Exhibit 2.2
AGREEMENT FOR NASDAQ-100(R) INDEX-RELATED DERIVATIVE PRODUCTS
THIS AGREEMENT, is made by and between The Nasdaq Stock Market, Inc.
("Nasdaq"), a Delaware corporation which is a subsidiary of the National
Association of Securities Dealers, Inc. ("NASD") (NASD with its subsidiaries are
collectively referred to as the "Corporations"), whose principal offices are
located at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 and Xxx Xxxxxx Funds
Inc., on behalf of Derivative Products described herein ("Licensee"), whose
principal offices are located at 0 Xxxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxx
Xxxxxxx, XX 00000.
WHEREAS, Nasdaq possesses certain rights in the NASDAQ-100(R)INDEX ("Index");
and
WHEREAS, Nasdaq possesses certain rights to Nasdaq(R), Nasdaq-100(R), and
Nasdaq-100(R) Index as trade names, trademarks or service marks ("Marks"); and
WHEREAS, Nasdaq determines the components of the Index, calculates,
maintains, and disseminates the Index: and
WHEREAS, Licensee desires to use and Nasdaq desires to license the right to
use the Index as a basis of the unit investment trusts or other products
described in Attachment II ("Derivative Products") to be traded, sponsored,
marketed and distributed on a public basis by Licensee or its authorized
affiliates and use the Marks solely in materials relating or referring to the
Derivative Products; and
WHEREAS, Licensee is legally authorized to sponsor and distribute such
Derivative Products, and each Derivative Product will be sponsored and
distributed as legally required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, Licensee and Nasdaq, intending to be legally bound,
agree as follows:
SECTION 1. TERM AND LIFE OF AGREEMENT.
Section 1.1. The Term of this Agreement for a particular Derivative Product
is that stated for that Derivative Product in Attachment II. In the absence of a
statement there, the Term for that Derivative Product is the period from the
Effective Date stated in Attachment II (if none is stated, the date signed by
Nasdaq) until the end of one year therefrom; thereafter, the Term of this
Agreement shall renew for subsequent one year terms, unless either party gives
Notice to the other at least 90 days before the end of the present Term, or
otherwise terminates the Term of this Agreement as provided herein.
Section 1.2. The Life of this Agreement for a particular Derivative Product
is that stated for that Derivative Product in Attachment II. In the absence of a
statement there, the Life for that Derivative Product is until one year after
the date of the expiration or cancellation of the last of that Derivative
Product established under this Agreement.
SECTION 2. SCOPE OF LICENSE.
Nasdaq hereby grants Licensee a non-exclusive, nontransferable and
non-sub-licensable (except as provided herein) license to use the Index as a
basis of the Derivative Products which are established by Licensee during the
Term of this Agreement. Nasdaq further grants Licensee the right to use the
Marks solely in materials referring or relating to the Derivative Products
during the Life of this Agreement. No license is granted to use the Index or
Marks for any other use, including as part of a news service or for collateral
products, without the Consent of Nasdaq. During the Life of this Agreement, no
further Consent of Nasdaq need be obtained for use of the Index or Marks by any
syndicator or underwriter of a Derivative Product offering, or for any secondary
or other resale of that Derivative Product, provided such secondary or other
resale, syndication, or underwriting is legal under applicable law.
SECTION 3. FEES.
Licensee shall pay Nasdaq the fees specified in Attachment II ("Fees"), in
immediately available United States funds. Where there are Annual Fees, such are
due as of the effective date of this Agreement, or by the beginning date of any
subsequent Term. Fees established as due by a particular date, are due by that
date. All other Fees are due within 30 days of the date established for the
production of the report or date of the invoice upon which the Fee is based. Any
amount not paid within 30 days after its due date is subject to interest at the
rate of 1-1/2% per month (or the highest rate permitted by law) until paid, plus
costs of collection, including reasonable outside attorneys' fees. Licensee
shall also assume full and complete responsibility for the payment of any taxes,
charges or assessments imposed on Licensee, any sub-licensee, or the
Corporations by any foreign or domestic national, state, provincial, local or
other government bodies or subdivisions thereof, and any penalties or interest,
(other than personal property or income taxes imposed on Nasdaq) relating to
this Agreement. In addition, if Licensee is required by applicable law to deduct
or withhold any such tax, charge or assessment from the amounts due Nasdaq, then
such amounts due shall be increased so that the net amount actually received by
Nasdaq after the deduction or withholding of any such tax, charge or assessment,
will equal one hundred percent (100%) of the charges specified.
