Exhibit (h)(d)
SUBLICENSE AGREEMENT
This Sublicense Agreement ("AGREEMENT") is entered into as of August 31,
2004 by and between PowerShares Capital Management, LLC, a Delaware corporation
with offices at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 ("POWERSHARES"), and
PowerShares Exchange-Traded Fund Trust ("LICENSEE").
WHEREAS, PowerShares, through licenses with index providers (each an "Index
Provider"), has the right to license the Indexes and Marks listed in Exhibit A,
for use in connection with the financial products listed in Exhibit A
("PRODUCTS");
WHEREAS, Licensee desires to use the Indexes and Marks in connection with
the distribution of Products and PowerShares is willing to grant Licensee a
license for such use.
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, and for good and valuable consideration set forth in the
Agreement, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. GRANT OF LICENSE. PowerShares grants Licensee a non-exclusive,
non-transferrable right and license to use and refer to the Indexes and Marks in
connection with the creation, issuance, trading and marketing of Products
pursuant to the terms and conditions of this Agreement.
2. OWNERSHIP AND VALIDITY. Licensee acknowledges Index Providers'
ownership of the entire right, title and interest in and to the Indexes and
Marks and Licensee's use shall inure to the sole benefit of the applicable Index
Provider.
3. QUALITY CONTROL. PowerShares shall have the right to monitor the
quality of the Products offered by Licensee pursuant to this Agreement. Licensee
agrees that the nature and quality of the Products using the Indexes and Marks
shall meet or exceed the standards set by PowerShares or Index Provider.
Licensee's failure to conform to such quality controls may result in the
termination of this Agreement.
Licensee shall include, unless a substitute is approved by PowerShares, in
which case such substitute shall be included, the following notice in all
informational materials relating to the licensed Indexes and Marks, and
agrees upon request to furnish a copy (copies) thereof to PowerShares:
The [Specification of applicable Index] Indexes ( the "Indexes") are
trademarks of [Specification of applicable Index Provider] (the "Index
Provider") which are licensed for use by [Licensee] in connection with
[specification of applicable Products] (the "Products"). The Products
are not sponsored or endorsed by the Index Provider and the Index
Provider makes no warranty or representation as to the accuracy and/or
completeness of the Indexes or the results to be obtained by any
person from the use of the Indexes or the trading of the Products.
4. TERM. This Agreement shall become effective upon signatures of both
parties and remain in effect unless terminated by either party as provided
herein.
5. TERMINATION. Licensee may terminate this Agreement upon sixty (60)
days prior written notice. PowerShares may terminate this Agreement upon sixty
(60) days prior written notice or immediately upon Licensee's breach of this
Agreement.
6. FEES. Licensee shall pay PowerShares a license fee for each product as
set forth in Exhibit A. The fee shall be equal to or less than the license cost
paid by PowerShares to the Index Provider. The fee shall be paid based on the
schedule as set forth below:
Licensee shall calculate the fees payable to PowerShares under this Agreement on
a calendar quarterly basis and remit to PowerShares the amount due within thirty
(30) days following the close of each quarter, with a statement of account
signed by a duly authorized officer. Each payment shall be accompanied by a full
accounting of the basis for the calculation of the fee. Licensee shall keep
accurate books and records of such account as are necessary to document all
amounts due to PowerShares hereunder and PowerShares, or its authorized agent,
shall have the right at its own expense and not more frequently than twice a
year, to examine such books of account and records to verify the payment due
hereunder, provided, however, if PowerShares determines that it has been
underpaid by five percent (5%) or more with respect to the payments being
audited, the cost of the audit shall be paid by Licensee. If such examination
discloses an overpayment or underpayment of the amounts due hereunder, an
adjusting payment shall be made within thirty (30) business days to correct such
overpayment or underpayment. Such audit right shall continue for twelve (12)
months following termination of this Agreement.
7. ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement and
the understanding between the parties. No modification or amendment of this
Agreement shall be valid or binding unless made in writing and signed on behalf
of the parties by their duly authorized officers or representatives.
8. EXECUTION. This Agreement may be executed simultaneously with any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9. GENERAL PROVISIONS.
(a) A party may not assign this Agreement and/or any of its rights and/or
obligations hereunder, except to an affiliate or successor in interest, without
the prior written consent of the other party, and any attempted assignment by a
party requiring the consent of the other party which is made by the assigning
party without the other party's prior consent shall be null and void.
(b) No change in, addition to, or waiver of any of the provisions of this
Agreement shall be binding upon either Party unless in writing signed by an
authorized representative of
such party. No waiver by either Party of any breach by the other party of any of
the provisions of this Agreement shall be construed as a waiver of that or any
other provision on any other occasion.
(c) This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Illinois, without regard to its
conflict of law provisions.
(d) In the event any one or more of the provisions of this Agreement shall
be determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall remain in effect
and the Agreement shall be read as though the offending provision had not been
written or as the provision shall be determined by such court to be read.
