EXHIBIT 4.7
FORM OF MACRO LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is entered into as of
___________, 2006 (the "Effective Date"), by and among MacroMarkets, LLC, a
Delaware limited liability company (the "Licensor"), the MACROShares Up Oil
Benchmark Holding Trust, a New York trust (the "Up-MACRO Holding Trust") and the
MACROShares Down Oil Benchmark Holding Trust, a New York trust (the "Down-MACRO
Holding Trust" and, together with the Up-MACRO Holding Trust, each a
"Licensee").
WHEREAS, the Up-MACRO Holding Trust was established pursuant to the
Up-MACRO Holding Trust Agreement (as defined herein), pursuant to which the
Up-MACRO Holding Trust will issue MACROShares Up Oil $[ ] Holding Shares (the
"Up-MACRO Holding Shares") which represent units of undivided beneficial
interest in the Up-MACRO Holding Trust;
WHEREAS, the Down-MACRO Holding Trust was established pursuant to
Down-MACRO Holding Trust Agreement (as defined herein), pursuant to which the
Down-MACRO Holding Trust will issue MACROShares Down Oil $[ ] Holding Shares
(the "Down-MACRO Holding Shares" and together with the Up-MACRO Holding Shares,
the "MACRO Holding Shares") which represent units of undivided beneficial
interest in the Down-MACRO Holding Trust; and
WHEREAS, Licensor and Licensees desire to enter into a limited,
non-exclusive, non-transferable, fee-based license so as to allow the Licensees
to issue MACRO Holding Shares utilizing the MACROs Structure, based on the
Licensor's Patented Product (as defined herein), and the Licensor's Marks.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Licensor and the Licensees
(each a "Party" and collectively, the "Parties") agree as follows:
1. DEFINITIONS.
For the purposes of this Agreement, the following terms have the
following meanings:
(a) "Administrative Agent" means [ ], not in its individual
capacity but solely as Administrative Agent under the
Up-MACRO Holding Trust Agreement and the Down-MACRO Holding
Trust Agreement.
(b) "Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly through one or more
intermediaries, Controls, or is Controlled by, or is under
common Control with, such Person.
(c) "Agreement" has the meaning set forth in the preamble.
(d) "Calculation Agent" means the American Stock Exchange, LLC,
not in its individual capacity but solely as Calculation
Agent under the Up-MACRO Holding Trust Agreement and the
Down-MACRO Holding Trust Agreement.
(e) "Calculation Period" means, with respect to any Distribution
Date, the period to and including the last Distribution Date
(or, in the case of the first Distribution Date, from and
including the Closing Date) to but excluding the current
Distribution Date. The Calculation Period that precedes a
particular Distribution Date is referred to herein as being
"related" to such Distribution Date.
(f) "Confidential Information" has the meaning set forth in
Section 10.
(g) "Control" means, with respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise.
(h) "Distribution Date" has the meaning set forth in the
applicable Holding Trust Agreement.
(i) "Distribution Payment Date" has the meaning set forth in the
applicable Holding Trust Agreement.
(j) "Down-MACRO Asset Amount" has the meaning set forth in the
Down-MACRO Holding Trust Agreement.
(k) "Down-MACRO Holding Shares" has the meaning set forth in the
recitals.
(l) "Down-MACRO Holding Trust" has the meaning set forth in the
recitals.
(m) "Down-MACRO Holding Trust Agreement" means the Trust
Agreement, dated as of the date hereof, by and among MACROs
Securities Depositor, LLC, the Down-MACRO Holding Trustee,
the Administrative and Marketing Agent.
(n) "Down-MACRO Holding Trustee" means [ ],
a [ ] [ ], not in
its individual capacity but solely as trustee of the
Down-MACRO Holding Trust.
(o) "Down-MACRO Prospectus" means the prospectus, dated as of [
], 2006, as may be amended, supplemented or otherwise
modified, pursuant to which Down-MACRO Holding Shares will be
offered to the public pursuant an effective registration
statement with the Securities and Exchange Commission.
