Exhibit (h)(c)
XXXXXXXX XX. 0
Xxxxxxxx Xx. 0 dated as of November 9, 1998 to the Xxxxxx Xxxxxxx Capital
International Index License Agreement for Funds/Investment Vehicles
("Agreement") dated as of the date hereof between Xxxxxx Xxxxxxx & Co.
Incorporated (`Xxxxxx Xxxxxxx"), a Delaware corporation and Metropolitan Life
Insurance Company, a mutual insurance company organized under the laws of New
York ("MetLife" or "Licensee," as used herein and in the Agreement, these terms
shall also include Metropolitan Tower Insurance Company, and Metropolitan Series
Fund, Inc.).
The parties hereto agree to the following changes, additions, deletions, and
modifications to the Agreement:
1. Third Whereas clause. In the third whereas clause, the following words
--------------------
shall be inserted between "Xxxxxx Xxxxxxx Capital International," and "and
MSCI":
"EAFE," "MSCI EAFE Index," "Xxxxxx Xxxxxxx EAFE Index,"
2. Forth Whereas clause. The fourth whereas clause shall be deleted in its
--------------------
entirety and replaced with:
" WHEREAS, Licensee wishes to use the Indexes as the basis of the funds and
corresponding investment divisions of separate account products, all as
described in Exhibit A annexed hereto and made a part hereof (the "Fund"),
to be issued and traded publicly or on a private placement basis."
3. Fifth Whereas clause. The fifth whereas clause shall be amended (i) to add
--------------------
the words "and the name" between "writing, trading, marketing and
promotion" and "of the Funds" and (ii) to add the words "that are trade
publicly or" before the words "on a private placement basis."
4. Section 1. In the first sentence, the first parenthetical phrase "(in
---------
accord with the restrictions set forth in Exhibit B)" shall be deleted and
replaced with "(in accordance with Exhibit A)." The second parenthetical
phrase "(in accordance with the restrictions set forth in Exhibit B)" shall
be deleted and replaced with "(in accordance with Exhibit A)."
5. Section 1. The last sentence in this section shall be revised as follows:
---------
"Licensee shall not disseminate electronically or in any other fashion any
information relating to the composition of the Indexes. As used in this
Agreement, the term "Licensee" and "MetLife" shall mean Metropolitan Life
Insurance Company, Metropolitan Tower Insurance Company, and Metropolitan
Series Fund, Inc."
6. Section 2. The second sentence in this section shall be deleted in its
---------
entirety and replaced with:
"This Agreement shall automatically be renewed for additional one year
terms unless terminated by any party providing written notice of its intent
to terminate to the other parties at least ninety (90) days prior to the
end of the immediately preceding term or as otherwise permitted under this
Agreement."
7. Section 3. Section 3 shall be amended to read as follows:
---------
"Licensee shall pay to Xxxxxx Xxxxxxx annual license fees as set forth in
Exhibit A with respect to the Indexes and the Marks in connection with the
Funds. Licensee shall pay the license fees for the first term of this
Agreement upon execution of this Agreement. For any additional terms, the
license fees shall be due forty five (45) days after Licensee's receipt of
an invoice for such license fees."
8. Subsection 4(a). This subsection shall be amended as follows:
---------------
"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) by Licensee, Licensee shall
receive a pro rata refund of license fees."
9. Subsection 4(b). In this subsection, the phrase "thirty (30) days" shall be
---------------
replaced with the phrase "ninety (90) days."
10. Subsection 4(c). The last sentence of this subsection shall be deleted in
---------------
its entirety and replaced with:
"In the event that any of the Indexes 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
license fees."
11. Subsection 4(d). The following clause shall be added to the end of the
---------------
first sentence of this subsection:
"(iii) if Xxxxxx Xxxxxxx assigns all or any portion of its rights under
this Agreement other than to Xxxxxx Xxxxxxx Capital International
Inc. and Licensee provides such written notice within 30 days of
Xxxxxx Xxxxxxx'x notice pursuant to Section 12(a) of this
Agreement."
2
12. Subsection 4(d). The last sentence shall be deleted in its entirety and
---------------
replaced with:
"In the event of termination under this paragraph 4(d), Licensee shall be
entitled to a pro rata refund of license fees."
13. Subsection 4(f). A new subsection 4(f) shall be added as follows:
---------------
"Xxxxxx Xxxxxxx shall refund license fees to Licensee under the conditions
outlined in this Section 4. For any term in which a refund is due, Xxxxxx
Xxxxxxx shall promptly refund to Licensee a sum equal to one-twelfth of the
license fee paid by Licensee for each full month remaining of the
applicable one year term."
14. Section 5. This section shall be revised to read as follows:
---------
"Upon termination of this Agreement, all rights granted to Licensee under
this Agreement shall cease."
15. Subsection 6(a). This subsection shall be revised as follows:
---------------
" (a) Licensee shall use its best efforts to protect the goodwill and
reputation of Xxxxxx Xxxxxxx in connection with its use of the Indexes and
the Marks under this Agreement. Licensee shall submit to Xxxxxx Xxxxxxx for
its preview and approval all advertisements, brochures, and promotional and
informational material (other than price quotations and performance for a
Fund)(collectively, "Informational Materials") relating to or referring to
Xxxxxx Xxxxxxx, the Indexes, or the Marks. Xxxxxx Xxxxxxx shall respond to
Licensee no later than five days after the date it receives the
Informational Materials. If Xxxxxx Xxxxxxx does not respond within this
five-day period, Xxxxxx Xxxxxxx shall be deemed to have approved of such
Informational Materials. Xxxxxx Xxxxxxx'x approval shall be confined solely
to the use of or description of Xxxxxx Xxxxxxx, the Marks, and the Indexes
and such approval shall not be unreasonably withheld or delayed by Xxxxxx
Xxxxxxx. Notwithstanding the foregoing, once any Informational Materials
have been approved by Xxxxxx Xxxxxxx, no approval is required for any
modifications to such approved Informational Materials which do not change
the use of or description of Xxxxxx Xxxxxxx, the Marks, and/or the
Indexes."
16. Subsection 6(d). A new subsection 6(d) shall be added as follows:
---------------
" (a) Xxxxxx Xxxxxxx `s Capital International unit shall neither express an
opinion in any communication concerning Licensee or the Funds nor use
Licensee's name without Licensee's prior written approval."
3
17. Subsection 7(a). This subsection shall be deleted in its entirety and
---------------
replaced with:
"At Xxxxxx Xxxxxxx'x expense, Licensee shall cooperate reasonably with
Xxxxxx Xxxxxxx in the maintenance of all Xxxxxx Xxxxxxx common law and
statutory rights in the Indexes and the Marks, including copyrights and
other proprietary rights, to the extent that Licensee uses the Indexes and
Marks pursuant to this Agreement, and shall take such acts and execute such
instruments as are reasonably necessary and appropriate to such purposes."
18. Subsection 7(b). This subsection shall be amended as follows:
---------------
"Licensee shall not refer to the names of the Indexes in any manner which
might cause confusion as to Xxxxxx Xxxxxxx'x responsibility for preparing
and disseminating the Indexes or as to the identity of Licensee and its
relationship to the Funds. Any and all references by Licensee to the names
of the Indexes that were approved by Xxxxxx Xxxxxxx pursuant to this
Agreement shall not be subject to this provision."
19. Subsection 8(a). In the first sentence of this subsection, the words
---------------
"Xxxxxx Xxxxxxx'x claim and does not challenge" shall be inserted between
"Licensee acknowledges" and "that the indexes are selected, arranged and
prepared."
20. Subsection 8(c). In this subsection, clause (ii) shall be revised as
----------------
follows:
"(ii) required by law (in the opinion of counsel), governmental or
self-regulatory agency, or court order to be disclosed by a party, provided
as much prior written notice of such disclosure, as reasonably possible, is
given to the other party."
