Exhibit k.5
Agreement for Nasdaq-100 Index(R) Related Derivative Products
This agreement ("Agreement"), is made by and between The Nasdaq Stock
Market, Inc. ("Nasdaq"), a Delaware Corporation (Nasdaq and its affiliates are
collectively referred to as the "Corporations") whose principal offices are
located at Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, XX 00000 and Nuveen Equity
Premium Opportunity Fund ("Licensee") whose principal offices are located at 000
Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000. Nasdaq and Licensee are collectively
referred to as the "Parties" and individually as a "Party".
WHEREAS, Nasdaq possesses certain rights to Nasdaq(R), Nasdaq-100(R),
and Nasdaq-100 Index(R) as trade names, trademarks or service marks ("Marks");
WHEREAS, Nasdaq determines the components of the Nasdaq-100 Index(R) and
the proprietary data contained therein ("Index") and such efforts involve the
considerable expenditure of time, effort, judgment and money; and
WHEREAS, Nasdaq calculates, maintains, and disseminates the Index; and
WHEREAS, Licensee desires to use and Nasdaq desires to license the right
to use the Index as a benchmark, component of a pricing or settlement mechanism
for the fund, financial instrument, derivative or other products noted in
Attachment II ("Derivative Products") to be issued, listed and/or traded by
Licensee or its authorized affiliates and use the Marks solely in materials
relating or referring to the Derivative Products; and
WHEREAS, Licensee is legally authorized to issue shares of the fund, or
issue, enter into, write, sell, redeem, purchase and/or renew ("Issue",
"Issuing", or "Issuance") such Derivative Products, and each Derivative Product
will be Issued as legally required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained, Licensee and Nasdaq, intending to be legally
bound, agree as follows:
Section 1. Term and Life of Agreement.
1.1 The term ("Term") of this Agreement for a particular Derivative
Product is that stated for that Derivative Product in Attachment II. In the
absence of a statement there, the Term for that Derivative Product is the period
from the Effective Date stated in Attachment II (if none is stated, the date the
Agreement is signed by Nasdaq) until the end of one year therefrom; thereafter,
the Term of this Agreement shall renew for subsequent one year terms, unless
either Party gives Notice to the other at least ninety (90) days before the end
of the present Term, or otherwise terminates the Term of this Agreement as
provided herein.
1.2 The life ("Life") of this Agreement for a particular Derivative
Product is that stated for that Derivative Product in Attachment II. In the
absence of a statement there, the Life
for that Derivative Product is until one year after the date of the expiration
or cancellation of the last of that Derivative Product Issued under this
Agreement.
Section 2. Scope of License. Nasdaq hereby grants Licensee a non-exclusive,
non-transferable and non-sub-licensable (except as provided herein) license to
use the Index as a component of a pricing or settlement mechanism for Derivative
Products that are Issued by Licensee during the Term of this Agreement. Nasdaq
further grants Licensee the right to use the Marks solely in materials referring
or relating to the Derivative Products during the Life of this Agreement. No
license is granted to use the Index or Marks for any other use, including as
part of a news service or for collateral products, without the Consent of
Nasdaq.
Section 3. Fees. Licensee shall pay Nasdaq the fees specified in Attachment
II ("Fees"), in immediately available United States funds. Where there are
Annual Fees, such are due as of the effective date of this Agreement, or by the
beginning date of any subsequent Term. Fees established as due by a particular
date, are due by that date. All other Fees are due within thirty (30) days of
the date established for the production of the report or date of the invoice
upon which the Fee is based. Any amount not paid within thirty (30) days after
its due date is subject to interest at the rate of one and one-half percent
(1 1/2%) per month (or the highest rate permitted by law, whichever is lower)
until paid, plus costs of collection, including reasonable in-house and outside
attorneys' fees. Licensee shall also assume full and complete responsibility for
the payment of any taxes, charges or assessments imposed on Licensee, any
sub-licensee, or the Corporations by any foreign or domestic national, state,
provincial, local or other government bodies, or subdivisions thereof, and any
penalties or interest, (other than personal property or income taxes imposed on
Nasdaq) relating to this Agreement. In addition, if Licensee is required by
applicable law to deduct or withhold any such tax, charge or assessment from the
amounts due Nasdaq, then such amounts due shall be increased so that the net
amount actually received by Nasdaq after the deduction or withholding of any
such tax, charge or assessment, will equal one hundred percent (100%) of the
charges specified.
Section 4. Audit Rights. During the Life of this Agreement, Nasdaq shall
have the right, with reasonable Notice to Licensee, during normal business
hours, to audit on a Confidential basis, any relevant books and records of
Licensee or its sub-licensees to ensure that the type and amount of Fees
calculated or stated to be payable to Nasdaq are complete and accurate. Licensee
shall bear the costs of such audit (including reasonable in-house and outside
accountant and attorneys' fees, if incurred) if Nasdaq determines that Licensee
(together with its sub-licensees) has not paid, calculated, and/or reported Fees
of more than five percent (5%) of that due Nasdaq under this Agreement.
