MARKETING AGREEMENT
Exhibit
(H)(3)
This
Marketing Agreement (the “Agreement”) is made and entered into as of this
5th
day of
March, 2007, by and between Archipelago Holdings, Inc., a Delaware corporation
(“Archipelago Holdings” and together with Archipelago Securities, L.L.C., a
Delaware limited liability company and wholly-owned subsidiary of Archipelago
Holdings, “Archipelago”), and X.X. Xxxxxxx and Company (“X.X. Xxxxxxx”), a
Wisconsin Corporation. Xxxxxxx Exchange Traded Trust (“Trust”), a Delaware
statutory trust, is a party hereto with respect to Sections 1, 4, 7(d), 12,
16
and 19 only.
WHEREAS,
the
Trust currently has one existing series, the NYSE Arca Tech 100 ETF (the “ETF”),
and has adopted a Distribution Plan with respect to the ETF and any future
series designated by the Trust (the “Plan”) pursuant to Rule 12b-1 under the
Investment Company Act of 1940, as amended (the “1940 Act”), which Plan
authorizes payments to finance activities which are intended to result in the
sale of the shares of beneficial interest of the ETF (the “Shares”) and the sale
of the shares of beneficial interest of all series of shares of the Trust
designated in the future;
WHEREAS,
the
Trust has appointed X.X. Xxxxxxx as the distributor of the Shares of the ETF,
pursuant to a distribution agreement (the “Distribution Agreement”), which
authorizes X.X. Xxxxxxx to use appropriate efforts to promote the ETF;
WHEREAS,
Archipelago: (i) operates the Archipelago Exchange (“ArcaEx”®), a facility of
the NYSE Arca Inc. (“NYSE Arca”), which is an all-electronic stock exchange that
facilitates trading in equity securities, exchange-traded funds and other
exchange-listed securities; and (ii) compiles, calculates, maintains and owns
the NYSE Arca Tech 100 Index (formerly the PSE/PCX Technology Index) (“Index”)
either directly or through a wholly owned subsidiary;
WHEREAS,
the ETF,
through its replication strategy, intends to substantially replicate the
performance of the Index, and Archipelago Holdings and the Trust have entered
into a license agreement (the “License Agreement”) under which Archipelago
Holdings grants to the Trust a license to use and refer to the Index in
connection with the ETF;
WHEREAS,
the
Trust has authorized X.X. Xxxxxxx under the terms of the Distribution Agreement
to enter into agreements to assist the Trust and X.X. Xxxxxxx in their efforts
to promote and sell shares of the series of the Trust; and
WHEREAS,
X.X.
Xxxxxxx and Archipelago Holdings desire to enter into this Agreement under
which
Archipelago will provide certain marketing services related to the ETF for
X.X.
Xxxxxxx.
1
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements contained herein, and
other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement (collectively, the “Parties” and
each individually a “Party”) agree as follows:
1. Term
of Agreement.
The
term of this Agreement shall commence on the date hereof (the “Effective Date”)
and shall continue for a period of one year (“Initial Term”), unless terminated
as provided in Section 16. Thereafter, this Agreement shall continue in effect
from year to year, subject to the termination provisions and all other terms
and
conditions hereof, so long as such continuance is specifically approved at
least
annually by (i) a vote of the majority of the trustees of the Trust and (ii)
a
vote of the majority of the trustees of the Trust who are not “interested
persons” of the Trust (as the term is defined in the 0000 Xxx) and who have no
direct or indirect financial interest in the operation of the Plan, in this
Agreement or in any agreement related to the Plan (the “Independent Trustees”)
by a vote cast in person at a meeting called for the purpose of voting on such
approval (each such one year period after the Initial Term and the Initial
Term
are individually referred to as a “Term”).
2. Marketing
Program.
(a) Duties
of Archipelago:
Subject
to the terms and conditions contained herein, Archipelago shall develop and
implement a marketing plan designed to advertise, promote and increase public
awareness of the ETF within the financial services industry and investing public
(“Marketing Plan”). With respect to non-regulatory advertising issues,
Archipelago’s development and implementation of the Marketing Plan shall be
performed with the advice of X.X. Xxxxxxx and/or its agent or representative,
and Archipelago shall have final authority to resolve all non-regulatory
advertising issues. With respect to regulatory compliance issues applicable
to
advertising by the Trust, the ETF or X.X. Xxxxxxx under the Marketing Plan,
Archipelago’s development and implementation of the Marketing Plan shall be
performed with the consent of X.X. Xxxxxxx and/or its agent or representative.
