EXHIBIT 2.2
AGREEMENT
THIS AGREEMENT, made as of this 12th day of August, 2016, by and between
Argus Research Group, Inc ("Argus"), a company whose divisions include Xxxxxxx
Stock Research Corp. and Argus Investors' Counsel, Inc., and Invesco Capital
Markets, Inc. ("Invesco"), a Delaware corporation.
WITNESSETH:
WHEREAS, Argus 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 composed initially of
a portfolio of securities selected pursuant to Invesco's proprietary
methodology, which may utilize data created by Xxxxxxx Stock Research (the
"Trusts");
WHEREAS, Argus is willing to grant to Invesco a license to use certain of the
data created by Xxxxxxx Stock Research, subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. LICENSE GRANT.
(a) License. Subject to the terms and conditions set forth in this Agreement,
Argus hereby grants to Invesco a limited, non-exclusive, irrevocable,
non-transferable, non-sublicensable right and license to process, store,
maintain, copy, and prepare derivative works of the Licensed Data (as defined in
"Exhibit A") and any other Xxxxxxx Stock Research data provided to Invesco under
this Agreement solely for Invesco's internal business purposes, which for the
avoidance of doubt, includes use in whole or in part in connection with the
selection of securities for inclusion in the portfolio of one or more Trusts
(the "Portfolio Securities") (the "License").
(b) Restrictions and Permitted Uses of Licensed Data. Invesco agrees that it
is permitted to use the Licensed Data and/or any other Xxxxxxx Stock Research
data provided solely as expressly authorized by this Agreement. For the
avoidance of doubt, Invesco retains absolute discretion, and Argus shall have no
rights or authority with respect to Invesco's selection and/or weighting of
Portfolio Securities in a Trust, nor any authority over the selection process
and/or portfolio name as outlined in the principal investment strategy for such
Trust to be determined by Invesco in its sole discretion.
(c) Ownership. Nothing in this Agreement shall grant to Invesco any right,
title and/or interest in and to any Licensed Data, and/or any other Xxxxxxx
Stock Research data, other than the limited rights set forth herein, and Argus
expressly reserves all rights, title and interest, including but not limited to
intellectual property rights, therein not otherwise expressly granted hereunder.
Invesco's proprietary methodology used in selecting Portfolio Securities is
unique and Invesco retains all rights to its selection methodology.
(d) Argus' Obligations Under this Agreement. During the term of this
Agreement, Invesco shall provide Argus 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, within ten (10) days of receipt of Invesco's request, Argus will
provide to Invesco the Licensed Data as of a date specified by Invesco. Argus
further agrees that during the Term, at Invesco's reasonable request, it will
provide updates as of a specified date to the data fields of the Licensed Data
(as detailed in Exhibit A) for any Portfolio Security for which Invesco
reasonably requests an update. If reasonably requested by Invesco to do so,
Argus also agrees to review and comment upon the disclosure in each Registration
Statement specifically referring to, or describing, Argus and the securities
selection process.
(e) Non-Disclosure of Licensed Data. Invesco agrees that it will not disclose
Licensed Data or any other data provided to it by Argus under the License to any
person or entity other than its employees, subject to the terms and conditions
of this Agreement, and Invesco will use reasonable measures to prevent the
disclosure of such data to any other person or entity. Notwithstanding the
foregoing, Argus acknowledges and agrees that in promoting the Trusts, Invesco
may make public statements or disclosures describing the Licensed Data and the
security selection process generally, provided that any such disclosure does not
violate the confidentiality provisions included in Section 8 of this Agreement.
2. Fees. For the services to be performed hereunder, Invesco, on behalf of
each Trust, agrees that each Trust shall pay Argus a fee equal to 10 basis
points (0.10%) of the net asset value 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 Argus within thirty (30) days following the end of the initial offering
period of such Trust.
3. Term. Subject to Section 7, 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 third (3rd) 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.
