Exhibit (h)(d)
AGREEMENT
---------
AGREEMENT, dated as January 1, 2000 (the "Commencement Date"), by and
between The XxXxxx-Xxxx Companies, Inc., a New York corporation, having an
office at 1221 Avenue of the Americas, New York, New York, 10016, on behalf of
its division known as STANDARD & POOR'S ("S&P") having an office at 00 Xxxxx
Xxxxxx, Xxx Xxxx, XX, 00000 and METROPOLITAN LIFE INSURANCE COMPANY, and its
affiliates and subsidiaries (collectively referred to as "Licensee"), a New York
corporation, having an office at Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000.
WHEREAS, S&P compiles, calculates, maintains, and claims to own certain
rights in and to the S&P 500 Composite Stock Price Index and to the proprietary
data therein contained that it claims to be proprietary (such rights being
hereinafter individually and collectively referred to as the "S&P 500 Index");
and
WHEREAS, S&P uses in commerce and has trade name and trademark rights to
the designations "Standard & Poor's(R)", "S&P(R)", "S&P 500(R)", "Standard &
Poor's 500", and "500", in connection with the S&P 500 Index (such rights being
hereinafter individually and collectively referred to as the "S&P Marks"); and
WHEREAS, Licensee wishes to use the S&P 500 Index as the basis of the
product or products described in Exhibit A attached hereto and made a part
hereof (individually and collectively referred to as the "Product"); and
WHEREAS, Licensee wishes to use the S&P Marks in connection with references
to the S&P 500 Index in order to identify the nature and components of the
Product and in connection with making disclosure about the Product under
applicable law, rules and regulations in order to indicate that S&P is the
source of the S&P 500 Index; and
WHEREAS, Licensee disputes and does not agree that it is legally obligated
to obtain S&P's authorization to use the S&P 500 Index in connection with the
Product but nevertheless, to avoid
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litigation, is willing to enter into an agreement pursuant to the terms and
conditions hereinafter set forth; and,
WHEREAS, notwithstanding anything to the contrary herein, each party hereto
expressly reserves its legal rights with respect to the above-noted
disagreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of License.
----------------
(a) Subject to the terms and conditions of this Agreement, S&P hereby
grants to Licensee a non-transferable, non-exclusive license (i) to use the S&P
500 Index as the basis of the Product to be created, marketed and/or promoted by
Licensee and (ii) to use and refer to the S&P Marks in connection with the
creation, distribution, marketing and promotion of the Product for the limited
purpose of identifying the nature of the Product and the source of the S&P Index
500 and in connection with making such disclosure about the Product as Licensee
deems necessary or desirable under any applicable law, rules, regulations or
provisions of this Agreement. It is expressly agreed and understood by Licensee
that no rights to use the S&P 500 Index and the S&P Marks are granted hereunder
other than those specifically described and expressly granted herein.
(b) S&P agrees that no person or entity (other than the Licensee) shall
need to obtain a license from S&P with respect to the Product.
2. Term.
----
(a) The term of this Agreement shall commence on the Commencement Date
and, unless terminated earlier pursuant to Section 4 hereof, shall continue in
effect thereafter for a five-year term (the "Term") until December 31, 2004.
(b) At least six (6) months but not more than twelve (12) months prior
to the end of the Term, S&P shall give Licensee written notice of its proposed
annual fee for renewing the Agreement for an additional period. Licensee may by
written notice at least sixty (60) days prior to the expiration date of the Term
elect to renew the term of this Agreement under such annual fee proposed by S&P;
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or, alternatively, may refuse to accept a renewal of the Agreement under the fee
proposed, with no prejudice to its legal position. In the event of such refusal
by Licensee, or termination of this Agreement by either party pursuant to
Section 4 hereof, the parties agree that the fact that they had previously
entered into this Agreement shall not be construed to constitute or imply any
admission contrary to their respective positions on the issue of whether
Licensee is legally required to enter into a license agreement with S&P for the
purposes stated in this Agreement.
3. License Fees.
------------
Licensee shall pay to S&P the license fee ("License Fee") specified in
Exhibit B attached hereto and made a part hereof. The fee shall be made payable
to "Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc," and shall
be payable in full on the Commencement Date and each one-year anniversary
thereof.
