LICENSE AGREEMENT
Exhibit
(H)(4)
This
License Agreement (the "Agreement") is made and entered into as of
December 8, 2006 (the "Commencement Date"), by and between Archipelago
Holdings, Inc. ("ARCA"), a Delaware corporation, having an office at 000 X.
Xxxxxx Xx., Xxxxxxx, Xxxxxxxx 00000 and The Exchange Traded Trust (the
"LICENSEE" or the "Trust"), a Delaware statutory trust registered with the
Securities and Exchange Commission as an open-end investment company having
an
office at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS,
ARCA compiles, calculates, maintains and owns rights in and to the NYSE Arca
Tech 100SM
Index as
a price-weighted index and to the proprietary data therein contained (such
rights being hereinafter individually and collectively referred to as the
"Index");
WHEREAS,
ARCA uses in commerce and owns or has rights to the designation "NYSE Arca
Tech
100SM"
(the
"XXXX Xxxx");
WHEREAS,
LICENSEE wishes to establish an exchange traded fund to be known as the "NYSE
Arca Tech 100SM
ETF"
(the "Product"), which will seek to replicate the performance of the
Index;
WHEREAS,
LICENSEE wishes to use the Index and the XXXX Xxxx in connection with the
exchange trading, marketing and/or promotion of the Product and in connection
with making disclosure about the Product under applicable laws, rules and
regulations in order to describe the Product and indicate that ARCA is the
source of the Index; and
WHEREAS,
LICENSEE wishes to obtain ARCA's authorization to use the Index and the XXXX
Xxxx 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.
(a) Subject
to the terms and conditions of this Agreement, ARCA hereby grants to LICENSEE
a
nontransferable license: (i) on an exclusive basis to use the Index, including
without limitation all copyright and other proprietary rights embodied therein,
solely in connection with the Product, provided that the Product is listed
exclusively on NYSE Arca (any change of listing venue requires the prior written
consent of ARCA) and (ii) on a non-exclusive basis to use and refer to the
XXXX
Xxxx in connection with the exchange trading, marketing and promotion of the
Product and in connection with making such disclosure about the Product as
LICENSEE deems necessary or desirable under any applicable laws, rules or
regulations. LICENSEE understands and agrees that references to the XXXX Xxxx
shall be limited to the extent necessary to explain what the Index is. For
avoidance of doubt, the foregoing license shall permit LICENSEE to use and
refer
to the XXXX Xxxx in LICENSEE's general marketing materials.
1
(b) The
license granted by ARCA to LICENSEE pursuant to this Agreement shall include,
subject to the terms and conditions of this Agreement, the grant to use the
Index under any future names of the Index, provided that ARCA owns or has rights
to such future names of the Index and that no other changes have been made
to
the Index. In any event, if the Index name is changed, ARCA shall provide
LICENSEE with notice at least thirty (30) days prior to the change.
(c) It
is
expressly agreed and understood by LICENSEE that no rights to use the Index
or
the XXXX Xxxx are granted hereunder other than those specifically described
and
expressly granted herein.
(d) LICENSEE
shall incorporate the name of the Index into the name of the Product exactly
as
set forth in the definition of "Product" above. It is expressly agreed and
understood by LICENSEE that LICENSEE shall have no right to change the name
of
the Product except as may be required in the event of an Index Name Change
as
defined in Section 2(a) below. If LICENSEE changes the name of the Product
in
any other event, this Agreement shall automatically terminate in accordance
with
Section 5(f) herein. Further, except to the extent required to do so by
applicable law, rule or regulation, LICENSEE shall not make any written
reference to the Trust Name or the names "Xxxxxxx" or "North Track," or any
derivations thereof, directly preceding the Product Name. Any such written
reference by LICENSEE shall constitute a change in the name of the Product,
triggering automatic termination in accordance with Section 5(f) herein.
For the avoidance of doubt, LICENSEE may state the name of the Product first,
and then state that the Product is a series of the Trust.
(e) LICENSEE
shall not be required to obtain any additional licenses with respect to the
Index.
(f) LICENSEE
agrees that its marketing materials will not be critical of or cast in a
negative light ARCA or any of its affiliates, the Index, or the XXXX
Xxxx.
