EXHIBIT 2.2
LICENSE AGREEMENT
LICENSE AGREEMENT, dated as of August 15, 2006 (the "Commencement Date") by
and between ARDOUR GLOBAL INDEXES, LLC, ("AGI") a Delaware 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 at1221 Avenue of the Americas Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, AGI compiles, calculates, maintains and owns rights in and to a
number of indexes of the prices of various securities of companies in the
alternative energy industry, listed hereto in Exhibit A, and to the proprietary
data therein contained (such rights being hereinafter individually and
collectively referred to as the "AGI Index(es)"); and
WHEREAS, AGI uses in commerce and owns trade name and service xxxx rights to
the designations "Ardour Global Indexes, LLCSM", "Ardour Global IndexSM
(Composite)", "Ardour CompositeSM", "Ardour Global IndexSM (Extra Liquid)",
"Ardour - XLM, "Ardour Global IndexSM (North America)", "Ardour - NASM, "Ardour
Global IndexSM (North America Extra Liquid)", "Ardour - NA/XLSM", "Ardour Global
IndexSM (EMEA)", "Ardour - EMEASM", "Ardour Global IndexSM (EMEA Extra Liquid)",
"Ardour - EMEA/XLSM", "Ardour Global Alternative Energy IndexesSM", "Ardour
FamilySM" and "Ardour Global Alternative EnergySM", in connection with the AGI
Index(es) (such rights being hereinafter individually and collectively referred
to as the "AGI Marks"); and
WHEREAS, Licensee and any affiliated or subsidiary companies of Licensee (as
provided in Subsection 12(a) hereof) wish to use the AGI Index(es) as a
component of the product or products described in Exhibit B attached hereto and
made a part hereof (individually and collectively referred to as the
"Product(s)"); and
WHEREAS, Licensee wishes to use the AGI 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 AGI is the source of the AGI Index(es);
and
WHEREAS, Licensee wishes to obtain AGI's authorization to use the AGI
Index(es) and the AGI 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, AGI hereby grants
to Licensee a non-transferable, non-exclusive license in the U.S. (i) to use the
AGI 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 AGI 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 AGI Index(es). Each of the
AGI Marks shall be used in its entirety. It is expressly agreed and understood
by Licensee that no rights to use the AGI Index(es) and the AGI Marks are
granted hereunder other than those specifically described and expressly granted
herein.
(b) AGI agrees that no person or entity (other than Licensee) shall need to
obtain a license from AGI with respect to the Product(s). The license herein
granted shall not transfer to Licensee any legal or beneficial property rights
whatsoever to the AGI 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 AGI, which consent may be granted or withheld in AGI's sole
and absolute discretion.
(d) If in the future Licensee wishes to use the AGI Index(es) and/or AGI
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 AGI 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 AGI 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 AGI the license fees ("License Fees") specified and
provide the data called for in Exhibit C, 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, AGI 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 free and full 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 AGI 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 AGI 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 AGI of any of its legal
rights and remedies.
(d) (i) AGI shall have the right, in its sole discretion, to cease
compilation and publication of the AGI Index(es) and, in such event, to
terminate this Agreement if AGI does not offer a replacement or substitute
index. In the event that AGI intends to discontinue the AGI Index(es), AGI 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 index will be made available.
(ii) Licensee shall have the option hereunder within sixty (60) days
after receiving such written notice from AGI to notify AGI in writing of
its intent to use the replacement or substitute index, if any, under the
terms of this Agreement. In the event that Licensee does not exercise such
option or no substitute or replacement index is made available, this
Agreement shall be terminated as of the date specified in the AGI 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 AGI 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) AGI 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) AGI is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in AGI's
reasonable judgment materially impairs AGI's ability to license and provide the
AGI Index(es) and AGI Marks under this Agreement in connection with such
Product(s); or (ii) any litigation or proceeding is threatened or commenced and
AGI reasonably believes that such litigation or proceeding would have a material
and adverse effect upon the AGI Marks and/or the AGI Index(es) or upon the
ability of AGI 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 C 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 AGI
Index(es) and the AGI 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. AGI's Obligations.
