TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 24th day of May, 2006 by and between WisdomTree
Trust, a business trust established under the laws of the State of Delaware,
having its principal office and place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Trust"), and The Bank of New York, a New York
corporation authorized to do a banking business having its principal office and
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Bank").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust, on behalf of the series listed on Appendix A hereto
(as such Appendix A may be amended from time to time) (each an "Index Series"
and collectively, the "Index Series") desires to appoint the Bank as its
transfer agent, dividend disbursing agent and agent in connection with certain
other activities, and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the "1934
Act");
WHEREAS, the Trust will issue and redeem shares of each Index Series only
in aggregations of shares known as "Creation Units" principally in-kind for
portfolio securities of the respective Index Series, as more fully described in
the then current prospectus and statement of additional information of the Fund
(together, the "Prospectus") included in its registration statement on Form N-1A
(the "Registration Statement"); and
WHEREAS, the shares of each of the Index Series will be approved for
listing on the New York Stock Exchange ("NYSE"), subject to notice of issuance;
and
WHEREAS, the Depository Trust Company, a limited purpose trust company
organized under the laws of the State of New York ("DTC"), or its nominee, will
be the record or registered owner (the "Shareholder") of all shares of each
Index Series;
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
the Fund and the Bank agree as follows:
1. Terms of Appointment; Duties of the Bank.
1.1 Subject to the terms and conditions set forth in this Agreement; the
Trust on behalf of the Index Series hereby employs and appoints the Bank to act,
and the Bank agrees to act, as transfer agent for each of the Index Series'
authorized and issued shares of beneficial interest ("Shares"), and dividend
disbursing agent of the Trust.
1.2 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to time by
agreement between the Trust and the Bank, the Bank shall:
(i) Receive from the Authorized Participants (as defined in
the Prospectus) or a person reasonably believed by the Bank to be an Authorized
Participant purchase orders for Creation Units, promptly transmit such purchase
orders to the Trust's distributor (the "Distributor") for acceptance by or on
behalf of the Trust, upon receipt of the written acknowledgement of such
acceptance from the Distributor promptly transmit appropriate trade instructions
to the National Securities Clearing Corporation or DTC, as applicable, and
pursuant to such orders issue the appropriate number of shares of the applicable
Index Series in Creation Units and hold such shares in the account of the
Shareholder for each of the respective Index Series.
(ii) Receive from the Authorized Participants or persons
reasonably believed by the Bank to be Authorized Participants redemption
requests; deliver the appropriate documentation thereof to the duly appointed
custodian of the Trust (the "Custodian"); generate and transmit, or cause to be
generated and transmitted, confirmation of receipt of such redemption requests
to such Authorized Participants; transmit appropriate trade instructions to the
National Securities Clearing Corporation or DTC, as applicable; and pursuant to
such orders redeem the appropriate number of shares of the applicable Index
Series in Creation Units from the account of the Shareholder for each of the
respective Index Series;
(iii) At the appropriate time after the Bank has received
funds, including receipt by provisional credit, cause to be paid over in the
appropriate manner monies to the redeeming party;
(iv) Prepare and transmit after the Bank has received funds,
including receipt by provisional credit, by means of DTC's book-entry system
payments for dividends and distributions declared by the Trust on behalf of an
Index Series;
(v) Create and maintain, in accordance with the 1940 Act, and
the rules promulgated thereunder, such records as are listed on Schedule A. All
such records shall be available for inspection and use by the Trust. Where
applicable, such records shall be maintained by the Bank for the periods and in
