FORM OF SUBLICENSE AGREEMENT
Exhibit (h)(4)
FORM OF SUBLICENSE AGREEMENT
This
Sublicense Agreement (the “Agreement”) is made as of
November 5, 2019 by and between ProcureAM, LLC a Delaware
corporation (“ProcureAM” or “Adviser”) and
Procure ETF Trust I, a Delaware statutory trust (the
“Trust”), on behalf of its series listed on Schedule I
hereto (each, a “Fund” and collectively, the
“Funds”).
RECITALS
WHEREAS, pursuant
to that certain “LGBTQ Diversity Index License
Agreement” dated as of November 5, 2019 (the “License
Agreement”) between Loyalty Preference Index, Inc., a
Delaware corporation (“Loyalty Preference”) and
Adviser, Adviser obtained a license to use, in connection with the
Funds, the securities indexes created, compiled, sponsored,
calculated, maintained and published by Loyalty Preference
identified in Schedule I hereto (each, an “Index” and
collectively, the “Indexes”); and
WHEREAS, Adviser
has the right under the License Agreement to sublicense its rights
to the Indexes thereunder to the Funds; and
WHEREAS, the Trust
wishes to use the Indexes in connection with the creation,
issuance, management, offering, sale, marketing, and promotion of
the Funds and disclosure about the Funds under applicable laws,
rules and regulations; and
WHEREAS, Adviser
wishes to grant a sublicense to the Trust, on behalf of the Funds,
of its rights under the License Agreement in accordance with the
terms and conditions set forth in this Agreement.
NOW
THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, and for good and valuable consideration set
forth in this Agreement, the parties agree as follows:
1.
Grant of Sublicense. Subject to
the terms and conditions of this Agreement, Adviser hereby grants
to the Trust a sublicense to use and refer to the Indexes (and
associated data and information) and any other right that may be
sublicensed under the License Agreement in the manner set forth in,
and subject to the terms of, the License Agreement, in connection
with the Funds.
2.
Performance of Obligations Under the
License. The Trust will be responsible for performing all of
Adviser’s executory obligations under the License Agreement
(other than the payment of License Fees), as such obligations
relate to use of the Indexes in connection with the
Funds.
3.
Fees. The Trust shall have no
obligation to pay any license or sublicense fees to Adviser or
Loyalty Preference.
4.
Term. This Agreement shall
become effective upon execution by both parties and remain in
effect unless terminated as provided herein.
5.
Termination. This Agreement
shall terminate if (a) the License Agreement terminates, or (b)
Adviser or an entity controlling, controlled by or under common
control with the Adviser ceases to exercise investment discretion
over the Fund(s). Adviser shall notify the Trust as soon as
reasonably practicable of the occurrence of an event described in
(a) above. Upon termination of this Agreement, the Trust’s
right to use the Indexes shall terminate.
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6.
Indemnification. The Trust
shall indemnify and hold harmless Adviser, its officers, employees,
agents, successors, and assigns against all judgments, damages,
costs or losses of any kind (including reasonable attorneys’
and experts’ fees) resulting from any claim, action or
proceeding (collectively “claims”) that arises out of
or relates to (a) the creation, marketing, advertising, selling,
and operation of such Fund or interests therein, or (b) any breach
by Adviser of its covenants, representations, and warranties under
the License Agreement caused by the actions or inactions of the
Trust, or (c) any violation of applicable laws (including, but not
limited to, banking, commodities, and securities laws) arising out
of the offer, sale, operation, or trading of the Fund(s) or
interests therein, except to the extent such claims result from the
gross negligence or willful misconduct of Adviser or its
affiliates. The provisions of this section shall survive
termination of this Agreement.
7.
Assignment. Either party may
assign its rights and obligations under this Agreement effective
upon the written consent of the other party.
8.
Amendment. Except that Schedule
I of this Agreement may be amended as necessary to add one or more
additional Indexes or Funds, as applicable, no provision of this
Agreement may be waived, altered, or amended except by written
agreement of the parties.
9.
Entire Agreement. This
Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof.
10.
Construction. Headings used in
this Agreement are for convenience only, and shall not affect the
construction or interpretation of any of its provisions. Each of
the provisions of this Agreement is severable, and the invalidity
or inapplicability of one or more provisions, in whole or in part,
shall not affect any other provision. To the extent not preempted
by federal law, this Agreement shall be construed and interpreted
under the laws of the State of New York.
11.
Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall
be deemed to be an original, but such counterparts together shall
constitute only one instrument. A signed copy of this Agreement
delivered by e-mail, or other means of electronic transmission
shall be deemed to have the same legal effect as delivery of an
original signed copy of this Agreement.
IN
WITNESS WHEREOF the parties have caused this Agreement to be
executed as of the date first above written, with intent to be
bound hereby.
[Signature
page to follow]
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PROCUREAM, LLC
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By:
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/s/
Xxxxxx Xxxx
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By:
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/s/
Xxxxxx Xxxx
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Its:
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President
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Its:
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President
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SCHEDULE I
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FUND(S)
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INDEX(ES)
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LGBTQ100
ESG ETF
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LGBTQ100
ESG Index
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I-1
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