EXHIBIT 99.(H).(13)
iSHARES SUBLICENSE AGREEMENT FOR THE INVESTOP INDEX
This Sublicense Agreement (the "Agreement") is made as of June 27,
2002 by and between Barclays Global Investors, N.A., a national banking
association organized under the laws of the United States ("BGI") and iShares
Trust, a business trust established under the laws of the State of Delaware
("iShares").
RECITALS
WHEREAS, pursuant to that certain LICENSE AGREEMENT dated June 27,
2002 (the "License Agreement") between Xxxxxxx, Xxxxx & Co., a New York limited
partnership ("Goldman"), and BGI, BGI obtained a license to use in connection
with "BGI Funds" (as that term is defined in the License Agreement) the GS $
InvesTop Index owned and managed by Goldman (the "Index"), along with associated
marks (the "Marks"); and
WHEREAS, BGI has the right pursuant the License Agreement to
sublicense its rights thereunder to any BGI Fund; and
WHEREAS, iShares Trust wishes to use the Index in connection with the
establishment of a series of exchange traded funds (each, an "ETF"), each based
on the Index in connection with the identification and marketing of the ETFs and
in connection with making disclosures about the ETFs under applicable laws,
rules and regulations; and
WHEREAS, BGI wishes to grant a sublicense to iShares Trust for the use
of the Index;
NOW THEREFORE, the parties agree as follows:
1. Grant of Sublicense. Subject to the terms and conditions of this
Agreement, BGI hereby grants to iShares Trust a sublicense to use the Index (and
associated data, information and Marks) listed on Exhibit A in the manner set
forth in, and subject to the terms of, the License Agreement.
2. Performance of Obligations Under the License. iShares Trust will be
responsible for performing all of BGI's executory obligations under the License
Agreement (other than the payment of license fees), as such obligations relate
to use of the Index in connection with the formation and operation of BGI Funds.
3. Fees. iShares Trust shall have no obligation to pay any sublicense
fees to BGI or Goldman under this sublicense agreement.
4. Termination. This Agreement shall terminate if (a) the License
Agreement terminates, or (b) BGI or a BGI Affiliate ceases to exercise
investment discretion over the iShares Trust or any ETF in its capacity as
manager, investment adviser, trustee, or other comparable capacity. BGI shall
notify iShares Trust as soon as reasonably practicable of the
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occurrence of an event described in (a) above. Upon termination of this
Agreement, iShares Trust's right to use the Index shall terminate immediately.
5. Indemnification. iShares Trust shall indemnify and hold harmless BGI,
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 the iShares Trust or interests therein,
or (b) any breach by BGI of its covenants, representations, and warranties under
the License Agreement caused by the actions or inactions of iShares Trust, or
(c) errors in the calculation of the Index, or delays in the dissemination of
the Index, or (d) 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 iShares Trust or interests therein, except to the
extent such claims result from the negligence, gross negligence or willful
misconduct of BGI or its affiliates. The provisions of this section shall
survive termination of this Agreement.
6. Assignment. iShares will not make, or purport to make, any assignment or
other transfer of this Agreement. BGI may assign its rights and obligations
under this Agreement effective upon the giving of written notice to iShares.
7. Amendment. No provision of this Agreement may be waived, altered, or
amended except by written agreement of the parties.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof.
9. 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 California.
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10. 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.
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.
BARCLAYS GLOBAL INVESTORS, N.A. iSHARES TRUST
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Managing Director Title: Secretary
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Principal
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Exhibit A to Sublicense Agreement dated July 1, 2002
GS $ InvesTop Index(TM)
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