SPDR SUBLICENSE AGREEMENT
Exhibit 10.12
SPDR SUBLICENSE AGREEMENT
This Sublicense Agreement (this “Agreement”), entered into as of May 20, 2008 (the
“Effective Date”), is made by and among STATE STREET CORPORATION, a Massachusetts domestic
corporation, and STATE STREET GLOBAL MARKETS, LLC, a Delaware limited liability company and an
affiliate of State Street Corporation (together, “State Street”), on the one hand, and
WORLD GOLD COUNCIL, a not-for-profit association organized under Swiss law, and WORLD GOLD TRUST
SERVICES, LLC, a Delaware corporation and wholly-owned subsidiary of World Gold Council (together,
“WGT”), on the other, as well as STANDARD & POORS, a division of The XxXxxx-Xxxx Companies,
Inc., a New York corporation, having an office at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“S&P”) with respect to specific matters set forth herein.
WHEREAS, the streetTRACKS® Gold Trust, to be known as the SPDR® Gold Trust (the
“Trust”), was established pursuant to the Trust Agreement entered into by and between WGT
and The Bank of New York (“BONY”) dated as of November 14, 2004 (the “Trust
Agreement”), pursuant to which the Trust issues shares (the “Shares”) which represent
units of fractional undivided beneficial interest in and ownership of the Trust upon the deposit of
gold bullion by Authorized Participants (as defined in the Trust Agreement) with HSBC Bank USA, as
custodian of the Trust;
WHEREAS, State Street and WGT entered into a Marketing Agent Agreement dated as November 14,
2004 (the “Marketing Agent Agreement”) whereby WGT designated State Street as the exclusive
marketing agent of the Trust;
WHEREAS, State Street Global Advisors, a division of State Street Bank and Trust Company, a
Massachusetts trust company with offices at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (on
behalf of itself and its affiliates) and S&P entered into that certain SPDR Trademark License
Agreement dated as of November 29, 2006, as amended (the “SPDR License Agreement”);
WHEREAS, pursuant to the SPDR License Agreement, State Street has the right to use the “SPDR”
xxxx (the “SPDR Xxxx”);
WHEREAS, State Street desires to sublicense to WGT certain rights to use the SPDR Xxxx solely
for use in connection with the Trust, which rights WGT will sublicense to State Street to perform
services under the Marketing Agent Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties (as defined below) agree as follows:
1. DEFINITIONS.
For the purposes of this Agreement, the following terms have the following meanings:
(a) “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.
(b) “Agreement” has the meaning set forth in the preamble.
(c) “BONY” has the meaning set forth in the recitals.
(d) “Confidential Information” has the meaning set forth in Section 10(b).
(e) “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.
(f) “Effective Date” has the meaning set forth in the preamble.
(g) “Indemnified Party” has the meaning set forth in Section 8(b).
(h) “Indemnifying Party” has the meaning set forth in Section 8(b).
(i) “Informational Materials” means all prospectuses, registration statements and any
other similar informational materials (including, but not limited to, documents required to be
filed with governmental or regulatory agencies) (collectively, “Category 1 Informational
Materials”), and all advertisements, brochures, Web sites, sales, marketing, and promotional
and any other similar informational materials (collectively, “Category 2 Informational
Materials”) relating to Shares that in any way use or refer to the SPDR Xxxx.
“Informational Materials” shall not include general references to the Shares in materials
that are not specifically related to the Shares and do not market, sell or promote the Shares,
including, without limitation, materials prepared solely for internal use by WGT, its Affiliates
and sublicensees, press or analyst briefing materials and annual reports.
(j) “License” has the meaning set forth in Section 2(a).
(k) “Losses” has the meaning set forth in Section 8(a).
(l) “Marketing Agent Agreement” has the meaning set forth in the recitals.
(m) “Naming Convention” means use of both the SPDR Xxxx and one of (i) the name or
(ii) the abbreviation of the name, of the Shares or the Trust, including without limitation in the
following forms “SPDR® Gold Trust” and “SPDR® Gold Shares”.
(n) “Party” or “Parties” means State Street, WGT and/or, where applicable,
S&P.
(o) “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
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trust, a joint venture, an unincorporated organization or another entity, including a
Governmental Entity (or any department, agency or political subdivision thereof.
(p) “Proceeding” has the meaning set forth in Section 8(b).
