EXHIBIT 2.2
LICENSE AGREEMENT FOR TRUSTS
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AGREEMENT, dated as of December ___, 2010 (the "Effective Date"), by and
between Xxxxxx Xxxxxxx & Co. Incorporated. ("Xxxxxx Xxxxxxx"), a Delaware
corporation, having an office at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, and Xxx
Xxxxxx Funds Inc. ("Licensee"), a Delaware corporation with an office at 00
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000-0000.
WHEREAS, Xxxxxx Xxxxxxx owns rights to, and engages in a variety of business
activities in connection with, certain stock indexes and the proprietary data
contained therein, among which are the indexes listed in Exhibit A, annexed
hereto and made a part hereof (such indexes and data contained therein are
hereinafter each referred to individually as an "Index," and collectively as the
"Indexes");
WHEREAS, Xxxxxx Xxxxxxx acts as consultant to a third party, the American
Stock Exchange LLC as of the date of this Agreement, which calculates, maintains
and publishes the Indexes;
WHEREAS, Xxxxxx Xxxxxxx uses in commerce and owns trade name, trademark and
service xxxx rights to the designations Xxxxxx Xxxxxxx & Co., MS, Xxxxxx Xxxxxxx
Technology Index, and Xxxxxx Xxxxxxx Multinational Company Index (such rights
are hereinafter individually and collectively referred to as the "Marks");
WHEREAS, Licensee wishes to use the Indexes as the basis of the unit
investment trusts described in Exhibit B, annexed hereto and made a part hereof
(the "Trusts");
WHEREAS, Licensee wishes to use the Indexes and the Marks in connection with
sponsoring, trading, marketing and promotion of the Trusts and in connection
with making disclosure about the Trusts under applicable laws, rules and
regulations in order to indicate that Xxxxxx Xxxxxxx is the source of the
Indexes; and
WHEREAS, Licensee wishes to obtain Xxxxxx Xxxxxxx'x authorization to use the
Indexes and refer to the Indexes and the Marks in connection with the Trusts
pursuant to the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of License
Subject to the terms and conditions of this Agreement including those set
forth in Exhibit B hereto, Xxxxxx Xxxxxxx grants to Licensee a non-transferable,
non-exclusive, license (i) to use one or more of the Indexes as the basis, or a
component, of the Trusts sponsored, sold and/or purchased by Licensee with
respect to which Licensee acts as service provider, and (ii) to use and refer to
the Indexes and the Marks in connection with the sponsoring, trading, marketing
and promotion of the Trusts and in connection with making such disclosure about
the Trusts as Licensee deems necessary or desirable under any applicable laws,
rules or regulations in order to indicate the source of the Indexes.
2. Term
The initial term of this Agreement shall commence on the Effective Date and
shall continue for two (2) years unless earlier terminated as provided in this
Section 2 or otherwise under this Agreement. Upon the expiration of the initial
two (2) year term, this Agreement shall automatically renew for successive terms
of one (1) year at a time. Notwithstanding the foregoing, either party may
terminate this Agreement, which termination shall be effective at the end of the
then-current or renewal term of this Agreement, by written notice to the other
party given at least ninety (90) days prior to the end of such then-current or
renewal term.
3. License Fees
(a) Licensee shall pay to Xxxxxx Xxxxxxx a monthly license fee which shall be
calculated as percentage points per annum of assets of such Trusts with respect
to use of the Indexes listed in Exhibit A in connection with the Trusts
("Transaction Fees"). The amount payable with respect to each Trust is 3 basis
points per annum in respect of a Trust's average daily net asset value. The
Transaction Fees shall be calculated by Licensee on a Trust by Trust basis (and
not aggregated across Trusts) and paid to Xxxxxx Xxxxxxx within ten (10)
business days following the last day of the relevant month. Such Transaction
Fees shall be accompanied by a statement from an officer of Licensee certifying
that the Transaction Fees paid to Xxxxxx Xxxxxxx are accurate. In addition, if
in the future Xxxxxx Xxxxxxx enters into an agreement to license the Indexes and
the Marks to a product that conforms to Exhibit B of this Agreement that
provides for terms with respect to the Transaction Fees that are more favorable
than the terms of this Section 3, those terms would automatically supersede the
terms in this Agreement.