21. Subsection 9(a). In subsection 9(a) the words "and Marks" shall be added
---------------
between "and that use of the Indexes" and "as provided herein shall not
infringe."
22. Subsection 9(b)(i). This section shall be divided into subsections 9(b)(i),
------------------
(ii) and (iii). The existing section 9b shall be renumbered as subsection
9(b)(i). In subsection 9(b)(i), the preamble shall be amended as follows:
"(b) Licensee agrees to include the following disclaimer in the Statement
of Additional Information for the Fund and shall furnish a copy thereof to
Xxxxxx Xxxxxxx:"
4
23. Subsection 9(b)(i). The following sentences shall be added to the end of
------------------
this subsection:
"The MSCI EAFE Index is the exclusive property of Xxxxxx Xxxxxxx. Xxxxxx
Xxxxxxx Capital International is a service xxxx of Xxxxxx Xxxxxxx and has
been licensed for use by MetLife."
24. Subsection 9(b)(ii). A new subsection 9(b)(ii) shall be added as follows:
-------------------
"(b)(ii) Licensee agrees to use the following disclaimer in all other
Informational Material (including the prospectuses for the Funds and
insurance products funded by the Funds, all forms of sales material, and
material that is used internally with brokers only) shall contain:
Xxxxxx Xxxxxxx sponsors the MSCI EAFE Index, Xxxxxx Brothers sponsors the
Xxxxxx Brothers Aggregate Bond Index, the McGraw Hill Companies, Inc.
sponsors the Standard & Poor's Composite Stock Price Index, and Xxxxx
Xxxxxxx Company sponsors the Xxxxxxx 2000 Index (together referred to as
"index sponsors"). The index sponsors have no responsibility for and do not
participate in the management of the Portfolio assets or sale of the
Portfolio's shares. Each index and its associated service marks are the
exclusive property of the respective index sponsors. The Metropolitan
Series Fund, Inc. Statement of Additional Information contains a more
detailed description to the limited relationship the index sponsors have
with MetLife and the Fund.
25. Subsection 9(b)(iii). A new subsection 9(b)(iii) shall be added as follows:
--------------------
"(b)(iii) To the extent that the terms "Funds" refers to the corresponding
investment divisions of separate account products, as described in Exhibit
A, the parties agree that the foregoing disclaimers may be modified to
refer to the separate account products (including without limitation life
insurance and annuities issued by Metropolitan Life Insurance Company and
Metropolitan Tower Life Insurance Company) and the related policy holder
and contract holders for those products. Xxxxxx Xxxxxxx agrees to work with
Licensee to revise any disclaimers to the extent such revisions are
required by a governmental agency having jurisdiction over Licensee or any
Funds.
The parties further agree that to the extent that one or more Informational
Materials are bound together in a single volume, or otherwise distributed
together, Licensee is not obligated to apply the foregoing disclaimer more
than once in the materials, provided the disclaimer applies to all such
Informational Materials."
26. Subsection 9(d). This subsection shall be amended as follows:
---------------
5
" (d) Licensee represents and warrants to Xxxxxx Xxxxxxx that the Funds
shall not violate any applicable law, including but not limited to banking
and securities laws."
27. Subsection 9(e). This subsection shall be revised as follows:
---------------
"(e) NO PARTY SHALL BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER
CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF OR COULD HAVE FORSEEN SUCH DAMAGES. THE LIMITATIONS ON
LIABILITY AND REMEDIES CONTAINED IN THIS SUBSECTION 9(e) ABOVE SHALL NOT
APPLY TO (i) LIABILITY ARISING UNDER SECTION 10 OF THIS AGREEMENT; AND/OR
(ii) DAMAGES INCURRED DUE TO INTENTIONAL OR GROSSLY NEGLIGENT ACTIONS OR
INACTIONS OF ANY PARTY.
28. Subsection 10. The following paragraph shall be added to the end of this
-------------
section:
"Xxxxxx Xxxxxxx shall indemnify and hold harmless Licensee (and its parent,
subsidiaries, and affiliates, and its and their respective officers, directors,
employees and agents) against any and all judgments, damages, costs or losses of
any kind (including reasonable attorneys' and experts' fees) arising out of any
claims or actions relating to Xxxxxx Xxxxxxx'x rights to license the Indexes and
Marks as set forth in this Agreement, including, but not limited to, all
copyright, trademark, trade secret, and all other intellectual property rights;
provided that (i) Licensee notifies Xxxxxx Xxxxxxx promptly of any such claim or
action and (ii) Xxxxxx Xxxxxxx shall have no liability to Licensee (or them) to
the extent such judgments, damages, costs or losses are attributable to any
negligent act or omission or any breach of this Agreement by Licensee (and/or
them). Xxxxxx Xxxxxxx shall bear all expenses in connection with the defenses
and/or settlement of any such claim or action. Licensee shall have the right, at
its own expense, to participate in the defense or any claim or action or action
against which it is indemnified hereunder; provided, however, it shall have no
right to control the defense, consent of 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
(i) 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 (ii)
otherwise adversely affect the rights of Licensee. This provision shall survive
the termination of this Agreement."
29. Subsection 12(a). The following clause shall be added to the end of the
----------------
last sentence in this subsection:
"provided that Xxxxxx Xxxxxxx provides Licensee written notice of any such
assignment at least (10) business days prior to the effective date of such
6
assignment other than an assignment to Xxxxxx Xxxxxxx Capital International
Inc."
30. Subsection 12 (c). Delete this subsection in its entirety and replace it
-----------------
with:
" (c) Sections 3,4,5,7(a),7(b),8,9(a),9(d),9(e),10 and 12 shall survive any
termination or expiration of this Agreement."
31. Subsection 12(d). The first paragraph of this subsection shall be revised
----------------
as follows:
" (d) All notices and other communications under this Agreement, shall be (i) in
writing, (ii) delivered by hand, by overnight mail with a signed confirmation of
receipt, by electronic mail with a confirmation that the recipient has opened
such mail; or by registered or certified mail, return receipt requested, to the
addresses set forth below or such addresses any party shall specify by a written
notice to the other parties, and (iii) deemed given upon receipt:
32. Exhibit B. Delete Exhibit B in its entirety.
---------
IN WITNESS WHEREOF, the parties have caused the signatures of their
authorized representatives to be hereunder affixed.
METROPOLITAN LIFE INSURANCE XXXXXX XXXXXXX & CO.
