XXXXXX XXXXXXX CAPITAL INTERNATIONAL
FORM OF
INDEX LICENSE AGREEMENT
AGREEMENT, dated as of ________, 1996, by and between XXXXXX XXXXXXX & CO.
INCORPORATED ("Xxxxxx Xxxxxxx"), a Delaware corporation, having an office at
1251 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000, and FOREIGN FUND, INC.
("Licensee"), a Maryland corporation, having an office at 000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, Xxxxxx Xxxxxxx is an international investment banking and
brokerage firm which owns rights in and to certain stock indices and the
proprietary data contained therein (and which, through its Xxxxxx Xxxxxxx
Capital International ("MSCI") department, engages in a variety of business
activities in connection with such indices and data), among which are the
indices listed in Exhibit A, annexed hereto and made a part hereof (such indices
and data contained therein are hereinafter referred to as the "Indices");
WHEREAS, Xxxxxx Xxxxxxx calculates, maintains and publishes the Indices;
WHEREAS, Xxxxxx Xxxxxxx uses in commerce and owns trade name, trademark and
service xxxx rights to the designations "Xxxxxx Xxxxxxx," "Xxxxxx Xxxxxxx
Capital International," and "MSCI" (such rights are hereinafter individually and
collectively referred to as the "Marks");
WHEREAS, Licensee wishes to use the Indices as the basis of the products
described in Exhibit B, annexed hereto and made a part hereof (the "Products"),
to be issued and publicly traded pursuant to an effective registration statement
filed with the Securities and Exchange Commission;
WHEREAS, Licensee wishes to use the Indices and the Marks in connection
with writing, trading, marketing and promotion of the Products and in connection
with making disclosure about the Products under applicable laws, rules and
regulations in order to indicate that Xxxxxx Xxxxxxx is the source of the
Indices; and
WHEREAS, Licensee wishes to obtain Xxxxxx Xxxxxxx'x authorization to use
the Indices and refer to the Indices
and the Marks in connection with the Products pursuant to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT OF LICENSE AND AGREEMENT TO PROVIDE INFORMATION
(a) Subject to the terms and conditions of this Agreement, Xxxxxx Xxxxxxx
grants to Licensee a non-transferable, non-exclusive, license (i) to use the
Indices as the basis of the Products (in accord with the restrictions set forth
in Exhibit B), and (ii) to use and refer to the Indices and the Marks in
connection with the writing, trading, marketing and promotion of the Products
(in accord with the restrictions set forth in Exhibit B) and in connection with
making such disclosure about the Products as Licensee deems necessary or
desirable under any applicable laws, rules or regulations in order to indicate
the source of the Indices. Licensee shall not disseminate electronically or in
any other fashion any quotations or other information relating to the Indices or
the Products.
(b) Xxxxxx Xxxxxxx agrees to provide and update information to Licensee
concerning the Indices on an ongoing basis, and to assist in the preparation and
updating of Licensee's prospectus and statement of additional information as and
to the extent reasonably requested by Licensee.
2. TERM
The term of the license granted hereunder shall commence on ___, 199__ and
shall continue for one year thereafter. It is the intention of the parties to
renew this Agreement for successive one-year renewal terms pursuant to such
terms and conditions as the parties may agree upon.
3. LICENSEE FEES
Upon execution of this Agreement, Licensee shall pay to Xxxxxx Xxxxxxx a
license fee at a rate of .03% per annum of the aggregate average daily net
assets of Licensee calculated and paid monthly in arrears with respect to an
unlimited number of Products issued by Licensee on each of the Indices listed in
Exhibit A.
4. TERMINATION
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(a) At any time during the term of this Agreement, either party may give
the other party thirty (30) 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 the terminating party by reason of
its continued performance hereunder, and such notice shall be effective on the
date of such termination unless the other party shall correct the condition
causing such damage or harm within the notice period. In the event of
termination under this paragraph 4(a), no refund of any portion of the license
fees will be made.
(b) In the case of breach of any of the material terms and conditions of
this Agreement by either party, the other party may terminate this Agreement by
giving thirty (30) days' prior written notice of its intent to terminate, and
such notice shall be effective on the date of such termination unless the
breaching party shall correct such breach within the notice period. In the
event of termination under this paragraph 4(b) by Xxxxxx Xxxxxxx, no refund of
any of the license fees will be made. In the event of termination under this
paragraph 4(b) by Licensee, Licensee shall be entitled to a pro rata refund of
the license fees.
