EXHIBIT 2.2
LICENSE AGREEMENT
LICENSE AGREEMENT, dated as of July 1, 2009 (the "Commencement Date")
by and between S-NETWORK GLOBAL INDEXES, LLC, ("SNGI") a New York limited
liability company, having an office at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and XXX XXXXXX FUNDS INC. ("Licensee") a Delaware corporation,
having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, SNGI compiles, calculates, maintains and owns rights in and to
a number of index(es) of the prices of various securities of companies, listed
hereto in Exhibit A, and to the proprietary data therein contained (such rights
being hereinafter individually and collectively referred to as the "S-Net
Index(es)"); and
WHEREAS, SNGI uses in commerce and owns trade name and service xxxx
rights to the designations set forth in Exhibit B hereto, in connection with the
S-Net Index(es) (such rights being hereinafter individually and collectively
referred to as the "SNGI Marks"); and
WHEREAS, Licensee and any Affiliate companies of Licensee (as provided
in Subsection 12(a) hereof) wish to use the S-Net Index(es) as a component of
the product or products described in Exhibit C attached hereto and made a part
hereof (individually and collectively referred to as the "Product(s)"); and
WHEREAS, Licensee wishes to use the SNGI Marks in connection with the
issuance, marketing and/or promotion of the Product(s) and in connection with
making disclosure about the Product(s) under applicable law, rules and
regulations in order to indicate that SNGI is the source of the S-Net Index(es);
and
WHEREAS, Licensee wishes to obtain SNGI's authorization to use the
S-Net Index(es) and the SNGI Marks in connection with the Product(s) pursuant to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of License.
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(a) Subject to the terms and conditions of this Agreement, SNGI hereby grants to
Licensee a non-transferable, non-exclusive license in the U.S. (i) to use the
S-Net Index(es) as a component of the Product(s) to be marketed and/or promoted
by Licensee and (ii) to use and refer to the SNGI Marks in connection with the
distribution, marketing and promotion of the Product(s) (including in the name
of the Product(s)) and in connection with making such disclosure about the
Product(s) as Licensee deems necessary or desirable under any applicable law,
rules, regulations or provisions of this Agreement, but, in each case, only to
the extent necessary to indicate the source of the S-Net Index(es). Each of the
SNGI Marks shall be used in its entirety. It is expressly agreed and understood
by Licensee that no rights to use the S-Net Index(es) and the SNGI Marks are
granted hereunder other than those specifically described and expressly granted
herein.
(b) SNGI agrees that no person or entity (other than Licensee) shall need to
obtain a license from SNGI with respect to the Product(s). The license herein
granted shall not transfer to Licensee any legal or beneficial property rights
whatsoever to the SNGI Marks or the goodwill now associated or which will become
associated therewith.
(c) Except as provided in Section 12 of this Agreement, no sublicensing of
Licensee's rights hereunder, even partial, shall occur, without the prior
written consent of SNGI, which consent may be granted or withheld in SNGI's sole
and absolute discretion.
(d) If in the future Licensee wishes to use the S-Net Index(es) and/or SNGI
Marks as the basis for an investment fund or other product or vehicle that is
different than the Product(s), any such use shall be subject to a separate
license from SNGI that is reflected in a written amendment or addendum to this
Agreement, or in a separate written agreement between the parties on terms
mutually agreed on by the parties.
2. Term.
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Unless terminated earlier pursuant to Section 4 hereof, the term of
this Agreement shall commence on the Commencement Date and shall continue in
effect thereafter for a period of two (2) years from the date hereof.
Thereafter, it shall automatically renew for successive renewal terms of one (1)
year each, unless Licensee provides to SNGI at least sixty (60) days prior
written notice of its intention not to renew this Agreement effective upon
expiration of the then-current term or renewal term.
3. License Fees.
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(a) Licensee shall pay to SNGI the license fees ("License Fees") specified and
provide the data called for in Exhibit D, attached hereto and made a part
hereof.
(b) During the term of this Agreement and for a period of one (1) year after its
termination, SNGI shall have the right once per year, during normal business
hours and upon reasonable notice to Licensee, to examine or audit on a
confidential basis the relevant books, records and all other documents and
materials in the possession or under the control of Licensee with respect to the
subject matter and terms of this Agreement, pertaining to the prior year, and
shall have reasonable access thereto and permission to make copies and/or
extracts therefrom in order to determine whether License Fees have been
accurately calculated. The costs of such audit shall be borne by SNGI unless it
determines that it has been underpaid by five percent (5%) or more; in such
case, costs of the audit shall be paid by Licensee.
