Exhibit 10.4 


ETFS PALLADIUM TRUST

MARKETING AGENT AGREEMENT


MARKETING AGENT AGREEMENT
(the “Agreement”) made as of ___________, 2009, on behalf of ETFS Palladium
Trust, a New York trust (the “Fund” or the “Trust”), by and among ETFS
Marketing, LLC, a Delaware limited liability company, as agent of the Fund
(“ETFS Marketing”) and ALPS Distributors, Inc., a Colorado corporation (the
“Marketing Agent”). Capitalized terms used
but not defined in this Agreement shall have the meaning ascribed thereto in
the Trust’s Prospectus included its Registration Statement on Form S-1
(Registration No. 333-158380), as it may be amended from time-to-time.


W I T N E S S E T
H:


WHEREAS, ETF Securities
USA LLC, as sponsor of the Trust (the “Sponsor”), on behalf of the Fund, has
filed with the Securities and Exchange Commission (the “Commission” or “SEC”) a
registration statement on Form S-1 (Registration No. 333-158380) and amendments thereto, including as part thereof a
prospectus (the “Prospectus”), under the Securities Act of 1933, as amended
(the “1933 Act”), the forms of which have heretofore been delivered to the
Marketing Agent; and


WHEREAS, ETFS Marketing
has been engaged to provide marketing services in the United States; and


WHEREAS,
the Trust and ETFS Marketing wish to employ the Marketing Agent in connection
with the performance of the services listed in Schedule A and additional
services as may be agreed from time-to-time; 


NOW,
THEREFORE, in consideration of the mutual promises and undertakings herein
contained, the parties agree as follows:


1.          Registration
— ETFS Marketing has furnished or will furnish, upon request, the Marketing
Agent with copies of the Trust’s trust agreement, custodian agreements,
transfer agency agreement, current prospectus, and all forms relating to any
plan, program or service offered by the Trust. ETFS Marketing shall furnish,
within a reasonable time period, to the Marketing Agent a copy of any amendment
or supplement to any of the above-mentioned documents. Upon request, ETFS
Marketing shall furnish promptly to the Marketing Agent any additional
documents necessary or advisable to perform its functions hereunder. As used in
this Agreement the terms “registration statement,” “prospectus” shall mean any
registration statement and prospectus filed by the Trust with the SEC and any
amendments and supplements thereto that are filed with the SEC.


2.          Representations
and Warranties of ETFS Marketing – ETFS Marketing represents and warrants
and covenants the following:


(a)     ETFS
Marketing has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
with full power and authority to conduct its business as described in the
Registration Statement and the Prospectus, and has all requisite power and
authority to execute and deliver this Agreement;


(b)     the
Fund and ETFS Marketing are duly qualified and are in good standing in each
jurisdiction where the conduct of its business requires such qualification; and







(d)        this
Agreement has been duly authorized, executed and delivered by ETFS Marketing
and constitutes the valid and binding obligations of ETFS Marketing,
enforceable against ETFS Marketing in accordance with its terms.


3.          Representations
and Warranties of the Marketing Agent - The Marketing Agent represents and
warrants and covenants the following: 


(a) The Marketing Agent is registered
as a broker-dealer under the Exchange Act, and is a member in good standing of
the Financial Industry Regulatory Authority (“FINRA”) and is qualified to act
as a broker or dealer in the states or other jurisdictions where the nature of
its business so requires; and has all other necessary licenses,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law, regulation or rule,
and has obtained all necessary authorizations, consents and approvals from
other Persons, in order to conduct its activities as contemplated by this
Agreement. The Marketing Agent will maintain any such registrations, qualifications and
membership in good standing and in full force and effect throughout the term of
this Agreement. The Marketing Agent will comply with all applicable federal
laws, including but not limited to, federal securities and commodities laws,
the laws of the states or other jurisdictions concerned, and the rules and
regulations promulgated thereunder, and with the Constitution, By-Laws and
Conduct Rules of FINRA; 


(b) The
Marketing Agent (i) has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Colorado, with full
power and authority to conduct its business and has all requisite power and
authority to execute and deliver this Agreement and (ii) is duly qualified and
is in good standing in each jurisdiction where the conduct of its business
requires such qualification; and


(c) This
Agreement has been duly authorized, executed and delivered by the Marketing
Agent and constitutes the valid and binding obligations of the Marketing Agent,
enforceable against the Marketing Agent in accordance with its terms.