Section 5. Review of Materials.
5.1 Licensee shall submit to Nasdaq for review a copy of any
material submitted to any regulatory body or governmental agency, which is
required in order to obtain approval for the Issuance or resale of any
Derivative Product. To the extent practicable, such materials or a copy of the
then best draft shall be given to Nasdaq at least three (3) business days before
their submittal to the body or agency (but in any event, a copy of the final
document shall be sent by Notice to Nasdaq no later than three (3) business days
after submittal to the agency or body).
5.2 Licensee shall give Nasdaq a copy, within three (3) business
days of receipt, of any notice, correspondence, process, or other material
received from any regulatory body, governmental agency, or any court, during or
after the approval process which indicates that any Derivative Product is or
might be in violation of, or otherwise not subject to approval because of, any
law, or any rule, regulation, or order of any applicable body or agency.
5.3 For Derivative Product offerings which may be sold to the
public, Licensee shall provide Nasdaq with a copy of any informational or
promotional materials referring or relating to such offering, including, any
prospectus, offering memorandum, registration statement, circular,
advertisement, or brochure at least three (3) business days prior to its initial
dissemination to third parties. Licensee need not resupply a copy of any
material that is substantially like material previously submitted to Nasdaq and
is identical as it describes the Corporations or their operations, the markets
operated by the Corporations, the Index or the Marks, or the authorization,
review, or endorsement of the Corporations of the Derivative Product. For all
other Derivative Products, Licensee shall provide a description of such product
to Nasdaq within 3 business days of the initial Issue of such product, and upon
reasonable request, provide Nasdaq, on a Confidential basis, a copy of any
materials or agreements related to such product.
5.4 If Nasdaq reasonably objects by Notice or fax transmission to
Licensee within three (3) business days of receipt to any material as it
describes the Corporations or their operations, the markets operated by the
Corporations, the Index or the Marks, or the authorization, review, or
endorsement of the Corporations of the Derivative Product, Licensee shall alter
or withdraw such material to Nasdaq's satisfaction within thirty (30) days of
receipt of Nasdaq's objection. If Licensee refuses to so alter or withdraw,
Nasdaq may terminate the Term of this License with regard to that Derivative
Product, upon thirty (30) days Notice to Licensee, with an opportunity to cure
within that period.
Section 6. Protection of Marks. Nasdaq will use reasonable efforts to
maintain and protect the value of its Index and Marks. However, nothing shall
obligate Nasdaq to undertake an action or settlement, or refrain from an action
or settlement with respect to any particular potential, threatened, or actual
infringement of its Index or Marks. Licensee shall cooperate with Nasdaq in
maintenance, registrations, and policing of Nasdaq's rights in the Index and the
Marks. Such cooperation is not a waiver of nor shall it require violation of its
attorney/client, work product, or other privilege.
Section 7. Calculation of Index.
7.1 Licensee agrees that the Index is a product of the selection,
coordination, arrangement, and editing of Nasdaq and that such efforts involve
the considerable expenditure by Nasdaq of time, effort, and judgment. As between
the Parties, Licensee recognizes that Nasdaq is the rightful licensor of the
Index and the Marks. No license is granted to Licensee to calculate the Index.
While Nasdaq will use reasonable efforts based on sources deemed reliable in
calculating the Index, NASDAQ DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF
THE INDEX OR OF THE DATA USED TO CALCULATE THE INDEX OR DETERMINE THE INDEX
COMPONENTS, OR THE UNINTERRUPTED OR UN-DELAYED CALCULATION OR DISSEMINATION OF
THE INDEX. NASDAQ DOES NOT GUARANTEE THAT THE INDEX ACCURATELY REFLECTS PAST,
PRESENT, OR FUTURE MARKET PERFORMANCE. NASDAQ IS NOT RESPONSIBLE FOR ANY
MANIPULATION OR ATTEMPTED MANIPULATION OF THE INDEX BY MEMBERS OF THE NASD.
Nasdaq is free to pick and alter the components and method of calculation of the
Index without Consent of Licensee.
7.2 Nasdaq shall give Licensee at least ninety (90) days Notice of
the cessation of public calculation or dissemination of the Index. However,
Nasdaq shall either continue to provide Licensee with a calculation of the Index
for the Life of this Agreement, or, on a Confidential basis, provide Licensee
with the then applicable method of calculation of the Index. Licensee may
terminate the Term of this Agreement on the date Noticed by Nasdaq for the
cessation or dissemination of the Index, and Nasdaq shall refund Licensee a
portion of the pre-paid Fees for that Term calculated according to Section 11.
Section 8. Marking of Licensee's Use.