(q) “Shares” has the meaning set forth in the recitals.
(r) “SPDR Xxxx” has the meaning set forth in the recitals.
(s) “State Street” has the meaning set forth in the Preamble.
(t) “Trust” has the meaning set forth in the recitals.
(u) “Trust Agreement” has the meaning set forth in the recitals.
(v) “WGT” has the meaning set forth in the Preamble.
2. LICENSE.
(a) Subject to the terms and conditions of this Agreement, State Street hereby grants to WGT a
worldwide (subject to Section 3(d)), non-exclusive, nontransferable sublicense (the
“License”) to use the SPDR Xxxx as follows to:
(i) use the SPDR Xxxx in connection with establishing, organizing, structuring, sponsoring,
and managing the Trust;
(ii) use the SPDR Xxxx in connection with the issuance, sale, exchange-trading, marketing and
promotion of the Shares;
(iii) use the SPDR Xxxx as part of the names of the Shares;
(iv) use the SPDR Xxxx in connection with making such disclosure about WGT, the Trust and the
Shares as WGT deems necessary or desirable under any applicable laws, rules, or regulations, or any
provisions of this Agreement; and
(v) use the SPDR Xxxx in connection with the listing of the Shares on exchanges.
(b) WGT shall not use the SPDR Xxxx for any purpose other than as set forth in Section 2(a),
except as otherwise agreed to in writing by the Parties after the Effective Date. Except for the
license specifically provided herein, this Agreement shall not transfer to WGT any further right
to, or interest in, the SPDR Xxxx. It is further expressly understood that this Agreement does not
convey any rights to, or interest in, any other S&P xxxx or any S&P index.
(c) All use of the SPDR Xxxx under the Trademark License and all goodwill associated therewith
shall inure to the exclusive benefit of State Street or its licensors. WGT shall, at State
Street’s expense, fully cooperate with and assist State Street in the prosecution or
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maintenance of any trademark, service xxxx, domain name or copyright application and ensuing
registration concerning the SPDR Xxxx and shall execute any documents State Street shall reasonably
request in connection therewith.
(d) WGT’s Limited Right to Sublicense. The License granted herein shall include the
limited right of WGT to grant sublicenses to its Affiliates, partners, joint venturers, trustees,
distributors, custodians and agents, including without limitation State Street as marketing agent
(each, a “Sublicensee”), subject to the restrictions of this Agreement, and solely in
connection with such Sublicensee’s performance of its services for WGT related to the activities of
WGT permitted hereunder. In addition, each Sublicensee must be approved in writing in advance by
State Street and shall include provisions in all such sublicenses that: (i) are identical in
substance to Sections 3, 4, 5, 6 and 7(c) herein (with the references in such sublicenses to “State
Street” & “S&P” therein to continue to signify the State Street & S&P as defined herein with
respect to Sections 3, 4 & 7(c)); (ii) require WGT to terminate such sublicenses, without penalty,
if this Agreement is terminated for any reason; (iii) obligate WGT to give the Sublicensee notice
if this Agreement is terminated for any reason; and (iv) entitle State Street herein to give such
notice in the event that the WGT fails to do so.
(e) ALL RIGHTS NOT SPECIFICALLY AND EXPRESSLY GRANTED TO WGT IN THIS SECTION 2 ARE HEREBY
RESERVED TO STATE STREET.
3. QUALITY CONTROL /ENFORCEMENT.
(a) Protection of Reputation. WGT shall use its best efforts not to use the SPDR Xxxx
in a manner that could reasonably be expected to damage the reputation or goodwill associated with
the SPDR Xxxx, or do or cause to be done any act or thing disparaging, impairing or diluting the
SPDR Xxxx.
(b) Review. WGT shall submit to State Street’s for its review and approval all
Informational Materials. State Street’s right of approval under this Agreement will be restricted
to any description of State Street and the use and description of the SPDR Xxxx. Once
Informational Materials have been approved by State Street, subsequent Informational Materials that
are updating data need not be submitted for further review and approval by State Street unless (i)
the use of the SPDR Xxxx is altered in any material respect, or (ii) the language or use of the
required disclaimers or proprietary notices is altered in any respect (material or otherwise). It
is understood and agreed that any Informational Materials provided to WGT by State Street shall be
deemed approved by State Street.
