ETF DISTRIBUTION AGREEMENT
This ETF Distribution Agreement (the Agreement) is effective this 1st day of July 2025, and made by and between Crossmark ETF Trust, a Delaware statutory trust (the Client) having its principal place of business at 15375 Memorial Drive, Houston, Texas 77079, and PINE Distributors LLC, a Delaware limited liability company (the Distributor).
RECITALS
WHEREAS, the Client is a registered open-end management investment company organized under the Investment Company Act of 1940, as amended (the 1940 Act), with separate and distinct series (each a Fund and collectively the Funds) registered with the U.S. Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended (the 1933 Act);
WHEREAS, the Client desires to retain the Distributor to (i) act as the principal underwriter of the Funds with respect to the creation and redemption of Creation Units of each Fund listed on Exhibit A hereto (as amended from time to time), and (ii) hold itself available to review and approve orders for such Creation Units in the manner set forth in the Clients Prospectus;
WHEREAS, the Client intends to create and redeem shares of beneficial interest (the Shares) of each Fund on a continuous basis and list the Shares on one or more national securities exchanges (together, the Listing Exchanges);
WHEREAS, the Distributor is registered with the SEC as a broker-dealer under the Securities Exchange Act of 1934, as amended (the 1934 Act), and is a member of the Financial Industry Regulatory Authority, Inc. (FINRA);
WHEREAS, this Agreement has been approved by a vote of the Clients board of directors (the Board) and its disinterested directors in conformity with Section 15(c) under the 1940 Act; and
WHEREAS, the Distributor is willing to provide the services described herein to the Client, subject to the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Appointment of Distributor.
The Client hereby appoints the Distributor to serve as the principal underwriter of the Funds with respect to the creation and redemption of Creation Units of each Fund listed in Exhibit A hereto (as may be amended by the Client 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 Federal Securities Laws 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) Prospectus means the Prospectus and Statement of Additional Information constituting parts of the Registration Statement of the Client 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 SEC from time to time.
(b) Registration Statement means the registration statement most recently filed from time to time by the Client with the SEC and effective under the 1933 Act and the 1940 Act, as such registration statement is amended by any amendments thereto at the time in effect.
(c) All other 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. Services and Duties of the Distributor
(a) The Distributor agrees to serve as the principal underwriter of the Funds in connection with the review and approval of all Purchase and Redemption Orders of Creation Units of each Fund by Authorized Participants that have executed an Authorized Participant Agreement with the Distributor and Transfer Agent/Index Receipt Agent. Nothing herein shall affect or limit the right and ability of the Transfer Agent/Index Receipt Agent to accept Fund Securities, 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 Client acknowledges that the Distributor shall not be obligated to approve any certain number of orders for Creation Units.
(b) The Distributor agrees to use commercially reasonable efforts to provide the following services to the Client with respect to the continuous distribution of Creation Units of each Fund: (i) at the request of the Client, the Distributor shall enter into Authorized Participant Agreements between and among Authorized Participants, the Distributor and the Transfer Agent/Index Receipt Agent, for the purchase and redemption of Creation Units of the Funds; (ii) the Distributor shall approve and maintain copies of confirmations of Creation Unit purchase and redemption order acceptances; (iii) upon request, the Distributor will make available copies of the Prospectus 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.
(c) The Distributor shall ensure that all direct requests to the Distributor for Prospectuses, Statements of Additional Information, product descriptions and periodic fund reports, as applicable, are fulfilled.
(d) The Distributor agrees to make available, at the Clients request, one or more members of its staff to attend, either via telephone or in person, Board meetings of the Client in order to provide information with regard to the Distributors services hereunder and for such other purposes as may be requested by the Board of Trustees of the Client.
2
(e) The Distributor agrees to review all proposed marketing materials (Marketing Materials) provided by the Client for compliance with applicable SEC and FINRA advertising rules and regulations and shall file with FINRA those Marketing Materials it believes are in compliance with such applicable laws and regulations. The Distributor agrees to furnish to the Client any comments provided by regulators with respect to such Marketing Materials.