8.1 In any prospectus (including the statement of additional
information), offering memorandum, contract, or in some other conspicuous
written manner, for each Derivative Product to each third party involved in such
Issuance, Licensee shall insure that substantially the following language
appears (in conspicuous type, such as at least eleven (11) point type and the
second paragraph in bold) so as to be enforceable under applicable local law(s):
The Fund is not sponsored, endorsed, sold or promoted by The Nasdaq
Stock Market, Inc. or its affiliates) (Nasdaq, with its affiliates, are
referred to as the "Corporations"). The Corporations have not passed on
the legality or suitability of, or the accuracy or adequacy of
descriptions and disclosures relating to, the Fund. The Corporations
make no representation or warranty, express or implied to the owners of
the Fund or any member of the public regarding the advisability of
investing in securities generally or in the Fund particularly, or the
ability of the Nasdaq-100 Index(R) to track general stock market
performance. The Corporations' only relationship to the Fund is in the
licensing of the Nasdaq(R), Nasdaq-100(R), and Nasdaq-100 Index(R)
trademarks, and certain trade names of the Corporations and the use of
the Nasdaq-100 Index(R) which is determined, composed and calculated by
Nasdaq without regard to the Fund. Nasdaq has no obligation to take the
needs of the Fund or the owners of the Fund into consideration in
determining, composing or calculating the Nasdaq-100 Index(R). The
Corporations are not responsible for and have not participated in the
determination of the timing of, prices at, or quantities of the Fund to
be issued or in the determination or calculation of the equation by
which the Fund is to be converted into cash. The Corporations have no
liability in connection with the administration, marketing or trading of
the Fund
THE CORPORATIONS DO NOT GUARANTEE THE ACCURACY AND/OR UNINTERRUPTED
CALCULATION OF THE NASDAQ-100 INDEX(R) OR ANY DATA INCLUDED THEREIN. THE
CORPORATIONS MAKE 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 NASDAQ-100 INDEX(R) OR ANY DATA INCLUDED
THEREIN. THE CORPORATIONS MAKE NO EXPRESS OR IMPLIED WARRANTIES, AND
EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE WITH RESPECT TO THE NASDAQ-100 INDEX(R) OR ANY
DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO
EVENT SHALL THE CORPORATIONS HAVE ANY LIABILITY FOR ANY LOST PROFITS OR
SPECIAL, INCIDENTAL,
PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES.
8.2 In all other materials relating or referring to a Derivative
Product, Licensee shall include at least this much of the above language, or
similar formulation:
Nasdaq(R), Nasdaq-100(R), and Nasdaq-100 Index(R), are trademarks of The
Nasdaq Stock Market, Inc. ("Nasdaq") and are licensed for use by the
Fund. The Fund has not been passed on by Nasdaq or its affiliates as to
its legality or suitability. The Fund is not issued, endorsed, sold, or
promoted by Nasdaq or its affiliates. Nasdaq and its affiliates make no
warranties and bear no liability with respect to the product(s).
Section 9. Sub-Licensees. Licensee may sub-license the use of the Index by
the subsidiaries or affiliates listed in Attachment I. Licensee may, by Notice
to Nasdaq, request permission to sub-license other subsidiaries or affiliates
under Licensee's control. Nasdaq will not unreasonably refuse its Consent (as
that term is further defined in Section 26 herein) to such a request. Licensee
must also request Nasdaq's prior Consent to sub-license an entity that is a
necessary participant in a Derivative Product (e.g., a corporation Issuing a
corporate bond with the Licensee as underwriter and utilizing the Index as a
pricing component). Nasdaq, in its sole discretion, may Consent to such
sub-license. The present list of sub-licensable entities is listed in Attachment
I. However, Licensee shall assume all responsibility for and will hold harmless
and indemnify the Corporations against any action or inaction by a sub-licensee
as if such action or inaction were that of the Licensee. In order to sub-license
any entity, Licensee must have obtained an agreement with the sub-licensee,
which is enforceable under applicable local law and contains the provisions set
forth in Attachment III, modified solely to make them enforceable under
applicable local law(s). Licensee may not waive any provision of the sub-license
or of this Agreement without Consent of Nasdaq.
Section 10. Limited Warranty. Nasdaq warrants that it will calculate the
Index in accordance with its then applicable method for calculation of the
Index. LICENSEE'S SOLE REMEDY IN EVENT OF A FAILURE OF THIS WARRANTY IS TO HAVE
NASDAQ RECALCULATE THE INDEX FOR THE AFFECTED TIMES ACCORDING TO NASDAQ'S
APPLICABLE METHOD FOR CALCULATION OF THE INDEX AT THE AFFECTED TIME(S). IN THE
EVENT THAT NASDAQ IS UNABLE OR UNWILLING TO RECALCULATE THE INDEX FOR AN
AFFECTED PERIOD OF OVER SEVEN CONSECUTIVE BUSINESS DAYS, NASDAQ WILL REFUND TO
THE LICENSEE THE PORTION OF FEES CALCULATED IN SECTION 11. THE CORPORATIONS DO
NOT REPRESENT OR WARRANT THAT THE INDEX OR THE MEANS BY WHICH NASDAQ CALCULATES
THE INDEX IS FREE OF DEFECTS. THE CORPORATIONS DO NOT REPRESENT OR WARRANT THE
TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE CALCULATION OF THE INDEX,
OR THAT THE INDEX WILL MEET LICENSEE'S REQUIREMENTS. THE FOREGOING WARRANTIES
ARE IN LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED CONDITIONS OR WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, ANY IMPLIED WARRANTY
ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND OF
ANY OTHER WARRANTY OR OBLIGATION ON THE PART OF THE CORPORATIONS.