The Marketing Plan shall include, but not be limited to, branding, promotional
activities, development and design of marketing materials, collateral and media
campaigns using any format whatsoever agreed to by Archipelago and X.X. Xxxxxxx
(i.e., electronic media, print media, Internet, etc.) and hosting a web-site
for
the ETF (collectively, “Marketing Materials”). The representatives of
Archipelago and X.X. Xxxxxxx shall meet periodically to review the overall
effectiveness of the existing Marketing Plan, and Archipelago shall develop
and
implement appropriate changes to the Marketing Plan as a result of such review
meetings with the advice or consent, as required in second and third sentences
of this Section 2(a), of X.X. Xxxxxxx. Archipelago shall only bear the cost
of
those services associated with the development and design of the Marketing
Materials as specified on the attached Exhibit
A.
Archipelago shall make expenditures or otherwise create marketing and media
value for the ETF in the amount of at least $500,000 during the first year
after
the date on which the ETF commences trading on NYSE Arca regarding marketing
and
advertising activities directly related to the promotion of the ETF.
Notwithstanding the foregoing, Archipelago shall have no obligation to establish
or maintain a formal marketing or sales organization to satisfy its obligations
with respect to its obligations hereunder. Upon the reasonable request of X.X.
Xxxxxxx, Archipelago will provide X.X. Xxxxxxx or its agents or representatives
with Marketing Materials and Marketing Plan to the extent outlined in
Exhibit
A.
2
(b) Duties
of X.X. Xxxxxxx:
X.X.
Xxxxxxx will, among other things, oversee and arrange for: (i) the preparation
of all general shareholder communications, including shareholder reports, with
the advice and consent of Archipelago only for purposes of providing branding
or
marketing content (“Shareholder Communications”); (ii) the compilation of the
ETF’s records and financial statements; and (iii) the registration and
qualification of the ETF shares, to be sold in creation units, under federal
and
state law. Subject to the Confidentiality requirements provided in Section
7,
the Privacy requirements provided in Section 8 and the other applicable
requirements provided in the policies and procedures of the ETF, X.X. Xxxxxxx
shall furnish (or cause other service providers to furnish) Archipelago with
all
Shareholder Communications, financial and performance information relating
to
the ETF and all other evaluations, information or analyses relating to the
ETF
as Archipelago may request from time to time or as X.X. Xxxxxxx may xxxx to
be
desirable. X.X. Xxxxxxx will be responsible for obtaining all necessary and
required regulatory and government approvals, including approvals from the
National Association of Securities Dealers, Inc., for any and all Shareholder
Communications and/or Marketing Materials.
(c) Duties
of the Parties:
Each
Party shall designate one individual that shall have primary responsibility
for
maintaining communications between the Parties which relate to the development
and implementation of the Marketing Plan and for resolution of any issues that
may arise relating to marketing or advertising for the ETF. In the event of
a
dispute arising in connection with this Agreement, each Party agrees that their
respective representatives will negotiate in good faith to resolve such
dispute.
3. Representations
and Warranties.
Each
Party represents to the other that: (a) it is duly organized, validly existing
and in good standing under the laws of the state of its organization, and has
all requisite power and authority to operate and carry on its business as it
is
now being conducted; (b) the execution and delivery of this Agreement, and
the
consummation of the transactions contemplated hereby, have been duly and validly
authorized by all necessary action and constitutes its valid and legally binding
obligation enforceable in accordance with its terms; and (c) neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with or result in a
violation, breach or termination of or default under (or would result in a
violation, breach, termination or default with the giving of notice or passage
of time or both) any of the terms, conditions or provisions of its
organizational documents or any agreement, instrument or obligation to which
it
is a party or by which an of its properties or assets may be bound or affected,
or (ii) result in the violation of any order, writ, injunction, decree, statute,
rule or regulation applicable to its, or its properties or assets.
4. Marketing
Fee.