2. Changes
in Index Name, Trust Name and Investment Adviser.
(a) LICENSEE
agrees that should ARCA change the name of the Index during the term of this
Agreement (an "Index Name Change"), within the later date of 30 days after
receiving notice from ARCA of the Index Name Change or the date on which the
Index Name Change becomes effective, LICENSEE shall be obligated to (i) change,
or cause the name of the Product to change to reflect the new name of the Index;
(ii) make, give or obtain all required or necessary regulatory filings, notices
or approvals regarding the Index Name Change; (iii) cease using the former
name
of the Index or any trademarks or service marks relating to the former name
of
the Index in conjunction with the Index or the Product; and (iv) no longer
use
or circulate any written materials, including marketing materials, regulatory
filings and documentation referring to the Index or the Product (collectively
"Documents"), employing the former name. Notwithstanding the foregoing, it
is
expressly understood that, after an Index Name Change, LICENSEE may use such
Documents as it holds in its inventory at the time the Index Name Change becomes
effective in connection with the Product until it can obtain replacement
Documents for the Product that use the new name, provided
that,
all
such Documents must clearly and conspicuously indicate (and wherever else as
may
be required by any applicable laws, rules or regulations) that the names of
the
Index and the Product have changed and the new names of the Index and the
Product. LICENSEE undertakes to use commercially reasonable efforts to promptly
obtain such replacement Documents upon the effectiveness of an Index Name
Change.
2
(b) In
the
event that LICENSEE desires to change the name of the Trust (a "Trust Name
Change"), LICENSEE shall obtain the prior written consent of ARCA, which may
be
withheld in ARCA's sole discretion. If ARCA grants prior written consent of
a
Trust Name Change, and LICENSEE effects the Trust Name Change, all of the terms
and conditions of the Agreement shall continue in full force and effect. If
LICENSEE effects a Trust Name Change without obtaining the prior written consent
of ARCA, ARCA shall have the right to terminate this Agreement immediately
upon
written notice to LICENSEE as provided in Section 5(f) herein.
Notwithstanding
the foregoing, the parties acknowledge that LICENSEE has chosen a generic name
for the Trust, and that LICENSEE may wish in the future to change the name
of
the Trust to incorporate either of the names "Xxxxxxx" or "North Track" or
derivations thereof. ARCA hereby grants its prior approval to a Trust Name
Change made by LICENSEE solely for this purpose, and agrees that LICENSEE shall
have no obligation to seek further approval from ARCA prior to implementing
such
Trust Name Change.
(c) In
the
event that LICENSEE determines to change the investment adviser to the Product
to an individual or entity other than Xxxxxxx Capital Management, LLC or one
of
its affiliates (an "Investment Adviser Change"), LICENSEE shall provide written
notice to ARCA at least ninety (90) days prior to the anticipated date of such
Investment Adviser Change, such notice to include the identity and other
relevant information about the proposed new investment adviser reasonably
necessary for ARCA to make an informed decision regarding its willingness to
have this Agreement continue in effect following the proposed Investment Adviser
Change. If, during the notice period, ARCA assents in writing to the
continuation of this Agreement and the Investment Adviser Change is completed,
then the terms and conditions of this Agreement shall continue in full force
and
effect following the Investment Adviser Change. If LICENSEE effects an
Investment Adviser Change without first obtaining such a written assent from
ARCA, or if ARCA submits a written objection to a proposed Investment Adviser
Change of which it has received notice from LICENSEE and the Investment Adviser
Change nonetheless is completed, then ARCA shall have the right to terminate
this Agreement immediately upon written notice to LICENSEE as provided in
Section 5(f) herein.
3. Term.
Unless
terminated earlier in accordance with the terms hereof, the term of this
Agreement shall commence on the Commencement Date and shall continue until
the
fifth anniversary of the Commencement Date and thereafter for additional one
year periods until terminated by notice given by either party at least one
hundred eighty (180) days prior to the end of any term as provided in Section
5(g) herein.
4. License
Fees.