(p) "Effective Date" has the meaning set forth in the preamble.
(q) "Indemnified Party" has the meaning set forth in Section
8(d).
(r) "Indemnifying Party" has the meaning set forth in Section
8(d).
(s) "Licensed Patents and Information" means any patents and
patent applications of the Licensor in the Territory, and any
related know-how and trade secrets provided by Licensor to
Licensees, that are related to the MACROs Structure,
including but not limited to the patent applications as set
forth on Schedule I attached hereto.
(t) "Licensee" has the meaning set forth in the preamble.
(u) "Licensor" has the meaning set forth in the preamble.
(v) "Licensing Fee" has the meaning set forth in Section 5(a)
hereunder.
(w) "Losses" has the meaning set forth in Section 8(a) hereunder.
(x) "MACROs Structure" means any synthetic structured products
which transform various economic goods and services, and
aggregate economic measures, into interests (the value of
which is linked to the performance of a reference index or
price) that can be acquired by investors in the form of
securities and are based on the Patented Products.
(y) "MACRO Holding Shares" has the meaning set forth in the
recitals.
(z) "Xxxx" shall mean the trade names "MACRO" and "MacroMarkets."
(aa) "Party(ies)" has the meaning set forth in the recitals.
(bb) "Person" shall be construed broadly and shall include an
individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or another
entity, including a governmental entity (or any department,
agency or political subdivision thereof.
(cc) "Proceeding" has the meaning set forth in Section 8(c)
hereunder.
(dd) "Prospectus" shall mean either the Up-MACRO Prospectus or the
Down-MACRO Prospectus.
(ee) "Service Providers" means each Licensee's service provider
which includes the Trustee, the Administrative Agent, the
Calculation Agent and MacroMarkets.
(ff) "Territory" means worldwide.
(gg) "Up-MACRO Asset Amount" has the meaning as defined in the
Up-MACRO Holding Trust Agreement.
(hh) "Up-MACRO Holding Shares" has the meaning set forth in the
recitals.
(ii) "Up-MACRO Holding Trust" has the meaning set forth in the
recitals.
(jj) "Up-MACRO Holding Trust Agreement" means the Trust Agreement,
dated as of the date hereof, by and among MACROs Securities
Depositor, LLC, the Up-MACRO Holding Trustee, the
Administrative and Marketing Agent.
(kk) "Up-MACRO Holding Trustee" means [ ],
a [ ], not in its
individual capacity but solely as trustee of the Up-MACRO
Holding Trust.
(ll) "Up-MACRO Prospectus" means the prospectus, dated as of [ ],
2006, as may be amended, supplemented or otherwise modified,
pursuant to which Up-MACRO Holding Shares will be offered to
the public pursuant an effective registration statement with
the Securities and Exchange Commission.
2. LICENSES.
(a) The Licenses. Subject to the terms and conditions of this
Agreement, the Licensor hereby grants to each of the Licensees (i) a limited,
non-exclusive, non-transferable, fee-based license for the term of this
Agreement to use the Licensed Patents and Information solely in connection with
each Licensee's activities as an issuer of the Holding Shares that employ the
MACROs Structure and (ii) a limited, worldwide (to the extent Licensor has
established trade marks rights in the Marks in countries outside of the Unites
States), non-exclusive, and non-transferable, fee-based license for the term of
this Agreement to use the Marks solely in each Licensee's name and Licensee's
Holding Shares' names (collectively the "Licenses"). Each Licensee expressly
agrees that the Licensor grants no rights to use the Licensed Patents and
Information, the MACROs Structure or the Marks other than those specifically
described and expressly granted herein.
(b) No Right to Sublicense. Each Licensee hereby expressly agrees not
to sublicense the Licenses to any Person without the express prior written
consent of the Licensor.