the places required by Rule 31a-2 under the 1940 Act;
(vi) Upon reasonable notice by the Trust, make available
during regular business hours all records and other data created and maintained
pursuant to this Agreement for reasonable audit and inspection by the Trust, or
any person retained by the Trust. Upon reasonable notice by the Trust, the Bank
shall make available during regular business hours its facilities and premises
employed in connection with its performance of this Agreement for reasonable
visitation by the Trust, or any person retained by the Trust;
(vii) Record the issuance of Shares of each Index Series and
maintain, pursuant to Rule 17Ad-10(e) under the 1934 Act, a record of the total
number of Shares of the Trust which are authorized, based upon data provided to
it by the Trust, and issued and outstanding. The Bank shall also provide the
Trust on a regular basis with the total
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number of Shares which are authorized and issued and outstanding but shall not
be responsible for, when recording the issuance of Shares, monitoring the
issuance of such Shares or compliance with any laws relating to the validity of
the issuance or the legality of the sale of such Shares;
(ix) Prepare and transmit to the Trust and to any applicable
securities exchange (as specified to the Bank by the Trust) information with
respect to purchases and redemptions of Shares;
(x) On days that the Trust may accept orders for purchases or
redemptions, calculate and transmit to the Trust's administrator the number of
outstanding Shares for each series of the Trust;
(xi) On days that the Trust may accept orders for purchases or
redemptions, (pursuant to the Participant Agreement), transmit to the Trust and
DTC the amount of Shares purchased on such day;
(xii) Confirm to DTC the number of Shares evidenced by each
global certificate in registered form issued to the Shareholder, as DTC may
reasonably request;
(xiv) Prepare and deliver other reports, information and
documents to DTC as DTC may reasonably request;
(xv) Extend the voting rights to the Shareholder and/or
beneficial owners of Shares in accordance with the policies and procedures of
DTC for book-entry only securities;
(xvi) Prepare a monthly report of all purchases and
redemptions during such month on a gross transaction basis. The monthly report
shall show the counterpart and amount of each purchase on a daily basis net
number of shares either redeemed or created for such Business Day; and
(xvii) Implement the Trust's Anti-Money Laundering Program and
monitoring compliance with the Anti-Money Laundering and Foreign Asset
Compliance Policy and Procedures.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a) or in any Schedule hereto, the Bank shall: perform all of
the services it customarily performs as a transfer agent and dividend disbursing
agent for exchange traded funds, including but not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, coordinating the
mailing and soliciting of proxies, receiving and tabulating proxies, withholding
taxes on all accounts, including nonresident alien accounts, preparing and
transmitting statements of account to the Shareholder for all purchases and
redemptions of Shares, preparing and mailing activity statements for
Shareholders (including dividend and distribution notices and tax information),
and providing Shareholder account information.
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(c) The following shall be delivered to DTC for delivery to
beneficial owners in accordance with the procedures for book-entry only
securities of DTC:
(i) Annual and semi-annual reports of the Trust;
(ii) Proxies, proxy statements and other proxy soliciting
materials;
(iii) Prospectus and amendments and supplements to the
Prospectus, including stickers; and
(iv) Other communications as may be required by law or
reasonably requested by the Trust.
(d) The Bank shall provide additional services (if any) on behalf of
the Trust (i.e., escheatment services) which may be agreed upon in writing
between the Trust and the Bank.
1.3 Instructions shall be deemed to be "Proper Instructions" hereunder if
such instructions are (i) instructions given by an Authorized Person (which
shall include the Trust's Distributor), such instructions to be given in such
form and manner as the Bank and the Trust shall agree upon from time to time.