(a) LICENSEE
shall pay to ARCA the license fees ("License Fees") specified 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, ARCA or its agent 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 ARCA
unless it is determined that ARCA has been underpaid by the greater of five
percent (5%) or $10,000; in such case, costs of the audit shall be paid by
LICENSEE.
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5. Termination.
(a) Beginning
one (1) year after the date on which operations of the Product are commenced,
if
the assets under management of the Product fall below $50 million ARCA may,
upon ninety (90) days written notice to LICENSEE, terminate the license granted
under Section 1(a) of this Agreement or, at its option, instead convert
that license to a non-exclusive license, thereby permitting NYSE Arca to grant
licenses identical or similar to the license granted herein to other exchange
traded funds seeking to replicate the performance of the Index. Said termination
or license conversion, as the case may be, shall become effective on the date
specified therein.
(b) At
any
time during the term of this Agreement, either party may give the other sixty
(60) days' prior written notice of termination if a party believes in good
faith
that 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. ARCA acknowledges
that the Product is not required to invest its assets so as to meet any
specified coefficient of correlation to the Index. Nevertheless, the parties
acknowledge and agree that in the event that such correlation falls below
average industry standards, as determined in ARCA's sole discretion, such event
will be deemed to be harming the reputation of ARCA, and ARCA may therefore
terminate this Agreement under this subsection (b).
(c) 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 sixty
(60)
days' prior written notice of its intent to terminate, and such notice shall
be
effective on the date specified therein of such termination unless the breaching
party shall correct such breach within the notice period.
(d) ARCA
may
terminate this Agreement upon sixty (60) days' prior written notice to LICENSEE
if (i) ARCA is informed of the final adoption of any legislation or regulation
or the issuance of any interpretation that in ARCA's reasonable judgment
materially impairs ARCA's ability to license and provide the Index and XXXX
Xxxx
under this Agreement in connection with the Product; or (ii) any litigation
or
regulatory proceeding regarding the Product is commenced and ARCA reasonably
believes that such litigation or proceeding would have a material and adverse
effect upon the XXXX Xxxx and Index or upon the ability of ARCA to perform under
this Agreement.
(e) ARCA
shall have the right, in its sole discretion, to cease compilation and
publication of the Index and, in such event, to terminate this Agreement. In
the
event that ARCA intends to cease compiling and publishing the Index, ARCA shall
give LICENSEE at least ninety (90) days written notice prior to such
discontinuance. LICENSEE's obligations to make any further license fee payments
to ARCA hereunder with respect to the discontinued Index shall terminate as
of
the effective date of the termination of the Index, provided, however, that
LICENSEE shall remain obligated to pay any license fee payments to ARCA that
were incurred prior to such effective date.
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(f) If
LICENSEE changes the name of the Product in violation of Section 1(d) herein,
this Agreement shall automatically terminate. If LICENSEE effects a Trust Name
Change without obtaining ARCA's prior written consent pursuant to Section 2(b),
or if LICENSEE effects an Investment Adviser Change without first obtaining
ARCA's assent to the continuation of this Agreement pursuant to Section 2(c),
ARCA may terminate this Agreement immediately upon written notice to
LICENSEE.
(g) Either
party may terminate this Agreement upon written notice to the other party one
hundred eighty (180) days prior to the end of any term as provided in Section
3
herein.
(h) Upon
termination of this Agreement, LICENSEE shall cease using the Index and the
XXXX
Xxxx in connection therewith and, in the event termination is pursuant to
Section 5(a) hereof, LICENSEE also shall cease marketing, selling and
listing the Product for trading on organized securities markets.
6. ARCA's
Obligations.
(a) ARCA
is
no way obliged to engage in any marketing or promotional activities in
connection with the Index or the Product or in making any representation or
statement to investors or prospective investors in connection with the promotion
by LICENSEE of the Product.
(b) ARCA
agrees to provide reasonable support for LICENSEE's development and educational
efforts with respect to the Product by responding in a timely fashion to any
requests for information by LICENSEE regarding the Index and/or the XXXX
Xxxx.
(c) ARCA
or
its agent shall use commercially reasonable efforts to calculate and disseminate
the Index at least once each fifteen (15) seconds on each business day the
New
York Stock Exchange is open for Business in accordance with its current
procedures, which procedures may be modified by ARCA.