(c) WGT Support. WGT shall promptly, at its own expense, take such actions and
execute such additional documents and instruments reasonably requested by State Street or S &P to
assist S&P with the registration, maintenance and filings of the SPDR Xxxx. For the avoidance of
doubt, no registered user or similar agreements filed by WGT shall be deemed to transfer to WGT any
right, title or interest in the SPDR Xxxx.
(d) Territorial Limitations. WGT shall not use the SPDR Xxxx in (i) any jurisdiction
where the SPDR Xxxx has not been registered in the relevant classes or (ii) a
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jurisdiction where entry of WGT as a registered or authorized user is required, prior to the
execution of an appropriate registered user agreement or similar agreement and the filing thereof
with the appropriate governmental agency (except where failure to do so prior to use shall nor have
a material adverse effect of the SPDR Xxxx); provided, however, that notwithstanding the foregoing,
upon written approval from State Street, WGT may use the SPDR Xxxx in certain jurisdictions after
filing of an application for registration. The jurisdictions in which WGT currently may use the
SPDR Xxxx are listed in Exhibit A. In the event WGT wishes to use the SPDR Xxxx in jurisdictions
not listed in Exhibit A, WGT shall submit to State Street a written request for the addition of
such territory, and State Street will, at WGT’s expense, undertake commercially reasonable efforts
to permit such expansion, subject to the terms and conditions of the SPDR License.
(e) Maintenance and No Challenge.
(i) WGT shall take such actions and execute such instruments as State Street or S&P may from
time to time reasonably request with regard to the maintenance of the SPDR Xxxx and the
registrations thereof, including, but not limited to, the use by WGT of the following proprietary
notice when referring to the SPDR Xxxx in any Informational Material relating to the Shares:
“SPDR” is a trademark of The McGraw Hill Companies, Inc. and has been licensed for
use by [WGT entity].
or such similar language as may be approved in advance by State Street.
(ii) WGT shall not at any time during the Term, nor at any time thereafter, for as long as S&P
shall own rights in the SPDR Xxxx, do or cause to be done any act or thing challenging the
ownership, validity or enforceability of the SPDR Xxxx.
(f) WGT Share Names. WGT shall not have the right to file applications for
registration on behalf of itself or any third party for any Shares names that include the SPDR
Xxxx. WGT hereby disclaims any right, title and interest to the SPDR Xxxx in Shares names.
(g) Secondary Marks.
(i) WGT shall not create composite trademarks consisting of the SPDR Xxxx in combination with
any other word, phrase, symbol or device without State Street’s and S&P’s prior written
authorization. Nothing in this Section 3 shall prevent WGT from creating and using Share or Trust
names in accordance with the Naming Convention and the terms and conditions of this Agreement. WGT
hereby disclaims any right, title and interest to the SPDR Xxxx in any composite marks approved by
State Street and S&P in accordance with the foregoing.
(ii) WGT agrees not to: (i) use or register in any jurisdiction any xxxx that is confusingly
similar to, or consisting in whole or in part of, the SPDR Xxxx or (ii) register the SPDR Xxxx in
any jurisdiction, without in each case the express prior written consent of S&P and State Street.
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(iii) If WGT creates, uses or registers any xxxx in contravention of this Section 3(g), the
Parties agree (without limitation of other remedies) WGT hereby assigns all right, title, and
interest in and to such xxxx to S&P and all goodwill, right, title or interest that might be
acquired by the use of such xxxx by WGT shall inure to the sole benefit of S&P.
(h) Infringement of the Exclusive Rights Granted to WGT and Enforcement. Upon written
notice from S&P or State Street to WGT that, in the good faith opinion of S&P or State Street based
upon the advice of its trademark counsel, use of the SPDR Xxxx would result in material potential
trademark liability to a third party on the part of S&P, State Street, or WGT in a particular
jurisdiction, WGT shall, within a commercially reasonable period of time, not to exceed ninety (90)
days, cease use of the SPDR Xxxx in such jurisdiction to the extent necessary to avoid such
trademark liability on the part of S&P, State Street or WGT. If WGT has questions or concerns
about such notice, senior representatives of the Parties, within ten (10) days after receipt of
such notice, shall confer in good faith and endeavor to agree on a course of action in such
jurisdiction. In the event that the Parties cannot agree on a course of action, the Parties shall,
within ten (10) days thereafter, select a mediator from the INTA Panel of Neutrals and shall engage
in mediation in good faith for ten (10) days and endeavor to agree on a course of action in such
jurisdiction. In the event that the Parties cannot, through mediation, agree on a course of
action, WGT shall, within a commercially reasonable period of time, not to exceed ninety (90) days
from the end of such (10) day mediation period, cease use of the SPDR Xxxx in such jurisdiction to
the extent necessary to avoid such trademark liability on the part of S&P, State Street or WGT.
