FORM OF DISTRIBUTION AGREEMENT SSgA Active ETF Trust
Exhibit (e)(i)
Distribution Agreement made this ________ day of __, 2011, by and between SSgA Active ETF
Trust, a Massachusetts business trust (the “Trust”), and State Street Global Markets, LLC (the
“Distributor”).
WHEREAS, the Trust is a registered open-end management investment company organized as a
series trust offering a number of portfolios of securities (each a “Fund” and collectively the
“Funds”), having filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form N-1A (No.__________) under the Securities Act of 1933, as amended
(the “1933 Act”), and the Investment Company Act of 1940, as amended;
WHEREAS, the Trust intends to create and redeem shares of beneficial interest, par value $.01
per Share (the “Shares”) of each Fund on a continuous basis at their net asset value only in
aggregations constituting a Creation Unit, as such term is defined in the Registration Statement;
WHEREAS, the Shares of each Fund will be listed on the ___________ (the “Listing Exchange”)
and traded under the symbols set forth in Annex I hereto;
WHEREAS, the Trust desires to retain the Distributor to act as the distributor with respect to
the issuance and distribution of Creation Units of Shares of each Fund, hold itself available to
receive and process orders for such Creation Units in the manner set forth in the Trust’s
Prospectus, and to enter into arrangements with broker-dealers who may solicit purchases of Shares
and with broker-dealers and others to provide for servicing of shareholder accounts and for
distribution assistance, including broker-dealer and shareholder support;
WHEREAS, the Board of Trustees of the Trust has adopted a plan of distribution (each a “12b-1
Plan”) pursuant to Rule 12b-1 under the 1940 Act with respect to certain Funds and may make
payments to the Distributor pursuant to such 12b-1 Plans, subject to and in accordance with the
terms and conditions thereof and any related agreements;
WHEREAS, the Distributor is a registered broker-dealer under the Securities Exchange Act of
1934, as amended (the “1934 Act”) and a member of the National Association of Securities Dealers
(“NASD”); and
WHEREAS, the Distributor desires to provide such services to the Trust.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the
parties agree as follows:
1. Appointment. The Trust hereby appoints the Distributor as the exclusive distributor for
Creation Unit aggregations of Shares of each Fund listed in Annex I hereto, as may be amended by
the parties from time to time, on the terms and for the period set forth in this Agreement and
subject to the registration requirements of the 1933 Act and of the laws governing the sale of
securities in the various states, and the Distributor hereby accepts such appointment and agrees to
act in such capacity hereunder.
2. Definitions. Wherever they are used herein, the following terms have the following
respective meanings:
a. “1940 Act” means the Investment Company Act of 1940 and the rules and regulations
thereunder as amended from time to time;
b. “Prospectus” means the Prospectus and Statement of Additional Information constituting
parts of the Registration Statement of the Trust under the 1933 Act and the 1940 Act as such
Prospectus and Statement of Additional Information may be amended or supplemented and filed with
the Commission from time to time;
c. “Registration Statement” means the registration statement most recently filed from time to
time by the Trust with the Commission 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;
d. All capitalized terms used but not defined in this Agreement shall have the meanings
ascribed to such terms in the Registration Statement and the Prospectus.
3. Duties of the Distributor.
(a) The Trust grants to the Distributor the exclusive right to receive all orders for
purchases of Creation Units of each Fund from Participating Parties or DTC Participants which have
executed a Participant Agreement (“Authorized Participants”) and to transmit such orders to the
Trust in accordance with the Registration Statement and Prospectus; provided, however, that nothing
herein shall affect or limit the right and ability of the Trust to accept Deposit Securities and
related Cash Components through or outside the Clearing Process, and as provided in and in
accordance with the Registration Statement and Prospectus. The Trust acknowledges that the
Distributor shall not be obligated to accept any certain number of orders for Creation Units and
nothing herein shall prevent the Distributor from entering into like distribution arrangements with
other investment companies.
(b) The Distributor agrees to act as agent of the Trust with respect to the continuous
distribution of Creation Units of each Fund as set forth in the Registration Statement and in
accordance with the provisions thereof. The Distributor further agrees as follows: (a) at the
request of the Trust, the Distributor shall enter into Participant Agreements between and among
Authorized Participants, the Distributor and the Transfer Agent in accordance with the Registration
Statement and Prospectus and in the form attached hereto as Exhibit A; (b) the Distributor shall
generate and transmit confirmations of Creation Unit purchase order acceptances to the purchaser;
(c) the Distributor shall deliver copies of the prospectus, included in the Registration Statement,
to purchasers of such Creation Units and upon request the Statement of Additional Information; and
(d) the Distributor shall maintain telephonic, facsimile and/or access to direct computer
communications links with the Transfer Agent.