(c) Invalidation of Licensed Products. In the event that all of the
patent claims in all of the Licenses have expired, or in the event that all of
the patent claims in all remaining unexpired Licenses are finally determined
(i.e., after exhaustion of all potential appeals) to be unpatentable, invalid
or unenforceable by a court or other government agency of competent
jurisdiction, the Fees payable under Section 5(a) shall automatically be
reduced by twenty (20%) percent.
(d) Marking; Usage Guidelines. Each Licensee shall xxxx patent rights
with respect to any patents licensed hereunder in a manner as reasonably
directed by Licensor and/or approved by Licensor in writing in advance, such
approval not to be unreasonably withheld. Each Licensee shall include
appropriate service xxxx and trademark notices, including the following written
notice in connection with its use of the Licensed Marks (or such other written
ownership notice as reasonably requested by Licensor from time to time):
"[insert Xxxx] are service marks of Macro Markets, LLC and are used under
license to Licensee." Each Licensee shall designate the MACRO Structure and
the MACRO Holding Shares only through the use of the Marks. Each Licensee shall
adhere to Licensor's trademark usage guidelines with respect to the Marks as
issued by Licensor from time to time.
(e) Compliance with Law. Licensee shall comply with all applicable
laws and regulations in connection with the creation, development, and
marketing of the MACRO Structured Product, including all regulations of the
SEC, NASD and any other applicable federal or state regulatory authorities.
(f) ALL RIGHTS NOT SPECIFICALLY AND EXPRESSLY GRANTED TO THE LICENSEES
IN THIS ARTICLE 2 ARE HEREBY RESERVED TO THE LICENSOR.
3. ACKNOWLEDGMENT OF RIGHTS.
(a) Property Rights. Each Licensee acknowledges that the Licensed
Patents and Information, the MACROs Structure and the Marks are and, under all
circumstances shall remain, the sole and exclusive property of the Licensor.
All goodwill resulting from usage of the Licenses by the Licensees pursuant to
this Agreement shall accrue to the benefit of the Licensor. Performance results
of the MACRO Holding Trusts shall be the property of the Licensees as
applicable.
(b) Acknowledgement of Rights. Each Licensee agrees and acknowledges
that it will not directly or indirectly: (i) challenge or contest the validity
or enforceability of the Licenses; (ii) dispute the validity, enforceability or
the Licensor's ownership of the Marks, or initiate or participate in any
proceeding of any kind opposing the grant of Marks, or challenging any
trademark application in connection with the Marks; (iii) apply to register or
otherwise obtain registration of (A) the Licenses, or (B) the Marks or any
variation thereon or derivative thereof with any trademark, business or domain
name registrar; or (iv) assist any other Person to do any of the foregoing
(except if and to the extent required by court order or subpoena).
(c) Maintaining the Licenses. Each Licensee shall, at the Licensor's
expense, fully cooperate with and assist the Licensor in the maintenance of any
patent, trademark, or other applications and shall execute or obtain execution
of any documents that the Licensor shall reasonably request in connection
therewith, including but not limited to any assignment of invention rights.
(d) Any violation of Section 3(b) will constitute a material breach of
this Agreement.
4. TERM.
(a) Term. The term of this Agreement shall commence as of the
Effective Date and shall remain in full force and effect until the expiration
or termination of both the Up-MACRO Holding Trust Agreement and the Down-MACRO
Holding Trust Agreement, unless earlier terminated pursuant to the terms of
this Agreement (the "Term").
(b) Termination. On expiration of this Agreement, the Licensee shall
immediately cease from all use of the Licenses and inventions or works based on
or derivative thereof; and shall immediately deliver all materials bearing or
made in connection with the Licenses including without limitation all
inventions or works based on or derivative thereof, to Licensor at the address
set forth in the notice section below, or destroy them, at the option of
Licensor.
5. FEES
(a) Payment of Fees. On each Distribution Payment Date, each Licensee
will pay to the Licensor, as payment in full for the Licenses granted
hereunder, a fee equal to, for each day during each Calculation Period, the
Up-MACRO Asset Amount or the Down-MACRO Asset Amount as applicable, as of the
preceding day, multiplied by an annual fee rate of 0.40% and divided by 365
or 366 depending on the number of days in the current year (the "Licensing
Fee").
