EXHIBIT 10.4


ETFS WHITE METALS BASKET TRUST

MARKETING AGENT AGREEMENT


MARKETING AGENT AGREEMENT (the “Agreement”) made as of November 29, 2010,
on behalf of ETFS White Metals Basket 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. 333-167166), 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. 333-167166) 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 and its affiliates 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 $12,500 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
    maximum compensation Marketing Agent may receive under this Agreement, as
    a result of the Trust’s offering,
is not to exceed $137,500, which includes $37,500 (fees) and $100,000 (expenses).
The Trust is not responsible for the payment of any amounts to the Marketing
Agent. The maximum compensation that will be paid for wholesaling salaries, as
a result of this offering, is not to exceed $500,000, which is solely the
responsibility of ETFS Marketing.


(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 $55,635
for the three-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-


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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). 


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 

 


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 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 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.

 


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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 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 


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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 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 November 29, 2010, 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.

Upon termination by either party to this Agreement, ETFS Marketing shall pay to the Marketing Agent only those expenses and fees incurred
prior to such termination and any reimbursements of out-of-pocket expenses actually incurred.


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

 
	
  

 	
 48 Wall Street 

 
	
  

 	
 New York, NY 10005

 
	
  

 	
 Attn: Fred Jheon

 
	
  

 	
  

 
	
  

 	
 with a copy to

 
	
  

 	
  

 
	
  

 	
 ETFS White Metals Basket 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

 


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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, 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:

 	
 /S/ Fred Jheon

 
	
  

 	
  

 	

 

 
	
  

 	
 Name:  Fred Jheon

 
	
  

 	
 Title:    President & Chief
 Executive Officer

 
	
  

 	
  

 	
  

 
	
  

 	
 ALPS
 DISTRIBUTORS, INC.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 /s/ Thomas A. Carter

 
	
  

 	
  

 	

 

 
	
  

 	
 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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