(c) (i) The Distributor agrees to use all reasonable efforts, consistent with its other
business, to facilitate the purchase of Creation Units through Authorized Participants in
accordance with the procedures set forth in the Prospectus and the Participant Agreement.
(ii) The Distributor shall, when it deems necessary and at its own expense, execute the
following agreements in the forms and as approved by the Board of Trustees of the Trust, providing
for activities which the Distributor deems reasonable and appropriate and which are primarily
intended to result in the sale of such Creation Units: (A) selected or soliciting dealer
agreements (“Soliciting Dealer Agreements”) with registered broker-dealers and other eligible
entities providing for the purchase of Creation Units of Shares of the Funds and related
promotional activities, and (B) investor services agreements (“Investor Services Agreements”) with
broker-dealers or other financial institutions providing
2
for broker-dealer, investor and stockholder support, account maintenance and educational and
promotional services relating to the Shares and facilitation through broker-dealers and other
persons of communications with beneficial owners of Shares. Pursuant to this Agreement, the
Soliciting Dealer Agreements and the Investor Services Agreements, the Distributor shall facilitate
the coordination of the performance of any marketing and promotional services, including
advertising; the development and implementation of any marketing plan; and clearing and filing all
advertising, sales, marketing and promotional materials of the Funds with the NASD as provided
below.
(d) The Distributor agrees to administer the Distribution and Service Plan on behalf of the
Trust. The Distributor shall, at its own expense, set up and maintain a system of recording
payments for fees and reimbursement of expenses disseminated pursuant to this Agreement and any
other related agreements under the Funds’ Rule 12b-1 Plans and shall, pursuant to the 1940 Act,
report such payment activity under the Distribution and Service Plan to the Trust at least
quarterly.
(e) The Distributor shall provide toll-free lines, by way of the Listing Exchange
(1800-__-____) for direct investor and shareholder use between the hours of 9:30 a.m. and 4:00 p.m.
Eastern Time on each day the New York Stock Exchange is open for business, with appropriate NASD
licensed order taking and distribution services staff.
(f) All activities by the Distributor and its agents and employees which are primarily
intended to result in the sale of Creation Units shall comply with the Registration Statement and
Prospectus, the instructions of the Board of Trustees of the Trust and all applicable laws, rules
and regulations including, without limitation, all rules and regulations made or adopted pursuant
to the 1940 Act by the Commission or any securities association registered under the 1934 Act,
including the NASD and the Listing Exchange.
(g) Except as otherwise noted in the Registration Statement and Prospectus, the offering price
for all Creation Units of Shares will be the aggregate net asset value of the Shares per Creation
Unit of the relevant Fund, as determined in the manner described in the Registration Statement and
Prospectus.
(h) If and whenever the determination of net asset value is suspended and until such
suspension is terminated, no further orders for Creation Units will be processed by the Distributor
except such unconditional orders as may have been placed with the Distributor before it had
knowledge of the suspension. In addition, the Trust reserves the right to suspend sales and
Distributor’s authority to process orders for Creation Units on behalf of the Trust, upon due
notice to the Distributor, if, in the judgment of the Trust, it is in the best interests of the
Trust to do so. Suspension will continue for such period as may be determined by the Trust.
(i) The Distributor is not authorized by the Trust to give any information or to make any
representations other than those contained in the Registration Statement or Prospectus or contained
in shareholder reports or other material that may be prepared by or on behalf of the Trust for the
Distributor’s use. The Distributor shall be entitled to rely on and shall not be responsible in
any way for information provided to it by the Trust and its 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 Trust
or the Trust’s shareholders 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.
(j) The Board of Trustees shall approve the form of any Soliciting Dealer Agreement or
Investor Services Agreement to be entered into by the Distributor.
3
(k) At the request of the Trust, the Distributor shall enter into agreements in the form
specified by the Trust (each a “Participant Agreement”) with participants in the system for
book-entry of The Depository Trust Company and the NSCC as described in the Prospectus.
(l) The Distributor shall ensure that all direct requests for Prospectuses and Statements of
Additional of Information are fulfilled. In addition, the Distributor shall arrange to provide the
Listing Exchange (and any other stock exchange on which the Shares may be listed) with copies of
Prospectuses to be provided to purchasers in the secondary market. The Distributor will generally
make it known in the brokerage community that prospectuses and statements of additional information
are available, including by (i) advising the Listing Exchange on behalf of its member firms of the
same, (ii) making such disclosure in all marketing and advertising materials prepared and/or filed
by the Distributor with the NASD, and (iii) as may otherwise be required by the Commission.