Subject
to the limitations below, for providing the Marketing Plan, the Marketing
Materials and related services described in this Agreement, Archipelago shall
be
entitled to receive from X.X. Xxxxxxx a marketing fee (“Marketing Fee”). The
Marketing Fee shall be calculated daily and paid monthly at an annual rate
equal
to 0.08% of the ETF’s average daily net assets. Throughout the term of this
Agreement, the Trust, on behalf of X.X. Xxxxxxx, shall pay the Marketing Fee
for
each calendar month directly to Archipelago no later than the 15th
day
after the last day of such calendar month, provided, however, that, until
Archipelago Securities, L.L.C. becomes a party to this Agreement, all amounts
payable hereunder as Marketing Fees shall be escrowed by the Trust with the
ETF’s custodian, and, upon Archipelago Securities, L.L.C. becoming a party to
this Agreement, all such escrowed amounts shall be paid promptly to Archipelago
Securities, L.L.C. Notwithstanding the foregoing, Archipelago hereby waives
and
forever relinquishes its right to receive payment of any Marketing Fee until
the
sooner to occur of: (a) the ETF’s assets reaching $60 million; or (b) 365 days
after the date on which the ETF commences trading on NYSE Arca (“Waiver
Period”). As additional consideration for Archipelago’s execution hereof and
performance hereunder, the Trust and X.X. Xxxxxxx agree that if any new series
of the Trust is established in addition to the ETF and the shares to be issued
by such new series are suitable for listing and trading on an exchange, such
shares shall be recommended by X. X. Xxxxxxx to the Trust for listing on either
the New York Stock Exchange or the NYSE Arca, and the Trust and X.X. Xxxxxxx
will use their best efforts to cause such listing to occur (the “Listing
Requirement”).
3
5. Trademarks.
Except
as specified in this Agreement, neither Party will publish or use any
advertising, sales promotions, press releases or other publicity which use
the
other Party’s name, logo, trademarks or service marks without the prior written
approval of such Party. All Shareholder Communications created by and
distributed by X.X. Xxxxxxx (or any of its agents or representatives) shall
display the Index xxxx and logo in accordance with the License Agreement and
as
directed by Archipelago. Notwithstanding the foregoing, Archipelago shall retain
all right, title and interest in and to the Index xxxx.
6. Indemnification.
(a) Indemnification
of X.X. Xxxxxxx.
Archipelago agrees to indemnify and hold harmless X.X. Xxxxxxx and each of
its
directors, officers, employees, agents and each person, if any, who controls
X.X. Xxxxxxx against any losses, claims, damages or liabilities to which X.X.
Xxxxxxx may become subject, insofar as such third party losses, claims, damages,
liabilities, or expense (or actions in respect thereof) (i) arise out of or
are
based upon any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to X.X. Xxxxxxx by Archipelago expressly for use in the Marketing
Materials and the ETF’s registration statement to the extent that Archipelago or
its affiliates are the original source of the information, or (ii) result from
a
breach of a material provision of this Agreement by Archipelago. Archipelago
will reimburse any legal or other expenses reasonably incurred by X.X. Xxxxxxx
or any such controlling person in connection with investigating or defending
any
such loss, claim, damage, liability or action; provided, however, that
Archipelago will not be liable for indemnification hereunder to the extent
that
any such loss, claim, damage or liability arises out of or is based upon the
gross negligence or willful misconduct of X.X. Xxxxxxx, its respective
directors, officers, employees, agents or any controlling person in performing
their obligations under this Agreement.
(b) Indemnification
of Archipelago.
X.X.
Xxxxxxx agrees to indemnify and hold harmless Archipelago and each of its
directors, officers, employees, agents and each person, if any, who controls
Archipelago against any losses, claims, damages or liabilities to which
Archipelago may become subject, insofar as such third party losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or
are
based upon any untrue statement or alleged untrue statement of any material
fact
contained in the ETF’s registration statement or sales literature of the ETF
prepared or approved in writing by X.X. Xxxxxxx or arise out of, or are based
upon, the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (ii) result from a breach of a material provision of this
Agreement by X.X. Xxxxxxx. X.X. Xxxxxxx will reimburse any legal or other
expenses reasonably incurred by Archipelago or any such controlling person
in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that X.X. Xxxxxxx will not be liable
for
indemnification hereunder to the extent that any such loss, claim, damage or
liability arises out of or is based upon the gross negligence or willful
misconduct of Archipelago, its respective directors, officers, employees, agents
or any controlling person in performing their obligations under this
Agreement.
4
(c) Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
an action, such indemnified party will, if a claim in respect thereof is to
be
made against the indemnifying party hereunder, notify the indemnifying party
of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability that it may have to any indemnified
party
otherwise under this Section. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and,
to
the extent that it may wish to, assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
7. Confidentiality.
(a) Information.