4.          Fees
and Trust Expenses — (a) In consideration of the services to be performed
by the Marketing Agent hereunder as set forth on Schedule A attached
hereto and as it may be amended from time-to-time, ETFS Marketing will
pay the Marketing Agent an annual fee in the amount of $20,000 per annum to be
paid in 1/12 equal monthly installments commencing on launch date of the Trust,
subject to any limitation imposed by any law, rule or regulation applicable to
any of the parties hereto. The fee shall not exceed $100,000 for the five-year
period beginning from the date of this agreement.


(b)        ETFS
Marketing shall reimburse the Marketing Agent for any reasonable fees or
disbursements incurred by the Marketing Agent in connection with the
performance by the Marketing Agent of its duties under and pursuant to this
Agreement including, but not limited to, the items identified as Out of Pocket
Expenses in Schedule B of this agreement. These fees shall not exceed $92,725
for the five-year period beginning from the date of this agreement. Further, unless otherwise agreed to by the parties hereto
in writing, the Marketing Agent shall not be responsible for fees and expenses
in connection with (a) filing of any registration statement, printing and the
distribution of any prospectus under the 1933 Act and amendments prepared for
use in connection with the offering of shares for sale to the public, preparing,
setting in type, printing and mailing the prospectus, and any supplements
thereto sent to shareholders of the Trust, (b) preparing, setting in type,
printing and mailing any report (including annual and semi-annual reports) or
other communication to shareholders of the Trust, and (c) the Blue Sky
registration and qualification of shares of the Trust for sale in the various
states in which the officers of the Trust shall determine it advisable to
qualify such shares of the Trust for sale (including registering the Trust as a
broker or dealer or any officer of the Trust or any Trust as agent or salesman
in any state). 


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5.          Use
of the Marketing Agent’s Name — Neither the Trust nor ETFS Marketing, or
any of their affiliates, shall use the name of the Marketing Agent, or any of
its affiliates, in any prospectus, sales literature, and other material
relating to the Trust in any manner without the prior written consent of the
Marketing Agent (which shall not be unreasonably withheld); provided, however,
that the Marketing Agent hereby approves all lawful uses of the names of the
Marketing Agent and its affiliates in the prospectus of the Trust and in all
other materials which merely refer to accurate terms to their appointment
hereunder or which are required by the SEC, FINRA, OCC or any state securities
authority.


6.          Use
of the Trust’s Name — Neither the Marketing Agent nor any of its affiliates
shall use the name of the Trust in any publicly disseminated materials,
including sales literature in any manner without the prior consent of ETFS
Marketing (which shall not be unreasonably withheld); provided, however,
that ETFS Marketing hereby approves all lawful uses of its or the Trust’s names
in any required regulatory filings of the Marketing Agent which merely refer in
accurate terms to the appointment of the Marketing Agent hereunder, or which
are required by the SEC, FINRA, or any state securities authority.


7.          Indemnification of Marketing Agent
- ETFS Marketing agrees to indemnify, defend and hold harmless the Marketing
Agent, its partners, stockholders, members, directors, officers and employees
of the foregoing, and the successors and assigns of all of the foregoing, from
and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which the Marketing Agent or any such person
may incur under the 1933 Act, the Securities Exchange Act of 1934 (the
“Exchange Act”), the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon:


