Exhibit 2.2
LICENSE AGREEMENT
LICENSE AGREEMENT, dated as of August ___ , 2008 (the "Commencement
Date"), by and between S-NETWORK GLOBAL INDEXES, LLC, ("SNGI") a New York
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 at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, SNGI compiles, calculates, maintains and owns rights in and to
a number of index(es) of the prices of various securities of companies, listed
hereto in Exhibit A, and to the proprietary data therein contained (such rights
being hereinafter individually and collectively referred to as the "S-Net
Index(es)"); and
WHEREAS, SNGI uses in commerce and owns trade name and service xxxx
rights to the designations "S-Network Global Indexes, LLCSM", "S-Network Global
MacroTrends IndexSM", in connection with the S-Net Index(es) (such rights being
hereinafter individually and collectively referred to as the "SNGI Marks"); and
WHEREAS, Licensee and any Affiliate companies of Licensee (as provided
in Subsection 12(a) hereof) wish to use the S-Net 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 SNGI 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 SNGI is the source of the S-Net Index(es);
and
WHEREAS, Licensee wishes to obtain SNGI's authorization to use the
S-Net Index(es) and the SNGI 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.
----------------
(a) Subject to the terms and conditions of this Agreement,
SNGI hereby grants to Licensee a non-transferable, non-exclusive license in the
U.S. (i) to use the S-Net 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 SNGI 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 S-Net
Index(es). Each of the SNGI Marks shall be used in its entirety. It is expressly
agreed and understood by Licensee that no rights to use the S-Net Index(es) and
the SNGI Marks are granted hereunder other than those specifically described and
expressly granted herein.
(b) SNGI agrees that no person or entity (other than Licensee)
shall need to obtain a license from SNGI with respect to the Product(s). The
license herein granted shall not transfer to Licensee any legal or beneficial
property rights whatsoever to the SNGI 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 SNGI, which consent may be granted or withheld in
SNGI's sole and absolute discretion.
(d) If in the future Licensee wishes to use the S-Net
Index(es) and/or SNGI 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 SNGI 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.
----
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 SNGI 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.
------------
(a) Licensee shall pay to SNGI 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, SNGI 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 SNGI.
4. Termination.
-----------
(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 SNGI 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
SNGI of any of its legal rights and remedies.
(d) (i) SNGI shall have the right, in its sole discretion, to
cease compilation and publication of the S-Net Index(es) and, in such event, to
terminate this Agreement if SNGI does not offer a replacement or substitute
S-Net Index. In the event that SNGI intends to discontinue the S-Net Index(es),
SNGI 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 S-Net Index will be made available.
(ii) Licensee shall have the option hereunder within sixty
(60) days after receiving such written notice from SNGI to notify SNGI in
writing of its intent to use the replacement or substitute S-Net Index, if any,
under the terms of this Agreement. In the event that Licensee does not exercise
such option or no substitute or replacement S-Net Index is made available, this
Agreement shall be terminated as of the date specified in the SNGI 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 SNGI 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) SNGI 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) SNGI is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in SNGI's
reasonable judgment materially impairs SNGI's ability to license and provide the
S-Net Index(es) and SNGI Marks under this Agreement in connection with such
Product(s); or (ii) any litigation or proceeding is threatened or commenced and
SNGI reasonably believes that such litigation or proceeding would have a
material and adverse effect upon the SNGI Marks and/or the S-Net Index(es) or
upon the ability of SNGI 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 S-Net Index(es) and the SNGI 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. SNGI's Obligations.
------------------
(a) SNGI 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) SNGI agrees to provide reasonable support for Licensee's
development and educational efforts with respect to the Product(s) as follows:
(i) SNGI 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 SNGI with respect to the S-Net Index(es);
and (ii) SNGI shall respond in a timely fashion to any reasonable requests for
information by Licensee regarding the S-Net Index(es).
(c) SNGI or its agent shall calculate and disseminate the
S-Net Index(es) at least once each day via the SNGI website in accordance with
its current procedures, which procedures may be modified by SNGI.
(d) SNGI shall promptly correct or instruct its agent to
correct any mathematical errors made in SNGI's computations of the S-Net
Index(es) which are brought to SNGI'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 SNGI's method of composing,
calculating or determining the S-Net 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.
------------------------------
Licensee shall use its best efforts to protect the goodwill
and reputation of SNGI and of the SNGI Marks in connection with its use of such
Marks under this Agreement. Licensee shall submit to SNGI 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 SNGI, the S-Net Index(es), or the SNGI Marks (the "Informational
Materials"). Informational Materials shall be addressed to SNGI, c/o Xxxxxx X.
