EXHIBIT 2.2
AGREEMENT
THIS AGREEMENT, made as of this ____th day of May, 2013, (the "Effective
Date") by and between Ibbotson Associates, Inc. ("Ibbotson"), an Illinois
corporation, and Invesco Capital Markets, Inc. ("Invesco"), a Delaware
corporation.
WITNESSETH:
WHEREAS, Ibbotson is an investment adviser registered under the Investment
Advisers Act of 1940, as amended (the "Advisers Act");
WHEREAS, Invesco sponsors, underwrites and distributes a wide array of unit
investment trusts ("UITs");
WHEREAS, Invesco desires to establish one or more UITs that will each
initially invest solely in securities selected by Ibbotson in accordance with
the securities selection criteria set forth in Exhibit A attached hereto (the
"Trusts");
WHEREAS, Invesco further desires the services of Ibbotson in advising and
consulting with Invesco with respect to securities selection in accordance with
the description of the securities selection criteria set forth in Exhibit A
attached hereto, and the investment concerns and strategies of Ibbotson, such
analysis to be provided to Invesco in the form of a methodology report (the
"Methodology Report");
WHEREAS, Invesco, on behalf of the Trusts, desires to license the Ibbotson
Property (as hereinafter defined) for use in connection with the Trusts;
WHEREAS, Invesco, on behalf of the Trusts, desires the services of Ibbotson
to act as Supervisor, as defined by the trust indenture governing a particular
Trust, in connection with the Trusts; and
WHEREAS, Ibbotson is willing to provide the aforesaid services to Invesco
under the terms and conditions hereinafter set forth; and Ibbotson is willing to
license the Ibbotson Property to Invesco and the Trusts under the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Grant of License. (a) Subject to the terms and conditions of this
Agreement, Ibbotson hereby grants to Invesco and the Trusts, a limited,
non-transferable license with no right to sub-license, to use and refer within
the United States to the service marks "Ibbotson Associates, Inc." and
"Ibbotson" (referred herein as the "Ibbotson Property") solely in connection
with the Trusts, in such manner as may be deemed to be appropriate by Invesco,
subject to the prior approval of Ibbotson, which approval shall not be
unreasonably withheld.
(b) Ibbotson covenants and agrees that no person or entity other than Invesco
shall need to obtain any other license with respect to the Ibbotson Property in
connection with the initial sale of the Trusts or subsequent resales of the
Trusts in the secondary market.
(c) Ibbotson represents and warrants that they own all proprietary rights in
and to the Ibbotson Property for use in connection with the creation and
distribution of unit investment trusts and in connection with the provision of
the services contemplated by this Agreement and have the right to license the
same to Invesco and the Trusts pursuant to this Agreement.
Except as otherwise specifically provided herein, Ibbotson reserves all
rights to the Ibbotson Property and this Agreement shall not be construed to
transfer to Invesco any ownership right to, or equity interest in, any of the
Ibbotson Property. Such license shall terminate upon termination of this
Agreement.
2. Identification of Consultation on Securities. (a) During the term of this
Agreement, Invesco shall provide Ibbotson with reasonable advance notice of the
filing of each registration statement (inclusive of any post-effective
amendments) pertaining to a Trust ("Registration Statement") and, subject to the
foregoing, Ibbotson will provide to Invesco within ten (10) days of Invesco's
written request the Methodology Report and a list of all securities that fit
within the parameters described in Exhibit A in connection with each Trust (the
"Identified Securities"). Such Identified Securities will be deposited in the
related Trust's portfolio (the "Portfolio Securities"); provided, however, that
Invesco reserves the right to modify the initial Portfolio Securities based upon
all information available to it, including, among other factors, market
capitalization and liquidity considerations, subject to the prior approval of
Ibbotson, which approval will not be unreasonably withheld.
(b) Ibbotson will provide Invesco with information reasonably requested by
Invesco about the Portfolio Securities for use by Invesco in preparing updated
prospectus disclosure and marketing materials for the Trusts. Ibbotson also
agrees to review and comment upon disclosure in the Registration Statement
referred to in Section 13 hereof.
