Exhibit k.2
LICENSE AGREEMENT
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LICENSE AGREEMENT, dated as ____(the "Commencement Date") by and
between STANDARD & POOR'S, a division of The XxXxxx-Xxxx Companies, Inc.
("S&P"), a New York corporation, having an office at 00 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000-0000, and Nuveen Investments, Inc. ("Licensee"), a Delaware corporation
having an office at 000 Xxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000, on behalf of
(the "Product" or the "Fund").
WHEREAS, S&P compiles, calculates, maintains and owns rights in and to the
S&P 500 Composite Stock Price Index and to the proprietary data therein
contained (such rights being hereinafter individually and collectively referred
to as the "S&P 500 Index"); and
WHEREAS, S&P uses in commerce and has trade name and trademark rights to
the designations "Standard & Poor's(R)", "S&P(R)", "S&P 500(R)", "Standard &
Poor's 500" and "500", in connection with the S&P 500 Index (such rights being
hereinafter individually and collectively referred to as the "S&P Marks"); and
WHEREAS, Licensee wishes to use the S&P 500 Index as a component of the
Product as described in Exhibit A attached hereto and made a part hereof; and
WHEREAS, Licensee wishes to use the S&P Marks in connection with the
marketing and/or promotion of the Product and in connection with making
disclosure about the Product under applicable law, rules and regulations in
order to indicate that S&P is the source of the S&P 500 Index; and
WHEREAS, Licensee wishes to obtain S&P's authorization to use the S&P 500
Index and the S&P Marks in connection with the Product pursuant to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of License.
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(a) Subject to the terms and conditions of this Agreement, S&P hereby
grants to Licensee a non-transferable, non-exclusive license (i) to use the S&P
500 Index as a component of the Product to be marketed and/or promoted by
Licensee and (ii) to use and refer to the S&P Marks in connection with the
distribution, marketing and promotion of the Product (including in the name of
the Product) and in connection with making such disclosure about the Product as
Licensee deems necessary or desirable under any applicable law, rules,
regulations or provisions of this Agreement, but, in each case, only to the
extent necessary to indicate the source of the S&P 500 Index. It is expressly
agreed and understood by Licensee that no rights to use the S&P 500 Index and
the S&P Marks are granted hereunder other than those specifically described and
expressly granted herein.
(b) S&P agrees that no person or entity (other than the Licensee) shall
need to obtain a license from S&P with respect to the Product.
2. Term.
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The term of this Agreement shall commence on the Commencement Date and
shall continue in effect thereafter until it is terminated in accordance with
its terms.
3. License Fees.
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(a) If the Fund commences operation, the Fund shall pay to S&P the
license fees ("License Fees") specified and provide the data called for in
Exhibit B, attached hereto and made a part hereof.
(b) During the term of this Agreement and for a period of one (1) year
after its termination, S&P shall have the right, during normal business hours
and upon reasonable notice to Licensee, to audit on a confidential basis the
relevant books and records of Licensee to determine that License Fees have been
accurately determined. The costs of such audit shall be borne by S&P unless it
determines that it has been underpaid by five percent (5%) or more; in such
case, costs of the audit shall be paid by Licensee. Unless required by law, a
court or a regulatory agency, S&P and its agents shall maintain as confidential
and not disclose information and documents received or reviewed in connection
with the audit.
4. Termination.
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(a) At any time during the term of this Agreement, either party may give
the other party sixty (60) days prior written notice of termination if the
terminating party believes in good faith that material damage or harm is
occurring to the reputation or goodwill of that party by reason of its continued
performance hereunder, and such notice shall be effective on the date specified
therein of such termination, unless the other party shall correct the condition
causing such damage or harm within the notice period.
(b) In the case of breach of any of the material terms or conditions of
this Agreement by either party, the other party may terminate this Agreement by
giving sixty (60) days prior written notice of its intent to
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[fund] -- 2 --
terminate, and such notice shall be effective on the date specified therein for
such termination unless the breaching party shall correct such breach within the
notice period.
