Exhibit 99(e)(1)
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (the "Agreement") made as of May ___, 2006, by
and among Xxx Xxx Securities Corporation, a Delaware corporation (the
"Distributor"), Market Vectors ETF Trust, a Delaware statutory trust (the
"Trust") organized under the laws of the State of Delaware, and The Bank of New
York as custodian of the Trust (the "Custodian" and "Transfer Agent").
WITNESSETH
WHEREAS, the Trust is governed by an Agreement and Declaration of Trust
(the "Trust Agreement") pursuant to which there will be created units of
beneficial ownership, in one or more series, which will represent a
proportionate interest in the Trust's investment portfolio: currently only the
Market Vectors--Gold Miners ETF (the "Fund" and the "Shares," respectively).
WHEREAS, the Trust has filed with the Securities and Exchange SEC (the
"SEC") a registration statement on Form N-1A, as amended (Registration No.
811-10325), under the Investment Company Act of 1940, as amended (the "1940
Act"), and the Securities Act of 1933, as amended (the "1933 Act"), the forms of
which have heretofore been delivered to the Distributor; and
WHEREAS, the Trust will create and redeem the Shares only in
aggregations constituting a Creation Unit, as such term is used in the
Registration Statement (as defined herein), in accordance with the terms and
conditions set forth therein; and
WHEREAS, the Distributor is a registered broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"); and
WHEREAS, the Trust desires to retain the Distributor to act as
distributor with respect to the creation and distribution of Shares in Creation
Unit size aggregations as set forth in the Trust's Registration Statement, to
hold itself available to receive and process orders for Shares in the manner set
forth in the Trust's then-current prospectus and to enter into arrangements with
dealers; and
WHEREAS, the Distributor desires to render these services to the Trust;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement,the Trust and the Distributor hereby agree as follows:
SECTION 1
DISTRIBUTION AND BENEFICIAL OWNERS
1.1. APPOINTMENT. The Trust hereby appoints the Distributor as the
exclusive distributor for Shares in Creation Unit size aggregations on the terms
and for the periods set forth in this Agreement, and the Distributor hereby
accepts such appointment and agrees to act in such capacity hereunder.
1.2. DEFINITIONS.
(a) The term "Registration Statement" shall mean the registration
statement most recently filed from time to time by the Trust with the SEC and
effective under the 1933 Act and the 1940 Act, as such registration statement is
amended by any amendments thereto at the time in effect.
(b) The term "Prospectus" shall mean the prospectus included as
part of the Trust's Registration Statement, as such prospectus may be amended or
supplemented from time to time.
(c) The term "DTC" shall mean The Depository Trust Company,
New York, New York.
(d) All capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to such terms in the Registration Statement.
1.3. DISTRIBUTOR'S DUTIES. The Distributor shall have the following
duties:
(a) The Distributor agrees, as agent for the Trust, that all orders
whether through or outside the Clearing Process to create Shares in Creation
Unit size aggregations must be placed with the Distributor, and it is the
responsibility of the Distributor to transmit and process such orders either
through or outside the Clearing Process and deliver them to the Trust, as
described in the Registration Statement and in accordance with the provisions
thereof.
(b) The right granted to the Distributor to receive all orders to
create Shares in Creation Unit size aggregations and to transmit such orders to
the Custodian and Transfer Agent for the Fund shall be exclusive, and no other
principal underwriter or distributor shall be granted such right; provided,
however, that nothing herein shall affect or limit the right and ability of the
Custodian to accept Portfolio Deposits and related Cash Components (each as
defined in the Prospectus) through or outside of
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the Clearing Process, and as provided in and in accordance with the then-current
prospectus. The exclusive right to place creation orders for Shares granted to
the Distributor may be waived by the Distributor by notice to the Trust and the
Custodian in writing, either unconditionally or subject to such conditions and
limitations as may be set forth in such notice to the Trust and the Custodian.
The Trust hereby acknowledges that the Distributor may render principal
underwriting, distribution and other services to other parties, including other
exchange-traded funds.
(c) At the request of the Trust, the Distributor shall enter into
Participant Agreements, in the form attached hereto as Exhibit A, between and
among Participating Parties, the Distributor, the Transfer Agent and the Trust,
in accordance with the provisions of the Registration Statement and current
Prospectus. The Distributor shall make available for inspection during normal
business hours at its offices at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, a list of
the Participating Parties who have entered into Participant Agreements with the
Distributor and the Trust.