(b) The Licensee shall maintain detailed and accurate records with respect to
the assets of the Trusts and its payments to Xxxxxx Xxxxxxx hereunder. The
Licensee shall, upon written request by Xxxxxx Xxxxxxx, provide access to
printed records with respect to the assets of the Trusts during normal business
hours, to an independent accounting organization chosen and compensated by
Xxxxxx Xxxxxxx, for purposes of a confirming audit with respect to such
payments. The Licensee shall promptly pay any underreported Transaction Fees. If
such audit determines that Transaction Fees in excess of ten (10%) percent of
reported Transaction Fees were not reported during any of the four previously
reported quarters, then the Licensee shall also pay for the reasonable costs of
such audit.
4. Termination
(a) At any time during the term of this Agreement, either party may give the
other party thirty (30) days' prior written notice of termination if the
terminating party believes in good faith that material damage or harm is
occurring to the reputation or goodwill of the terminating party by reason of
its continued performance hereunder, and such notice shall be effective on the
date of such termination unless the other party shall correct the condition
causing such damage or harm within the notice period.
(b) In the case of breach of any of the material terms and conditions of this
Agreement by either party, the other party may terminate this Agreement by
giving thirty (30) days' prior written notice of its intent to terminate, and
such notice shall be effective on the date of such termination unless the
breaching party shall correct such breach within the notice period.
(c) Xxxxxx Xxxxxxx shall have the right, in its sole discretion, to cease
compilation and publication of any of the Indexes and, in the event that any of
the Indexes is discontinued, to terminate this Agreement if Xxxxxx Xxxxxxx does
not offer a replacement or substitute index. In the event that Xxxxxx Xxxxxxx
intends to discontinue any index, Xxxxxx Xxxxxxx shall give Licensee at least
ninety (90) days written notice prior to such discontinuance, which notice shall
specify whether a replacement or substitute index will be available. Licensee
shall have the option hereunder within sixty (60) days after receiving such
written notice from Xxxxxx Xxxxxxx to notify Xxxxxx Xxxxxxx in writing of its
intent to use the replacement index under the terms of this Agreement.
(d) Licensee may terminate this Agreement upon written notice to Xxxxxx
Xxxxxxx if (i) Licensee is informed of the final adoption of any legislation or
regulation that materially impairs Licensee's ability to issue, enter into,
write, sell, purchase, market or promote the Trusts; or (ii) any material
litigation or regulatory proceeding regarding the Trusts is threatened or
commenced.
(e) Xxxxxx Xxxxxxx may terminate this Agreement upon written notice to
Licensee if (i) Xxxxxx Xxxxxxx is informed of the final adoption of any
legislation or regulation that materially impairs Xxxxxx Xxxxxxx'x ability to
license and provide the Indexes under this Agreement; or (ii) any material
litigation or regulatory proceeding regarding the Trusts is threatened or
commenced.
5. Effect of Termination
Upon termination of the license with respect to any Index, Licensee shall
cease to use the Index(es) as the basis for the Trust(s) and cease referring to
the affected Index(es) and all the relevant Marks in connection with the
Trust(s), provided however that Licensee may continue to use the Index and the
relevant Marks solely for the remaining duration of the Trust(s) but not for any
extensions thereof.
6. Trust Promotion
(a) Licensee shall use its best efforts to protect the goodwill and
reputation of Xxxxxx Xxxxxxx in connection with its use of the Indexes and the
Marks under this Agreement. Licensee shall submit to Xxxxxx Xxxxxxx for its
preview and approval all advertisements, brochures, and promotional and
information material (other than price quotations for a Trust) ("Informational
Materials") relating to or referring to Xxxxxx Xxxxxxx, the Indexes, the Marks
or the Trusts. Xxxxxx Xxxxxxx'x approval shall be confined solely to the use of
or description of Xxxxxx Xxxxxxx, the Marks, and the Indexes and shall not be
unreasonably withheld or delayed by Xxxxxx Xxxxxxx. Notwithstanding the
foregoing, once any Informational Materials have been approved by Xxxxxx
Xxxxxxx, no approval is required for any modifications to such approved
Informational Materials which do not materially change the use of or description
of Xxxxxx Xxxxxxx, the Marks, and/or the Indexes.
(b) Xxxxxx Xxxxxxx is not obligated to engage in any marketing or promotional
activities in connection with the Trusts or in making any representation or
statement to investors or prospective investors in connection with the promotion
by Licensee of the Trusts.