Section 11. Refunds. Where this Section is cross-referenced, the portion of
Fees refunded will be calculated as follows. If an applicable Fee was paid for
the right to Issue a Derivative
Product during a period of time, then the amount of the Fee to be refunded shall
be the amount of the Fee times the number of days remaining in the period for
which the affected Derivative Product(s) were not permitted under this Agreement
to be Issued, divided by the total number of days in the period. If a Fee was
paid which related to Issuance of an entire Derivative Product, then the amount
of the Fee to be refunded shall be the amount of the Fee actually paid which
related to that portion of that Derivative Product that was affected.
Section 12. Indemnification.
12.1 Nasdaq has registered the Marks in the United States and certain
other countries. In the United States Nasdaq warrants and represents that it has
the right to grant the rights to use the Index and Marks specified in this
Agreement and that the license shall not infringe the title or any patent,
copyright, trade secret, trademark, service xxxx, or other proprietary
("Intellectual Property") right of any third party. Nasdaq will as its sole and
entire liability and obligation to Licensee (and any third party or
sub-licensee): defend, indemnify, and hold harmless ("Indemnify") Licensee
(including its and its sub-licensee's officers, directors, employees, and
agents) against any and all claims, demands, actions, suits, or proceedings
("Disputes") asserting that the Index or any Xxxx infringes any Intellectual
Property right of any third party and Nasdaq will pay the third party the total
amount of any award, judgment, or settlement (including all damages however
designated) awarded to such third party resulting from the Dispute to the extent
caused by failure of Nasdaq's warranty.
12.2 Licensee agrees to Indemnify Corporations (including its and
their officers, directors, employees, and agents) from any and all Disputes as
the result of Licensee (including any sub-licensee) failure to fulfill its
obligations under this Agreement, any Licensee (including any sub-licensee) use
of the Index or any Xxxx that is not expressly permitted by this Agreement,
claims relating to or arising from a Derivative Product, or any other matter
relating or arising out of this Agreement except to the extent directly caused
by actions of the Corporations and will pay the third party the total amount of
any award, judgment, or settlement (including all damages however designated)
awarded such third party resulting from such Dispute except to the extent
directly caused by actions of the Corporations.
12.3 The right to be Indemnified shall apply to a dispute only if:
(a) the Party seeking indemnification promptly, and within no more
than five (5) calendar days of its receipt of notice of such
Dispute, gives Notice to the other Party of the Dispute;
(b) the Party seeking to be Indemnified cooperates fully with the
other in the defense thereof (such cooperation does not require
and is without waiver by either Party of attorney/client, work
product, or other privilege);
(c) the Indemnifying Party has sole control of the defense and all
related settlement negotiations.
12.4 In the event of a Dispute involving infringement or if in
Nasdaq's opinion such a Dispute is likely to occur, or if the use of the Index
or Xxxx is enjoined, Nasdaq may, at its sole
option and expense, procure for Licensee the right to continue using the Index
or Xxxx, replace or modify the Index or Xxxx to become non-infringing, or
terminate the Term of the Agreement (with a refund of Fees for that Term
calculated in Section 11).
Section 13. Limitation of Liability. EXCEPT FOR LIABILITY RESULTING FROM THE
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE CORPORATIONS AND EXCEPT TO THE
EXTENT STATED IN SECTIONS 12, OR 16, THE TOTAL AMOUNT OF THE CORPORATIONS'
LIABILITY FOR CLAIMS OR LOSSES BASED UPON, ARISING OUT OF, RESULTING FROM OR IN
ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, WHETHER
BASED UPON CONTRACT, TORT, WARRANTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE
GREATER OF ONE YEAR'S FEES UNDER THIS AGREEMENT OR $20,000. THE ESSENTIAL
PURPOSE OF THIS PROVISION IS TO LIMIT THE CORPORATIONS' LIABILITY UNDER THIS
AGREEMENT. BOTH PARTIES UNDERSTAND AND AGREE THAT THE TERMS OF THIS AGREEMENT
REFLECT A NEGOTIATED AND REASONABLE ALLOCATION OF RISK AND LIMITATIONS GIVEN
COMMERCIAL REALITIES OF THE TRANSACTION.
Section 14. Consequential Damages. EXCEPT AS NOTED IN SECTION 12 AND EXCEPT
FOR A BREACH OF SECTION 16, THE CORPORATIONS SHALL NOT BE LIABLE TO THE
LICENSEE, ANY SUB-LICENSEE, OR ANY OTHER PERSON FOR ANY LOST PROFITS,
ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR INCREASED
EXPENSES OF OPERATION, LOSS OF GOODWILL, FOR LOSS CAUSED IN SALE OF, PURCHASE
OF, OR BY THE DERIVATIVE PRODUCT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE,
OR SPECIAL DAMAGES, EVEN IF THE CORPORATIONS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Section 15. Force Majeure. Notwithstanding any other term or condition of
this Agreement, neither Nasdaq nor Licensee shall be obligated to perform or
observe its obligations undertaken in this Agreement if prevented or hindered
from doing so by any circumstances beyond its control, including, without
limitation, acts of God, perils of the sea and air, fire, flood, drought, war,
explosion, sabotage, terrorism, embargo, civil commotion, acts of any
governmental body, supplier delays, communications, or power failure, equipment
or software malfunction, and labor disputes.