(f) The Distributor shall not offer any Shares and shall not approve any creation or redemption order hereunder if and so long as the effectiveness of the Registration Statement then in effect or any necessary amendments thereto shall be suspended under any of the provisions of the 1933 Act or if and so long as a current prospectus as required by Section 10 of the 1933 Act is not on file with the SEC; provided, however, that nothing contained in this paragraph shall in any way restrict or have any application to or bearing upon the Clients obligation to redeem or repurchase any Shares from any shareholder in accordance with provisions of the Prospectus or Registration Statement.
(g) The Distributor shall work with the [Index Receipt Agent/Transfer Agent] to review and approve orders placed by Authorized Participants and transmitted to the [Index Receipt Agent/Transfer Agent].
(h) The Distributor agrees to maintain and preserve, for the periods prescribed by Rule 31a-2 under the 1940 Act, such records as are required to be maintained by Rule 31a-1(d) under the 1940 Act. The Distributor agrees that all records which it maintains pursuant to the 1940 Act for the Client shall at all times remain the property of the Client, shall be readily accessible during normal business hours, and shall be promptly surrendered upon the termination of the Agreement or otherwise on written request; provided, however, that the Distributor may retain all such records required to be maintained by the Distributor pursuant to applicable FINRA or SEC rules and regulations.
(i) The Distributor agrees to maintain compliance policies and procedures (a Compliance Program) that are reasonably designed to prevent violations of the Federal Securities Laws (as defined in Rule 38a-1 under the 1940 Act) with respect to the Distributors services under this Agreement, and to provide any and all information with respect to the Compliance Program, including, without limitation, information and certifications with respect to material violations of the Compliance Program and any material deficiencies or changes therein, as may be reasonably requested by the Clients Chief Compliance Officer or Board of Trustees.
(j) The Distributor may enter into agreements (Subcontracts) with qualified third parties (Subcontractors) to carry out some or all of the Distributors obligations under this Agreement, with the prior written consent of the Client, such consent not to be unreasonably withheld; provided that execution of a Subcontract shall not relieve the Distributor of any of its responsibilities hereunder and the Distributor will be responsible for the actions or omissions of the Subcontractors in the performance of the Distributors duties hereunder to the same extent it would be if it were performing the actions or duties itself.
3
(k) The services furnished by the Distributor hereunder are not to be deemed exclusive and the Distributor shall be free to furnish similar services to others so long as its services under this Agreement are not impaired thereby.
(l). The Distributor undertakes to perform such duties and only such duties as are expressly set forth herein (subject to applicable federal and state law), or expressly incorporated herein by reference, and no implied covenants or obligations shall be read into this Agreement against the Distributor.
4. Duties of the Client.
(a) The Client agrees to create, issue, and redeem Creation Units of each Fund in accordance with the procedures described in the Prospectus. Upon reasonable notice to the Distributor and in accordance with the procedures described in the Prospectus, the Client reserves the right to reject any order for Creation Units or to stop all receipts of such orders at any time.
(b) The Client agrees that it will take all actions necessary to register an indefinite number of Shares under the 1933 Act.
(c) The Client will make available to the Distributor such number of copies as the Distributor may reasonably request of (i) its then currently effective Prospectus and Statement of Additional Information and product description, (ii) semi-annual reports and annual audited reports of the Clients financial statements made by independent public accountants regularly retained by the Client, and (iii) such other publicly available information for use in connection with the distribution of Creation Units.
(d) The Client shall inform the Distributor of any such jurisdictions in which the Client has filed notice filings for Shares for sale under the securities laws thereof 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 Client that such sale or sales were unauthorized at the time of such sale or sales.
(e) The Distributor acknowledges and agrees that the Client reserves the right to suspend sales and the Distributors authority to review and approve orders for Creation Units on behalf of the Client. Upon due notice to the Distributor, the Client shall suspend the Distributors authority to review and approve Creation Units if, in the judgment of the Client, it is in the best interests of the Client to do so. Suspension will continue for such period as may be determined by the Client.
(f) The Client shall arrange to provide the Listing Exchanges with copies of Prospectuses, Statements of Additional Information, and product descriptions to be provided to purchasers in the secondary market.
(g) The Client will make it known that Prospectuses and Statements of Additional Information and product descriptions are available by making sure such disclosures are in all marketing and advertising materials prepared by or at the direction of the Client.
