EXHIBIT (h.4)
XXXXXX XXXXXXX CAPITAL INTERNATIONAL
AMENDED AND RESTATED INDEX LICENSE AGREEMENT
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AGREEMENT, dated as of March 1, 1996, as amended and restated as of
March 17, 1998, by and between XXXXXX XXXXXXX & CO. INCORPORATED ("Xxxxxx
Xxxxxxx"), a Delaware corporation, having an office at 1251 Avenue of the
Americas, Xxx Xxxx, Xxx Xxxx 00000, and WEBS INDEX FUND, INC. ("Licensee"), a
Maryland corporation, having an office at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
WHEREAS, Xxxxxx Xxxxxxx is an international investment banking and
brokerage firm which owns rights in and to certain stock indices and the
proprietary data contained therein (and which, through its Xxxxxx Xxxxxxx
Capital International ("MSCI") department, engages in a variety of business
activities in connection with such indices and data), among which are the
indices listed in Exhibit A, annexed hereto and made a part hereof (such indices
and data contained therein are hereinafter referred to as the "Indices");
WHEREAS, Xxxxxx Xxxxxxx calculates, maintains and publishes the
Indices;
WHEREAS, Xxxxxx Xxxxxxx uses in commerce and owns trade name, trademark
and service xxxx rights to the designations "Xxxxxx Xxxxxxx," "Xxxxxx Xxxxxxx
Capital International," and "MSCI" (such rights are hereinafter individually and
collectively referred to as the "Marks");
WHEREAS, Licensee wishes to use the Indices as the basis of the
products described in Exhibit B, annexed hereto and made a part hereof (the
"Products"), to be issued and publicly traded pursuant to an effective
registration statement filed with the Securities and Exchange Commission;
WHEREAS, Licensee wishes to use the Indices and the Marks in connection
with writing, trading, marketing and promotion of the Products and in connection
with making disclosure about the Products under applicable laws, rules and
regulations in order to indicate that Xxxxxx Xxxxxxx is the source of the
Indices; and
WHEREAS, Licensee wishes to obtain Xxxxxx Xxxxxxx'x authorization to
use the Indices and refer to the Indices and the Marks in connection with the
Products pursuant to the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of License and Agreement to Provide Information
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(a) Subject to the terms and conditions of this Agreement, Xxxxxx
Xxxxxxx grants to Licensee a non-transferable, non-exclusive, license (i) to use
the Indices as the basis of the Products (in accord with the restrictions set
forth in Exhibit B), and (ii) to use and refer to the Indices and the Marks in
connection with the writing, trading, marketing and promotion of the Products
(in accord with the restrictions set forth in Exhibit B) and in connection with
making such disclosure about the Products as Licensee deems necessary or
desirable under any applicable laws, rules or regulations in order to indicate
the source of the Indices. Licensee shall not disseminate electronically or in
any other fashion any quotations or other information relating to the Indices or
the Products.
(b) Xxxxxx Xxxxxxx agrees to provide and update information to Licensee
concerning the Indices on an ongoing basis, and to assist in the preparation and
updating of Licensee's prospectus and statement of additional information as and
to the extent reasonably requested by Licensee.
2. Term
----
This Agreement shall become effective as of the date hereof, will
continue for a one-year term and is renewable annually so long as such
continuance is specifically approved by a majority of the board of directors of
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the Licensee. It is the intention of the parties to renew this Agreement for
successive renewal terms on such terms and conditions as the parties may agree
upon.
3. Licensee Fees
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Upon execution of this Agreement, Licensee shall pay to Xxxxxx Xxxxxxx
a license fee at a rate of .03% per annum of the aggregate average daily net
assets of Licensee calculated and paid monthly in arrears with respect to an
unlimited number of Products issued by Licensee on each of the Indices listed in
Exhibit A.
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 the terminating 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. In the event of
termination under this paragraph 4(a), no refund of any portion of the license
fees will be made.