(i) Notification of Infringement. WGT shall promptly (a) notify State Street of any
potential or actual infringement by a third party of the SPDR Xxxx of which WGT becomes aware, and
(b) provide to State Street all evidence of such infringement in WGT’s possession, custody or
control. State Street 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 State Street’s favor. State Street 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 State Street and any third party
regarding the infringement, validity or enforceability of the SPDR Xxxx, WGT agrees, at State
Street’s expense, to do all things reasonably requested by State Street to assist State Street in
connection with such dispute.
4. PROPRIETARY RIGHTS.
(a) WGT acknowledges that the SPDR Xxxx is the exclusive property of S&P, and that S&P has and
retains all right, title and interest therein.
(b) WGT admits the validity of the SPDR Xxxx and agrees that any and all goodwill, right,
title or interest that might be acquired by the use of the SPDR Xxxx by WGT shall inure to the sole
benefit of S&P. If WGT obtains any right, title or interest in the SPDR Xxxx in the United States
or any foreign jurisdiction, WGT hereby assigns such right, title or interest to S&P, and shall
execute upon request any additional documents required to effectuate such assignments.
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(c) S&P reserves all rights with respect to the SPDR Xxxx and any and all other property of
S&P, except those rights to the SPDR Xxxx expressly licensed to WGT hereunder.
5. TERM AND TERMINATION.
(a) 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 the earlier of (i) Marketing Agent
Agreement or (ii) the SPDR License Agreement, unless earlier terminated pursuant to the terms of
this Agreement (the “Term”).
(b) Either Party may terminate this Agreement by written notice to the other Party at any time
if the other Party materially breaches this Agreement and fails to cure such breach with thirty
(30) days following written notice thereof from the non-breaching Party. Upon any termination or
expiration of this Agreement, all rights and obligations under this Agreement (including WGT’s
rights under the License granted pursuant to Section 2) will immediately terminate;
provided, however, that the provisions of Sections 1, 4, 5, 6, 7, 8, 9, 10, 11 and
12, and any other provision that survives by its express terms, shall survive any termination or
expiration of this Agreement.
(c) On expiration or termination of this Agreement, WGT shall immediately cease and desist
from all use of the SPDR Xxxx, and any similar marks, and inventions or works based on or
derivative thereof; and shall immediately deliver all products bearing or made in connection with
the SPDR Xxxx, including, without limitation, all inventions or works based on or derivative
thereof, to State Street at the address set forth in the notice section below, or destroy them, at
the option of State Street.
6. ACKNOWLEDGMENT OF RIGHTS.
(a) WGT will not directly or indirectly: (i) challenge or contest the validity or
enforceability of the SPDR Xxxx; (ii) dispute the validity, enforceability, or State Street’s
exclusive ownership of, any trademark, trade name or domain name application or registration owned
by State Street with respect to the SPDR Xxxx or initiate or participate in any proceeding of any
kind opposing the grant to State Street of any trademark, trade name, or domain name registration
in the SPDR Xxxx or similar marks; (iii) fail to meet State Street’s quality control with respect
to the SPDR Xxxx or make any other use thereof other than as expressly permitted herein; (iv) apply
to register or otherwise obtain registration of the SPDR Xxxx, or any marks similar thereto, in the
patent and trademark or copyright office of any country or state, or with any business or domain
name registrar; or (v) assist any other Person to do any of the foregoing (except if required by
court order or subpoena); provided, however, the foregoing shall in no way limit
WGT’s ability to defend against or to mitigate any claim brought by State Street against WGT.
(b) Any violation of this Section 6 will constitute a material breach of this Agreement.
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7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(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 result in any violation of any
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) State Street represents and warrants that it owns and/or has the right to license to WGT
the SPDR Xxxx in the United States and that to its actual knowledge, the SPDR Xxxx and WGT’s use of
the foregoing in accordance with this Agreement shall not infringe any copyright, trademark, trade
secret or other intellectual property right of any third party.