4. Termination.
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(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 that 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 or 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 specified therein for such
termination unless the breaching party shall correct such breach within the
notice period.
(c) Termination of this Agreement and the license herein granted shall be
without prejudice to any rights or remedies which SNGI may otherwise have
against Licensee. The exercise or failure to exercise the aforementioned right
of termination shall in no way be considered a waiver by SNGI of any of its
legal rights and remedies.
(d) (i) SNGI shall have the right, in its sole discretion, to cease compilation
and publication of the S-Net Index(es) and, in such event, to terminate this
Agreement if SNGI does not offer a replacement or substitute S-Net Index. In the
event that SNGI intends to discontinue the S-Net Index(es), SNGI shall use
commercially reasonable efforts to give Licensee at least sixty (60) days
written notice prior to such discontinuance, which notice shall specify whether
a replacement or substitute S-Net Index will be made available.
(ii) Licensee shall have the option hereunder within sixty (60) days after
receiving such written notice from SNGI to notify SNGI in writing of its intent
to use the replacement or substitute S-Net Index, if any, under the terms of
this Agreement. In the event that Licensee does not exercise such option or no
substitute or replacement S-Net Index is made available, this Agreement shall be
terminated as of the date specified in the SNGI notice and the License Fees to
the date of such termination shall be computed as provided in Subsection 4(g).
(e) Licensee may terminate this Agreement upon sixty (60) days (or upon such
lesser period of time if required pursuant to a court order) prior written
notice to SNGI if (i) Licensee is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in
Licensee's reasonable judgment materially impairs Licensee's ability to market
and/or promote the Product(s); (ii) any material litigation or proceeding of any
kind regarding the Product(s) is threatened or commenced; or (iii) Licensee
elects to terminate the public offering or other distribution of the Product(s),
as may be applicable. In such event the License Fees to the date of such
termination shall be computed as provided in Subsection 4(g).
(f) SNGI may terminate this Agreement upon sixty (60) days (or upon such lesser
period of time if required pursuant to a court order) prior written notice to
Licensee if (i) SNGI is informed of the final adoption of any legislation or
regulation or the issuance of any interpretation that in SNGI's reasonable
judgment materially impairs SNGI's ability to license and provide the S-Net
Index(es) and SNGI Marks under this Agreement in connection with such
Product(s); or (ii) any litigation or proceeding is threatened or commenced and
SNGI reasonably believes that such litigation or proceeding would have a
material and adverse effect upon the SNGI Marks and/or the S-Net Index(es) or
upon the ability of SNGI to perform under this Agreement. In such event the
License Fees to the date of such termination shall be computed as provided in
Subsection 4(g).
(g) In the event of termination of this Agreement, the License Fees to the date
of such termination shall be computed by prorating the amount of the applicable
License Fees shown in Exhibit D on the basis of the number of elapsed days in
the current term.
(h) Upon termination of this Agreement, Licensee shall cease to use the S-Net
Index(es) and the SNGI Marks in connection with the Product(s); provided that if
the Agreement terminates pursuant to Section 2 or is terminated pursuant to
Section 4(d) above the license granted herein with respect to a particular
Product shall continue until the later to occur of the termination of this
Agreement or the scheduled mandatory termination date of such Product and
Licensee shall remain obligated to pay the applicable License Fees related to
such Product for the remaining term of such Product.
5. SNGI's Obligations.
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(a) SNGI shall not and is in no way obliged to engage in any marketing or
promotional activities in connection with the Product(s) or in making any
representation or statement to investors or prospective investors in connection
with the promotion by Licensee of the Product(s).
(b) SNGI agrees to provide reasonable support for Licensee's development and
educational efforts with respect to the Product(s) as follows: (i) SNGI shall
provide Licensee, upon request but subject to any agreements of confidentiality
with respect thereto, copies of the results of any marketing research conducted
by or on behalf of SNGI with respect to the S-Net Index(es); and (ii) SNGI shall
respond in a timely fashion to any reasonable requests for information by
Licensee regarding the S-Net Index(es).