(b) In the case of breach of any of the material terms and 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 of such termination unless the
breaching party shall correct such breach within the notice period. In the event
of termination under this paragraph 4(b) by Xxxxxx Xxxxxxx, no refund of any of
the license fees will be made. In the event of termination under this paragraph
4(b) by Licensee, Licensee shall be entitled to a pro rata refund of the license
fees.
(c) Xxxxxx Xxxxxxx shall have the right, in its sole discretion, to
cease compilation and publication of any of the Indices and, in the event that
any of the Indices is discontinued, to terminate this Agreement if Xxxxxx
Xxxxxxx does not offer a replacement or substitute index. In the event that
Xxxxxx Xxxxxxx intends to discontinue any Index, Xxxxxx Xxxxxxx shall give
Licensee at least ninety (90) days written notice prior to such discontinuance,
which notice shall specify whether a replacement or substitute index will be
available. Licensee shall have the option hereunder within sixty (60) days after
receiving such written notice from Xxxxxx Xxxxxxx to notify Xxxxxx Xxxxxxx in
writing of its intent to use the replacement index under the terms of this
Agreement. In the event that any of the Indices is discontinued and Licensee
does not exercise such option or that at least one substitute or replacement
index is not made available, Licensee shall be entitled to a pro rata refund of
the license fee.
(d) Licensee may terminate this Agreement upon written notice to Xxxxxx
Xxxxxxx if (i) Licensee is informed of the final adoption of any legislation or
regulation that materially impairs Licensee's ability to write, market or
promote the Products; or (ii) any material litigation or regulatory proceeding
regarding the Products is threatened or commences. In the event of termination
under this paragraph 4(d), no refund of any portion of the license fees will be
made.
(e) Xxxxxx Xxxxxxx may terminate this Agreement upon written notice to
Licensee if (i) Xxxxxx Xxxxxxx is informed of the final adoption of any
legislation or regulation that materially impairs Xxxxxx Xxxxxxx'x ability to
license and provide the Indices under this Agreement; or (ii) any material
litigation or regulatory proceeding regarding the Products is threatened or
commenced. In the event that Xxxxxx Xxxxxxx terminates this Agreement, Licensee
shall be entitled to a pro rata refund of the license fee.
5. Rights Upon Termination
-----------------------
Upon termination of this Agreement, Licensee shall cease to use the
Indices and cease referring to the Indices and the Marks with the Products
except that the Products outstanding at such time may thereafter continue to be
outstanding and terminate, expire, and mature in accordance with their
respective terms, and the Indices and reference to the Marks may continue to be
used in connection with such Products.
6. Product Promotion
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(a) Licensee shall use its best efforts to protect the goodwill and
reputation of Xxxxxx Xxxxxxx in connection with its use of the Indices and the
Marks under this Agreement. Licensee shall submit to Xxxxxx Xxxxxxx for its
preview and approval all advertisements, brochures, and promotional and
information material ("Informational Materials") relating to or referring to
Xxxxxx Xxxxxxx, the Indices, the Marks or the Products. Xxxxxx Xxxxxxx'x
approval shall be confined solely to the use of or description of Xxxxxx
Xxxxxxx, the Marks, and the Indices and shall not be unreasonably withheld or
delayed by Xxxxxx Xxxxxxx.
(b) Xxxxxx Xxxxxxx is not obligated to engage in any marketing or
promotional activities in connection with the Products. Nevertheless, Xxxxxx
Xxxxxxx agrees to make itself available and to respond in an informative and
factual manner to shareholder inquiries about the Indices and their composition,
as such inquiries are directed to Xxxxxx Xxxxxxx by Licensee.
(c) Licensee acknowledges and agrees that Xxxxxx Xxxxxxx, in granting
the permission contained in this agreement, does not express or imply any
approval of the Products or of Licensee and Licensee further agrees not to make
any statement which expresses or implies that Xxxxxx Xxxxxxx approves, endorses
or consents to the promotion, marketing, and arrangement by Licensee of the
Products or that Xxxxxx Xxxxxxx makes any judgment or expresses any opinion in
respect of the Licensee.
