EXHIBIT 2.2
AGREEMENT
THIS AGREEMENT, made as of this 14th day of October, 2004, by Xxxxx & Steers
Capital Management Inc. ("C&S"), a New York corporation, and Xxx Xxxxxx Funds
Inc. ("Xxx Xxxxxx"), a Delaware corporation.
W I T N E S S E T H:
WHEREAS, C&S is a registered investment adviser under the Investment
Advisers Act of 1940, as amended (the "Advisers Act"); and
WHEREAS, all proprietary rights to the service xxxx "Xxxxx & Steers"
are owned by C&S; and
WHEREAS, Xxx Xxxxxx sponsors, underwrites and distributes a wide array
of unit investment trusts ("UITs"); and
WHEREAS, Xxx Xxxxxx desires to establish one or more UITs that will
each initially invest substantially all of its assets in securities selected by
C&S in accordance with the securities selection criteria set forth in Exhibit A
attached hereto (the "Xxxxx & Steers UIT(s)").
WHEREAS, Xxx Xxxxxx, on behalf of the Xxxxx & Steers UIT(s), desires to
license the name "Xxxxx & Steers" for use in connection with the Xxxxx & Steers
UIT(s);
WHEREAS, Xxx Xxxxxx further desires the services of C&S in advising and
consulting with Xxx Xxxxxx with respect to securities selection in accordance
with the description of the securities selection criteria set forth in Exhibit A
attached hereto, and C&S's investment concerns and strategies;
WHEREAS, Xxx Xxxxxx, on behalf of the XXXXX & STEERS UIT(s), desires
the services of C&S to act as Supervisor, as defined by the trust indenture
governing a particular XXXXX & STEERS UIT, in connection with the XXXXX & STEERS
UIT(s); and
WHEREAS, C&S are willing to license the name "Xxxxx & Steers" to Xxx
Xxxxxx and the Xxxxx & Steers UIT(s) solely for use in connection with the Xxxxx
& Steers UIT(s), and C&S is willing to provide the aforesaid services to Xxx
Xxxxxx under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Grant of License.
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(a) Subject to the terms and conditions of this Agreement, C&S hereby
grants to Xxx Xxxxxx and the Xxxxx & Steers UIT(s), a license to use and refer
within the United States to the service marks "Xxxxx & Steers" (referred herein
as the "Xxxxx & Steers Property") solely in connection with the Xxxxx & Steers
UIT(s), in such manner as may be deemed to be appropriate by Xxx Xxxxxx, subject
to the prior approval of C&S, which approval shall not be unreasonably withheld.
(b) C&S covenants and agrees that no person or entity other than Xxx
Xxxxxx shall need to obtain any other license with respect to the Xxxxx & Steers
Property in connection with the initial sale of the XXXXX & STEERS UIT(s) or
subsequent resales of the XXXXX & STEERS UIT(s) in the secondary market.
(c) C&S represents and warrants that they own all proprietary rights in
and to the Xxxxx & Steers Property for use in connection with the creation and
distribution of unit investment trusts and in connection with the provision of
the services contemplated by this Agreement and have the right to license the
same to Xxx Xxxxxx and the XXXXX & STEERS UIT(s) pursuant to this Agreement.
(d) Except as otherwise specifically provided herein, C&S reserve all rights to
the Xxxxx & Steers Property, and this Agreement shall not be construed to
transfer to Xxx Xxxxxx any ownership right to, or equity interest in, any of the
Xxxxx & Steers Property.
2. Identification of Consultation on Securities.
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(a) During the period commencing on the date hereof and ending
on the Termination Date (as defined in Section 6 hereof), Xxx Xxxxxx shall
provide C&S with reasonable advance notice of the filing of each unit investment
trust registration statement (inclusive of any post-effective amendments)
pertaining to the XXXXX & STEERS UIT(s) and new series of the XXXXX & STEERS
UIT(s) ("Registration Statement") and, subject to the foregoing, C&S will
provide to Xxx Xxxxxx within ten (10) days of Xxx Xxxxxx'x written request a
list of all securities that fit within the parameters described in Exhibit A in
connection with each series of the XXXXX & STEERS UIT(s) (the "Identified
Securities"). Such Identified Securities will be deposited in the XXXXX & STEERS
UIT(s)' portfolios (the "Portfolio Securities"); provided, however, that Xxx
Xxxxxx reserves the right to modify the initial Portfolio Securities based upon
all information available to it, including, among other factors, market
capitalization and liquidity considerations, subject to the prior approval of
C&S, which approval will not be unreasonably withheld.