IN WITNESS WHEREOF, PowerShares and Licensee have caused this Agreement to
be duly executed on their behalf in the manner legally binding upon them.
POWERSHARES CAPITAL MANAGEMENT,
LLC
Signature:
----------------------------
By: H. Xxxxx Xxxx
Title: President
POWERSHARES EXCHANGE-TRADED FUND
TRUST
Signature:
----------------------------
By; H. Xxxxx Xxxx
Title: Chairman and CEO
EXHIBIT A
INDEX PROVIDER MARKS
-------------------------------------------------------------
AMEX American Stock Exchange
AMEX Amex
AMEX Amex Listed
AMEX Intellidex
Value Line Value Line Rank 1 Strategy
Value Line Value Line
Value Line The Value Line Investment Survey
Value Line Value Line Publishing, Inc.
Zacks Zacks Investment Management Inc.
Zacks Zacks Rank
Zacks Zacks Investment Research
USX China Halter Financial Inc.
USX China USX China Index
Mergent Mergent
Mergent Dividend Achievers
WilderShares WilderShares LLC
WilderShares WilderHill Clean Energy Index
INDEX PROVIDER INDEX AND XXXX LICENSE FEE POWERSHARES PRODUCT
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AMEX Dynamic Market Intellidex(SM) Index 0.03% Dynamic Market Portfolio
AMEX Dynamic OTC Intellidex(SM) Index 0.03% Dynamic OTC Portfolio
AMEX Dynamic Large Cap Growth Intellidex(SM) Index 0.03% Dynamic Large Cap Growth Portfolio
AMEX Dynamic Consumer Electronics Intellidex(SM) Index 0.03% Dynamic Consumer Electronics Portfolio
AMEX Dynamic Large Cap Value Intellidex(SM) Index 0.03% Dynamic Large Cap Value Portfolio
AMEX Dynamic Mid Cap Growth Intellidex(SM) Index 0.03% Dynamic Mid Cap Growth Portfolio
AMEX Dynamic Mid Cap Value Intellidex(SM) Index 0.03% Dynamic Mid Cap Value Portfolio
AMEX Dynamic Small Cap Growth Intellidex(SM) Index 0.03% Dynamic Small Cap Growth Portfolio
AMEX Dynamic Small Cap Value Intellidex(SM) Index 0.03% Dynamic Small Cap Value Portfolio
AMEX Dynamic Aerospace & Defense Intellidex(SM) Index 0.03% Dynamic Aerospace & Defense Portfolio
AMEX Dynamic Biotechnology & Genome Intellidex(SM) Index 0.03% Dynamic Biotechnology & Genome Portfolio
AMEX Dynamic Leisure and Entertainment Intellidex(SM) Index 0.03% Dynamic Leisure and Entertainment Portfolio
AMEX Dynamic Food & Beverage Intellidex(SM) Index 0.03% Dynamic Food & Beverage Portfolio
AMEX Dynamic Hardware Intellidex(SM) Index 0.03% Dynamic Hardware Portfolio
AMEX Dynamic Brand Name Products Intellidex(SM) Index 0.03% Dynamic Brand Name Products Portfolio
AMEX Dynamic Internet Software & Services Intellidex(SM) Index 0.03% Dynamic Internet Software & Services Portfolio
AMEX Dynamic Media Intellidex Index 0.03% Dynamic Media Portfolio
AMEX Dynamic Networking Intellidex(SM) Index 0.03% Dynamic Networking Portfolio
AMEX Dynamic Pharmaceuticals Intellidex(SM) Index 0.03% Dynamic Pharmaceuticals Portfolio
AMEX Dynamic Semiconductors Intellidex(SM) Index 0.03% Dynamic Semiconductors Portfolio
AMEX Dynamic Software Intellidex(SM) Index 0.03% Dynamic Software Portfolio
AMEX Dynamic Telecommunication Services Intellidex(SM) Index 0.03% Dynamic Telecommunication Services Portfolio
AMEX Dynamic Wireless Intellidex(SM) Index 0.03% Dynamic Wireless Portfolio
INDEX PROVIDER INDEX AND XXXX LICENSE FEE POWERSHARES PRODUCT
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USX / Halter USX China Index(SM) 0.10% Golden Dragon Halter USX China Portfolio
WilderShares WilderHill Clean Energy Index 0.10% WilderHill Clean Energy Portfolio
Mergent Inc. Dividend Achievers(TM)50 Index 0.10% High Yield Equity Dividend Achievers(TM)Portfolio
Zacks Inv Mgmt Zacks Rank Large Cap Index 0.10% Zacks Rank Large Cap Portfolio
Zacks Investment Research
Value Line Value Line #1 Timeliness(TM)and Safety(TM)Index 0.10% Value Line #1 Timeliness(TM)and Safety(TM)Portfolio
Value Line Marks