(b) Auditing Rights. The Licensor shall have the right, in each
calendar year, at its own expense and upon due notice to Licensees, to have an
accountant audit during normal business hours and at Licensees' designated
place of business, the books and records of each licensee, which relate to the
asset amount of the Licensees, in order to verify the daily Asset Amount of the
Licensees based on which the Licensing Fess are paid. In the event that the any
discrepancies are found the Licensee shall each be jointly and severally
responsible to pay to Licensor promptly any amount due and unpaid. To the
extent that the amount due and unpaid has been found to exceed 5% of the amount
that should have been paid during the preceding year from the auditing day, the
Licensees shall each be jointly and severally responsible to pay the amount due
promptly together with a penalty interest rate in the amount of [ ]% per month.
6. ENFORCEMENT.
(a) Each Licensee shall promptly (i) notify the Licensor of any
potential or actual infringement by a third party of any of the Licensed
Patents and Information or Marks of which such Licensee becomes aware, and (ii)
provide to the Licensor all evidence of such infringement in that Licensee's
possession, custody or control. Licensor shall have the sole right, but not the
obligation, to initiate any legal action at its own expense against such
infringement and to recover damages and enforce any injunction granted as a
result of any judgment in the Licensor's favor. The Licensor shall have sole
control over any such action, including, without limitation, the sole right to
settle and compromise such action. In the event of a dispute between the
Licensor and any third party regarding the infringement, validity or
enforceability of the Licensed Patents and Information or Marks, each Licensee
agrees, at the Licensor's reasonable expense, to do all things reasonably
requested by Licensor to assist Licensor in connection with such dispute.
(b) Any Licensee's delay, of more than thirty (30) days, in performing
its obligations pursuant to Section 6(a) hereof will constitute a material
breach of this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
(a) Each Party hereby represents and warrants that (i) it has the
power and authority to enter into this Agreement and perform its obligations
hereunder; (ii) the execution and delivery of this Agreement have been duly
authorized and all necessary actions have been taken to make this Agreement a
legal, valid and binding obligation of such Party enforceable in accordance
with its terms; and (iii) the execution and delivery of this Agreement and the
performance by such Party of its obligations hereunder will not contravene or
result in any breach of the Certificate of Incorporation, Bylaws or any other
organizational document of such Party or of any agreement, contract, indenture,
license, instrument or understanding or, to the best of its knowledge, result
in any violation of law, rule, regulation, statute, order or decree to which
such Party is bound or by which they or any of their property is subject.
(b) Licensor represents and warrants that it owns and/or has the right
to license to each of the Licensees the Licenses in the United States and that
to its actual knowledge, the Licenses and Licensees' use of the Patents and
Information and Marks in accordance with this Agreement will not infringe any
copyright, trademark, trade secret or patent right owned by any third party.
(c) LICENSOR DOES NOT GUARANTEE THE ACCURACY, APPLICATION OR ANY
RESULTS OF THE LICENSED PATENTS AND INFORMATION OR THE MACROS STRUCTURE. EXCEPT
AS EXPRESSLY SET FORTH IN THE FOREGOING, LICENSOR DOES NOT MAKE AND HEREBY
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR
A PARTICULAR PURPOSE. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF LICENSOR TO
LICENSEES AND ITS AFFILIATES AND ASSIGNEES UNDER OR RELATING TO THIS AGREEMENT
AT ANY TIME EXCEED THE AGGREGATE AMOUNT OF THE FEES RECEIVED BY LICENSOR
PURSUANT TO THIS AGREEMENT AND THE TRUST AGREEMENTS PRIOR TO SUCH TIME EXCEPT
THAT THIS LIMITATION SHALL NOT BE APPLICABLE TO A CLAIM BY LICENSEE FOR
INDEMNIFICATION PURSUANT TO ARTICLE 7.