XxXxxxx, at the address specified in Subsection 12(d). SNGI's approval shall be
required with respect to the use of and description of SNGI, SNGI Marks and the
S-Net Index(es) and shall not be unreasonably withheld or delayed by SNGI.
Specifically, SNGI 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 SNGI's reasons therefor. Any failure by SNGI to respond
within such ten (10) day period shall be deemed to constitute a waiver by SNGI
of its right to review such Informational Materials by SNGI. Once Informational
Materials have been approved by SNGI, subsequent Informational Materials which
do not alter the use or description of SNGI, SNGI Marks or the S-Net Index(es)
need not be submitted for review and approval by SNGI.
7. Protection of Value of License.
------------------------------
(a) During the term of this Agreement, SNGI 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 SNGI
Marks so long as the subject S-Net Index(es) to which the SNGI Xxxx(s) refer are
compiled and published.
(b) SNGI shall at SNGI's own expense and sole discretion
exercise SNGI's common law and statutory rights against infringement of the SNGI
Marks, copyrights and other proprietary rights.
(c) SNGI 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 SNGI Marks, at SNGI'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 SNGI. Licensee shall cooperate with SNGI 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
SNGI. SNGI will reimburse Licensee 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 SNGI in the maintenance of
such rights and registrations and shall take such actions and execute such
instruments as SNGI may from time to time reasonably request, and shall use the
following notice when referring to the S-Net Index(es) or the SNGI Marks in any
Informational Material:
"S-Network Global Indexes, LLCSM", "S-Network Global
MacroTrends IndexSM" are service marks of S-Network 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 S-Network Global Indexes, LLC
and S-Network 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
SNGI.
8. Proprietary Rights.
------------------
(a) Licensee acknowledges that the S-Net Index(es) is selected,
coordinated, arranged and prepared by SNGI through the application of methods
and standards of judgment used and developed through the expenditure of
considerable work, time and money by SNGI. Licensee also acknowledges that the
S-Net Index(es) and the SNGI Marks are the exclusive property of SNGI, that SNGI
has and retains all proprietary rights therein (including, but not limited to,
trademarks, service marks, patents and copyrights), that the S-Net Index(es) and
its compilation and composition and changes therein are in the control and
discretion of SNGI and that SNGI retains the right at any time upon reasonable
written notice, to modify the methodology used to calculate the S-Net Index(es).
(b) SNGI reserves all rights with respect to the S-Net Index(es)
and the SNGI Marks except those expressly licensed to Licensee hereunder.
(c) Licensee recognizes the great value of the goodwill
associated with the SNGI Marks and acknowledges that the SNGI Marks and any
registrations therefore are valid and subsisting and all rights therein and the
goodwill pertaining thereto belong exclusively to SNGI.
(d) SNGI reserves all rights with respect to the S-Net Index(es)
and the SNGI 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) SNGI represents and warrants that SNGI has the right to
grant the rights granted to Licensee herein.
(b) SNGI further warrants and represents to Licensee that the
SNGI Marks and the S-Net Index(es) are the exclusive property of SNGI, that SNGI
has and retains all proprietary rights therein (including, but not limited to
trademarks, service marks, patents and copyrights), that the S-Net Index(es) and
its compilation and composition and changes therein are in the control and
discretion of SNGI, and that the S-Net Index(es) and SNGI 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 S-Network Global Indexes, LLC, ("SNGI"). SNGI 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
S-Net Index(es) to track the performance of the Macro trends targeted. SNGI's
only relationship to the Licensee is the licensing of certain service marks and
trade names of SNGI and of the S-Net Index(es) that is determined, composed and
calculated by SNGI without regard to the Licensee or the Product(s). SNGI 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 S-Net Index(es).
SNGI 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. SNGI has no obligation or liability in connection with the
administration, marketing or trading of the Product(s).
"SNGI DOES NOT GUARANTEE THE ACCURACY AND/OR THE
COMPLETENESS OF THE S-NET INDEX(ES) OR ANY DATA INCLUDED THEREIN AND SNGI SHALL
HAVE NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. SNGI
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
S-NET INDEX(ES) OR ANY DATA INCLUDED THEREIN. SNGI 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 S-NET INDEX(ES) OR ANY DATA
INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL SNGI
HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES."