(c) SNGI or its agent shall calculate and disseminate the S-Net Index(es) at
least once each day via the SNGI website in accordance with its current
procedures, which procedures may be modified by SNGI.
(d) SNGI shall promptly correct or instruct its agent to correct any
mathematical errors made in SNGI's computations of the S-Net Index(es) which are
brought to SNGI's attention by Licensee or others, provided that nothing in this
Section 5 shall give Licensee the right to exercise any judgment or require any
changes with respect to SNGI's method of composing, calculating or determining
the S-Net Index(es); and, provided further, that nothing herein shall be deemed
to modify the provisions of Section 9 of this Agreement.
6. Informational Materials Review.
------------------------------
Licensee shall use its best efforts to protect the goodwill and
reputation of SNGI and of the SNGI Marks in connection with its use of such
Marks under this Agreement. Licensee shall submit to SNGI for its review and
approval all informational materials pertaining to and to be used in connection
with the Product(s), including, where applicable, all prospectuses, registration
statements, web sites, investor letters, advertisements, brochures and
promotional and any other similar informational materials (including documents
required to be filed with governmental or regulatory agencies) that in any way
use or refer to SNGI, the S-Net Index(es), or the SNGI Marks (the "Informational
Materials"). Informational Materials shall be addressed to SNGI, c/o Xxxxxx X.
XxXxxxx, at the address specified in Subsection 12(d). SNGI's approval shall be
required with respect to the use of and description of SNGI, SNGI Marks and the
S-Net Index(es) and shall not be unreasonably withheld or delayed by SNGI.
Specifically, SNGI shall notify Licensee, by facsimile transmission in
accordance with Subsection 12(d) hereof, of its approval or disapproval of any
Informational Materials within ten (10) days (excluding Saturday, Sunday and New
York Stock Exchange Holidays) following receipt thereof from Licensee. Any
disapproval shall state SNGI's reasons therefor. Any failure by SNGI to respond
within such ten (10) day period shall be deemed to constitute a waiver by SNGI
of its right to review such Informational Materials by SNGI. Once Informational
Materials have been approved by SNGI, subsequent Informational Materials which
do not alter the use or description of SNGI, SNGI Marks or the S-Net Index(es)
need not be submitted for review and approval by SNGI.
7. Protection of Value of License.
------------------------------
(a) During the term of this Agreement, SNGI shall use reasonable commercial
efforts to register in the U.S., and maintain in full force and effect any and
all federal service xxxx registrations for the SNGI Marks so long as the subject
S-Net Index(es) to which the SNGI Xxxx(s) refer are compiled and published.
(b) SNGI shall at SNGI's own expense and sole discretion exercise SNGI's common
law and statutory rights against infringement of the SNGI Marks, copyrights and
other proprietary rights.
(c) SNGI shall have the exclusive right (but, subject to Section 7(a) and
Section 7(b), shall not be obligated) to take action with respect to any
infringement of the SNGI Marks, at SNGI's sole expense, including, without
limitation, the right, in its own name and that of Licensee, to commence and
prosecute any suit or other proceeding against any such infringer or join
Licensee as a party thereto. Any recovery obtained in such proceeding shall
belong to SNGI. Licensee shall cooperate with SNGI in any such proceeding, and
in connection therewith (and without limitation), Licensee shall provide such
evidence and give such testimony as may reasonably be requested by SNGI. SNGI
will reimburse Licensee for any reasonable out-of-pocket expenses that Licensee
incurs in connection with such cooperation. Any such cooperation by Licensee
shall not be a waiver of nor shall it require any violation or compromise of its
attorney/client privilege, work product privilege, any other privilege or right
to confidential treatment of any information or materials.
(d) Licensee shall cooperate with SNGI in the maintenance of such rights and
registrations and shall take such actions and execute such instruments as SNGI
may from time to time reasonably request, and shall use the following notice
when referring to the S-Net Index(es) or the SNGI Marks in any Informational
Material:
[INSERT RELEVANT S-NETWORK MARKS] are service marks of
S-Network Global Indexes, LLC and have been licensed for use
by [Licensee and/or Product(s)]. The [Product(s)] is/are not
sponsored, endorsed, sold or promoted by S-Network Global
Indexes, LLC and S-Network Global Indexes, LLC makes no
representation regarding the advisability of investing in the
[Product(s)].
or such similar language as may be approved in advance by SNGI.