(c) WGT agrees expressly to be bound by and furthermore to include the following disclaimers
and limitations in its Informational Materials and upon request to furnish a copy (copies) thereof
to S&P and State Street:
(i) For Category 1 Informational Materials and contracts:
The “SPDR” trademark is used under license from The XxXxxx-Xxxx
Companies, Inc. and the SPDR® Gold Trust is permitted to
use the “SPDR” trademark pursuant to a sublicense from the Marketing
Agent. No financial product offered by SPDR® Gold Trust, or its
affiliates is sponsored, endorsed, sold or promoted by The
XxXxxx-Xxxx Companies, Inc. (“XxXxxx-Xxxx”). XxXxxx-Xxxx makes no
representation or warranty, express or implied, to the owners of any
financial product or any member of the public regarding the
advisability of investing in securities generally or in financial
products particularly or the ability of the index on which financial
products are based to track general stock market performance.
XxXxxx-Xxxx is not responsible for and has not participated in any
determination or calculation made with respect to issuance or
redemption of financial products. XxXxxx-Xxxx has no obligation or
liability in connection with the administration, marketing or
trading of financial products.
WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL
XxXXXX-XXXX HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE, INDIRECT,
OR
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CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST
PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
(ii) For Category 2 Informational Materials:
The “SPDR” trademark is used under license from The XxXxxx-Xxxx
Companies, Inc. (“XxXxxx-Xxxx”). No financial product offered by
SPDR® Gold Trust, or its affiliates is sponsored, endorsed, sold or
promoted by XxXxxx-Xxxx.
Any changes in the foregoing disclaimers and limitations must be approved in advance in writing by
an authorized officer of S&P and State Street. The Category 2 Informational Materials shall also
include along with the foregoing disclaimers a clear reference that further limitations and
important information that could affect investors’ rights are to be found in the prospectus for the
applicable Shares.
(d) WGT represents and warrants to S&P and State Street that the Shares and all activities of
WGT concerning the Shares shall not violate any applicable law, including, but not limited to, U.S.
and foreign banking, commodities and securities laws.
(e) EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING, STATE STREET 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
OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF STATE STREET TO
WGT AND ITS AFFILIATES UNDER OR RELATING TO THIS AGREEMENT AT ANY TIME EXCEED THE AGGREGATE AMOUNT
OF THE FEES RECEIVED BY STATE STREET PURSUANT TO THIS AGREEMENT AND THE TRUST AGREEMENT PRIOR TO
SUCH TIME EXCEPT THAT THIS LIMITATION SHALL NOT BE APPLICABLE TO A CLAIM BY WGT FOR INDEMNIFICATION
PURSUANT TO SECTION 8.
8. INDEMNITY.
(a) Each Party shall defend, indemnify and hold harmless the other Party and such other
Party’s Affiliates, employees, officers, directors, and agents from and against any liabilities,
losses, damages, costs or expenses (including, without limitation, reasonable attorneys’ fees)
(collectively, “Losses”) resulting from or arising in connection with the breach by the
Indemnifying Party of any of its representations, warranties, covenants or obligations contained in
this Agreement.
(b) 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
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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 unless 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 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 LOSSES PURSUANT TO SECTION
8, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE,
EXEMPLARY OR OTHER INDIRECT DAMAGES, HOWSOEVER CAUSED, WHETHER
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ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
10. CONFIDENTIALITY.
(a) Public Statements. Except as consented to by the other Party (such consent not to
be unreasonably withheld or delayed) or as otherwise specifically set forth herein, neither Party
will issue any public statement relating to or in any way disclosing any aspect of the matter
contemplated by this Agreement, including the scope and the specific terms hereof. The obligations
of the Parties under this Section 10(a) are in addition to their respective obligations pursuant to
Section 10(b) but shall not limit the exceptions to public disclosure specifically referred to in
Section 10(b) paragraphs (i) through (v). This Section 10(a) will in no way limit either Party’s
ability to (i) respond to customary press inquiries or otherwise make public or private statements
not otherwise disclosing the Confidential Information (as defined below) or the specific terms of
this Agreement in the normal course of its business and/or in connection with the obligations
hereunder, or (ii) provide necessary information to prospective Sublicensees and Authorized
Participants and such Party’s personnel, agents, representatives and consultants.