4. Exclusivity. Argus covenants and agrees that during the term of this
Agreement, other than the License it is providing to Invesco under this
Agreement, neither Argus, nor anyone authorized to act on its behalf, shall
create for, and provide to, any unit investment trust sponsor, distributor or
seller for use in the creation, marketing or sale of any non-exchange traded
unit investment trust a list of companies with a positive company index
generated pursuant to the exact same methodology as the Licensed Data applied to
the same universe of eligible securities as the Licensed Data. Notwithstanding
the prior sentence and for the avoidance of doubt, Invesco acknowledged that
Argus is in the business of providing its proprietary investment research data
to third parties and that Argus is not responsible for, nor in violation of its
obligation under this Agreement, if it provides any subset of the data that is
included in the Licensed Data to a third party (or any larger dataset that
incorporates the Licensed Data), or if a third party uses its access to Argus'
proprietary data to create a list that is identical of substantially similar to
any of the Licensed Data. Argus is permitted to provide any of the other
underlying data that is part of the Licensed Data to any other person or entity
without limitation as long as such data is not composed solely of a list of
companies with a positive company index that is selected using the same criteria
as used to create the Licensed Data.
5. 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.
6. 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 Argus, and that any services performed hereunder by Argus shall be
as an independent contractor and not as an employee or agent of Invesco or any
Trust. Argus shall have no authority whatsoever to bind Invesco or any Trust on
any agreement or obligation Argus agrees that Argus shall not hold itself out as
an employee or agent of Invesco or any Trust.
7. Termination. (a) Argus 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) Argus may terminate this Agreement upon thirty (30) days written notice
at any time if Invesco has not established a Trust for a period of fifteen (15)
months or more prior to Argus' request for termination.
(c) Invesco may terminate this Agreement immediately upon a material breach
of any representation, warranty or covenant of Argus that is not remedied within
ten (10) business days after written notice thereof.
(d) Argus and Invesco may terminate this Agreement at any time upon the
execution by all parties of a written agreement to that effect.
(e) 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.
8. 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, Portfolio Security
selection methodologies, product developments plans, 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 9 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 9 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 9, in addition to all other remedies
available to such party at law or in equity.
(e) The covenants set forth in this Section 9 shall survive the termination
of this Agreement.
9. Covenants. During the period of this Agreement, each of the parties agree
to:
(a) comply with all codes, rules, regulations and laws applicable to the
performance of its obligations under this Agreement or its handling of the
Licensed Data or other data provided by Argus and obtain or have obtained all
necessary permits, licenses and other authorizations necessary for such
performance and maintain its business reputation and good standing; 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, Argus may not refer to Invesco or any affiliates in any kind of
public communications, whether oral, written or electronic, or otherwise, and
whether in a piece published by Argus or in response to questions of the media
or others, without Invesco's prior written consent, except that Argus may
describe the services, including the License, provided under this Agreement to
the extent that such services are described in any Registration Statement or
other publicly available materials produced by Invesco.
Further, trademark rights in the Argus Investors' Counsel, Inc., and Xxxxxxx
Stock Research Corp. company names, as well as Argus' other trademarks, service
marks, designs, and logos ("Trademarks") are owned by Argus and Invesco is not
permitted to, and will not, use these company names or any other Trademarks
owned by Argus without Argus' prior consent.