(d) The Distributor shall (i) generate and transmit confirmations
of Creation Unit purchase order acceptances to the purchaser, (ii) deliver
copies of the current Prospectus, included in the Registration Statement, to
purchasers of such Creation Units and upon request the current Statement of
Additional Information and (iii) maintain telephonic, facsimile and/or access to
direct computer communications links with the Transfer Agent.
(e) The Distributor shall provide toll-free lines, by way of the
American Stock Exchange Index Share Product Hotline (0-000-XXX-XXXX) for direct
investor and shareholder use between the hours of 9:00 a.m. and 8:00 p.m.
Eastern standard time on each day the New York Stock Exchange is open for
business, with appropriate National Association of Securities Dealers, Inc.
("NASD") licensed order taking and distribution services staff.
(f) Except as otherwise noted in the Registration Statement and
current Prospectus, the offering price for all Creation Units sold to investors
by the Distributor will be the net asset value per Creation Unit calculated in
the manner described in the Registration Statement and current Prospectus.
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(g) In performing its duties hereunder, the Distributor shall act
in conformity with the Trust Agreement, Registration Statement and the
then-current Prospectus relating to Shares and the Trust, and in conformity with
the instructions and directions of Xxx Xxx Associates Corporation (the
"Adviser") and the Board of Trustees (as defined in the Registration Statement)
of the Trust, and will comply with and conform in all material respects to the
requirements of the 1933 Act, the 1934 Act and the 1940 Act and all other
applicable federal and state laws, regulations and rulings, and the rules and
regulations of the American Stock Exchange (the "Amex") and the NASD.
(h) The Distributor shall not be obligated to accept any certain
number of orders for Creation Unit size aggregations of Shares; provided,
however, that the Distributor shall accept all orders submitted in proper form;
except, the Distributor shall not accept orders for Creation Units if the
Adviser advises that it is in the best interests of the Fund to suspend issuance
of Creation Units. Nothing herein contained shall prevent the Distributor from
entering into like distribution arrangements with other investment companies.
(i) The Distributor shall review all sales and marketing materials
for compliance with applicable laws and the conditions of any applicable
exemptive order, clear and file all advertising, sales, marketing and
promotional materials of the Trust provided to the Distributor, or in the
preparation of which it has participated, with the NASD as required by the 1933
Act and the 1940 Act, and the rules promulgated thereunder, and by the rules of
the NASD. The Distributor is not authorized to give any information or to make
any representations other than those contained in the Registration Statement or
current Prospectus, as amended from time to time, or contained in reports to
Beneficial Owners or other materials that may be prepared on behalf of the Trust
for the Distributor.
(j) The Distributor shall consult with the Adviser and the Trust
with respect to the production and printing of Prospectuses to be used in
connection with creations by creators of Creation Unit size aggregations of
Shares. The Distributor shall instruct broker-dealers that a Prospectus or a
Product Description, as applicable, must be distributed in accordance with all
rules and regulations made
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or adopted pursuant to the 1933 Act and the 1940 Act by the Commission or any
national securities exchange or securities association registered under the 1934
Act, including the NASD and the Amex.
(k) In performing its duties hereunder the Distributor shall be
entitled to rely on and shall not be responsible in any way for information
provided to it by the Board of Trustees, the Adviser, the Custodian or the Trust
and their respective service providers and shall not be liable or responsible
for the errors and omissions of such service providers, provided that the
foregoing shall not be construed to protect the Distributor against any
liability to the Board of Trustees, the Adviser, the Trust or the Trust's
Beneficial Owners to which the Distributor would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
under this Agreement.
(l) The Distributor has as of the date hereof, and shall at all
times have and maintain, net capital of not less than that required by Rule
15c3-1 of the 1934 Act, or any successor provision thereto. In the event that
the net capital of the Distributor shall fall below that required by Rule
15c3-1, or any successor provision thereto, the Distributor shall promptly
provide notice to the Trust and the Adviser of such event.