(c) Xxxxxx Xxxxxxx shall have the right, in its sole discretion, to cease
compilation and publication of any of the Indices and, in the event that any of
the Indices is discontinued, to terminate this Agreement if Xxxxxx Xxxxxxx does
not offer a replacement or substitute index. In the event that Xxxxxx Xxxxxxx
intends to discontinue any Index, Xxxxxx Xxxxxxx shall give Licensee at least
ninety (90) days written notice prior to such discontinuance, which notice shall
specify whether a replacement or substitute index will be available. Licensee
shall have the option hereunder within sixty (60) days after receiving such
written notice from Xxxxxx Xxxxxxx to notify Xxxxxx Xxxxxxx in writing of its
intent to use the replacement index under the terms of this Agreement. In the
event that any of the Indices is discontinued and Licensee does not exercise
such option or that at least one substitute or replacement index is not made
available, Licensee shall be entitled to a pro rata refund of the license fee.
(d) Licensee may terminate this Agreement upon written notice to Xxxxxx
Xxxxxxx if (i) Licensee is informed of the final adoption of any legislation or
regulation that materially impairs Licensee's ability to write, market or
promote the Products; or (ii) any material litigation or
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regulatory proceeding regarding the Products is threatened or commences. In the
event of termination under this paragraph 4(d), no refund of any portion of the
license fees will be made.
(e) Xxxxxx Xxxxxxx may terminate this Agreement upon written notice to
Licensee if (i) Xxxxxx Xxxxxxx is informed of the final adoption of any
legislation or regulation that materially impairs Xxxxxx Xxxxxxx'x ability to
license and provide the Indices under this Agreement; or (ii) any material
litigation or regulatory proceeding regarding the Products is threatened or
commenced. In the event that Xxxxxx Xxxxxxx terminates this Agreement, Licensee
shall be entitled to a pro rata refund of the license fee.
5. RIGHTS UPON TERMINATION
Upon termination of this Agreement, Licensee shall cease to use the Indices
and cease referring to the Indices and the Marks with the Products except that
the Products outstanding at such time may thereafter continue to be outstanding
and terminate, expire, and mature in accordance with their respective terms, and
the Indices and reference to the Marks may continue to be used in connection
with such Products.
6. PRODUCT PROMOTION
(a) Licensee shall use its best efforts to protect the goodwill and
reputation of Xxxxxx Xxxxxxx in connection with its use of the Indices and the
Marks under this Agreement. Licensee shall submit to Xxxxxx Xxxxxxx for its
preview and approval all advertisements, brochures, and promotional and
information material ("Informational Materials") relating to or referring to
Xxxxxx Xxxxxxx, the Indices, the Marks or the Products. Xxxxxx Xxxxxxx'x
approval shall be confined solely to the use of or description of Xxxxxx
Xxxxxxx, the Marks, and the Indices and shall not be unreasonably withheld or
delayed by Xxxxxx Xxxxxxx.
(b) Xxxxxx Xxxxxxx is not obligated to engage in any marketing or
promotional activities in connection with the Products. Nevertheless, Xxxxxx
Xxxxxxx agrees to make itself available and to respond in an informative and
factual manner to shareholder inquiries about the Indices and their composition,
as such inquiries are directed to Xxxxxx Xxxxxxx by Licensee.
(c) Licensee acknowledges and agrees that Xxxxxx Xxxxxxx, in granting the
permission contained in this
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agreement, does not express or imply any approval of the Products or of Licensee
and Licensee further agrees not to make any statement which expresses or implies
that Xxxxxx Xxxxxxx approves, endorses or consents to the promotion, marketing,
and arrangement by Licensee of the Products or that Xxxxxx Xxxxxxx makes any
judgment or expresses any opinion in respect of the Licensee.
7. PROTECTION OF VALUE OF LICENSEE
(a) Licensee shall cooperate reasonably with Xxxxxx Xxxxxxx in the
maintenance of all Xxxxxx Xxxxxxx common law and statutory rights in the Indices
and the Marks, including copyrights and other proprietary rights, and shall take
such acts and execute such instruments as are reasonably necessary and
appropriate to such purposes, including the use by the Licensee of the following
notice when referring to the Indices or the Marks in any advertisement, offering
circular, prospectus, brochure, or promotional or informational material
relating to the Products:
The MSCI Indices are the exclusive property of Xxxxxx Xxxxxxx. Xxxxxx
Xxxxxxx Capital International is a service xxxx of Xxxxxx Xxxxxxx and has
been licensed for use by Foreign Fund, Inc.
or such similar language as may be approved in advance by Xxxxxx Xxxxxxx.