(m) The Distributor agrees to make available, at the Trust’s request a member of its staff to
attend Board meetings of the Trust in order to provide information with regard to the ongoing
distribution process and for such other purposes as may be requested by the Board of Trustees of
the Trust.
(n) Review all sales and marketing materials for compliance with applicable laws and
conditions of any applicable Exemptive order, and file such materials when necessary or
appropriate.
(o) The Distributor is authorized to and may employ or associate with such person or persons
as the Distributor may deem desirable to assist it in performing its duties under this Agreement;
provided, however, that the compensation of such person or persons shall be paid by the Distributor
and that the Distributor shall be as fully responsible to the Trust for the acts and omissions of
any such person or persons as it is for its own acts and omissions.
4. Duties of the Trust.
(a) The Trust agrees to issue Creation Unit aggregations of Shares of each Fund and to request
The Depository Trust Company 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 through the Transfer Agent in writing or other means of data transmission, as promptly as
practicable after receipt by the Trust of the requisite Deposit Securities and Cash Component
(together with any fees) and acceptance of such order, upon the terms described in the Registration
Statement. The Trust may reject any order for Creation Units or stop all receipts of such orders
at any time upon reasonable notice to the Distributor, in accordance with the provisions of the
Prospectus.
(b) The Trust agrees that it will take all action necessary to register an indefinite number
of Shares under the 1933 Act. The Trust will make available to the Distributor such number of
copies of its then currently effective Prospectus, or any supplement, as the Distributor require to
meet its obligations hereunder or as it may otherwise reasonably request. The Trust will 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 distribution of Creation Units.
The Trust shall keep the Distributor informed of the jurisdictions in which Shares of the Trust are
authorized for sale and shall promptly notify the Distributor of any change in this information.
The Distributor shall not be liable for damages resulting from the sale of Shares in authorized
jurisdictions where the Distributor had no information from the Trust that such sale or sales were
unauthorized at the time of such sale or sales.
4
(c) The Trust represents to the Distributor that the Registration Statement and Prospectus
filed by the Trust with the Commission with respect to the Trust have been prepared in conformity
with the requirements of the 1933 Act, the 1940 Act and the rules and regulations of the Commission
thereunder. The Trust will notify the Distributor promptly of any amendment to the Registration
Statement or supplement to the Prospectus and any stop order suspending the effectiveness of the
Registration Statement.
5. Fees and Expenses.
(a) The Trust will, with respect to each Fund, pay to the Distributor all fees and expenses
pursuant to the terms of the Distribution and Service Plan in effect for each respective Fund.
(b) The Distributor will bear the following costs and expenses relating to the distribution of
Creation Units of the Funds: (a) the costs of processing and maintaining records of creations of
Creation Units; (b) the costs of maintaining the records required of a broker-dealer registered
under the 1934 Act; (c) the expenses of maintaining its registration or qualification as a dealer
or broker under federal or state laws; (d) the expenses incurred by the Distributor in connection
with normal (non-expedited) NASD filing fees; and (e) all other expenses incurred in connection
with the distribution services contemplated herein, except as specifically provided in this
Agreement.
(c) The Distributor shall pay, from the fees received by it from the Funds pursuant to the
Rule 12b-1 Plans, all fees and make reimbursement of expenses, pursuant to and in accordance with
any and all Soliciting Dealer and/or Investor Services Agreements, as approved by the Board of
Trustees of the Trust, as set forth in Section 3 of this Agreement. Further, the Distributor will
pay, from the fees received by it from the Funds pursuant to the Rule 12b-1 Plans, all fees with
respect to expedited NASD filing fees.
