Exhibit (h.3.ii)
SUBLICENSE AGREEMENT
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This Sublicense Agreement (the "Agreement") is made as of April 25,
2000, by and between Barclays Global Investors, N.A., a national banking
association organized under the laws of the United States ("BGI") and iShares
Trust, a business trust established under the laws of the State of Delaware
("iShares").
RECITALS
WHEREAS, pursuant to that certain "License Agreement" dated December
9, 1999 (the "License Agreement") between Dow Xxxxx & Company, Inc.(Dow Xxxxx),
a Delaware corporation, and BGI, BGI obtained a license to use in connection
with "BGI Funds" (as that term is defined in the License Agreement) certain
stock indexes owned and managed by Dow Xxxxx (the "Dow Xxxxx Indexes"), along
with associated marks (the "Dow Xxxxx Marks"); and
WHEREAS, BGI has the right pursuant to paragraph 3 of the License
Agreement to sublicense its rights thereunder to any BGI Fund, of which iShares
Trust is one; and
WHEREAS, iShares Trust wishes to use the Dow Xxxxx Indexes and the Dow
Xxxxx Marks in connection with the establishment of a number of exchange traded
funds (each, an "ETF"), each based on a Dow Xxxxx Index, and to use the Dow
Xxxxx Marks in connection with the identification and marketing of the ETFS and
in connection with making disclosures about the ETFS under applicable laws,
rules and regulations; and
WHEREAS, BGI wishes to grant a sublicense to iShares Trust for the use
of the Dow Xxxxx Indexes and Dow Xxxxx Marks;
NOW THEREFORE, the parties agree as follows:
19. Grant of Sublicense. Subject to the terms and conditions of this
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Agreement, BGI hereby grants to iShares Trust a sublicense to use the Dow
Xxxxx Indexes (and associated data and information) and the Dow Xxxxx Marks
listed on Exhibit A in the manner set forth in, and subject to the terms
of, the License Agreement, including without limitation the restriction in
paragraph 3 of the License Agreement that iShares Trust will not have the
further power to sublicense third parties to use the Dow Xxxxx Indexes and
the Dow Xxxxx Marks.
20. Performance of Obligations Under the License. iShares Trust will be
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responsible for performing all of BGI's executory obligations under the
License Agreement (other than the payment of license fees), as such
obligations relate to use of the Dow Xxxxx Indexes and the Dow Xxxxx Marks
in connection with the formation and operation of BGI Funds (as that term
is defined in the License Agreement).
21. Fees. iShares Trust shall have no obligation to pay any sublicense fees to
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BGI or Dow Xxxxx under this sublicense agreement.
22. Termination. This Agreement shall terminate if (a) the License Agreement
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terminates, or (b) BGI or a BGI Affiliate ceases to exercise investment
discretion over the iShares Trust or any ETF in its capacity as manager,
investment adviser, trustee, or other comparable capacity. BGI shall notify
iShares Trust as soon as reasonably practicable of the occurrence of an
event described in (a) above. Upon termination of this Agreement, iShares
Trust's right to use the Dow Xxxxx Indexes and the Dow Xxxxx Marks shall
terminate immediately.
23. Indemnification. iShares Trust shall indemnify and hold harmless BGI, its
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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 iShares Trust or interests
therein, or (b) any breach by BGI of its covenants, representations, and
warranties under the License Agreement caused by the actions or inactions
of iShares Trust or iShares Trust's sublicensees, or (c) errors in the
calculation of any Dow Xxxxx Index, or delays in the dissemination of any
Dow Xxxxx Index, or (d) 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 iShares Trust or interests
therein, except to the extent such claims result from the negligence, gross
negligence or willful misconduct of BGI or its affiliates. The provisions
of this section shall survive termination of this Agreement.
24. Assignment. iShares will not make, or purport to make, any assignment or
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other transfer of this Agreement. BGI may assign its rights and obligations
under this Agreement effective upon the giving of written notice to
iShares.
25. Amendment. No provision of this Agreement may be waived, altered, or
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amended except by written agreement of the parties.
26. Entire Agreement. This Agreement constitutes the entire agreement between
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the parties hereto with respect to the subject matter hereof.
27. Construction. Headings used in this Agreement are for convenience only,
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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 California.
28. Counterparts. This Agreement may be executed in any number of
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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.
BARCLAYS GLOBAL INVESTORS, N.A. iSHARES TRUST
By: /s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Most
____________________________ By: ____________________________
Its: Managing Director President
____________________________ Its: ____________________________
By: ____________________________ By: ____________________________
Its: ____________________________ Its: __________________________
Exhibit A to Sublicense Agreement dated April 25, 2000
iShares Dow Xxxxx U.S. Total Market Index Fund
iShares Dow Xxxxx U.S. Basic Materials Sector Index Fund
iShares Dow Xxxxx U.S. Consumer Cyclical Sector Index Fund
iShares Dow Xxxxx U.S. Consumer Non-Cyclical Sector Index Fund
iShares Dow Xxxxx U.S. Energy Sector Index Fund
iShares Dow Xxxxx U.S. Financial Sector Index Fund
iShares Dow Xxxxx U.S. Healthcare Sector Index Fund
iShares Dow Xxxxx U.S. Industrial Sector Index Fund
iShares Dow Xxxxx U.S. Technology Sector Index Fund
iShares Dow Xxxxx U.S. Telecommunications Sector Index Fund
iShares Dow Xxxxx U.S. Utilities Sector Index Fund
iShares Dow Xxxxx U.S. Chemicals Index Fund
iShares Dow Xxxxx U.S. Financial Services Composite Index Fund
iShares Dow Xxxxx U.S. Internet Index Fund
iShares Dow Xxxxx U.S. Real Estate Index Fund