8. Proprietary Rights.
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(a) Licensee acknowledges that the S-Net Index(es) is selected, coordinated,
arranged and prepared by SNGI through the application of methods and standards
of judgment used and developed through the expenditure of considerable work,
time and money by SNGI. Licensee also acknowledges that the S-Net Index(es) and
the SNGI Marks are the exclusive property of SNGI, that SNGI has and retains all
proprietary rights therein (including, but not limited to, trademarks, service
marks, patents and copyrights), that the S-Net Index(es) and its compilation and
composition and changes therein are in the control and discretion of SNGI and
that SNGI retains the right at any time upon reasonable written notice, to
modify the methodology used to calculate the S-Net Index(es).
(b) SNGI reserves all rights with respect to the S-Net Index(es) and the SNGI
Marks except those expressly licensed to Licensee hereunder.
(c) Licensee recognizes the great value of the goodwill associated with the SNGI
Marks and acknowledges that the SNGI Marks and any registrations therefore are
valid and subsisting and all rights therein and the goodwill pertaining thereto
belong exclusively to SNGI.
(d) SNGI reserves all rights with respect to the S-Net Index(es) and the SNGI
Marks except those expressly licensed to Licensee hereunder.
(e) Each party shall treat as confidential and shall not disclose or transmit to
any third party any documentation, or other written materials that are marked as
"Confidential and Proprietary" by the providing party ("Confidential
Information"). Confidential Information shall not include (i) any information
that is available to the public or to the receiving party hereunder from sources
other than the providing party (provided that such source is not subject to a
confidentiality agreement with regard to such information) or (ii) any
information that is independently developed by the receiving party without use
of or reference to information from the providing party. Notwithstanding the
foregoing, either party may reveal Confidential Information to any regulatory
agency or court of competent jurisdiction if such information to be disclosed is
(a) approved in writing by the other party for disclosure or (b) required by
law, regulatory agency or court order to be disclosed by a party, provided, if
permitted by law, that prior written notice of such required disclosure is given
to the other party and provided further that the providing party shall cooperate
with the other party to limit the extent of such disclosure. The provisions of
this Subsection 8(e) shall survive any termination of this Agreement for a
period of five (5) years from disclosure by either party to the other of the
last item of such Confidential Information.
9. Warranties; Disclaimers.
-----------------------
(a) SNGI represents and warrants that SNGI has the right to grant the rights
granted to Licensee herein.
(b) SNGI further warrants and represents to Licensee that the SNGI Marks and the
S-Net Index(es) are the exclusive property of SNGI, that SNGI has and retains
all proprietary rights therein (including, but not limited to trademarks,
service marks, patents and copyrights), that the S-Net Index(es) and its
compilation and composition and changes therein are in the control and
discretion of SNGI, and that the S-Net Index(es) and SNGI Marks, and license
thereof, do not infringe the rights of any third party.
(c) Licensee agrees expressly to be bound itself by and furthermore to include
all of the following disclaimers and limitations in each prospectus, offering
memorandum or other such offering document relating to the Product(s):
"The Product(s) is not sponsored, endorsed, sold or promoted
by S-Network Global Indexes, LLC, ("SNGI"). SNGI makes no representation or
warranty, express or implied, to the owners of the Product(s) or any member of
the public regarding the advisability of investing in securities generally or in
the Product(s) particularly or the ability of the S-Net Index(es) to track the
performance of the [___________] market. SNGI's only relationship to the
Licensee is the licensing of certain service marks and trade names of SNGI and
of the S-Net Index(es) that is determined, composed and calculated by SNGI
without regard to the Licensee or the Product(s). SNGI has no obligation to take
the needs of the Licensee or the owners of the Product(s) into consideration in
determining, composing or calculating the S-Net Index(es). SNGI is not
responsible for and has not participated in the determination of the timing of,
prices at, or quantities of the Product(s) to be issued or in the determination
or calculation of the equation by which the Product(s) is to be converted into
cash. SNGI has no obligation or liability in connection with the administration,
marketing or trading of the Product(s).