	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 any untrue statement or alleged untrue statement of
 a material fact contained in the Registration Statement (or in the
 Registration Statement as amended or supplemented) or in a Prospectus (the
 term Prospectus being deemed to include the Prospectus and the Prospectus as
 amended or supplemented), or arises out of or is based upon any omission or
 alleged omission to state a material fact required to be stated in either
 such Registration Statement or such Prospectus or necessary to make the
 statements made therein not misleading, except for any statements provided in
 writing, directly or indirectly through ETFS Marketing, by the Marketing
 Agent to the Sponsor for inclusion in such Registration Statement or such prospectus
 or any material omissions therefrom; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 any untrue statement or alleged untrue statement of
 a material fact or breach by ETFS Marketing of any representation or warranty
 contained in this Agreement;

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 the failure by ETFS Marketing to perform when and as
 required any agreement or covenant contained herein;

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 any untrue statement of any material fact contained
 in any audio or visual materials provided by ETFS Marketing or based upon
 written information furnished by or on behalf of ETFS Marketing including,
 without limitation, slides, videos, films or tape recordings used in
 connection with the marketing of the Trust;

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 the Marketing Agent’s performance of its duties
 under this Agreement except in the case of this clause (e), for any loss,
 damage, expense, liability or claim resulting from the gross negligence or
 willful misconduct of the Marketing Agent. In no case is the indemnity of
 ETFS Marketing in favor of the Marketing Agent deemed to protect the
 Marketing Agent against any liability to ETFS Marketing to which the
 Marketing Agent would otherwise be subject by reason of willful misfeasance,
 bad faith or gross negligence in the performance of 

 


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 its duties or by reason of its reckless disregard of
 its obligations and duties under this Agreement.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 If any action, suit or proceeding (each, a “Proceeding”) is brought against
the Marketing Agent in respect of which indemnity may be sought against ETFS Marketing pursuant to the foregoing
paragraph, the Marketing Agent shall promptly notify ETFS Marketing in writing of the institution of such Proceeding
and ETFS Marketing shall assume the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses; provided, however, that the omission
to so notify ETFS Marketing shall not relieve ETFS Marketing from any liability which it may have to the Marketing
Agent hereunder except to the extent that it has been materially prejudiced by such failure. The Marketing Agent shall
have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of the Marketing Agent unless the employment of such counsel shall have been authorized in writing by
ETFS Marketing in connection with the defense of such Proceeding or ETFS Marketing shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to ETFS Marketing (in which case ETFS Marketing
shall not have the right to direct the defense of such Proceeding on behalf of the indemnified party or parties), in any
of which events such fees and expenses shall be borne by ETFS Marketing and paid as incurred (it being understood, however,
that ETFS Marketing shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel)
in any one Proceeding or series of related Proceedings in the same jurisdiction representing the indemnified parties who are
parties to such Proceeding).

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 ETFS Marketing shall not be liable for any
 settlement of any Proceeding effected without ETFS Marketing’s written
 consent, but if settled with ETFS Marketing’s written consent, ETFS Marketing
 agrees to indemnify and hold harmless the Marketing Agent from and against
 any loss or liability by reason of such settlement. Notwithstanding the
 foregoing sentence, if at any time an indemnified party shall have requested
 an indemnifying party to reimburse the indemnified party for fees and
 expenses of counsel as contemplated by the second sentence of the foregoing
 paragraph, then the indemnifying party agrees that it shall be liable for any
 settlement of any Proceeding effected without its written consent if (i) such
 settlement is entered into more than 60 Business Days after receipt by such
 indemnifying party of the aforesaid request, (ii) such indemnifying party
 shall not have fully reimbursed the indemnified party in accordance with such
 request prior to the date of such settlement and (iii) such indemnified party
 shall have given the indemnifying party at least 30 Business Days’ prior
 notice of its intention to settle. No indemnifying party shall, without the
 prior written consent of the indemnified party, effect any settlement of any
 pending or threatened Proceeding in respect of which any indemnified party is
 or could have been a party and indemnity could have been sought hereunder by
 such indemnified party, unless such settlement includes an unconditional
 release of such indemnified party from all liability on claims that are the
 subject matter of such Proceeding and does not include an admission of fault,
 culpability or a failure to act, by or on behalf of such indemnified party.