(b) C&S will provide Xxx Xxxxxx with information reasonably
requested by Xxx Xxxxxx about the Portfolio Securities for use by Xxx Xxxxxx in
preparing updated prospectus disclosure and marketing materials for the XXXXX &
STEERS UIT(s). C&S also agree to review and comment upon disclosure in the
Registration Statement referred to in Section 14 hereof.
(c) C&S shall periodically consult with and advise Xxx Xxxxxx regarding
the securities or methodologies used to identify those securities for inclusion
in any XXXXX & STEERS UIT at a time and place mutually agreed upon by the
parties. With the prior consent of C&S, which consent will not be unreasonably
withheld, Xxx Xxxxxx may permit others to participate in these consultations.
3. Supervision. C&S shall act as Supervisor, as defined by the trust agreement
governing the particular COHEN& STEERS UIT, in accordance with such trust
agreement. The terms of the said trust agreement are incorporated herein by
reference. In the event that any provision in this Agreement conflicts in any
way with the trust agreement governing a particular XXXXX & STEERS UIT, the
provisions of trust agreement in respect thereof shall control.
4. C&S' Services Unique. C&S and Xxx Xxxxxx agree that the services to
be performed by C&S as set forth in Sections 2 and 3 herein are unique and
may not be performed by anyone other than C&S.
5. Fees.
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(a) For the license granted pursuant to Section 1, Xxx Xxxxxx, on
behalf of each of the XXXXX & STEERS UIT(s), agrees that each XXXXX & STEERS UIT
shall pay C&S an annual fee equal to ten basis points (0.10%) of the average
daily Evaluation Price of all assets comprising such XXXXX & STEERS UIT (the
"License Fee"). The trustee of each XXXXX & STEERS UIT shall accrue such fee
daily and pay such fee to C&S in installments within fifteen (15) days following
the end of each calendar quarter during the term of such XXXXX & STEERS UIT.
"Evaluation Price" as used in this Section 5 shall mean the "current net asset
value" as defined in the Investment Company Act of 1940, as amended.
(b) For the services to be performed pursuant to Section 2, Xxx Xxxxxx
on behalf of each of the XXXXX & STEERS UIT(s), agrees that each XXXXX & STEERS
UIT shall pay C&S a fee equal to fifteen basis points (0.15%) of the aggregate
Evaluation Price of all assets comprising such UIT as of the end of the primary
offering period of each series of the XXXXX & STEERS UIT (the "Portfolio
Consultant Fee"). Such fee shall be paid by the trustee of the XXXXX & STEERS
UIT(s) to C&S within fifteen (15) days following the end of the primary offering
period of such XXXXX & STEERS UIT.
(c) For the services to be performed pursuant to Section 3, Xxx Xxxxxx
on behalf of each of the XXXXX & STEERS UIT(s), agrees that each XXXXX & STEERS
UIT shall pay C&S in accordance with the terms of the trust agreement governing
such XXXXX & STEERS UIT (the "Supervisor Fee").
6. Term. Subject to the provisions of Section 10, the term of this
Agreement shall be the earlier of five (5) years from the date first above
written or until all of the XXXXX & STEERS UIT(s) are liquidated and their legal
existences terminated ("Termination Date"). In this connection, Xxx Xxxxxx
agrees that it will not originate any XXXXX & STEERS UIT beyond the fifth
anniversary of the date first above written.
7. Exclusivity. C&S covenants and agrees that, for three (3) years from
the date first above written, neither C&S, nor anyone acting on its behalf,
shall be associated or involved with any UIT sponsor, distributor or seller in
the creation, marketing or sale of any non-exchange traded UIT within the United
States other than the XXXXX & STEERS UIT(s) or shall permit the use of any of
the Xxxxx & Steers Property in connection with the creation, marketing or
promotion of any non-exchange traded UIT within the United States other than the
XXXXX & STEERS UIT(s), except those UITs sponsored by Xxxxxx Xxxxxxx XX Inc.