"SNGI DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE S-NET
INDEX(ES) OR ANY DATA INCLUDED THEREIN AND SNGI SHALL HAVE NO LIABILITY FOR ANY
ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. SNGI MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO RESULTS TO BE OBTAINED BY LICENSEE, OWNERS OF THE PRODUCT(S), OR
ANY OTHER PERSON OR ENTITY FROM THE USE OF THE S-NET INDEX(ES) OR ANY DATA
INCLUDED THEREIN. SNGI MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY
DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR USE WITH RESPECT TO THE S-NET INDEX(ES) OR ANY DATA INCLUDED THEREIN. WITHOUT
LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL SNGI HAVE ANY LIABILITY FOR ANY
SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS),
EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES."
The [Product] is not sponsored, endorsed, sold or promoted by Standard & Poor's,
a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") or its third party
licensors. Neither S&P nor its third party licensors make any representation or
warranty, express or implied, to the owners of the [Product] or any member of
the public regarding the advisability of investing in securities generally or in
the [Product] particularly or the ability of the [Index] to track general stock
market performance. S&P's and its third party licensor's only relationship to
S-Network Global Indexes, LLC is the licensing of certain trademarks, service
marks and trade names of S&P and/or its third party licensors and for the
providing of calculation and maintenance services related to the [Index].
Neither S&P nor its third party licensors is responsible for and has not
participated in the determination of the prices and amount of the [Product] or
the timing of the issuance or sale of the [Product] or in the determination or
calculation of the equation by which the [Product] is to be converted into cash.
S&P has no obligation or liability in connection with the administration,
marketing or trading of the [Product].
NEITHER S&P, ITS AFFILIATES NOR THEIR THIRD PARTY LICENSORS GUARANTEE THE
ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE [INDEX] OR ANY DATA
INCLUDED THEREIN OR ANY COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO, ORAL OR
WRITTEN COMMUNICATIONS (INCLUDING ELECTRONIC COMMUNICATIONS) WITH RESPECT
THERETO. S&P, ITS AFFILIATES AND THEIR THIRD PARTY LICENSORS SHALL NOT BE
SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS THEREIN.
S&P MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH
RESPECT TO ITS TRADEMARKS, THE INDEX OR ANY DATA INCLUDED THEREIN. WITHOUT
LIMITING ANY OF THE FOREGOING, IN NO EVENT WHATSOEVER SHALL S&P, ITS AFFILIATES
OR THEIR THIRD PARTY LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF
PROFITS, TRADING LOSSES, LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY
OR OTHERWISE.
Standard & Poor's(R) and S&P(R) are registered trademarks of The XxXxxx-Xxxx
Companies, Inc.; "Calculated by S&P Custom Indices" and its related stylized
xxxx are service marks of The XxXxxx-Xxxx Companies, Inc. These marks have been
licensed for use by S-Network Global Indexes, LLC."
Any material changes in the foregoing disclaimers and limitations must be
approved in advance in writing by an authorized officer of SNGI. Licensee will
also include such notices as are set forth in Exhibit A regarding the use of any
marks that SNGI has been licensed to use.
(d) 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.
(e) Each party hereto represents that this Agreement has been duly executed by
an authorized signatory of such party and constitutes the valid and binding
obligation of such party enforceable against such party in accordance with its
terms; that at all times during the term of this Agreement, such party shall
have the power and authority to perform all of its obligations under this
Agreement; and that the execution, delivery and performance of this Agreement
will not violate any agreement or instrument to which such party is a party.
(f) Licensee represents and warrants to SNGI that the Product(s) shall at all
times comply with the descriptions in Exhibit C and shall not violate any of the
restrictions set forth therein.
(g) Licensee represents and warrants to SNGI that the Product(s) shall not
violate any applicable law, including but not limited to banking, commodities
and securities laws.
(h) Neither party shall have any liability for lost profits or indirect,
punitive, special, or consequential damages arising out of this Agreement, even
if notified of the possibility of such damages. Without diminishing the
disclaimers and limitations set forth in Subsection 9(b), in no event shall the
cumulative liability of SNGI to Licensee exceed the average annual License Fees
actually paid to SNGI hereunder.
(i) The provisions of this Section 9 shall survive any termination of this
Agreement.