4
(h) The Client shall not file any amendment to the Registration Statement or Prospectus that materially amends any provision therein which pertains to the Distributor, the distribution of the Shares or public offering price without giving the Distributor reasonable advance notice thereof; provided, however, that nothing contained in this Agreement shall in any way limit the Clients right to file at any time such amendments to the Registration Statement or Prospectus, of whatever character, as the Client may deem advisable, such right being in all respects absolute and unconditional.
(i) The Client shall not list the Distributor as the principal underwriter or distributor in any post-effective amendment to the Registration Statement, which is filed for the purpose of creating a new Fund, without receiving prior permission from the Distributor. At or before such time as a new Fund becomes effective, the Client and the Distributor agree to amend this Agreement for purposes of updating Exhibit A.
(j) The Client agrees to advise the Distributor promptly in writing: (i) of any non-routine material action, correspondence, or other communication by the SEC or its staff relating to the issue, sale and/or marketing of shares of the Funds, including requests by the SEC for amendments to the Registration Statement or Prospectus (for purposes of clarification, this provision does not require notice of a routine inspection, or a risk targeted or sweep inspection that does not relate to distribution matters); (ii) in the event of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement then in effect or the initiation of any proceeding for that purpose; (iii) of the happening of any serious event which makes untrue any statement of a material fact made in the Prospectus or which requires the making of a change in such Prospectus in order to make the statements therein not misleading (for purposes of clarification, this provision does not apply to events giving rise to disclosure changes that are part of the routine Rule 485(a) or 485(b) filings); (iv) in the event that it determines to suspend the sale of Shares at any time in response to conditions in the securities markets or otherwise or to suspend the redemption of Shares of any Fund at any time as permitted by the 1940 Act or the rules of the SEC; and (v) of the commencement of any material litigation or proceedings against the Client or any of its officers or trustees in connection with the issue and sale of any of the Shares.
5. Fees and Expenses.
(a) The Distributor shall be entitled to no compensation or reimbursement of expenses from the Client for the services provided by the Distributor pursuant to this Agreement. The Distributor may receive compensation from Crossmark Global Investments, Inc. (the Investment Adviser) related to its services hereunder or for additional services as may be agreed to between the Investment Adviser and Distributor.
(b) The Client shall bear the cost and expenses of (i) the registration of the Shares for sale under the 1933 Act and (ii) the registration or qualification of the Shares for sale under the securities laws of the various States.
(c) The Distributor shall pay (i) all expenses relating to Distributors broker-dealer qualification and registration under the 1934 Act and (ii) the expenses incurred by the Distributor in connection with routine FINRA filing fees.
(d) Notwithstanding anything in this Agreement to the contrary, the Distributor and its affiliates may receive compensation or reimbursement from the Investment Adviser with respect to any services performed under this Agreement, as may be agreed upon by the parties from time to time.
5
(e) The Client shall bear any costs associated with printing Prospectuses, Statements of Additional Information and all other such materials.
6. Standard of Care; Indemnification.
(a) The Distributor shall exercise reasonable care and good faith in rendering the services provided by it under this Agreement.
(c) Each Fund, severally, and not jointly, shall indemnify and hold harmless the Distributor, its affiliates and each of their respective directors, officers, employees and agents and any person who controls the Distributor within the meaning of Section 15 of the 1933 Act (any of the Distributor, its officers, employees, agents 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) (Losses) that a Distributor Indemnitee may incur arising out of or based upon (i) Distributor serving as distributor for the Client pursuant to this Agreement; (ii) the allegation of any wrongful act of the Client or any of its directors, officers, employees or affiliates in connection with its duties, representations, and responsibilities in this Agreement; (iii) any claim that the Registration Statement, Prospectus, Statement of Additional Information, product description, shareholder reports, Marketing Materials and advertisements specifically approved by the Client and Investment Adviser or other information filed or made public by the Client (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; (iv) the breach by the Client of any obligation, representation or warranty contained in this Agreement; or (v) the Clients failure to comply in any material respect with applicable securities laws.
(d) The Distributor agrees to indemnify and hold harmless the Client and each of its Trustees and officers and any person who controls the Client within the meaning of Section 15 of the 1933 Act (for purposes of this paragraph, the Client and each of its Trustees and officers and its controlling persons are collectively referred to as the Client Indemnitees) against any Losses arising out of or based upon (i) the allegation of any wrongful act of the Distributor or any of its directors, officers, employees, affiliates or subcontractors in connection with its activities as Distributor pursuant to this Agreement; (ii) the breach of any obligation, representation or warranty contained in this Agreement by the Distributor; (iii) the Distributors failure to comply in any material respect with applicable securities laws, including applicable FINRA regulations; or (iv) any allegation that the Registration Statement, Prospectus, Statement of Additional Information, product description, shareholder reports, Marketing Materials or other information filed or made public by the Client (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 such statement or omission was made in reasonable reliance upon, and in conformity with information furnished to the Client, in writing, by the Distributor.