COMPANY INCORPORATED
By: s/Xxxxxxx X. Xxxx By: s/Xxxx Xxxxxx
----------------------- -----------------
Name: Xxxxxxx X. Xxxx Name: Xxxx Xxxxxx
Title: Vice President Title: Principal
Date: 11/4/98 Date: 11/11/98
7
Order No.: __________
Client Code/Reference No.:____________
License Agreement Date: _____________
SCHEDULE A
I. Products to which Licensee agrees to subscribe:
Frequency (check)
(Daily Weekly Monthly) Effective Dates Price
Print Products
____ DM Perspective Qtr ___ ______ _______ To _______ ______
____ EM Perspective ______ _______ To _______ ______
Tracker Products
____ Developed Markets Tracker ______ ______ ______ _______ To _______ ______
____ Developed Markets Evaluator ______ ______ ______ _______ To _______ ______
____ Emerging Markets Tracker ______ ______ ______ _______ To _______ ______
____ Emerging Markets Evaluator ______ ______ ______ _______ To _______ ______
____ Evaluator Plus ______ ______ ______ _______ To _______ ______
____ AC Asia Pacific ex Japan Tracker ______ ______ ______ _______ To _______ ______
____ AC Asia Pacific ex Japan Evaluator ______ ______ ______ _______ To _______ ______
____ Other Fees (see attached) ______ ______ ______ _______ To _______ ______
______ ______ ______ _______ To _______ ______
PC Products Vendor _____ ______ ______ ______ _______ To _______ ______
____ Country Industry Indices (w/ val ratios) ______ ______ ______ _______ To _______ ______
____ Enhanced Index Module ______ ______ ______ _______ To _______ ______
____ Developed Markets Module ______ ______ ______ _______ To _______ ______
____ Emerging Markets Module ______ ______ ______ _______ To _______ ______
____ AC Pacific Module ______ ______ ______ _______ To _______ ______
____ Other Fees (see attached) ______ ______ ______ _______ To _______ ______
____ Historic Data Purchase Options ($___ per year) ______ ______ ______ _______ To _______ ______
______ ______ ______ _______ To _______ ______
Index Data Services (circle product)
____ DM/EM/AC Index Service ______ ______ ______ _______ To _______ ______
____ AC Asia/Pacific Index Services ______ ______ ______ _______ To _______ ______
____ DM/EM/AC Enhanced Index Service ______ ______ ______ _______ To _______ ______
____ AC Asia/Pacific Enhanced Index Service ______ ______ ______ _______ To _______ ______
Other Index Services
____ DM Announcement Service ______ ______ ______ _______ To _______ ______
____ EM Announcement Service ______ ______ ______ _______ To _______ ______
____ Preliminary Index Calculation ______ ______ ______ _______ To _______ ______
______ ______ ______ _______ To _______ ______
MSCI Country Industry Indices
____ Full Feed ______ ______ ______ _______ To _______ ______
____ Full Feed plus Valuation Ratios ______ ______ ______ _______ To _______ ______
____ Regional/Country Selection Report ______ ______ ______ _______ To _______ ______
____ Data Item Report (check) ______ ______ ______ _______ To _______ ______
____ Index Levels in USD ______ ______ ______ _______ To _______ ______
____ Index Levels in Local Currency ______ ______ ______ _______ To _______ ______
____ Market Caps ______ ______ ______ _______ To _______ ______
____ Valuation Ratios ______ ______ ______ _______ To _______ ______
Historical Data (see attached)
____ Index Level Data ______ ______ ______ _______ To _______ ______
____ Developed Markets Company Data ______ ______ ______ _______ To _______ ______
____ Emerging Markets Company Data ______ ______ ______ _______ To _______ ______
______ ______ ______ _______ To _______ ______
Custom Index (see attached) ______ ______ ______ _______ To _______ ______
Other (see attached) Fee for Funds Agreement ______ ______ ______ 11/9/98 To 11/8/99 ______
See Exhibit A for details regarding the Data included with each of the above
products.
II. Location(s) at which Licensee may use the Service:
New Jersey and NY, New York (see Exhibit A for description)
III. Description of business unit(s) of Licensee permitted to use the
Service.
Investment Dep't and Marketing
IV. Terms of Payment:
x Annual, in advance x Taxable
--- ---
On time, in advance Non-taxable
--- ---
The parties acknowledge that this Schedule A shall be an integral part of the
agreement among the parties hereto to which it is attached or which possesses
the same reference number and/or date set forth above.
ACKNOWLEDGED AND AGREED:
LICENSEE: LICENSOR:
Met Life XXXXXX XXXXXXX & CO. INCORPORATED
-----------------------------
(Company Name)
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxx
--------------------------- ------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxx X. Xxxxxx
-------------------------- --------------------------
(printed) (printed)
Date: 11/4/98 Date: 11/11/98
-------------------------- --------------------------
PAYOR: (If applicable)
------------------------------
(Payor Company Name)
By:
---------------------------
Name: Prepared By: X.X.
-------------------------- ------------------
(printed)
Date: Date: 10/29/98
-------------------------- --------------------------
XXXXXXX EQUITY INDEXES
PASSIVE FUND LICENSE AGREEMENT
This License Agreement (hereinafter the "Agreement") is entered into this 1st
day of July, 1998 (hereinafter the "Effective Date"), by and between XXXXX
XXXXXXX COMPANY (hereinafter "FRC"), a Washington corporation with offices at
000 X Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000 and Metropolitan Life Insurance Company,
a corporation of New York, having is place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxxxx, XX 00000-0000 (hereinafter "USER").
The parties agree as follows:
1.0 DEFINITIONS:
1.1 "The Xxxxxxx Indexes" shall mean the U.S. equity security indexes set forth
and designated in Exhibit A and the associated Performance Values.
1.2 "Xxxxxxx Xxxx" shall mean the trademark or service xxxx set forth in
Exhibit A for the indicated Xxxxxxx Index.
1.3 "Confidential Information" shall mean the information and know how of FRC
that is the subject of Section 15.1.
1.4 "OnLine Agreement" shall mean FRC's OnLine Agreement for Xxxxxxx OnLine
Product Support Service.
1.5 "Performance Value" shall mean the following at the aggregate index level:
the percentage total return or the total return index value of the designated
Xxxxxxx Index.
2.0 LICENSE GRANT:
2.1 SEE ADDENDUM
2.2 FRC reserves the right, at any time, for any reason and without prior
notice, to alter, amend, terminate or in any way change the Xxxxxxx Indexes;
provided, however that FRC shall notify USER of any such alteration, amendment,
change or termination promptly and in accordance with FRC's then current
practices for notification of other licensees of the Xxxxxxx Indexes.
3.0 ACCEPTANCE AND FRC SUPPORT:
3.1 FRC agrees to supply the following information and materials to USER to be
used in accordance with the terms and conditions of this Agreement: (a) a
monthly list of constituent holdings in electronic format indicating the number
of available shares held of each company in the Xxxxxxx Indexes; (b) monthly
reports of the Performance Values of the Xxxxxxx Indexes; and (c) rules as to
the make-up of the Xxxxxxx Indexes.
3.2 The reports referenced in Section 3.1(a) and (b) shall be provided on or
before the tenth business day of the subsequent month.
3.3 USER shall be deemed to have accepted the information and materials
supplied pursuant to Section 3.1 upon delivery.
3.4 If FRC discovers what it determines, in its sole discretion, to be a
material error in the Xxxxxxx Indexes it will attempt to correct such error in
accordance with its then current practices for index amendment.
4.0 PRICE AND PAYMENT:
4.1 USER agrees to pay FRC or its invoicing subsidiary the amount(s) and within
the times stated in this Section 4.0 and Exhibit A.
4.2 Payments shall be due thirty (30) days after receipt of invoice.
4.3 Prices stated are exclusive of any and all federal, state and other
governmental taxes, duties, licenses, fees, excises or tariffs now and
hereinafter arising out of, or imposed in connection with the transaction
covered by this Agreement, including without means of limitation, USER's use of
the Xxxxxxx Indexes. Such charges shall be paid by USER. FRC, however, shall be
responsible for all taxes based upon its net income or personal property
ownership.
4.4 FRC may change its prices at anytime upon at least ninety (90) days prior
notice.
4.5 USER agrees to make such payments to the address on the above-referenced
invoice(s) or to such address or account as FRC may specify from time to time.
USER agrees to specify the FRC or invoicing subsidiary invoice number, if any,
with respect to which payment is made.
4.6 Payments made by USER by directing commissions to Xxxxx Xxxxxxx Securities
shall be credited at Xxxxx Xxxxxxx Securities' current applicable rate at the
time payment is received.
4.7 Provided USER and FRC have entered into an OnLine Agreement covering at
least one of the Xxxxxxx Indexes covered under this Agreement and USER has at
all times complied with the terms and conditions of such OnLine Agreement and
this Agreement, than FRC shall grant USER a credit equal to _________ hours of
Prepaid Hours for the then current term of that OnLine Agreement. The credit
shall be applicable to fees owed under that OnLine Agreement and may only be
used pursuant to the terms and conditions of that OnLine Agreement.
5.0 FRC WARRANTIES:
5.1 FRC warrants that: (a) it has sufficient right, title, and interest in the
Xxxxxxx Indexes to enter into this Agreement; (b) the Xxxxxxx Indexes do not
infringe upon any U.S. patent or U.S. Copyright, and (c) the Xxxxxxx Indexes do
not violate the trade secret rights of any third party. SEE ADDENDUM
1
5.2 FRC agrees to indemnify, hold harmless and defend USER from and against any
and all damages, costs, and expenses, including reasonable attorney fees,
incurred in connection with a claim which, if true, would constitute a breach of
the foregoing warranties (hereinafter "Infringement Claims"); provided FRC is
notified promptly in writing of the Infringement Claim and has sole control over
its defense or settlement, and USER provides reasonable assistance in the
defense of the same.
