EXHIBIT 99.A4
February 24, 2003
VIA COURIER AND FACSIMILE
Xx. Xxxxxxxx X. Xxxxx
Senior Vice President
ETF Marketplace
American Stock Exchange
00 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Re: The License Agreement of June 5, 1997 between Dow Xxxxx &
Company, Inc., and the American Stock Exchange LLC and PDR
Services LLC (Amex and PDR TOGETHER REFERRED TO AS "AMEX"), AS
AMENDED APRIL 28, 2000 (THE "LICENSE AGREEMENT")
Dear Xxxxx:
WHEREAS, Xxx Xxxxx acknowledges it is Amex's position that the
License Agreement was automatically renewed on the same terms and conditions set
forth therein (including exclusivity) for an additional five (5) year term in
accordance with, INTER ALIA, Section 2 of the Agreement.
WHEREAS, Amex acknowledges it is Xxx Xxxxx' position that the
License Agreement did not automatically renew on the same terms and conditions
because, INTER ALIA, (i) Amex failed to provide the timely automatic renewal
notice required pursuant to the License Agreement and (ii) in any event, Dow
Xxxxx rejects any such renewal because the aggregate assets in the Products at
the end of the Initial Term did not equal at least $5 billion. It is Xxx Xxxxx'
position, therefore, that the parties must agree upon the terms and conditions
(including exclusivity) on which they may renew the License Agreement.
WHEREAS, notwithstanding the foregoing, Dow Xxxxx and Amex
have agreed to extend the License Agreement on the same terms and conditions set
forth therein, EXCEPT the parties have been unable to agree on whether the
license during the Renewal Term must be exclusive. Dow Xxxxx' position is that
it does not intend to grant Amex an exclusive license, but instead it intends to
offer a similar license on a non-exclusive basis to one or more third parties as
of April 1, 2003 in the absence of some further agreement or an order of the
court. Amex's position is that the exclusivity provision of the Initial Term of
the License Agreement should carry into the Renewal Term, and although it
understands Dow Xxxxx' position and Xxx Xxxxx' intention to negotiate license
agreements with third parties as of April 1, 2003 in the absence of some further
agreement or an order of a court, Amex intends to take whatever steps are
necessary to prevent the licensing by Xxx Xxxxx of one or more third parties as
of April 1, 2003.
THEREFORE, without waiver or prejudice to either of the
parties' respective positions set forth above, and notwithstanding anything to
the contrary in the License Agreement, Dow Xxxxx and Amex hereby agree to extend
the License Agreement in accordance with the following:
(i) Unless terminated earlier as provided therein, the Renewal Term
of the License Agreement shall continue until December 31, 2007.
(ii) A Year shall be a calendar year of January 1 through December
31.
(iii) The license set forth in Section 1(a) shall remain exclusive
until March 31, 2003, after which Xxx Xxxxx believes it shall be
non-exclusive and Amex believes it shall remain exclusive.
(iv) Except as expressly provided above, the License Agreement
(except with respect to whether the license shall be exclusive)
will remain in full force and effect. All capitalized terms not
otherwise defined in this letter shall have the same meaning as
in the License Agreement.
Either party may in its sole discretion submit for resolution
to a court of appropriate jurisdiction the issues of whether Amex provided
adequate notice under the License Agreement necessary to cause the automatic
renewal thereof and whether the aggregate assets in the Products at the end of
the Initial Term equaled at least $5 billion for the sole purpose of determining
whether or not the exclusivity provision applies during the Renewal Term of the
License Agreement.
If you would like to extend the License Agreement on the
above terms, please sign in the space provided below and return this letter to
me.
Best regards,
DOW XXXXX & COMPANY, INC.
/s/ XXXXXXX X. XXXXXXXXXX
-----------------------------
By: Xxxxxxx X. Xxxxxxxxxx
Title: President, Xxx Xxxxx Indexes
Date: 2/24/2003
Acknowledged and agreed to:
AMERICAN STOCK EXCHANGE LLC PDR SERVICES LLC
/s/ XXXXXXXX X. XXXXX /s/ XXXXXXXX X. XXXXX
-------------------------------------- ------------------------
By: Xxxxxxxx X. Xxxxx By: Xxxxxxxx X. Xxxxx
Title: SVP Title: SVP
Date: 2/24/2003 Date: 2/24/2003