7. Protection Of Value Of Licensee
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(a) Licensee shall cooperate reasonably with Xxxxxx Xxxxxxx in the
maintenance of all Xxxxxx Xxxxxxx common law and statutory rights in the Indices
and the Marks, including copyrights and other proprietary rights, and shall take
such acts and execute such instruments as are reasonably necessary and
appropriate to such purposes, including the use by the Licensee of the following
notice when referring to the Indices or the Marks in any advertisement, offering
circular, prospectus, brochure, or promotional or informational material
relating to the Products:
The MSCI Indices are the exclusive property of Xxxxxx Xxxxxxx. Xxxxxx
Xxxxxxx Capital International is a service xxxx of Xxxxxx Xxxxxxx and
has been licensed for use by Foreign Fund, Inc.
or such similar language as may be approved in advance by Xxxxxx Xxxxxxx.
(b) License shall not refer to the names of the Indices in any manner
which might cause confusion as to Xxxxxx Xxxxxxx'x responsibility for preparing
and disseminating the Indices or as to the identity of Licensee and its
relationship to the Products.
8. Proprietary Rights
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(a) Licensee acknowledges that the Indices are selected, arranged and
prepared by Xxxxxx Xxxxxxx through the application of methods and standards of
judgment used and developed through the expenditure of considerable work, time
and money by Xxxxxx Xxxxxxx. Licensee also acknowledges that the Indices and the
Marks are the exclusive property of Xxxxxx Xxxxxxx, and the Indices and their
compilation and composition and changes therein are in the control and
discretion of Xxxxxx Xxxxxxx.
(b) Xxxxxx Xxxxxxx reserves all rights with respect to the Indices and
the Marks except those expressly licensed to Licensee hereunder.
(c) Each party shall treat as confidential and shall not disclose or
transmit to any third party any confidential and proprietary information of the
other party, including the terms of this Agreement, provided that the
documentation or other written materials containing such information are
designated as "Confidential" or "Proprietary" by the providing party and such
information is not available generally to the public or otherwise available to
the receiving party from a source other than the providing party. Not
withstanding the foregoing, if requested or required (by interrogatories,
requests for information or documents, subpoena, or other process) either party
may reveal such information if such information to be disclosed is (i) approved
in writing by the other party for
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disclosure or (ii) required by law (in the opinion of counsel), regulatory
agency or court order to be disclosed by a party, provided prior written notice
of such required disclosure is given to the other party. Except with respect to
disclosure made pursuant to (i) and (ii) in the immediately preceding sentence,
each party shall treat as confidential the terms of this Agreement. The
provisions of this paragraph shall survive any termination of this Agreement for
five (5) years from disclosure by either party to the other party of the last
such confidential and proprietary information.
9. Warranties; Disclaimers
-----------------------
(a) Xxxxxx Xxxxxxx represents and warrants that Xxxxxx Xxxxxxx is the
owner of rights granted to Licensee herein and that use of the Indices as
provided herein shall not infringe any trademark, copyright, other proprietary
right, or contractual right of any person not a party to this Agreement.