5.3 Following notice of an Infringement Claim, FRC may, at its expense, without
obligation to do so, procure for USER the right to continue to use the alleged
infringing Xxxxxxx Index(es) or, without obligation to do so, may replace or
modify the Xxxxxxx Index(es) to make it non-infringing.
5.4 FRC shall have no liability for any Infringement Claim based on USER's i)
use of any Xxxxxxx Index after FRC's notice that USER should cease use of such
Xxxxxxx Index, or ii) use of any release of a Xxxxxxx Index other than the
latest release of that Xxxxxxx Index. For all Infringement Claims arising under
Section 5.4, USER agrees to indemnify and hold FRC harmless from and against all
damages, costs and expenses, including reasonable attorney's fees.
5.5 FRC's obligations to USER for any Infringement Claims made against USER
shall only extend to those arising from the use of a Xxxxxxx Index inside the
geographical boundaries of the United States, Canada, Japan, Australia and the
EC and USER releases and discharges FRC from any and all other Infringement
Claims.
6.0 OWNERSHIP:
6.1 This Agreement is a license and not a sale of the Xxxxxxx Indexes.
6.2 All rights not expressly granted are reserved by FRC, including, without
means of limitation, the right to alter, modify, adapt, translate, or create
derivative works.
6.3 USER agrees its use of the Xxxxxxx Indexes shall not directly or indirectly
create in or for USER any right, title, or interest in the Xxxxxxx Indexes.
7.0 LIMITATIONS ON USE OF XXXXXXX INDEXES:
7.1 USER will not, without the prior written consent of FRC, transfer, loan,
sell, lease, rent, assign, disclose, publish, or copy in whole or in part: (a)
the Xxxxxxx Indexes; (b) the list of constituents and available shares held for
any Xxxxxxx Index; (c) the rules as to the make-up of any Xxxxxxx Index; or (d)
any supporting documentation or other data supplied by FRC. The above limitation
regarding disclosure and publication is not applicable to the Xxxxxxx Indexes'
Performance Values; provided, USER gives FRC proper attribution pursuant to
Section 14.0. SEE ADDENDUM
7.2 USER shall not use the Xxxxxxx Indexes or any part thereof in any fashion
that may infringe any copyrights or other proprietary interests FRC or any third
party may have therein.
7.3 Notwithstanding anything to the contrary herein, USER shall only use the
Xxxxxxx Indexes inside the geographical boundaries of the country(ies) listed in
Exhibit A.
7.4 As a condition of the rights granted to USER under this Agreement, USER
will timely make all disclosures to its clients and potential client necessary
to adequately inform them of the relationship between FRC and USER including,
without means of limitation, the information set forth in Exhibit B.
7.5 USER shall only use the Xxxxxxx Indexes for the operation of USER's
business.
7.6 USER shall not use the Xxxxxxx Indexes as part of any timesharing service,
service bureau or similar arrangement.
7.7 The Xxxxxxx Indexes may only be used in conjunction with a single
microcomputer (i.e., with a single CPU) permitting access by one individual user
at a time and shall not be made available to multiple users at any one time by
any means.
8.0 DISCLAIMER OF WARRANTIES AND RISK OF PERFORMANCE:
8.1 FRC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THE EXPRESS
WARRANTIES CONTAINED IN SECTION 5.0 OF THE AGREEMENT. ANY AND ALL OTHER
WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT MEANS OF LIMITATION, THOSE
FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY
DISCLAIMED WITH RESPECT TO THE XXXXXXX INDEXES OR ANY DATA INCLUDED THEREIN OR
ANY SECURITY (OR COMBINATION THEREOF) COMPRISING THE XXXXXXX INDEXES. FRC MAKES
NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE ACCURACY, COMPLETENESS,
RELIABILITY, OR OTHERWISE OF THE XXXXXXX INDEXES OR ANY DATA INCLUDED THEREIN.
FRC does not warrant, guarantee or make any representations regarding the use,
or the results of use, of the Xxxxxxx Indexes or any data included therein or
any security (or combination thereof) comprising the Xxxxxxx Indexes. The entire
risk as to such use, results of use and the performance of the Xxxxxxx Indexes
and the above-referenced data and securities are assumed by USER.
8.2 FRC will obtain data from sources it believes to be reliable, but the
accuracy and completeness of the Xxxxxxx Indexes and the data included therein
are not guaranteed and they are supplied on an "AS IS" basis.
8.3 FRC'S PUBLICATION OF THE XXXXXXX INDEXES IN NO WAY SUGGESTS OR IMPLIES AN
OPINION BY FRC AS TO THE ATTRACTIVENESS OF INVESTMENT IN ANY OR ALL OF THE
SECURITIES UPON WHICH THE XXXXXXX INDEXES ARE BASED.
9.0 TERM:
9.1 Provided this Agreement has been properly executed by an authorized officer
of USER and an authorized officer of FRC, the term of this Agreement shall run
from the Effective Date until the earlier of:
a) termination in accordance with the terms and conditions of this Agreement;
or
2
b) one (1) year from the Effective Date.
9.2 Provided that this Agreement has not been terminated by either party prior
to the expiration of its term, as extended, and USER has complied with all the
terms and conditions of this Agreement, then each year upon expiration of its
then current term the Agreement shall automatically extend for an additional one
(1) year period unless either party gives the other at least ninety (90) days
prior written notice of its intention to not so extend the term of the
Agreement.
10.0 DEFAULT AND TERMINATION:
10.1 After the first year of this Agreement either party may terminate this
Agreement without cause upon at least ninety (90) days prior notice.
10.2 This Agreement may terminate if any of the following events of default
occurs:
a) if either party materially fails to perform or comply with this Agreement
or any provision hereof;
b) if USER fails to strictly comply with the provisions of Sections 15.0 and
16.0;
c) if USER becomes insolvent or admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of creditors;
d) if a petition under any foreign, state or United States bankruptcy act,
receivership statute, or the like, as they now exist, or as they may be amended
is filed by USER; or
e) if such a petition is filed by any third party, or an application for a
receiver is filed by anyone and such petition or application is not resolved
favorably to USER within sixty (60) days.
10.3 Termination, due to a breach of Section 7.0, 15.0 or 16.0 shall be
effective upon notice. In all other cases termination arising under Section 10.2
shall be effective thirty (30) days after notice of termination to the
defaulting party if the defaults have not been cured within such thirty (30) day
period.
10.4 USER acknowledges that monetary damages may not be a sufficient remedy for
unauthorized disclosure or use of Confidential Information or the Xxxxxxx
Indexes or the associated trademarks and service marks and that FRC shall be
entitled, without waiving any other rights or remedies, to such injunctive or
equitable relief as may be deemed proper by a court of competent jurisdiction.
10.5 The rights and remedies of the parties provided herein shall not be
exclusive and are in addition to any other rights or remedies provided by law or
this Agreement.
11.0 OBLIGATIONS ON TERMINATON:
11.1 Upon expiration or termination of this Agreement, USER shall cease using
the Xxxxxxx Indexes and shall return or destroy all full or partial copies of
the Xxxxxxx Indexes and associated data and comply with Section 14.7.
11.2 Sections 10, 11, 12, 13, 14, 15, 17 and 18 shall survive the termination of
this Agreement.