SECTION 4. AUDIT RIGHTS.
During the Life of this Agreement, Nasdaq shall have the right, with
reasonable Notice to Licensee, during normal business hours, to audit on a
Confidential basis, any relevant books and records of Licensee or its
sub-licensees to ensure that the type and amount of Fees calculated or stated to
be payable to Nasdaq are complete and accurate. Licensee shall bear the costs of
such audit (including reasonable in-house and outside accountant and attorneys'
fees, if incurred) if Nasdaq reasonably concludes that Licensee (together with
its sub-licensees) has not paid, calculated, and/or reported Fees of more than
five percent of that due Nasdaq under this Agreement.
SECTION 5. REVIEW OF MATERIALS.
Section 5.1. Licensee shall submit to Nasdaq for review a copy of any
material submitted to any regulatory body or governmental agency, which is
required in order to obtain approval for the Issuance or resale of any
Derivative Product. To the extent practicable, such materials or a copy of the
then best draft shall be given to Nasdaq at least 3 business days before their
submittal to the body or agency (but in any event, a copy of the final document
shall be sent by Notice to Nasdaq no later than 3 business days after submittal
to the agency or body).
Section 5.2. Licensee shall give Nasdaq a copy, within 3 business days of
receipt, of any notice, correspondence, process, or other material received from
any regulatory body, governmental agency, or any court, during or after the
approval process which indicates that any Derivative Product is or might be in
violation of, or otherwise not subject to approval because of, any law, or any
rule, regulation, or order of any applicable body or agency.
Section 5.3. For Derivative Product offerings which may be sold to the
public, Licensee shall provide Nasdaq with a copy of any informational or
promotional materials referring or relating to such offering, including, any
prospectus, offering memorandum, registration statement, circular,
advertisement, or brochure at least 3 business days prior to its initial
dissemination to third parties. Licensee need not resupply a copy of any
material which is substantially like material previously submitted to Nasdaq and
is identical as it describes the Corporations or their operations, the markets
operated by the Corporations, the Index or the Marks, or the authorization,
review, or endorsement of the Corporations of the Derivative Product. For all
other Derivative Products, Licensee shall provide a description of such product
to Nasdaq within 3 business days of the initial Issue of such product, and upon
reasonable request, provide Nasdaq, on a Confidential basis, a copy of any
materials or agreements related to such product.
Section 5.4. If Nasdaq reasonably objects by Notice or fax transmission to
Licensee to any material solely on the basis of its description of the
Corporations or their operations, the markets operated by the Corporations, the
Index or the Marks or the authorization, review, or endorsement of the
Corporations of the Derivative Product, Licensee shall alter or withdraw such
material to Nasdaq's satisfaction within 30 days of receipt of Nasdaq objection.
If Licensee refuses to so alter or withdraw, Nasdaq may terminate the Term of
this License with regard to that Derivative Product, upon 30 days Notice to
Licensee, with an opportunity to cure within that period.
SECTION 6. PROTECTION OF MARKS.
Nasdaq will use reasonable efforts to maintain and protect the value of its
Index and Marks. However, nothing shall obligate Nasdaq to undertake an action
or settlement, or refrain from an action or settlement with respect to any
particular potential, threatened, or actual infringement of its Index or Marks.
Licensee, at Nasdaq's sole cost and expense, shall cooperate with Nasdaq in
maintenance, registrations, and policing of Nasdaq's rights in the Index and the
Marks. Such cooperation is not a waiver of nor shall it require to violate its
attorney/client, work product, or other privilege.
SECTION 7. CALCULATION OF INDEX.
Section 7.1. Licensee agrees that the Index is a product of the selection,
coordination, arrangement, and editing of Nasdaq and that such efforts involve
the considerable expenditure by Nasdaq of time, effort, and judgment. As between
the parties, Licensee recognizes that Nasdaq is the rightful licensor of the
Index and the Marks. No license is granted to Licensee to calculate the Index.
While Nasdaq will use reasonable efforts based on sources deemed reliable in
calculating the Index, NASDAQ DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF
THE INDEX OR OF THE DATA USED TO CALCULATE THE INDEX OR DETERMINE THE INDEX
COMPONENTS, OR THE UNINTERRUPTED OR UN-DELAYED CALCULATION OR DISSEMINATION OF
THE INDEX. NASDAQ DOES NOT GUARANTEE THAT THE INDEX ACCURATELY REFLECTS PAST,
PRESENT, OR FUTURE MARKET PERFORMANCE. NASDAQ IS NOT RESPONSIBLE FOR ANY
MANIPULATION OR ATTEMPTED MANIPULATION OF THE INDEX BY MEMBERS OF THE NASD.