(c) S&P shall have the right, in its sole discretion, to cease compilation
and publication of the S&P 500 Index and, in such event, to terminate this
Agreement if S&P does not offer a replacement or substitute index. In the event
that S&P intends to discontinue the S&P 500 Index, S&P shall give Licensee at
least one (1) year's written notice prior to such discontinuance, which notice
shall specify whether a replacement or substitute index will be made available.
Licensee shall have the option hereunder within sixty (60) days after
receiving such written notice from S&P to notify S&P in writing of its intent to
use the replacement or substitute index, if any, under the terms of this
Agreement. In the event that Licensee does not exercise such option or no
substitute or replacement index is made available, this Agreement shall be
terminated as of the date specified in the S&P notice and the License Fees to
the date of such termination shall be computed as provided in Subsection 4(f).
(d) Licensee may terminate this Agreement upon ninety (90) days prior
written notice to S&P if (i) Licensee is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in
Licensee's reasonable judgment materially impairs Licensee's ability to market
and/or promote the Product; (ii) any material litigation or regulatory
proceeding regarding the Product is threatened or commenced; (iii) Licensee
elects to terminate the public offering or other distribution of the Product, as
may be applicable; or (iv) the Fund in its sole discretion chooses to cease use
of the S&P Marks and the S&P 500 Index. In such event the License Fees to the
date of such termination shall be computed as provided in Subsection 4(f).
(e) S&P may terminate this Agreement upon ninety (90) days (or upon such
lesser period of time if required pursuant to a court order) prior written
notice to Licensee if (i) S&P is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in S&P's
reasonable judgment materially impairs S&P's ability to license and provide the
S&P 500 Index and S&P Marks under this Agreement in connection with such
Product; or (ii) any litigation or proceeding is threatened or commenced and S&P
reasonably believes that such litigation or proceeding would have a material and
adverse effect upon the S&P Marks and/or the S&P 500 Index or upon the ability
of S&P to perform under this Agreement. In such event the License Fees to the
date of such termination shall be computed as provided in Subsection 4(f).
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(f) In the event of termination of this Agreement as provided in
Subsections 4(a), (b), (c), (d) or (e), the License Fees to the date of such
termination shall be computed by prorating the amount of the applicable License
Fees shown in Exhibit B on the basis of the number of elapsed days in the
current term. Any excess License Fees amount paid by Licensee for the current
term shall be refunded by S&P.
(g) Upon termination of this Agreement, Licensee shall cease to use the S&P
500 Index and the S&P Marks in connection with the Product; provided that
Licensee may continue to utilize any previously printed materials which contain
the S&P Marks for a period of ninety (90) days following such termination.
5. S&P's Obligations.
-----------------
(a) It is the policy of S&P to prohibit its employees who are directly
responsible for changes in the components of the S&P 500 Index from purchasing
or beneficially owning any interest in the Product and S&P believes that its
employees comply with such policy. Licensee shall have no responsibility for
ensuring that such S&P employees comply with such S&P policy and shall have no
duty to inquire whether any investors or sellers of the Product are such S&P
employees. S&P shall have no liability to the Licensee with respect to its
employees' adherence or failure to adhere to such policy.
(b) S&P shall not and is in no way obliged to engage in any marketing or
promotional activities in connection with the Product or in making any
representation or statement to investors or prospective investors in connection
with the promotion by Licensee of the Product.
(c) S&P agrees to provide reasonable support for Licensee's development and
educational efforts with respect to the Product as follows: (i) S&P shall
provide Licensee, upon request but subject to any agreements of confidentiality
with respect thereto, copies of the results of any marketing research conducted
by or on behalf of S&P with respect to the S&P 500 Index; and (ii) S&P shall
respond in a timely fashion to any reasonable requests for information by
Licensee regarding the S&P 500 Index.
(d) S&P or its agent shall calculate and disseminate the S&P 500 Index at
least once each fifteen (15) seconds in accordance with its current procedures,
which procedures may be modified by S&P.