6. Indemnification.
(a) The Trust agrees to indemnify and hold harmless the Distributor and any soliciting dealer
that enters into a Soliciting Dealer Agreement with the Distributor, which provides for such
indemnification, in the form approved by the Board of Trustees (each an “Indemnified Dealer”) and
each of the directors, officers, agents and employees and any person who controls the Distributor
or the Indemnified Dealer within the meaning of Section 15 of the 1933 Act (any of the Distributor,
any Indemnified Dealer, their officers, agents, employees and directors or such control persons,
for purposes of this paragraph, an “Indemnitee”) against any loss, liability, claim, damages or
expense (including the reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection therewith) arising out
of or based upon an allegation or the claim that the Registration Statement, Prospectus,
shareholder reports or other information filed or made public by the Trust (as from time to time
amended) included an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein (and in the case
of the Prospectus, in light of the circumstances under which they were made) not misleading under
the 1933 Act, or any other statute or the common law. However, the Trust does not agree to
indemnify the Distributor or hold it harmless to the extent that the statement or omission was made
in reliance upon, and in conformity with information furnished to the Trust by or on behalf of the
Distributor. The Trust will also not indemnify any Indemnitee with respect to any untrue statement
or omission made in the Registration Statement or Prospectus that is subsequently corrected in such
document (or an amendment thereof or supplement thereto) if a copy of the Prospectus (or such
amendment or supplement) was not sent or given to the person asserting any such loss, liability,
claim, damage or expense at or before the written confirmation 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
5
to the sending of the confirmation. In no case (i) is the indemnity
of the Trust in favor of any Indemnitee to be deemed to
protect the Indemnitee against any liability to the Trust or its shareholders to which the
Indemnitee 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, or (ii) is the Trust to be liable under its indemnity
agreement contained in this paragraph with respect to any claim made against any Indemnitee unless
the Indemnitee shall have notified the Trust in writing of the claim within a reasonable time after
the summons or other first written notification giving information of the nature of the claim shall
have been served upon Indemnitee (or after Indemnitee shall have received notice of service on any
designated agent). However, failure to notify the Trust of any claim shall not relieve the Trust
from any liability which it may have to any Indemnitee against whom such action is brought
otherwise than on account of its indemnity agreement contained in this paragraph. The Trust shall
be entitled to participate at its own expense in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any claims, but if the Trust elects to assume the defense,
the defense shall be conducted by counsel chosen by it and satisfactory to Indemnitee, defendant or
defendants in the suit. In the event the Trust elects to assume the defense of any suit and retain
counsel, Indemnitee, defendant or defendants in the suit, shall bear the fees and expenses of any
additional counsel retained by them. If the Trust does not elect to assume the defense of any
suit, it will reimburse the Indemnitee, defendant or defendants in the suit, for the reasonable
fees and expenses of any counsel retained by them. The Trust agrees to notify the Distributor and
any Indemnified Dealer promptly of the commencement of any litigation or proceedings against it or
any of its officers or trustees in connection with the issuance or sale of any of the Creation
Units or the Shares.
(b) The Distributor agrees to indemnify and hold harmless 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 paragraph, the Trust and each of its Trustees and officers and its
controlling persons are collectively referred to as the “Trust Affiliates”) against any loss,
liability, claim, damages or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damages or expense and reasonable counsel fees incurred in
connection therewith) which the Trust Affiliate may incur under the 1933 Act or any other statute
or common law, but only to the extent that such loss, liability, claim, damages or expense shall
arise out of or be based upon (i) the allegation of any wrongful act of the Distributor or any of
its employees or (ii) allegation that the Registration Statement, Prospectus, shareholder reports
or other information filed or made public by the Trust (as from time to time amended) included an
untrue statement of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading, insofar as the statement or omission was
made in reliance upon, and in conformity with written information furnished to the Trust by or on
behalf of the Distributor. In no case (i) is the indemnity of the Distributor in favor of any
Trust Affiliate to be deemed to protect any Trust Affiliate against any liability to the Trust or
its security holders to which such Trust Affiliate 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, or (ii) is the Distributor
to be liable under its indemnity agreement contained in this paragraph with respect to any claim
made against any Trust Affiliate unless the Trust Affiliate shall have notified the Distributor in
writing of the claim within a reasonable time after the summons or the first written notification
giving information of the nature of the claim shall have been served upon the Trust Affiliate (or
after the Trust Affiliate shall have received notice of service on any designated agent). However,
failure to notify the Distributor of any claim shall not relieve the Distributor from any liability
which it may have to the Trust Affiliate against whom the action is brought otherwise than on
account of its indemnity agreement contained in this paragraph. The Distributor shall be entitled
to participate at its own expense in the defense or, if it so elects, to assume the defense of any
suit brought to enforce the claim, but if the Distributor elects to assume the defense, the defense
shall be conducted by counsel chosen by it and satisfactory to the Trust, its officers and Board
and to any controlling person or persons, defendant or defendants in the suit. In the event that
Distributor elects to assume the defense of any suit and retain counsel, the Trust or controlling
person or persons, defendant or defendants in the suit, shall
6
bear the fees and expenses of any
additional counsel retained by them. If the Distributor does not elect to assume the
defense of any suit, it will reimburse the Trust, its officers and Board or controlling person
or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any
counsel retained by them. The Distributor agrees to notify the Trust promptly of the commencement
of any litigation or proceedings against it in connection with the issuance and sale of any of the
shares.