4. Termination.
-----------
(a) 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 ninety (90) 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. In such event, Licensee shall be entitled to a pro-rata refund of
any prepaid License Fees as provided in Subsection 4(e).
(b) S&P shall have the right, in its sole discretion, to cease
compilation and publication of the S&P 500 Index and, in such event, to
terminate this Agreement if S&P does not offer a replacement or substitute
index. In the event that S&P intends to discontinue the S&P 500 Index, S&P shall
give Licensee at least one (1) year's written notice prior to such
discontinuance, which notice shall specify whether a replacement or substitute
index will be made available.
Licensee shall have the option hereunder within ninety (90) days after
receiving such written notice from S&P to notify S&P in writing of its intent to
use the replacement or substitute index, if any, under the terms of this
Agreement, or to terminate the Agreement. In the event that Licensee does not
exercise such option to use the replacement or substitute index, or no
substitute or
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replacement index is made available, this Agreement shall be terminated as of
the date specified in the S&P notice and the Licensee shall be entitled to a
pro-rata refund of any prepaid License Fees as provided in Subsection 4(e).
(c) Licensee may terminate this Agreement upon not more than ninety (90)
days prior written notice to S&P 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; (ii) any material litigation or regulatory
proceeding regarding the Product is threatened or commenced; or (iii) Licensee
elects to terminate the public offering or other distribution of the Product, as
may be applicable. In such event the Licensee shall be entitled to a pro-rata
refund of any prepaid License Fees as provided in Subsection 4(e).
(d) S&P may terminate this Agreement upon ninety (90) days (or upon such
lesser period of time if required pursuant to a court order) prior written
notice to Licensee if (i) S&P is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in S&P's
reasonable judgment materially impairs S&P's ability to license and provide the
S&P 500 Index and S&P Marks under this Agreement in connection with such
Product; or (ii) any litigation or proceeding is threatened or commenced and S&P
reasonably believes that such litigation or proceeding would have a material and
adverse effect upon the S&P Marks and/or the S&P 500 Index or upon the ability
of S&P to perform under this Agreement. In such event the Licensee shall be
entitled to a pro-rata refund of any prepaid License Fees as provided in
Subsection 4(e).
(e) Since Licensee is paying S&P its License Fees on a prospective
basis, in the event of termination of this Agreement as provided in Subsections
4(a), (b), (c), or (d), Licensee shall be entitled to a refund of any prepaid
License Fees, which shall be computed by prorating the amount of the applicable
License Fees shown in Exhibit B on the basis of the number of elapsed days in
the current year of the Agreement, beginning from the Commencement Date or the
anniversary thereof and up to the date of termination of the Agreement.
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(f) Upon termination of this Agreement, Licensee shall no longer possess
any rights under this Agreement to use the S&P 500 Index and the S&P Marks in
connection with the Product; provided that Licensee may continue to utilize any
previously printed materials which contain the S&P Marks for a period of ninety
(90) days following such termination.
5. S&P's Obligations.
-----------------
(a) It is the policy of S&P to prohibit its employees who are directly
responsible for changes in the components of the S&P 500 Index from purchasing
or beneficially owning any interest in the Product and S&P believes that its
employees comply with such policy. Licensee shall have no responsibility for
ensuring that such S&P employees comply with such S&P policy and shall have no
duty to inquire whether any investors or sellers of the Product are such S&P
employees. S&P shall have no liability to the Licensee with respect to its
employees' adherence or failure to adhere to such policy.
(b) S&P shall not and is in no way obliged to engage in any marketing or
promotional activities in connection with the Product or in making any
representation or statement to investors or prospective investors in connection
with the promotion by Licensee of the Product.
(c) S&P agrees to provide reasonable support for Licensee's development
and educational efforts with respect to the Product as follows: (i) S&P 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 S&P with respect to the S&P 500 Index; and (ii) S&P shall
respond in a timely fashion to any reasonable requests for information by
Licensee regarding the S&P 500 Index.
(d) S&P or its agent shall calculate and disseminate the S&P 500 Index
at least once each fifteen (15) seconds in accordance with its current
procedures, which procedures may be modified by S&P.