1.4. THE TRUST'S DUTIES. The Trust shall have the following duties:
(a) The Trust agrees to issue Creation Unit size aggregations of
Shares, subject to paragraph (e) of this Section 1.4, and to request DTC to
record on its books the ownership of such Shares in accordance with the
book-entry system procedures described in the Prospectus in such amounts as the
Distributor has requested in writing or other means of data transmission, as
promptly as practicable after receipt by the Custodian on behalf of the Trust of
the requisite Portfolio Deposit and Cash Component, if any (together with any
fees), for such creations and acceptance by the Custodian or by the Distributor
on behalf of the Trust of a creation order for such Shares, upon the terms
described in the Registration Statement.
(b) The Trust shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the
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distribution of Creation Units. The Trust and the Adviser shall make available
to the Distributor such number of copies of the current Prospectus as the
Distributor may reasonably request. The Trust and the Adviser authorize the
Distributor to use the Prospectus, but the Trust and the Adviser shall not be
responsible in any way for any information, statements or representations given
or made by the Distributor or its representatives or agents other than such
information, statements or representations as are contained in the Prospectus or
financial reports filed on behalf of the Trust or in any sales literature or
advertisements specifically approved by the Trust and the Adviser in writing.
(c) The Trust agrees that it will take all necessary action to
register an indefinite number of Shares under the 1933 Act. The Trust shall
take, from time to time, such steps, including payment of the related filing
fees, as may be necessary to register Shares under the 1933 Act and the Trust
under the 1940 Act to the end that all Creation Unit size aggregations of Shares
will be properly registered under the 1933 Act and the 1940 Act. The Trust
agrees to file from time to time such amendments, reports and other documents as
may be necessary in order that there may be in the Registration Statement or
Prospectus no (i) untrue statement of a material fact or (ii) omission to state
a material fact necessary in order to make the statements therein, in the case
of the Prospectus, in light of the circumstances in which made, not misleading.
The Distributor shall furnish such information and other material relating to
its affairs and activities as may be required by the Trust for inclusion in the
Registration Statement or Prospectus.
(d) The Trust shall keep the Distributor informed of the states and
other foreign and domestic jurisdictions in which the Trust has effected notice
filings of Shares for sale under the securities laws thereof. The Distributor
shall furnish such information and other material relating to its affairs and
activities as may be required by the Trust in connection with such filings.
(e) In accordance with the provisions of the then-current
Prospectus, the Trust may reject any creation order for Creation Unit size
aggregations of Shares or stop all receipts of creation orders for Shares at any
time or from time to time upon reasonable notice to the Distributor.
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(f) The Trust shall notify the Distributor promptly of:
1. any amendments to the Trust's Registration Statement or
Prospectus;
2. any inquiries by the SEC regarding additional
information or of any stop order suspending the
effectiveness of the Trust's Registration Statement or
the initiation of any proceeding for that purpose; and
3. all significant actions of the SEC having a material
impact with respect to any amendment to the Trust's
Registration Statement or Prospectus.
1.5. REPRESENTATIONS.
(a) The Distributor represents and warrants to the Trust that (i)
it is duly organized as a Delaware corporation and is and at all times will
remain duly authorized and licensed to carry out its services as contemplated
herein; (ii) the execution, delivery and performance of this Agreement are
within its power and have been duly authorized by all necessary action; (iii)
its entering into this Agreement or providing the services contemplated hereby
does not conflict with or constitute a default or require a consent under or
breach of any provision of any agreement or document to which the Distributor is
a party or by which it is bound, including, but not limited to, any Members
Agreement with the Amex (except for any consent in writing which shall have been
obtained by the date hereof); (iv) it has in place compliance policies and
procedures reasonably designed to assure compliance with the Federal Securities
Laws as that term is defined in Rule 38a-1 under the 1940 Act; (v) it
understands that pursuant to various U.S. regulations, it is required to
establish an anti-money laundering program, which satisfies the requirements of
Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001; (vi) it has
developed, implemented, and will maintain such an anti-money laundering program
and will comply with all applicable laws and regulations designed to guard
against money laundering activities set out in such program; (vii) it will allow
for appropriate regulators to examine its anti-money laundering books and
records; and (viii) it has procedures in place reasonably designed to protect
the privacy of non-public personal consumer/customer financial information to
the extent required by applicable law, rule and regulation.