Nothing contained herein shall limit the right of C&S to sponsor, create, market
or promote any investment company (as defined in Section 3(a)(1) of the
Investment Company Act of 1940, as amended, disregarding the provisions of
Sections 3(b) and 3(c) thereof), other than a UIT.
8. Assignment. None of the parties hereto may assign (including within
the meaning of the Investment Advisers Act of 1940, as amended) his or its
respective rights and obligations under this Agreement without the prior
written consent of the others.
9. Relationship of the Parties. The parties understand and agree that
this Agreement shall not be deemed to create any partnership or joint venture
between Xxx Xxxxxx and C&S, and that the services performed hereunder by C&S
shall be as an independent contractor and not as an employee or agent of Xxx
Xxxxxx. C&S shall have no authority whatsoever to bind Xxx Xxxxxx on any
agreement or obligation and C&S agrees that C&S shall not hold itself out as an
employee or agent of Xxx Xxxxxx.
10. Termination.
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(a) C&S may terminate this Agreement immediately upon a material breach
of any representation, warranty or covenant of Xxx Xxxxxx that is not remedied
within ten (10) business days after written notice.
(b) Xxx Xxxxxx may terminate this Agreement immediately upon a material
breach of any representation, warranty or covenant of C&S that is not remedied
within ten (10) business days after written notice thereof.
(c) C&S and Xxx Xxxxxx may terminate this Agreement at any time upon
the execution by all parties of a written agreement to that effect.
Any termination under Section 10(a) or ((b) shall not limit any other remedies
for breach the non-breaching parties may have at law or in equity.
Notwithstanding any provision of this Agreement to the contrary, termination of
this Agreement shall not constitute termination of any XXXXX & STEERS UIT or any
license granted hereunder to any XXXXX & STEERS UIT then in existence.
11. Confidentiality.
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(a) The parties agree that certain material and information which has
or may come into the possession or knowledge of each in connection with this
Agreement or the performance hereof (e.g., proprietary business information
(including, without limitation, the names and addresses or other personal
information of customer, distributors, information providers and suppliers)),
consists of confidential and proprietary data whose disclosure to or use by
third parties would be damaging. In addition, the parties may reasonably
designate, by notice in writing delivered to the other parties, other
information as being confidential or a trade secret.
(b) All such proprietary or confidential information of each party
hereto shall be kept secret by every other party to the degree it keeps secret
its own confidential or proprietary information. Such information belonging to
any party shall not be disclosed by another party to its employees, officers,
agents, service providers or affiliates, except on a need-to-know basis, but may
be disclosed by such other party to State, Federal, or other governmental
agencies, authorities or courts as required by law or regulation, or upon their
order or request provided prompt notice of such order or request is given by
such other party to the party to which such information belongs, if such notice
is legally permitted.
(c) No information that would otherwise be proprietary or confidential
for purposes of this Agreement pursuant to subsections (a) or (b) above shall be
subject to the restrictions on disclosure imposed by this Section in the event
and to the extent that (i) such information is in, or becomes part of, the
public domain otherwise than through the fault of a party to which such
information does not belong, (ii) such information was known to such party prior
to the execution of this Agreement, or (iii) such information was revealed to
such party by a third person, and which the receiving party reasonably believes
has been obtained by such third person not in violation of any existing
confidentiality or non-disclosure agreement.
(d) Each party acknowledges and agrees that a breach of this Section 11
would cause a permanent and irreparable damage for which money damages would be
an inadequate remedy. Therefore, each party shall be entitled to seek equitable
relief (including injunction and specific performance) in the event of any
breach of the provisions of this Section 11, in addition to all other remedies
available to such party at law or in equity.
(e) The covenants set forth in this Section 11 shall survive the
termination of this Agreement for any cause whatsoever and shall continue until
the later of (i) the third anniversary of the date of this Agreement or (ii) the
second anniversary of the date of liquidation and termination of the legal
existence of all of the XXXXX & STEERS UIT(s).