Nasdaq is free to pick and alter the components and method of calculation of the
Index without Consent of Licensee.
Section 7.2. Nasdaq shall give Licensee 90 days Notice of the cessation of
public calculation or dissemination of the Index. However, Nasdaq shall either
continue to provide Licensee with a calculation of the Index for the Life of
this Agreement, or, on a Confidential basis, provide Licensee with the then
applicable method of calculation of the Index. Licensee may terminate the Term
of this Agreement on the date Noticed by Nasdaq for the cessation or
dissemination of the Index, and Nasdaq shall refund Licensee a portion of the
pre-paid Fees for that Term calculated according to Section 11.1.
SECTION 8. MARKING OF LICENSEE'S USE.
Section 8.1. In any prospectus, offering memorandum, contract, or in some
other conspicuous written manner, for each Derivative Product to each third
party involved in such Issuance, Licensee shall insure that substantially the
following language appears (in conspicuous type, such as at least 11 point type
and the second paragraph in bold) so as to be enforceable under applicable local
law(s):
The Product(s) is not sponsored, endorsed, sold or promoted by The Nasdaq
Stock Market, Inc.(including its affiliates) (Nasdaq, with its affiliates, are
referred to as the Corporations). The Corporations have not passed on the
legality or suitability of, or the accuracy or adequacy of descriptions and
disclosures relating to, the Product(s). The Corporations make no representation
or warranty, express or implied to the owners of the Product(s) or any member of
the public regarding the advisability of investing in securities generally or in
the Product(s) particularly, or the ability of the Nasdaq-100 Index(R) to track
general stock market performance. The Corporations' only relationship to Xxx
Xxxxxx Funds Inc. (Licensee) is in the licensing of the Nasdaq-100(R),
Nasdaq-100 Index(R) and Nasdaq(R) trademarks or service marks, and certain trade
names of the Corporations and the use of the Nasdaq-100 Index(R) which is
determined, composed and calculated by Nasdaq without regard to Licensee or the
Product(s). Nasdaq has no obligation to take the needs of the Licensee or the
owners of the Product(s) into consideration in determining, composing or
calculating the Nasdaq-100 Index(R). The Corporations are not responsible for
and has not participated in the determination of the timing of, prices at, or
quantities of the Product(s) to be issued or in the determination or calculation
of the equation by which the Product(s) is to be converted into cash. The
Corporations have no liability in connection with the administration, marketing
or trading of the Product(s).
THE CORPORATIONS DO NOT GUARANTEE THE ACCURACY AND/OR UNINTERRUPTED
CALCULATION OF THE NASDAQ-100 INDEX(R) OR ANY DATA INCLUDED THEREIN. THE
CORPORATIONS MAKE NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED
BY LICENSEE, OWNERS OF THE PRODUCT(S), OR ANY OTHER PERSON OR ENTITY FROM THE
USE OF THE NASDAQ-100 INDEX(R) OR ANY DATA INCLUDED THEREIN.
THE CORPORATIONS MAKE NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY
DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR USE WITH RESPECT TO THE NASDAQ-100 INDEX(R) OR ANY DATA INCLUDED THEREIN.
WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL THE CORPORATIONS HAVE
ANY LIABILITY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT,
OR CONSEQUENTIAL DAMAGES, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 8.2. In all other materials relating or referring to a Derivative
Product, Licensee shall include at least this much of the above language, or
similar formulation:
The Nasdaq-100(R), Nasdaq-100 Index(R), and Nasdaq(R) are trade or service
marks of The Nasdaq Stock MaRket, Inc. (which with its affiliates are the
Corporations) and are licensed for use by Xxx Xxxxxx Funds Inc. The product(s)
have not been passed on by the Corporations as to their legality or suitability.
The product(s) are not issued, endorsed, sold, or promoted by the Corporations.
THE CORPORATIONS MAKE NO WARRANTIES AND BEAR NO LIABILITY WITH RESPECT TO THE
PRODUCT(S).
SECTION 9. SUB-LICENSEES.
Licensee may sub-license the use of the Index by the subsidiaries or
affiliates listed in Attachment I. Licensee may, by Notice to Nasdaq, request
permission to sub-license other subsidiaries or affiliates under Licensee's
control. Nasdaq will not unreasonably refuse its Consent to such a request.