(b) Confidentiality. Except as provided below, all 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, 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. 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(b) shall survive expiration or termination of this Agreement for a period of three (3)
years. 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;
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(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
(v) the disclosing Party agrees in writing 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(b). Each Party represents and warrants that it has the right to disclose all Confidential
Information which it has disclosed to the other Party pursuant to this Agreement, and each Party
agrees to indemnify and hold harmless the other from all claims by a third party related to the
wrongful disclosure of such third party’s proprietary information. Otherwise, neither Party makes
any representation or warranty, express or implied, in respect of any Confidential Information.
11. S&P CONSENT AND SPDR LICENSE AGREEMENT AMENDMENT. S& P Hereby acknowledges and agrees
that:
(a) The license granted in Section 2 of the SPDR License Agreement permits the sublicense of
the SPDR Xxxx in connection with third party financial products marketed by State Street;
(b) This Agreement may be made publicly available in connection with WGT’s filings with
securities regulatory authorities;
(c) The licenses granted in the SPDR License and herein include the right to use the SPDR Xxxx
on the Internet through, and registration of, (i) country code top-level domains in jurisdictions
in which the use of the SPDR Xxxx is permitted and (ii) generic top-level domains (gTLDs); and
(d) S&P expressly consents to the grant of the License as set forth herein, subject to the
terms and conditions of this Agreement.
12. MISCELLANEOUS PROVISIONS.
(a) Assignment. WGT may not assign or otherwise transfer (whether by operation of law
or otherwise) any right or obligation under this Agreement without the prior written consent of
State Street; provided, however, that WGT may grant sublicenses as provided
12
herein. Such consent shall be deemed given with respect to an assignment or transfer (whether
by operation of law or otherwise) of the entire Agreement, including all rights and obligations
hereunder, to a successor in interest or assignee of substantially all of the assets of WGT,
provided that WGT has given prompt written notice thereof to State Street. 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 12(a) will be void.
(b) 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 will be determined by the law of the country in
which the patent was granted). It is the intent of the Parties that the substantive law of the
State of New York govern this Agreement and not the law of any other jurisdiction incorporated
through choice of law or conflicts of law principles. 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 the Agreement.
(c) 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.
(d) 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.
(e) Unenforceable Provisions. 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.
(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
13
notice is being given (or using updated contact information which that Party has specified by
written notice in accordance with this Section); 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).
Contact Information for State Street:
State Street Corporation
One Lincoln Street, SFC 21
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
One Lincoln Street, SFC 21
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
State Street Global Markets, LLC
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Compliance Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Compliance Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
State Street Global Advisors
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Contact Information for WGT:
World Gold Council
00 Xxx Xxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Attn: Xxxxx Xxxxxx
Telephone: 000 00 000000 0000
Facsimile: 011 44 207826 4799
00 Xxx Xxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Attn: Xxxxx Xxxxxx
Telephone: 000 00 000000 0000
Facsimile: 011 44 207826 4799
World Gold Trust Services, LLC:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(h) Amendments. This Agreement may not be amended unless the amendment is in writing
and signed by authorized representatives of both Parties.
14
(i) 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.
(j) 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]
SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized representatives.
| STATE STREET CORPORATION | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Name: Xxxxx Xxxxx | ||||||
| Title: EVP | ||||||
| STATE STREET GLOBAL MARKETS, LLC | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| WORLD GOLD COUNCIL | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Chief Executive Officer | ||||||
| WORLD GOLD TRUST SERVICES, LLC | ||||||
| By: | /s/ Xxxxx Xxxx | |||||
| Name: Xxxxx Xxxx | ||||||
| Title: Chief Financial Officer | ||||||
| STANDARD &
POOR’S, a division of THE XXXXXX-XXXX COMPANIES, INC. with respect to Sections 11 and 12(b),(c),(d),(e),(f),(h)and (j) |
||||||
| By: | /s/ Xxxxxxxxx X. Xxxxxxxx, Xx. | |||||
| Name: Xxxxxxxxx X. Xxxxxxxx, Xx. | ||||||
| Title: Executive Managing Director | ||||||
SPDR SUBLICENSE AGREEMENT SIGNATURE PAGE
EXHIBIT A
United States
E.U.
Singapore
Japan
Hong Kong
Mexico