Section 16. Confidentiality. Each Party shall protect information declared
by the other Party to be CONFIDENTIAL, or PROPRIETARY. In fulfilling its
confidentiality obligations, each Party shall use a reasonable standard of care,
at least the same standard of care that it uses to protect its own similar
confidential or proprietary information. All confidential or proprietary
information must be conspicuously marked PROPRIETARY or CONFIDENTIAL.
Information revealed orally becomes subject to protection when related to marked
written materials or when designated as PROPRIETARY or CONFIDENTIAL as long as
the designation is confirmed in writing within ten (10) calendar days of the
designation. Either Party (including the Corporations) may disclose information
to the extent demanded by a court, revealed to a government agency with
regulatory jurisdiction over the Party (including the Corporations), or in the
Party's regulatory responsibilities over its members, associated persons,
issuers, or others under the Exchange Act of 1934, or similar applicable law.
The obligation of non-disclosure shall not extend to information which: (a) is
then already in the possession of the Party (including the Corporations) while
not under a duty of non-disclosure; (2) is generally known or revealed to the
public or within the applicable industry; (3) is revealed to the Party
(including the Corporations) by a third party--unless the Party (including the
Corporations) knows that such third party is under a duty
of non-disclosure; or (4) that Party (including the Corporations) develops
independently of the disclosure. Each copy, including its storage media, shall
be marked with all notices that appear on the original. The obligation of
non-disclosure shall survive for a period of three (3) years from the date of
disclosure.
Section 17. Non-use Of Nasdaq Names and Marks. Except as provided hereunder,
Licensee shall not use the names The Nasdaq Stock Market, Inc., "The Nasdaq
Stock Market", or "Nasdaq" nor any other trade name, trademark, service xxxx,
copyright, or patent of the Corporations, registered or unregistered, in any
advertising or promotional media of Licensee without the prior review and
written consent of Nasdaq.
Section 18. Survival Of Provisions. The terms of this Agreement shall apply
to any rights that survive through the Life of this Agreement or the
cancellation, termination, or rescission of this Agreement, namely--all
warranties, indemnification and confidentiality obligations, and the Non-Use of
Nasdaq Names and Marks.
Section 19. Cancellation.
19.1 Either Party may elect, without prejudice to any other rights or
remedies, to terminate the Term this Agreement, upon thirty (30) days notice
with an opportunity to cure within the stated period, if the other Party has
failed to perform any material obligation under this Agreement.
19.2 Either Party may elect, without prejudice to any other rights or
remedies, to terminate the Term of this Agreement without notice, if a petition
in bankruptcy has been filed by or against the other Party or the other Party
has made an assignment for the benefit of creditors, or a receiver has been
appointed for the other Party or any substantial portion of the other Party's
property, or the other Party's or its officers or directors takes action
approving or makes an application for any of the above.
19.3 Licensee may terminate this Agreement upon ninety (90) days
prior written notice to Nasdaq if (a) 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 Derivative Products; (b) any material litigation or
regulatory proceeding regarding the Derivative Products is threatened or
commenced; (c) Licensee elects to terminate the public offering or other
distribution of the Derivative Products, as may be applicable; or (d) Licensee
in its sole discretion chooses to cease using the Index as a component of a
pricing or settlement mechanism for the Derivative Products and use of the
Nasdaq Names and Marks. In such event, the Fees to the date of such termination
shall be computed by prorating the amount of the applicable Fees specified in
Attachment II on the basis of the number of elapsed days in the current term.
Nasdaq shall refund any fees in excess of the Minimal Annual Fees paid by
Licensee for the current term.
19.4 Licensee represents and warrants that at each time there is any
Issuance of a Derivative Product, that it and each of its sub-licensees and
involved entities shall have all applicable authority to Issue such Derivative
Products and that each such Derivative Product is Issued strictly in accordance
with all applicable legal requirements. Nasdaq may elect, without prejudice to
any other rights or remedies, to terminate the Term of this Agreement with
reasonable notice with an opportunity to cure within such period, if Nasdaq
reasonably believes that any Derivative Product is illegal or has been illegally
Issued, or if the Licensee or any sub-
licensee or any involved entity does not have the power to Issue any of the
Derivative Products which it has or is attempting to Issue.
19.5 Either Party may elect, without prejudice to any other rights or
remedies, to terminate the Term of this Agreement with thirty (30) days Notice
(or in the event of an emergency, with such Notice as is practicable), if either
Party's ability to perform its obligations under this Agreement is substantially
impaired by any new statute, or new rule, regulation, order, opinion, judgment,
or injunction of the Securities and Exchange Commission, a court, an arbitration
panel, or governmental body or Self-Regulatory Organization with jurisdiction
over the Party.