6
(e) In no case (i) is the indemnification provided by an indemnifying party to be deemed to protect against any liability the indemnified party would otherwise be subject to by reason of the indemnified partys 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 indemnifying party to be liable under this Section with respect to any claim made against any indemnified party unless the indemnified party notifies the indemnifying party 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 indemnified party (or after the indemnified party shall have received notice of service on any designated agent).
(f) Failure to notify the indemnifying party of any claim shall not relieve the indemnifying party from any liability that it may have to the indemnified party against whom such action is brought, under this Section 6, unless failure or delay to so notify the indemnifying party prejudices the indemnifying partys ability to defend against such claim. The indemnifying party 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 indemnifying party elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party. In the event that indemnifying party elects to assume the defense of any suit and retain counsel, the indemnified party shall bear the fees and expenses of any additional counsel retained by it. If the indemnifying party does not elect to assume the defense of any suit, it will reimburse the indemnified party for the reasonable fees and expenses of any counsel retained by it.
(g) 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 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.
(h) The Client acknowledges and agrees that as part of its duties, the Distributor will enter into agreements with certain authorized participants (each an AP) for the purchase and redemption of Creation Units (each such agreement an AP Agreement). The APs may insert and require that the Distributor agree to certain provisions in the AP Agreements that contain certain representations, undertakings and indemnifications that are not included in the form of AP Agreement (each such modified AP Agreement a Non-Standard AP Agreement).
(i) Client shall indemnify, defend and hold the Distributor Indemnitees free and harmless from and against any and all Losses that any Distributor Indemnitee may incur arising out of or relating to (i) the Distributors actions or failures to act pursuant to any Non-Standard AP Agreement; (ii) any representations made by the Distributor in any Non-Standard AP Agreement to the extent that the Distributor is not required to make such representations in the form of AP Agreement; or (iii) any indemnification provided by the Distributor under a Non-Standard AP Agreement. In no event shall anything contained herein be so construed as to protect the Distributor Indemnitees against any liability under a Non-Standard AP Agreement to which the Distributor Indemnitees would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of the Distributors obligations or duties under the Non-Standard AP Agreement or by reason of the Distributors reckless disregard of its obligations or duties under the Non-Standard AP Agreement.
7
7. Representations and Warranties.
(a) The Distributor represents and warrants that (i) it is duly organized as a Delaware limited liability company and is and at all times will remain duly authorized and licensed under applicable law to carry out its services as contemplated herein; (ii) the execution, delivery and performance of this Agreement are within its power and have been duly authorized by all necessary action; (iii) its entering into this Agreement or providing the services contemplated hereby does not conflict with or constitute a default or require a consent under or breach of any provision of any agreement or document to which the Distributor is a party or by which it is bound; (iv) it is registered as a broker-dealer under the 1934 Act and is a member of FINRA; and (v) it has in place compliance policies and procedures reasonably designed to prevent violations of the Federal Securities Laws as that term is defined in Rule 38a-1 under the 1940 Act. All activities by the Distributor and its agents and employees in connection with the services provided in this Agreement shall comply with the Registration Statement and Prospectus, the instructions of the Client, and all applicable laws, rules and regulations including, without limitation, all rules and regulations made or adopted pursuant to the 1940 Act by the SEC or any securities association registered under the 1934 Act, including FINRA and the Listing Exchanges.
(b) The Distributor and the Client each individually represent that its anti-money laundering program (AML Program), at a minimum, (i) designates a compliance officer to administer and oversee the AML Program, (ii) provides ongoing employee training, (iii) includes an independent audit function to test the effectiveness of the AML Program, (iv) establishes internal policies, procedures, and controls that are tailored to its particular business, (v) provides for the filing of all necessary anti-money laundering reports including, but not limited to, currency transaction reports and suspicious activity reports, and (vi) allows for appropriate regulators to examine its anti-money laundering books and records. Notwithstanding the foregoing, the Client acknowledges that the Authorized Participants are not customers for the purposes of 31 CFR 103.
