DISTRIBUTION AGREEMENT
This Distribution Agreement (the "Agreement") made this __ day of
________, 2006, by and between WisdomTree Trust, a Delaware statutory trust (the
"Trust") having its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and ALPS Distributors, Inc., a Colorado corporation (the
"Distributor") having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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"), each investing
primarily in equity securities selected to reflect the performance of a
particular market index, having filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form N-1A 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 $.001 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 a national
securities exchange (the "Listing Exchange");
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 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 the services described
herein 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
Exhibit A hereto, as may be amended by the Trust from time to time on written
notice to the Distributor, 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.
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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 Distributor agrees to act as agent of the Trust in connection
with the receipt and processing of 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: (i) 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; (ii) the Distributor shall generate, transmit and maintain
copies of confirmations of Creation Unit purchase order acceptances to the
purchaser (such confirmations will indicate the time such orders were accepted
and will be made available to the Trust promptly upon request); (iii) 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 (iv) the Distributor shall maintain telephonic,
facsimile and/or access to direct computer communications links with the
Transfer Agent.
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(c) (i) The Distributor agrees to use all reasonable efforts,
consistent with its other business, to secure purchasers of Creation Units
through Authorized Participants in accordance with the procedures set forth in
the Prospectus and the Participant Agreement and to perform the services
contemplated herein on a continuous basis..
(ii) The Distributor shall, at its own expense, execute
selected or soliciting dealer participant agreements ("Participant 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, in the forms as approved by the Board of Trustees of the Trust. In
entering into Participant Agreements, the Distributor will act only on its own
behalf as principal. The Trust shall furnish, or cause to be furnished, all
advertising, sales, marketing and promotional materials of the Funds to the
Distributor. Distributor shall clear and file all advertising, sales, marketing
and promotional materials of the Funds with the NASD.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
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(h) 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.
(j) The Distributor shall ensure that all direct requests for
Prospectuses, Statements of Additional Information, Product Descriptions and
periodic fund reports, as applicable, are fulfilled. In addition, the
Distributor shall arrange to provide Listing Exchange (and any other national
stock exchange on which the Shares may be listed) with copies of Prospectuses
and Statements of Additional Information and Product Descriptions 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 and Product Descriptions 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.
(k) The Distributor agrees to make available, at the Trust's request,
one or more members 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.
(l) The Distributor shall review all sales and marketing materials for
compliance with applicable laws and conditions of any applicable exemptive
order, and file such materials with the NASD when necessary or appropriate. All
such sales and marketing materials must be approved, in writing, by the
Distributor prior to use.
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 and Statement of Additional Information.
(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 and Statement of Additional Information and Product Description as
the Distributor may reasonably request. The Trust will furnish to the
Distributor copies of semi-annual reports and annual audited reports of the
Trust's books and accounts made by independent public accountants regularly
retained by the Trust and such other publicly available information which the
Distributor may reasonably request for use in connection with the distribution
of Creation Units. The Trust shall keep the Distributor
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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.
(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; provided, however,
that nothing contained in this Agreement shall in any way limit the Trust's
right to file at any time such amendments to any Registration Statement and/or
supplements to any Prospectus, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional.
5. Fees and Expenses.
The Distributor will bear the following costs and expenses relating
to the distribution of Creation Units of the Funds:
6. Indemnification.
(a) The Trust agrees to indemnify and hold harmless the Distributor and
each of the directors, officers and employees and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act (any of the
Distributor, its officers, employees and directors or such control persons, for
purposes of this paragraph, a "Distributor 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 (i) the claim that the Registration Statement, Prospectus,
Statement of Additional Information, Product Description, 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, Statement of Additional
Information and Product Description, in light of the circumstances under which
they were made) not misleading under the 1933 Act, or any other statute or the
common law, (ii) the breach of any obligation, representation or warranty
pursuant to this Agreement by the Trust, or (iii) the Trust's failure to comply
in any material respect with applicable securities laws. 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 Distributor Indemnitee with respect to any untrue
statement or omission made in the Registration Statement, Prospectus, Statement
of Additional Information or Product Description 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
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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 to the sending of the confirmation. In no case (i)
is the indemnity of the Trust in favor of any Distributor Indemnitee to be
deemed to protect the Distributor Indemnitee against any liability to the Trust
or its shareholders to which the Distributor 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 Distributor Indemnitee unless the Distributor 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 Distributor Indemnitee (or after
Distributor 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 Distributor 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 Distributor Indemnitee, defendant or defendants in the suit. In the event the
Trust elects to assume the defense of any suit and retain counsel, Distributor
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 Distributor 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 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) arising out of or based upon (i)
the allegation of any wrongful act of the Distributor or any of its directors,
officers or employees, (ii) the breach of any obligation, representation or
warranty pursuant to this Agreement by the Distributor, (iii) the Distributor's
failure to comply in any material respect with applicable securities laws,
including applicable NASD regulations, or (iv) allegation that the Registration
Statement, Prospectus, Statement of Additional Information, Product Description,
shareholder reports, any information or materials relating to the Funds (as
described in section 3(c)(ii)) 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 not misleading, insofar as 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. 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
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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 other 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 such 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 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 Trustees 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
or any of its officers or directors in connection with the issuance or sale of
any of the Creation Units or 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 Colorado 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 Distributor represents and warrants that: (i) 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 (the "USA Patriot
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Act"); (ii) 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;
and (iii) it will allow for appropriate regulators to examine its anti-money
laundering books and records.