The [Product] is not sponsored, endorsed, sold or promoted by Standard & Poor's,
a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") or its third party
licensors. Neither S&P nor its third party licensors make any representation or
warranty, express or implied, to the owners of the [Product] or any member of
the public regarding the advisability of investing in securities generally or in
the [Product] particularly or the ability of the [Index] to track general stock
market performance. S&P's and its third party licensor's only relationship to
S-Network Global Indexes, LLC is the licensing of certain trademarks, service
marks and trade names of S&P and/or its third party licensors and for the
providing of calculation and maintenance services related to the [Index].
Neither S&P nor its third party licensors is responsible for and has not
participated in the determination of the prices and amount of the [Product] or
the timing of the issuance or sale of the [Product] or in the determination or
calculation of the equation by which the [Product] is to be converted into cash.
S&P has no obligation or liability in connection with the administration,
marketing or trading of the [Product].
NEITHER S&P, ITS AFFILIATES NOR THEIR THIRD PARTY LICENSORS GUARANTEE THE
ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE [INDEX] OR ANY DATA
INCLUDED THEREIN OR ANY COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO, ORAL OR
WRITTEN COMMUNICATIONS (INCLUDING ELECTRONIC COMMUNICATIONS) WITH RESPECT
THERETO.
S&P, ITS AFFILIATES AND THEIR THIRD PARTY LICENSORS SHALL NOT BE SUBJECT TO ANY
DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS THEREIN. S&P MAKES NO
EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO ITS
TRADEMARKS, THE INDEX OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE
FOREGOING, IN NO EVENT WHATSOEVER SHALL S&P, ITS AFFILIATES OR THEIR THIRD PARTY
LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, TRADING
LOSSES, LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
Standard & Poor's(R) and S&P(R) are registered trademarks of The XxXxxx-Xxxx
Companies, Inc.; "Calculated by S&P Custom Indices" and its related stylized
xxxx are service marks of The XxXxxx-Xxxx Companies, Inc.
These marks have been licensed for use by S-Network Global Indexes, LLC."
Any changes in the foregoing disclaimers and limitations must be approved in
advance in writing by an authorized officer of SNGI. Licensee will also include
such notices as are set forth in Exhibit A regarding the use of any marks that
SNGI 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 SNGI 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 SNGI 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 SNGI to Licensee exceed the average
annual License Fees actually paid to SNGI hereunder.
(h) The provisions of this Section 9 shall survive any
termination of this Agreement.
10. Indemnification.
---------------
(a) Licensee shall indemnify and hold harmless SNGI, 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 SNGI of its representations or
warranties or covenants hereunder, or (b) the Product(s); provided, however,
that SNGI notifies Licensee promptly of any such claim, action or proceeding.
SNGI 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 SNGI, 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 SNGI of a release of all liabilities in respect of such
claims or (ii) otherwise adversely affects the rights of SNGI. This provision
shall survive the termination or expiration of this Agreement.
(b) SNGI 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 SNGI of its
representations or warranties or covenants under this Agreement; provided,
however, that (a) Licensee notifies SNGI promptly of any such claim, action or
proceeding; (b) Licensee grants SNGI control of its defense and/or settlement;
and (c) Licensee cooperates with SNGI 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 SNGI without waiving the indemnity hereunder. SNGI, 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 SNGI 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.
-------------
(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 S-Net Index(es) as a component of the Product(s) and use
and refer to the SNGI 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 SNGI: S-Network Global Indexes, LLC
-------------- 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
------------------ X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx
With copy to:
Xxx Xxxxxx Investments Inc.
000 Xxxxx Xxxxxx
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 SNGI setting forth the details of such Change in Control promptly upon
such Change in Control. SNGI 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 SNGI. 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) SNGI 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 SNGI or in
response to questions of the media or others, without Licensee's prior written
consent, except that SNGI may state that SNGI licenses the S-Net Index(es) and
SNGI 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. S-NETWORK GLOBAL INDEXES, LLC
BY: ___________________________ BY:___________________________
------------------------------- -------------------------------
(Print Name) (Print Name)
------------------------------- -------------------------------
(Print Title) (Print Title)
EXHIBIT A
LIST OF S-NET INDEX(ES)
S-Net Index(es) Ticker
--------------- ------
S-Network MacroTrends Index MACRO
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 S-Net
Index(es), are selected from the components of one or more of the S-Net
Index(es) and/or otherwise will make use of the S-Net Index(es) or the SNGI
Marks.
EXHIBIT C
LICENSE FEES
Licensee shall pay SNGI 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 S-Net Index(es) 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 $25,000 (the "Minimum
Annual Fee"), any shortfall shall be paid to SNGI 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 SNGI 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.
