.
11) | Other Activities. Your services pursuant to this Agreement shall not be deemed to be exclusive, and you may render similar services and act as an underwriter, distributor or dealer for other investment companies in the offering of their shares. |
12) | Term of Agreement. This Agreement shall become effective on the date of its execution, and shall remain in effect for a period of two (2) years. The Agreement is renewable annually thereafter with respect to the Trust or, if the Trust has more than one Fund, separately with respect to each Fund, for successive periods not to exceed one year (i) by a vote of (a) a majority of the outstanding voting securities of the Trust or, if the Trust has more than one Fund, of each Fund separately, or (b) by a vote of the Board, and (ii) by a vote of a majority of the Independent Trustees, cast at a meeting called for the purpose of voting on the Agreement. |
This Agreement may at any time be terminated by the Trust, or by any Fund with respect to that Fund, without the payment of any penalty, (i) either by vote of the Board or by vote of a majority of the outstanding voting securities of the Trust or any Fund on 90 days’ written notice to you; or (ii) by you on 90 days’ written notice to the Trust; and shall immediately terminate with respect to the Trust and each Fund in the event of its assignment.
13) | Suspension of Sales. We reserve the right at all times to suspend or limit the public offering of Creation Units upon two days’ written notice to you. Nothing in the forgoing sentence shall prevent us from rejecting a sale of Creation Units in accordance with Section 2(c) hereof. |
14) | Miscellaneous. This Agreement shall be subject to the laws of the State of California and shall be interpreted and construed to further promote the operation of the Trust as an open-end investment company. As used herein, the terms “net asset value,” “offering price,” “investment company,” “open-end management investment company,” “assignment,” “principal underwriter,” “interested person,” “affiliated person,” and “majority of the outstanding voting securities” shall have the meanings set forth in the 1933 Act or the 1940 Act and the rules and regulations thereunder and the term “assignment” shall have the meaning as set forth in the 1940 Act and the rules and regulations thereunder. |
15) Effect of Revisions to Requirements of 1940 Act. Where the effect of a requirement of the 1940 Act reflected in any provision of this Agreement is revised by rule, interpretation or order of the U.S. Securities and Exchange Commission, such provision shall be deemed to incorporate the effect of such rule, interpretation or order.
Nothing herein shall be deemed to protect you against any liability to us or to our securities holders to which you would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of your duties hereunder, or by reason of your reckless disregard of your obligations and duties hereunder.
If the foregoing meets with your approval, please acknowledge your acceptance by signing each of the enclosed copies, whereupon this will become a binding agreement as of the date set forth below.
Very truly yours, |
Xxxxxxxx Xxxxxxxxx ETF Trust
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Goldblat
Vice President and Secretary
Accepted:
Franklin Distributors, LLC
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President
Dated: June 30, 2022, November 30, 2022, June 1, 2023
Exhibit A
Franklin Emerging Market Core Dividend Tilt Index ETF (formerly Franklin LibertyQ Emerging Markets ETF)
Franklin International Core Dividend Tilt Index ETF (formerly Franklin LibertyQ International Equity Hedge ETF)
Xxxxxxxx U.S. Core Dividend Tilt Index ETF (formerly Franklin LibertyQ Global Dividend ETF)
Franklin U.S. Large Cap Multifactor Index ETF (formerly Franklin LibertyQ U.S. Equity ETF)
Xxxxxxxx U.S. Mid Cap Multifactor Index ETF (formerly Franklin LibertyQ U.S. Mid Cap Equity ETF)
Franklin U.S. Small Cap Multifactor Index ETF (formerly Franklin LibertyQ U.S. Small Cap Equity ETF)
Franklin FTSE Australia ETF
Franklin FTSE Brazil ETF
Franklin FTSE Canada ETF
Franklin FTSE China ETF
Franklin FTSE Europe ETF
Xxxxxxxx FTSE Europe Hedged ETF
Xxxxxxxx FTSE France ETF
Franklin FTSE Germany ETF
Xxxxxxxx FTSE Hong Kong ETF
Franklin FTSE India ETF
Franklin FTSE Italy ETF
Franklin FTSE Japan ETF
Xxxxxxxx FTSE Japan Hedged ETF
Franklin FTSE Latin America ETF
Franklin FTSE Mexico ETF
Franklin FTSE Russia ETF
Franklin FTSE Saudi Arabia ETF
Franklin FTSE South Africa ETF
Franklin FTSE South Korea ETF
Franklin FTSE Switzerland ETF
Franklin FTSE Taiwan ETF
Franklin FTSE United Kingdom ETF
Franklin U.S. Equity Index ETF (formerly Franklin LibertyQ Global Equity ETF)
BrandywineGLOBAL-Dynamic US Large Cap Value ETF
BrandywineGLOBAL-U.S. Fixed Income ETF
ClearBridge Sustainable Infrastructure ETF
Franklin Disruptive Commerce ETF
Franklin Dynamic Municipal Bond ETF (formerly Franklin Liberty Federal Intermediate Tax-Free Bond Opportunities ETF)
Franklin Exponential Data ETF
Franklin Genomic Advancements ETF
Franklin High Yield Corporate ETF (formerly Franklin Liberty High Yield Corporate ETF)
Franklin Income Focus ETF
Franklin Intelligent Machines ETF
Franklin International Aggregate Bond ETF (formerly Franklin Liberty International Aggregate Bond ETF)
Franklin Investment Grade Corporate ETF (formerly Franklin Liberty Investment Grade Corporate ETF)
Franklin Municipal Green Bond ETF (formerly Franklin Liberty Federal Tax-Free Bond ETF)
Xxxxxxxx Senior Loan ETF (formerly Franklin Liberty Senior Loan ETF)
Franklin Systematic Style Premia ETF (formerly Franklin Liberty Systematic Style Premia ETF)
Xxxxxxxx U.S. Core Bond ETF (formerly Franklin Liberty U.S. Core Bond ETF)
Franklin U.S. Low Volatility ETF (formerly Franklin Liberty U.S. Low Volatility ETF)
Xxxxxxxx U.S. Treasury Xxxx ETF (formerly Franklin Liberty U.S. Treasury Bond ETF)
Franklin Ultra Short Bond ETF (formerly Franklin Liberty Ultra Short Bond ETF)
Xxxxxx Xxxxxx Sustainable International Equity ETF
Western Asset Bond ETF