Oral instructions will be considered Proper Instructions if the Bank reasonably
believes them to have been given by an Authorized Person. The Trust shall cause
all oral instructions to be promptly confirmed in writing. The Bank shall act
upon and comply with any subsequent proper instruction which modifies a prior
instruction and the sole obligation of the Bank with respect to any follow-up or
confirmatory instruction shall be to make reasonable efforts to detect any
discrepancy between the original instruction and such confirmation and to report
such discrepancy to the Trust. Instructions shall include communication effected
directly between electro-mechanical or electronic devices, including information
transmitted by the Trust's Distributor. The Trust hereby authorizes such use of
electro-mechanical or electronic communication and the Trust and the Bank will
agree as to procedures which shall afford adequate safeguards for the Trust's
assets. If the Fund elects to transmit Instructions through an on-line
communications system offered by the Bank, the Fund's use thereof shall be
subject to the Terms and Conditions attached as Appendix I hereto. If the Bank
receives Instructions which appear on their face to have been transmitted by an
Authorized Person via (i) computer facsimile, email, the Internet or other
insecure electronic method, or (ii) secure electronic transmission containing
applicable authorization codes, passwords and/or authentication keys, the Fund
understands and agrees that the Bank cannot determine the identity of the actual
sender of such Instructions and that Custodian shall conclusively presume that
such Written Instructions have been sent by an Authorized Person, and the Fund
shall be responsible for ensuring that only Authorized Persons transmit such
Instructions to the Bank.
1.4 Authorized Person will mean any of the persons duly authorized to give
Proper Instructions or otherwise act on behalf of the Trust by appropriate
resolution of its Board, and set forth in a certificate provided to the Bank, or
any person reasonably believed by the Bank to be such person.
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2. Sale of Trust Shares.
2.1 Whenever the Trust shall sell or cause to be sold any Shares of an
Index Series, the Trust shall deliver or cause to be delivered to the Bank a
document duly specifying: (i) the name of the Index Series whose Shares were
sold; (ii) the number of Shares sold, trade date, and price; (iii) the amount of
money and/or securities to be delivered to the Custodian for the sale of such
Shares and specifically allocated to such Index Series; and (iv) in the case of
a new account, a new account application or sufficient information to establish
an account.
2.2 The Bank will, upon receipt by it of a check or other payment
identified by it as an investment in Shares of one of the Index Series and drawn
or endorsed to the Bank as agent for, or identified as being for the account of,
one of the Index Series, promptly deposit such check or other payment to the
appropriate account postings necessary to reflect the investment in the
appropriate Index Series. The Bank will notify the Trust (or its designated
agent) and the Custodian of all purchases and related account adjustments.
2.3 Under procedures as established by mutual agreement between the Trust
and the Bank, the Bank shall issue to the purchaser or its authorized agent such
Shares in Creation Units, as such person is entitled to receive determined in
accordance with the prospectus and any applicable federal law or regulation. In
issuing Shares to a purchaser or its authorized agent, the Bank shall be
entitled to rely upon the latest Proper Instructions, if any, previously
received by the Bank from the Trust, the purchaser or their authorized agents
concerning the delivery of such Shares.
2.4 The Bank shall not issue any Shares of the Trust where it has received
a written instruction from the Trust or written notification from any
appropriate federal or state authority that the sale of the Shares of the Index
Series in question has been suspended or discontinued, and the Bank shall be
entitled to rely upon such written instructions or written notification.
2.5 Upon the issuance of any Shares of any Index Series in accordance with
foregoing provisions of this Section, the Bank shall not be responsible for the
payment of any original issue or other taxes, if any, required to be paid by the
Trust in connection with such issuance.
2.6 The Bank may establish such additional rules and regulations governing
the transfer or registration of Shares as it may deem advisable and consistent
with such rules and regulations generally adopted by transfer agents, or with
the written consent of the Trust, any other rules and regulations.
3. Returned Orders. In the event that any order for the transfer of money is
returned unpaid for any reason, the Bank will take such steps as the Bank may,
in its discretion, deem appropriate to protect the Trust from financial loss or
as the Trust or its designee may instruct.
4. Redemptions. Shares of any Index Series may be redeemed in accordance with
the procedures set forth in the Prospectus of the Trust and the Bank will duly
process all
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redemption requests.
5. Right to Seek Assurances. The Bank reserves the right to refuse to transfer
or redeem Shares until it is satisfied that the requested transfer or redemption
is legally authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or redemptions which the Bank, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no basis for
any claims adverse to such transfer or redemption. The Bank may, in effecting
transfers, rely upon the provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as the same may be
amended from time to time, which in the opinion of legal counsel for the Trust
or the Bank's own legal counsel, do not require certain documents in connection
with the transfer or redemption of Shares of any Index Series.