Section 20. Subsequent Parties; Limited Relationship. The Agreement shall
inure to the benefit of and shall be binding upon the Parties hereto and their
respective permitted successors, or assigns. Licensee shall not assign this
Agreement (including by operation of law) without the written consent of Nasdaq.
Nothing in the Agreement, express or implied, is intended to or shall (a) confer
on any person other than the Parties hereto (and any of the Corporations), or
their respective permitted successors or assigns, any rights to remedies under
or by reason of this Agreement; (b) constitute the Parties hereto partners or
participants in a joint venture; or (c) appoint one Party the agent of the
other.
Section 21. Entire Agreement. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter hereof, and
supersedes all prior negotiations, communications, writings, and understandings.
Section 22. Governing Law and Misc. This Agreement shall be deemed to have
been made in the United States, in the State of New York and shall be construed
and enforced in accordance with, and the laws of the State of New York hereof
shall govern the validity and performance, without reference to principles of
conflicts of laws thereof. Licensee hereby consents to submit to the
jurisdiction of the courts for or in the City and State of New York in
connection with any action or proceeding instituted relating to this Agreement.
The Declaration of Trust of Nuveen Equity Premium Opportunity Fund is on file
with the Secretary of the Commonwealth of Massachusetts. The obligations imposed
upon the Fund by this Agreement are not binding upon any of the Fund's Trustees,
officers or shareholders individually but are binding only upon the assets and
property of Nuveen Equity Premium Opportunity Fund.
Section 23. Authorization. This Agreement shall not be binding upon a Party
unless executed by an authorized officer of that Party. Licensee, Nasdaq, and
the persons executing this Agreement represent that such persons are duly
authorized by all necessary and appropriate corporate or other action to execute
the Agreement on behalf of Nasdaq or Licensee.
Section 24. Headings. Section Headings are included for convenience only and
are not to be used to construe or interpret this Attachment.
Section 25. Notices. All notices, invoices, and other communications
required to be given in writing under this Agreement shall be directed to the
persons identified in subsections (a) and (b) below and shall be deemed to have
been duly given upon actual receipt by the Parties, or upon constructive receipt
if sent by certified mail, return receipt requested (as of the date of signature
or of first refusal of the return receipt), or by any other delivery method
which obtains a signed
delivery receipt, addressed to the person named below to the following addresses
or to such other address as any Party hereto shall hereafter specify by written
notice to the other Party or Parties hereto:
(a) if to Licensee:
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
Address: Nuveen Asset Management
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone #: (312) 000- 0000
(b) if to Nasdaq:
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Address: The Nasdaq Stock Market, Inc.
0000 Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone #: 000.000.0000
With, in the event of notices of Dispute or default, a required
copy to:
The Nasdaq Stock Market, Inc.
Office of the General Counsel
0000 Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Nasdaq Contracts Group
Section 26. Amendment, Waiver, and Severability. Except as otherwise
provided herein, no provision of this Agreement may be amended, modified, or
waived, unless by an instrument in writing executed by a duly authorized officer
of the Party against whom enforcement of such amendment, modification, or waiver
is sought ("Consent").
26.1 No failure on the part of Nasdaq or Licensee to exercise, no
delay in exercising, and no course of dealing with respect to any right, power,
or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power, or privilege preclude
any other or further exercise thereof or the exercise of any other right, power,
or privilege under this Agreement.
26.2 If any of the provisions of this Agreement, or application
thereof to any person or circumstance, shall to any extent be held invalid or
unenforceable, the remainder of this Agreement, or the application of such terms
or provisions to persons or circumstances other than those as to which they are
held invalid or unenforceable, shall not be affected thereby and each such term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
Section 27. Counterparts. The Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and such counterparts
together shall constitute but one and the same instrument.
Section 28. Schedule of Attachments. The following Attachments are referred
to in this Agreement and are incorporated as if set forth in full herein. In the
event of a conflict between the Attachments and this Agreement, the Attachments
shall govern:
Attachment I -- Sub-Licensees
Attachment II -- Definition of Derivative Product(s) and Fees
Attachment II. -- Sub-License Agreement
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized officers.
Nuveen Equity Premium Opportunity Fund ("Licensee")
By:
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
Date:
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Executed this ______ day of _____________________, 2005, for and on behalf of:
The Nasdaq Stock Market, Inc. ("Nasdaq")
By:
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
ATTACHMENT I
Permitted Sub-Licensees of Nuveen Equity Premium Opportunity Fund.