Licensee may also request Nasdaq's prior Consent to sub-license an entity which
is a necessary participant in a Derivative Product (e.g., a corporation Issuing
a corporate bond with the Licensee as underwriter and utilizing the Index as a
pricing component). Nasdaq, in its sole discretion, may Consent to such
sublicense. The present list of sub-licensable entities is listed in Attachment
I. However, Licensee shall assume all responsibility for and will hold harmless
and indemnify the Corporations against any action or inaction by a sub-licensee
as if such action or inaction were that of the Licensee. In order to sub-license
any entity, Licensee must have obtained an agreement with the sub-licensee,
which is enforceable under applicable local law and contains the provisions set
forth in Attachment III, modified solely to make them enforceable under
applicable local law(s). Licensee may not waive any provision of the sub-license
or of this Agreement without Consent of Nasdaq.
SECTION 10. LIMITED WARRANTY.
Nasdaq warrants that it will calculate the Index in accordance with its then
applicable method for calculation of the Index. LICENSEE'S SOLE REMEDY IN EVENT
OF A FAILURE OF THIS WARRANTY IS TO HAVE NASDAQ RECALCULATE THE INDEX FOR THE
AFFECTED TIMES ACCORDING TO NASDAQ'S APPLICABLE METHOD FOR CALCULATION OF THE
INDEX AT THE AFFECTED TIME(S). IN THE EVENT THAT NASDAQ IS UNABLE OR UNWILLING
TO RECALCULATE THE INDEX FOR AN AFFECTED PERIOD OF OVER SEVEN CONSECUTIVE
BUSINESS DAYS, NASDAQ WILL REFUND TO THE LICENSEE THE PORTION OF FEES CALCULATED
IN SECTION 11.1. THE CORPORATIONS DO NOT REPRESENT OR WARRANT THAT THE INDEX OR
THE MEANS BY WHICH NASDAQ CALCULATES THE INDEX IS FREE OF DEFECTS. THE
CORPORATIONS DO NOT REPRESENT OR WARRANT THE TIMELINESS, SEQUENCE, ACCURACY OR
COMPLETENESS OF THE CALCULATION OF THE INDEX, OR THAT THE INDEX WILL MEET
LICENSEE'S REQUIREMENTS. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL CONDITIONS
OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY
IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE OR PURPOSE, ANY IMPLIED WARRANTY ARISING FROM TRADE USAGE, COURSE OF
DEALING, OR COURSE OF PERFORMANCE, AND OF ANY OTHER WARRANTY OR OBLIGATION ON
THE PART OF THE CORPORATIONS.
SECTION 11. REFUNDS.
Where this Section is cross-referenced, the portion of Fees refunded will be
calculated as follows. If an applicable Fee was paid for the right to Issue a
Derivative Product during a period of time, then the amount of the Fee to be
refunded shall be the amount of the Fee times the number of days in which the
affected Derivative Product(s) were permitted under this Agreement to be Issued,
divided by the total number of days in the period. If a Fee was paid which
related to issuance of an entire Derivative Product, then the amount of the Fee
to be refunded shall be the amount of the Fee actually paid which related to
that portion of that Derivative Product that was affected.
SECTION 12. INDEMNIFICATION.
Section 12.1. Nasdaq has registered the Marks in the United States and
certain other countries. In the United States Nasdaq warrants and represents
that it has the right to grant the rights to use the Index and Marks specified
in this Agreement and that the license shall not infringe the title or any
patent, copyright, trade secret, trademark, service xxxx, or other proprietary
("Intellectual Property") right of any third party. Nasdaq will as its sole and
entire liability and obligation to Licensee (and any third party or
sub-licensee): defend, indemnify, and hold harmless (Indemnify) Licensee
(including its and its sub-licensee's officers, directors, employees, and
agents) against any and all claims, demands, actions, suits, or proceedings
(Disputes) asserting that the Index or any Xxxx infringes any Intellectual
Property right of any third party and Nasdaq will pay the third party the total
amount of any award, judgment, or settlement (including all damages however
designated) awarded to such third party resulting from the Dispute to the extent
caused by failure of Nasdaq's warranty.