(c) Licensee acknowledges and agrees that Xxxxxx Xxxxxxx, in granting the
permission contained in this Agreement, does not express or imply any approval
of the Trusts or of Licensee and Licensee further agrees not to make any
statement which expresses or implies that Xxxxxx Xxxxxxx approves, endorses or
consents to the promotion, marketing, and arrangement by Licensee of the Trusts
or that Xxxxxx Xxxxxxx makes any judgment or expresses any opinion in respect of
the Licensee.
7. Protection of Value of License
(a) Licensee shall cooperate reasonably with Xxxxxx Xxxxxxx in the
maintenance of all Xxxxxx Xxxxxxx common law and statutory rights in the Indexes
and the Marks, including copyrights and other proprietary rights, and shall take
such acts and execute such installments as are reasonably necessary and
appropriate to such purposes, including the use by the Licensee of the following
notice when referring to the Indexes or the Marks in any advertisement, offering
circular, prospectus, brochure, or promotional or informational material
relating to the Trusts:
The [Name of particular index] index is the exclusive property of Xxxxxx
Xxxxxxx & Co. Xxxxxx Xxxxxxx & Co. is a service xxxx of Xxxxxx Xxxxxxx &
Co. and has been licensed for use by [Name of Licensee]
or such similar language as may be approved in advance by Xxxxxx Xxxxxxx.
(b) Licensee shall not refer to the names of the Indexes in any manner which
might reasonably be expected to cause confusion as to Xxxxxx Xxxxxxx'x
responsibility for preparing and disseminating the Indexes or as to the identity
of Licensee and its relationship to the Trusts.
8. Proprietary Rights
Licensee acknowledges that the Indexes are selected, arranged and prepared by
an independent third party through the application of methods and standards of
judgment used and developed through the expenditure of considerable work, time
and money by Xxxxxx Xxxxxxx. Licensee also acknowledges that the Indexes and the
Marks are the exclusive property of Xxxxxx Xxxxxxx. Licensee shall not, and
shall not assist any third party to, assert any rights in the Indexes or the
Marks or any component thereof or challenge Xxxxxx Xxxxxxx'x rights therein.
Xxxxxx Xxxxxxx reserves all rights with respect to the Indexes and the Marks
except those expressly licensed to Licensee hereunder.
9. Warranties: Disclaimers
(a) Xxxxxx Xxxxxxx represents and warrants that Xxxxxx Xxxxxxx is the owner
of rights granted to Licensee herein and that use of the Indexes as provided
herein shall not infringe any trademark, copyright, other proprietary right, or
contractual right of any person not a party to this Agreement.
(b) Licensee agrees expressly to be bound itself by and furthermore to
include all of the following disclaimers and limitations in prospectuses and
regulation application forms and to use the first three sentences of the first
disclaimer in all Informational Materials and any contract(s) relating to the
Trusts and upon request to furnish a copy (copies) of all such documents to
Xxxxxx Xxxxxxx:
This Trust is not sponsored, endorsed, sold or promoted by Xxxxxx Xxxxxxx &
Co. or any its affiliates (collectively, "MS"). Neither MS nor any other
party makes any representation or warranty, express or implied, to the
owners of this Trust or any member of the public regarding the advisability
of investing in Trusts generally or in this Trust particularly or the
ability of the [ ] index to track general stock market performance. MS is
the licensor of certain trademarks, service marks and trade names of MS and
of the [ ] index which is determined, composed and calculated by MS without
regard to the issuer of this Trust or this Trust. MS has no obligation to
take the needs of the issuer of this Trust or the owners of this Trust into
consideration in determining, composing or calculating the [ ] index. MS is
not responsible for and has not participated in the determination of the
timing of, prices at, or quantities of this Trust to be issued or in the
determination or calculation of the equation by which this Trust is
redeemable for cash. Neither MS nor any other party has any obligation or
liability to owners of this Trust in connection with the administration,
marketing or trading of this Trust.
