THE SELECT SECTOR SPDR TRUST
MARKETING AGREEMENT
THIS MARKETING AGREEMENT (the "Agreement") is made as of September 30,
2005, between The Select Sector SPDR Trust, a Massachusetts business Trust (the
"Trust"), and ALPS Distributors, Inc., a Colorado corporation ("ADI").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940 (the "1940 Act"), presently offering
shares in separate series (each a "Fund" and collectively the "Funds" or the
"Product") as listed on Appendix A attached hereto;
WHEREAS, the Trust has entered into a Distribution Agreement (the
"Distribution Agreement") dated as of September 30, 2005 with ADI providing for,
among other things, the distribution and sale of the shares ("Shares") of the
Funds;
WHEREAS, the Trust desires to retain ADI to provide various marketing and
shareholder services with respect to the Shares of the Funds as described
herein;
WHEREAS, ADI desires to render these services to the Trust; and
WHEREAS, the Trust has adopted a Plan of Distribution pursuant to Rule
12b-1 under the 1940 Act (each, a "12b-1 Plan") with respect to each Fund and
will make payments to ADI pursuant to such 12b-1 Plans for providing these
marketing and shareholder services; and
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the Trust and ADI agree as follows:
1. Definitions.
(a) The term "Registration Statement" shall mean the registration
statement most recently filed from time to time by the Trust with the
Securities and Exchange Commission (the "Commission") and effective
under the Securities Act of 1933, as amended (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 "Statement of Additional Information" or "SAI" shall mean the
Statement of Additional Information included as part of the Trust's
Registration Statement, as such Statement of Additional Information
may be amended or supplemented from time to time.
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(d) All capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to such terms in the Trust's Registration
Statement.
2. Representations and Warranties of ADI.
ADI represents and warrants to the Trust that:
(a) It is empowered under applicable laws and by its Articles of
Incorporation and By-laws to enter into and perform this Agreement.
(b) It is duly organized as a Colorado corporation and is and at all times
will remain duly authorized and licensed to carry out its services as
contemplated herein; and
(c) Its entering into this Agreement or providing the services
contemplated hereby does not conflict with or constitute a default or
require a consent (except for any consent in writing which shall have
been obtained by the date hereof) under or breach of any provision of
any agreement or document to which it is a party or by which it is
bound.
3. Representations and Warranties of the Trust.
The Trust represents and warrants to ADI that:
(a) The Trust shall take, from time to time, such steps, including payment
of the related filing fee, as may be necessary to register the Trust's
Shares under the 1933 Act to the end that Shares of each Series to
which the services under this Agreement relate will be registered
under the 1933 Act during the term of this Agreement.
(b) It is an open-end management investment company duly organized and
existing, in good standing, under the laws of the Commonwealth of
Massachusetts.
(c) It is empowered under applicable laws and by its Declaration of Trust
and By- laws to enter into and perform this Agreement.
(d) The Board of Trustees has duly authorized it to enter into and perform
this Agreement.
The Trust agrees to notify ADI immediately in writing of:
(a) any request by the Commission for amendments to the Trust's
Registration Statement, Prospectus or SAI, or for additional
information regarding such documents;
(b) any stop order suspending the effectiveness of the Trust's
Registration Statement or the initiation of any proceeding for that
purpose; and
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(c) all actions of the Commission with respect to any amendment to the
Trust's Registration Statement, Prospectus, or Statement of Additional
Information.
4. Duties of ADI.
ADI agrees to make available one Director of Wealth Management Strategies
("Director") and one Product Specialist (the "Specialist"), or individuals with
equivalent titles and/or responsibilities, on a full time basis to carry out the
following duties.
(a) Conduct Product training for the benefit of branch managers and
account executives of broker/dealers who are active or potentially
active in the secondary markets;
(b) Conduct Product seminars for the same persons listed in 4(a) above and
potential retail and/or institutional investors;
(c) Work with an advertising agency and public relations firm to enhance
brand identification and develop marketing material to be used with
broker/dealers and/or the public;
(d) Help maintain and continue to improve content on the Trust website,
xxx.xxxxxxxxx.xxx.
(e) Provide support for broker/dealers active in the secondary market;
(f) Provide Product information suitable for the secondary market upon
inquiry;
(g) Maintain lists of dealer contacts;
(h) Work with broker/dealers and other intermediaries who hold Shares for
the benefit of their customers to facilitate communications with such
customers and to develop a knowledge and understanding of the Trust's
shares with such customers.
