EXHIBIT 2.2
MASTER INDEX LICENSE AGREEMENT
FOR UNIT INVESTMENT TRUSTS
This MASTER INDEX LICENSE AGREEMENT, dated as of June __, 2009 (the
"Effective Date"), is made by and between MSCI Inc. ("MSCI"), a Delaware
corporation, with an office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Xxx
Xxxxxx Funds Inc. ("Licensee"), a Delaware corporation, with an office at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, MSCI owns rights in and to, and engages in a variety of
business activities in connection with, certain stock indexes and the
proprietary data contained therein, including without limitation the indexes
listed in any Schedule (as defined in Section 1(a) below) attached hereto (the
indexes listed in any Schedule together with the data contained in each such
index hereinafter referred to individually as an "Index," and collectively as
the "Indexes");
WHEREAS, MSCI compiles, calculates, maintains and publishes the Indexes
drawing upon its judgment, experience and expertise, and from time to time may
amend the Indexes;
WHEREAS, MSCI and Licensee have entered into a Data License Agreement
(the "Data License"), a copy of which is attached hereto as Exhibit B, whereby
MSCI has agreed to provide Licensee (at the locations specified therein) with
certain data relating to the Indexes and the other indexes referred to therein,
subject to and in accordance with such Data License;
WHEREAS, MSCI and its affiliates use in commerce, and either MSCI or an
affiliate of MSCI, as applicable, owns trade name, trademark and service xxxx
rights to the designations MSCI, ACWI, EAFE, all Index names and all other MSCI
marks referred to herein (such rights are hereinafter referred to individually
as a "Xxxx," and collectively referred to as the "Marks");
WHEREAS, Licensee wishes to obtain a license to use the Indexes listed
in each Schedule as the basis of the unit investment trusts described in such
Schedule (such trusts hereinafter referred to as the "Trusts") and a right to
sublicense such license to the relevant Trusts;
WHEREAS, Licensee wishes to use and to refer to, and to have the right
to sublicense to the relevant Trusts the right to use and refer to, the Indexes
listed in the relevant Schedule and the relevant Marks in connection with
sponsoring, offering, selling, marketing and promoting the relevant Trusts and
in connection with making disclosure about such Trusts under applicable laws,
rules and regulations in order to indicate that MSCI is the source of each such
Index; and
WHEREAS, Licensee wishes to obtain MSCI's authorization to use and to
refer to the Indexes listed in the relevant Schedule and to use and refer to the
relevant Marks in connection with the relevant Trusts pursuant to the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Grant of License
(a) Licensee and MSCI have entered into the Data License pursuant to which MSCI
has granted Licensee a license to use certain data relating to the Indexes. The
maturity of any UIT will not exceed 16 months. Notwithstanding the prohibition
in the Data License with respect to offering financial instruments or products
based on any MSCI index, MSCI hereby grants to Licensee, subject to the terms
and conditions of this Agreement, a non transferable, non exclusive and
specifically-limited license: (i) to use the Indexes as the basis, or a
component, of the relevant Trust(s) as set forth in each Schedule; (ii) to use
and refer to each relevant Index and Xxxx in connection with marketing and/or
promoting the relevant Trusts to the extent necessary to indicate the source of
the relevant Indexes and in connection with making such disclosure about the
relevant Trust(s) as is required by the relevant regulatory authorities; and
(iii) to sublicense the rights granted in clauses (i) and (ii) of this sentence
to the relevant Trusts, as set forth in Section 1(c) below. For the avoidance of
doubt, this Agreement shall not grant Licensee the right to create any financial
instruments or products based on the Index(es) other than the Trust(s),
including, but not limited to, mutual funds or ETFs. Further, Licensee shall
have no right to create or offer any futures, options or other derivative
financial instruments relating to any Index or Trust without MSCI's express
prior written approval. The license to use each Index and Xxxx as described
herein is limited to use solely in connection with the relevant Trusts specified
in the relevant Schedule as of the effective date specified in such Schedule.
For purposes of clarity, in the event that the Data License, or any amendment
thereto, does not include any Index listed on any Schedule, the license
purportedly granted herein with respect to such Index shall not be effective.
"Schedule" shall mean each amendment to this Agreement pursuant to which MSCI
licenses to Licensee one or more specified Indexes for one or more specified
Trusts, the form of which amendment is attached hereto as Exhibit A. Each
Schedule shall state the relevant Index(es), a description of the Trust(s), the
applicable License Fee, the effective date of such Schedule and, to the extent
different from the provisions of this Agreement, any special terms or conditions
particular to the relevant Trust(s). A Schedule will not be effective until
signed by both parties. "Agreement" shall mean this Master Index License
Agreement For Index Based Trusts, all attached Exhibits and Schedules and any
amendments hereto or thereto that are in writing and signed by both parties.
(b) Promptly after the execution of each Schedule, Licensee shall make all
appropriate filings with all appropriate governmental or regulatory authorities
with respect to the relevant Trust(s). Licensee shall furnish, at a reasonable
time in advance of the proposed filing, copies of all such filings to MSCI for
its review, and all statements therein pertaining to: (i) MSCI; (ii) MSCI's
affiliates; (iii) any other party involved in, or related to, making or
compiling any relevant Indexes; or (iv) the description of the relevant
Trust(s), which description shall be mutually agreed upon in writing by MSCI and
Licensee before such filings are made. Licensee has no duty to submit any
filings for MSCI's review which do not affect MSCI, its affiliates or any other
third party involved in, or related to, making or compiling any Index or any
updated or revised filings that do not include any changes that pertain to MSCI
or any Index. Within six months after the relevant Schedule is executed by
Licensee, Licensee shall offer the relevant Trust(s) unless otherwise agreed to
by MSCI in writing in its sole discretion for any reason or no reason to permit
a tiered roll out of the Trust(s). In the event Licensee does not offer such
Trust(s) within six months after the relevant Schedule is executed by Licensee,
such Schedule may be terminated (or may be amended pursuant to Section 14(b)
below such that the license rights granted with respect to the relevant Indexes
are terminated) by either MSCI or Licensee upon ten (10) days' prior written
notice to the other party, and such termination shall be without liability on
the part of either party. Further, in no event shall Licensee begin sponsoring,
offering, selling, marketing or promoting any Trust prior to obtaining such
approval by all necessary governmental authorities.
(c) Licensee may sublicense to a Trust the rights granted to Licensee hereunder
and under the Data License with respect to such Trust and each such sublicensee
shall have the same rights and obligations that Licensee has under this
Agreement and under the Data License with respect to such Trust; provided that:
(i) each such sublicensee agrees in writing to comply with all of the terms and
conditions of this Agreement and the Data License as if it were Licensee; (ii)
Licensee and the relevant sublicensee shall be jointly and severally liable
directly to MSCI for any breach of this Agreement or the Data License by the
relevant sublicensee; and (iii) a breach of this Agreement or the Data License
by any sublicensee will be deemed to be a breach by Licensee that may result in,
among other things, termination of this Agreement and/or the Data License.
