THIRD AMENDMENT TO LICENSE AGREEMENT NAME CHANGE
EXHIBIT
(H)(11)
THIRD
AMENDMENT TO LICENSE AGREEMENT
NAME
CHANGE
THIS
THIRD AMENDMENT TO LICENSE AGREEMENT (the “Amendment”), dated October 25, 2005,
amends that certain License Agreement dated as of February 23, 1996, as amended
by the First Amendment to License Agreement dated February 23, 2002 (“First
Amendment”) and the Second Amendment to License Agreement dated as of January 1,
2004 (“Second Amendment”), by and between the Pacific Exchange, Inc. (“PSE”)
and North Track Funds, successor in interest to Principal Preservation
Portfolios, Inc. (“NT” or “North Track”), on behalf of its series known prior to
the date hereof as the “PSE Tech 100 Index Portfolio” (“License Agreement”).
AGREEMENT
NOW,
THEREFORE, in consideration for the mutual promises and covenants of the
parties
set forth herein and in the License Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which the parties hereto
acknowledge, the parties hereto agree as follows:
| 1. |
Definition
of Terms.
Except as specifically defined otherwise in this Amendment, capitalized
terms used herein shall have the meanings defined for them in the
License
Agreement. All uses of the term “PSE Index”, “PSE Tech”, “PSE Tech Index”
and “PSE Technology Index” in the License Agreement, First Amendment and
Second Amendment shall be deleted and replaced with the term
“Index”
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| 2. |
Name
of Index.
Effective as of October 7, 2005 the name of the “PCX Tech Index”, also
known as the “PSE Technology 100 Index” or the “Pacific Stock Exchange
Technology Index” (collectively “Former Names”) is changed to the “ArcaEx
Tech 100 Index” (the “Index”). Upon execution of this Amendment, NT agrees
to: (i) change, or to cause the name of the “PSE Tech 100 Index Portfolio”
to change to the “ArcaEx Tech 100 Index Portfolio or Fund”; (ii) make,
give or obtain all required or necessary regulatory filings, notices
or
approvals regarding such name change; (iii) cease using the Former
Names
(or any derivation thereof) or any trademarks or service marks
relating to
the Former Names (or any derivation thereof) in conjunction with
the Index
or the Portfolio; and (iv) no longer use or circulate any written
materials, including marketing materials, regulatory filings, and
documentation referring to the Index or Portfolio (collectively
“Documents”), employing the Former Names within thirty (30) days of
execution of this Amendment. Notwithstanding the forgoing, it is
expressly
understood that, after the date of this Amendment, NT may use such
Documents as NT currently holds in its inventory in connection
with the
Portfolio until it can obtain replacement Documents for the Portfolio
that
use the name “ArcaEx Tech 100 Index” rather than the Former Names (or any
derivation thereof), 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 name of the Index has changed to the “ArcaEx Tech 100 Index” and the
name of the Portfolio has changed to “ArcaEx Tech 100 Index Portfolio.” NT
undertakes to take commercially reasonable efforts to promptly
obtain such
replacement Documents after the date of this Amendment. NT acknowledges
that PCX has discussed this name change with NT and the impact
that this
will have on the Portfolio and filings with the SEC. Section 5
of the
First Amendment is deleted in its
entirety.
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EXHIBIT
(H)(11)
| 3. |
Archipelago’s
Grant of License.
The first sentence of Section 1 of the License Agreement is deleted
and
replaced with the following:
|
Archipelago
Holdings, Inc. (“Archipelago”), the ultimate parent company of PSE, grants to NT
a limited, nontransferable license to use the trademark ARCAEX TECH 100 INDEX
(the “Xxxx”) solely in the United States solely in connection with and on the
Index and Portfolio. NT accepts this license subject to the terms and conditions
of this Agreement.
In
the
remainder of Section 1 of the License Agreement, all references to PSE shall
be
deleted and replaced with “Archipelago and/or PSE”. Throughout the License
Agreement and the First and Second Amendments, the term “PSE Marks” shall be
deleted and replaced with the term “Xxxx”.
| 4. |
Notices.
The following language shall be deleted from Section 6 of the Second
Amendment:
|
|
If
to PSE:
|
Pacific
Exchange, Inc.
|
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000
Xxxxxxx Xx.,
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Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
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Attention:
Xxx Xxxxx
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Facsimile:
(000) 000-0000
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With
a copy to:
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Xxxxxxx
Xxxx
|
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General
Counsel
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Pacific
Exchange, Inc.
|
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000
Xxxxxxx Xxxxxx
|
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Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
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Facsimile:
(000) 000-0000
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And
replaced with:
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If
to PSE:
|
Xxxxx
X.X. X’Xxxx
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Chief
Administrative Officer, General Counsel and Corporate
Secretary
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Archipelago
Holdings, Inc.
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000
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
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Xxxxxxx,
Xxxxxxxx 00000
|
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Facsimile:
(000) 000-0000
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EXHIBIT
(H)(11)
| 5. |
Miscellaneous.
This Amendment is made under and shall be governed by and construed
in
accordance with the laws of the State of California, without regard
to any
conflicts of law rules which would apply the laws of any other
state. This
Amendment and the License Agreement, including the First Amendment
and the
Second Amendment contain the entire agreement of the parties relating
to
the subject matter hereof and supersede all prior agreements and
understandings with respect to such subject matter, and the parties
hereto
have made no agreements, representations or warranties relating
to the
subject matter of this Agreement which are not set forth herein.
This
Amendment may be signed in counterparts, each of which, when executed
and
delivered, shall constitute one and the same
instrument.
|
| 6. |
Effect
on License Agreement.
The parties agree that, other than as provided in this Amendment,
all
terms and provisions of the License Agreement, as amended, are
hereby
ratified and confirmed and remain in full force and
effect.
|
*
*
*
EXHIBIT
(H)(11)
IN
WITNESS WHEREOF, each of the parties has caused this Amendment to be executed
on
its behalf by its duly authorized officer on the date and year written
above.
NORTH
TRACK FUNDS, INC.
By:
/s/
Xxxxx
X. Xxxxxxxx
Xxxxx
Xxxxxxxx, President and Chief Executive
Officer
PACIFIC
EXCHANGE, INC.
By:
/s/
Xxxxxx Xxxx
Xxxxxx
Xxxx, Chief Financial Officer
ARCHIPELAGO
HOLDINGS, INC.
By:
/s/
Xxxxxx Xxxx
Xxxxxx
Xxxx, Chief Financial Officer