(b) The Trust represents and warrants to the Distributor that (i)
the Registration Statement and the Prospectus have been prepared in conformity
in all material respects with the 1933 Act,
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the 1940 Act and the rules and regulations of the SEC (the "Rules and
Regulations"); (ii) the Registration Statement and Prospectus contain all
statements required to be stated therein in accordance with the 1933 Act, the
1940 Act and the Rules and Regulations; and (iii) all statements of fact
contained therein are true and correct in all material respects at the time
indicated or the effective date, as the case may be, and neither the
Registration Statement nor the Prospectus shall include any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the case of the Prospectus in
light of the circumstances in which made, not misleading. The Trust shall from
time to time file such amendment or amendments to the Registration Statement and
the Prospectus as, in the light of future developments, shall, in the opinion of
the Trust's counsel, be necessary in order to have the Registration Statement
and the Prospectus at all times contain all material facts required to be stated
therein or necessary to make the statements therein, in the case of the
Prospectus in light of the circumstances in which made, not misleading to a
purchaser of Shares. The Trust shall not file any amendment to the Registration
Statement or the Prospectus without giving the Distributor reasonable notice
thereof in advance, provided that nothing in this Agreement shall in any way
limit the Trust's right to file at any time such amendments to the Registration
Statement or the Prospectus as the Trust may deem advisable. Notwithstanding the
foregoing, the Trust shall not be deemed to make any representation or warranty
as to any information or statement provided by the Distributor for inclusion in
the Registration Statement or the Prospectus.
SECTION 2
FEES AND EXPENSES
2.1. EXPENSES.
(a) Each party hereto will bear its own expenses in connection with
this Agreement unless otherwise agreed by the parties hereto in writing. In
addition, the expenses of the Trust shall be borne by the Trust as described
under the caption "Fees and Expenses of the Fund" in the Prospectus.
(b) The Distributor shall bear the following costs and expenses
relating to the distribution of Shares: (i) the costs (other than those payable
pursuant to the Trust's agreement with the
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DTC) of processing and maintaining records of creations of Creation Units; (ii)
all costs of maintaining the records required of a broker/dealer registered
under the 1934 Act; (iii) the expenses of maintaining its registration or
qualification as a dealer or broker under federal or state laws; (iv) the
expenses incurred by the Distributor in connection with normal NASD filing fees
(expedited NASD filing fees will be billed to the Adviser); and (v) all other
expenses incurred in connection with the distribution services as contemplated
herein, except as otherwise specifically provided in this Agreement.
SECTION 3
INDEMNIFICATION
3.1. INDEMNIFICATION OF DISTRIBUTOR. The Trust agrees to indemnify,
defend and hold the Distributor, any person who controls the Distributor within
the meaning of Section 15 of the 1933 Act, and their respective officers and
directors (any of the Distributor, such control persons, and their respective
officers and directors, for purposes of this Section 3.1, an "Indemnitee"), free
and harmless from and against any and all claims, demands, liabilities, and
expenses (including costs reasonably incurred in connection with investigating
or defending such claims, demands or liabilities and any counsel fees reasonably
incurred in connection therewith) which the Indemnitee may incur, under the 1933
Act or under common law or otherwise, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Trust's Registration Statement, or the omission or alleged omission to state in
such document a material fact required to be stated thereon or necessary to make
the statements therein not misleading or, with respect to the Prospectus or any
amendment or supplement thereto, any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state in such
document a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made,
not misleading; provided, however, that nothing in this Section 3.1 shall
protect the Indemnitee against any liability to the Trust or its Beneficial
Owners that the Indemnitee would otherwise be subject to (i) by reason of
willful malfeasance, bad faith, or gross negligence in the performance of its
duties, (ii) by reason of the Indemnitee's reckless disregard of its obligations
and duties under this Agreement, or (iii) where such
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liability arises out of or is based upon an untrue statement or omission or
alleged untrue statement or omission in the Trust's Registration Statement or
Prospectus that was made in reliance upon and in conformity with written
information furnished by the Distributor to the Trust and the Adviser; and
provided, further, that the Trust will not be liable in any such case to the
Indemnitee with respect to any untrue statement or omission or alleged untrue
statement or omission made in the Registration Statement or the Prospectus that
is subsequently corrected in such document (or an amendment thereof or
supplement thereto), if a copy of the Prospectus (or such amendment thereof or
supplement thereto) was not sent or given to the person asserting any such
claim, demand, liability or expense at or before the written confirmation of the
sale to such person in any case where such delivery is required by the 1933 Act,
and the Trust had notified the Distributor of the amendment or supplement prior
to the sending of the written confirmation of sale.