Licensee shall provide MSCI thirty (30) days' prior written notice of any such
sublicense. Further, Licensee may sublicense the rights granted to it hereunder
to manage a Trust to a third party so long as: (v) Licensee shall provide MSCI
thirty (30) days' prior written notice of any such sublicense; (w) any such
third party sublicensee shall be a party to an appropriate agreement with MSCI
and shall not be in breach of such agreement; (x) Licensee shall guarantee the
performance of the third party sublicensee of its obligations under this
Agreement; (y) such third party sublicensee shall have no right to sell, market
or promote the Trust; and (z) MSCI has provided prior written approval of such
third party sublicensee, which it may or may not grant in its sole discretion
for any reason or no reason.
2. Term
(a) The initial term of this Agreement shall commence on the Effective Date and
shall continue for one (1) year unless earlier terminated as provided in this
Section 2 or otherwise under this Agreement. Upon the expiration of the initial
one (1) year term, this Agreement shall automatically renew for successive terms
of one (1) year at a time. Notwithstanding the foregoing, either party may
terminate this Agreement, which termination shall be effective at the end of the
then-current term of this Agreement, by written notice to the other party given
at least ninety (90) days prior to the end of such then-current term.
(b) The initial term of each Schedule shall commence on the effective date
specified in such Schedule and shall continue until the end of the then-current
term of this Agreement. Upon expiration of the initial term of each Schedule,
such Schedule shall automatically renew for successive terms of one (1) year at
a time concurrent with the renewal terms of this Agreement. Notwithstanding the
foregoing, either party may terminate any Schedule, which termination shall be
effective at the end of the then-current term of such Schedule, by written
notice to the other party given at least ninety (90) days prior to the end of
such then-current term.
3. License Fees
(a) Licensee shall pay to MSCI the license fees set forth in each Schedule with
respect to the use by Licensee of the relevant Indexes as the basis for, or a
component of, the relevant Trust(s) the "License Fees"). All License Fees shall
be paid in US Dollars unless the parties agree otherwise in writing. The License
Fees set forth in any Schedule may be adjusted by MSCI at the end of the
then-current term of such Schedule upon written notice to Licensee at least
sixty (60) days prior to the end of such then-current term. Licensee shall
notify MSCI in writing of Licensee's acceptance or rejection of such License Fee
adjustment within thirty (30) days of the date of the License Fee adjustment
notice. Failure of Licensee to provide written notice of its acceptance or
rejection of such License Fee adjustment within such thirty (30)-day period
shall be deemed acceptance by Licensee of such License Fee adjustment.
Notwithstanding Section 2 above, if Licensee does not accept such License Fee
adjustment, the relevant Schedule will be terminated at the end of the
then-current term applicable to subsequent series of the relevant Trust(s). Any
accepted adjustment to the License Fee shall only be applicable to subsequent
series of the relevant Trust(s). In addition to the License Fees, Licensee shall
be responsible for and shall pay all applicable taxes, including without
limitation, all national, territorial, state and local sales, personal property
and ad valorem taxes and other taxes arising as a result of this Agreement,
other than taxes based on MSCI's income.
(b) All License Fees shall be payable after they have accrued on a calendar
quarterly basis. The first quarter shall commence upon the effective date of the
relevant Schedule. If the effective date of the relevant Schedule is any day
other than the first day of a calendar quarter, the License Fees for the Indexes
listed in the Schedule shall be pro-rated accordingly for the first and last
payment period. Within fifteen (15) days after the close of each calendar
quarter, Licensee shall provide to MSCI a written report calculating the License
Fees due hereunder for such quarter accompanied by a payment of the relevant
License Fees. [Any License Fees or any other amounts due hereunder that are not
timely paid shall accrue interest at the rate of one and one-half percent (1.5%)
per month or the maximum amount permitted by law, whichever is less, which
interest charges shall begin accruing on the relevant due date and shall
continue to accrue until such License Fees and all other amounts due hereunder
are paid in full.]
(c) Licensee shall maintain detailed and accurate records with respect to the
assets of the Trusts and any of Licensee's payments to MSCI hereunder. During
the term of this Agreement and for a period of three (3) years after the
termination of this Agreement, Licensee, upon written request by MSCI, shall
provide access to such records during normal business hours to MSCI and/or an
independent accounting organization chosen and compensated by MSCI. [Licensee
shall promptly pay any underreported License Fees and all other amounts due
hereunder determined by such audit plus interest thereon at a rate of one and
one-half percent (1.5%) per month, or the highest rate allowed by law, whichever
is less, for the period of time during which such amount was owed and unpaid. If
such audit reveals an underpayment in excess of five percent (5%) of the amount
due hereunder, then Licensee shall also pay for the reasonable cost of such
audit.] All information reviewed and obtained during any audit hereunder shall
be treated as Confidential Information pursuant to Section 9(a) below.
4. Termination
In addition to and notwithstanding the other termination rights
provided herein, the following termination provisions apply to this Agreement:
(a) In the case of a material breach by MSCI of any of the terms or conditions
of any Schedule or of this Agreement with respect to a particular Trust,
Licensee may terminate such Schedule with respect to the affected Trust by
giving MSCI prior written notice of Licensee's intent to terminate such Trust
and such termination shall be effective thirty (30) days from the date of such
notice, unless MSCI corrects such breach within the thirty (30)-day notice
period; provided, however, that if such breach is not capable of correction,
such termination shall be effective immediately upon notice. In the event of a
material breach by MSCI of any of the terms or conditions of this Agreement
which is a breach of a nature which goes beyond a particular Trust and affects
an entire Schedule, Licensee may terminate the affected Schedule or this
Agreement (solely in the event that all of the Schedules are affected in which
case such Schedules will terminate concurrently therewith) by giving MSCI prior
written notice of Licensee's intent to terminate the Schedule or this Agreement
and such termination will be effective thirty (30) days from the date of such
notice, unless MSCI corrects such breach within the thirty (30)-day notice
period; provided, however, that if such breach is not capable of correction,
such termination will be effective immediately upon notice.
(b) In the case of a material breach by Licensee of any of the terms or
conditions of any Schedule or of this Agreement, MSCI may, in its discretion,
terminate each or any Schedule or this Agreement (in which event all of the
Schedules will terminate concurrently therewith) by giving Licensee prior
written notice of its intent to terminate such Schedule or this Agreement, as
the case may be, and such termination shall be effective thirty (30) days from
the date of such notice, unless Licensee corrects such breach within the thirty
(30)-day notice period; provided, however, that if such breach is not capable of
correction, such termination shall be effective immediately upon notice.
(c) MSCI may, upon notice to the Licensee, terminate this Agreement or a
Schedule effective immediately upon the termination of the Data License or any
portion thereof for any reason or no reason.