(c) Ibbotson shall periodically consult with and advise Invesco regarding the
securities or methodologies used to identify those securities for inclusion in
any Trust at a time and place mutually agreed upon by the parties. With the
prior consent of Ibbotson, which consent will not be unreasonably withheld,
Invesco may permit others to participate in these consultations.
3. Supervision. Ibbotson shall act as Supervisor, as defined by the trust
agreement governing the particular Trust, in accordance with such trust
agreement. The terms of the trust agreement applicable to the Supervisor are
incorporated herein by reference. In the event that any provision in this
Agreement conflicts in any way with the trust agreement governing a particular
Trust, the provisions of the trust agreement in respect thereof shall control.
4. Ibbotson's Services Unique. Ibbotson and Invesco agree that the services
to be performed by Ibbotson as set forth herein are unique and may not be
performed by anyone other than Ibbotson.
5. Fees. (a) For the license granted pursuant to Section 1, Invesco, on
behalf of each of the Trusts, agrees that each Trust shall pay Ibbotson an fee
equal to ten basis points per annum (0.10%) of the average daily Evaluation
Price of such Trust, (the "License Fees"). The trustee of each Trust shall
accrue such basis point fee daily and pay such fee to Ibbotson within fifteen
(15) days following the end of each calendar quarter during the term of such
Trust. "Evaluation Price" shall mean the "current net asset value" as defined in
the Investment Company Act of 1940, as amended.
(b) In addition to the fees payable pursuant to section 5(a), for the
services to be performed pursuant to Section 2, Invesco, on behalf of each
Trust, agrees that each Trust shall pay Ibbotson a fee equal to five basis
points (0.05%) of the Evaluation Price of such Trust as of the end of the
initial offering period of such Trust. Such fee shall be paid by the trustee of
each Trust to Ibbotson within thirty (30) days following the end of the initial
offering period of each Trust.
(c) In addition to the fees payable pursuant to sections 5(a) and
5(b), for the services to be performed pursuant to Section 3, Invesco, on behalf
of each Trust, agrees that each Trust shall pay Ibbotson a fee equal to five
basis points per annum (0.05%) of the average daily Evaluation Price in
accordance with the terms of the trust agreement governing such Trust. The
trustee of each Trust shall accrue such basis point fee daily and pay such fee
to Ibbotson within fifteen (15) days following the end of each calendar quarter
during the term of such Trust. "Evaluation Price" shall mean the "current net
asset value" as defined in the Investment Company Act of 1940, as amended.
(d) For the license granted pursuant to Section 1, Ibbotson shall
receive an annual minimum fee of $75,000, beginning on the Effective Date. On
each anniversary of the Effective Date for the term of this Agreement, Invesco
shall compare the basis point fees paid by the Trusts to Ibbotson pursuant to
sections 5(a), 5(b) and 5(c) with the Annual Minimum Fee. If the total amount of
License Fees paid by the Trusts during the previous year pursuant to sections
5(a), 5(b) and 5(c) is less than the Annual Minimum License Fee, Invesco will
pay Ibbotson the difference (the "Shortfall Payment"); provided that the
Shortfall Payment shall only be made if Invesco has brought to market a series
of the Trust during the previous year (as measured from the Effective Date or
last anniversary of the Effective Date). Should the basis point fees paid
pursuant to Sections 5(a), 5(b), and 5(c), exceed the Annual Minimum License
Fee, no Shortfall Payment will be owed to Ibbotson.
(e) Within 15 days of the end of each calendar quarter, Invesco will
provide Ibbotson with a report summarizing the calculation of the fees in
Section 5, including the average daily Evaluation Price used as the fee
calculation. Invesco will send such information to Ibbotson's designated email
address: xxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx, or other such address as indicated
by Ibbotson.All fees under this agreement should be remitted to Ibbotson as
follows:
Checks:
Ibbotson Associates, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
ACH/Wiring Instructions:
Bank:
Beneficiary: Ibbotson Associates, Inc.