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(a) AGI 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) AGI agrees to provide reasonable support for Licensee's development and
educational efforts with respect to the Product(s) as follows: (i) AGI 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 AGI with respect to the AGI Index(es); and (ii) AGI shall
respond in a timely fashion to any reasonable requests for information by
Licensee regarding the AGI Index(es).
(c) AGI or its agent shall calculate and disseminate the AGI Index(es) at
least once each day via the AGI website in accordance with its current
procedures, which procedures may be modified by AGI.
(d) AGI shall promptly correct or instruct its agent to correct any
mathematical errors made in AGI's computations of the AGI Index(es) which are
brought to AGI'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 AGI's method of composing, calculating or determining
the AGI 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.
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Licensee shall use its best efforts to protect the goodwill and reputation of
AGI and of the AGI Marks in connection with its use of such Marks under this
Agreement. Licensee shall submit to AGI 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 AGI, the AGI Index(es), or the AGI Marks (the "Informational
Materials"). Informational Materials shall be addressed to AGI, c/o Xxxxxx X.
XxXxxxx, at the address specified in Subsection 12(d). AGI's approval shall be
required with respect to the use of and description of AGI, AGI Marks and the
AGI Index(es) and shall not be unreasonably withheld or delayed by AGI.
Specifically, AGI 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 AGI's reasons therefor. Any failure by AGI to respond
within such ten (10) day period shall be deemed to constitute a waiver by AGI of
its right to review such Informational Materials by AGI. Once Informational
Materials have been approved by AGI, subsequent Informational Materials which do
not alter the use or description of AGI, AGI Marks or the AGI Index(es) need not
be submitted for review and approval by AGI.
7. Protection of Value of License.
------------------------------
(a) During the term of this Agreement, AGI 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 AGI Marks so long as the subject
AGI Index(es) to which the AGI Xxxx(s) refer are compiled and published.
(b) AGI shall at AGI's own expense and sole discretion exercise AGI's common
law and statutory rights against infringement of the AGI Marks, copyrights and
other proprietary rights.
(c) AGI 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 AGI Marks, at AGI'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 AGI. Licensee shall cooperate with AGI 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 AGI. AGI will
reimburse Licencee 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 AGI in the maintenance of such rights and
registrations and shall take such actions and execute such instruments as AGI
may from time to time reasonably request, and shall use the following notice
when referring to the AGI Index(es) or the AGI Marks in any Informational
Material:
"Ardour Global Indexes, LLCSM", "Ardour Global IndexSM (Composite)", "Ardour
CompositeSM", "Ardour Global IndexSM (Extra Liquid)", "Ardour - XLM, "Ardour
Global IndexSM (North America)", "Ardour - NASM, "Ardour Global IndexSM (North
America Extra Liquid)", "Ardour - NA/XLSM", "Ardour Global IndexSM (EMEA)",
"Ardour - EMEASM", "Ardour Global IndexSM (EMEA Extra Liquid)", "Ardour -
EMEA/XLSM", "Ardour Global Alternative Energy IndexesSM", "Ardour FamilySM and
"Ardour Global Alternative EnergySM" are service marks of Ardour 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 Ardour Global
Indexes, LLC and Ardour 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 AGI.
8. Proprietary Rights.
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(a) Licensee acknowledges that the AGI Index(es) is selected, coordinated,
arranged and prepared by AGI through the application of methods and standards of
judgment used and developed through the expenditure of considerable work, time
and money by AGI. Licensee also acknowledges that the AGI Index(es) and the AGI
Marks are the exclusive property of AGI, that AGI has and retains all
proprietary rights therein (including, but not limited to, trademarks, service
marks, patents and copyrights), that the AGI Index(es) and its compilation and
composition and changes therein are in the control and discretion of AGI and
that AGI retains the right at any time upon reasonable written notice, to modify
the methodology used to calculate the AGI Index(es).
(b) AGI reserves all rights with respect to the AGI Index(es) and the AGI
Marks except those expressly licensed to Licensee hereunder.