(b) License shall not refer to the names of the Indices in any manner
which might cause confusion as to Xxxxxx Xxxxxxx'x responsibility for preparing
and disseminating the Indices or as to the identity of Licensee and its
relationship to the Products.
8. PROPRIETARY RIGHTS
(a) Licensee acknowledges that the Indices are selected, arranged and
prepared by Xxxxxx Xxxxxxx through the application of methods and standards of
judgment used and developed through the expenditure of considerable work, time
and money by Xxxxxx Xxxxxxx. Licensee also acknowledges that the Indices and
the Marks are the exclusive property of Xxxxxx Xxxxxxx, and the Indices and
their compilation and composition and changes therein are in the control and
discretion of Xxxxxx Xxxxxxx.
(b) Xxxxxx Xxxxxxx reserves all rights with respect to the Indices and the
Marks except those expressly licensed to Licensee hereunder.
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(c) Each party shall treat as confidential and shall not disclose or
transmit to any third party any confidential and proprietary information of the
other party, including the terms of this Agreement, provided that the
documentation or other written materials containing such information are
designated as "Confidential" or "Proprietary" by the providing party and such
information is not available generally to the public or otherwise available to
the receiving party from a source other than the providing party. Not
withstanding the foregoing, if requested or required (by interrogatories,
requests for information or documents, subpoena, or other process) either party
may reveal such information if such information to be disclosed is (i) approved
in writing by the other party for disclosure or (ii) required by law (in the
opinion of counsel), regulatory agency or court order to be disclosed by a
party, provided prior written notice of such required disclosure is given to the
other party. Except with respect to disclosure made pursuant to (i) and (ii) in
the immediately preceding sentence, each party shall treat as confidential the
terms of this Agreement. The provisions of this paragraph shall survive any
termination of this Agreement for five (5) years from disclosure by either party
to the other party of the last such confidential and proprietary information.
9. WARRANTIES; DISCLAIMERS
(a) Xxxxxx Xxxxxxx represents and warrants that Xxxxxx Xxxxxxx is the
owner of rights granted to Licensee herein and that use of the Indices as
provided herein shall not infringe any trademark, copyright, other proprietary
right, or contractual right of any person not a party to this Agreement.
(b) Licensee agrees expressly to be bound itself by and furthermore to
include all of the following disclaimers and limitations in Informational
Materials and upon request to furnish a copy (copies) thereof to Xxxxxx Xxxxxxx:
World Equity Benchmark Shares are not sponsored, endorsed, sold or
promoted by Xxxxxx Xxxxxxx. Xxxxxx Xxxxxxx makes no representation or
warranty, express or implied, to the owners of the WEBS of any Index Series
or any member of the public regarding the advisability of investing in
securities generally or in the WEBS of any Index Series particularly or the
ability of the respective MSCI Indices identified herein to track general
stock market performance. Xxxxxx Xxxxxxx is the licensor of certain
trademarks, service marks and trade names of Xxxxxx Xxxxxxx, including the
MSCI
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Indices identified herein, which are determined, composed and calculated by
Xxxxxx Xxxxxxx without regard to the WEBS of any Index Series or the issuer
thereof. Xxxxxx Xxxxxxx has no obligation to take the needs of the issuer
of the WEBS of any Index Series or the owners of the WEBS of any Index
Series into consideration in determining, composing or calculating the
respective MSCI Indices. Xxxxxx Xxxxxxx is not responsible for and has not
participated in the determination of the timing of, prices at, or
quantities of the WEBS of any Index Series to be issued or in the
determination or calculation of the equation by which the WEBS of any Index
Series are redeemable. Xxxxxx Xxxxxxx has no obligation or liability to
owners of the WEBS of any Index Series in connection with the
administration, marketing or trading of the WEBS of any Index Series.
ALTHOUGH XXXXXX XXXXXXX SHALL OBTAIN INFORMATION FOR INCLUSION IN OR
FOR USE IN THE CALCULATION OF THE INDICES FROM SOURCES WHICH XXXXXX XXXXXXX
CONSIDERS RELIABLE, XXXXXX XXXXXXX DOES NOT GUARANTEE THE ACCURACY AND/OR
THE COMPLETENESS OF THE INDICES OR ANY DATA INCLUDED THEREIN. XXXXXX
XXXXXXX MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED
BY LICENSEE, LICENSEE'S CUSTOMERS AND COUNTERPARTIES, OWNERS OF THE
PRODUCTS, OR ANY OTHER PERSON OR ENTITY FROM THE USE OF THE INDICES OR ANY
DATA INCLUDED THEREIN IN CONNECTION WITH THE RIGHTS LICENSED HEREUNDER OR
FOR ANY OTHER USE. XXXXXX XXXXXXX MAKES NO EXPRESS OR IMPLIED WARRANTIES,
AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE WITH RESPECT TO THE INDICES OR ANY DATA INCLUDED
THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL XXXXXX
XXXXXXX HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE,
CONSEQUENTIAL OR ANY OTHER DAMAGES (INCLUDING LOST PROFITS) EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) 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.