ALTHOUGH MS SHALL OBTAIN INFORMATION FOR INCLUSION IN OR FOR USE IN THE
CALCULATION OF THE INDEXES FROM SOURCES WHICH MS CONSIDERS RELIABLE, NEITHER MS
NOR ANY OTHER PARTY GUARANTEES THE ACCURACY AND/OR THE COMPLETENESS OF THE
INDEXES OR ANY DATA INCLUDED THEREIN. NEITHER MS NOR ANY OTHER PARTY MAKES ANY
WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY LICENSEE,
LICENSEE'S CUSTOMERS AND COUNTERPARTIES, OWNERS OF THE TRUST, OR ANY OTHER
PERSON OR ENTITY FROM THE USE OF THE INDEXES OR ANY DATA INCLUDED THEREIN IN
CONNECTION WITH THE RIGHTS LICENSED HEREUNDER OR FOR ANY OTHER USE. NEITHER MS
NOR ANY OTHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES, AND MS HEREBY
EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE INDEXES OR ANY DATA INCLUDED THEREIN.
WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL MS OR ANY OTHER PARTY
HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR
ANY OTHER DAMAGES (INCLUDING LOST PROFITS) EVEN IF NOTIFIED OF THE POSSIBILITY
OF SUCH DAMAGES.
(c) Each party represents and warrants to the other that it has the authority
to enter into this Agreement according to its terms and that its performance
does not violate any laws, regulations or agreements applicable to it.
(d) Licensee represents and warrants to Xxxxxx Xxxxxxx that the Trusts shall
not violate any applicable laws, including but not limited to banking,
commodities and securities laws.
(e) Neither party shall have any liability for lost profits or consequential
damages arising out of this Agreement.
(f) The provisions of this Section 9 shall survive any termination of this
Agreement.
10. Indemnification
(a) Licensee shall indemnify and hold harmless Xxxxxx Xxxxxxx, its parent,
subsidiaries, affiliates, and their officers, directors, employees and agents
against any and all judgments, damages, costs or losses of any kind (including
reasonable attorneys' and experts' fees) as a result of claims or actions
brought by third parties against Xxxxxx Xxxxxxx to the extent such claim or
action is (1) in any manner related to the Trusts or Licensee's use of any of
the Indexes; (2) based on any act or omission of Licensee that is in any manner
related to the Trusts or Licensee's use of any of the Indexes; or (3) based on
any other act or omission of Licensee which constitutes a breach of this
Agreement; provided, however, that (i) Xxxxxx Xxxxxxx notifies Licensee promptly
of any such claim or action, and (ii) Licensee shall have no liability to Xxxxxx
Xxxxxxx if such judgments, damages, costs or losses are attributable to any
negligent act or omission by Xxxxxx Xxxxxxx, its parent, affiliates,
subsidiaries or any of their employees or agents. Other than in the case of (ii)
in the immediately preceding sentence, Licensee shall bear all expenses in
connection with the defense and/or settlement of any such claim or action.
Except as provided in the following sentence, Licensee shall control the defense
and settlement of any such claim or action. Xxxxxx Xxxxxxx shall have the right,
at its own expense, to participate in the defense of any claim or action against
which it is indemnified hereunder; provided, however, it shall have no right to
control the defense, consent to judgment, or agree to settle any such claim or
action, without the written consent of Licensee. Licensee, in the defense of any
such claim, except with the written consent of Xxxxxx Xxxxxxx, shall not consent
to entry of any judgment or enter into any settlement which (i) does not
include, as an unconditional term, the grant by the claimant to Xxxxxx Xxxxxxx
of a release of all liabilities in respect of such claims or (ii) otherwise
adversely affects the rights of Xxxxxx Xxxxxxx. This provision shall survive the
termination of this Agreement.