(c) The Distributor and the Client each individually represent and warrant 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 and (ii) it will comply with all of the applicable terms and provisions of the 1934 Act.
(d) The Client represents and warrants that (i) it is duly organized as a Delaware statutory 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; (iv) 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 Client is a party or by which it is bound; (v) the Registration Statement and each Funds Prospectus have been prepared, and all Marketing Materials have been prepared by or at the direction of the Client and have been approved by the Client and shall be prepared, in all material respects, in conformity with all applicable law, including, without limitation, the 1933 Act, the 1940 Act and the rules and regulations of the SEC (the Rules and Regulations); (vi) the Registration Statement and each Funds Prospectus contain, and all Marketing Materials shall contain, all statements required to be stated therein in accordance with the 1933 Act, the 1940 Act and the Rules and Regulations; (vii) all statements of fact contained therein, or to be contained in all Marketing Materials, are or will be true and correct in all material respects at the time indicated or the effective date, as the case
8
may be, and none of the Registration Statement, any Funds Prospectus, nor any Marketing Materials shall include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of each Funds Prospectus in light of the circumstances in which made, not misleading; (viii) except as otherwise noted in the Registration Statement and Prospectus, the offering price for all Creation Units 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; (ix) the Prospectus is effective, no stop order of the SEC or any other federal, state or foreign regulatory authority with respect thereto has been issued, no proceedings for such purpose have been instituted, or to its knowledge are being contemplated; (x) the Fund Shares, when issued and delivered against payment of consideration will be duly and validly authorized, issued fully paid and non-assessable and free of statutory and contractual preemptive rights, rights of first refusal and similar rights; (xi) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of Fund Shares, except the registration of the Fund Shares under the 1933 Act; (xii) Fund Shares will be listed on Listing Exchanges; (xiii) it will not lend securities pursuant to any securities lending arrangement that would prevent any Fund from settling a Redemption Order when due; (xiv) it will not name the Authorized Participant as an authorized participant and/or as underwriter in the Prospectus, Marketing Materials or on its or any Funds website without prior written consent of the Authorized Participant, unless such naming is required by law, rule or regulation; and (xv) it shall file such amendment or amendments to the Registration Statement and each Funds Prospectus as, in the light of future developments, shall, in the opinion of the Clients counsel, be necessary in order to have the Registration Statement and each Funds Prospectus at all times contain all material facts required to be stated therein or necessary to make the statements therein, in light of the circumstances in which made, not misleading.
(e) The Client shall not file any amendment to the Registration Statement or each Funds Prospectus without giving the Distributor reasonable notice thereof in advance, provided that nothing in this Agreement shall in any way limit the Clients right to file at any time such amendments to the Registration Statement or any Funds Prospectus as the Client may deem advisable. The Client will also promptly notify the Distributor in writing in the event of any stop order suspending the effectiveness of the Registration Statement. Notwithstanding the foregoing, the Client shall not be deemed to make any representation or warranty as to any information or statement provided by the Distributor for inclusion in the Registration Statement or any Funds Prospectus; and upon delivery of Deposit or Fund Securities to an Authorized Participant in connection with a purchase or redemption of Creation Units, the Authorized Participant will acquire good and unencumbered title to such securities, free and clear of all liens, restrictions, charges and encumbrances, and not subject to any adverse claims and that such Fund and Deposit Securities will not be restricted securities as such term is used in Rule 144(a)(3)(i) under the 1933 Act.
8. Duration, Termination and Amendment.
(a) This Agreement shall be effective on the date set forth above, and unless terminated as provided herein, shall continue for two (2) years from its effective date, and thereafter from year to year, provided such continuance is approved annually (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 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 (subject to any applicable order or orders of the SEC,
9
any rules or regulations adopted by, or interpretive releases of, the SEC, or any guidance issued by the SEC staff). 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, or by the Distributor, on at least sixty (60) days prior written notice. This Agreement shall automatically terminate without the payment of any penalty in the event of its assignment. As used in this paragraph, the 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 both parties.