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(e) S&P shall promptly correct or instruct its agent to correct any
mathematical errors made in S&P's computations of the S&P 500 Index which are
brought to S&P's attention by Licensee, provided that nothing in this Section 5
shall give Licensee the right to exercise any judgment or require any changes
with respect to S&P's method of composing, calculating or determining the S&P
500 Index; and, provided further, that nothing herein shall be deemed to modify
the provisions of Section 9 of this Agreement.
6. Informational Materials Review.
------------------------------
Licensee shall use its best efforts to protect the goodwill and reputation
of S&P and of the S&P Marks in connection with its use of the S&P Marks under
this Agreement. Licensee shall submit to S&P for its review and approval all
informational materials pertaining to and to be used in connection with the
Product, including, where applicable, all prospectuses, plans, registration
statements, application forms, contracts, videos, internet sites, electronic
commerce, advertisements, brochures and promotional and any other similar
informational materials (including documents required to be filed with
governmental or regulatory agencies) that in any way use or refer to S&P, the
S&P 500 Index, or the S&P Marks (the "Informational Materials"). S&P's approval
shall be required with respect to the use of and description of S&P, the S&P
Marks and the S&P 500 Index and shall not be unreasonably withheld or delayed by
S&P. Specifically, S&P shall notify Licensee of its approval or disapproval of
any Informational Materials within forty-eight (48) hours (excluding Saturday,
Sunday and New York Stock Exchange Holidays) following receipt thereof from
Licensee. Any disapproval shall indicate S&P's reasons therefor. Any failure by
S&P to respond within such forty-eight (48) hour period shall be deemed to
constitute a waiver of S&P's right to review such Informational Materials.
Informational Materials shall be addressed to S&P, c/o Xxxxxxx Xxxxxxxx -
Vice President, Index Services, at the address specified in Subsection 12(d).
Informational Materials may be submitted via facsimile (to 212-438-3543) if they
are less than 20 pages and legible after transmission. Once Informational
Materials have been approved by S&P, subsequent Informational Materials which do
not alter the use or description of S&P, the S&P Marks or the S&P 500 Index need
not be submitted for review and approval by S&P.
7. Protection of Value of License.
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(a) During the term of this Agreement, S&P shall use its best efforts to
maintain in full force and effect federal registrations for
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"Standard & Poor's(R)", "S&P(R)", and "S&P 500(R)". S&P shall at S&P's own
expense and sole discretion exercise S&P's common law and statutory rights
against infringement of the S&P Marks, copyrights and other proprietary rights.
(b) Licensee and the Fund shall cooperate with S&P in the maintenance of
such rights and registrations and shall take such actions and execute such
instruments as S&P may from time to time reasonably request, and shall use the
following notice when referring to the S&P 500 Index or the S&P Marks in any
Informational Material:
"Standard & Poor's(R)", "S&P(R)", "S&P 500(R)", "Standard & Poor's
500", and "500" are trademarks of The XxXxxx-Xxxx Companies, Inc. and
have been licensed for use by . The
Fund is not sponsored, endorsed, sold or promoted by Standard & Poor's
and Standard & Poor's makes no representation regarding the
advisability of investing in the Fund.
or such similar language as may be approved in advance by S&P, it being
understood that such notice need only refer to the specific S&P Marks referred
to in the Informational Material.
8. Proprietary Rights.
(a) Licensee acknowledges that the S&P 500 Index is selected, coordinated,
arranged and prepared by S&P through the application of methods and standards of
judgment used and developed through the expenditure of considerable work, time
and money by S&P. Licensee also acknowledges that the S&P 500 Index and the S&P
Marks are the exclusive property of S&P, that S&P has and retains all
proprietary rights therein (including, but not limited to trademarks and
copyrights) and that the S&P 500 Index and its compilation and composition and
changes therein are in the control and discretion of S&P.
(b) S&P reserves all rights with respect to the S&P 500 Index and the S&P
Marks except those expressly licensed to Licensee hereunder.