Section 12.2. Licensee agrees to Indemnify Corporations (including its and
their officers, directors, employees, and agents) from any and all Disputes as
the result of Licensee (including any sub-licensee) failure to fulfill its
obligations under this Agreement, any Licensee (including any sub-licensee) use
of the Index or any Xxxx that is not expressly permitted by this Agreement,
claims relating to or arising from a Derivative Product, or any other matter
relating or arising out of this Agreement except to the extent directly caused
by actions of the Corporations and will pay the third party the total amount of
any award, judgment or settlement (including all damages however designated)
awarded such third party resulting from such Dispute except to the extent
directly caused by actions of the Corporations.
Section 12.3. The right to be Indemnified shall apply to a dispute only if:
(a) the party seeking indemnification promptly, and within no more than
ten (10) business days of its receipt of notice of such Dispute, gives
Notice to the other party of the Dispute;
(b) the party seeking to be Indemnified cooperates fully with the other in
the defense thereof (such cooperation does not require and is without
waiver by either party of attorney/client, work product, or other
privilege);
(c) the Indemnifying party has sole control of the defense and all related
settlement negotiations.
Section 12.4. In the event of a Dispute involving infringement or if in
Nasdaq's opinion such a Dispute is likely to occur, or if the use of the Index
or Xxxx is enjoined, Nasdaq may, at its sole option and expense, procure for
Licensee the right to continue using the Index or Xxxx, replace or modify the
Index or Xxxx to become non-infringing, or terminate the Term of the Agreement
(with a refund of Fees for that Term calculated in Section 11.1.
SECTION 13. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY RESULTING FROM THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE CORPORATIONS AND EXCEPT TO THE EXTENT STATED IN SECTIONS 12,
OR 16, THE TOTAL AMOUNT OF THE CORPORATIONS' LIABILITY FOR CLAIMS OR LOSSES
BASED UPON, ARISING OUT OF, RESULTING FROM OR IN ANY WAY CONNECTED WITH THE
PERFORMANCE OR BREACH OF THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT,
WARRANTY, OR OTHERWISE, SMALL IN NO CASE EXCEED THE GREATER OF ONE YEAR'S FEES
UNDER THE AGREEMENT OR $20,000. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO
LIMIT THE CORPORATIONS' LIABILITY UNDER THIS AGREEMENT. BOTH PARTIES UNDERSTAND
AND AGREE THAT THE TERMS OF THIS AGREEMENT REFLECT A NEGOTIATED AND REASONABLE
ALLOCATION OF RISK AND LIMITATIONS GIVEN COMMERCIAL REALITIES OF THE
TRANSACTION.
SECTION 14. CONSEQUENTIAL DAMAGES.
EXCEPT AS NOTED IN SECTION 12 AND EXCEPT FOR EACH OF SECTION 16, THE
CORPORATIONS SHALL NOT BE LIABLE TO THE LICENSEE, ANY SUB-LICENSEE, OR ANY OTHER
PERSON FOR ANY LOST PROFITS, ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN
OPERATION OR INCREASED EXPENSES OF OPERATION, LOSS OF GOODWILL, FOR LOSS CAUSED
IN SALE OF, PURCHASE OF, OR BY THE DERIVATIVE PRODUCT, CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, EVEN IF THE CORPORATIONS
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 15. FORCE MAJEURE.
Notwithstanding any other term or condition of this Agreement, neither Nasdaq
nor Licensee shall be obligated to perform or observe its obligations undertaken
in this Agreement (except for obligations to make payments hereunder) if
prevented or hindered from doing so by any circumstances beyond its control,
including, without limitation, acts of God, perils of the sea and air, fire,
flood, drought, war, explosion, sabotage, terrorism, embargo, civil commotion,
acts of any governmental body, supplier delays, communications, or power
failure, equipment or software malfunction, and labor disputes.
SECTION 16. CONFIDENTIALITY.
Each party shall protect information declared by the other to be
CONFIDENTIAL, or PROPRIETARY. In fulfilling its confidentiality obligations,
each party shall use a reasonable standard of care at least the same standard of
care which it uses to protect its own similar confidential or proprietary
information. All confidential or proprietary information must be conspicuously
marked PROPRIETARY or CONFIDENTIAL. Information revealed orally becomes subject
to protection when related to marked written materials or when designated as
PROPRIETARY or CONFIDENTIAL as long as the designation is confirmed in writing
within 10 calendar days of the designation. Either party (including the
Corporations) may disclose information to the extent demanded by a court,
revealed to a government agency with regulatory jurisdiction over the party
(including the Corporations), or in the party's regulatory responsibilities over
its members, associated persons, issuers, or others under the Exchange Act of
1934, or similar applicable law. The obligation of non-disclosure shall not
extend to: (1) information which is then already in the possession of the party
(including the Corporations) while not under a duty of non-disclosure; (2)
information which is generally known or revealed to the public or within the
applicable industry; (3) information which is revealed to the party (including
the Corporations) by a third parry--unless the party (including the
Corporations) knows that such third party is under a duty of non-disclosure; or
(4) information which that party (including the Corporations) develops
independently of the disclosure. Each copy, including its storage media, shall
be marked with all notices which appear on the original. The obligation of
non-disclosure shall survive for a period of three years from the date of
disclosure,
SECTION 17. NON-USE OF NASD NAME AND MARKS.