(b) Licensee agrees expressly to be bound itself by and furthermore to
include all of the following disclaimers and limitations in Informational
Materials and upon request to furnish a copy (copies) thereof to Xxxxxx Xxxxxxx:
World Equity Benchmark Shares are not sponsored, endorsed,
sold or promoted by Xxxxxx Xxxxxxx. Xxxxxx Xxxxxxx makes no
representation or warranty, express or implied, to the owners of the
WEBS of any Index Series or any member of the public regarding the
advisability of investing in securities generally or in the WEBS of any
Index Series particularly or the ability of the respective MSCI Indices
identified herein to track general stock market performance. Xxxxxx
Xxxxxxx is the licensor of certain trademarks, service marks and trade
names of Xxxxxx Xxxxxxx, including the MSCI Indices identified herein,
which are determined, composed and calculated by Xxxxxx Xxxxxxx without
regard to the WEBS of any Index Series or the issuer thereof. Xxxxxx
Xxxxxxx has no obligation to take the needs of the issuer of the WEBS
of any Index Series or the owners of the WEBS of any Index Series into
consideration in determining, composing or calculating the respective
MSCI Indices. Xxxxxx Xxxxxxx is not responsible for and has not
participated in the determination of the timing of, prices at, or
quantities of the WEBS of any Index Series to be issued or in the
determination or calculation of the equation by which the WEBS of any
Index Series are redeemable. Xxxxxx Xxxxxxx has no obligation or
liability to owners of the WEBS of any Index Series in connection with
the administration, marketing or trading of the WEBS of any Index
Series.
ALTHOUGH XXXXXX XXXXXXX SHALL OBTAIN INFORMATION FOR INCLUSION
IN OR FOR USE IN THE CALCULATION OF THE INDICES FROM SOURCES WHICH
XXXXXX XXXXXXX CONSIDERS RELIABLE, XXXXXX XXXXXXX DOES NOT GUARANTEE
THE ACCURACY AND/OR THE COMPLETENESS OF THE INDICES OR ANY DATA
INCLUDED THEREIN. XXXXXX XXXXXXX MAKES NO WARRANTY, EXPRESS OR IMPLIED,
AS TO RESULTS TO BE OBTAINED BY LICENSEE, LICENSEE'S CUSTOMERS AND
COUNTERPARTIES, OWNERS OF THE PRODUCTS, OR ANY OTHER PERSON OR ENTITY
FROM THE USE OF THE INDICES OR ANY DATA INCLUDED THEREIN IN CONNECTION
WITH THE RIGHTS LICENSED HEREUNDER OR FOR ANY OTHER USE. XXXXXX XXXXXXX
MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS
ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE INDICES OR ANY DATA INCLUDED THEREIN. WITHOUT
LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL XXXXXX XXXXXXX HAVE
ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE,
CONSEQUENTIAL OR ANY OTHER DAMAGES (INCLUDING LOST PROFITS) EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Each party represents and warrants to the other that it has the
authority to enter into this Agreement according to its terms and that its
performance does not violate any laws, regulations or agreements applicable to
it.
(d) Licensee represents and warrants to Xxxxxx Xxxxxxx that the
Products shall not violate any applicable laws, including but not limited to
banking, commodities and securities laws.
(e) Neither party shall have any liability for lost profits or
consequential damages arising out of this
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Agreement.
(f) The provisions of this Section 9 shall survive any termination of
this Agreement.
10. Indemnification
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Licensee shall indemnify and hold harmless Xxxxxx Xxxxxxx, its parent,
subsidiaries, affiliates, and their officers, directors, employees and agents
against any and all judgments, damages, costs or losses of any kind (including
reasonable attorneys' and experts' fees) as a result of claims or actions
brought by third parties against Xxxxxx Xxxxxxx which arise from all acts,
representations or omissions of Licensee under this Agreement or are in any
manner related to the Products; provided, however, that (a) Xxxxxx Xxxxxxx
notifies Licensee promptly of any such claim or action, and (b) such judgments,
damages, costs or losses are not attributable to any negligent act or omission
by Xxxxxx Xxxxxxx, its parent, affiliates, subsidiaries or any of their
employees or agents. Licensee shall bear all expenses in connection with the
defense and/or settlement of any such claim or action. Xxxxxx Xxxxxxx shall have
the right, at its own expense, to participate in the defense of any claim or
action 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 or action, without the written consent of Licensee. Licensee, in
the defense of any such claim, except with the written consent of Xxxxxx
Xxxxxxx, shall not consent to entry of any judgment or enter into any settlement
which (a) does not include, as an unconditional term, the grant by the claimant
to Xxxxxx Xxxxxxx of a release of all liabilities in respect of such claims or
(b) otherwise adversely affects the rights of Xxxxxx Xxxxxxx. This provision
shall survive the termination of this Agreement.