(e) S&P shall promptly correct or instruct its agent to correct any
mathematical errors made in S&P's computations of the S&P 500 Index which are
brought to S&P's attention by
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Licensee, provided that nothing in this Section 5 shall give Licensee the right
to exercise any judgment or require any changes with respect to S&P's method of
composing, calculating or determining the S&P 500 Index; 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 submit to S&P for its review and approval all newly
developed or materially revised informational materials prepared by or on behalf
of Licensee after the Commencement Date of this Agreement, pertaining to and to
be used in connection with the Product, including, where applicable, all
prospectuses, plans, registration statements, application forms, videos,
internet sites, 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 S&P, the
S&P 500 Index, or the S&P Marks (the "Informational Materials"). S&P's approval
shall be required with respect to the use of and description of S&P, the S&P
Marks and the S&P 500 Index and shall not be unreasonably withheld or delayed by
S&P. Specifically, S&P shall notify Licensee of its approval or disapproval of
any Informational Materials within forty-eight (48) hours (excluding Saturday,
Sunday and New York Stock Exchange Holidays) following receipt thereof from
Licensee. Any disapproval shall indicate S&P's reasons therefor. Any failure by
S&P to respond within such forty-eight (48) hour period shall be deemed to
constitute a waiver of S&P's right to review such Informational Materials.
Informational Materials shall be addressed to S&P, c/o Xxxxxx Xxxxxxxxxx,
Specialist - Index Licensing/Marketing, Equity Index Services, at the address
specified in Subsection 13(f). Informational Materials may be submitted via
facsimile (to 000-000-0000 or 000-000-0000) if they are less than 20 pages and
legible after transmission. Once Informational Materials have been approved by
S&P, subsequent Informational Materials which do not alter the use or
description of S&P, the S&P Marks or the S&P 500 Index need not be submitted for
review and approval by S&P.
7. Protection of Value of License.
------------------------------
(a) During the term of this Agreement, S&P shall use its best efforts
to maintain in full force and effect federal registrations for "Standard &
Poor's(R)", "S&P(R)", and "S&P 500(R)". S&P
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shall at S&P's own expense and sole discretion exercise S&P's common law and
statutory rights against infringement of the S&P Marks, copyrights and other
proprietary rights.
(b) Licensee shall cooperate with S&P in the maintenance of such rights
and registrations and shall take such actions and execute such instruments as
S&P may from time to time reasonably request, and shall use the following notice
when referring to the S&P 500 Index or the S&P Marks in any newly developed or
materially revised Informational Materials prepared by or on behalf of Licensee
after the Commencement Date of this Agreement:
"Standard & Poor's(R)", "S&P(R)", "S&P 500(R)", "Standard & Poor's
500", and "500" are trademarks of The XxXxxx-Xxxx Companies, Inc. and
references thereto have been made with permission. The Product is not
sponsored, endorsed, sold or promoted by Standard & Poor's and
Standard & Poor's makes no representation regarding the advisability
of investing in the Product.
or such similar language as may be approved in advance by S&P, it being
understood that such notice need only refer to the specific S&P Marks referred
to in the Informational Materials.
8. Proprietary Rights.
------------------
(a) Without limiting Licensee's position and rights under Subsection
2(b), Licensee acknowledges S&P's claim that (i) S&P has represented to Licensee
that the S&P 500 Index is selected, coordinated, arranged and prepared by S&P
through the application of methods and standards of judgment used and developed
through the expenditure of considerable work, time and money by S&P and (ii) the
S&P 500 Index and the S&P Marks are the exclusive property of S&P, that S&P has
and retains all proprietary rights therein (including but not limited to
trademarks and copyrights) and that the S&P 500 Index and its compilation and
composition and changes therein are in the control and discretion of S&P. S&P
acknowledges that Licensee does not necessarily agree with the foregoing
representations and that Licensee expressly reserves its rights in that regard.
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(b) S&P reserves all rights with respect to the S&P 500 Index and the
S&P Marks except those expressly licensed to Licensee hereunder. Licensee
reserves its rights with respect to the S&P 500 Index and its references thereto
in connection with the Product.