 



8.          Indemnification of ETFS Marketing and the
Trust- The Marketing
Agent agrees to indemnify, defend and hold harmless ETFS Marketing and the
Trust, their partners, shareholders, members, directors, officers and employees
of the foregoing, and the controlling persons of all of the foregoing, within
the meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing, from and against any
loss, damage, expense, liability or claim (including the


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reasonable cost of investigation)
which ETFS Marketing may incur under the 1933 Act, the Exchange Act, the common
law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in and in conformity with information furnished in
writing, directly or indirectly through ETFS Marketing, by or on behalf of the
Marketing Agent to the Sponsor expressly for use in the Registration Statement
(or in the Registration Statement as amended or supplemented by any
post-effective amendment thereof) or in a Prospectus, or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information not
misleading.


The Marketing Agent will
also indemnify ETFS Marketing and the Trust as stated above insofar as such
loss, damage, expense, liability or claim arises out of or is based upon the
Marketing Agent’s performance of its duties under this Agreement, except in the
case of any loss, damage, expense, liability or claim resulting from the gross
negligence or willful misconduct of ETFS Marketing or the Trust. In no case is
the indemnity of the Marketing Agent in favor of ETFS Marketing and the Trust
to be deemed to protect ETFS Marketing and the Trust against any liability to
the Marketing Agent to which ETFS Marketing or the Trust 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 ETFS
Marketing’s obligations and duties under this Agreement.


If any Proceeding is
brought against ETFS Marketing or the Trust in respect of which indemnity may
be sought against the Marketing Agent pursuant to the first paragraph of this
Section 8, ETFS Marketing shall promptly notify the Marketing Agent in writing
of the institution of such Proceeding and the Marketing Agent shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify the Marketing Agent shall not
relieve the Marketing Agent from any liability hereunder which it may have to
ETFS Marketing except to the extent that it has been materially prejudiced by
such failure. ETFS Marketing and the Trust shall have the right to employ their
own counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of ETFS Marketing unless the employment of such counsel shall
have been authorized in writing by the Marketing Agent in connection with the
defense of such Proceeding or the Marketing Agent shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to the
Marketing Agent (in which case the Marketing Agent shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties, but the Marketing Agent may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of the Marketing Agent), in any of which events such fees and expenses
shall be borne by the Marketing Agent and paid as incurred (it being
understood, however, that the Marketing Agent shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel)
in any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). 


The Marketing Agent shall
not be liable for any settlement of any such Proceeding effected without the
written consent of the Marketing Agent but if settled with the written consent
of the Marketing Agent, the Marketing Agent agrees to indemnify and hold
harmless ETFS Marketing and the Trust from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of the foregoing paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 Business Days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not have
reimbursed the


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indemnified party in accordance
with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 Business
Days’ prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.


9.         Term
— This Agreement shall become effective as of ______________, 2009, and shall
continue until two years from such date and thereafter shall continue
automatically for successive annual periods, provided that such continuance is
specifically approved at least annually by ETFS Marketing. This Agreement is
terminable without penalty on sixty (60) days’ written notice by ETFS Marketing
or by the Marketing Agent. This Agreement shall automatically terminate in the
event of its assignment.


Upon
the termination of this Agreement, the Marketing Agent, at ETFS Marketing’s
expense and direction, shall transfer to such successor, as ETFS Marketing
shall specify, all relevant books, records and other data established or
maintained by the Marketing Agent under this Agreement.


10.       Notice
— Any notice required or permitted to be given by any party to the other shall
be deemed sufficient if sent by (i) telecopier (fax) or (ii) registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party
giving notice:


	
  

 	
  

 
	
  

 	
 if to the Trust or ETFS
 Marketing, at:

 
	
  

 	
  

 
	
  

 	
 ETFS Marketing LLC

 
	
  

 	
 555 California Street, Suite
 2900

 
	
  

 	
 San Francisco, CA 94104

 
	
  

 	
 Attn: Fred Jheon

 
	
  

 	
  

 
	
  

 	
 with a copy to

 
	
  

 	
  

 
	
  

 	
 ETFS Palladium Trust

 
	
  

 	
 c/o ETF Securities
 Representative Office

 
	
  

 	
 6th Floor

 
	
  

 	
 2 London Wall Buildings

 
	
  

 	
 London, EC2M 5UU

 
	
  

 	
 Telephone: 011 44 207 448-4330

 
	
  

 	
 Attention: President

 
	
  

 	
  

 
	
  

 	
 if to the Marketing Agent at:

 
	
  

 	
  

 
	
  

 	
 ALPS Distributors, Inc.