(d) ARCA
shall promptly correct or instruct its agent to correct any mathematical errors
made in the computations of the Index which are brought to ARCA's attention
by
LICENSEE, provided that nothing in this Section 6 shall give LICENSEE the right
to exercise any judgment or require any changes with respect to ARCA's methods
of composing, calculating or determining the Index and provided that nothing
herein shall be deemed to modify the provisions of Section 9 of this Agreement.
ARCA absolutely reserves all rights to change the composition of the stocks
making up the Index, and to change the methods by which the Index is computed.
During the term of this Agreement, ARCA will make prompt announcements of any
changes it makes in the stocks included in the Index and any change it makes
in
the method of calculating the Index.
7. Informational
Materials Review.
LICENSEE
shall use its best reasonable efforts to protect the goodwill and reputation
of
ARCA, the Index and the XXXX Xxxx in connection with its use of such Index
and
XXXX Xxxx under this Agreement. LICENSEE shall submit to ARCA for its review
all
SEC filings, prospectuses, registration statements, advertisements, brochures
and promotional and any other similar informational materials (including any
documents required to be filed with governmental or regulatory agencies)
relating to the Product that in any way use or refer to ARCA, the Index or
the
XXXX Xxxx (the "Informational Materials"). ARCA's approval shall be required
only with respect to the use of and description of ARCA, the XXXX Xxxx, and
the
Index in any Informational Material. LICENSEE shall use the Index and the XXXX
Xxxx in accordance with the disclaimer set forth in Section 8(b) of this
Agreement, which ARCA may change in its sole discretion at any time upon
reasonable written notice to LICENSEE. ARCA shall exercise commercially
reasonable efforts to complete its review in a timely fashion. Once
Informational Materials have been approved by ARCA, subsequent Informational
Materials which do not alter the use or description of ARCA, XXXX Xxxx or the
Index need not be submitted for review and approval by ARCA.
5
8. Protection
of Value of License.
(a) During
the term of this Agreement, ARCA or its affiliates shall use commercially
reasonable efforts to maintain in full force and effect all federal and state
registrations of the XXXX Xxxx. ARCA or its affiliates shall at their own
expense and sole discretion exercise their common law and statutory rights
against infringement of the Index, the XXXX Xxxx, copyrights and other
proprietary rights insofar as such infringement conflicts with or impairs
LICENSEE'S rights and privileges hereunder.
(b) LICENSEE
shall cooperate with ARCA and its affiliates in the maintenance of such rights
and registrations and shall take such actions and execute such instruments
as
ARCA or its affiliates may from time to time reasonably request, including
the
use by LICENSEE of the following proprietary notice when referring to the Index
or the XXXX Xxxx in any Informational Material relating to the
Product:
"NYSE
Arca Tech 100SM"
is a
service xxxx of the NYSE Group, Inc. ("NYSE") and Archipelago Holdings, Inc.
("Archipelago") and has been licensed for use by The Exchange Traded Trust
(the
"Trust"). Neither the Trust nor the Fund is sponsored, endorsed, sold or
promoted by NYSE or Archipelago. Neither NYSE nor Archipelago makes any
representation or warranty regarding the Trust or the Fund or the ability of
the
NYSE Arca Tech 100SM
Index to
track general stock market performance."
or
such
similar language as may be approved in advance in writing by ARCA.
9. Proprietary
Rights.
(a) LICENSEE
acknowledges that the Index is selected, coordinated, arranged and prepared
by
ARCA through the application of methods and standards of judgment used and
developed through the expenditure of considerable work, time and money by ARCA.
LICENSEE also acknowledges that the Index and the XXXX Xxxx are the exclusive
property of ARCA and its affiliates, that ARCA and its affiliates have and
retain all proprietary rights therein (including, but not limited to service
xxxx rights and copyrights) and that the Index and its compilation and
composition and changes therein are in the sole control and discretion of ARCA
and its affiliates.
6
(b) ARCA
and
its affiliates reserve all rights with respect to the Index and the XXXX Xxxx
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") or that would otherwise be considered to be confidential due
to
their proprietary business nature. Confidential Information shall not include
(i) any information that is or becomes 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 confidentially agreement with regard to
such information) or (ii) any information that is independently developed
by the 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 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
Section 9(c) shall survive any termination of this Agreement.