6. Distributions.
6.1 The Trust will promptly notify the Bank of the declaration of any
dividend or distribution. The Trust shall furnish to the Bank a resolution of
the Board of Trustees of the Trust certified by the Secretary (a "Certificate"):
(i) authorizing the declaration of dividends on a specified periodic basis and
authorizing the Bank to rely on oral instructions or a Certificate specifying
the date of the declaration of such dividend or distribution, the date of
payment thereof, the record date as of which Shareholders entitled to payment
shall be determined and the amount payable, per share to Shareholders of record
as of such record date and the total amount payable to the Bank on the payment
date; or (ii) setting forth the date of the declaration of any dividend or
distribution by a Index Series, the date of payment thereof, the record date as
of which Shareholders entitled to payment shall be determined, and the amount
payable per share to the Shareholders of record as of that date and the total
amount payable to the Bank on the payment date.
6.2 The Bank, on behalf of the Trust, shall instruct the Custodian to
place in a dividend disbursing account funds equal to the cash amount of any
dividend or distribution to be paid out. The Bank will calculate, prepare and
mail checks to (at the address as it appears on the records of the Bank), or
(where appropriate) credit such dividend or distribution to the account of,
Index Series Shareholders, and maintain and safeguard all underlying records.
6.3 The Bank will replace lost checks at its discretion and in conformity
with regular business practices.
6.4 The Bank shall not be liable for any improper payments made in
accordance with a resolution of the Board of Trustees of the Trust.
6.5 If the Bank does not receive front the Custodian sufficient cash to
make payment to all Shareholders of the Trust as of the record date, the Bank
shall, upon notifying the Trust, withhold payment to all Shareholders of record
as of the record date until such sufficient cash is provided to the Bank and
shall not be liable for any claim arising out of such withholding.
7. Taxes. It is understood that the Bank shall file such appropriate information
returns concerning the payment of dividends and capital gain distributions and
tax withholding with
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the proper Federal, State and local authorities as are required by law to be
filed by the Trust and shall withhold such sums as are required to be withheld
by applicable law.
8. Books and Records.
8.1 The Bank shall maintain confidential records showing for each
Shareholder account in each Index Series, the following: (i) name, address and
tax identification number; (ii) number and class, if any, of Shares held; (iii)
historical information regarding shareholder accounts, including dividends and
distributions and the date and price for each transaction in a shareholder's
account; (iv) any stop or restraining order placed against Shareholder's
account; (v) information with respect to withholdings; (vi) any dividend address
and correspondence relating to the current maintenance of a Shareholder's
account; (vii) any information required in order for the Bank to perform the
calculations contemplated or required by this Agreement; and (viii) such other
information and data as may be required by applicable law.
8.2 Any records listed on Schedule A which are required to be maintained
by Rule 31a-1 under the 1940 Act will be preserved for the periods prescribed in
Rule 31a-2 under the 1940 Act. Such records may be inspected by the Trust during
regular business hours upon reasonable notice. The Bank may, at its option at
any time, and shall forthwith upon the Trust's demand, turn over to the Trust
and cease to retain in the Bank's files, records and documents created and
maintained by the Bank in performance of its service or for its protection. At
the end of the retention period required by the 1940 Act, such documents will
either be turned over to the Trust, or destroyed in accordance with the Trust's
authorization.
8.3 Procedures applicable to the services to be performed hereunder may be
established from time to time by agreement between the Trust and the Bank. The
Bank shall have the right to utilize any shareholder accounting and
recordkeeping systems which, in its opinion, qualifies to perform any services
to be performed hereunder without violating the 1940 Act. The Bank shall keep
records relating to the services performed hereunder, in the form and manner as
it may deem advisable.