 
	
  

 	
 1290 Broadway, Suite 1100 

 
	
  

 	
 Denver, Colorado, 80203 

 
	
  

 	
 Attn: General Counsel

 



or
such other telecopier (fax) number or address as may be furnished by one party
to the other.


11.       Confidential
Information — The Marketing Agent, its officers, directors, employees and
agents will treat confidentially and as proprietary information of the Trust,
all records and other information relative to the Trust. If the Marketing Agent
is requested or required by, but not limited to, depositions,


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interrogatories,
requests for information or documents, subpoena, civil investigation, demand or
other action, proceeding or process or as otherwise required by law, statute,
regulation, writ, decree or the like to disclose such information, the
Marketing Agent will provide ETFS Marketing with prompt written notice of any
such request or requirement so that ETFS Marketing may seek an appropriate
protective order or other appropriate remedy and/or waive compliance with this
provision. If such order or other remedy is not sought, or obtained, or waiver
not received within a reasonable period following such notice, then the
Marketing Agent may without liability hereunder, disclose to the person, entity
or agency requesting or requiring the information, that portion of the
information that is legally required in the reasonable opinion of the Marketing
Agent’s counsel.


12.       Miscellaneous
— Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof. The Agreement
shall be construed, interpreted, and enforced in accordance with and governed
by the laws of the State of Colorado. The captions in this Agreement are
included for convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect. This
Agreement may not be changed, waived, discharged or amended except by written
instrument that shall make specific reference to this Agreement and which shall
be signed by the party against which enforcement of such change, waiver,
discharge or amendment is sought. This Agreement may be executed simultaneously
in two or more counterparts, each of which taken together shall constitute one
and the same instrument.


ETFS
Marketing shall provide all information to the Marketing Agent necessary for
the Marketing Agent to perform its obligations under applicable securities laws
and regulations as they relate to the transactions contemplated in this
agreement; and agrees that its employees registered with and supervised by the
Marketing Agent will comply with the Written Supervisory Procedures of the
Marketing Agent, which may be amended from time to time.


 [Signature Page to Follow]


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IN WITNESS WHEREOF, each of the undersigned has executed this instrument in its name and
behalf as of the date and year first above written.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ETFS
 MARKETING, LLC

 
	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
 Name: 

 	
 Fred Jheon

 
	
  

 	
 Title:

 	
 President & Chief
 Executive Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 ALPS
 DISTRIBUTORS, INC.

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
 Name:

 	
 Thomas A. Carter

 
	
  

 	
 Title:

 	
 President

 


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Schedule A


Marketing
Agent Services


	
  

 	
  

 
	
 ▪

 	
 Review marketing related legal documents and contracts.

 
	
  

 	
  

 
	
 ▪

 	
 Consult with ETFS Marketing’s marketing staff and on
 development of FINRA compliant marketing campaigns.

 
	
  

 	
  

 
	
 ▪

 	
 Consult with Trust’s legal counsel on marketing
 materials that are deemed to qualify as a free-writing prospectus materials
 and appropriate disclosure associated with all marketing materials.

 
	
  

 	
  

 
	
 ▪

 	
 Review and file applicable marketing materials with
 FINRA that don’t otherwise qualify as free-writing prospectus materials.

 
	
  

 	
  

 
	
 ▪

 	
 Register and oversee supervisory activities of
 unlimited number of FINRA licensed registered representatives.

 
	
  

 	
  

 
	
 ▪

 	
 Maintain, reproduction and storage of applicable
 books and records related to the services provided under this Agreement.

 


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