(c) 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 ten (10) business days' 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(c) 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. Representations; Warranties; Disclaimers.
----------------------------------------
(a) S&P represents and warrants that S&P has the right to grant the
rights granted to Licensee herein and that the license and rights granted herein
shall not infringe any trademark, service xxxx, trade secret, patent, copyright
or other proprietary right of any third party.
(b) Licensee agrees expressly to be bound itself by and furthermore to
include all of the following disclaimers and limitations in each prospectus or
each Statement of Additional Information ("SAI") relating to the Product, newly
developed or materially revised by or on behalf of Licensee after the
Commencement Date of this Agreement, provided the SAI is incorporated by
reference into the prospectus and the prospectus contains disclosure regarding
the S&P 500 Index that
8
conforms to the notice in Subsection 7(b), including a cross reference to the
SAI disclosure. Licensee shall furnish a copy of the prospectus and, if
applicable, the SAI, to S&P:
The Product is not sponsored, endorsed, sold or promoted by Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"). S&P makes no
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 S&P 500 Index to
track general stock market performance. S&P's only relationship to the Licensee
is S&P's grant of permission to Licensee to use the S&P 500 Index which is
determined, composed and calculated by S&P without regard to the Licensee or the
Product. S&P has no obligation to take the needs of the Licensee or the owners
of the Product into consideration in determining, composing or calculating the
S&P 500 Index. S&P is not 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.
S&P DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE S&P
500 INDEX OR ANY DATA INCLUDED THEREIN AND S&P SHALL HAVE NO LIABILITY FOR ANY
ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. S&P MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO RESULTS TO BE OBTAINED BY LICENSEE, OWNERS OF THE PRODUCT, OR ANY
OTHER PERSON OR ENTITY FROM THE USE OF THE S&P 500 INDEX OR ANY DATA INCLUDED
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 THE S&P 500 INDEX OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY
OF THE FOREGOING, IN NO EVENT SHALL S&P HAVE ANY LIABILITY FOR ANY SPECIAL,
PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
9
Any changes in the foregoing disclaimers and limitations must be
approved in advance in writing by an authorized officer of S&P.
Notwithstanding the foregoing, S&P acknowledges and agrees that the
Informational Materials already in use or printed by Licensee as of the
Commencement Date of this Agreement may continue to be used by Licensee in their
present form, until materially revised by Licensee.
(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 S&P that the Product shall at
all times comply with the description in Exhibit A.
(e) Licensee represents and warrants to S&P that, to the best of its
knowledge, information and belief, the Product shall not violate any applicable
law, including but not limited to banking, commodities and securities laws.
(f) 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 S&P to Licensee exceed the average
annual License Fees actually paid to S&P hereunder. Notwithstanding the
foregoing, the limitations on liability and remedies contained in this Section
9(f) shall not apply to liability arising under Sections 11(a) and 11(b)
(indemnification) of this Agreement.
(g) Use of any non-S&P related marks by Licensee in connection with its
Product (including in the name of such Product) is at Licensee's sole risk.
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(h) S&P represents and warrants to Licensee that the annual license fee
payable by Licensee hereunder is no greater than the fee payable by any other
similarly situated licensee of the S&P 500 Index and the S&P Marks that has
entered into a license agreement governing the S&P 500 Index and the S&P Marks
at any time during the past eight (8) years. S&P also represents and warrants to
Licensee that all of the terms, conditions, warranties, and benefits
(collectively referred to as "Terms and Conditions") of S&P's license agreements
with all other similarly situated licensees that entered into license agreements
with S&P during the past eight (8) years are no more favorable, considered in
the aggregate, than all of the Terms and Conditions set forth in this agreement
with Licensee. A "similarly situated licensee" shall mean an index fund manager
that is a licensee of S&P and is using the S&P Index as the basis of an index
funds product containing approximately the same amount of assets as Licensee
and/or is licensed to use the S&P Marks in the name of the licensee's product.
(i) The provisions of this Section 9 shall survive any termination of
this Agreement.
