Exhibit (h.38)
iSHARES TRUST SUBLICENSE AGREEMENT
This Sublicense Agreement (the "Agreement") is made as of September 19, 2007,
by and between Barclays Global Investors, N.A., a national banking association
organized under the laws of the United States ("BGI") and iShares Trust, a
statutory trust established under the laws of the State of Delaware.
RECITALS
WHEREAS, pursuant to that certain License Agreement dated September 5, 2007
(the "License Agreement"), between JPMorgan Chase & Co. ("JPMorgan") and BGI,
BGI obtained a license to use in connection with "BGI Funds" (as that term is
defined in the License Agreement) certain securities indexes owned and managed
by JPMorgan (each, an "Index"), along with associated marks (the "Marks"); and
WHEREAS, BGI has the right pursuant to the License Agreement to sublicense its
rights thereunder to iShares Trust; and
WHEREAS, iShares Trust wishes to use the Indexes and Marks in connection with
the establishment of certain new exchange traded funds (each, an "ETF"), each
based on an Index, in connection with the identification and marketing of the
ETFs and in connection with making disclosures about the ETFs under applicable
laws, rules and regulations; and
WHEREAS, BGI wishes to grant a sublicense to iShares Trust for the use of the
Indexes and Marks;
NOW THEREFORE, the parties agree as follows:
1. Grant of Sublicense. Subject to the terms and conditions of this Agreement,
BGI hereby grants to iShares Trust a sublicense to use the Indexes (and
associated data, information, and Marks) listed on Exhibit A in the manner
set forth in, and subject to the terms of, the License Agreement.
2. Performance of Obligations Under the License. iShares Trust will be
responsible for performing all of BGI's executory obligations under the
License Agreement (other than the payment of license fees), as such
obligations relate to use of the Indexes and Marks in connection with the
formation and operation of iShares Funds.
3. Fees. iShares Trust shall have no obligation to pay any sublicense fees to
BGI or JPMorgan under this sublicense agreement.
4. Termination. This Agreement shall terminate if (a) the License Agreement
terminates, or (b) BGI or a BGI Affiliate ceases to exercise investment
discretion over the iShares Trust in its capacity as manager, investment
adviser, trustee, or other comparable capacity. BGI shall notify iShares
Trust as soon as reasonably practicable of the occurrence of an event
described in (a) above. Upon termination of this Agreement, iShares Trust's
right to use the Indexes and the Marks shall terminate immediately.
5. Indemnification. iShares Trust shall indemnify and hold harmless BGI, its
officers, employees, agents, successors, and assigns against all judgments,
damages, costs or losses of any kind (including reasonable attorneys' and
experts' fees) resulting from any claim, action or proceeding (collectively
"claims") that arises out of or relates to (a) the creation, marketing,
advertising, selling, and operation of the iShares Trust or interests
therein, or (b) any breach by BGI of its covenants, representations, and
warranties under the License Agreement caused by the actions or inactions of
iShares Trust, or (c) errors in the calculation of any Index, or delays in
the dissemination of any Index, or (d) any violation of applicable laws
(including, but not limited to, banking, commodities, and securities laws)
arising out of the offer, sale, operation, or trading of the iShares Trust
or interests therein, except to the extent such claims result from the
negligence, gross negligence or willful misconduct of BGI or its affiliates.
The provisions of this section shall survive termination of this Agreement.
6. Assignment. iShares will not make, or purport to make, any assignment or
other transfer of this Agreement. BGI may assign its rights and obligations
under this Agreement effective upon the giving of written notice to iShares.
7. Amendment. No provision of this Agreement may be waived, altered, or amended
except by written agreement of the parties.
8. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof.
9. Construction. Headings used in this Agreement are for convenience only, and
shall not affect the construction or interpretation of any of its
provisions. Each of the provisions of this Agreement is severable, and the
invalidity or inapplicability of one or more provisions, in whole or in
part, shall not affect any other provision. To the extent not preempted by
federal law, this Agreement shall be construed and interpreted under the
laws of the State of California.
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10.Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such counterparts
together shall constitute only one instrument.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed as of
the date first above written, with intent to be bound hereby.
BARCLAYS GLOBAL INVESTORS, N.A. iSHARES TRUST
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Authorized Signature Authorized Signature
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Managing Director Title: President
By: /s/ Xxxxxxx X. Xxxxxxx
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Authorized Signature
Name: Xxxxxxx X. Xxxxxxx
Title: Principal
Exhibit A
JPMorgan EMBI Global Core Index