Swift Code:
ABA(ACH):
ABA(FED):
Account:
Please reference invoice number on payment
6. Term. Subject to Section 9, the term of this Agreement shall commence and
continue as described in this Section. The term of this Agreement shall commence
as of the Effective Date and shall remain in full force and effect until the
second (2nd) anniversary of the Effective Date, unless this Agreement is
terminated earlier as provided herein (such term being referred to as the
"Initial Term"). At the end of the Initial Term, this Agreement shall
automatically renew for successive one-year periods unless a party terminates
the Agreement by providing the other party a written notice to that effect
ninety (90) days prior to the end of the then-current term.
7. Assignment. Neither of the parties hereto may assign (including within the
meaning of the Advisers Act) its respective rights and obligations under this
Agreement without the prior written consent of the other.
8. Relationship of the Parties. The parties understand and agree that this
Agreement shall not be deemed to create any partnership or joint venture between
Invesco and Ibbotson, and that any services performed hereunder by Ibbotson
shall be as an independent contractor and not as an employee or agent of Invesco
or any Trust. Ibbotson shall have no authority whatsoever to bind Invesco or any
Trust on any agreement or obligation and Ibbotson agrees that Ibbotson shall not
hold itself out as an employee or agent of Invesco or any Trust.
9. Termination. (a) Ibbotson may terminate this Agreement immediately upon a
material breach of any representation, warranty or covenant of Invesco that is
not remedied within ten (10) business days after written notice.
(b) Invesco may terminate this Agreement immediately upon a material breach
of any representation, warranty or covenant of Ibbotson that is not remedied
within ten (10) business days after written notice thereof.
(c) Ibbotson and Invesco may terminate this Agreement at any time upon the
execution by all parties of a written agreement to that effect.
(d) Any termination under Section 9(a) or (b) shall not limit any other
remedies for breach the non-breaching party may have at law or in equity.
Notwithstanding any provision of this Agreement to the contrary, termination of
this Agreement shall not constitute termination of any Trust.
(e) With the exception of termination by Invesco pursuant to section 9(b)
above, Invesco agrees and acknowledges that Invesco's obligation to pay the fees
set forth in sections 5(a), 5(b), and 5(c) shall survive termination of this
Agreement, and Invesco shall pay to Ibbotson the fees set forth in sections
5(a), 5(b), and 5(c) until such time as the Trusts subject to this Agreement
have terminated pursuant to the agreements establishing the Trusts.
10. Confidentiality. (a) The parties agree that certain material and
information which has or may come into the possession or knowledge of each in
connection with this Agreement or the performance hereof (e.g., proprietary
business information (including, without limitation, the names and addresses or
other personal information of customers, distributors, information providers and
suppliers)), consists of confidential and proprietary data whose disclosure to
or use by third parties would be damaging. In addition, the parties may
reasonably designate, by notice in writing delivered to the other parties, other
information as being confidential or a trade secret.
(b) All such proprietary or confidential information of each party hereto
shall be kept secret by the other party to the degree it keeps secret its own
confidential or proprietary information. Such information belonging to a party
shall not be disclosed by the other party to its employees, officers, agents,
service providers or affiliates, except on a need-to-know basis, but may be
disclosed by such other party to State, Federal, or other governmental agencies,
authorities or courts as required by law or regulation, or upon their order or
request provided prompt notice of such order or request is given by such party
to the party to which such information belongs, if such notice is legally
permitted.
(c) No information that would otherwise be proprietary or confidential for
purposes of this Agreement pursuant to subsections (a) or (b) above shall be
subject to the restrictions on disclosure imposed by this Section in the event
and to the extent that (i) such information is in, or becomes part of, the
public domain otherwise than through the fault of a party to which such
information does not belong, (ii) such information was known to such party prior
to the execution of this Agreement, or (iii) such information was revealed to
such party by a third person, and which the receiving party reasonably believes
has been obtained by such third person not in violation of any existing
confidentiality or non-disclosure agreement.