(c) The Distributor represents and warrants that: (i) 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; (ii) it will comply with all of the applicable terms
and provisions of the 1934 Act; and (iii) it will provide certifications to the
Trust in order to assist the Trust in complying with certain rules under the
1940 Act (by way of example only, Rules 30a-2, 30a-3 and 38a-1) and in
connection with the filing of certain Forms (by way of example only, Form
N-CSR).
(d) The Trust represents and warrants that (i) it is duly organized as
a Delaware 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 [ ], 2006, 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 (i) by vote of a majority of the Trustees or by the vote of a
majority of the outstanding voting securities of the Fund and (ii) by the vote
of a majority of those Trustees who are not parties to this Agreement or
interested persons of any such party cast in person at a meeting called for the
purpose of voting on such 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 those Trustees who are not parties to this Agreement or interested
persons of any such party or (ii) by vote of a majority of the outstanding
voting securities of the Fund, on at least sixty (60) days prior written notice
to the Distributor. This Agreement shall automatically terminate without the
payment of any penalty in the event of its assignment.
As used in this paragraph, terms "vote of a majority of the outstanding voting
securities", "assignment", "affiliated person" and "interested person" shall
have the respective meanings specified in the 1940 Act.
(b) 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):
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If to the Distributor:
ALPS Distributors, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: General Counsel
fax: ▇▇▇.▇▇▇.▇▇▇▇
If to the Trust:
WisdomTree Trust
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: President
fax:
with a copy to;
WisdomTree Investments, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Fax: ▇▇▇-▇▇▇-▇▇▇▇
10. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the state of Delaware, without giving effect to the
choice of laws provisions thereof.
11. 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.
12. 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.
13. Insurance. The Distributor will maintain at its expense an errors and
omissions insurance policy which covers services by the Distributor hereunder.
14. Confidentiality. During the term of this Agreement, the Distributor and the
Trust may have access to confidential information relating to such matters as
either party's business, trade secrets, systems, procedures, manuals, products,
contracts, personnel, and clients. As used in this Agreement, "Confidential
Information" means information belonging to one of the parties which is of value
to such party and the disclosure of which could result in a competitive or other
disadvantage to such party. Confidential Information includes, without
limitation, financial
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information, proposal and presentations, reports, forecasts, inventions,
improvements and other intellectual property; trade secrets; know-how; designs,
processes or formulae; software; market or sales information or plans; customer
lists; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities). Confidential
Information includes information developed by either party in the course of
engaging in the activities provided for in this Agreement, unless: (i) the
information is or becomes publicly known through lawful means; (ii) the
information is disclosed to the other party without a confidential restriction
by a third party who rightfully possesses the information and did not obtain it,
either directly or indirectly, from one of the parties, as the case may be, or
any of their respective principals, employees, affiliated persons, or affiliated
entities. The parties understand and agree that all Confidential Information
shall be kept confidential by the other both during and after the term of this
Agreement. Each party shall maintain commercially reasonable information
security policies and procedures for protecting Confidential Information. The
parties further agree that they will not, without the prior written approval by
the other party, disclose such Confidential Information, or use such
Confidential Information in any way, either during the term of this Agreement or
at any time thereafter, except as required in the course of this Agreement and
as proved by the other party or as required by law. Upon termination of this
Agreement for any reason, or as otherwise requested by the Trust, all
Confidential Information held by or on behalf of ALPS shall be promptly returned
to the Trust, or an authorized officer of ALPS will certify to the Trust in
writing that all such Confidential Information has been destroyed. This section
14 shall survive the termination of this Agreement.
15. Limitation of Liability. The Trust Instrument dated December 15, 2005,
establishing the Trust, which is hereby referred to and a copy of which is on
file with the Secretary of State of the State of Delaware, provides that the
Trustees shall be entitled to the protection against personal liability for the
obligations of the Trust under Section 3803(b) of the Delaware Business Trust
Act, as amended (the "DBTA"). 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 Trust
Instrument and under Section 3803 of the DBTA. 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 Trust Instrument and under Section 3803 of the DBTA. The Distributor
understands that the rights and obligations of each series of shares of the
Trust under the Trust Instrument are separate and distinct from those of any and
all other series. This section 15 shall survive the termination of this
Agreement.
[SIGNATURE PAGE TO FOLLOW]
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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.
WISDOMTREE TRUST
By:____________________
Name:
Title:
ALPS DISTRIBUTORS, INC.
By:________________________
Name:
Title:
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EXHIBIT A
WisdomTree(SM) Total Dividend Fund
WisdomTree(SM) High-Yielding Equity(SM) Fund
WisdomTree(SM) Dividend Top 100(SM) Fund
WisdomTree(SM) LargeCap Dividend Fund
WisdomTree(SM) MidCap Dividend Fund
WisdomTree(SM) SmallCap Dividend Fund
WisdomTree DIEFA(SM) Fund
WisdomTree DIEFA(SM) High-Yielding Equity(SM) Fund
WisdomTree(SM) Europe Total Dividend Fund
WisdomTree(SM) Europe High-Yielding Equity(SM) Fund
WisdomTree(SM) Europe SmallCap Dividend Fund
WisdomTree(SM) Japan Total Dividend Fund
WisdomTree(SM) Japan High-Yielding Equity(SM) Fund
WisdomTree(SM) Japan SmallCap Dividend Fund
WisdomTree DIPR(SM) Fund
WisdomTree DIPR High-Yielding Equity(SM) Fund
WisdomTree(SM) International Dividend Top 100(SM) Fund
WisdomTree(SM) International LargeCap Fund
WisdomTree(SM) International MidCap Fund
WisdomTree(SM) International SmallCap Fund
12