9. Fees and Expenses.
9.1 For performance by the Bank pursuant to this Agreement, the Trust
agrees to pay the Bank an annual fee as mutually agreed upon in writing. Such
fees and out-of-pocket expenses and advances identified under Section 9.2 below
may be changed from time to time, upon mutual written agreement between the
Trust and the Bank.
9.2 In addition to the fee paid under Section 9.1 above, the Trust agrees
to reimburse the Bank for out-of-pocket expenses or advances incurred by the
Bank, provided that the Bank delivers to the Trust invoices for such fees or
expenses within 30 days of incurring the same, and the Trust shall have a
reasonable time period to review and approve the payment of such invoices. In
addition, any other expenses incurred by the Bank at the request or with the
consent of the Trust including, without limitation, any equipment or supplies
which the Bank orders or purchases specifically for the Trust, with the approval
of the Trust, or which the Trust specifically orders or requires the Bank to
purchase, will be
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reimbursed by the Trust.
9.3 The Trust agrees to pay all fees and reimbursable expenses, provided
that the Bank delivers to the Trust invoices for such fees or expenses within 30
days of incurring the same, and the Trust shall have a reasonable time period to
review and approve the payment of such invoices. The Trust agrees to reimburse
the Bank for postage for mailing of dividends, proxies, reports and other
mailings to all shareholder accounts, provided that the Bank delivers to the
Trust invoices for such costs within 30 days of incurring the same, and the
Trust shall have a reasonable time period to review and approve the payment of
such invoices. Any waiver or extension by the Bank of time periods shall not
constitute a dismissal of any monies due under this Agreement nor shall such
waiver or extension apply to any future monies due to the Bank hereunder.
10. Representations and Warranties of the Bank.
The Bank represents and warrants to the Trust that:
10.1 It is a banking company duly organized and existing and in good
standing under the laws of the State of New York.
10.2 It is duly qualified to carry on its business in the State of New
York.
10.3 It is empowered under applicable laws and by its Charter and By-Laws
to act as transfer agent and dividend disbursing agent and to enter into and
perform this Agreement.
10.4 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
10.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
10.6 It is in full material compliance with all applicable federal state
and New York laws with respect to its duties under this Agreement.
11. Representations and Warranties of the Trust.
The Trust represents and warrants to the Bank that:
11.1 It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware.
11.2 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
11.3 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
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11.4 It is a open-end management investment company registered under the
1940 Act.
11.5 A registration statement on Form N-1A (including a prospectus and
statement of additional information) under the Securities Act of 1933 and the
1940 Act will be effective as of the date the Bank begins to provide services
hereunder and will remain effective, and any appropriate state securities law
filings have been made and will continue to be made, with respect to all Shares
of the Trust being offered for sale.
11.6 When Shares are hereafter issued in accordance with the terms of the
Prospectus, such Shares shall be validly issued, fully paid and nonassessable by
the Trust.
12. Indemnification.
12.1 Notwithstanding anything in this Agreement to the contrary, in no
event shall the Bank or any of its officers, directors, employees or agents
(collectively, the "Indemnified Parties") be liable to the Trust or any third
party, and the Trust shall indemnify and hold the Bank and the Indemnified
Parties harmless from and against any and all loss, damage, liability, actions,
suits, claims, costs and expenses, including reasonable legal fees, (a "Claim")
arising as a result of any act or omission of the Bank under this Agreement,
except for any Claim for direct money damages to the extent such Claim results
from the negligence, willful misfeasance or bad faith of, the Bank, or breach of
any representation or warranty of the Bank contained in this Agreement. For
purposes of this Section 12.1, the Bank's reliance without inquiry on the legal
sufficiency of the Trust's Anti-Money Laundering Program and related monitoring,
as described in Section 1.2(a)(xvii), as the same shall be revised by the Trust
from time to time when required by applicable law, shall not be nor be deemed
negligence, willful misconduct nor bad faith. The Bank shall promptly give
notice of any claim, but a delay in giving notice shall not affect the Bank's
right to indemnification. The Bank agrees to keep the Trust informed of the
status of, and material developments in, any lawsuit, litigation or other
proceeding relating to such claim, and its counsel shall discuss its response,
defense and legal action with respect to any claim with the Trust's counsel but
the Bank's counsel shall control any response, defense, or legal action,
including any settlement, without the consent or approval of the Trust's counsel
and even if the Trust's counsel disagrees. In the event the Bank enters any
settlement for an amount which is unreasonable, the Trust shall not be liable
for, and its indemnity to the Bank shall not include, the difference between the
dollar amount of the Bank's settlement and the highest dollar amount of a
settlement which would have been reasonable. This indemnity shall be a
continuing obligation of the Fund, its successors and assigns, notwithstanding
the termination of this Agreement.