12. Covenants. During the period of this Agreement and for as long as
any of the XXXXX & STEERS UIT(s) remains outstanding, each of the parties
agree to:
(a) comply with all codes, regulations and laws applicable to the
performance of its obligations under this Agreement and obtain or have obtained
all necessary permits, licenses and other authorizations necessary for such
performance and maintain its business reputation and good standing;
(b) take such other actions as the other parties hereto may reasonably
request to more effectively carry out its obligations under this Agreement;
and
(c) do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations, including, but not by way of limitation,
obtaining all consents, approvals, and authorizations, required of such party in
connection with the consummation of the transactions contemplated by this
Agreement. No party shall take any action that would be expected to result in
any of its representations and warranties set forth in this Agreement being or
becoming untrue in any material respect.
In addition, C&S may not refer to Xxx Xxxxxx or any affiliates in any
kind of communications, whether oral, written or electronic, or otherwise, and
whether in a C&S piece or in response to questions of the media or others,
without Xxx Xxxxxx'x prior written consent.
13. Indemnification.
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(a) By Xxx Xxxxxx. In the event any claim is brought by any third party
against C&S that relates to, arises out of or is based upon the performance by
Xxx Xxxxxx of its obligations hereunder, or the failure of Xxx Xxxxxx, or any of
Xxx Xxxxxx'x affiliates, as the case may be, to comply with any law, rule or
regulation relating to the XXXXX & STEERS UIT(s), C&S shall promptly notify Xxx
Xxxxxx, and Xxx Xxxxxx shall defend such claim at Xxx Xxxxxx'x expense and under
Xxx Xxxxxx'x control. Xxx Xxxxxx shall indemnify and hold harmless C&S against
any judgment, liability, loss, cost or damage (including litigation costs and
reasonable attorneys' fees) arising from or related to such claim whether or not
such claim is successful. C&S shall have the right, at their expense, to
participate in the defense of such claim through counsel of their own choosing;
provided, however, that Xxx Xxxxxx shall not be required to pay any settlement
amount that it has not approved in advance. Notwithstanding the above, C&S shall
not be entitled to indemnification hereunder to the extent that the judgment,
liability, loss, cost or damage arising from a claim for which indemnification
is sought hereunder results directly or indirectly from the negligence or
willful misconduct of C&S, or C & S actions or inactions in connection with its
role as Supervisor.
(b) By C&S. In the event any claim is brought by any third party
against Xxx Xxxxxx, any of the XXXXX & STEERS UIT(s), or any of Xxx Xxxxxx'x
affiliates that relates to, arises out of or is based upon the performance by
C&S of their respective obligations hereunder, or the failure of C&S to comply
with any law, rule or regulation, Xxx Xxxxxx, the XXXXX & STEERS UIT(s), or Xxx
Xxxxxx'x affiliates, as the case may be, shall promptly notify C&S and C&S shall
defend such claim at its expense and under its control. C&S shall indemnify and
hold harmless Xxx Xxxxxx, the XXXXX & STEERS UIT(s), and Xxx Xxxxxx'x affiliates
against any judgment, liability, loss, cost or damage (including litigation
costs and reasonable attorneys' fees) arising from or related to such claim,
whether or not such claim is successful. Xxx Xxxxxx, the XXXXX & STEERS UIT(s),
or Xxx Xxxxxx'x affiliates, as the case may be, shall have the right, at their
expense, to participate in the defense of such claim through counsel of their
own choosing; provided, however, C&S shall not be required to pay any settlement
amount that it has not approved in advance. Notwithstanding the above, neither
Xxx Xxxxxx, the XXXXX & STEERS UIT(s), nor any of Xxx Xxxxxx'x affiliates shall
be entitled to indemnification hereunder to the extent that the judgment,
liability, loss, cost or damage arising from a claim for which indemnification
is sought hereunder results directly or indirectly from the negligence or
willful misconduct of Xxx Xxxxxx, the XXXXX & STEERS UIT(s), or Xxx Xxxxxx'x
affiliates.