10. Indemnification.
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(a) Licensee shall indemnify and hold harmless SNGI, its Affiliates (as
hereinafter defined) 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 any claim, action, or
proceeding that arises out of or relates to (a) this Agreement, except insofar
as it relates to a breach by SNGI of its representations or warranties or
covenants hereunder, or (b) the Product(s); provided, however, that SNGI
notifies Licensee promptly of any such claim, action or proceeding. SNGI shall
have the right, at its own expense, to participate in the defense of any claim,
action or proceeding 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, action or proceeding without the written consent
of Licensee without waiving the indemnity hereunder. Licensee, in the defense of
any such claim, action or proceeding, except with the written consent of SNGI,
shall not consent to entry of any judgment or enter into any settlement which
either (i) does not include, as an unconditional term, the grant by the claimant
to SNGI of a release of all liabilities in respect of such claims or (ii)
otherwise adversely affects the rights of SNGI. This provision shall survive the
termination or expiration of this Agreement.
(b) SNGI shall indemnify and hold harmless Licensee, its Affiliates (as
hereinafter defined) 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 any claim, action, or
proceeding that arises out of or relates to any breach by SNGI of its
representations or warranties or covenants under this Agreement; provided,
however, that (a) Licensee notifies SNGI promptly of any such claim, action or
proceeding; (b) Licensee grants SNGI control of its defense and/or settlement;
and (c) Licensee cooperates with SNGI in the defense thereof. Licensee shall
have the right, at its own expense, to participate in the defense of any claim,
action or proceeding 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, action or proceeding without the written consent
of SNGI without waiving the indemnity hereunder. SNGI, in the defense of any
such claim, action or proceeding, except with the written consent of Licensee,
shall not consent to entry of any judgment or enter into any settlement which
either (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 or expiration of this Agreement.
11. Suspension of Performance.
-------------------------
Neither SNGI 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 terrorism, act of the public enemy or due to war,
the outbreak or escalation of hostilities, riot, fire, flood, civil commotion,
insurrection, labor difficulty (including, without limitation, any strike, or
other work stoppage or slow down), severe or adverse weather conditions,
communications line failure, or other similar cause beyond the reasonable
control of the party so affected.
12. Other Matters.
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(a) This Agreement is solely and exclusively between the parties hereto and
shall not be assigned or transferred by either party, without the 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; provided,
however, that any Affiliate (as defined in Subsection 12 (g)) of Licensee may
use the S-Net Index(es) as a component of the Product(s) and use and refer to
the SNGI Marks in connection with the marketing and promotion of the Product(s),
provided that such Affiliate shall be subject to all terms and conditions of
this Agreement.
(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) Except as set forth in Section 6 hereof with respect to Informational
Materials, all notices and other communications under this Agreement shall be
(i) in writing, (ii) delivered by hand, by registered or certified mail, return
receipt requested, or by facsimile transmission, to the address or facsimile
number set forth below or such address or facsimile number as either party shall
specify by a written notice to the other and (iii) deemed given upon receipt.
Notice to SNGI: S-Network Global Indexes, LLC
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000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. XxXxxxx
Tel. #:(000) 000-0000
Fax #: (000) 000-0000
xxxxxxxx@xxxxxxxxxxx.xxx
Notice to Licensee: 0 Xxxxxxxx Xxxxx
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X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx, Executive Director
Tel. #: (000) 000-0000
Fax #: (000) 000-0000
Xxxx.xxxxxxx@xxxxxxxxx.xxx
With copy to: Xxx Xxxxxx Funds Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Office of the General Counsel
(e) This Agreement shall be interpreted, construed and enforced in accordance
with the laws of the State of New York without regard to the conflicts of law
provisions thereof. In the event that one or more provisions of this Agreement
shall at any time be found to be invalid or otherwise rendered unenforceable,
such provision or provisions shall be severable from this Agreement, so that the
validity or enforceability of the remaining provisions of this Agreement shall
not be affected thereby.
(f) Each party agrees that in connection with any legal action or proceeding
arising with respect to this Agreement, they will bring such action or
proceeding only in the United States District Court for the Southern District of
New York or in the Supreme Court of the State of New York in and for the First
Judicial Department and each party agrees to submit to the jurisdiction of such
court and venue in such court and to waive any claim that such court is an
inconvenient forum.
(g) In the event that (i) a controlling interest in Licensee is acquired
directly or indirectly by a party that is not an Affiliate (as hereinafter
defined) of such Licensee prior to such transaction, (ii) Licensee merges into,
consolidates with, or otherwise is acquired by, directly or indirectly, a party
that is not an Affiliate of it; or (iii) Licensee is sold or substantially all
of its assets are sold directly or indirectly to a party that is not an
Affiliate of it (each, a "Change in Control"), Licensee shall so inform SNGI
setting forth the details of such Change in Control promptly upon such Change in
Control. SNGI may at its option, after receipt of such notice, terminate this
Agreement upon written notice to Licensee, at any time within thirty (30) days
of receipt of the above notice. For the purposes of this Subsection 12 (g), the
term "control" (including the terms "controlling", "controlled by," and "under
common control with"), means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a party, whether
through the ownership of voting securities, by contract, or otherwise, and the
term "Affiliate" is an entity that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
such party.