(c) Licensee recognizes the great value of the goodwill associated with the
AGI Marks and acknowledges that the AGI Marks and any registrations therefore
are valid and subsisting and all rights therein and the goodwill pertaining
thereto belong exclusively to AGI.
(d) AGI reserves all rights with respect to the AGI Index(es) and the AGI
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) AGI represents and warrants that AGI has the right to grant the rights
granted to Licensee herein.
(b) AGI further warrants and represents to Licensee that the AGI Marks and
the AGI Index(es) are the exclusive property of AGI, that AGI has and retains
all proprietary rights therein (including, but not limited to trademarks,
service marks, patents and copyrights), that the AGI Index(es) and its
compilation and composition and changes therein are in the control and
discretion of AGI, and that the AGI Index(es) and AGI 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 Ardour Global
Indexes, LLC, ("AGI"). AGI 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 AGI Index(es) to track the performance of the
alternative energies market. AGI's only relationship to the Licensee is the
licensing of certain service marks and trade names of AGI and of the AGI
Index(es) that is determined, composed and calculated by AGI without regard to
the Licensee or the Product(s). AGI 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 AGI Index(es). AGI 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. AGI has no
obligation or liability in connection with the administration, marketing or
trading of the Product(s).
"AGI DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE AGI
INDEX(ES) OR ANY DATA INCLUDED THEREIN AND AGI SHALL HAVE NO LIABILITY FOR ANY
ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. AGI 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 AGI INDEX(ES) OR ANY DATA
INCLUDED THEREIN. AGI 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 AGI INDEX(ES) OR ANY DATA INCLUDED THEREIN. WITHOUT
LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL AGI HAVE ANY LIABILITY FOR ANY
SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS),
EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES."
Any changes in the foregoing disclaimers and limitations must be approved in
advance in writing by an authorized officer of AGI. Licensee will also include
such notices as are set forth in Exhibit A regarding the use of any marks that
AGI has been licensed to use.
(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) 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.
(e) Licensee represents and warrants to AGI that the Product(s) shall at all
times comply with the descriptions in Exhibit B and shall not violate any of the
restrictions set forth therein.
(f) Licensee represents and warrants to AGI that the Product(s) shall not
violate any applicable law, including but not limited to banking, commodities
and securities laws.
(g) 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 AGI to Licensee exceed the average annual License Fees
actually paid to AGI hereunder.
(h) 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 AGI, 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 AGI of its representations or warranties or
covenants hereunder, or (b) the Product(s); provided, however, that AGI notifies
Licensee promptly of any such claim, action or proceeding. AGI 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 AGI,
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 AGI of a release of all liabilities in respect of such claims or (ii)
otherwise adversely affects the rights of AGI. This provision shall survive the
termination or expiration of this Agreement.
(b) AGI 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 AGI of its
representations or warranties or covenants under this Agreement; provided,
however, that (a) Licensee notifies AGI promptly of any such claim, action or
proceeding; (b) Licensee grants AGI control of its defense and/or settlement;
and (c) Licensee cooperates with AGI 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 AGI without waiving the indemnity hereunder. AGI, 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 AGI 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 AGI Index(es) as a component of the Product(s) and use and refer to the AGI
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 AGI: Ardour 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
Notice to Licensee: 0 Xxxxxxxx Xxxxx
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X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
With copy to :
Xxx Xxxxxx Investments Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
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 AGI
setting forth the details of such Change in Control promptly upon such Change in
Control. AGI 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 AGI. 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) AGI 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 AGI or in response to questions of the media
or others, without Licensee's prior written consent, except that AGI may state
that AGI licenses the AGI Index(es) and AGI 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. ARDOUR GLOBAL INDEXES, LLC
BY: ___________________________ BY:___________________________
------------------------------- -------------------------------
(Print Name) (Print Name)
------------------------------- -------------------------------
(Print Title) (Print Title)
EXHIBIT A
LIST OF AGI INDEX(ES) AND ADDITIONAL MARKS
AGI Indexes Ticker
----------- ------
ARDOUR GLOBAL INDEXSM (Composite) AGIGL
ARDOUR GLOBAL INDEXSM (Extra Liquid) AGIXL
ARDOUR GLOBAL INDEXSM (North America) AGINA
ARDOUR GLOBAL INDEXSM (North America Extra Liquid) AGINAXL
ARDOUR GLOBAL INDEXSM (EMEA) AGIEM
ARDOUR GLOBAL INDEXSM (EMEA Extra Liquid) AGIEMXL
Additional Licensed Marks:
Pursuant to a Calculation and Distribution Agreement, dated May 12, 2006, Dow
Xxxxx & Company Inc. ("Dow Xxxxx") agreed to act as calculation agent for the
AGI Indexes and allowed AGI to use certain of its marks (the "XX Xxxxx"). In
connection with any materials that use the XX Xxxxx or refer to Dow Xxxxx, the
following disclosures will be made in connection with such disclosure:
Any description of the AGI Indexes should be accompanied by the following
attribution: "The [INSERT NAME OF THE INDEX] is calculated by Dow Xxxxx
Indexes."