12.2 Notwithstanding anything to the contrary in this Agreement other than
Section 12.1 and the Trust's obligation to indemnify the Bank, in no event shall
a party to this Agreement be liable to the other party or any third party for
lost profits or lost revenues or any special, consequential, punitive or
incidental damages of any kind whatsoever in connection with this Agreement or
any activities hereunder.
12.3 The Trust shall not be responsible for, and the Bank shall indemnify
and hold the Trust harmless from and against, any and all Losses (including
reasonable counsel fees)
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arising out of or attributable to:
(a) The Bank's negligence or willful misconduct; and
(b) The breach of any representation or warranty of the Bank
hereunder.
(c) The Trust shall promptly give notice of any claim, but a delay
in giving notice shall not affect the Trust's right to indemnification. The
Trust agrees to keep the Bank informed of the status of, and material
developments in, any lawsuit, litigation or other proceeding relating to such
claim, and its counsel shall discuss its response, defense and legal action with
respect to any claim with the Bank's counsel, but the Trust's counsel shall
control any response, defense, or legal action, including any settlement,
without the consent or approval of the Bank's counsel and even if the Bank's
counsel disagrees. In the event the Trust enters any settlement for an amount
which is reasonable, the Bank shall not be liable for, and its indemnity to the
Trust shall not include, the difference between the dollar amount of the Trust's
settlement and the highest dollar amount of a settlement which would have been
reasonable. This indemnity shall be a continuing obligation of the Bank, its
successors and assigns, notwithstanding the termination of this Agreement.
12.4 The Bank may consult with counsel to the Trust or its own counsel, at
its expense, with respect to any matter arising in connection with the services
to be performed by the Bank under this Agreement, and shall promptly advise the
Trust of the advice or opinion of such counsel, provided, however, that unless
the circumstances do not reasonably permit the giving of notice to the Trust,
the Bank shall give to the Trust notice of the counsel it intends to use and
await the Trust's approval thereof, which approval shall not be unreasonably
withheld, except that no such notice or approval shall be required with respect
to any matter or question of law initially referred to the Bank's in-house
counsel.
12.5 The Bank may rely upon any Proper Instruction which it reasonably
believes to be genuine and to be signed or presented by any Authorized Person.
The Bank shall not be held to have notice of any change of authority of any
Authorized Person until receipt of appropriate written notice thereof has been
received by the Bank from the Trust.
13. Standard of Care. The Bank shall at all times act in good faith and agrees
to use its best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are caused by
its own negligence, bad faith or willful misconduct or that of its employees,
agents or permitted assignees or delegatees, or the Bank's breach of any of its
representations or covenants.
14. Covenants of the Trust and the Bank.
14.1 The Trust shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Trust authorizing the appointment of the Bank hereunder and the execution
and delivery of this Agreement.
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(b) A copy of the Declaration of Trust and By-Laws of the Trust and
all amendments thereto.
(c) Copies of each vote of the Board of Trustees of the Trust
designating Authorized Persons to give instructions to the Bank, and a
Certificate providing specimen signatures for such authorized persons.
(d) Certificates as to any change in any officer or Trustee of the
Trust.