(d) LICENSEE
acknowledges that each of the Index and the XXXX Xxxx possess a special, unique
and extraordinary character which makes difficult the assessment of the monetary
damage which ARCA or its affiliates would sustain as a result of the
unauthorized use of the Index or the XXXX Xxxx. LICENSEE further acknowledges
that its breach of any of the provisions of this Agreement relating to its
use
of the Index and the XXXX Xxxx will cause immediate and irreparable damage
to
ARCA and its affiliates for which ARCA and its affiliates would not have an
adequate remedy at law. Therefore, LICENSEE agrees that, in the event of such
a
breach of this Agreement by LICENSEE, in addition to such other legal and
equitable rights and remedies as may be available to ARCA, ARCA shall be
entitled to injunctive and other equitable relief, without the necessity of
proving damages or furnishing a bond or other security.
10. Warranties;
Disclaimers.
(a) ARCA
represents and warrants that ARCA is the owner of 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) LICENSEE
agrees expressly to be bound by and furthermore to include the following
disclaimers and limitations in any contracts executed or renewed with selling
dealers, authorized participant agreements, third-party selling agreements,
platform agreements, any agreements involving investors, any agreements related
to the sales and marketing of the Fund, shareholder reports, and white papers
relating to the Product and upon reasonable request to furnish a copy (copies)
thereof to ARCA:
"Neither
the Trust nor the Fund is sponsored, endorsed, sold or promoted by NYSE Group,
Inc. ("NYSE") or Archipelago Holdings, Inc. ("Archipelago"). Neither NYSE nor
Archipelago makes any representation or warranty regarding the advisability
of
investing in securities generally, in the Fund particularly, or the ability
of
the NYSE Arca Tech 100SM
Index to
track general stock market performance.
7
NEITHER
NYSE NOR ARCHIPELAGO MAKES ANY EXPRESS OR IMPLIED WARRANTIES, AND HEREBY
EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE NYSE ARCA TECH 100SM
INDEX OR
ANY DATA INCLUDED THEREIN. IN NO EVENT SHALL NYSE OR ARCHIPELAGO 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 ARCA.
(c) Each
party represents and warrants to the other that it has the authority to enter
into this Agreement according to its terms and its performance does not violate
any laws, regulations or agreements applicable to it.
(d) LICENSEE
represents and warrants to ARCA that the Product shall at all times comply
with
the description in Exhibit A.
If the
description of the Product provided in Exhibit A
shall
change, LICENSEE shall provide ARCA with written notice of such change and
a
description of such change at least forty-five (45) days prior to such
change.
(e) LICENSEE
represents and warrants to ARCA that the Product shall not violate any
applicable law, including but not limited to banking, commodities and securities
laws.
(f) LICENSEE
shall use its commercially reasonable efforts to protect the goodwill and
reputation of ARCA, the Index and the XXXX Xxxx in connection with LICENSEE's
use of the Index and the XXXX Xxxx under this Agreement.
(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 10(b) and excluding any indemnification obligations
hereunder, in no event shall the cumulative liability of either party to the
other under this Agreement exceed the greater of three times the average annual
license fees actually paid to ARCA hereunder or $750,000.
(h) The
provisions of this Section 10 shall survive any termination of this
Agreement.
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11. Indemnification.
(a) LICENSEE
shall indemnify and hold harmless ARCA, 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 (i) any breach by LICENSEE or its agent of any of its
obligations, representations or warranties under this Agreement, except insofar
as it relates to a material breach by ARCA of its obligations, representations
or warranties hereunder, or (ii) the Product, except insofar as the claim,
action or proceeding alleges that the Index or the XXXX Xxxx licensed hereunder
violates or infringes any U.S. patent, trademark, copyright, license, or other
proprietary right of any third party; provided, however, in any case that
(A) ARCA notifies LICENSEE promptly of any such claim, action, or
proceeding; (B) ARCA grants LICENSEE control of its defense and/or
settlement; and (C) ARCA cooperates with LICENSEE in defense thereof.