All materials used by Licensee to describe the Product(s), including without
limitation, all governmental filing and prospectuses or offering memoranda, will
contain the following notice:
"The [insert name of indexes] is calculated by Dow Xxxxx Indexes.
[INSERT NAME OF CLIENT]'S [INSERT NAME OF PRODUCT(S)] based on the
[INSERT NAME OF INDEX]SM, are not sponsored, endorsed, sold or
promoted by Dow Xxxxx Indexes, and Dow Xxxxx Indexes makes no
representation regarding the advisability of investing in such
product(s)."
In addition, in any filing with a governmental agency, each prospectus and
registration statement, and in any contracts relating to the Product(s) will
include the following disclaimer:
"The [insert name of index] is calculated by Dow Xxxxx Indexes, a business
unit of Dow Xxxxx & Company, Inc. ("Dow Xxxxx"). The "[INSERT NAME OF CLIENT]'S
[INSERT NAME OF PRODUCT(S)] based on the [INSERT NAME OF INDEX]SM, are not
sponsored, endorsed, sold or promoted by Dow Xxxxx Indexes, and Dow Xxxxx
Indexes makes no representation regarding the advisability of investing in such
product(s).
Dow Xxxxx, its affiliates, sources and distribution agents (collectively, the
"Index Calculation Agent") shall not be liable to [client], any customer or any
third party for any loss or damage, direct, indirect or consequential, arising
from (i) any inaccuracy or incompleteness in, or delays, interruptions, errors
or omissions in the delivery of the [insert name of index] or any data related
thereto (the "Index Data") or (ii) any decision made or action taken by
[client], any customer or third party in reliance upon the Index Data. The Index
Calculation Agent does not make any warranties, express or implied, to [client],
any of its customers or any one else regarding the Index Data, including,
without limitation, any warranties with respect to the timeliness, sequence,
accuracy, completeness, currentness, merchantability, quality or fitness for a
particular purpose or any warranties as to the results to be obtained by
[client], any of its customers or other person in connection with the use of the
Index Data. The Index Calculation Agent shall not be liable to [client], its
customers or other third parties for loss of business revenues, lost profits or
any indirect, consequential, special or similar damages whatsoever, whether in
contract, tort or otherwise, even if advised of the possibility of such
damages."
EXHIBIT B
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 AGI
Index(es), are selected from the components of one or more of the AGI Index(es)
and/or otherwise will make use of the AGI Index(es) or the AGI Marks.
EXHIBIT C
LICENSE FEES
Licensee shall pay AGI License Fees computed as follows:
The quarterly License Fees for each Product shall be equal to three basis
points (0.03%) 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 AGI Indexes 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 $50,000 (the "Minimum Annual Fee"),
any shortfall shall be paid to AGI 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 shall be paid to AGI 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 C shall be considered "Confidential Information" for
purposes of Subsection 8(e) of this Agreement.