8. INDEMNIFICATION.
(a) Each Party shall defend, indemnify and hold harmless the other
Party and such other Party's Affiliates, employees, officers, directors and
agents or assignees from and against any liabilities, losses, damages, costs or
expenses (including, without limitation, reasonable attorneys' fees)
(collectively, "Losses") arising from any third-party claim or action resulting
from or arising in connection with the breach by the Indemnifying Party of any
of its representations, warranties, covenants of such indemnifying Party
contained in this Agreement.
(b) Each Licensee shall indemnify, defend and hold harmless the
Licensor, Affiliates, employees, officers, directors, and agents or assignees
from and against any Losses resulting or arising from any claim (whether such
claim arises under tort, breach of express or implied contract, or otherwise)
by any person arising from the offering of the MACRO Holding Shares.
(c) If any action, suit, proceeding (including, but not limited to,
any governmental investigation), claim or dispute (collectively, a
"Proceeding") is brought or asserted against a Party for which indemnification
is sought under this Agreement, the Party seeking indemnification (the
"Indemnified Party") shall promptly (and in no event more than seven (7) days
after receipt of notice of such Proceeding) notify the Party obligated to
provide such indemnification (the "Indemnifying Party") of such Proceeding. The
failure of the Indemnified Party to so notify the Indemnifying Party shall not
impair the Indemnified Party's ability to obtain indemnification from the
Indemnifying Party except to the extent such failure adversely affects the
Indemnifying Party's ability to adequately oppose or defend such Proceeding.
Upon receipt of such notice from the Indemnified Party, the Indemnifying Party
shall be entitled to participate in such Proceeding at its own expense.
Provided no conflict of interest exists as specified in clause (ii) below and
there are no other defenses available to the Indemnified Party as specified in
clause (iv) below, the Indemnifying Party, to the extent that it shall so
desire, shall be entitled to assume the defense of the Proceeding with counsel
reasonably satisfactory to the Indemnified Party, in which case all reasonable
attorney's fees and expenses shall be borne by the Indemnifying Party (except
as specified below) and the Indemnifying Party shall in good faith defend the
Indemnified Party. After receiving written notice from the Indemnifying Party
of its election to assume the defense of the Proceeding, the Indemnified Party
shall have the right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, provided that the fees and expenses of such
counsel shall be borne entirely by the Indemnified Party unless (i) the
Indemnifying Party expressly agrees in writing to pay such fees and expenses,
(ii) there is such a conflict of interest between the Indemnifying Party and
the Indemnified Party as would preclude, in compliance with the ethical rules
in effect in the jurisdiction in which the Proceeding was brought, one lawyer
from representing both Parties simultaneously, (iii) the Indemnifying Party
fails, within the earlier of (x) twenty (20) days following receipt of notice
of the Proceeding from the Indemnified Party or (y) seven (7) days prior to the
date the first response or appearance is required to be made in such
Proceeding, to assume the defense of such Proceeding with counsel reasonably
satisfactory to the Indemnified Party or (iv) there are legal defenses
available to the Indemnified Party that are different from or are in addition
to those available to the Indemnifying Party. In each of cases (i) through
(iv), the fees and expenses of counsel shall be borne by the Indemnifying
Party. No compromise or settlement of such Proceeding may be effected by either
Party without the other Party's consent unless (m) there is no finding or
admission of any violation of law and no effect on any other claims that may be
made against such other Party and (n) the sole relief provided is monetary
damages that are paid in full by the Indemnifying Party. Neither Party shall
have any liability with respect to any compromise or settlement effected
without its consent, which shall not be unreasonably withheld. The Indemnifying
Party shall have no obligation to indemnify and hold harmless the Indemnified
Party from any loss, expense or liability incurred by the Indemnified Party as
a result of a default judgment entered against the Indemnified Party unless
such judgment was entered after the Indemnifying Party agreed, in writing, to
assume the defense of such Proceeding.