Except as provided hereunder, Licensee shall not use the names National
Association of Securities Dealers, Inc., The Nasdaq Stock Market, Inc., "NASD",
or "Nasdaq", in any advertising or promotional media without the prior written
consent of Nasdaq. Except as provided hereunder, Licensee shall not use any
trademark, service xxxx, copyright, or patent of the Corporations, registered or
unregistered, without written consent of Nasdaq.
SECTION 18. SURVIVAL OF PROVISIONS.
The terms of this Agreement shall apply to any rights that survive through
the Life of this Agreement, the cancellation, termination, or rescission of this
Agreement, namely-Confidentiality, Non-Use of NASD Name and Marks.
Indemnification, and any warranties.
SECTION 19. CANCELLATION.
Section 19.1. Either party may elect, without prejudice to any other rights
or remedies, to terminate the Term this Agreement, upon 30 days notice with an
opportunity to cure within the stated period, if the other party has failed to
perform any material obligation under this Agreement.
Section 19.2. Either party may elect, without prejudice to any other rights
or remedies, to terminate the Term of this Agreement without notice, if a
petition in bankruptcy has been filed by or against the other party or the other
party has made an assignment for the benefit of creditors, or a receiver has
been appointed for the other party or any substantial portion of other party's
property, or the other party's or its officers or directors takes action
approving or makes an application for any of the above.
Section 19.3. Licensee represents and warrants that at each time there is any
Issuance of a Derivative Product, that it and each of its sub-licensees and
involved entities shall have all applicable authority to Issue such Derivative
Products and that each such Derivative Product is Issued strictly in accordance
with all applicable legal requirements. Nasdaq may elect, without prejudice to
any other rights or remedies, to terminate the Term of this Agreement with
reasonable notice with an opportunity to cure within such period, if Nasdaq
reasonably believes that any Derivative Product is illegal or has been illegally
Issued, or if the Licensee or any sub-licensee or any involved entity does not
have the power to Issue any of the Derivative Products which it has or is
attempting to Issue.
Section 19.4. Either party may elect, without prejudice to any other rights
or remedies, to terminate the Term of this Agreement with 30 days Notice (or in
the event of an emergency, with such Notice as is practicable), if either
party's ability to perform its obligations under this Agreement is substantially
impaired by any new statute, or new rule, regulation, order, opinion, judgment,
or injunction of the Securities and Exchange Commission (SEC), a court, an
arbitration panel, or governmental body or Self-Regulatory Organization with
jurisdiction over the party.
Section 19.5. Licensee acknowledges that NASD is registered with the SEC as a
registered national securities association pursuant to Section 15A of the United
States Securities and Exchange Act and that as such NASD has a statutory
obligation to protect investors and the public interest, that Section 19(g)(1)
of the Act mandates that NASD, as a self-regulatory organization, comply with
the provisions of the Act, the rules and regulations thereunder, and its own
rules. Accordingly, Licensee agrees that Nasdaq, as a subsidiary of NASD, when
required to do so by NASD, may by written Notice to Licensee unilaterally limit
or terminate the Term of this Agreement or Licensee's right to Issue certain
Derivative Products. Licensee shall have available to it those procedural
protections provided by the Act and applicable rules thereunder.
SECTION 20. SUBSEQUENT PARTIES; LIMITED RELATIONSHIP.
The Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective permitted successors, or assigns. Licensee
shall not assign this Agreement (including by operation of law) without the
written consent of Nasdaq. Nothing in the Agreement, express or implied, is
intended to or shall (a) confer on any person other than the parties hereto (and
any of the Corporations), or their respective permitted successors or assigns,
any rights to remedies under or by reason of this Agreement; (b) constitute the
parties hereto partners or participants in a joint venture; or (c) appoint one
party the agent of the other.
SECTION 21. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes all prior negotiations,
communications, writings, and understandings.