12.0 LIMITATION OF LIABILITY:
12.1 FRC's liability to USER under any provision of this Agreement, including,
without means of limitation, Section 5, or any transaction contemplated by this
Agreement, shall not exceed one hundred percent (100%) of the amount having then
been actually paid by USER to FRC in the most recent twelve (12) calendar month
period under Section 4.0. FRC's limitation of liability is cumulative with all
FRC's expenditures being aggregated to determine satisfaction of the limit. The
existence of claims or suits against more than one Xxxxxxx Index will not
enlarge or extend the limit. USER releases FRC from all obligations, liability,
claims or demands in excess of the limitation. The parties acknowledge the other
parts of this Agreement rely upon the inclusion of Section 12.
13.0 DISCLAIMER OF DAMAGES AND LIMITATION OF REMEDY:
13.1 The rights and remedies granted under Section 5.0 constitute USER's sole
and exclusive remedy against FRC, its officers, agents and employees for
negligence, inexcusable delay, breach of warranty, express or implied, or for
any default whatsoever relating to the condition of the Xxxxxxx Indexes and any
data included therein.
13.2 USER AGREES FRC SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, SPECIAL, ECONOMIC OR PUNITIVE DAMAGES OR FOR ANY CLAIMS AGAINST USER
BY ANY OTHER PARTY EVEN IF FRC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR CLAIMS.
13.3 USER agrees to indemnify and hold FRC harmless from any and claim arising
out of, or in connection with, USER's use of the Xxxxxxx Index(es) including,
without means of limitation, those made by employees, customers or clients of
USER.
13.4 USER may not bring any action pertaining to this Agreement more than one
(1) year after the event giving rise to the cause of action has occurred.
14.0 TRADEMARKS AND COPYRIGHT NOTICES:
14.1 All materials, including advertising, sales promotion, or demonstration
materials which refer directly to the Xxxxxxx Indexes shall expressly state that
Xxxxx Xxxxxxx Company is the owner of the trademarks and service marks relating
to the Xxxxxxx Indexes in language consistent with Exhibit A and substantially
similar to the following:
"The Xxxxxxx 1000(R) Index is a trademark/service xxxx of the Xxxxx Xxxxxxx
Company. Xxxxxxx(TM) is a trademark of the Xxxxx Xxxxxxx Company."
USER shall make no other use of Xxxxxxx Xxxxx.
14.2 For each Xxxxxxx Xxxx USER agrees to use the appropriate trademark symbol
(either "(TM)" or "?" or "(R)"), as set forth in Exhibit A or FRC designates by
written notice from time to time, in a superscript whenever such a Xxxxxxx Xxxx
is first mentioned in the above-referenced materials or
3
in any other manner in connection with the associated Xxxxxxx Index.
14.3 Upon written request from FRC, USER shall forward to FRC samples of the
above-referenced materials which refer to product name(s), service xxxx(s) or
trademark(s).
14.4 USER agrees its use of the above shall not directly or indirectly create in
or for USER any right, title or interest in such service xxxx(s), trademark(s)
or tradename(s) and their attendant goodwill.
14.5 USER agrees to maintain the high level of quality accorded products and
services associated with, and marketed by, FRC under its trademarks and service
marks.
14.6 USER shall undertake no action that will interfere with or diminish FRC's
right, title and interest in FRC's trademarks, service marks and Xxxxxxx
Indexes. USER will not at any time use any name, trademark or service xxxx
confusingly similar to a FRC name, trademark or service xxxx.
14.7 Upon termination or expiration of this Agreement, USER shall cease and
desist from all of any of the above-referenced product or service name(s) and
associated trademark(s) and service xxxx(s) and, upon request, deliver to FRC or
destroy all material upon which the same appear.
14.8 USER shall also indicate that FRC is the owner of the copyrights relating
to the Xxxxxxx Indexes and is the source of the Xxxxxxx Indexes Performance
Values. USER shall include such copyright notices as FRC shall supply or
designate from time to time.
15.0 NON-DISCLOSURE AGREEMENT:
15.1 USER expressly undertakes to retain in confidence all information and know
how transmitted to USER by FRC that FRC has identified as being proprietary
and/or confidential or that, by the nature of the circumstances surrounding the
disclosure, ought in good faith to be treated as proprietary or confidential,
and will make no use of such information and know how except under the terms and
during the existence of this Agreement. However, USER shall have no obligation
to maintain the confidentiality of information that: (i) it received rightfully
from another party prior to its receipt from FRC; (ii) FRC has disclosed to a
third party without any obligation to maintain such information in confidence;
or (iii) is independently developed by USER. USER shall take all necessary
security measures to ensure the above. USER's obligations under this section
shall extend to the earlier of such time as the information protected hereby is
in the public domain through no fault of USER or ten (10) years following the
termination or expiration of this Agreement. The confidential relationship
arising hereunder shall not be affected by Section 21.3.
16.0 ASSIGNMENT AND ENTIRE AGREEMENT:
16.1 This Agreement and any rights or obligations hereunder, shall not be
assigned, delegated or sublicensed by USER without the prior written permission
of FRC. It will inure to the benefit of and is binding upon USER, FRC, their
affiliates and successors.
16.2 Any attempted assignment, delegation or sublicense in violation of this
section shall be void.
16.3 This Agreement, including Exhibits A and B, is the entire Agreement between
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous communications. It shall not be modified except in writing
signed by both parties.
17.0 NOTICES:
17.1 All notices in connection with this Agreement shall be deemed given on the
day they are (a) deposited in the U.S. mails, postage prepaid, certified or
registered, return receipt requested; or (b) sent by international air express,
air courier, (e.g., DHL, Federal Express or Airborne Express), charges prepaid,
certified or registered, return receipt requested, addressed as follows:
USER: MetLife
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000-0000
Attention: Richmond Xxxxx
With a Copy To: MetLife
Xxx Xxxxxxx Xxxxxx Xxxx 0X
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
FRC: Xxxxx Xxxxxxx Company
000 X Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Managing Director
18.0 APPLICABLE LAW:
18.1 This Agreement shall be construed and controlled by the laws of the state
of Washington and USER consents to jurisdiction and venue of the state and
federal courts sitting in the state of Washington.
19.0 ATTORNEYS' FEES:
19.1 If either FRC or USER employs attorneys to enforce any rights arising out
of or relating to this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys' fees, costs and other expenses.
20.0 DELAY IN PERFORMANCE:
20.1 Neither party shall be liable for failure or delay in the performance of
any of its obligations, except obligations for the payment of money, under this
Agreement, if such failure or delay is caused by circumstances beyond its
reasonable control such as acts of God, riot, or war. Strikes or other labor
difficulties which are capable of being terminated on terms unacceptable to the
party so affected shall not be considered circumstances within the control of
such party.
21.0 MISCELLANEOUS:
21.1 No waiver of any breach of any provision of this Agreement shall constitute
a waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver shall be effective unless made in
4
writing and signed by an authorized representative of the waiving party.
21.2 If any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the remaining provisions
shall remain in full force and effect.
21.3 Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a fiduciary relationship of any kind between the
parties or between FRC and USER's clients, customers or prospective clients or
customers. Without limitation as to the foregoing, USER acknowledges that its
decisions (a) whether to utilize the Xxxxxxx Indexes or any subset of the
securities underlying the same and (b) the appropriate investments to make, if
any, for it to re-balance a portfolio of securities designed to replicate a
Xxxxxxx Index or a subset thereof shall be made independently of FRC.
21.4 Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a partnership, franchise, joint venture, agency
or employment relationship between the parties.
21.5 Time is of the essence in this Agreement.
21.6 The section headings used in this Agreement and the attached Exhibits are
intended for convenience only and shall not be deemed to supersede or modify any
provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set
forth below. All signed copies of this Agreement shall be deemed to be
originals.