9. LIMITATION OF LIABILITY.
EXCEPT FOR EACH PARTY'S OBLIGATION TO INDEMNIFY THE OTHER PARTY FOR
THIRD PARTY LOSSES PURSUANT TO ARTICLE 8, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER
INDIRECT DAMAGES, HOWSOEVER CAUSED, WHETHER ARISING IN CONTRACT, TORT OR
OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. CONFIDENTIALITY
Except as provided below, all information concerning the Licenses, and
all other business, financial, marketing and product information disclosed to
the other Party orally or in writing is deemed confidential, restricted and
proprietary to the disclosing Party (the "Confidential Information"). Each
Party agrees to use the Confidential Information received from the other Party
only for the purpose of this Agreement. The Confidential Information disclosed
or supplied is not to be reproduced in any form except as required to
accomplish the intent of, and in accordance with the terms of, this Agreement.
The receiving Party must provide the same degree of care to avoid disclosure or
unauthorized use of the Confidential Information as it accords to protect its
own similar proprietary information, but in no event less than reasonable care
under the circumstances. All Confidential Information must be retained by the
receiving Party in a secure place with access limited to only such of its
employees, consultants, subcontractors, suppliers or agents who need to know
such information for purposes of this Agreement and to such third parties as
the disclosing Party has consented to by prior written approval and only when
such persons have agreed in writing to be bound by the terms of this Agreement
or who have entered into a non-disclosure agreement with Licensee at least as
restrictive as those contained in this Agreement. All Confidential Information,
unless otherwise specified in writing (x) remains the property of the
disclosing Party, (y) must be used by the receiving Party only for the purpose
for which it was intended, and (z) including all copies thereof, must be
returned to the disclosing Party or destroyed after the receiving Party's need
for it has expired or upon request of the disclosing Party, and, in any event,
upon expiration or termination of this Agreement. At the request of the
disclosing Party, the receiving Party will furnish a certificate of an officer
of the receiving Party certifying that the Confidential Information not
returned to the disclosing Party has been destroyed. The obligation of
confidentiality set forth in this Section 10 shall survive expiration of this
Agreement for a period of three (3) years. Licensee shall vigorously enforce
its rights as against any employee, consultant, subcontractor, supplier or
agent or other third parties to whom Confidential Information has been provided
and who breaches, or threatens or attempts to breach, its obligations of
confidentiality and non-use as set forth in this Section 10. For the purpose
hereof, the Confidential Information shall not include information, to the
extent evidenced by reasonable documentation, that:
(i) is published or is otherwise in the public domain through no
fault of the receiving Party at the time of any claimed
unauthorized disclosure or use by the receiving Party;
(ii) prior to disclosure pursuant to this Agreement, is properly
within the legitimate possession of the receiving Party;
(iii) subsequent to disclosure pursuant to this Agreement, is
lawfully received from a third party having rights in the
information without restriction of the third party's right to
disseminate the information and without notice of any
restriction against its further disclosure;
(iv) is obligated to be produced under order of a court or other
similar requirement, rule or regulation of any governmental
authorities, so long as the Party required to disclose the
information provides the disclosing Party with prior notice
of such order or requirement and its cooperation to the
extent reasonable in preserving its confidentiality or
limiting the scope of disclosure; or
(v) the disclosing Party agrees in writing that the information
disclosed is free of such restrictions.
The Parties agree that, without limiting any other rights and remedies
specified herein, an injunction may be sought against the Party who has
breached or threatened to breach this Section 10.
11. ASSIGNMENT.
(a) Licensor may assign or otherwise transfer (whether by operation of
law or otherwise) any right or obligation hereunder without the prior written
consent of the Licensees, provided, a due notice is given to each of the
Licensees.
(b) Each Licensee may not assign or otherwise transfer (whether by
operation of law, change of control or otherwise) any right or obligation under
this Agreement without the prior written consent of Licensor.
(c) This Agreement is binding on and inures to the benefit of the
Parties and their permitted successors and assigns. Any attempted assignment or
other transfer of rights under this Agreement in violation of this Section 11(b)
will be void.