SECTION 22. GOVERNING LAW.
This Agreement shall be deemed to have been made in the United States,
District of Columbia and shall be construed and enforced in accordance with, and
the validity and performance hereof shall be governed by, the laws of the
District of Columbia, without reference to principles of conflicts of laws
thereof. Licensee hereby consents to submit to the jurisdiction of the courts
for or in the District of Columbia in connection with any action or proceeding
instituted relating to this Agreement.
SECTION 23. AUTHORIZATION.
This Agreement shall not be binding upon a party unless executed by an
authorized officer of that party. Licensee, Nasdaq, and the persons executing
this Agreement represent that such persons are duly authorized by all necessary
and appropriate corporate or other action to execute the Agreement on behalf of
Nasdaq or Licensee.
SECTION 24. HEADINGS.
Section Headings are included for convenience only and are not to be used to
construe or interpret this Attachment.
SECTION 25. NOTICES.
All notices, invoices, and other communications required to be given in
writing under this Agreement shall be directed to the persons identified in
subsections (a) and (b) below and shall be deemed to have been duly given upon
actual receipt by the parties, or upon constructive receipt if sent by certified
mail, return receipt requested (as of the date of signature or of first refusal
of the return receipt), or by any other delivery method which obtains a signed
delivery receipt, addressed to the person named below to the following addresses
or to such other address as any party hereto shall hereafter specify by written
notice to the other party or parties hereto:
(a) if to Licensee: Name: Xxxxxx Xxxxxxx
Title: Vice President
Address: 0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
With, in the event of notices of Dispute or default, a required copy to:
Xxx Xxxxxx Funds Inc.
0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Office of General Counsel
(b) if to Nasdaq: Name: Xxxx X. Xxxxxx
Title: Vice President
Address: The Nasdaq Stock Market, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone No.: (000) 000-0000
With, in the event of notices of Dispute or default, a required copy to:
The Nasdaq Stock Market, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Office of General Counsel-
Nasdaq Contracts Group
SECTION 26. AMENDMENT, WAIVER, AND SEVERABILITY
Except as otherwise provided herein, no provision of this Agreement may be
amended, modified, or waived, unless by an instrument in writing executed by a
duly authorized officer of the party against whom enforcement of such amendment,
modification, or waiver is sought (Consent).
Section 26.1. No failure on the part of Nasdaq or Licensee to exercise, no
delay in exercising, and no course of dealing with respect to any right, power,
or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power, or privilege preclude
any other or further exercise thereof or the exercise of any other right, power,
or privilege under this Agreement.
Section 26.2. If any of the provisions of this Agreement, or application
thereof to any person or circumstance, shall to any extent be held invalid or
unenforceable, the remainder of this Agreement, or the application of such terms
or provisions to persons or circumstances other than those as to which they are
held invalid or unenforceable, shall not be affected thereby and each such term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
SECTION 27. COUNTERPARTS
The Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, and such counterparts together shall constitute but
one and the same instrument.
SECTION 28. SCHEDULE OF ATTACHMENTS
The following Attachments are referred to in this Agreement and are
incorporated as if set forth in full herein. In the event of a conflict between
the Attachments and this Agreement, the Attachments shall govern:
Attachment I -- Sub-licensees
Attachment II -- Definition of Derivative Products and Prices
Attachment III -- Nasdaq Index Sub-license Agreement
[THIS SPACE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
XXX XXXXXX FUNDS INC. (Licensee)
By:
Name:____________________________________________________
Title:___________________________________________________
Authorized Officer
Date:____________________________________________________
Executed this ____ day of __________, 20__, for and on behalf of:
THE NASDAQ STOCK MARKET, INC. (NASDAQ)
By:
Name:____________________________________________________
Title:___________________________________________________
Authorized Officer
ATTACHMENT I
Permitted Sub-Licensees of Xxx Xxxxxx Funds Inc.:
N/A
ATTACHMENT II
DEFINITION OF DERIVATIVE PRODUCTS AND PRICES
DESCRIPTION OF PRODUCT(S)
Each Derivative Product(s) will be called The Nasdaq Strategic 100 Trust, as
described in the attached brochure. Each Derivative Product will utilize a
strategy based on a quantitative screening methodology to determine the stocks
in the Derivative Product. Each of the Derivative Product(s) are intended to be
in the primary offering period for 3 months. At this time the Licensee intends
to offer a subsequent Derivative Product every 3 months.
The sponsor intends to offer new series of these Derivative Products
indefinitely.