XXXXX XXXXXXX COMPANY METLIFE
FRC (USER)
Xxxxxx Birmingham Xxxxxxx Xxxx
----------------- ------------
By By
Xxxxxx Birmingham Xxxxxxx Xxxx
----------------- ------------
Name (Print) Name (Print)
Client Executive Vice-President
---------------- --------------
Title Title
11/10/98
Date Date
EXHIBIT A
Xxxxxxx Indexes:
----------------
The Xxxxxxx Indexes shall mean the U.S. equity security index(es) designed below
and the associated Performance Value(s):
Xxxxxxx 3000(R) Index Xxxxxxx 2000(R) Growth Index
-- --
Xxxxxxx 1000(R) Index Xxxxxxx Xxxxxx(TM) Value Index
-- --
X Xxxxxxx 2000(R) Index Xxxxxxx XxxXxx(TM) Growth Index
-- --
Xxxxxxx 2500(TM) Index Xxxxxxx 200(TM) Growth Index
-- --
Xxxxxxx Top 200(TM) Index Xxxxxxx 3000(R) Growth Index
-- --
Xxxxxxx 1000(R) Value Index Xxxxxxx 3000(R) Growth Index
-- --
Xxxxxxx 1000(R) Growth Index Xxxxxxx 2500(TM) Growth Index
-- --
Xxxxxxx 2000(R) Value Index Xxxxxxx 2500(TM) Value Index
-- --
Annual License Fee:
-------------------
USER agrees to pay FRC an annual license fee of ____________ Dollars per Index
to use the Xxxxxxx Index(es) as designated above. The total annual license fee
pursuant to the immediately preceding sentence shall be ___________ Dollars.
Additional Provisions:
----------------------
(a) County of Use: USA
EXHIBIT B
Client Disclosure
SEE ADDENDUM
------------
1) [Name of USER's Product] is not promoted, sponsored or endorsed by, nor in
any way affiliated with Xxxxx Xxxxxxx Company. Xxxxx Xxxxxxx Company is not
responsible for and has not reviewed [name of USER's Product] nor any associated
literature or publications and Xxxxx Xxxxxxx Company makes no representations or
warranty, express or implied, as to their accuracy, or completeness, or
otherwise.
2) Xxxxx Xxxxxxx Company reserves the right, at any time and without notice,
to alter, amend, terminate or in any way change its index(es). Xxxxx Xxxxxxx
Company has no obligation to take the needs of any particular fund or its
participants or any other product or person into consideration in determining,
composing or calculating the Index(es).
3) Xxxxx Xxxxxxx Company's publication of the Index(es) in no way suggests or
implies an opinion by Xxxxx Xxxxxxx Company as to the attractiveness or
appropriateness of investment in any or all securities upon which the Index(es)
is (are) based. XXXXX XXXXXXX COMPANY MAKES NO REPRESENTATION, WARRANTY, OR
GUARANTEE AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, OR OTHERWISE OF THE
INDEX(ES) OR ANY DATA INCLUDED IN THE INDEX(ES). XXXXX XXXXXXX COMPANY MAKES NO
REPRESENTATION OR WARRANTY REGARDING THE USE, OR THE RESULTS OF USE, OF THE
INDEX(ES) OR ANY DATA INCLUDED THEREIN, OR ANY SECURITY (OR COMBINATION THEREOF)
COMPRISING THE INDEX(ES). XXXXX XXXXXXX COMPANY MAKES NO OTHER EXPRESS OR
IMPLIED WARRANTY, AND EXPRESSLY DISCLAIMS ANY WARRANTY, OF ANY KIND, INCLUDING,
WITHOUT MEANS OF LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE INDEX(ES) OR ANY DATA OR ANY SECURITY (OR
COMBINATION THEREOF) INCLUDED THEREIN.
SEE ADDENDUM
------------
5
ADDENDUM
--------
Addendum to the Xxxxxxx Equity Indexes Passive Fund License Agreement (the
"Agreement") entered into as of the Effective Date of the Agreement by and
between Xxxxx Xxxxxxx Company ("FRC") and Metropolitan Life Insurance Company
("USER").
The parties hereto agree to the following changes, additions an modifications to
the Agreement:
1) Subsection 2.1 (License Grant)
------------------------------
Substitute the following language:
Subject to Section 7.0 below and notwithstanding anything to the contrary in
this agreement, FRC grants USER a non-exclusive license (i) to use the Xxxxxxx
Indexes as the basis of funds issued by USER and (ii) to refer to the Xxxxxxx
Indexes and Xxxxxxx Xxxxx in connection with the marketing and naming of USER's
funds. (The term "funds" means funds issued, managed and sold by USER, and
corresponding investment divisions of separate account products including, but
not limited to, life insurance and annuities issued by Metropolitan Life
Insurance Company and Metropolitan Towers Life Insurance Company.)
2) Subsection 5.1(b) (FRC Warranties)
----------------------------------
Add the words "U.S. trademark or service xxxx" at the end of this clause.
3) Subsection 7.1 (Limitations on Use of Xxxxxxx Indexes)
------------------------------------------------------
Add the phrase "Except for information provided by FRC that is required to be
disclosed by regulatory or governmental agencies," to the beginning of this
subsection.
4) Exhibit B. Client Disclosure
----------------------------
1. Modify Exhibit B as follows:
(i) USER will include all of the language set forth in
Exhibit B in "The Statement of Additional Information" for the Metropolitan
Series Fund.
(ii) USER will include in all other informational materials
(including Prospectuses and all forms of sales material and material that is
used internally or with brokers only), the following language:
"Xxxxxx Xxxxxxx sponsors the MSCI EAFE Index, Xxxxxx Brothers sponsors the
Xxxxxx Brothers Aggregate Bond Index , the McGraw Hill Companies, Inc. sponsors
the Standard & Poor's 500 Composite Stock Price Index, and Xxxxx Xxxxxxx Company
sponsors the Xxxxxxx 2000 Index (together referred to as "index sponsors"). The
index sponsors have no responsibility for and do not participate in the
management of the Portfolio assets or sale of the Portfolio shares. Each index
and its associated trademark and service marks are the exclusive property of the
respective index sponsors. The Metropolitan Series Fund, Inc. Statement
Additional Information contains a more detailed description of the limited
relationship the index sponsors have with MetLife and the Fund."
2. Add the following provisions to Exhibit B:
FRC agrees that to the extent one or more informational materials and contracts
are bound together in a single volume or otherwise distributed together, USER is
not obligated to apply the foregoing disclaimer
6
more than once in the bound materials. FRC also agrees to work with MetLife to
revise any disclaimers to the extent such revisions are required by a
governmental agency having jurisdiction over MetLife or its Funds.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the dates set
forth below. All signed copies of this Addendum shall be deemed to be originals.
XXXXX XXXXXXX COMPANY METROPOLITAN LIFE
INSURANCE COMPANY
By: /s/ Xxxxxx Birmingham By: /s/ Xxxxxxx X. Xxxx
--------------------- -------------------
Name: Xxxxxx Birmingham Name: Xxxxxxx X. Xxxx
----------------- ---------------
Title Client Executive Title: Vice-President
---------------- --------------
Date: 11/10/98 Date:
7
CONFIDENTIAL
------------
XXXXXX XXXXXXX CAPTIAL INTERNATIONAL
INDEX LICENSE AGREEMENT
-----------------------
FOR FUNDS/INVESTMENT VEHICLES
-----------------------------
AGREEMENT, dated as of November 9, 1998, by and between XXXXXX XXXXXXX &
CO. INCORPORATED ("Xxxxxx Xxxxxxx"), a Delaware corporation, having an office at
0000 Xxxxxxxx, Xxx Xxxx, XX 00000, and Metropolitan Life Insurance Company
("Licensee"), a mutual life insurance company organized under the laws of New
York, having an office at Xxx Xxxxxxx 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 (and which, through its Xxxxxx Xxxxxxx
Capital International ("MSCI") department, engages in a variety of business
activities in connection with such indexes and data), among which are the
indexes listed in Exhibit A, annexed hereto and made apart hereof (such indexes
and data contained therein are hereinafter referred to as the "Indexes");
WHEREAS, Xxxxxx Xxxxxxx calculates, maintains and publishes the Indexes;
WHEREAS, Xxxxxx Xxxxxxx uses in commerce and owns trade name, trademark and
service xxxx rights to the designations "Xxxxxx Xxxxxxx," "Xxxxxx Xxxxxxx
Capital International" and "MSCI" (such rights are hereinafter individually and
collectively referred to as the "Marks");
WHEREAS, Licensee wishes to use the Indexes as the basis of the
funds/investment vehicles described in Exhibit B, annexed hereto and made a part
hereof (the "Funds"), to be issued and traded on a private-placement basis;
WHEREAS, Licensee wishes to use the Indexes and the Marks in connection
with writing, trading, marketing and promotion of the Funds on a
private-placement basis and in connection with making disclosure about the Funds
under applicable laws, rules and regulations in order to indicate that Xxxxxx
Xxxxxxx is the source of the Indexes; and
WHEREAS, Licensee wishes to obtain Xxxxxx Xxxxxxx'x authorization to use
the Indexes and refer to the Indexes and the Marks in connection with the Funds
pursuant to the terms and conditions hereinafter set forth.