(e) All account application forms and other documents relating to
shareholder accounts or relating to any plan, program or service offered by the
Trust.
(f) Copies of the Trust's registration statement on Form N-1A as
amended and declared effective by the Securities and Exchange Commission and all
post-effective amendments thereto. The Bank acknowledges that the Trust's
registration statement on Form N-1A and all post effective amendments thereto
are available free of charge at ▇▇▇.▇▇▇.▇▇▇.
(g) Such other certificates, documents or opinions as the Bank may
reasonably deem necessary or appropriate for the Bank in the proper performance
of its duties hereunder.
14.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
14.3 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. The Bank agrees that
all such records prepared or maintained by the Bank relating to the services to
be performed by the Bank hereunder are the property of the Trust and will be
preserved, maintained and made available upon reasonable request, and will be
surrendered promptly to the Trust in accordance with its request.
14.4 The Bank and the Trust agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law. Each party shall take reasonable efforts to
advise its employees of their obligations pursuant to this Section 14.4. The
obligations of this Section 14.4 shall survive any earlier termination of this
Agreement.
14.5 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, the Bank will endeavor to notify the Trust and
to secure instructions from an authorized officer of the Trust as to such
request or demand. The Bank reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be subject to enforcement or other action by any court or regulatory body
for the failure to exhibit the Shareholder records to such person.
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14.6 Bank shall file such appropriate information returns concerning the
payment and composition of dividends and capital gain distributions and tax
withholding with the proper Federal, State and local authorities as are required
by law to be filed by the Trust and shall withhold such sums as are required to
be withheld by applicable law.
14.7 Bank shall establish and maintain a disaster recovery plan and
back-up system at all times satisfying the requirements of all applicable law,
rules, and regulations and which is reasonable under the circumstances.
15. Term of Agreement.
15.1 Either party hereto may terminate this Agreement by giving one
hundred eighty (180) days written notice to the other party, provided that any
such termination prior to the first anniversary of the date first above written
may only be for cause
15.2 The terms of Article 9 and Article 12 shall survive the termination
of this Agreement.
16. Additional Index Series. In the event that the Trust establishes one or more
series of Shares in addition to the series listed on Appendix A hereto with
respect to which it desires to have the Bank render services as transfer agent
under the terms hereof, it shall so notify the Bank in writing, and if the Bank
agrees in writing to provide such services, such series of Shares shall become
an Index Series hereunder and Appendix A shall be appropriately amended.
17. Assignment.
17.1 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other party, and any
purported assignment in violation of this provision shall be void.
17.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
17.3 Upon receipt of the Trust's prior written consent, the Bank may
subcontract for the performance of any of the services to be provided hereunder
to third parties, including any affiliate of the Bank; provided, however, that
no such delegation of its duties and obligations hereunder shall discharge the
Bank from its duties and obligations hereunder.
18. Amendment.
18.1. This Agreement may be amended or modified only by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Trustees of the Trust.
18.2. Notwithstanding any other provisions contained in this Agreement,
the Trust may without the Bank's consent amend Appendix A to add or delete Index
Series, provided that after such amendment there are not more than forty-four
(44) Index Series listed thereon,
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and provided further that the Trust provide at least thirty (30) days notice to
the Bank of each such amendment.
19. Governing Law. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New York,
without regard to its conflict of laws provisions. The Trust and the Bank each
hereby waive any right to a trial by jury.
20. Merger of Agreement and Severability.
20.1 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written.
20.2 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
20.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall together,
constitute only one instrument.
21. Notices. Any notice or other instrument in ▇▇▇▇▇▇▇ authorized or required by
this Agreement to be given to either party hereto will be sufficiently given if
addressed to such party and mailed or delivered to it at its office at the
address set forth below:
For the Trust:
WisdomTree Trust
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy (which shall not constitute notice) to
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
For the Bank:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
22. Trust Liability. The Bank acknowledges and agrees 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
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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.