(d) MSCI shall have the right, in its sole discretion, to cease compilation and
publication of any of the Indexes at any time. In the event that MSCI intends to
discontinue any Index, and if circumstances allow, MSCI shall give Licensee
reasonable prior written notice of such discontinuance, which notice shall
specify whether a replacement or substitute index will be available (the "Notice
of Discontinuance"). In the event that any Index is discontinued and MSCI, in
its sole discretion, does not offer a replacement or substitute index, MSCI
shall have the right to terminate the relevant Schedule, or if the relevant
Schedule lists more than one Index and not all of the Indexes on such Schedule
are being discontinued, MSCI shall have the right to unilaterally amend such
Schedule notwithstanding Section 14(b) below such that the license rights
granted with respect to any discontinued Index are terminated. If MSCI offers a
replacement or substitute index, Licensee shall have the option to use such
replacement or substitute index, subject to and in accordance with the terms and
conditions of this Agreement and any relevant Schedule; provided that, within
fifteen (15) days after receiving the Notice of Discontinuance, Licensee
notifies MSCI in writing of Licensee's intent to use such replacement or
substitute index. If MSCI discontinues any Index but does not offer a
replacement or substitute index, Licensee shall have the option to request that
MSCI provide Licensee, on a confidential basis, with information necessary to
enable Licensee to calculate values of such Index in the manner in which such
Index is then calculated, including on a one-time basis a list of the companies
in such Index, their respective shares outstanding and information as to the
weighting within such Index (the "Calculation Materials"); provided that, within
fifteen (15) days after receiving the Notice of Discontinuance, Licensee
notifies MSCI of Licensee's desire to receive the Calculation Materials. For
purposes of clarity, this Section 4(d) shall only apply with respect to a
termination of or amendment to a Schedule pursuant to this Section 4(d) and
shall not apply to any termination of any Schedule or this Agreement for any
other reason whatsoever.
(e) In the event (i) Licensee is informed of the final adoption of any
legislation or regulation (not otherwise in effect on the effective date
specified in the relevant Schedule) that materially impairs Licensee's ability
to issue, manage, offer, sell, market or promote any of the relevant Trusts; or
(ii) any material litigation or regulatory proceeding regarding any of the
relevant Trusts is threatened or commenced, Licensee may, upon written notice to
MSCI, terminate a Schedule (only if all of the Indexes listed thereon are
affected) or unilaterally amend such Schedule notwithstanding Section 14(b)
below (in the event all of the Indexes listed on such Schedule are not affected)
such that the license rights granted with respect to the affected Index(es) are
terminated.
(f) MSCI may terminate, in its discretion, the relevant Schedule (or, if all of
the Indexes listed on such Schedule are not affected, unilaterally amend such
Schedule notwithstanding Section 14(b) below such that the license rights
granted with respect to the affected Indexes are terminated) or this Agreement
(in which event all of the Schedules shall terminate concurrently therewith)
upon written notice to Licensee if: (i) MSCI is informed of the final adoption
of any legislation, regulation, order or rule that, in MSCI's judgment,
materially impairs MSCI's ability to license and provide any Index or any Marks
under this Agreement; or (ii) any material litigation or regulatory proceeding
regarding any Trusts, any Index or any Xxxx is threatened or commenced.
(g) Either party may terminate this Agreement immediately upon written notice to
the other party if the other party makes a general assignment for the benefit of
creditors, or files a voluntary petition in bankruptcy or for reorganization or
arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed
against such other party and is not dismissed within sixty (60) days after the
filing, or if a receiver or trustee is appointed for all or any part of the
property or assets of such other party.
(h) MSCI may terminate this Agreement immediately upon written notice to
Licensee if there is a change of control of Licensee.
(i) MSCI may terminate the license with respect to a particular Index
immediately upon written notice to Licensee if the Trust(s) based on such Index
are not commercially offered by Licensee for a continuous period of six (6)
months or more at any time during the term of this Agreement.
5. Effect of Termination
(a) Except as may be provided under Section 5(b) below, upon termination of the
license with respect to any Index and/or Schedule, Licensee shall, within sixty
(60) days of such termination, cease to use the affected Index(es) and all the
relevant Marks and shall immediately cease referring to such Index(es) and Marks
in connection with any subsequent series of the Trust(s) set forth in such
Schedule, and within thirty (30) days of such termination, Licensee shall pay
MSCI any and all outstanding License Fees and all other amounts due under such
Schedule. Notwithstanding the foregoing, Licensee shall immediately cease to use
the affected Index(es) and all relevant marks, cease referring to such Index(es)
and Marks in connection with the Trusts set forth in such Schedule and, pay MSCI
any and all outstanding License Fees and all other amounts due under such
Schedule if such termination is due to a breach of this Agreement by Licensee.
(b) In the event that Licensee exercises the option to receive the Calculation
Materials in accordance with Section 4(d) above, MSCI shall be deemed to have
provided Licensee a limited, non-transferable, non-exclusive and royalty-free
license to use the Calculation Materials as of the date of the termination, or
amendment, as the case may be, of the relevant Schedule for the purpose
described in Section 4(d) above but the license to use the relevant Marks
(subject to the penultimate sentence of this Section 5(b)) and the relevant
Index shall immediately terminate. The license to use the Calculation Materials
shall extend until the end of the then-current term of the relevant Schedule, as
described in Section 2 above, after which time all rights to use the Calculation
Materials shall cease. Licensee shall immediately re-name all subsequent series
of the relevant Trust (the new name not to be confusingly similar to any of the
Marks or other marks of MSCI or its affiliates). Licensee shall use the
Calculation Materials only in compliance with, and shall not take any action
with respect to the Calculation Materials inconsistent with, the terms and
conditions of this Agreement. Upon such a re-naming of a subsequent series of
the Trust, Licensee may make a final use of the Marks to announce the new name
of the Trust, subject to Section 6 below. If MSCI terminates or amends, as the
case may be, any Schedule pursuant to Section 4(d) above, Licensee's obligation
to make any payment of License Fees with respect to the relevant Trusts shall
terminate as of the date on which Licensee ceases to use all of the Marks in
respect of the relevant Indexes and any re-named Trust pursuant to this Section
5(b); provided that Licensee shall pay to MSCI all amounts due and owing as of
such date.
6. Trust Promotion
(a) Licensee shall prominently feature the relevant Marks and logos (which shall
be provided to Licensee by MSCI upon request) in all advertisements, brochures,
and promotional and information material (other than price quotations for a
Trust) (collectively, the "Informational Materials") relating to or referring to
the relevant Trust(s). Without limiting the foregoing, Licensee shall include
the following statement on the title page of all Informational Materials: "The
trusts described herein are indexed to an MSCI index". Further, Licensee shall
prominently feature a description of the relevant Indexes in all Informational
Materials regarding the relevant Trust(s). In addition, MSCI hereby grants to
Licensee a temporary, non-sublicensable, non-transferable, non-exclusive license
to hyperlink to MSCI's web site, xxx.xxxxxxxxx.xxx, from any Licensee web page
containing MSCI data or information. Further, Licensee hereby grants to MSCI a
temporary, non-sublicensable, non-transferable, non-exclusive license to list
Licensee as a licensee of MSCI data and to hyperlink to Licensee's web site.
Each of these licenses may be revoked at any time by MSCI or Licensee without
notice without affecting any of the other rights granted hereunder.
(b) A reasonable time period (but not less than seven (7) business days) prior
to Licensee's distribution or publication of any Informational Materials,
Licensee shall submit to MSCI for its preview and approval all such
Informational Materials relating to or referring to MSCI or any of the Indexes,
Marks, logos or Trusts for determination of compliance with the terms herein.