1
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 one or
more of the Indexes as the basis, or a component, of the Funds (in accord with
the restrictions set forth in Exhibit B) issued, entered into, written, sold
and/or purchased by Licensee, and (ii) to use and refer to the Indexes and the
Marks in connection with the writing, trading, marketing and promotion of the
Funds (in accordance with the restrictions set forth in Exhibit B) and in
connection with making such disclosure about the Funds as Licensee deems
necessary or desirable under any applicable laws, rules or regulations in order
to indicate the source of the Indexes. Licensee shall not disseminate
electronically or in any other fashion any quotations or other information
relating to the Indexes or the Funds.
2. Term
----
The term of the license granted hereunder shall commence on November 9,
1998 and shall continue for one year thereafter. It is the intention of the
parties to renew this Agreement for successive one-year renewal terms pursuant
to such terms and conditions as the parties may agree upon.
3. License Fees
------------
Upon execution of this Agreement, Licensee shall pay to Xxxxxx Xxxxxxx a
license fee of $15,000 with respect to use of the Indexes listed in Exhibit A in
connection with the Funds.
4. Termination
-----------
(a) At any time during the term of this Agreement, either party may give
the other party thirty (30) 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 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, the other party may terminate this Agreement by
giving thirty (30) days' prior written notice of its intent to terminate, and
such notice shall be effective on the date of such termination unless the
breaching party shall correct such breach within the notice period. In the event
of termination
2
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 any of the Indexes and, in the event that any of
the Indexes is discontinued, to terminate this Agreement if Xxxxxx Xxxxxxx does
not offer a replacement or substitute Index. In the event that Xxxxxx Xxxxxxx
intends to discontinue any index, Xxxxxx Xxxxxxx shall give Licensee at least
ninety (90) days written notice prior 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 index under the terms of this Agreement. In the
event that any of the Indexes 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 refund of the license fee, computed
by multiplying the license fee by a fraction the numerator of which is Xxxxxx
Xxxxxxx'x standard license fee for the discontinued Index, as in effect on the
first day of the initial or renewal term during which such Index is
discontinued, and the denominator of which is the license fee paid under this
Agreement and then pro-rating such Fund over the remainder of the applicable
one-year term.
(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 issue, enter into,
write, sell, purchase, market or promote the Funds; and (ii) any material
litigation or regulatory proceeding regarding the Funds is threatened or
commences. In the event of termination under this paragraph 4(d), no refund of
any portion of the license fee will be made.
(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 Indexes under this Agreement; or (ii) any material
litigation or regulatory proceeding regarding the Funds 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
-----------------------
Upon termination of this Agreement, Licensee shall cease to use the Indexes
and cease referring to the Indexes and the Marks with the Funds.
6. Fund Promotion
--------------
(a) Licensee shall use its best efforts to protect the goodwill and
reputation of Xxxxxx Xxxxxxx in connection with its use of the Indexes and the
Marks under this
3
Agreement. Licensee shall submit to Xxxxxx Xxxxxxx for its preview and approval
all advertisements, brochures, and promotional and information material (other
than price quotations for a Fund) ("Informational Materials") relating to or
referring to Xxxxxx Xxxxxxx, the Indexes, the Marks or the Funds. Xxxxxx
Xxxxxxx'x approval shall be confined solely to the use of or description of
Xxxxxx Xxxxxxx, the Marks, and the Indexes and shall not be unreasonably
withheld or delayed by Xxxxxx Xxxxxxx.
(b) Xxxxxx Xxxxxxx is not obligated to engage in any marketing or
promotional activities in connection with the Funds or in making any
representation or statement to investors or prospective investors in connection
with the promotion by Licensee of the Funds.
(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 Funds or of Licensee and Licensee further agrees not to make any
statement which expresses or implies that Xxxxxx Xxxxxxx approves, endorses or
consents to the promotion, marketing, and arrangement by Licensee of the Funds
or that Xxxxxx Xxxxxxx makes any judgment or expresses any opinion in respect of
the Licensee.
7. Protection Of Value Of License
------------------------------
(a) Licensee shall cooperate reasonably with Xxxxxx Xxxxxxx in the
maintenance of all Xxxxxx Xxxxxxx common law and statutory rights in the Indexes
and the Marks, including copyrights and other proprietary rights, and shall take
such acts and execute such instruments as are reasonably necessary and
appropriate to such purposes, including the use by the Licensee of the following
notice when referring to the Indexes or the Marks in any advertisement, offering
circular, prospectus, brochure, or promotional or informational material
relating to the Funds:
The [Name of particular index] index is the exclusive property of Xxxxxx
Xxxxxxx. Xxxxxx Xxxxxxx Capital International is a service xxxx of Xxxxxx
Xxxxxxx and has been licensed for use by [Name of Licensee].
or such similar language as may be approved in advance by Xxxxxx Xxxxxxx.
(b) Licensee shall not refer to the names of the Indexes in any manner
which might cause confusion as to Xxxxxx Xxxxxxx'x responsibility for preparing
and disseminating the Indexes or as to the identity of Licensee and its
relationship to the Funds.
8. Proprietary Rights
------------------
(a) License acknowledges that the Indexes are selected, arrange 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
4
Xxxxxxx. Licensee also acknowledges that the Indexes and the Marks are the
exclusive property of Xxxxxx Xxxxxxx, and the Indexes and their compilation and
composition and changes therein are in the control and discretion of Xxxxxx
Xxxxxxx.
(b) Xxxxxx Xxxxxxx reserves all rights with respect to the Indexes 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 or (in the case of Xxxxxx
Xxxxxxx) Informational Materials submitted to Xxxxxx Xxxxxxx pursuant to
paragraph 6(a) hereof, 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
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 Indexes 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 Informational
Materials and any contract(s) relating to the Funds and upon request to furnish
a copy (copies) thereof to Xxxxxx Xxxxxxx:
This fund is not sponsored, endorsed, sold or promoted by Xxxxxx
Xxxxxxx. Xxxxxx Xxxxxxx makes no representations or warranty, express or
implied, to the owners of this fund or any member of the public regarding
the advisability of investing in funds generally or in this fund
particularly or the ability of the [ ] 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 [ ] index which is
determined, composed and
5
calculated by Xxxxxx Xxxxxxx without regard to the issuer of this fund or
this fund. Xxxxxx Xxxxxxx has no obligation to take the needs of the issuer
of this fund or the owners of this fund into consideration in determining,
composing or calculating the [ ] index. Xxxxxx Xxxxxxx is not responsible
for and has not participated in the determination of the timing of, prices
at, or quantities of this fund to be issued or in the determination or
calculation of the equation by which this fund is redeemable for cash.
Xxxxxx Xxxxxxx has no obligation or liability to owner of this fund in
connection with the administration, marketing or trading of this fund.