Nuveen Asset Management and its affiliates
ATTACHMENT II
Definition of Derivative Products and Prices
No Index-Licensed Product may be an instrument issued by the Options
Clearing Corporation (OCC) or another clearing agency registered under
Section 17 of the Securities Exchange Act of 1934 or any instrument
exclusively regulated by the Commodity Futures Trading Commission
("CFTC") or traded on an electronic trading facility maintained by the
CFTC, or an option on such instruments. An Index-Licensed Product may
only be listed or traded on a Non-American Market. A "Non-American
Market" means an exchange or market for any financial instrument
(including equities, options, futures, debt, etc.) not located in the
Americas and one not registered, and whose sponsor is not registered,
with any securities regulatory agency or body in the Americas. In any
country or geographic region in which The Nasdaq Stock Market may own,
operate, or be affiliated with an organized trading market venue on
which the Index-Licensed Product would be eligible to be listed, such
Nasdaq trading market venue must be granted the right of first refusal
to list the Index-Licensed Product before the Product may be licensed
for listing or trading on another exchange or market.
Nasdaq reserves as its own all worldwide proprietary interest in the
Nasdaq Marks, which may be used in connection with exchange traded
fund-type products based on the Nasdaq-100 Index(R). Therefore, no
license is granted for an exchange traded fund ("ETF"), whether or not
registered as an investment company in the form of an open-end mutual
fund, a unit investment trust, or otherwise worldwide. Furthermore, no
license is granted for any financial instruments whose investment
attributes, as determined by Nasdaq in its sole discretion, make it
similar to an exchange traded fund based on the Nasdaq-100 Index(R). In
assessing similarity to an ETF, factors to be considered include, among
others: 1) whether the market value of the instrument is likely to move
up or down in close correlation to the Nasdaq-100 Index(R) or to a
Nasdaq ETF based on the Index; 2) whether the instrument is available to
be purchased or sold by the average public investor and held in a
brokerage account in a manner similar to that of an ordinary share of
stock; and 3) whether the instrument is listed or traded on a
well-established marketplace which seeks to attract the order flow of
the average public investor. In considering the facts and circumstances
pertaining to any particular product in light of the above criteria or
other reasonable criteria, Nasdaq reserves the absolute right within its
sole discretion to refrain from granting a license with respect to the
Nasdaq Marks as it deems necessary to protect its proprietary interest.
For Nuveen Equity Premium Opportunity Fund only, Nasdaq has waived its right of
first refusal and Nasdaq acknowledges that Nuveen Equity Premium Opportunity
Fund will be listed and traded on the New York Stock Exchange, Inc.
Description of Derivative Product(s)
The Nuveen Equity Premium Opportunity Fund is a closed-end fund whose primary
investment objective is to provide a high level of current income and gains from
net index option premiums.
The Fund's secondary investment objective is to seek capital appreciation
consistent with the Fund's strategy and its primary objective. The initial
target weighting of the Fund's equity portfolio in seeking to replicate the
weighted average price movements of the market indexes will be 75% of the S&P
500(R) Index and 25% of the NASDAQ-100 Index(R). Over time, these percentage
weightings may vary as the result of relative changes in each index.
The Fund ..................... Nuveen Equity Premium Opportunity Fund (the
"Fund") is a newly organized, diversified, closed-end management investment
company.
The Offering ..................... The Fund is offering common shares of
beneficial interest at $20.00 per share through a group of underwriters (the
"Underwriters").
Investment Objectives. The Nuveen Equity Premium Opportunity Fund is a
closed-end fund whose primary investment objective is to provide a high level of
current income and gains from net index option premiums. The Fund's secondary
investment objective is to seek capital appreciation consistent with the Fund's
strategy and its primary objective. Under normal market circumstances, the Fund
will invest its managed assets in a diversified equity portfolio that is
designed to support the Fund's index option strategy. The Fund's equity
portfolio is designed to substantially replicate the weighted average price
movements of the S&P 500 Index and the NASDAQ-100 Index based upon the Fund's
equity portfolio holdings. The initial target weighting of the Fund's equity
portfolio in seeking to replicate the weighted average price movements of the
indexes will be 75% of the Standard & Poor's 500 Stock Index and 25% of the
NASDAQ-100 Index. Over time, these percentage weightings may vary as the result
of relative changes in each index. The Fund does not intend that its equity
portfolio will contain exactly the same stocks as the S&P 500 Index and the
NASDAQ-100 Index. It is expected that more than a majority of the holdings in
the Fund's equity portfolio will be securities included in either or both of the
S&P 500 Index and the NASDAQ-100 Index. However, at least initially the Fund
expects that its equity portfolio holdings will constitute less than a majority
of the stocks included in the S&P 500 Index and the NASDAQ-100 Index. The Fund
will pursue its investment objectives by selling index call options and buying
index put options, each on the S&P 500 Index and the NASDAQ-100 Index.
The Listing................ The Common Shares have been approved for listing on
the New York Stock Exchange, subject to notice of issuance. The trading or
"ticker" symbol of the Common Shares is "JSN."
Fees
The annual fees are the greater of $_______ or ____ basis points (____) of the
notional value/assets of the fund. The annual fees are payable quarterly. The
Minimum Annual Fees shall be payable on the Commencement Date and each one-year
anniversary thereof. Amounts in excess of the Minimum Annual Fees shall be paid
to Nasdaq 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. In addition, at year-end a
statement providing average daily net assets at each month end must be provided.