(d) Licensee represents and warrants to Xxxxxx Xxxxxxx that the Products
shall not violate any applicable laws, including but not limited to banking,
commodities and securities laws.
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(e) Neither party shall have any liability for lost profits or
consequential damages arising out of this Agreement.
(f) The provisions of this Section 9 shall survive any termination of this
Agreement.
10. INDEMNIFICATION
Licensee shall indemnify and hold harmless Xxxxxx Xxxxxxx, its parent,
subsidiaries, 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 claims or actions
brought by third parties against Xxxxxx Xxxxxxx which arise from all acts,
representations or omissions of Licensee under this Agreement or are in any
manner related to the Products; provided, however, that (a) Xxxxxx Xxxxxxx
notifies Licensee promptly of any such claim or action, and (b) such judgments,
damages, costs or losses are not attributable to any negligent act or omission
by Xxxxxx Xxxxxxx, its parent, affiliates, subsidiaries or any of their
employees or agents. Licensee shall bear all expenses in connection with the
defense and/or settlement of any such claim or action. Xxxxxx Xxxxxxx shall
have the right, at its own expense, to participate in the defense of any claim
or action 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 or action, without the written consent of Licensee. Licensee, in
the defense of any such claim, except with the written consent of Xxxxxx
Xxxxxxx, shall not consent to entry of any judgment or enter into any settlement
which (a) does not include, as an unconditional term, the grant by the claimant
to Xxxxxx Xxxxxxx of a release of all liabilities in respect of such claims or
(b) otherwise adversely affects the rights of Xxxxxx Xxxxxxx. This provision
shall survive the termination of this Agreement.
11. FORCE MAJEURE
Neither Xxxxxx Xxxxxxx 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, riot, fire,
flood, civil commotion, insurrection, labor difficulty (including, without
limitation, any strike or other work stoppage or
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slowdown), severe or adverse weather conditions or other cause beyond the
reasonable control of the party so affected, provided that such party had
exercised due diligence as the circumstances reasonably required.
12. OTHER MATTERS
(a) This Agreement is solely and exclusively between the parties as now
constituted and, unless otherwise provided, 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. Notwithstanding the foregoing, this Agreement may be
assigned without such consent to Xxxxxx Xxxxxxx'x parent or any subsidiary or
affiliate of Xxxxxx Xxxxxxx.
(b) 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.
(c) 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 of proprietary nature
of any property which is the subject of this Agreement.
(d) All notices and other communications under this Agreement shall be (i)
in writing, (ii) delivered by hand or by registered or certified mail, return
receipt requested, to the addresses set forth below or such addresses as either
party shall specify by a written notice to the other and (iii) deemed given upon
receipt.
NOTICE TO XXXXXX XXXXXXX: Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx X. Xxxxxx
and
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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ATTN: General Counsel
NOTICE TO LICENSEE: Foreign Fund, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
(e) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
XXXXXX XXXXXXX & CO. FOREIGN FUND, INC.
INCORPORATED
By:______________________ BY:_______________________
Title:___________________ Title:____________________
Name:____________________ Name:_____________________
(Printed) (Printed)
Date:____________________ Date:______________________
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EXHIBIT A
List of the Indices
Australia Index Series
Austria Index Series
Belgium Index Series
Canada Index Series
France Index Series
Germany Index Series
Hong Kong Index Series
Italy Index Series
Japan Index Series
Malaysia Index Series
Mexico (Free) Index Series
Netherlands Index Series
Singapore (Free) Index Series
Spain Index Series
Sweden Index Series
Switzerland Index Series
United Kingdom Index Series
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EXHIBIT B
Description of the Products
The Products are to be issued and traded on a public basis, in accordance with
the U.S. federal securities laws and applicable laws of other jurisdictions.
The Products shall be limited to: shares of common stock issued by various
series of Licensee, a registered open-end management investment company, which
shares shall be listed and traded on the American Stock Exchange, Inc.
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