(c) Each party shall treat as confidential and shall not disclose or
transmit to any third party any documentation or other written materials that
are marked as "Confidential and Proprietary" by the providing party
("Confidential Information"). Confidential Information shall not include (i) any
information that is available to the public or to the receiving party hereunder
from sources other than the providing party (provided that such source is not
subject to a confidentiality agreement with regard to such information) or (ii)
any information that is independently developed by the
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receiving party without use of or reference to information from the providing
party. Notwithstanding the foregoing, either party may reveal Confidential
Information to any regulatory agency or court of competent jurisdiction if such
information to be disclosed is (a) approved in writing by the other party for
disclosure or (b) required by law, regulatory agency or court order to be
disclosed by a party, provided, if permitted by law, that prior written notice
of such required disclosure is given to the other party and provided further
that the providing party shall cooperate with the other party to limit the
extent of such disclosure. The provisions of this Subsection 8(c) shall survive
any termination of this Agreement for a period of five (5) years from disclosure
by either party to the other of the last item of such Confidential Information.
9. Warranties; Disclaimers.
(a) S&P represents and warrants that S&P has the right to grant the rights
granted to Licensee herein and that the license granted herein shall not
infringe any trademark, copyright or other proprietary right of any person not a
party to this Agreement.
(b) S&P further warrants and represents to Licensee that the S&P Marks and
the S&P 500 Index are the exclusive property of S&P, that S&P has and retains
all proprietary rights therein (including, but not limited to trademarks and
copyrights), that the S&P 500 Index and its compilation and composition and
changes therein are in the control and discretion of S&P, and that the S&P 500
Index and S&P Marks do not infringe the rights of any third party.
(c) Licensee agrees expressly to be bound itself by and furthermore to
include all of the following disclaimers and limitations in each prospectus or
each Statement of Additional Information ("SAI") relating to the Product,
provided the SAI is incorporated by reference into the prospectus and the
prospectus contains disclosure regarding the S&P 500 Index that conforms to the
notice in Subsection 7(b), including a cross reference to the SAI disclosure.
Licensee shall furnish a copy of the prospectus and, if applicable, the SAI to
S&P:
The Product is not sponsored, endorsed, sold or promoted by Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"). S&P makes no
representation or warranty, express or implied, to the owners of the Product or
any member of the public regarding the advisability of investing in securities
generally or in the Product particularly or the ability of the S&P 500 Index to
track general stock market performance. S&P's only relationship to the Licensee
is the licensing of certain trademarks and trade names of S&P and of the S&P 500
Index which is determined, composed and calculated by S&P
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without regard to the Licensee or the Product. S&P has no obligation to take the
needs of the Licensee or the owners of the Product into consideration in
determining, composing or calculating the S&P 500 Index. S&P is not responsible
for and has not participated in the determination of the prices and amount of
the Product or the timing of the issuance or sale of the Product or in the
determination or calculation of the equation by which the Product is to be
converted into cash. S&P has no obligation or liability in connection with the
administration, marketing or trading of the Product.
S&P DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE S&P 500
INDEX OR ANY DATA INCLUDED THEREIN AND S&P SHALL HAVE NO LIABILITY FOR ANY
ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. S&P MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO RESULTS TO BE OBTAINED BY LICENSEE, OWNERS OF THE PRODUCT, OR ANY
OTHER PERSON OR ENTITY FROM THE USE OF THE S&P 500 INDEX OR ANY DATA INCLUDED
THEREIN. S&P MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH
RESPECT TO THE S&P 500 INDEX OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY
OF THE FOREGOING, IN NO EVENT SHALL S&P HAVE ANY LIABILITY FOR ANY SPECIAL,
PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
Any changes in the foregoing disclaimers and limitations must be approved
in advance in writing by an authorized officer of S&P.
(d) Each party represents and warrants to the other that it has the
authority to enter into this Agreement according to its terms and that its
performance does not violate any laws, regulations or agreements applicable to
it.
(e) Licensee represents and warrants to S&P that the Product shall at all
times substantially comply with the description in Exhibit A.