The
Parties acknowledge that each Party and its officers, employees, agents,
affiliates and representatives (collectively, “Representatives”) may have access
to certain confidential and proprietary information of the other Party and
its
subsidiaries in connection with this Agreement (collectively, the
“Information”). The Parties hereby acknowledge and agree that they will, and
will cause all of their Representatives to, take all commercially reasonable
precautions necessary to safeguard the confidentiality of the Information,
including: (i) those precautions required under this Section; (ii) those taken
by the Party and its Representative to protect their respective confidential
information; and (iii) those precautions which the other Party may reasonably
request from time to time.
(b) Use
and Disclosure.
The
Parties agree that they will, and will cause all of their Representatives to,
use the Information solely to perform its obligations under this Agreement
and
not to disclose any Information to any third person or entity without the prior
written consent of the other Party, provided that, the other Party may disclose
Information in accordance with applicable laws, regulations or court orders
if
notification is provided prior to such disclosure and such disclosure is limited
to those matters required by such laws, regulations or court orders to be
disclosed. Each Party shall not, and shall cause their Representatives not
to:
(i) use any Information in a manner that would violate any federal or state
securities laws, including, without limitation, Rule 10b-5 of the Securities
Exchange Act of 1934, as amended; or (ii) deface any confidentiality or
proprietary notice that the Party may have affixed to items of Information
disclosed to the other Party.
5
(c) Unauthorized
Use or Disclosure.
Each
Party acknowledges that any unauthorized use or disclosure of the Information
by
the other Party or any Representative will cause irreparable damage to the
Party. If an unauthorized use or disclosure occurs as a result of the negligence
or misconduct of a Party or any of their Representatives, the Party will take,
at its expense, all steps which are necessary to recover the Information and
to
prevent its subsequent unauthorized use or dissemination, including availing
itself or actions for seizure and injunctive relief. If the Party fails to
take
these steps in a timely and adequate manner, the harmed Party may take them
at
the violating Party’s expense. The Parties agree that the covenants contained in
this Section are reasonably necessary to protect and preserve each Party’s
interests and that, in addition to all of the remedies provided at law or in
equity, each Party shall be entitled to a temporary restraining order and a
permanent injunction to prevent a breach of any such covenants. If the harmed
Party should seek injunctive relief hereunder, the violating Party hereby waives
any requirement that the harmed Party provide proof of the economic value of
any
Information or post a bond or any other form of security.
(d) Observation
of Board of Trustee Meetings.
Archipelago, through its designated representative, shall have the right to
observe the meetings of the Board of Trustees of the Trust during the term
of
this Agreement and for such longer period as Archipelago Holdings or any of
its
affiliates is the Index licensor under the Licensing Agreement. Written
materials and oral discussions observed by Archipelago at such meetings shall
be
considered Information within the meaning of this Section 7.
8. Privacy.
(a) The
Parties agree to abide by the provisions of the Financial Services Modernization
Act of 1999 (Xxxxx-Xxxxx-Xxxxxx Act), including regulations of the SEC and
U.S.
Department of Treasury adopted thereunder, and with any and all other applicable
state privacy laws, rules and regulations, and to restrict access to nonpublic
personal information of shareholders of the ETF to those employees who have
a
need to know the information to fulfill the respective obligations of the
Parties to this Agreement and otherwise to fulfill the intents and purposes
of
this Agreement. The Parties agree to implement and maintain appropriate
reasonable measures that comply with federal and state regulations designed
to
safeguard nonpublic personal information of shareholders of the ETF and
otherwise to ensure their security and the confidentiality of that information.
In
accordance with Regulation S-P, the Parties hereto will not disclose any
non-public personal information, as defined in Regulation S-P, regarding any
shareholder, provided, however, that the Parties may disclose such information
to any Party as necessary in the ordinary course of business to carry out the
purposes for which such information was disclosed to the Parties, or as may
be
required by law. Both Parties agree to use reasonable precautions to protect
and
prevent the unintentional disclosure of such non-public personal information.
(b) All
activities by the Parties and their agents and employees pursuant to this
Agreement shall comply with all applicable laws, rules and regulations,
including, without limitation, all rules and regulations made or adopted
pursuant to the 1940 Act by the Securities and Exchange Commission or any
securities association registered under the Securities Exchange Act of 1934,
as
amended.
6
9. Survival.
Notwithstanding the termination of this Agreement for any reason, the provisions
of Sections 6, 7, 8 and 10, the Listing Requirement obligation under Section
4
and the Break-Up Fee obligation under Section 16 shall remain in full force
and
effect.