12. MISCELLANEOUS PROVISIONS.
(a) GOVERNING LAW. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of New York without reference
to or inclusion of the principles of choice of law or conflicts of law of that
jurisdiction (except that questions affecting the construction and effect of
any patent or trademark will be determined by the law of the country in which
the patent was granted). Each Party agrees that any legal action, proceeding,
controversy or claim between the Parties arising out of or relating to this
Agreement may be brought and prosecuted only in the United States District
Court for the Southern District of New York or, if that Court lacks or declines
to exercise subject matter jurisdiction, in the Supreme Court of the State of
New York in and for New York County, and by execution of this Agreement each
Party hereto submits to the exclusive jurisdiction of such court and waives any
objection it might have based upon improper venue or inconvenient forum. Each
Party hereto waives any right it may have to a jury trial in connection with
any legal action, proceeding, controversy or claim between the Parties arising
out of or relating to this Agreement.
(b) EXCLUSIVE JURISDICTION AND VENUE. Any action brought by either
Party that arises out of or relates to this Agreement will be filed only in the
state or federal courts located in New York County, New York. Each Party
irrevocably submits to the jurisdiction of those courts. Each Party waives any
objections that it may have now or in the future to the jurisdiction of those
courts, and also waives any claim that it may have now or in the future that
litigation brought in those courts has been brought in an inconvenient forum.
(c) ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
of the Parties as to its subject matter and supercedes all prior agreements,
negotiations, representations, and promises between them with respect to its
subject matter.
(d) SEVERABILITY. If any provision of this Agreement is held
unenforceable by a court of competent jurisdiction, the other provisions will
remain in full force and effect. If legally permitted, the unenforceable
provision will be replaced with an enforceable provision that as nearly as
possible gives effect to the Parties' intent.
(e) SURVIVAL. Notwithstanding anything to the contrary in this
Agreement, in the event that the Licensees have been offered to the public,
sections 3, 5, 6, 7(c), 8, 9, 10, 11 and 12 shall survive termination of this
agreement.
(f) RELATIONSHIP OF THE PARTIES. Each Party is an independent
contractor of the other Party. Nothing in this Agreement creates a partnership,
joint venture or agency relationship between the Parties.
(g) NOTICES. A notice under this Agreement is not sufficient unless it
is: (i) in writing; (ii) addressed using the contact information listed below
for the Party to which the notice is being given (or using updated contact
information which that Party has specified by written notice in accordance with
this Article); and (iii) sent by hand delivery, facsimile transmission,
registered or certified mail (return receipt requested), or reputable express
delivery service with tracking capabilities (such as Federal Express).
(h) FORCE MAJEURE. Neither Party shall be deemed in default of this
Agreement to the extent that performance of its obligations or attempts to cure
any breach are delayed, restricted, or prevented by reason of any act of God,
fire, natural disaster, governmental regulations, or other causes arising out
of terrorism or a state of national emergency or war ("Force Majeure Event");
provided that such Party gives the other Party written notice thereof promptly
and, in any event, within thirty (30) days of discovery thereof and uses its
best efforts to cure the delay. In the event that any Force Majeure Event
prevents either Party from carrying out its obligations under this Agreement
for a period of more than thirty (30) days, the other Party may terminate this
Agreement upon an additional thirty (30) days' written notice.
CONTACT INFORMATION FOR THE LICENSOR:
MacroMarkets, LLC:
00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, III
Telephone: (000) 000-0000
Facsimile: ( )
CONTACT INFORMATION FOR THE LICENSEES:
If to the Up-MACRO Holding Trust:
MACROShares Up Oil Benchmark Holding Trust
c/o [ ]
[ ]
[ ]
Attention: [ ]
Telephone: [ ]
Facsimile: [ ]
If to the Down-MACRO Holding Trust:
MACROShares Down Oil Benchmark Holding Trust
c/o [ ]
[ ]
[ ]
Attention: [ ]
Telephone: [ ]
Facsimile: [ ]
(i) AMENDMENTS. This Agreement may not be amended unless the amendment
is in writing and signed by authorized representatives of both Parties.