Once any Informational Materials have been approved by MSCI, no further approval
of such Informational Materials is required; provided that Licensee does not
modify its use or description of MSCI or any of the Marks, logos or Indexes
referred to in such Informational Materials; provided further, however, that
Licensee shall provide MSCI with copies of all Informational Materials,
including without limitation such Informational Materials that do not require
resubmission and additional approval, at least once every twelve (12) months (or
more frequently upon MSCI's prior written request) during the term of this
Agreement. Licensee shall use its best efforts to protect the goodwill and
reputation of MSCI, its Marks and Indexes.
(c) MSCI is not obligated to engage or cooperate in any marketing or promotional
activities in connection with any Trusts or in making any representation or
statement to investors or prospective investors in connection with the promotion
by Licensee of any Trusts.
(d) Licensee acknowledges and agrees that MSCI, in granting the permission
contained in this Agreement, does not express or imply any approval of the
Trusts or of Licensee, and Licensee further agrees not to make any statement
which expresses or implies that MSCI, its affiliates or any other party involved
in, or related to, making or compiling any Indexes approves, endorses or
consents to the issuing, managing, offering, selling, marketing or promoting by
Licensee of the Trusts or that MSCI, its affiliates or any other party involved
in, or related to, making or compiling any Indexes makes any judgment or
expresses any opinion in respect of the Licensee or the Trusts.
(e) Licensee shall not disseminate electronically or in any other fashion,
without MSCI's prior written approval, any quotations or other information
relating to: (i) the Indexes (for any reason whatsoever); (ii) any Trust
portfolio constituents or weights; (iii) the categorization of Trust portfolio
constituents into countries, sectors, industries or industry groups; or (iv) any
other information about a Trust to the extent that such information about such
Trust would provide a mechanism for reproducing any Raw Index Data (as defined
below). The foregoing restrictions regarding any Trust information shall not
apply to the extent such Trust information is required to be disclosed to the
relevant Trust's investors or prospective investors by the regulatory authority
that regulates such Trust. If Licensee is requested or required by
interrogatories, requests for information or documents, subpoena, or other legal
process to disclose any Index or Trust information not permitted to be
disseminated by this Section 6(e), Licensee shall notify MSCI thereof as soon as
reasonably practical so that MSCI may seek an appropriate protective order.
Licensee shall cooperate, as reasonably requested by MSCI, in obtaining an
appropriate protective order. In the event that MSCI is not successful in
obtaining a protective order and Licensee is, in the opinion of its counsel,
required to disclose the relevant information under pain of liability for
contempt of court or other censure or penalty, Licensee may disclose solely such
information as determined by its counsel to be necessary in accordance with and
for the limited purpose of compliance with such requirements, without liability
hereunder. "Raw Index Data" shall be defined as any field, element, component,
classification, code, calculation, formula, selection criteria, policy or
methodology (including, without limitation, constituent countries, sectors
industry groups, industries, companies and weights) of any Index.
7. Protection Of Value Of License
(a) Licensee shall reasonably cooperate with MSCI in the maintenance of all MSCI
common law and statutory rights in the Indexes, Marks and the Calculation
Materials (collectively, the "MSCI Materials"), including, without limitation,
copyrights, trademarks and other proprietary rights, and shall take such acts
and execute such instruments as are reasonably necessary and appropriate (or as
MSCI may otherwise reasonably request) to such purposes, including, without
limitation, complying with Sections 6(a) and 6(b) above and Sections 10(a) and
10(b) below.
(b) Licensee shall not refer to the name of any of the Indexes in any manner
which might cause confusion as to MSCI's responsibility for preparing and
disseminating the Indexes or as to the identity of Licensee and its relationship
to the Trusts.
8. Proprietary Rights
(a) Licensee acknowledges, on behalf of itself and its affiliates, that the
Indexes are selected, compiled, arranged and prepared, and from time to time
modified, by MSCI through the application of methods and standards of judgment
used and developed through the expenditure of considerable creative effort, time
and money by MSCI. Licensee also acknowledges, on behalf of itself and its
affiliates, that the MSCI Materials are the exclusive property of MSCI, and that
MSCI has and retains all proprietary rights therein, including without
limitation, all trademark and copyright rights, as well as rights against
misappropriation. Licensee further acknowledges, on behalf of itself and its
affiliates, that the Indexes and their compilation and composition and changes
therein are in the control and discretion of MSCI. Licensee recognizes, on
behalf of itself and its affiliates, the existence of the goodwill associated
with the Marks and acknowledges, on behalf of itself and its affiliates, that
the goodwill pertaining thereto is the exclusive property of MSCI. All use of
the Marks by Licensee shall inure to the benefit of MSCI. Licensee will not, and
will cause its affiliates to not, raise any objection, or assist any third party
in objecting, to any claims of copyright or other proprietary right by MSCI to
all or part of any of the MSCI Materials. Without limiting the foregoing,
Licensee recognizes, on behalf of itself and its affiliates, the validity of the
MSCI Materials, and Licensee will not, and will cause its affiliates to not,
during the term of this Agreement or at any time thereafter, directly or
indirectly: (i) challenge or contest, or assist any third party in challenging
or contesting, the validity of MSCI's rights to, or use or registration of, the
Marks, or the validity of the license granted under this Agreement; (ii) attempt
to register any of the Marks (or any xxxx substantially similar to any of the
Marks) in any jurisdiction; or (iii) challenge or contest, or assist any third
party in challenging or contesting, the validity of MSCI's rights in or to the
Indexes or the Calculation Materials.
(b) MSCI has and retains all rights with respect to the MSCI Materials except
(and only to the extent) those expressly licensed to Licensee hereunder. Without
limiting the foregoing, Licensee expressly understands and agrees, on behalf of
itself and its affiliates, that no rights to use the MSCI Materials are granted
hereunder other than those specifically described and expressly granted herein,
and this Agreement shall not be construed to transfer to Licensee any ownership
right to, or equity interest in, the MSCI Materials, or to or in any proprietary
right therein, including, without limitation, any trademark or copyright right.
9. Confidential Information
(a) Each party hereto (the "Receiving Party") shall treat as confidential and
shall not disclose or transmit to any third party any confidential or
proprietary information of the other party (the "Disclosing Party") to which the
Receiving Party has had or will have access in connection with the subject
matter of this Agreement, including, without limitation, any proprietary data
contained in the Indexes, the Calculation Materials, the License Fee structure
contained herein and any other terms of this Agreement ("Confidential
Information"). Notwithstanding the foregoing, any information submitted to MSCI
by Licensee shall be treated as Confidential Information for the purposes of
this Section 9(a) only if the information is designated in writing as
"Confidential" or "Proprietary" when given to MSCI. Each party agrees to
maintain the confidentiality of all Confidential Information of the other party
using procedures no less rigorous than those used to protect and preserve the
confidentiality of its own similar confidential and/or proprietary information,
but, in no event shall either party use less than a reasonable degree of care to
protect and preserve the confidentiality of the other party's Confidential
Information. Without limiting the foregoing, the Receiving Party shall not,
directly or indirectly, transfer or disclose any Confidential Information of the
Disclosing Party to any third party, except that the Receiving Party shall be
permitted to disclose the Confidential Information of the Disclosing Party to
those employees and independent consultants of the Receiving Party with a need
to know such information for purposes of, and subject to, this Agreement.