The Trust's obligation to indemnify the Indemnitee is expressly
conditioned upon the Indemnitee's notification of the Trust of the commencement
of any action against the Indemnitee, which notification shall be given by
letter or by facsimile transmission addressed to the Trust at its principal
offices in New York, New York, and sent to the Trust by the person against whom
such action is brought within 10 days after the summons or other first legal
process shall have been served. The Indemnitee's failure to so notify the Trust
shall not relieve the Trust of any liability which it may have to the Indemnitee
by reason of any such untrue statement or omission or alleged untrue statement
or omission independent of this indemnification. The Trust will be entitled to
assume the defense of any suit brought to enforce any such claim, demand or
liability and to retain legal counsel of good standing chosen by the Trust and
approved by the Indemnitee (such approval not to be unreasonably withheld). If
the Trust elects to assume the defense of any such suit and retain counsel
approved by the Indemnitee, the defendant or defendants in such suit shall bear
the fees and expenses of any additional counsel retained by any of them. In the
event the Trust does not elect to assume the defense of any such suit and retain
counsel of good standing approved by the Indemnitee, or the Indemnitee does not
approve of the counsel chosen by the Trust (such approval not to be unreasonably
withheld), the Trust shall bear the fees and
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expenses of any counsel retained by the Indemnitee. The indemnification
agreement contained in this Section 3.1 shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of the
Indemnitee and shall survive the sale of any Creation Units made pursuant to
purchase orders obtained by the Indemnitee or the termination of this Agreement.
This indemnification will inure exclusively to the benefit of the Indemnitee and
its successors, assigns and estate. The Trust shall promptly notify the
Distributor of the commencement of any litigation or proceeding against the
Trust in connection with the issue and sale of any Creation Units.
3.2. INDEMNIFICATION OF THE TRUST. The Distributor agrees to indemnify,
defend, and hold the Trust and each of its trustees and officers and any person
who controls the Trust within the meaning of Section 15 of the 1933 Act (for
purposes of this Section 3.2, the Trust and each of its trustees and officers
and its controlling persons are collectively referred to as the "Trust
Affiliates"), free and harmless from and against any and all claims, demands,
liabilities, and expenses (including costs reasonably incurred in investigating
or defending such claims, demands or liabilities and any counsel fees reasonably
incurred in connection therewith) which the Trust Affiliates may incur, under
the 1933 Act or under common law or otherwise, arising out of or based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
information furnished by the Distributor to the Trust for use in the
Registration Statement or Prospectus in effect from time to time, or (ii) any
omission or alleged omission, on the part of the Distributor, to state a
material fact in connection with such information required to be stated in the
Registration Statement or Prospectus or necessary to make such information not
misleading, it being understood that the Trust will rely upon the information
provided by the Distributor for use in the preparation of the Registration
Statement and the Prospectus, or (iii) any alleged act or omission on the
Distributor's part as the Trust's agent that has not been expressly authorized
by the Trust in writing.
The Distributor's obligation to indemnify the Trust Affiliates is
expressly conditioned upon the Distributor being notified of the commencement of
any action brought against the Trust Affiliates, which notification shall be
given by letter or facsimile transmission addressed to the Distributor at its
principal offices in New York, New York, and sent to the Distributor by the
person against whom such action is
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brought within 10 days after the summons or other first legal process shall have
been served. The Trust Affiliates' failure to notify the Distributor of the
commencement of any such action shall not relieve the Distributor from any
liability which it may have to the Trust Affiliates by reason of any such untrue
statement or omission, alleged untrue statement or omission, or alleged act or
omission on the part of the Distributor independent of this indemnification. The
Distributor will be entitled to assume the defense of any suit brought to
enforce any such claim, demand or liability and to retain legal counsel of good
standing chosen by the Distributor and approved by the Trust Affiliate (such
approval not to be unreasonably withheld). If the Distributor elects to assume
the defense of any such suit and retain counsel approved by the Trust Affiliate,
the defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them. In the event the Distributor does
not elect to assume the defense of any such suit and retain counsel of good
standing approved by the Trust Affiliate, or the Trust Affiliate does not
approve of the counsel chosen by the Distributor (such approval not to be
unreasonably withheld), the Distributor shall bear the fees and expenses of any
counsel retained by the Trust Affiliate. The indemnification agreement contained
in this Section 3.2 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Trust Affiliate and
shall survive the sale of any Creation Units made pursuant to purchase orders
obtained by the Distributor or the termination of this Agreement. This
indemnification will inure exclusively to the benefit of the Trust Affiliate and
its successors, assigns and estate. The Distributor shall promptly notify the
Trust of the commencement of any litigation or proceeding against the
Distributor in connection with the issue and sale of any Creation Units.