(j) WAIVERS. A waiver of rights under this Agreement will not be
effective unless it is in writing and signed by an authorized representative of
the Party that is waiving the rights.
(k) COUNTERPARTS. The Parties may execute this Agreement by signing
separate copies of the signature page. A facsimile copy of the signature page
will have the same effect as the original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first set
forth above.
MACROMARKETS, LLC,
as Licensor
By: ______________________________
Name: ______________________________
Title: ______________________________
MACROSHARES UP OIL BENCHMARK HOLDING
TRUST, as Licensee
By: [ ],
not in its individual capacity but solely
as trustee of the MACROShares Up Oil
Benchmark Holding Trust
By: _____________________________
Name: _____________________________
Title: _____________________________
MACROSHARES DOWN OIL BENCHMARK HOLDING
TRUST, as Licensee
By: [ ],
not in its individual capacity but solely
as trustee of the MACROShares Down Oil
Benchmark Holding Trust
By: _____________________________
Name: _____________________________
Title: _____________________________
[SIGNATURE PAGE TO LICENSE AGREEMENT]
SCHEDULE I
Patented Products
Granted Patents
---------------
--------------------------------------------- ------------------------------------ ---------------------------
Title Country Patent Number
Issue Date
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR United States of America 5987435
16-Nov-1999
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR Xxxxxxxxx 00000
30-Apr-2002
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR United States of America 6513020B1
28-Jan-2003
--------------------------------------------- ------------------------------------ ---------------------------
Pending Patents
---------------
--------------------------------------------- ------------------------------------ ---------------------------
Title Country Patent Number
Issue Date
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR Patent Cooperation Treaty PC/US98/22224
20-Oct-1998
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR European Patent Convention 98952389.9
20-Oct-1998
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR Brazil P198131702
20-Oct-1998
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR Canada 2308279
20-Oct-1998
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR Hong Kong 01104416.7
26-Jun-2001
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR Israel 135829
20-Oct-1998
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET SYSTEM AND METHOD India 1551CHENP2003
01-Mar-2002
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR Japan JP2000-519380
20-Oct-1998
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS United States of America 09/567,901
10-May-2000
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET SYSTEM AND METHOD United States of America 10/087,339
01-Mar-2002
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET SYSTEM AND METHOD Patent Cooperation Treaty PC/US02/06328
01-Mar-2002
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS United Arab Emirates 340/2002
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Australia 2001261834
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Brazil PI0110752-6
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Canada 2408539
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS China (People's Republic) 01812637.5
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS European Patent Convention 01935772.2
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Israel 152729
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS India INPC200201871
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Japan 2001-583442
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Mexico Paa0000000000
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Norway 20025364
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS New Zealand 522575
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Russian Federation 2002133433
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Singapore 200206835-1
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET SYSTEM AND METHOD Russian Federation 2003129533
01-Mar-2002
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET SYSTEM AND METHOD European Patent Convention 02709752.6
01-Mar-2002
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET SYSTEM AND METHOD Australia 2002244221
01-Mar-2002
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET SYSTEM AND METHOD Canada 2443278
01-Mar-2002
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET SYSTEM AND METHOD New Zealand 528555
01-Mar-2002
--------------------------------------------- ------------------------------------ ---------------------------
TECHNIQUES FOR INVESTING IN PROXY ASSETS Hong Kong 04101764.8
09-May-2001
--------------------------------------------- ------------------------------------ ---------------------------
PROXY ASSET DATA PROCESSOR Israel 162738
20-Oct-1998
--------------------------------------------- ------------------------------------ ---------------------------
SELF HEDGING MULTI-LAYERED INVESTMENT United States of America 60/691,397
SYSTEM AND METHOD USING INTERNAL 17-Jun-2005
CONTRACTUAL RELATIONSHIPS
--------------------------------------------- ------------------------------------ ---------------------------