11. Force Majeure
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Neither Xxxxxx Xxxxxxx nor Licensee shall bear responsibility or
liability for any losses arising out of any delay in or interruptions of their
respective performance of their obligations under this Agreement due to any act
of God, act of governmental authority, act of the public enemy or due to war,
riot, fire, flood, civil commotion, insurrection, labor difficulty (including,
without limitation, any strike or other work stoppage or slowdown), severe or
adverse weather conditions or other cause beyond the reasonable control of the
party so affected, provided that such party had exercised due diligence as the
circumstances reasonably required.
12. Other Matters
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(a) This Agreement is solely and exclusively between the parties as now
constituted and, unless otherwise provided, shall not be assigned or transferred
by either party, without prior written consent of the other party, and any
attempt to so assign or transfer this Agreement without such written consent
shall be null and void. Notwithstanding the foregoing, this Agreement may be
assigned without such consent to Xxxxxx Xxxxxxx'x parent or any subsidiary or
affiliate of Xxxxxx Xxxxxxx.
(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 of
proprietary nature of any property which is the subject of this Agreement.
(d) All notices and other communications under this Agreement shall be
(i) in writing, (ii) delivered by hand or by registered or certified mail,
return receipt requested, to the addresses set forth below or such addresses as
either party shall specify by a written notice to the other and (iii) deemed
given upon receipt.
Notice to Xxxxxx Xxxxxxx: Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
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and
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
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Notice to Licensee: WEBS Index Fund, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
----
(e) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first set forth above.
XXXXXX XXXXXXX & CO. WEBS INDEX FUND, INC.
INCORPORATED
By:______________________ BY:_______________________
Title:___________________ Title:____________________
Name:____________________ Name:_____________________
(Printed) (Printed)
Date:____________________ Date:______________________
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EXHIBIT A
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THIS EXHIBIT A, dated as of October 19, 1999, is Exhibit A to that
certain Amended and Restated Index License Agreement dated as of March 17, 1998
between Xxxxxx Xxxxxxx & Co. Incorporated and WEBS Index Fund, Inc.
This Exhibit A shall supersede all previous forms of Exhibit A.
WEBS Index Series
---------------------------------
Australia WEBS Index Series
Austria WEBS Index Series
Belgium WEBS Index Series
Brazil (Free) WEBS Index Series*
Canada WEBS Index Series
EMU WEBS Index Series*
France WEBS Index Series
Germany WEBS Index Series
Greece WEBS Index Series*
Hong Kong WEBS Index Series
Indonesia (Free) WEBS Series*
Italy WEBS Index Series
Japan WEBS Index Series
Korea WEBS Index Series*
Malaysia (Free) WEBS Index Series
Mexico (Free) WEBS Index Series
Netherlands WEBS Index Series
Portugal WEBS Index Series*
Singapore (Free) WEBS Index Series
South Africa WEBS Index Series*
Spain WEBS Index Series
Sweden WEBS Index Series
Switzerland WEBS Index Series
Taiwan WEBS Index Series*
Thailand (Free) WEBS Index Series*
Turkey WEBS Index Series*
United Kingdom WEBS Index Series
USA WEBS Index Series*
* New Series added October 19, 1999.
This Exhibit A was amended to add New WEBS Index Series and approved by the
Board of Directors of the WEBS Index Fund, Inc. on October 19, 1999.
EXHIBIT B
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Description of the Products
The Products are to be issued and traded on a public basis, in accordance with
the U.S. federal securities laws and applicable laws of other jurisdictions.
The Products shall be limited to: shares of common stock issued by various
series of Licensee, a registered open-end management investment company, which
shares shall be listed and traded on the American Stock Exchange, Inc.
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