3.3. SETTLEMENT OF CLAIMS. No Indemnitee or indemnified Trust Affiliate
shall settle any claim against it for which it intends to seek indemnification
from the indemnifying party, under the terms of Section 3.1 or 3.2 above,
without the prior written notice to and consent from the indemnifying party,
which consent shall not be unreasonably withheld. No indemnified or indemnifying
party shall settle any claim unless the settlement contains a full release of
liability with respect to the other party in respect of such action. This
section shall survive the termination of this Agreement.
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SECTION 4
DURATION, TERMINATION, AND AMENDMENT
4.1. DURATION. This Agreement shall become effective on May ___, 2006,
and continue for two years from its effective date, and thereafter from year to
year, provided such continuance is approved annually by the vote of a majority
of the Board of Trustees, and by the vote of those Trustees who are not
"interested persons" of the Trust (the "Independent Trustees") and if a plan
under Rule 12b-l under the 1940 Act (a "Plan") is in effect, by the vote of
those Trustees who are not "interested persons" of the Trust and who are not
parties to such Plan or this Agreement and have no financial interest in the
operation of such Plan or in any agreements related to such Plan, cast in person
at a meeting called for the purpose of voting on the approval. This Agreement
may be terminated at any time, without the payment of any penalty, as to each
Fund (i) by vote of a majority of the Independent Trustees or (ii) by vote of a
majority (as defined in the 0000 Xxx) of the outstanding voting securities of
the Fund, on at least sixty (60) days' prior written notice to the Distributor.
In addition, this Agreement may be terminated at any time by the Distributor
upon at least sixty (60) days prior written notice to the Trust. This Agreement
shall automatically terminate in the event of its assignment. As used in this
paragraph, the terms "assignment" and "interested persons" shall have the
respective meanings specified in the 1940 Act.
4.2. AMENDMENT. This Agreement may be amended by mutual consent,
provided that no provision of this Agreement may be changed, waived, discharged
or terminated except by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
SECTION 5
NOTICE
5.1. NOTIFICATION OF PARTIES. Any notice or other communication required or
permitted to be given pursuant to this Agreement shall be deemed duly given if
addressed and delivered, mailed by registered mail, postage prepaid, or sent by
facsimile transmission (with confirmation of receipt) to (1) Xxx Xxx Securities
Corporation, at 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
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Attention: ______________________________, ____________________________________,
facsimile # 000-000-0000, and (2) Market Vectors ETF Trust, 00 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: _____________________________________,
____________________________________, facsimile # 000-000-0000.
SECTION 6
MISCELLANEOUS
6.1. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
6.2. CAPTIONS. The captions in this Agreement are included for
convenience only and in no way define or limit any of the provisions hereof or
otherwise affect their construction.
6.3. SEVERABILITY. If any provisions of this Agreement shall be held or
made invalid, in whole or in part, then the other provisions of this Agreement
shall remain in force. Invalid provisions shall, in accordance with this
Agreement's intent and purpose, be amended, to the extent legally possible, by
valid provisions in order to effectuate the intended results of the invalid
provisions.
6.4. INSURANCE. The Distributor will maintain at its expense an errors
and omissions insurance policy which covers services by the Distributor
hereunder.
6.5. FORCE MAJEURE. In the event a party hereto is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable to
any other party for any damages resulting from such failure to perform or
otherwise from such causes.
6.6. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first written above.
MARKET VECTORS ETF TRUST
By:
---------------------------------
Name:
Title:
XXX XXX SECURITIES CORPORATION
By:
---------------------------------
Name:
Title:
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