Notwithstanding anything to the contrary in this Agreement, Confidential
Information shall not include information which: (i) was independently developed
by the Receiving Party without use of or reference to any Confidential
Information of the Disclosing Party; or (ii) becomes known by the Receiving
Party from a third party and, to the Receiving Party's knowledge, is not subject
to an obligation of confidentiality. Further, if the Receiving Party is
requested or required to disclose any Confidential Information by
interrogatories, requests for information or documents, subpoena, or other
process (each, a "Legal Requirement"), the Receiving Party, as soon as
reasonably practicable, shall provide the Disclosing Party with notice of such
Legal Requirement so that the Disclosing Party may seek an appropriate
protective order. The Receiving Party shall cooperate, as reasonably requested
by the Disclosing Party, in obtaining an appropriate protective order. In the
event that the Disclosing Party is not successful in obtaining a protective
order and the Receiving Party is, in the opinion of its counsel, required by
such Legal Requirement to disclose the Confidential Information under pain of
liability for contempt of court or other censure or penalty, the Receiving Party
may disclose solely such information as determined by its counsel to be
necessary in accordance with and for the limited purpose of compliance with such
requirements, without liability hereunder. The provisions of this Section 9(a)
shall survive any termination of this Agreement.
(b) The Receiving Party shall cause each employee or third party to whom the
Receiving Party discloses Confidential Information in order to perform its
obligations hereunder to abide by the confidentiality provisions of this
Section 9.
10. Licensee Disclaimer Obligations
(a) Licensee shall include all of the following disclaimers and limitations in
the prospectus and any offering circular and/or contract(s) relating to any of
the Trusts, and upon request shall furnish a copy (copies) thereof to MSCI:
This trust is not sponsored, endorsed, sold or promoted by MSCI inc. ("MSCI"),
any of its affiliates, any of its information providers or any other third party
involved in, or related to, compiling, computing or creating any MSCI index
(collectively, the "MSCI parties").
The MSCI indexes are the exclusive property of MSCI. MSCI and the MSCI index
names are service xxxx(s) of MSCI or its affiliates and have been licensed for
use for certain purposes by [licensee]. None of the MSCI parties makes any
representation or warranty, express or implied, to the issuer or owners of this
trust or any other person or entity regarding the advisability of investing in
trusts generally or in this trust particularly or the ability of any MSCI index
to track corresponding stock market performance. MSCI or its affiliates are the
licensors of certain trademarks, service marks and trade names and of the MSCI
indexes which are determined, composed and calculated by MSCI without regard to
this trust or the issuer or owners of this trust or any other person or entity.
None of the MSCI parties has any obligation to take the needs of the issuer or
owners of this trust or any other person or entity into consideration in
determining, composing or calculating the MSCI indexes. None of the MSCI parties
is responsible for or has participated in the determination of the timing of,
prices at, or quantities of this trust to be issued or in the determination or
calculation of the equation by or the consideration into which this trust is
redeemable. Further, none of the MSCI parties has any obligation or liability to
the issuer or owners of this trust or any other person or entity in connection
with the administration, marketing or offering of this trust.
ALTHOUGH MSCI SHALL OBTAIN INFORMATION FOR INCLUSION IN OR FOR USE IN THE
CALCULATION OF THE MSCI INDEXES FROM SOURCES THAT MSCI CONSIDERS RELIABLE, NONE
OF THE MSCI PARTIES WARRANTS OR GUARANTEES THE ORIGINALITY, ACCURACY AND/OR THE
COMPLETENESS OF ANY MSCI INDEX OR ANY DATA INCLUDED THEREIN. NONE OF THE MSCI
PARTIES MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY
THE ISSUER OF THE TRUST, OWNERS OF THE TRUST, OR ANY OTHER PERSON OR ENTITY,
FROM THE USE OF ANY MSCI INDEX OR ANY DATA INCLUDED THEREIN. NONE OF THE MSCI
PARTIES SHALL HAVE ANY LIABILITY FOR ANY ERRORS, OMISSIONS OR INTERRUPTIONS OF
OR IN CONNECTION WITH ANY MSCI INDEX OR ANY DATA INCLUDED THEREIN. FURTHER, NONE
OF THE MSCI PARTIES MAKES ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND THE
MSCI PARTIES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO EACH MSCI INDEX AND ANY DATA
INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL ANY
OF THE MSCI PARTIES HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL,
PUNITIVE, CONSEQUENTIAL OR ANY OTHER DAMAGES (INCLUDING LOST PROFITS) EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
No purchaser, seller or holder of this security, product or trust, or any other
person or entity, should use or refer to any MSCI trade name, trademark or
service xxxx to sponsor, endorse, market or promote this security without first
contacting MSCI to determine whether MSCI's permission is required. Under no
circumstances may any person or entity claim any affiliation with MSCI without
the prior written permission of MSCI.
(b) Licensee shall include the following disclaimers and limitations in any
Informational Materials relating to the Trusts and upon request shall furnish a
copy (copies) thereof to MSCI:
The trusts or securities referred to herein are not sponsored, endorsed, or
promoted by MSCI, and MSCI bears no liability with respect to any such trusts or
securities or any index on which such trusts or securities are based. The
[Prospectus] contains a more detailed description of the limited relationship
MSCI has with [Licensee] and any related trusts.
(c) The provisions of this Section 10 shall survive termination of this
Agreement.
11. Warranties; Disclaimers of Warranties
(a) Each party represents and warrants to the other that it has the authority to
enter into this Agreement according to its terms.
(b) Licensee represents and warrants to MSCI that: (i) the Trusts shall not
violate any applicable laws, rules or regulations, including, but not limited
to, banking, commodities, investment companies and securities laws; (ii)
Licensee's performance does not violate any laws, rules, regulations or
agreements applicable to Licensee; and (iii) Licensee shall use and disseminate
the MSCI Materials only in compliance with, and shall not take any action with
respect to any of the MSCI Materials inconsistent with, the terms and conditions
of this Agreement.