FEES
The Licensee agrees to pay Nasdaq, on behalf of all applicable Derivative
Product(s), an aggregate amount equal to the greater of 4.0 basis points on
average daily assets held in each Derivative Product or $10,000.00 per annum.
III-3
ATTACHMENT III
NASDAQ INDEX SUB-LICENSE AGREEMENT
THIS AGREEMENT is made by and between ____________________ ("Licensee"),
whose principal offices are located at ____________________ which is a Licensee
of The Nasdaq Stock Market, Inc. ("Nasdaq"), a Delaware Corporation which is a
subsidiary of the National Association of Securities Dealers, Inc. ("NASD")
(NASD with its affiliates are collectively referred to as the Corporations),
whose principal offices arc located at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000 and ____________________ ("Sub-Licensee"), whose principal offices are
located at ____________________.
WHEREAS, Nasdaq possesses certain rights in the NASDAQ-100(R)INDEX ("Index");
and
WHEREAS, Nasdaq possesses certain rights to Nasdaq(R), Nasdaq-100(R), and
Nasdaq-100 Index(R) as trade nAmes, trademarks or service marks ("Marks"); and
WHEREAS, Nasdaq determines the components of the Index, calculates,
maintains, and disseminates the Index; and
WHEREAS, Nasdaq and Licensee have previously entered into a separate
agreement concerning use of the Index and Marks in relating to certain
Derivative Products ("License Agreement"); and
WHEREAS, Sub-Licensee is either: (1) an affiliate or subsidiary under the
control of Licensee which desires to use the Index as a component of a pricing
or settlement mechanism for the Derivative Products; or (2) a necessary
participant in a Derivative Product (e.g., a corporation Issuing a corporate
bond with the Licensee as underwriter and utilizing the Index as a pricing
component) Issued by Licensee or an authorized Sub-Licensee affiliate or
subsidiary under the control of Licensee; and
WHEREAS, Licensee is legally authorized to shares of the fund, or issue,
enter into, write, sell, purchase and/or renew (Issue, Issuing, or Issuance)
such Derivative Products, and each Derivative Products will be Issued as legally
required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, Licensee and Nasdaq, intending to be legally bound,
agree as follows:
SECTION 1. SCOPE OF SUB-LICENSE
Sub-Licensee hereby acknowledges that it has received, reviewed, and
understands the License Agreement entered into between Licensee and Nasdaq
relating to use of the Index and Marks. Except as noted herein, Sub-Licensee
hereby agrees to obligate itself to all the terms, conditions, and obligations
of the License Agreement as if Sub-Licensee were the Licensee. Sub-Licensee
agrees that Nasdaq may exercise any rights against Sub-Licensee (including, for
example, limitation of liability, indemnification, or audit rights) Nasdaq has
against the Licensee to the same extent as if Sub-Licensee were directly
contracting with Nasdaq. Sub-Licensee agrees it will not assert against Nasdaq
any defense, claim, or right Sub-Licensee may have against Licensee, including
those of set-off, abatement, counter-claim, contribution, or indemnification.
SECTION 2. NO FURTHER SUB-LICENSE
All references in the License Agreement to sub-licenses and sub-licensees,
including any right of sub-licensee to grant further sub-licenses or to permit
further sub-licensees are not applicable to this Sub-Licensee Agreement and are
as if deleted from the License Agreement.
SECTION 3. TERM
The Term of this Sub-License Agreement automatically terminates, without
Notice, if the Term of the License Agreement terminates for any reason.
SECTION 4. GENERAL PROVISIONS
Sections from 21 through and including Section 27 of the License Agreement,
govern this Sub-License Agreement. All terms and definitions used in this
Sub-License Agreement, unless otherwise indicated, have the same meanings and
definitions as in the License Agreement. LICENSEE HAS NO AUTHORITY TO WAIVE,
RENEGOTIATE, OR FORGIVE ANY PROVISION OF THE LICENSE AGREEMENT AS IT APPLIES TO
SUB-LICENSEE.
IN WITNESS WHEREOF, the parties hereto have Caused this Sub-License Agreement
to be executed by their duly authorized officers.
---------------------------------------------------------
(Licensee)
By:
Name:____________________________________________________
Title:___________________________________________________
Authorized Officer
Date:____________________________________________________
---------------------------------------------------------
(Sub-Licensee)
By:
Name:____________________________________________________
Title:___________________________________________________
Authorized Officer
Date:____________________________________________________
