SUBLICENSE AGREEMENT
Exhibit (h)(9)
This Sublicense Agreement (the “Agreement”) is made as of September 25, 2024, between Xxxxxx Asset Management, LLC, a Connecticut limited liability
company, and Select STOXX Europe Aerospace & Defense ETF, a series of Spinnaker ETF Series, a statutory trust established under the laws of the State of Delaware (the “Registrant”).
RECITALS
WHEREAS, pursuant to that certain License Agreement dated as of May 1, 2024 (as amended from time to time, the “License Agreement”) between STOXX Ltd.
(“STOXX”) and Aerodef LLC, Aerodef LLC obtained a license to use, in connection with certain funds (defined in the License Agreement as “Licensed Products”), certain securities indexes owned by STOXX (“STOXX Indexes”) and associated
marks (“STOXX Marks”); and
WHEREAS, Aerodef LLC has the right, pursuant to Section 2 of the License Agreement and Section 2.1 of the ETF Order Form (as defined in the Agreement), to
grant its rights thereunder to certain entities, which include Xxxxxx Asset Management; and
WHEREAS, Xxxxxx Asset Management has the right, pursuant to Section 2 of the License Agreement and Section 2.1 of the ETF Order Form (as defined in the
Agreement), to grant its rights thereunder to certain entities, which include the Registrant; and
WHEREAS, the Registrant may wish to use STOXX Indexes and STOXX Marks in connection with the establishment of a exchange-traded fund based on a STOXX Index,
Select STOXX Europe Aerospace & Defense ETF (the “Index ETF”), and to use STOXX Marks in connection with the identification and marketing of the Index ETF and disclosures about the Index ETF under applicable laws, rules and regulations;
and
WHEREAS, Xxxxxx Asset Management wishes to grant a sublicense to the Registrant for the use of STOXX Indexes and STOXX Marks;
NOW THEREFORE, the parties agree as follows:
1. Grant of Sublicense. Subject to the terms and conditions of this Agreement, Xxxxxx Asset Management hereby grants to the Registrant a sublicense to
use the applicable STOXX Indexes and associated data, information and STOXX Marks in the manner set forth in, and subject to the terms of, the License Agreement. The Registrant shall have no right to grant a sublicense or to share use of STOXX
Indexes or STOXX Marks with any other person or entity.
2. Performance of Obligations Under the License. The Registrant will be responsible for performing all of Xxxxxx Asset Management’s executory
obligations under the License Agreement (other than the payment of license fees), as such obligations relate to use of the applicable STOXX Indexes and STOXX Marks in connection with the formation and operation of the Index ETF.
3. Fees. There shall be no fees paid to Xxxxxx Asset Management or STOXX in connection with the sublicenses obtained hereunder.
4. Termination. This Agreement shall terminate if (a) the License Agreement terminates, or (b) Xxxxxx Asset Management ceases to exercise investment
discretion over the Registrant or the Index ETF in its capacity as manager, investment adviser, trustee, or other comparable capacity. Xxxxxx Asset Management shall notify the Registrant as soon as reasonably practicable of the occurrence of an event
described in (a) above. Upon termination of this Agreement, the Registrant’s right to use the applicable STOXX Indexes and STOXX Marks shall terminate immediately.
5. Indemnification. The Index ETF shall indemnify and hold harmless Xxxxxx Asset Management, its officers, employees, agents, successors, and assigns
against all judgments, damages, costs or losses of any kind (including reasonable attorneys’ and experts’ fees) resulting from any claim, action or proceeding (collectively “claims”) that arises out of or relates to (a) the creation, marketing,
advertising, selling, and operation of the Index ETF or interests therein, (b) any breach by Xxxxxx Asset Management of its covenants, representations, and warranties under the License Agreement caused by the actions or inactions of the Index ETF, or
(c) any violation of applicable laws (including, but not limited to, banking, commodities, and securities laws) arising out of the offer, sale, operation, or trading of the Index ETF or interests therein, except to the extent such claims result from
the negligence, gross negligence or willful misconduct of Xxxxxx Asset Management. The provisions of this section shall survive termination of this Agreement.
6. Assignment. The Registrant may not make, or purport to make, any assignment or other transfer of this Agreement. Xxxxxx Asset Management may assign
its rights and obligations under this Agreement effective upon the giving of written notice to the Registrant.
7. Amendment. No provision of this Agreement may be waived, altered, or amended except by written agreement of the parties.
8. Entire Agreement. This Agreement, the License Agreement, and the ETF Order Form constitute the entire agreement between the parties hereto with
respect to the subject matter hereof.
9. Construction. Headings used in this Agreement are for convenience only and shall not affect the construction or interpretation of any of its
provisions. Each of the provisions of this Agreement is severable, and the invalidity or inapplicability of one or more provisions, in whole or in part, shall not affect any other provision. To the extent not preempted by federal law, this Agreement
shall be construed and interpreted under the laws of the State of Delaware.
10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts
together shall constitute only one instrument.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed as of the date first above written, with intent to be bound hereby.
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By:
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/s/ Xxxxxxxxx X. Honey
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| Xxxxxxxxx X. Honey, President | ||
| XXXXXX CAPITAL MANAGEMENT, LLC
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| By: |
/s/ Xxxxxxx Xxxxxx |
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| Xxxxxxx Xxxxxx, Managing Member | ||