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 email, 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):
(i) To the Distributor: |
(ii) To the Client: | |
PINE Distributors LLC | Crossmark ETF Trust | |
Attn: BD Compliance | 15375 Memorial Drive, Suite 200 | |
501 S. Cherry Street, Suite 610 | Houston, Texas 77079 | |
Denver, CO 80246 | Telephone: 713-260-9000 | |
Telephone: 720-651-8092 | Email: compliance@crossmarkglobal.com | |
Email:bdcompliance@pindadvisorsolutions.com |
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. Counterparts.
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 Agreements intent and purpose, be amended, to the extent legally possible, in order to effectuate the intended results of such invalid provisions.
10
13. Insurance.
The Distributor will maintain at its expense an errors and omissions insurance policy adequate to cover services provided by the Distributor hereunder.
14. Confidentiality.
During the term of this Agreement, the Distributor and the Client may have access to confidential information relating to such matters as either partys 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 that 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 information, proposals 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 (a) the information is or becomes publicly known through lawful means; (b) 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 of 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 provided by the other party or as required by law. Upon termination of this Agreement for any reason, or as otherwise requested by the Client, all Confidential Information held by or on behalf of the Client shall be promptly returned to the Client, or an authorized officer of the Distributor will certify to the Client in writing that all such Confidential Information has been destroyed. This Section 14 shall survive the termination of this Agreement. Notwithstanding the foregoing, a party may disclose the others Confidential Information if (i) required by law, regulation or legal process or if requested by the SEC or other governmental regulatory agency with jurisdiction over the parties hereto, in each case with as much prior written notice to the other party as is practicable under the circumstances or (ii) requested to do so by the other party.
15. Limitation of Liability.
This Agreement is executed by or on behalf of the Client with respect to each of the Funds and the obligations hereunder are not binding upon any of the trustees, officers or shareholders of the Client individually but are binding only upon the Fund to which such obligations pertain and the assets and property of such Fund. Crossmark ETF Trust is a Delaware statutory trust organized in series of which each Fund constitutes one such series, and the Client is executing this Agreement with respect to each Fund individually. Pursuant to the Agreement and Declaration of Trust of the Client and Section 3804(a) of the Delaware Statutory Trust Act, there is a limitation on liabilities of each series such that (a) separate
11
and distinct records are maintained for each Fund and the assets associated with any such Fund are held and accounted for separately from the other assets of the Client, or any other Fund of the Client. The debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to a particular Fund of the Client shall be enforceable against the assets of that Fund only, and not against the assets of the Client generally or any other Fund, and (b) none of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to the Client generally or any other Fund shall be enforceable against the assets of that Fund.
16. Use of Names; Publicity.
(a) The Client shall not use the Distributors name in any offering material, shareholder report, advertisement or other material relating to the Client, in a manner not approved by the Distributor in writing prior to such use, such approval not to be unreasonably withheld. The Distributor hereby consents to all uses of its name required by the SEC, any state securities commission, or any federal or state regulatory authority.
(b) The Distributor shall not use the Clients name in any offering material, shareholder report, advertisement or other material relating to the Distributor, other than for the purpose of merely identifying Crossmark ETF Trust as a client of the Distributor in a manner not approved by the Client in writing prior to such use, such approval not to be unreasonably withheld. The Client hereby consents to all uses of its name required by the SEC, any state securities commission, or any federal or state regulatory authority.
The Distributor will not issue any press releases or make any public announcements regarding the existence of this Agreement without the express written consent of the Trust. Neither the Trust nor the Distributor will disclose any of the economic terms of this Agreement, except as may be required by law.
17. Exclusivity.
Nothing herein contained shall prevent the Distributor from entering into similar distribution arrangements or from providing the services contemplated hereunder to other investment companies or investment vehicles.
18. Governing Language.
This Agreement has been negotiated and executed by the parties in English. In the event any translation of this Agreement is prepared for convenience or any other purpose, the provisions of the English version shall prevail.
[SIGNATURE PAGE FOLLOWS]
12
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.
PINE Distributors LLC | Crossmark Global Investments, Inc. | |||||||
By: | /s/ Mark Fairbanks |
By: | /s/ Jim Coppedge | |||||
Name: | Mark Fairbanks | Name: | Jim Coppedge | |||||
Date: | July 1, 2025 | Date: | July 1, 2025 |
13
EXHIBIT A
Crossmark Large Cap Growth ETF
Crossmark Large Cap Value ETF
14