10. Governing
Law.
This
Agreement and all amendments, modifications, alterations or supplements hereto,
and the rights of the Parties hereunder, shall be governed by and construed
in
accordance with the laws of the State of New York, without giving effect to
any
choice or conflict of law provision or rule that would cause the application
of
the laws of any jurisdiction other than the State of New York.
11. Entire
Agreement.
The
provisions of the Distribution Agreement between the Trust and X.X. Xxxxxxx
in
so far as they relate to the Plan, are incorporated herein by reference. This
Agreement, the Distribution Agreement and the License Agreement contain the
sole
and entire agreement between the Parties with respect only to the subject matter
hereof and supersede all prior discussions and agreements between the Parties
with respect to the subject matter hereof.
12. Notices.
Any
notice given pursuant to this Agreement shall be effective only if in writing
and sent by (i) nationally-recognized overnight service, or (ii) hand delivery,
addressed as set forth below; receipt shall be deemed to occur on the earlier
of
the date of actual receipt or receipt by the sender of confirmation that the
delivery was completed or that the addressee has refused to accept such delivery
or has changed its address without giving notice of such change as set forth
herein.
If
to
Archipelago:
Archipelago
Securties, L.L.C.
000
Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Office of the General Counsel
If
to
X.X. Xxxxxxx:
X.X.
Xxxxxxx and Company
000
Xxxx
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Office of the General Counsel
If
to the
Trust:
Xxxxxxx
Exchange Traded Trust
000
Xxxx
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Xxxxx X. Xxxxxx
and
to:
Xxxxxxx
& Xxxxx LLP
000
X.
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxxx
7
or
such
other address as may hereafter be designated by like notice.
13. Commercially
Reasonable.
The
Parties agree to use commercially reasonable efforts in the performance of
this
Agreement.
14. Waiver.
No
delay or omission by either Party hereto in exercising any right or power
occurring upon any noncompliance or default by the other Party with respect
to
any of the terms of this Agreement shall impair any such right or power or
be
construed to be a waiver thereof. A waiver by either Party hereto of any of
the
covenants, conditions, or agreements to be performed by the other Party shall
not be construed to be a waiver of any succeeding breach thereof or of any
other
covenant, condition, or agreement contained in this Agreement.
15. Amendment
and Assignment.
This
Agreement may not be amended except as permitted by the 1940 Act and, in all
cases, may only be modified or amended if agreed to by the Parties in writing.
This Agreement shall automatically and immediately terminate in the event of
its
assignment, as defined under the 1940 Act, provided, however, that any
assignment of this Agreement by Archipelago Holdings to Archipelago Securities,
L.L.C. shall be permitted as long as Archipelago Securities, L.L.C. is, at
the
time of such assignment, the wholly-owned subsidiary of Archipelago Holdings.
16. Termination
and Break-Up Fee.
This
Agreement may be terminated by either Party, without the payment of any penalty,
on not more than upon 60 days nor less than 30 days prior notice in writing
to
the other Party provided, that in the case of termination by X.X. Xxxxxxx such
action shall have been authorized by resolution of a majority of the Independent
Trustees of the Trust, or by vote of a majority of the outstanding voting
securities of the Trust. Notwithstanding the foregoing, Archipelago may not
terminate this Agreement prior to the completion of the Waiver Period provided
in Section 4. If, and only if, this Agreement is (a) not renewed by the Trust
for one Term after the Initial Term or (b) is terminated by the Trust or X.X.
Xxxxxxx for any reason whatsoever during the Waiver Period and during the 365
day period beginning after the end of the Waiver Period, then X.X. Xxxxxxx
shall, within 10 days after receipt by X.X. Xxxxxxx of written demand from
Archipelago, promptly pay Archipelago in immediately available funds, as
liquidated damages for loss of the transactions contemplated hereunder and
not
as a penalty, a break-up fee of $500,000 less the aggregate amount of all
Marketing Fees previously paid to Archipelago hereunder (the “Break-Up Fee”).
The right of Archipelago to be paid the Break-Up Fee shall be Archipelago’s sole
and exclusive remedy for damages caused by any such non-renewal or termination
of this Agreement and, after such termination of this Agreement, Archipelago
shall have no rights to equitable relief, other than for specific performance
for the payment of the Break-Up Fee.