10. Limitation of Liability of Argus. EXCEPT AS SET FORTH IN SECTION 11(b)
BELOW, ARGUS SHALL HAVE NO, AND EXPRESSLY DISCLAIMS ANY, LIABILITY TO INVESCO OR
ANY OTHER PERSON OR ENTITY ARISING OUT OF OR UNDER OR RELATING TO: (I) INVESCO'S
PROVISION OF ITS PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO THE TRUSTS
(OR ANY OTHER PRODUCTS AND SERVICES PROVIDED, DISTRIBUTED OR OFFERED BY
INVESCO), AND ALL MATERIALS ASSOCIATED THEREWITH, (II) INVESCO'S COLLECTION,
STORAGE AND/OR PROCESSING OF ANY PERSONALLY IDENTIFIABLE INFORMATION OF ANY
USERS OR CUSTOMERS (IF ANY), (III) THE LICENSED DATA, OR ANY OTHER DATA PROVIDED
BY ARGUS TO INVESCO, OR INVESCO'S USE THEREOF, (IV) INVESCO'S OPERATION OF ITS
BUSINESS, AND (V) INVESCO'S ADVERTISING, MARKETING AND/OR PROMOTIONAL EFFORTS IN
CONNECTION WITH ANY OF THE FOREGOING. INVESCO UNDERSTANDS AND AGREES THAT
INVESCO SHALL BE SOLELY LIABLE AND RESPONSIBLE FOR ANY AND ALL INJURIES, LOSSES,
DAMAGES, LIABILITIES, COSTS, EXPENSES AND/OR FEES OF ANY KIND SUSTAINED OR
INCURRED BY, OR OTHERWISE ASSERTED AGAINST ARGUS, ANY INDEMNIFIED PARTY OR ANY
OTHER PERSON ARISING OUT OF OR UNDER OR RELATING TO (I)-(V) ABOVE. EXCEPT AS SET
FORTH IN SECTION 11(b) BELOW, IN NO EVENT SHALL ARGUS BE LIABLE FOR SPECIAL,
INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT SUCH
LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER
BASIS, WITH RESPECT TO THE ACCURACY OF THE LICENSED DATA, OR ANY OTHER DATA
PROVIDED BY ARGUS TO INVESCO, OR INVESCO'S USE OF LICENSED DATA, OR ANY OTHER
DATA PROVIDED BY ARGUS TO INVESCO, PROVIDED BY ARGUS OR OTHERWISE, WHETHER OR
NOT ARGUS WAS MADE AWARE OF THE BASIS OF SUCH CLAIM.
11. Indemnification. (a) By Invesco. In the event any claim is brought by any
third party against Argus or any of its affiliates that relates to, arises out
of or is based upon the performance by Invesco of its obligations hereunder,
Argus 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 Argus 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.
Argus 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
Argus 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 (i) any breach of this Agreement by Argus, or (ii) the gross
negligence or willful misconduct of Argus or any of its affiliates.
(b) By Argus. 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 any claim that the Licensed Data, or any other
data provided by Argus to Invesco, infringes upon, misappropriates or otherwise
conflicts with or violates the rights, including, but not limited to,
intellectual property rights, of any person or entity, Invesco shall promptly
notify Argus and Argus shall defend such claim at its expense and under its
control. Argus 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, Argus 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 (i) any breach of this
Agreement by Invesco, or (ii) the gross negligence or willful misconduct of
Invesco, the Trusts, or Invesco's affiliates.
(c) The indemnifications set forth in this Section 11 shall survive the
termination of this Agreement for any cause whatsoever.
12. 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.
13. 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.
14. Scope of Agreement. This document constitutes the entire Agreement of the
parties with respect to the subject matter of this Agreement and supersedes all
prior oral or written agreements with respect to the subject matter of this
Agreement, and can be amended only by a writing executed by all of the parties.
15. Notices. All notices from any party to the other pursuant to this
Agreement shall be in writing 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 Argus:
Argus Research Group, Inc.
00 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
If to Invesco:
0000 Xxxxx Xxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Notices shall be deemed given upon receipt via certified mail, overnight
courier, or hand delivery.
16. 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.
17. 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: ______________________________
ARGUS RESEARCH GROUP, INC
By:_______________________________
Name: ____________________________
Title:______________________________
EXHIBIT A
The term Licensed Data means the datasets provided by Argus to Invesco from time
to time that include an alphabetical list of all companies that have been
assigned a positive company index by Xxxxxxx Research Group as of the date
listed in such dataset, which will be provided in the following format, and
which will include the following available information for each of the data
fields shown below for each company listed:
cusip ticker issuer name index date index value buyctr sellctr tottrans activecode secinactivedate