(i) Provide marketing and graphic design resources to help develop,
consult and advise on the preparation of marketing material.
(j) ADI will target the independent planner market, identifying
independent financial planners and registered investment advisors that
use exchange traded funds and promote the Funds shares to these
planners and advisors for use in their asset allocation models.
The Director, Xx. Xxx Xxxxx, will be exclusively dedicated to the services
to be provided
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by ADI hereunder and will be based in the metropolitan New York area. Xx. Xxxxx
will be involved with the services provided by ADI hereunder as long as he
remains employed by or has a consulting relationship with ADI or any affiliate
of ADI and the Trust so desires.
Senior management of ADI will work with the Director and Specialist to
coordinate the aforementioned duties, attend various conferences, and perform
presentations to potential investors as needed.
5. Compensation and Marketing Budget.
Subject to the terms and conditions of the 12b-1 Plans, each Fund will pay
to ADI a fee for its services hereunder, calculated daily and payable monthly,
equal to such Fund's allocable portion of the aggregate fees payable by the
initial nine Funds, as follows:
(a) 0.03% per annum of the average aggregate daily net assets of all nine
Funds ("Aggregate Net Assets") up to Aggregate Net Assets of $4.5
billion, plus
(c) 0.035% per annum of Aggregate Net Assets in excess of $4.5 billion up
to $9 billion, plus
(d) 0.0275% per annum of Aggregate Net Assets in excess of $9 billion
Such fees shall be allocated by the Distributor among the Funds subject to
this Agreement pro rata in accordance with the average daily net assets of the
respective Funds, the method of such allocation to be subject to the annual
review and approval of the Board of Trustees of the Trust.
ADI will provide an annual marketing budget of $150,000 and 0.0025% of
aggregate net assets over $4.5 Billion for the production of marketing materials
and promotional items in association with the sales and marketing of the Trust's
Shares.
6. Term and Termination.
This Agreement shall be effective as of the date first set forth above, and
unless terminated as provided herein, shall continue 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 and, if a plan under Rule
12b-1 under the 1940 Act 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 (the "Independent Trustees"), 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 sixty (60) days prior written notice to ADI. In addition, this
Agreement may be terminated at any time by ADI upon sixty (60) days prior
written notice to the Trust. This Agreement shall automatically
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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. This Agreement will automatically terminate in the
event of a termination of the Distribution Agreement, or if Xx. Xxx Xxxxx is no
longer employed by ADI or an affiliate of ADI.
7. Limitation of Liability.
The Declaration of Trust dated June 10, 1998, establishing the Trust, which
is hereby referred to and a copy of which is on file with the Secretary of The
Commonwealth of Massachusetts, provides that the name The Select Sector SPDR
Trust means the Trustees from time to time serving (as Trustees but not
personally) under such Declaration of Trust. It is expressly acknowledged and
agreed that the obligations of the Trust hereunder shall not be binding upon any
of the shareholders, Trustees, officers, employees or agents of the Trust,
personally, but shall bind only the trust property of the Trust, as provided in
its Declaration of Trust. The execution and delivery of this Agreement have been
authorized by the Trustees of the Trust and signed by an officer of the Trust,
acting as such, and neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Trust as provided in its Declaration
of Trust.
8. Miscellaneous.
(a) Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(b) Captions. The captions in this Agreement are included for convenience
of reference only and in no way define or limit any of the provisions
hereof or otherwise affect their construction.
(c) Severability. If any provision of this Agreement shall be held or made
invalid, in whole or in part, then the other provisions of this
Agreement shall remain in full force and effect. Invalid provisions
shall, in accordance with this Agreement's intent and purpose, be
replaced, to the extent legally possible, by valid provisions in order
to effectuate the intended economic results of the invalid provisions.
(d) Assignment. This Agreement may not be assigned and shall automatically
terminate in the event of its "assignment" as defined in the 1940 Act
or upon a change of control of ADI.
(e) Amendment. This Agreement may be amended by mutual written consent,
provided that the Trust's consent to any material amendment to this
Agreement requires the approval provided for in Section 6 above and in
paragraph (b)(4) of Rule 12b-1 under the 1940 Act.
(f) 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
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and delivered, or mailed by registered mail, postage prepaid, to (1)
ALPS Distributors, Inc., 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000 Attention: General Counsel; and (2) The Select Sector SPDR
Trust, c/o State Street Bank and Trust Company, X.X. Xxx 0000, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000, Attn.: Legal Department.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first written above.
THE SELECT SECTOR SPDR TRUST
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: President
ALPS DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
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