ALTHOUGH XXXXXX XXXXXXX SHALL OBTAIN INFORMATION FOR INCLUSION IN OR
FOR USE IN THE CALCULATION OF THE INDEXES FROM SOURCES WHICH XXXXXX XXXXXXX
CONSIDERS RELIABLE, NEITHER XXXXXX XXXXXXX NOR ANY OTHER PARTY GUARANTEES
THE ACCURACY AND/OR THE COMPLETENESS OF THE INDEXES OR ANY DATA INCLUDED
THEREIN. NEITHER XXXXXX XXXXXXX NOR ANY OTHER PARTY MAKES ANY WARRANTY,
EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY LICENSEE, LICENSEE'S
CUSTOMERS AND COUNTERPARTIES, OWNERS OF THE FUNDS, OR ANY OTHER PERSON OR
ENTITY FROM THE USE OF THE INDEXES OR ANY DATA INCLUDED THEREIN IN
CONNECTION WITH THE RIGHTS LICENSED HEREUNDER OR FOR ANY OTHER - USE.
NEITHER XXXXXX XXXXXXX NOR ANY OTHER PARTY MAKES ANY EXPRESS OR IMPLIED
WARRANTIES, AND XXXXXX XXXXXXX HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
INDEXES OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE
FOREGOING, IN NO EVENT SHALL XXXXXX XXXXXXX OR ANY OTHER PARTY 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 Funds shall
not violate any applicable laws, including but not limited to banking,
commodities and Funds laws.
(e) Neither party shall have any liability for lost profits or
consequential damages arising out of this Agreement.
6
(f) The provisions of this Section 9 shall survive any termination of this
Agreement.
10. Indemnification
---------------
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 any act or
omission of Licensee which constitutes a breach of this Agreement or is in any
manner related to the Funds; provided, however, that (i) Xxxxxx Xxxxxxx notifies
Licensee promptly of any such claim or action, and (ii) Licensee shall have no
liability to Xxxxxx Xxxxxxx if such judgments, damages, costs or losses are
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 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 (i) 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 (ii) otherwise adversely
affects the rights of Xxxxxx Xxxxxxx. 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 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.
7
(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.
Notice to Xxxxxx Xxxxxxx: Xxxxxx Xxxxxxx & Co. Incorporated
------------------------ 0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx, Principal
----
and
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
----
and
Notice to Licensee: Metropolitan Life Insurance Company
------------------ Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, V.P.
----
and
Metropolitan Life Insurance Company
Law Department
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X'Xxxxx
----
Associate General Counsel
8
(e) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
XXXXXX XXXXXXX & CO. METROPOLITAN LIFE
INCORPORATED INSURANCE COMPANY
By:/s/Xxxx Xxxxxx By:/s/Xxxxxxx X. Xxxx
-------------- ------------------
Title: Principal Title: Vice President
Name: Xxxx Xxxxxx Name: Xxxxxxx X. Xxxx
Date: 11/11/98 Date: 11/4/98
--------- --------
9
EXHIBIT A
---------
List of the Indexes (and Marks) Related License Fees
For the initial term of this Agreement, the annual license fee shall be (a) for
each Fund that uses MSCI or EAFE in its name and otherwise uses the Indexes as
set forth in this Agreement; and (b) for each Fund that uses the Indexes as set
forth in this Agreement but not does not MSCI or EAFE in its name.
Indexes and Marks* License Fee
Metropolitan Series Fund, Inc. Xxxxxx Xxxxxxx EAFE Index
Portfolio and corresponding investment divisions of separate
Account products including, but not limited to, life
insurance and annuities issued by Metropolitan Life
Insurance Company and Metropolitan Tower Life Insurance
Company $
MetLife International Stock Index Portfolio $
-------------------------------------------------------------- --------
Total License Fee $
*Marks included with License Fees
---------------------------------
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx Capital International
MSCI
MSCI EAFE
Xxxxxx Xxxxxxx EAFE Index
10
EXHIBIT B
---------
Description of the Funds
11
Metropolitan Life Insurance Company
Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000
000 000-0000
[LOGO OF METLIFE(R) APPEARS HERE]
Xxxxxxx X. Xxxx
Vice-President
Tel 000-000-0000
October 19, 1998
Xx. Xxxxxx X. Xxxxxxx
Managing Director
Xxxxxx Brothers Inc.
3 World Financial Center 11th Fl.
Xxx Xxxx, XX 00000-0000
Dear Xxxxxx:
I am delighted that Xxxxxx Brothers has agreed to license Metropolitan Life
Insurance Company ("MetLife") the use of the Xxxxxx Brothers indices and name
(collectively the "Licenses") in our upcoming new portfolio. As stated in your
September 18, 1998 letter to Xxxx Xxxxxxx, MetLife is licensed to use the Xxxxxx
Brothers bond indices as the basis for a MetLife index fund. You later agreed in
a telephone conversation with Xxxxxx Xxxxxx Xxxxx that MetLife could also use
"Xxxxxx Brothers Aggregate Bond Index" as the name of the new bond index
portfolio of the Metropolitan Series Fund and the corresponding investment
divisions of MetLife and its subsidiaries and affiliates (the "Portfolio").
In order to proceed in accordance with our mutual understanding, we would
like to reach agreement about the following terms and conditions that will
govern the Licenses:
1. The non-exclusive, non-transferable, world-wide Licenses shall commence as of
the date of this letter and shall continue for a period of one year from the
above date, subject to prior termination for material breach of this agreement;
and, shall renew automatically, subject to 90 days advance written notice by
either party.
2. Each party shall indemnify the other against any and all judgments, damages,
costs or losses of any kind (including reasonable attorneys fees; collectively
"Losses") as a result of claims or actions brought by third parties, as follows:
(a) MetLife will indemnify Xxxxxx Brothers with respect to claims or action
which arise from the Portfolio; provided that MetLife shall have no liability to
Xxxxxx Brothers to the extent such Losses arise from the willful act or omission
of Xxxxxx Brothers; and (b) Xxxxxx Brothers agrees to indemnify MetLife (and its
subsidiaries and affiliates) with respect to any type to intellectual property,
misappropriation, dilution, infringement, or trade secret claims or actions
which arise by virtue of MetLife's use of the Xxxxxx Brothers bond indices,
names, trademarks, and service marks; provided that Xxxxxx Brothers shall have
no liability to MetLife to the extent such Losses arise from MetLife's
unauthorized use of such indices, names,
trademarks, and service marks. The indemnification by both parties shall survive
the termination or expiration of the Licenses.
3. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES FOR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF OR IF IT COULD
HAVE FORESEEN SUCH DAMAGES.
4. MetLife shall include the following disclaimer in informational materials and
contracts relating to the Portfolio as follows:
Xxxxxx Xxxxxxx sponsors the MSCI EAFE Index, Xxxxxx Brothers sponsors the
Xxxxxx Brothers Aggregate Bond Index, the McGraw Hill Companies, Inc.
sponsors the Standard and Poor's 500 Composite Stock Price Index, and Xxxxx
Xxxxxxx Company sponsors the Xxxxxxx 2000 Index (together referred to as
"index sponsors"). The index sponsors have no responsibility for and do not
participate in the management of the Portfolio's assets or sale of the
Portfolio's shares. Each index and its associated trademarks and service
marks are the exclusive property of the respective index sponsors.
5. Xxxxxx Brothers agrees to the extent that one or more informational materials
and contracts are bound together in a single volume, or otherwise distributed
together, MetLife is not obligated to apply the foregoing disclaimer more than
once in the bound materials. Xxxxxx Brothers also agrees to work with MetLife to
revise any disclaimers to the extent such revisions are required by a
governmental agency having jurisdiction over MetLife or the Portfolio.
6. Notices will be sent to each other (or a designee) pursuant to this letter by
certified mail or Federal Express or similar overnight carrier.
If you agree with the foregoing, please sign below and return this letter
to me. We believe that the expected success of the Metropolitan Series Fund
should also bring even greater brand recognition to Xxxxxx Brothers. We
appreciate your cooperation with our endeavor.
Sincerely,
/s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
AGREED TO BY:
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
Xxxxxx Brothers Inc.