For purposes of calculating the amounts in excess of the Minimal Annual Fees,
only those fund assets invested in the stocks included in the NASDAQ-100 Index
shall be counted. For avoidance of doubt, if the Nuveen Equity Premium
Opportunity Fund is 100% invested in stocks included in the NASDAQ-100
Index, the annual licensee fee shall be the greater of $______ or ____ basis
points (____) of 100% of the average daily net assets of the fund. If the Nuveen
Equity Premium Opportunity Fund is 25% invested in stocks included in the
NASDAQ-100 Index and the balance of the fund is invested in other assets as set
forth in the prospectus, than the licensee fee shall be the greater of $______
or ____ basis points (____) of 25% of the average daily nets assets of the fund.
In the event of termination of the Agreement as permitted in Section 19 of the
Agreement, the Fees to the date of such termination shall be computed by
prorating the amount of the applicable Fees specified in this Attachment II on
the basis of the number of elapsed days in the current term. Any amounts in
excess of the Minimal Annual Fees paid by Licensee for the current term shall be
refunded by Nasdaq.
ATTACHMENT III
Sub-License Agreement
This agreement ("Agreement"), is made by and between Nuveen Equity Premium
Opportunity Fund ("Licensee"), whose principal offices are located at 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 and who is a Licensee of The Nasdaq Stock
Market, Inc. ("Nasdaq"), a Delaware Corporation whose principal offices are
located at Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, XX 00000 and Nuveen Asset
Management on behalf of itself and its affiliates ("Sub-Licensee"), whose
principal offices are located at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, Nasdaq possesses certain rights to Nasdaq(R), Nasdaq-100(R),
and Nasdaq-100 Index(R) as trade names, trademarks or service marks ("Marks");
WHEREAS, Nasdaq determines the components of the Nasdaq-100 Index(R) and
the proprietary data contained therein ("Index") and such efforts involve the
considerable expenditure of time, effort, judgment and money; and
WHEREAS, Nasdaq calculates, maintains, and disseminates the Index; and
WHEREAS, Nasdaq and Licensee have previously entered into a separate
agreement concerning use of the Index and Marks in relating to certain
Derivative Products ("License Agreement"); and
WHEREAS, Sub-Licensee is either: (1) an affiliate or subsidiary under
the control of Licensee which desires to use the Index as a component of a
pricing or settlement mechanism for the Derivative Products; or (2) a necessary
participant in a Derivative Product (e.g., a corporation Issuing a corporate
bond with the Licensee as underwriter and utilizing the Index as a pricing
component) Issued by Licensee or an authorized Sub-Licensee affiliate or
subsidiary under the control of Licensee; and
WHEREAS, Licensee is legally authorized to issue shares of the fund, or
issue, enter into, write, sell, purchase and/or renew ("Issue", "Issuing", or
"Issuance") such Derivative Products, and each Derivative Products will be
Issued as legally required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein, Licensee and Sub-Licensee, intending to be legally bound,
agree as follows:
Section 1. Scope of Sub-License. Sub-Licensee hereby acknowledges that it
has received, reviewed, and understands the License Agreement entered into
between Licensee and Nasdaq relating to use of the Index and Marks. Except for
Section 2 of the Agreement and as otherwise noted herein, Sub-Licensee hereby
agrees to obligate itself to all the terms, conditions, and obligations of that
License Agreement as if Sub-Licensee were the Licensee. Sub-Licensee agrees that
Nasdaq may exercise any rights against Sub-Licensee (including, for example,
limitation of liability, indemnification, or audit rights) Nasdaq has against
the Licensee to the same extent as if Sub-Licensee were directly contracting
with Nasdaq. Sub-Licensee agrees it
will not assert against Nasdaq any defense, claim, or right Sub-Licensee may
have against Licensee, including those of set-off, abatement, counter-claim,
contribution, or indemnification.
Section 2. No Further Sub-License. All references in the License Agreement
to sub-licenses and sub-licensees, including any right of sub-licensee to grant
further sub-licenses or to permit further sub-licensees are not applicable to
this Sub-Licensee Agreement and are as if deleted from the License Agreement.
Section 3. Term. The Term of this Sub-License Agreement automatically
terminates, without Notice, if the Term of the License Agreement terminates for
any reason.
Section 4. General Provisions. Sections from 21, through and including,
Section 27 of the License Agreement govern this Sub-License Agreement. All terms
and definitions used in this Sub-License Agreement, unless otherwise indicated,
have the same meanings and definitions as in the License Agreement. LICENSEE HAS
NO AUTHORITY TO WAIVE, RENEGOTIATE, OR FORGIVE ANY PROVISION OF THE LICENSE
AGREEMENT AS IT APPLIES TO SUB-LICENSEE.
IN WITNESS WHEREOF, the Parties hereto have caused this Sub-License Agreement to
be executed by their duly authorized officers.
Nuveen Equity Premium Opportunity Fund ("Licensee")
By:
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
Date:
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Nuveen Asset Management ("Sub-Licensee")
By:
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Managing Director
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AUTHORIZED OFFICER
Date:
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