(b) Xxxxxx Xxxxxxx shall indemnify and hold harmless Licensee, its parent,
subsidiaries, affiliates, and their officers, directors, employees and agents
against any and all judgments, damages, costs or losses of any kind (including
reasonable attorneys' and experts' fees) as a result of claims or actions
brought by third parties against Licensee to the extent such claims or actions
arise from any act or omission of Xxxxxx Xxxxxxx which constitutes a breach of
this Agreement or an alleged infringement of a third party intellectual property
by the Index(es) or the Marks; provided, however, that (i) Licensee notifies
Xxxxxx Xxxxxxx promptly of any such claim or action, and (ii) Xxxxxx Xxxxxxx
shall have no liability to Licensee if such judgments, damages, costs or losses
are attributable to any negligent act or omission by Licensee, its parent,
affiliates, subsidiaries or any of their employees or agents. Other than in the
case of (ii) in the immediately preceding sentence, Xxxxxx Xxxxxxx shall bear
all expenses in connection with the defense and/or settlement of any such claim
or action. Except as provided in the following sentence, Xxxxxx Xxxxxxx shall
control the defense and settlement of any such claim or action. Licensee shall
have the right, at its own expense, to participate in the defense of any claim
or action against which it is indemnified hereunder; provided, however, it shall
have no right to control the defense, consent to judgment, or agree to settle
any such claim or action, without the written consent of Xxxxxx Xxxxxxx. Xxxxxx
Xxxxxxx, in the defense of any such claim, except with the written consent of
Licensee, shall not consent to entry of any judgment or enter into any
settlement which (i) does not include, as an unconditional term, the grant by
the claimant to Licensee of a release of all liabilities in respect of such
claims or (ii) otherwise adversely affects the rights of Licensee. This
provision shall survive the termination of this Agreement.
11. Force Majeure
Neither Xxxxxx Xxxxxxx nor Licensee shall bear responsibility or liability
for any losses arising out of any delay in or interruptions of their respective
performance of their obligations under this Agreement due to any act of God, act
of governmental authority, act of the public enemy or due to war, riot, fire,
flood, civil commotion, insurrection, labor difficulty (including, without
limitation, any strike, or other work stoppage or slowdown), severe or adverse
weather conditions or other cause beyond the reasonable control of the party so
affected, provided that such party had exercised due diligence as the
circumstances reasonably required.
12. Other Matters
(a) This Agreement is solely and exclusively between the parties as now
constituted and, unless otherwise provided, shall not be assigned or transferred
by either party, without prior written consent of the other party, and any
attempt to so assign or transfer this Agreement without such written consent
shall be null and void. Notwithstanding the foregoing, this Agreement may be
assigned without such consent to Xxxxxx Xxxxxxx'x parent or any subsidiary or
affiliate of Xxxxxx Xxxxxxx. Furthermore, Licensee may assign this Agreement to
an affiliate of Licensee upon Xxxxxx Xxxxxxx prior written consent, which
consent will not be unreasonably withheld or delayed.
(b) This Agreement constitutes the entire agreement of the parties hereto
with respect to its subject matter and may be amended or modified only by a
writing signed by duly authorized officers of both parties. This Agreement
supersedes all previous Agreements between the parties with respect to the
subject matter of this Agreement. There are no oral or written collateral
representations, agreements, or understandings except as provided herein.
(c) No breach, default, or threatened breach of this Agreement by either
party shall relieve the other party of its obligations or liabilities under this
Agreement with respect to the protection of the property or proprietary nature
of any property which is the subject of this Agreement.
(d) This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to its conflict of laws principles
and each party hereby consents to the exclusive jurisdiction of, and venue in,
any federal or state court of competent jurisdiction located in the Borough of
Manhattan, New York City.
(e) All notices and other communications under this Agreement shall be (i) in
writing, (ii) delivered by hand or by registered or certified mail, return
receipt requested, to the addresses set forth below or such addresses as either
party shall specify by a written notice to the other and (iii) deemed given upon
receipt.
Notice to Xxxxxx Xxxxxxx: Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal Department--Technology Unit
Notice to Licensee: Xxx Xxxxxx Funds Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxxxx Xxxxxx, Esq.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as
of the Effective Date set forth above.
XXXXXX XXXXXXX & CO. INCORPORATED XXX XXXXXX FUNDS INC.
By: By:
Title: Title:
Name: Name:
{Printed} {Printed}
Date: December ___, 2010 Date: December ___, 2010
EXHIBIT A
List of the Indexes:
Xxxxxx Xxxxxxx Technology Index
Xxxxxx Xxxxxxx Multinational Company Index
EXHIBIT B
Description of the Trusts
Each series of "Technology Portfolio" and "U.S. Multinational 50 Portfolio"
deposited following the Effective Date (collectively the "Trusts") are
registered investment companies, registered with the U.S. Securities and
Exchange Commission as unit investment trusts. Interests in the Trusts or in
various series of the Trusts are to be issued and traded on a public basis in
the U.S., in accordance with the U.S. federal securities laws and the applicable
laws of the various U.S. states. This license does not cover instruments that
reference the underlying Trusts, such as depository receipts, options or swaps.
