CONFIDENTIAL
XXXXXX XXXXXXX
LICENSE AGREEMENT
AGREEMENT, dated as of _____________ ____, 19__, by and between XXXXXX
XXXXXXX & CO. INCORPORATED ("Xxxxxx Xxxxxxx"), a Delaware corporation, having an
office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Warburg, Xxxxxx Managed
EAFE[R] Countries Fund, Inc. ("Licensee"), a Maryland corporation, having an
office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, Xxxxxx Xxxxxxx is an international investment banking and
brokerage firm which owns rights in and to certain stock indexes and the
proprietary data contained therein, among which is the Xxxxxx Xxxxxxx Europe,
Australasia, Far East (EAFE)[R] Index (such index and data contained therein
are hereinafter referred to as the "Index");
WHEREAS, Xxxxxx Xxxxxxx uses in commerce and owns trade name, trademark
and service xxxx rights to the designations "Xxxxxx Xxxxxxx" and "Xxxxxx Xxxxxxx
EAFE[R] Index" (such rights are hereinafter individually and collectively
referred to as the "Marks");
WHEREAS, Licensee wishes to use the Index as the description of the
product described in Exhibit A, annexed hereto and made a part hereof (the
"Product"), to be issued and traded as shares in a registered investment
company;
WHEREAS, Licensee wishes to use the Index and Marks in connection with
describing, trading, marketing and promotion of the Product as a registered
investment company and in connection with making disclosure about the Product
under applicable laws, rules and regulations in order to indicate that Xxxxxx
Xxxxxxx is the source of the Index; and
WHEREAS, Licensee wishes to obtain Xxxxxx Xxxxxxx'x authorization to
use the Index and refer to the Index and the 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
Subject to the terms and conditions of this Agreement, Xxxxxx Xxxxxxx
grants to Licensee a non-transferable, non-exclusive, license (i) to use the
Index as the description of the Product (in accord with the restrictions, if
any, set forth in Exhibit A), and (ii) to use and refer to the Index and the
Marks in connection with the describing, trading, marketing and promotion of the
Product (in accord with the restrictions, if any, set forth in Exhibit A) and in
connection with making such disclosure about the Product as Licensee deems
necessary or desirable under any applicable laws, rules or regulations in order
to indicate the source of the Index. The license granted in this Agreement may
be exercised by Licensee through its agents provided Licensee causes all such
agents to abide by the terms and conditions of this Agreement.
2. Term
The term of the license granted hereunder shall commence on the date
that the post-effective amendment of the Licensee's registration statement on
Form N-1A is declared effective by the Securities and Exchange Commission and
shall continue for as long as the Licensee is in operation, unless earlier
terminated by the parties in accordance with paragraph 4 of this Agreement.
Licensee shall promptly notify Xxxxxx Xxxxxxx upon such amendment's
effectiveness.
3. Licensee Fees
Beginning September 18, 1998, Licensee shall pay to Xxxxxx Xxxxxxx a
license fee of $4,000 per year with respect to unlimited use of the Index and
the Marks for the Product.
4. Termination
(a) At any time during the term of this Agreement, either party may
give the other party ninety (90) 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, excluding breach as described in 4(a), the
other party may terminate this Agreement by giving ninety (90) days' prior
written notice of its intent to terminate, and such notice shall be effective on
the date of such
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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 the Index and, in the event that the Index
is discontinued, either party shall have the right to terminate this Agreement
if Xxxxxx Xxxxxxx does not offer a replacement or substitute index acceptable to
Licensee. In the event that Xxxxxx Xxxxxxx intends to discontinue the Index,
Xxxxxx Xxxxxxx shall give Licensee at least one hundred eighty (180) days'
written prior notice 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 or substitute index under the terms of this Agreement. In the event
that the Index 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 describe, market or
promote the Product; (ii) any material litigation or regulatory proceeding
regarding the Product is threatened or commences; or (iii) Licensee ceases to
use or refer to the Index or the Marks in connection with the Product. In the
event of termination under subsections (i) or (ii) hereof, Licensee shall be
entitled to a pro rata refund of the license fee.
(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 Index under this Agreement; or (ii) any material
litigation or regulatory proceeding regarding the Product relating to the use of
the Index or the Marks 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
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Upon termination of this Agreement, Licensee shall cease to use the
Index and cease referring to the Index and the Marks with the Product.
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 Index and the
Marks under this Agreement. Licensee shall submit to Xxxxxx Xxxxxxx for its
preview and approval all written advertisements, brochures, and promotional and
information material ("Informational Materials") relating to or referring to
Xxxxxx Xxxxxxx, the Index, the Marks or the Product. Xxxxxx Xxxxxxx'x approval
shall be confined solely to the use of or description of Xxxxxx Xxxxxxx, the
Marks, and the Index and shall not be unreasonably withheld or delayed by Xxxxxx
Xxxxxxx. All Informational Materials shall be submitted to Xxxxxx Xxxxxxx ten
(10) days prior to any dissemination by Licensee of such materials. If no
response from Xxxxxx Xxxxxxx is received by Licensee within such ten (10) day
period, the Informational Materials submitted shall be deemed to be approved by
Xxxxxx Xxxxxxx. Licensee shall not be required to submit to Xxxxxx Xxxxxxx any
Informational Materials that are substantially similar in substance, as
determined in Licensee's reasonable discretion, to information materials
previously reviewed and approved by Xxxxxx Xxxxxxx.
(b) Xxxxxx Xxxxxxx is not obligated 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) Licensee acknowledges and agrees that Xxxxxx Xxxxxxx, in granting
the permission contained in this Agreement, does not express or imply any
approval of the Product or of Licensee and Licensee further agrees not to make
any statement which expresses or implies that Xxxxxx Xxxxxxx approves, endorses
and consents to the promotion, marketing, and arrangement by Licensee of the
Product or that Xxxxxx Xxxxxxx makes any judgment or expresses any opinion in
respect of the Licensee.