(f) Licensee represents and warrants to S&P that the Product shall not
violate any applicable law, including but not limited to banking, commodities
and securities laws.
(g) Neither party shall have any liability for lost profits or indirect,
punitive, special, or consequential damages arising out of this Agreement, even
if notified of the possibility of such damages. Without diminishing the
disclaimers and limitations set forth in Subsection 9(c), in no event shall the
cumulative liability of S&P to Licensee exceed the average annual License Fees
actually paid to S&P hereunder.
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(h) Use of any marks by Licensee or the Fund in connection with the
Fund (including in the name of the Fund) which are not the S&P Marks is at
Licensee's sole risk.
(i) The provisions of this Section 9 shall survive any termination
of this Agreement.
10. Indemnification.
(a) Licensee shall indemnify and hold harmless S&P, its affiliates and
their officers, directors, employees and agents against any and all judgments,
damages, costs or losses of any kind (including reasonable attorneys' and
experts' fees) as a result of any third-party claim, action, or proceeding that
arises out of or relates to (a) this Agreement, except insofar as it relates to
a breach by S&P of its representations or warranties hereunder, or (b) the
Product; provided, however, that S&P notifies Licensee promptly of any such
claim, action or proceeding. Licensee shall periodically reimburse S&P for its
reasonable expenses incurred under this Subsection 10(a). S&P shall have the
right, at its own expense, to participate in the defense of any claim, action or
proceeding against which it is indemnified hereunder; provided, however, it
shall have no right to control the defense, consent to judgment, or agree to
settle any such claim, action or proceeding without the written consent of
Licensee without waiving the indemnity hereunder. Licensee, in the defense of
any such claim, action or proceeding except with the written consent of S&P,
shall not consent to entry of any judgment or enter into any settlement which
either (a) does not include, as an unconditional term, the grant by the claimant
to S&P of a release of all liabilities in respect of such claims or (b)
otherwise adversely affects the rights of S&P. This provision shall survive the
termination or expiration of this Agreement.
(b) S&P shall indemnify and hold harmless Licensee, its affiliates and
their officers, directors, employees and agents against any and all judgments,
damages, costs or losses of any kind (including reasonable attorneys' and
experts' fees) as a result of any third-party claim, action, or proceeding that
arises out of or relates to any breach by S&P of its representations or
warranties under this Agreement; provided, however, that (a) Licensee notifies
S&P promptly of any such claim, action or proceeding; (b) Licensee grants S&P
control of its defense and/or settlement; and (c) Licensee cooperates with S&P
in the defense thereof. S&P shall periodically reimburse Licensee for its
reasonable expenses incurred under this Subsection 10(b). Licensee shall have
the right, at its own expense, to participate in the defense of any claim,
action or proceeding against which it is indemnified
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hereunder; provided, however, it shall have no right to control the defense,
consent to judgment, or agree to settle any such claim, action or proceeding
without the written consent of S&P without waiving the indemnity hereunder. S&P,
in the defense of any such claim, action or proceeding, except with the written
consent of Licensee, shall not consent to entry of any judgment or enter into
any settlement which either (a) does not include, as an unconditional term, the
grant by the claimant to Licensee of a release of all liabilities in respect of
such claims or (b) otherwise adversely affects the rights of Licensee. This
provision shall survive the termination or expiration of this Agreement.
11. Suspension of Performance.
Neither S&P nor Licensee shall bear responsibility or liability for
any losses arising out of any delay in or interruptions of their respective
performance of their obligations under this Agreement due to any act of God, act
of governmental authority, act of the public enemy or due to war, the outbreak
or escalation of hostilities, riot, fire, flood, civil commotion, insurrection,
labor difficulty (including, without limitation, any strike, or other work
stoppage or slow down), severe or adverse weather conditions, communications
line failure, or other similar cause beyond the reasonable control of the party
so affected.