(h) Nothing contained in this Agreement shall create or be deemed to create any
agency, fiduciary, partnership or joint venture relation between or among the
Licensee or SNGI. No party hereto shall have the power to obligate or bind the
other party in any manner whatsoever.
(i) The failure of a party hereto to enforce, or the delay by a party hereto to
enforce, any of its rights under this Agreement shall not be deemed a continuing
waiver or a modification by such party of any of its rights under this Agreement
and any party may, within the time provided by the applicable law, commence
appropriate proceedings to enforce any or all of its rights under this Agreement
and any prior failure to enforce or delay in enforcement shall not constitute a
defense.
(j) SNGI may not refer to any Product, Licensee or any Licensee Affiliate in any
kind of communications, whether oral, written or electronic, or otherwise, and
whether in a piece published by SNGI or in response to questions of the media or
others, without Licensee's prior written consent, except that SNGI may state
that SNGI licenses the S-Net Index(es) and SNGI Marks to Licensee.
(k) 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, the parties have caused this Agreement to be executed as of
the date first set forth above.
XXX XXXXXX FUNDS INC. S-NETWORK GLOBAL INDEXES, LLC
BY: BY:
-------------------------------- ---------------------------------
(Print Name) (Print Name)
(Print Title) (Print Title)
EXHIBIT A
LIST OF S-NET INDEX(ES)
S-Net Index(es) Ticker
--------------- ------
S-Network Global Agriculture Index AGRI
S-Network (Global Macro Trends) Index MACR
EXHIBIT B
SNGI MARKS
S-Network(R)
S-Network Global Indexes, LLC[SM]
S-Network Global Agriculture Index[SM]
S-Network (Global Macro Trends) Index[SM]
EXHIBIT C
PRODUCT(S) DESCRIPTION
The term "Product" shall mean an individual unit investment trust (i.e., each
trust series) created or sold by Licensee or an Affiliate of Licensee that
initially invests all or a portion of its assets in securities (i.e.
multi-strategy Products) which replicate the components of one or more S-Net
Index(es), are selected from the components of one or more of the S-Net
Index(es) and/or otherwise will make use of the S-Net Index(es) or the SNGI
Marks.
EXHIBIT D
LICENSE FEES
Licensee shall pay SNGI License Fees computed as follows:
The quarterly License Fees for each Product shall be equal to five basis points
(0.05%) of the average daily net asset value of each Product during each
calendar quarter during such Product's term (the "License Fee"). The average
daily net asset value of all multi-strategy Products will be multiplied by the
Index Ratio prior to inclusion in the License Fee calculation. The term "Index
Ratio" means the portion of the initial portfolio securities in a Product
selected with reference to one or more of the S-Net Index(es) as a percentage of
all assets in such Product at the time of the creation of such Product. If the
total License Fee paid to Licensor under this Agreement with respect to all
Products in any calendar year does not equal at least $35,000 during the period
when there are five (5) or less Products, (b) $60,000 for the period when there
are no less than six (6) and no more than ten (10) Products, and (c) $85,000 for
the period when there are eleven (11) or more Products (the "Minimum Annual
Fee"), any shortfall shall be paid to SNGI by Licensee within a reasonable time
following the end of such calendar year, provided, however, (a) no Minimum
Annual Fee shall be paid in any calendar year in which no Products were in
existence during such year and (b) the Minimum Annual Fee shall be prorated in
the year of the Commencement Date and in the year that this Agreement terminates
to reflect the actual number of days in which this Agreement was in effect
during each such year.
License Fees shall be paid to SNGI within thirty (30) days after the close of
each calendar quarter in which they are incurred; each such payment shall be
accompanied by a statement setting forth the basis for its calculation.
The parties agree that the terms upon which License Fees are calculated pursuant
to this Exhibit D shall be considered "Confidential Information" for purposes of
Subsection 8(e) of this Agreement.