(d) Each party acknowledges and agrees that a breach of this Section 10 would
cause a permanent and irreparable damage for which money damages would be an
inadequate remedy. Therefore, each party shall be entitled to seek equitable
relief (including injunction and specific performance) in the event of any
breach of the provisions of this Section 10, in addition to all other remedies
available to such party at law or in equity.
(e) The covenants set forth in this Section 10 shall survive the termination
of this Agreement.
11. Covenants. During the period of this Agreement and for as long as any of
the Trusts remains outstanding, each of the parties agree to:
(a) comply with all codes, regulations and laws applicable to the performance
of its obligations under this Agreement and obtain or have obtained all
necessary permits, licenses and other authorizations necessary for such
performance and maintain its business reputation and good standing;
(b) take such other actions as the other party hereto may reasonably request
to more effectively carry out its obligations under this Agreement; and
(c) do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations, including, but not by way of limitation,
obtaining all consents, approvals, and authorizations, required of such party in
connection with the consummation of the transactions contemplated by this
Agreement. No party shall take any action that would be expected to result in
any of its representations and warranties set forth in this Agreement being or
becoming untrue in any material respect.
In addition, Ibbotson may not refer to Invesco or any affiliates in any kind
of communications, whether oral, written or electronic, or otherwise, and
whether in a piece published by Ibbotson or in response to questions of the
media or others, without Invesco's prior written consent, except that Ibbotson
may describe the services provided under this Agreement to the extent that such
services are described in any registration statement or other publicly available
materials produced by Invesco.
12. Indemnification. (a) By Invesco. In the event any claim is brought by any
third party against Ibbotson or any of its affiliates that relates to, arises
out of or is based upon the performance by Invesco of its obligations hereunder,
or the failure of Invesco, or any of Invesco's affiliates, as the case may be,
to comply with any law, rule or regulation relating to the Trusts, or use of the
Ibbotson Property by the Trusts, Invesco, or any of Invesco's affiliates,
Ibbotson or any of its affiliates shall promptly notify Invesco and Invesco
shall defend such claim at Invesco's expense and under Invesco's control.
Invesco shall indemnify and hold harmless Ibbotson or any of its affiliates
against any judgment, liability, loss, cost or damage (including litigation
costs and reasonable attorneys' fees) arising from or related to such claim
whether or not such claim is successful. Ibbotson or any of its affiliates shall
have the right, at their expense, to participate in the defense of such claim
through counsel of their own choosing; provided, however, that Invesco shall not
be required to pay any settlement amount that it has not approved in advance.
Notwithstanding the above, neither Ibbotson nor any of its affiliates shall be
entitled to indemnification hereunder to the extent that the judgment,
liability, loss, cost or damage arising from a claim for which indemnification
is sought hereunder results directly or indirectly from the gross negligence or
willful misconduct of Ibbotson or any of its affiliates, or Ibbotson's actions
or inactions in connection with its role as Supervisor.
(b) By Ibbotson. In the event any claim is brought by any third party against
Invesco, any of the Trusts, or any of Invesco's affiliates that relates to,
arises out of or is based upon the performance by Ibbotson of its obligations
hereunder, or the failure of Ibbotson to comply with any law, rule or
regulation, Invesco, the Trusts, or Invesco's affiliates, as the case may be,
shall promptly notify Ibbotson and Ibbotson shall defend such claim at its
expense and under its control. Ibbotson shall indemnify and hold harmless
Invesco, the Trusts, and Invesco's affiliates against any judgment, liability,
loss, cost or damage (including litigation costs and reasonable attorneys' fees)
arising from or related to such claim, whether or not such claim is successful.
Invesco, the Trusts, or Invesco's affiliates, as the case may be, shall have the
right, at their expense, to participate in the defense of such claim through
counsel of their own choosing; provided, however, Ibbotson shall not be required
to pay any settlement amount that it has not approved in advance.