12. Other Matters.
(a) This Agreement is solely and exclusively between the parties
hereto and shall not be assigned or transferred by either party, without prior
written consent of the other party, and any attempt to so assign or transfer
this Agreement without such written consent shall be null and void.
(b) The Fund's Declaration of Trust is on file with the Secretary of
the Commonwealth of Massachusetts. The obligations imposed upon the Fund by this
Agreement are not binding upon any of the Fund's Trustees, officers or
shareholders individually but are binding only upon the assets and property of
the Fund.
(c) This Agreement constitutes the entire agreement of the parties
hereto with respect to its subject matter and may be amended or modified only by
a writing signed by duly authorized officers of both parties. This Agreement
supersedes all previous agreements between the parties with respect to the
subject matter of this Agreement. There are no oral or written collateral
representations, agreements, or understandings except as provided herein.
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[fund] -- 10 --
(d) No breach, default, or threatened breach of this Agreement by
either party shall relieve the other party of its obligations or liabilities
under this Agreement with respect to the protection of the property or
proprietary nature of any property which is the subject of this Agreement.
(e) Except as set forth in Section 6 hereof with respect to
Informational Materials, all notices and other communications under this
Agreement shall be (i) in writing, (ii) delivered by hand, by registered or
certified mail, return receipt requested, or by facsimile transmission to the
address or facsimile number set forth below or such address or facsimile number
as either party shall specify by a written notice to the other and (iii) deemed
given upon receipt.
Notice to S&P: Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn.: Xxxxxx Xxxxxxxx
Managing Director
Index Services
Fax #: (000) 000-0000
Notice to Licensee:
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Vice President and
Assistant General Counsel
Fax #: (000) 000-0000
Tel #: (000) 000-0000
(f) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
(g) Each party agrees that in connection with any legal action or
proceeding arising with respect to this Agreement, they will bring such action
or proceeding only in the United States District Court for the Southern District
of New York or in the Supreme Court of the State of New York in and for the
First Judicial Department and each party agrees to submit to the jurisdiction of
such court and venue in such court and to waive any claim that such court is an
inconvenient forum.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
Nuveen Investments, Inc. STANDARD & POOR'S
On behalf of a division of
The XxXxxx-Xxxx Companies, Inc.
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[fund] -- 11 --
BY: ___________________________ BY: ___________________________
------------------------------- -------------------------------
(Print Name) (Print Name)
------------------------------- -------------------------------
(Print Title) (Print Title)
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[fund] -- 12 --
EXHIBIT A
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PRODUCT DESCRIPTION
-------------------
Product: The Fund (the "Product") is a closed-end
fund whose investment objective is to
The Product is a closed-end fund that specifically excludes shares or any other
security (other than preferred shares of beneficial interest that may be offered
by the Product), financial instrument or investment representing an ownership
interest in the Product that can be purchased, sold or otherwise traded on a
Secondary Market Facility.
As used herein, the term Secondary Market Facility means any entity or
organization that is: (1) subject to regulation as an exchange under applicable
laws, rules or regulations of the country or jurisdiction in which such entity
has a physical presence; or (2) a broker-dealer or other entity or organization
that acts in an exchange-like capacity by virtue of it, as principal or agent,
acting on a regular basis as an intermediary between buyers and sellers of
financial instruments of any type.
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[fund] -- 13 --
EXHIBIT B
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LICENSE FEES
------------
The Fund shall pay S&P License Fees computed as follows:
The annual License Fees shall be the greater of $ (the "Minimum Annual
Fee") or of the average daily net assets of the Fund
computed quarterly. The Minimum Annual Fee shall be payable on the Commencement
Date and each one-year anniversary thereof. Amounts in excess of the Minimum
Annual Fee shall be paid to S&P within thirty (30) days after the close of each
calendar quarter in which they are incurred; each such payment shall be
accompanied by a statement setting forth the basis for its calculation.
The parties agree that the terms upon which License Fees are calculated pursuant
to this Exhibit B shall be considered "Confidential Information" for purposes of
Subsection 8(c) of this Agreement.
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[fund] -- 14 --