10. Release and Discharge
---------------------
Without waiving or altering any portion of Section 11 described below,
S&P hereby expressly agrees that it shall release and discharge Licensee, its
directors, officers, employees and agents, from any and all claims or causes of
action -- known or unknown -- that were or could have been asserted with respect
to any event or omission which is alleged to occur prior to the execution of
this Agreement in connection with Licensee's prior use of the S&P 500 Index and
S&P Marks. S&P releases, acquits, and forever discharges Licensee from and shall
not now or hereafter institute, participate in, maintain, or assert against
Licensee, either directly or indirectly, on its own behalf or on behalf any
other person or entity, any cause of action or claim that relates in any way to
any act or omission which is alleged to occur prior to the execution of this
Agreement in connection with Licensee's prior use of the S&P 500 Index and S&P
Marks. This provision shall survive the expiration or termination of this
Agreement.
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11. Indemnification.
---------------
(a) Licensee shall indemnify and hold harmless S&P, its
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 any claim, action, or proceeding
that arises out of or relates to (a) this Agreement, except insofar as it
relates to a breach by S&P of its representations or warranties hereunder, or
(b) the Product; provided, however, that S&P notifies Licensee promptly of any
such claim, action or proceeding and, at Licensee's option, S&P shall grant
Licensee control of its defense and/or settlement. Licensee shall periodically
reimburse S&P for its reasonable expenses incurred under this Subsection 11(a).
S&P 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 S&P, shall not consent to entry of any judgment or enter into any
settlement which either (a) does not include, as an unconditional term, the
grant by the claimant to S&P of a release of all liabilities in respect of such
claims or (b) otherwise adversely affects the rights of S&P. This provision
shall survive the termination or expiration of this Agreement.
(b) S&P shall indemnify and hold harmless Licensee, 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 S&P of its representations or warranties under
this Agreement; provided, however, that (a) Licensee notifies S&P promptly of
any such claim, action or proceeding and, at S&P's option, Licensee shall grant
S&P control of its defense and/or settlement; and (b) Licensee cooperates with
S&P in the defense thereof. S&P shall periodically reimburse Licensee for its
reasonable expenses incurred under this Subsection 11(b). 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 S&P without waiving the indemnity hereunder. S&P, in the defense of any such
claim, action or proceeding, except
12
with the written consent of Licensee, shall not consent to entry of any judgment
or enter into any settlement which either (a) 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 (b) otherwise adversely affects the
rights of Licensee. This provision shall survive the termination or expiration
of this Agreement.
12. Suspension of Performance.
-------------------------
Neither S&P 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,
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.
13. Other Matters.
-------------
(a) This Agreement is solely and exclusively between the
parties hereto and 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.
(b) The paragraph headings used herein are solely for
convenience and shall have no bearing on the meaning or legal interpretation of
any of the provisions and terms of this Agreement.
(c) The recitals and Exhibits are incorporated into and a part of the
Agreement.
(d) 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; and there are no oral or written
collateral representations, agreements, or understandings except as provided
herein.
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(e) 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.
(f) 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 S&P: Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn.: Xxxxxx Xxxxxxxx
Senior Vice President
Index Services
Fax #: (000) 000-0000
Notice to Licensee: Metropolitan Life Insurance Company
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X'Xxxxx
Associate General Counsel, Law Department
Fax #: (000) 000-0000
(g) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
(h) 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.
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IN WITNESS WHEREOF, the undersigned authorized parties have caused this
Agreement to be executed as of the date first set forth above.
METROPOLITAN LIFE INSURANCE The XxXxxx-Xxxx Companies, Inc., on behalf
COMPANY of its Division, STANDARD & POOR'S
BY: /s/Xxxxxxx X'Xxxxx BY: /s/ Xxxxxx X. Xxxxxxxx
------------------------- ------------------------------------
Xxxxxxx X'Xxxxx Xxxxxx X. Sahkotko
------------------------- ------------------------------------
(Print Name) (Print Name)
Associate General Counsel Senior Vice President, Index Service
------------------------- ------------------------------------
(Print Title) (Print Title)
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EXHIBIT A
PRODUCT DESCRIPTION
Product: Licensee's retail and institutional index funds, which seek to
replicate and are based on the S&P 500 Index, and whose investment objectives
are to track the price and yield performance of publicly-traded common stocks of
companies as represented by the S&P 500 Index.
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