(c) Licensee acknowledges and agrees that:
(i) THE TRUSTS ARE NOT SPONSORED, ENDORSED, SOLD OR PROMOTED BY MSCI, ANY OF ITS
AFFILIATES, ANY OF ITS INFORMATION PROVIDERS OR ANY OTHER THIRD PARTY INVOLVED
IN, OR RELATED TO, COMPILING, COMPUTING OR CREATING ANY INDEXES (COLLECTIVELY,
THE "MSCI PARTIES"). THE TRUSTS HAVE NOT BEEN PASSED ON BY ANY OF THE MSCI
PARTIES AS TO THEIR LEGALITY OR SUITABILITY WITH RESPECT TO ANY PERSON OR
ENTITY. NONE OF THE MSCI PARTIES MAKES ANY WARRANTIES OR BEARS ANY LIABILITY
WITH RESPECT TO THE TRUSTS. WITHOUT LIMITING THE FOREGOING, NONE OF THE MSCI
PARTIES MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO THE ISSUERS
OR OWNERS OF THE TRUSTS, LICENSEE OR ANY OTHER PERSON OR ENTITY REGARDING THE
ADVISABILITY OF INVESTING IN TRUSTS GENERALLY OR IN THE TRUSTS PARTICULARLY OR
THE ABILITY OF THE INDEXES TO TRACK CORRESPONDING STOCK MARKET PERFORMANCE. MSCI
OR ITS AFFILIATES ARE THE LICENSORS OF CERTAIN TRADEMARKS, SERVICE MARKS AND
TRADE NAMES AND OF THE INDEXES WHICH ARE DETERMINED, COMPOSED AND CALCULATED BY
MSCI WITHOUT REGARD TO THE TRUSTS, THE ISSUER OF THE TRUSTS, THE OWNERS OF THE
TRUSTS, LICENSEE OR ANY OTHER PERSON OR ENTITY. NONE OF THE MSCI PARTIES HAS ANY
OBLIGATION TO TAKE THE NEEDS OF THE ISSUERS OR OWNERS OF THE TRUSTS, LICENSEE OR
ANY OTHER PERSON OR ENTITY INTO CONSIDERATION IN DETERMINING, COMPOSING OR
CALCULATING THE INDEXES. NONE OF THE MSCI PARTIES IS RESPONSIBLE FOR OR HAS
PARTICIPATED IN THE DETERMINATION OF THE TIMING OF, PRICES AT, OR QUANTITIES OF
THE TRUSTS TO BE ISSUED OR IN THE DETERMINATION OR CALCULATION OF THE EQUATION
BY OR THE CONSIDERATION INTO WHICH THE TRUSTS ARE REDEEMABLE. FURTHER, NONE OF
THE MSCI PARTIES HAS ANY OBLIGATION OR LIABILITY TO THE ISSUERS OF THE TRUSTS,
THE OWNERS OF THE TRUSTS, LICENSEE OR ANY OTHER PERSON OR ENTITY IN CONNECTION
WITH THE ADMINISTRATION, MARKETING OR OFFERING OF THE TRUSTS.
(ii) ALTHOUGH MSCI SHALL OBTAIN INFORMATION FOR INCLUSION IN OR FOR USE IN THE
CALCULATION OF THE MSCI INDEXES FROM SOURCES THAT MSCI CONSIDERS RELIABLE, NONE
OF THE MSCI PARTIES WARRANTS OR GUARANTEES THE ORIGINALITY, ACCURACY AND/OR THE
COMPLETENESS OF ANY MSCI INDEX OR ANY DATA INCLUDED THEREIN. NONE OF THE MSCI
PARTIES MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY
LICENSEE, LICENSEE'S CUSTOMERS OR COUNTERPARTIES, ISSUERS OF THE TRUSTS, OWNERS
OF THE TRUSTS, OR ANY OTHER PERSON OR ENTITY, FROM THE USE OF ANY MSCI INDEX OR
ANY DATA INCLUDED THEREIN. NONE OF THE MSCI PARTIES SHALL HAVE ANY LIABILITY FOR
ANY ERRORS, OMISSIONS OR INTERRUPTIONS OF OR IN CONNECTION WITH ANY MSCI INDEX
OR ANY DATA INCLUDED THEREIN. FURTHER, NONE OF THE MSCI PARTIES MAKES ANY
EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND THE MSCI PARTIES HEREBY EXPRESSLY
DISCLAIM ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO EACH MSCI INDEX AND ANY DATA INCLUDED THEREIN. WITHOUT LIMITING
ANY OF THE FOREGOING, IN NO EVENT SHALL ANY OF THE MSCI PARTIES HAVE ANY
LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR ANY
OTHER DAMAGES (INCLUDING LOST PROFITS) EVEN IF NOTIFIED OF THE POSSIBILITY OF
SUCH DAMAGES.
(d) The provisions of this Section 11 shall survive any termination of this
Agreement.
12. Indemnification
(a) Subject to Section 12(b) below, MSCI, at its expense, will defend and/or
handle any third party claim or action threatened or brought against Licensee or
its officers, directors, managers or employees (collectively, the "Licensee
Indemnified Parties") based on or arising out of any claim that the MSCI
Materials or any use thereof constitutes an infringement, violation,
contravention or breach of any patent, copyright or trademark or constitutes the
misappropriation of a trade secret of any third party. MSCI agrees to indemnify
and hold the Licensee Indemnified Parties harmless from and against any and all
liabilities, costs, losses, damages and expenses (including without limitation
reasonable attorneys' and experts' fees) arising out of such claim or action;
provided, however, that: (i) Licensee shall promptly notify MSCI of any such
claim or action (although failure to do so will only relieve MSCI of its
indemnity obligations hereunder to the extent MSCI was prejudiced thereby); (ii)
Licensee shall reasonably cooperate with MSCI, at MSCI's expense, in the defense
of such claim or action; and (iii) MSCI shall have full control over the defense
and settlement of such claim or action, subject to Section 12(d) below. Licensee
shall have the right, at its own expense, to participate in the defense of any
such claim or action; Without limiting the foregoing, and notwithstanding
anything to the contrary in this Agreement, if any of the MSCI Materials, or the
use thereof, become, or in MSCI's reasonable opinion are likely to become, the
subject of a claim or action of infringement, contravention or breach of any
patent, copyright or trademark or of misappropriation of a trade secret of any
third party, then MSCI shall have the right, in its sole discretion, to: (A)
procure for Licensee the right to continue using the relevant MSCI Materials as
contemplated hereunder; (B) modify the relevant MSCI Materials to render them
non-infringing; (C) replace the relevant MSCI Materials with equally suitable
functionally equivalent non-infringing MSCI Materials; or (D) terminate, in
MSCI's discretion, the relevant Schedule (or, if all of the Indexes listed on
such Schedule are not affected, unilaterally amend such Schedule notwithstanding
Section 14(b) below such that the license rights granted with respect to the
affected Indexes are terminated) or this Agreement in which event all of the
Schedules shall terminate concurrently therewith.
(b) Notwithstanding anything to the contrary in this Agreement, MSCI shall have
no liability or obligation to Licensee under Section 12(a) above if such claim
or action arises from or in connection with: (i) any negligent act or omission
by any Licensee Indemnified Party; (ii) Licensee's use of other than the
then-current version of the MSCI Materials; (iii) Licensee's modification of the
MSCI Materials; (iv) Licensee's use of the MSCI Materials in combination with
any software or other product, service or material not provided by MSCI; (v) any
compliance by MSCI with Licensee's designs, specifications or modifications; or
(vi) Licensee's use of the MSCI Materials other than as set forth in this
Agreement. In the event any of the foregoing occurs, Licensee shall indemnify
MSCI pursuant to Section 12(c) below.