Notwithstanding the above, neither Invesco, the Trusts, nor any of Invesco's
affiliates shall be entitled to indemnification hereunder to the extent that the
judgment, liability, loss, cost or damage arising from a claim for which
indemnification is sought hereunder results directly or indirectly from the
gross negligence or willful misconduct of Invesco, the Trusts, or Invesco's
affiliates.
(c) The indemnifications set forth in this Section 12 shall survive the
termination of this Agreement for any cause whatsoever.
13. Review of Registration Statement and other materials. Ibbotson hereby
acknowledges that it has reviewed and had an opportunity to comment upon those
provisions of the Registration Statement, as amended, specifically referring to
or describing Ibbotson and the securities selection process. Invesco may also
make reference to Ibbotson Associates' name in connection with marketing and
promotional materials related to the Trusts and in any description of the
Portfolios contained in any prospectus or other regulatory filing provided that:
i) the relationship between the Ibbotson Associates and Invesco is described
as consultative in nature and not as providing sub-advisory services to
Invesco or to the Trusts;
ii) the scope of Services provided by Ibbotson is clearly disclosed;
iii) the content and information provided by Ibbotson Associates is described in
all material respects in conformity with this Agreement, as then in effect,
and;
Ibbotson must review and approve in writing each use and reference of the
Ibbotson name provided, however, that documents previously approved by Ibbotson
as to which statistical information has simply been updated need not be
resubmitted to Ibbotson. Ibbotson agrees that such approval will not be unduly
delayed and agrees to approve all references to its name within 10 business days
of receiving a copy of such materials and a written request for their approval.
14. Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of New York without reference
to or inclusion of the principles of choice of law or conflicts of law of that
jurisdiction. It is the intent of the parties that the substantive law of the
State of New York govern this Agreement and not the law of any other
jurisdiction incorporated through choice of law or conflicts of law principles.
15. Waiver of Breach. The failure of a party to require the performance of
any term of this Agreement or the waiver of a party of any breach hereunder
shall not prevent a subsequent enforcement of such term nor be deemed a waiver
of any subsequent breach.
16. Scope of Agreement. This document constitutes the entire Agreement of the
parties with respect to the subject matter hereof, supersedes all prior oral or
written agreements with respect to the subject matter hereof, including but not
limited to the agreement between the parties dated March 24, 2008, and can be
amended only by a writing executed by all of the parties.
17. Notices. All notices from any party to the other pursuant to this
Agreement shall be in writing or by facsimile transmission and shall be sent to
the following addresses, or to such addresses as the parties hereto may be
notified in writing from time to time:
If to Ibbotson:
Ibbotson Associates, Inc.
00 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
If to Invesco:
0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
With a copy to:
Invesco Capital Markets, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Office of the General Counsel
Notices shall be deemed given upon receipt via certified mail, overnight
courier, or hand delivery.
18. Severability. In the event that any provision of this Agreement or
application hereof to any person or in any circumstances shall be determined to
be invalid, unlawful, or unenforceable to any extent, the remainder of this
Agreement, and the application of any provision to persons or circumstances
other than those as to which it is determined to be unlawful, invalid or
enforceable, shall not be affected thereby, and each remaining provision of this
Agreement shall continue to be valid and may be enforced to the fullest extent
permitted by law.
19. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to
be executed by a duly authorized representative thereof as of the date first
above written.
INVESCO CAPITAL MARKETS, INC.
By:________________________________
Name: _____________________________
Title: ______________________________
IBBOTSON ASSOCIATES, INC.
By:_______________________________
Name: ____________________________
Title:______________________________
EXHIBIT A
Ibbotson will select securities considered to have low correlation to U.S.
equity and bond markets which may include exchange-traded funds, exchange-traded
notes and investment companies registered under the Investment Company Act of
1940 or other similar securities. The securities will be designed to take
advantage of the potential benefits of investing in a variety of investment
vehicles across "non-traditional" asset classes.