7. Protection Of Value By Licensee
(a) Licensee shall cooperate reasonably with Xxxxxx Xxxxxxx in the
maintenance of all Xxxxxx Xxxxxxx common law and statutory rights in the Index
and the Marks, including copyrights and other proprietary rights, and shall, at
Xxxxxx Xxxxxxx'x expense, take such acts and execute such instruments as are
reasonably necessary and appropriate to such purposes, including the use by
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the Licensee of the following notice when referring to the Index or the Marks in
any advertisement, offering circular, prospectus, brochure, or promotional or
informational material relating to the Product:
The Xxxxxx Xxxxxxx EAFE[R] Index is the exclusive property of Xxxxxx
Xxxxxxx. Xxxxxx Xxxxxxx EAFE[R] Index is a service xxxx of Xxxxxx
Xxxxxxx, Xxxx Xxxxxx, Discover & Co. and has been licensed for use by
Warburg, Xxxxxx Managed EAFE[R] Countries Fund, Inc. Capital
International S.A., an international investment management company
fully owned by The Capital Group Companies, Inc. of Los Angeles, has
full responsibility for the management and maintenance of the Xxxxxx
Xxxxxxx EAFE[R] Index. Xxxxxx Xxxxxxx has no responsibility for, or
influence over, the decisions of inclusion or deletion within the
Xxxxxx Xxxxxxx EAFE[R] Index.
or such similar language as may be approved in advance by Xxxxxx Xxxxxxx.
(b) Licensee shall not refer to the names of the Index in any manner
which might cause confusion as to Xxxxxx Xxxxxxx'x responsibility for preparing
and disseminating the Index or as to the identity of Licensee and its
relationship to the Product.
8. Proprietary Rights
(a) Licensee acknowledges that the Index is 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 Index and the
Marks are the exclusive property of Xxxxxx Xxxxxxx.
(b) Xxxxxx Xxxxxxx reserves all rights with respect to the Index and
the 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 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.
Notwithstanding the foregoing, if requested or required (by interrogatories,
requests for information or
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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 Index and the
Marks 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 any contract(s)
relating to the Product, including, without limitation, agreements with
subscribers to the Product, and upon request to furnish a copy (copies) thereof
to Xxxxxx Xxxxxxx:
Warburg, Xxxxxx Managed EAFE(R) Countries Fund (the
"Fund") is not sponsored, endorsed, sold or promoted by Xxxxxx
Xxxxxxx. Xxxxxx Xxxxxxx makes no representation or warranty,
express or implied, to the owners of the Fund or any member of
the public regarding the advisability of investing in
securities generally or in the Fund particularly or the
ability of the Xxxxxx Xxxxxxx EAFE(R) Index to track general
stock market performance. Xxxxxx Xxxxxxx is the licensor of
certain trademarks, service marks and trade names of Xxxxxx
Xxxxxxx and of the Xxxxxx Xxxxxxx EAFE(R) Index. Xxxxxx
Xxxxxxx has no obligation to take the needs of the issuer of
the Fund or the owners of the Fund into consideration in
determining, composing or calculating the Xxxxxx Xxxxxxx
EAFE(R) Index. Xxxxxx Xxxxxxx is not responsible for and has
not participated in the determination of the timing of, prices
at, or quantities of the Fund to be issued or in the
determination or calculation of the equation by which the Fund
is redeemable for cash. Xxxxxx Xxxxxxx has no obligation or
liability to owners of the Fund in
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connection with the administration, marketing or trading of
the Fund.
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 INDEX
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 Product
shall not violate any applicable laws, including but not limited to banking,
commodities and securities laws.
(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
(a) 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 Product; 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
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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.
(b) Xxxxxx Xxxxxxx agrees to indemnify and hold harmless Licensee and
its directors, officers, 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
Licensee arising out of any claim that Xxxxxx Xxxxxxx does not possess all
rights necessary to make the Index and the Marks available to Licensee. Xxxxxx
Xxxxxxx shall bear all expenses in connection with the defense and/or settlement
or any such claim or action. Licensee 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 Xxxxxx Xxxxxxx. Xxxxxx Xxxxxxx, in the defense of
any such claim, except with the written consent of Licensee, 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 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 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 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
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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 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 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.
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Notice to Xxxxxx Xxxxxxx: Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
and
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Notice to Licensee: Warburg, Xxxxxx Managed EAFE(R)
Countries Fund, Inc.
c/o Warburg Pincus Asset
Management, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
and
Warburg, Xxxxxx Managed EAFE(R) Countries
Fund, Inc.
c/o Warburg Pincus Asset Management, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
(e) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York without regard to its conflict
of laws principles.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first set forth above.
XXXXXX XXXXXXX & CO. WARBURG, XXXXXX MANAGED EAFE(R)
INCORPORATED COUNTRIES FUND, INC.
By: By:
Title: Title:
Name: Name:
{Printed} {Printed}
Date: Date:
10
EXHIBIT A
Description of Product
Warburg, Xxxxxx Managed EAFE(R) Countries Fund, Inc. (the "Fund") is a
Maryland corporation and an open-end registered investment company. The Fund
seeks long-term capital appreciation by investing primarily in equity securities
of issuers, which are located in the foreign countries included in the Xxxxxx
Xxxxxxx Capital International EAFE(R) Index (the "EAFE(R) Index"). The Fund is
not an index fund and will not seek to match the performance or country or
industry weightings of the EAFE(R) Index.