(c) No indemnified party shall settle any claim against it for which it intends to seek
indemnification from the indemnifying party, under the terms of section 6(a) or 6(b) 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 6 shall survive the termination of this Agreement.
7. Representations.
(a) The Distributor represents and warrants that (i) it is duly organized as a Delaware
Limited Liability 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; and (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 and (iv) it is registered as a
broker-dealer under the 1934 Act and is a member of the NASD.
(b) The Trust represents and warrants that (i) it is duly organized as a Massachusetts
business trust and is and at all times will remain duly authorized to carry out its obligations as
contemplated herein; (ii) it is registered as an investment company under the 1940 Act; (iii) the
execution, delivery and performance of this Agreement are within its power and have been duly
authorized by all necessary action; and (iv) its entering into this Agreement 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 Trust is a party or by which it is bound.
8. Duration, Termination and Amendment.
(a) This Agreement shall be effective on __________, 2011, and unless terminated as provided
herein, shall 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-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, 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
▇▇▇▇ ▇▇▇) 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.
(b) During such period as the Distributor receives compensation pursuant to the 12b-1 Plans, and
this Agreement constitutes a 12b-1 Plan related agreement, (i) any material amendment to this
Agreement
7
requires the approval provided for in paragraph (a) with respect to annual renewals of
this Agreement, and (ii) any amendment that materially increases the amount to be spent for
distribution services requires the
additional approval of the majority of the Trust’s outstanding voting securities (as defined in the
▇▇▇▇ ▇▇▇) of each affected Fund; and (iii) the selection and nomination of those Trustees who are
not “interested persons” (as defined in the ▇▇▇▇ ▇▇▇) of the Trust shall be committed to the
discretion of the Trustees of the Trust who are not such “interested persons” of the Trust;
(c) No provision of this Agreement may be changed, waived, discharged or terminated except by an
instrument in writing signed by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
9. Notice. Any notice or other communication authorized or required by this Agreement to
be given to either party shall be in writing and deemed to have been given when delivered in person
or by confirmed facsimile, or posted by certified mail, return receipt requested, to the following
address (or such other address as a party may specify by written notice to the other): if to the
Distributor: State Street Global Markets, LLC, Attn.: ▇▇▇▇ ▇▇▇▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇; and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, fax (▇▇▇) ▇▇▇-▇▇▇▇ if to the Trust: State Street Bank and Trust Company, Attn.:
Fund Administration Legal Department, ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇.
10. Limitation of Liability. The Distributor is expressly put on notice of the limitation
of shareholder liability as set forth in the Declaration of Trust of the Trust and agrees that the
obligations assumed by the Trust under this contract shall be limited in all cases to the Trust and
its assets. The Distributor shall not seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust, nor shall the Distributor seek satisfaction of any
such obligation from the Trustees or any individual Trustee of the Trust. The Distributor
understands that the rights and obligations of each series of shares of the Trust under the
Declaration of Trust are separate and distinct from those of any and all other series.
11. Choice of Law. This Agreement shall be governed by, and construed in accordance with,
the laws of The Commonwealth of Massachusetts, without giving effect to the choice of laws
provisions thereof.
12. Counterparties. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
13. 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.
14. Insurance. The Distributor will maintain at its expense an errors and omissions
insurance policy which covers services by the Distributor hereunder.
15. Segregation of Fees and Expenses. Amounts paid by each Fund to the Distributor under
its 12b-1 Plan either for distribution related services or shareholder services shall not be used
to pay for the distribution of Shares of, or shareholder servicing in respect of, any other Fund.
However, fees under the
8
12b-1 Plan attributable to the Trust as a whole shall be allocated to each Fund according to the
method adopted by the Trust’s Board of Trustees. Fees attributable to the Trust as a whole shall
include any amounts payable under the 12b-1 Plans to the Distributor for its services rendered
hereunder. The Distributor’s allocation of such 12b-1 Plan fees shall be subject to review by the
Trust’s Board of Trustees.
16. Limitation of Liability. The Amended and Restated Declaration of Trust dated September
6, 2000, 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 Street Tracks® 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
officers designated below as of the date first set forth above.
| SSgA ACTIVE ETF TRUST | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| STATE STREET GLOBAL MARKETS, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
9
Annex I
| Fund | Symbol | |
SPDR Real Asset ETF
|
||
SPDR Income ETF |
||
SPDR GSO/Blackstone Bank Loan Market ETF |
||
SPDR Target Risk Conservative ETF |
||
SPDR Target Risk Moderate ETF |
||
SPDR Target Risk Aggressive ETF |
10