EXHIBIT 99.(h)(d)
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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 Power Shares 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 I 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
-------------- -------------- ----------- -------------------
AMEX Dynamic Market Intellidex Index 0.03% Dynamic Market Portfolio
AMEX Dynamic OTC Intellidex Index 0.03% Dynamic OTC Portfolio
AMEX Dynamic Large Cap Growth Intellidex Index 0.03% Dynamic Large Cap Growth Portfolio
AMEX Dynamic Consumer Electronics Index 0.03% Dynamic Consumer Electronics Portfolio
AMEX Dynamic Large Cap Value Intellidex Index 0.03% Dynamic Large Cap Value Portfolio
AMEX Dynamic Mid Cap Growth Intellidex Index 0.03% Dynamic Mid Cap Growth Portfolio
AMEX Dynamic Mid Cap Value Intellidex Index 0.03% Dynamic Mid Cap Value Portfolio
AMEX Dynamic Small Cap Growth Intellidex Index 0.03% Dynamic Small Cap Growth Portfolio
AMEX Dynamic Small Cap Value Intellidex Index 0.03% Dynamic Small Cap Value Portfolio
AMEX Dynamic Aerospace & Defense Intellidex Index 0.03% Dynamic Aerospace & Defense Portfolio
AMEX Dynamic Biotechnology & Genome Intellidex 0.03% Dynamic Biotechnology & Genome Portfolio Index
AMEX Dynamic Leisure and Entertainment Intellidex Index 0.03% Dynamic Leisure and Entertainment Portfolio
AMEX Dynamic Food & Beverage Intellidex Index 0.03% Dynamic Food & Beverage Portfolio
AMEX Dynamic Hardware Intellidex Index 0.03% Dynamic Hardware Portfolio
AMEX Dynamic Brand Name Products Intellidex Index 0.03% Dynamic Brand Name Products Portfolio
AMEX Dynamic Internet Software & Services Intellidex Index 0.03% Dynamic Internet Software & Services Portfolio
AMEX Dynamic Media Intellidex Index 0.03% Dynamic Media Portfolio
AMEX Dynamic Networking Intellidex Index 0.03% Dynamic Networking Portfolio
AMEX Dynamic Pharmaceuticals Intellidex Index 0.03% Dynamic Pharmaceuticals Portfolio
AMEX Dynamic Semiconductors Intellidex Index 0.03% Dynamic Semiconductors Portfolio
AMEX Dynamic Software Intellidex Index 0.03% Dynamic Software Portfolio
AMEX Dynamic Telecommunication Services Intellidex Index 0.03% Dynamic Telecommunication Services Portfolio
AMEX Dynamic Wireless Intellidex Index 0.03% Dynamic Wireless Portfolio
INDEX PROVIDER INDEX AND XXXX LICENSE FEE POWERSHARES PRODUCT
-------------- -------------- ----------- -------------------
AMEX Dynamic Market Intellidex Index 0.03% Dynamic Market Portfolio
AMEX Dynamic OTC Intellidex Index 0.03% Dynamic OTC Portfolio
AMEX Dynamic Large Cap Growth Intellidex Index 0.03% Dynamic Large Cap Growth Portfolio
AMEX Dynamic Consumer Electronics Index 0.03% Dynamic Consumer Electronics Portfolio
AMEX Dynamic Large Cap Value Intellidex Index 0.03% Dynamic Large Cap Value Portfolio
AMEX Dynamic Mid Cap Growth Intellidex Index 0.03% Dynamic Mid Cap Growth Portfolio
AMEX Dynamic Mid Cap Value Intellidex Index 0.03% Dynamic Mid Cap Value Portfolio
AMEX Dynamic Small Cap Growth Intellidex Index 0.03% Dynamic Small Cap Growth Portfolio
AMEX Dynamic Small Cap Value Intellidex Index 0.03% Dynamic Small Cap Value Portfolio
AMEX Dynamic Aerospace & Defense Intellidex Index 0.03% Dynamic Aerospace & Defense Portfolio
AMEX Dynamic Biotechnology &Genome Intellidex Index 0.03% Dynamic Biotechnology & Genome Portfolio
AMEX Dynamic Leisure and Entertainment Intellidex Index 0.03% Dynamic Leisure and EntertainmentPortfolio
AMEX Dynamic Food & Beverage Intellidex Index 0.03% Dynamic Food & Beverage Portfolio
AMEX Dynamic Hardware Intellidex Index 0.03% Dynamic Hardware Portfolio
AMEX Dynamic Brand Name Products Intellidex Index 0.03% Dynamic Brand Name Products Portfolio
AMEX Dynamic Internet Software & Services Intellidex Index 0.03% Dynamic Internet Software & Services Portfolio
AMEX Dynamic Media Intellidex Index 0.03% Dynamic Media Portfolio
AMEX Dynamic Networking Intellidex Index 0.03% Dynamic Networking Portfolio
AMEX Dynamic Pharmaceuticals Intellidex Index 0.03% Dynamic Pharmaceuticals Portfolio
AMEX Dynamic Semiconductors Intellidex Index 0.03% Dynamic Semiconductors Portfolio
AMEX Dynamic Software Intellidex Index 0.03% Dynamic Software Portfolio
AMEX Dynamic Telecommunication Services Intellidex Index 0.03% Dynamic Telecommunication Services Portfolio
AMEX Dynamic Wireless Intellidex Index 0.03% Dynamic Wireless Portfolio
INDEX PROVIDER INDEX AND XXXX LICENSE FEE POWERSHARES PRODUCT
-------------- -------------- ----------- -------------------
USX / Halter USX China Index 0.10% Halter Golden Dragon China Portfolio
WilderShares WilderHill Clean Energy Index 0.10% Xxxxxx Alternative Power Technologies
Portfolio
Mergent Inc. Dividend Achievers 50 Index 0.10% High Yield Equity Dividend Achievers
Portfolio
Zacks Inv Mgmt Zacks Rank Large Cap Index
Zacks Investment Research 0.10% Zacks Rank Large Cap Portfolio
Value Line Value Line Timeliness and Safety Index
Value Line Marks 0.10% Value Line Timeliness and Safety
Portfolio
