AGREEMENT
THIS AGREEMENT, made as of this ______ day of March, 2008, by and between
Ibbotson Associates, Inc. ("Ibbotson"), an Illinois corporation, and Xxx Xxxxxx
Funds Inc. ("Xxx Xxxxxx"), a Delaware corporation.
WITNESSETH:
WHEREAS, Ibbotson is an investment adviser registered under the Investment
Advisers Act of 1940, as amended (the "Advisers Act");
WHEREAS, Xxx Xxxxxx sponsors, underwrites and distributes a wide array of
unit investment trusts ("UITs");
WHEREAS, Xxx Xxxxxx 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, Xxx Xxxxxx further desires the services of Ibbotson in advising and
consulting with Xxx Xxxxxx 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 Xxx Xxxxxx in the form of a methodology report (the
"Methodology Report");
WHEREAS, Xxx Xxxxxx, on behalf of the Trusts, desires to license the Ibbotson
Property (as hereinafter defined) for use in connection with the Trusts;
WHEREAS, Xxx Xxxxxx, 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 Xxx Xxxxxx
under the terms and conditions hereinafter set forth; and Ibbotson is willing to
license the Ibbotson Property to Xxx Xxxxxx 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 Xxx Xxxxxx 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 Xxx
Xxxxxx, 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 Xxx
Xxxxxx 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 Xxx Xxxxxx 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 Xxx Xxxxxx 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, Xxx Xxxxxx 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 Xxx Xxxxxx within ten (10) days of Xxx
Xxxxxx'x 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 Xxx Xxxxxx 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 Xxx Xxxxxx with information reasonably requested by
Xxx Xxxxxx about the Portfolio Securities for use by Xxx Xxxxxx 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 Xxx Xxxxxx 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, Xxx
Xxxxxx 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 Xxx Xxxxxx 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, Xxx Xxxxxx, on
behalf of each of the Trusts, agrees that each Trust shall pay Ibbotson an
annual fee equal to ten basis points (0.10%) of the average daily Evaluation
Price of such Trust (the "License Fees"). The trustee of each Trust shall accrue
such fee daily and pay such fee to Ibbotson in installments 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. Xxx Xxxxxx shall make an advance
payment of License Fees to Ibbotson on the Effective Date (as hereinafter
defined) in the amount of $75,000 for the first year of this Agreement and shall
make an advance payment of License Fees in the amount of $125,000 on the
anniversary of the Effective Date for each additional year for the term of this
Agreement (each an "Advance Payment" and collectively, the "Advance Payments"),
which shall be applied against future License Fees payable hereunder for the
year in which such Advance Payment is made until such fees total such amount and
thereafter the License Fees payable hereunder shall be paid within thirty (30)
days following the close of each calendar quarter in which such fees are
incurred.
(b) For the services to be performed pursuant to Section 2, Xxx Xxxxxx, 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) For the services to be performed pursuant to Section 3, Xxx Xxxxxx, on
behalf of each Trust, agrees that each Trust shall pay Ibbotson in accordance
with the terms of the trust agreement governing such Trust.
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 date set forth above (the "Effective Date") and shall remain in full
force and effect until the fifth (5th) 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
Xxx Xxxxxx and Xxxxxxxx, and that any services performed hereunder by Ibbotson
shall be as an independent contractor and not as an employee or agent of Xxx
Xxxxxx or any Trust. Ibbotson shall have no authority whatsoever to bind Xxx
Xxxxxx or any Trust on any agreement or obligation and Ibbotson agrees that
Ibbotson shall not hold itself out as an employee or agent of Xxx Xxxxxx or any
Trust.
9. Termination. (a) Ibbotson may terminate this Agreement immediately upon a
material breach of any representation, warranty or covenant of Xxx Xxxxxx that
is not remedied within ten (10) business days after written notice.
(b) Xxx Xxxxxx 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 Xxx Xxxxxx 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.
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 Xxx Xxxxxx 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 Xxx Xxxxxx'x 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 Xxx Xxxxxx.
12. Indemnification. (a) By Xxx Xxxxxx. 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 Xxx Xxxxxx of its obligations
hereunder, or the failure of Xxx Xxxxxx, or any of Xxx Xxxxxx'x 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, Xxx Xxxxxx, or any of Xxx
Xxxxxx'x affiliates, Ibbotson or any of its affiliates shall promptly notify Xxx
Xxxxxx and Xxx Xxxxxx shall defend such claim at Xxx Xxxxxx'x expense and under
Xxx Xxxxxx'x control. Xxx Xxxxxx 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 Xxx Xxxxxx 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
Xxx Xxxxxx, any of the Trusts, or any of Xxx Xxxxxx'x 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, Xxx Xxxxxx, the Trusts, or Xxx Xxxxxx'x 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
Xxx Xxxxxx, the Trusts, and Xxx Xxxxxx'x 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. Xxx Xxxxxx, the Trusts, or Xxx Xxxxxx'x 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 Xxx Xxxxxx, the Trusts,
nor any of Xxx Xxxxxx'x 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 Xxx
Xxxxxx, the Trusts, or Xxx Xxxxxx'x 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. Xxx Xxxxxx 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 Xxx Xxxxxx is
described as consultative in nature and not as providing sub-advisory services
to Xxx Xxxxxx 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, 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.
====================
If to Xxx Xxxxxx:
0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
With copy to :
Xxx Xxxxxx Funds Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, 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.
XXX XXXXXX FUNDS 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.