17. Headings.
The
Section headings contained in this Agreement are solely for convenience of
reference and shall not affect the meaning or interpretation of this Agreement
or of any term or provision hereof.
18. Severability.
If any
provision of this Agreement is held to be unenforceable, this holding will not
affect the validity of the other provisions of this Agreement.
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19. Independent
Parties.
Archipelago, X.X. Xxxxxxx and Trust are independent parties. Nothing in this
Agreement will be construed to make any of those parties an agent, partner,
employee, or legal representative of the other parties. None of the parties
will
have nor represent itself to have any authority to bind to make any agreement,
representation or warranty or to incur any liability on behalf of the other
parties.
20. No
Third Party Beneficiaries.
This
Agreement shall be binding upon and inure solely to the benefit of each Party
hereto and nothing in this Agreement is intended to confer upon any other person
any rights or remedies of any nature whatsoever under or by reason of this
Agreement.
21. Cumulative
Remedies.
No
right or remedy herein conferred on or reserved to either Party is intended
to
be exclusive of any other remedy or right, and each and every right or remedy
shall be cumulative and in addition to any right or remedy given hereunder
or
now hereafter existing at law or in equity or by statute.
22. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which taken together shall be deemed one
agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first written above.
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ARCHIPELAGO
HOLDINGS, INC.
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| By: | /s/ Xxxx X. Xxxxxx | |
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Name:
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Xxxx X. Xxxxxx |
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| Title: | Executive Vice President | |
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X.X.
XXXXXXX AND COMPANY
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name:
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Xxxxx X. Xxxxxx |
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| Title: | Senior Managing Director | |
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XXXXXXX
EXCHANGE TRADED TRUST (with
respect
to Sections 1, 4, 7(d), 12, 16 and 19 only)
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name:
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Xxxxx X. Xxxxxx |
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| Title: | President | |
9
EXHIBIT
A
Archipelago
will pay for the first printing of brochures and fact sheets, and the
expenditures made in connection therewith will be counted toward Archipelago’s
obligation under Section 2(a) of the Marketing Agreement to expend $500,000
during the first year after the ETF commences trading.
The
Marketing Plan and Marketing Materials to be provided by Archipelago relative
to
the ETF, the direct and indirect costs of which are to be borne by Archipelago
unless otherwise stated in this exhibit or the Marketing Agreement, are as
follows:
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1.
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Develop
and design branding and messaging;
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2.
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Determine
collateral needs (brochures, fact sheets, etc.) and develop the creative
copy;
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3.
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Develop
and design creative messaging for conferences and conference give
away
items;
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4.
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Develop
and design creative messaging for various media promotions and
advertisements to appear in or through print, direct mail, television,
radio and on-line Internet media outlets and pay the costs of such
media
promotions and advertisements;
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5.
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Facilitate
dissemination of press releases and organize media
opportunities;
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6.
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Host
and manage an Internet website, which shall include the following
features:
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a.
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url
hosted and managed by Archipelago;
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b.
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web
design by Archipelago;
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c.
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web
text/copy;
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d.
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posting
20 minute-delayed trading
information;
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e.
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current
prospectus, profile and statement of additional information posting;
and
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f.
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a
“Register with Us” section to allow registered parties to receive e-mails
and other information;
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7.
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Pay
costs of conference sponsorship opportunities jointly agreed by
Archipelago and X.X. Xxxxxxx, including meals, travel and entertainment
expenses of Archipelago employees attending such conferences;
and
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8.
|
Reasonable
support for X.X. Xxxxxxx’x general educational efforts concerning exchange
traded funds as jointly agreed by Archipelago and X.X.
Xxxxxxx.
|
The
Marketing Plan and Marketing Materials to be provided by Archipelago expressly
exclude the following, which are viewed as the obligation of X.X.
Xxxxxxx:
|
1.
|
Costs
of printing brands, messages, brochures, fact sheets, creative messaging
content and any other collateral printing expenses, except for the
first
printing of brochures and fact
sheets;
|
|
2.
|
Costs
of conference give away items;
|
|
3.
|
Costs
of ordering and managing exhibit booth production, manufacturing,
assembly, transportation and other exhibit booth logistics;
and
|
10
|
4.
|
Any
cost, expense or other obligation arising from the production,
dissemination or use of Marketing Materials and implementing the
Marketing
Plan not otherwise expressly assumed by Archipelago in this exhibit
and
the Marketing Agreement of which this exhibit is a part or as otherwise
agreed to in writing by
Archipelago.
|
11