23. Several Obligations of the Index Series. This Agreement is an agreement
entered into between the Bank and the Trust with respect to each Index Series.
With respect to any obligation of the Trust on behalf of any Index Series
arising out of this Agreement, the Bank shall look for payment or satisfaction
of such obligation solely to the assets of the Index Series to which such
obligation relates as though the Bank had separately contracted with the Trust
by separate written instrument with respect to each Index Series.
24. Use of Name. A party shall not use the name of the other party or any of its
affiliates in any prospectus, sales literature or other material relating to the
Trust in a manner not approved by the other party prior thereto in writing;
provided however, that such approval shall not be required for any use of its
name which merely refers in accurate and factual terms to the Bank's appointment
hereunder or which is required by the Securities and Exchange Commission or any
state securities authority or any other appropriate regulatory, governmental or
judicial authority; provided further, that in no event shall such approval be
unreasonably withheld or delayed.
25. Counterparts. This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
26. Force Majeure. Notwithstanding anything to the contrary in this Agreement,
in no event shall a party to this Agreement be liable to the other party or any
third party for losses resulting from (i) any acts of God, fires, floods, or
other disturbances of nature, epidemics, strikes, riots, terrorism,
nationalization, expropriation, currency restrictions, or insurrection, (ii)
other happenings or events beyond the reasonable control and anticipation of the
party affected, or (iii) loss, interruption, or malfunction of communication or
computer (hardware or software) services beyond the reasonable control of the
party or if not beyond the reasonable control of the party affected, (A) the
party affected has in place appropriate business resumption procedures, systems
and facilities or its failure to have the same was not a contributing factor,
and (B) the party affected uses its best efforts to avoid or remove the cause of
such losses. For purposes of the foregoing, the Bank shall be presumed to have
satisfied the requirement in (A) if the Bank has such back-up systems as are
required by its regulators.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf under their seals by and through their duly
authorized officers, as of the day and the year first above written.
WISDOMTREE TRUST
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
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APPENDIX A
Name of Series:
WisdomTree Total Dividend Fund
WisdomTree High-Yielding Equity Fund
WisdomTree Dividend Top 100 Fund
WisdomTree LargeCap Dividend Fund
WisdomTree MidCap Dividend Fund
WisdomTree SmallCap Dividend Fund
WisdomTree DIEFA Index Fund
WisdomTree DIEFA High-Yielding Equity Fund
WisdomTree Europe Total Dividend Fund
WisdomTree Europe SmallCap Dividend Fund
WisdomTree Europe High-Yielding Equity Index Fund
WisdomTree Japan Total Dividend Fund
WisdomTree Japan SmallCap Dividend Fund
WisdomTree Japan High-Yielding Equity Fund
WisdomTree Pacific ex-Japan Total Dividend Fund
WisdomTree Pacific ex-Japan High-Yielding Equity Fund
WisdomTree International Dividend Top 100(sm) Fund
WisdomTree International LargeCap Index Fund
WisdomTree International MidCap Index Fund
WisdomTree International SmallCap Index Fund
WisdomTree International Basic Materials Sector Fund
WisdomTree International Communications Sector Fund
WisdomTree International Consumer Cyclical Sector Fund
WisdomTree International Consumer Non-Cyclical Sector Fund
WisdomTree International Energy Sector Fund
WisdomTree International Financial Sector Fund
WisdomTree International Health Care Sector Fund
WisdomTree International Industrial Sector Fund
WisdomTree International Technology Sector Fund
WisdomTree International Utilities Sector Fund
Dated: June 12, 2006
SCHEDULE A
BOOKS AND RECORDS TO BE MAINTAINED BY BANK
Source Documents requesting Creations and Redemptions
Correspondence/AP Inquiries
Reconciliations, bank statements, copies of cancelled checks, cash proofs
Daily/Monthly reconciliation of outstanding units between the Trust and DTC
Net Asset Computation Documentation
Dividend Records
Year-End Statements and Tax Forms
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