(c) Licensee, at its expense, will defend and/or handle any claim or action
threatened or brought against MSCI, its affiliates or any other party involved
in, or related to, making or compiling any Index, or its or their respective
officers, directors, managers, employees, agents, consultants or other
representatives (collectively, the "MSCI Indemnified Parties") if such claim or
action is (i) in any manner related to the Trusts or Licensee's use of any of
the MSCI Materials hereunder, subject to MSCI's indemnity contained in Section
12(a) above; (ii) based on any act or omission of Licensee that is in any manner
related to the Trusts or Licensee's use of any of the MSCI Materials hereunder;
(iii) based on any of the circumstances described in Section 12(b) above; or
(iv) based on any other act or omission of Licensee which constitutes a breach
of this Agreement. Licensee agrees to indemnify and hold the MSCI Indemnified
Parties harmless from and against any and all liabilities, costs, losses,
damages and expenses (including without limitation reasonable attorneys' and
experts' fees) arising out of such claim or action or Licensee's or any third
party's use of, or inability to use, the Trust; provided, however, that: (x)
MSCI shall promptly notify Licensee of any such claim or action (although
failure to do so will only relieve Licensee of its indemnity obligations
hereunder to the extent Licensee was prejudiced thereby); (y) MSCI shall
reasonably cooperate with Licensee, at Licensee's expense, in the defense of
such claim or action; and (z) Licensee shall have full control over the defense
and settlement of such claim or action, subject to Section 12(d) below. Without
waiving the benefits of the immediately preceding sentence, MSCI shall have the
right, at its own expense, to participate in the defense of any such claim or
action.
(d) The indemnifying party shall have control over all negotiations for the
settlement or compromise of a claim or action which such party is required to
defend and/or handle under this Section 12; provided that such settlement or
compromise is solely monetary in nature. Without limiting the generality of the
foregoing, the indemnifying party may not, without the other party's prior
written consent, settle, compromise or consent to the entry of any judgment in
any such commenced or threatened claim or action, unless such settlement,
compromise or consent: (i) includes an unconditional release of the relevant
Indemnified Party from all liability arising out of such commenced or threatened
claim or action; and (ii) does not include a statement as to, or an admission of
fault, culpability or failure to act by or on behalf of, the relevant
Indemnified Party or otherwise adversely affect the relevant Indemnified Party.
13. Force Majeure
Neither party shall be responsible for any delay or failure in performance of
its obligations under this Agreement resulting from acts beyond the control of
such party, including but not limited to, any act of God, act of governmental or
regulatory authority, act of public enemy, computer or system failure, or due to
war, act of terrorism, riot, fire, flood, civil commotion, insurrection, labor
difficulty (including without limitation, any strike, or other work stoppage or
slowdown), or severe or adverse weather conditions.
14. Other Matters
(a) This Agreement is solely and exclusively between the parties as now
constituted and, unless otherwise provided herein, 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. Notwithstanding the foregoing, MSCI may
assign this Agreement in whole or in part without Licensee's consent to any
affiliate of MSCI or to any entity that acquires those of MSCI's assets to which
the subject matter hereof relates or that is otherwise a successor in interest
to MSCI. Furthermore, MSCI may perform any of its duties hereunder either
directly or by or through its agents. This Agreement shall be valid and binding
on the parties hereto and their successors and permitted assigns.
(b) This Agreement supersedes all prior agreements and understandings, and
constitutes the complete agreement and understanding, between the parties with
respect to the subject matter hereof. No amendment or other modification to this
Agreement or to any Exhibit or Schedule attached hereto shall be valid or
binding with respect to either party unless acknowledged and agreed to in
writing and signed by a duly authorized officer of each party. In the event
there is a conflict between the provisions of this Agreement and those of any
Schedule, the provisions of such Schedule will control solely with respect to
the subject matter of such Schedule. In the event that any provision hereof or
of a Schedule is deemed to be ambiguous, the Recitals herein shall be considered
in resolving any ambiguity.
(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) All notices and other communications under this Agreement shall be: (i) in
writing; (ii) delivered by hand or by registered or certified mail, return
receipt requested, to the addresses set forth below or such addresses as either
party shall specify by a written notice to the other; and (iii) deemed given
upon receipt. Notwithstanding the foregoing, notices under Section 2 above may
be sent by facsimile, with a copy promptly sent by mail or by hand, and will be
deemed delivered upon confirmation of transmission.
Notice to MSCI: MSCI Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: MSCI Finance Department
Fax: 000-000-0000
with a copy to (which shall not constitute notice hereunder):
MSCI Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Fax: 000-000-0000
Notice to Licensee: Xxx Xxxxxx Funds Inc.
0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
with a copy to (which shall not constitute notice hereunder):
Xxx Xxxxxx Funds Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Office of the General Counsel
(e) This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to its conflict or choice of laws
principles. The parties hereby consent to the exclusive jurisdiction of, and
venue in, any federal or state court of competent jurisdiction located in the
Borough of Manhattan, New York City, for the purposes of adjudicating any matter
arising from or in connection with this Agreement. Each party hereby waives any
objection to the propriety or convenience of such venue.
(f) THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS AGREEMENT, ANY RELATED DOCUMENTS, AND/OR ANY DEALINGS BETWEEN
THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED
TRANSACTIONS CONTEMPLATED HEREBY OR ARISING OUT OF THIS AGREEMENT.
(g) Licensee acknowledges that a breach of its obligations to MSCI under this
Agreement, other than any payment obligations hereunder, will result in
irreparable and continuing damage for which monetary damages may not be
sufficient, and agrees that MSCI will be entitled to seek, in addition to its
other rights and remedies hereunder or at law, injunctive and/or other equitable
relief; and such further relief as may be proper from a court of competent
jurisdiction.
(h) The headings of the Sections of this Agreement are for general information
and reference only and they in no way define, limit or describe the scope of the
provisions of such Sections and shall not be considered in the interpretation or
enforcement of this Agreement.
(i) The parties are independent contractors. Nothing in this Agreement will be
construed to constitute or appoint either party as the agent, partner, joint
venturer, or representative of the other party for any purpose whatsoever, or to
grant to either party any right or authority to assume or create any obligation
or responsibility, express or implied, for or on behalf of or in the name of the
other, or to bind the other in any way or manner whatsoever.
(j) Any forbearance or delay on the part of either party in enforcing any
provision of this Agreement or any of its rights hereunder shall not be
construed as a waiver of such provision, or any breach thereof, or of a right to
enforce same for such occurrence or any future occurrence.
(k) In the event any one or more of the provisions of this Agreement shall for
any reason be held to be invalid, illegal or unenforceable by a court of
competent jurisdiction, the remaining provisions of this Agreement shall be
unimpaired and shall remain in full force and effect.
(l) Except as expressly set forth herein, no other party is intended, or shall
be deemed, to be a beneficiary of any provision of this Agreement.
(m) Any provision of this Agreement which, by its nature, would survive the
termination of this Agreement shall survive any such termination of this
Agreement, including without limitation Sections 5(b) (for the period specified
therein), 5(a), 8, 9, 10, 11, 12 and 14. Further, Sections 6 and 7 shall survive
the termination of this Agreement to the extent Section 5(b) survives.
(n) This Agreement may be executed in counterparts, which taken together, shall
constitute one Agreement and each party hereto may execute this Agreement by
signing such counterpart; provided that no party shall be bound hereby until it
has been executed and delivered by all parties hereto. A facsimile signature of
either party to this Agreement, or any amendment of this Agreement, shall be
deemed an original signature of such party and shall manifest such party's
intention to be bound by this Agreement or such amendment.
(o) Each party disclaims the existence of, and represents that there were no
representations or warranties, or reliance upon same, other than as set forth
expressly herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first set forth above.
MSCI INC. XXX XXXXXX FUNDS INC.