(c) Survival. The indemnifications set forth in this Section 13 shall
survive the termination of this Agreement for any cause whatsoever.
14. C&S's Review of Registration Statement.
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C&S hereby acknowledges that it has reviewed and had an opportunity to
comment upon those provisions of the Registration Statement, as amended,
specifically referring to or describing C&S and the securities selection
process. For purposes of the foregoing, a draft of the Registration Statement is
attached hereto as Exhibit B
15. Arbitration and Governing Law.
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(a) Any dispute, controversy or difference which may arise among the
parties hereto out of or in connection with this Agreement or any agreement
entered into among the parties pursuant to this Agreement or any breach hereof
or thereof shall, if possible, be settled by mutual consultation in good faith
between senior executive officers of the parties having requisite decision
making authority. Such mutual consultation shall take place as soon as
practicable after the receipt by one party of a written notice from another
party describing the dispute, controversy or difference between them. Except as
provided in Paragraph 11, in the event that the dispute is not resolved to the
satisfaction of such parties by such consultation within 90 days of the written
notice given to one party pursuant to this Paragraph 15(a), either party to the
dispute may initiate the arbitration procedure set forth in Paragraph 15(b) of
this Agreement. Such arbitration shall be the exclusive method for resolving any
such unresolved disputes.
(b) Subject to Paragraph 15(a), all disputes arising in connection with
this Agreement that are not resolved as contemplated by Paragraph 15(a), shall
be finally settled under the Rules of the American Arbitration Association (the
"Rules") by one or more arbitrators appointed in accordance with the said Rules.
Such arbitration shall be held in Chicago, Illinois in accordance with the
Rules.
(c) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Illinois.
(d) An arbitration award rendered shall be final and binding upon the
parties hereto. The amount of the costs of any such arbitration and by whom
they shall be paid will be determined as part of the arbitration. Judgment
upon such arbitration award may be entered in any court having jurisdiction
over the parties or their assets.
16. Waiver of Breach. The failure of any party to require the performance
of any term of this Agreement or the waiver of any party of any breach hereunder
shall not prevent a subsequent enforcement of such term nor be deemed a waiver
of any subsequent breach.
17. Scope of Agreement. This document constitutes the entire Agreement of
the parties with respect to the subject matter hereof, supersedes all prior oral
or written agreements, and can be amended only by a writing executed by all of
the parties.
18. Notices. All notices from any party to the other pursuant to this
Agreement shall be in writing or by facsimile transmission and shall be sent to
the following addresses, or to such addresses as the parties hereto may be
notified in writing from time to time:
If to C&S:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx XxXxxxx
With copy to Office of General Counsel
If to Xxx Xxxxxx:
0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
With copy to Office of General Counsel
Notices shall be deemed given upon receipt via certified mail, overnight
courier, or hand delivery.
19. Severability. In the event that any provision of this Agreement or
application hereof to any person or in any circumstances shall be determined to
be invalid, unlawful, or unenforceable to any extent, the remainder of this
Agreement, and the application of any provision to persons or circumstances
other than those as to which it is determined to be unlawful, invalid or
enforceable, shall not be affected thereby, and each remaining provision of this
Agreement shall continue to be valid and may be enforced to the fullest extent
permitted by law.
20. Conflicts. In the event that any provision in this Agreement conflicts
in any way with the trust agreement governing a particular XXXXX & STEERS UIT,
the provisions of trust agreement in respect thereof shall control.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be
executed by a duly authorized representative thereof as of the date first above
written.
XXX XXXXXX FUNDS INC.
By:________________________________
Name: _____________________________
Title: ______________________________
XXXXX & STEERS CAPITAL MANAGEMENT INC.
By:_______________________________
Name: ____________________________
Title:______________________________
EXHIBIT A
The portfolio of each XXXXX & STEERS UIT will consist of stocks of
exchange-traded investment companies registered under the Investment Company Act
of 1940 selected in accordance with such general parameters and/or objectives as
may be reasonably requested by Xxx Xxxxxx for a particular XXXXX & STEERS UIT
and acceptable to C&S.
EXHIBIT B
REGISTRATION STATEMENT
Attached