LICENSEE shall periodically reimburse ARCA for its reasonable expenses incurred
under this Section 11(a). ARCA 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 ARCA, shall not consent to entry
of any judgment or enter into any settlement which either (x) does not
include, as an unconditional term, the grant by the claimant to ARCA of a
release of all liabilities in respect of such claims or (y) otherwise
adversely affects the rights of ARCA. This provision shall survive the
termination or expiration of this Agreement.
(b) ARCA
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 ARCA or its agent of any of its obligations,
representations or warranties under this Agreement, except insofar as it relates
to a material breach by LICENSEE of its obligations, representations or
warranties hereunder; provided, however, in any case that (A) LICENSEE
notifies ARCA promptly of any such claim, action, or proceeding;
(B) LICENSEE grants ARCA control of its defense and/or settlement; and
(C) LICENSEE cooperates with ARCA in the defense thereof. ARCA shall
periodically reimburse LICENSEE for its reasonable expenses incurred under
this
Section 11(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 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 ARCA without waiving the indemnity
hereunder. ARCA, 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 (x) 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 (y) otherwise adversely affects
the rights of LICENSEE. This provision shall survive the termination or
expiration of this Agreement.
12. Suspension
of Performance.
Neither
ARCA 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 or governmental
authority, act of the public enemy or due to war, the outbreak 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.
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13. Other
Matters.
(a) The
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) 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 or 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, 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. Notice shall be deemed given upon receipt when
delivered by hand or facsimile or five days after mailing as described
above.
|
Notice
to ARCA:
|
NYSE Group, Inc.
00
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxxxx
Facsimile:
(000) 000-0000
and
NYSE
Group, Inc.
00
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Office of the General Counsel
Facsimile:
(000) 000-0000
|
|
| Notice to LICENSEE: | The Exchange Traded Trust
000
Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxx
Facsimile:
(000) 000-0000
|
10
| and
Xxxxxxx
& Xxxxx LLP
000
Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxxx X. Xxxxx
Facsimile:
(000) 000-0000
|
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.
|
ARCHIPELAGO
HOLDINGS, INC.
|
||
| |
|
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| By: | /s/ Xxxx Xxxxxxx | |
|
Name:
|
Xxxx Xxxxxxx
|
|
|
(Please Print) |
||
| Title: | Executive Vice President | |
|
THE
EXCHANGE TRADED TRUST
|
||
| |
|
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| By: | /s/ Xxxxx X. Xxxxxx | |
|
Name:
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Xxxxx X. Xxxxxx
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(Please Print) |
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| Title: | President | |
11
EXHIBIT
A
Description
of the Product
The
Product seeks a total return, before operating expenses of the Product are
deducted, that replicates the total return of the Index. The Product seeks
to
achieve its objective primarily by investing in substantially all of the
component securities included in the Index in approximately the same proportions
as they are represented in the Index. However, the Product is not required
to
invest its assets so as to meet any specified coefficient of correlation to
the
Index. The Product will maintain at least 90% of its net assets in the
securities that comprise the Index, except that the percentage of its assets
so
invested (and in any event for a period of not more than five trading days)
may
temporarily fall below the 90% xxxx if the Product receives cash inflows that
it
cannot invest immediately in securities that replicate the Index.
From
time
to time, up to 5% of the Product's total assets may be held in cash, cash
equivalents or certain short-term, fixed-income securities. These investments
will not perform the same as the Index. In order to achieve performance that
more closely replicates the performance of the Index, the Product may invest
up
to 10% of its total assets in exchange-traded index futures contracts and index
options. The Product is more specifically described in the currently effective
Product prospectus.
A-1
EXHIBIT
B
License
Fees
LICENSEE
shall pay ARCA License Fees as follows:
LICENSEE
shall not be obligated to pay any License Fees until the sooner to occur of:
(i) the assets under management of the Product reach $60 million on any
given day or (ii) 365 days after the date on which the Product commences
trading on NYSE Arca.
Upon
the
occurrence of the first of the events listed above, LICENSEE shall pay the
following fees: six (6) basis points on the average daily assets under
management of the Product. The License Fees shall be paid to ARCA 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.
B-1