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
EXHIBIT A
FORM OF SCHEDULE FOR TRUSTS NOT TRADED ON AN EXCHANGE
SCHEDULE NO. 1 TO THE
MASTER INDEX LICENSE AGREEMENT FOR UNIT INVESTMENT TRUSTS
BETWEEN
MSCI INC. ("MSCI")
AND
XXX XXXXXX FUNDS ("LICENSEE")
DATED AS OF JUNE 30, 2009 (THE "AGREEMENT")
Effective Date of this Schedule No. 1 is June 30, 2009. This Schedule shall not
be effective until signed by both parties.
I. NAME OF THE INDEX(ES):
MSCI EAFE INDEX
MSCI EAFE GROWTH INDEX
II. DESCRIPTION OF THE TRUST(S)
Licensee may use the Index and Marks solely with respect to the Trust(s) listed
in this Schedule No. 1.
A copy of the relevant prospectus or offering document of each Trust is attached
hereto as Exhibit 1. The Trust(s) may not contain any share class other than
those specified in the relevant prospectus or offering document attached hereto.
Name and Detailed Description of the Trust(s):
THE CORE EQUITY ALLOCATION STRATEGY (25%)
The portfolio seeks capital appreciation. The portfolio seeks to achieve its
objective by investing in a portfolio of stocks. The portfolio invests in stocks
of foreign and domestic companies selected by applying separate uniquely
specialized strategies. The portfolio combines four investment strategies: the
Large Cap Growth Strategy, the Large Cap Value Strategy, the "XXXX" Strategy and
the EAFE Select 20 Strategy. Each strategy makes up approximately one-fourth of
the initial portfolio.
BALANCED MARKET ALLOCATION STRATEGY (12.5%)
The portfolio provides broad market exposure to focused equity and fixed income
styles through ETFs as well individual foreign and domestic equity exposure
through four separate stock selection investment strategies. The four investment
strategies are: the Large Cap Growth Strategy, the Large Cap Value Strategy, the
"XXXX" Strategy and the EAFE Select 20 Strategy. The EAFE Select 20 Strategy
selection model was developed by the Xxx Xxxxxx. The Large Cap Growth Strategy,
Large Cap Value Strategy and "XXXX" Strategy use proprietary, quantitative stock
selection models developed by Lightstone Capital Management LLC, Portfolio
Consultant to the Portfolio for these strategies.
EAFE GROWTH SELECT 20 PORTFOLIO - 10/01/08
Principal Investment Strategy. The Portfolio seeks to achieve its objective by
investing in a portfolio of stocks. The Portfolio follows a simple investment
strategy: Begin with the stocks in the Xxxxxx Xxxxxxx Capital International
("MSCI") Europe, Australasia and Far East Growth Index as detailed below, one of
the most widely used benchmarks for international growth investing.
Screen these stocks to include only those companies trading above $2 with
positive one- and three-year sales and earnings growth and positive one-and
three-year earnings growth estimates. Rank the remaining stocks by market
capitalization and select the top 50%. The remaining stocks are ranked from
lowest to highest based on the following four factors: 1-Year Forward Earnings
Growth, Long-Term Growth Rate Estimate, 3-Month Price Momentum and Price to Book
ratio. The Portfolio is selected by purchasing an approximate equal amount of
the 20 stocks with the highest rank based on the four factors provided no more
than six stocks are selected from any one single sector or country, and provided
that the stock of Xxx Xxxxxx Investment Inc., or any of its affiliates, will be
excluded. In addition, a stock will be excluded and such stock will be replaced
with the stock with the next highest total score if, based on publicly available
information as of the selection date, the company is the target of an announced
business acquisition which the Sponsor expects will close within six months of
the date of this prospectus. If in certain instances a company has listed two
security issues within the index, the Sponsor will select the security with the
higher market cap and replace the other issue or issues with the stock with the
next highest total score
EAFE SELECT 20 (AKA EAFE STRATEGIC 20) GLOBAL 45 DIVIDEND STRATEGY
ENHANCED INDEX STRATEGIES PORTFOLIO
MULTI-STRATEGY SERIES PORTFOLIO: EAFE, EDVY
Licensee may not materially change the description of any of the Trusts without
the prior written consent of MSCI.
Licensee will use MSCI approved Marks in the Composite Xxxx.
MSCI acknowledges and agrees that the Licensee marks are and will remain the
exclusive property of Licensee, and that all goodwill that attaches to the
Licensee marks as a result their use in the Composite Marks will redound to the
exclusive benefit of Licensee. Licensee acknowledges and agrees that the MSCI
Marks are and will remain the exclusive property of MSCI, and that all goodwill
that attaches to the MSCI Marks as a result of their use by Licensee including,
without limitation, in the Composite Marks, will redound to the exclusive
benefit of MSCI.
The Composite Marks will be owned neither by Licensee nor MSCI. Neither party
will register or apply for registration of the Composite Marks.
Upon termination of this Schedule, neither party will have ownership of or the
right to use the Composite Marks. However, the parties' respective ownership
rights will persist in the constituent MSCI Marks and Licensee Marks that
together comprise the Composite Marks.
III. LICENSE FEES:
Licensee shall pay MSCI the following license fees for each of the
Trusts identified above:
A) With the respect to each of the Core Equity Allocation Strategy (25%),
Balanced Market Allocation Strategy (12.5%) Trusts, EAFE Growth Select 20
Portfolio, and Enhanced Index Strategies Portfolio (16.67%), effective as
of April 11, 2007, June 24, 2008, October 1, 2008, and May 1, 2005, the
annual license fee per Trust is equal to the greater of (a) $7,500 (the
"Minimum Fee") or (b) an amount determined by the following formula, except
the formula should only apply to the mentioned percentage of the above
stated trusts (the "Formula"): 0.05% of the first $100 million of sales of
the Trust during any year PLUS 0.04% of the next $100 million of sales of
the Trust during any year PLUS 0.03% of all sales of the Trust during any
year in excess of $200 million. The annual period for purposes of Minimum
fee shall be measured beginning each August 1. Payment of such fee shall be
made as follows: (i) $7,500 shall be paid upon April 11 and (ii) within 10
days of the close of each three-month period (ending in July, October,
January and April) of any year during the term of the Agreement, Licensee
shall provide MSCI with a statement of the total sales of each Trust from
the beginning of any such year through the end of such period. Licensee
shall remit therewith a sum determined by the application of the Formula
for each trust for any amounts owed to MSCI in excess of the paid Minimum
Fee.
B) With the respect to the EAFE Select 20 (100%) (aka EAFE Strategic 20),
effective as of December 31, 2004, the annual license fee per Trust is
equal to the greater of (a) $30,000 (the "Minimum Fee") or (b) an amount
determined by the following formula, except the formula should only apply
to the mentioned percentage of the above stated trusts (the "Formula"):
0.05% of the first $100 million of sales of the Trust during any year PLUS
0.04% of the next $100 million of sales of the Trust during any year PLUS
0.03% of all sales of the Trust during any year in excess of $200 million.
The annual period for purposes of Minimum fee shall be measured beginning
each August 1. Payment of such fee shall be made as follows: (i) $30,000
shall be paid upon April 11 and (ii) within 10 days of the close of each
three-month period (ending in July, October, January and April) of any year
during the term of the Agreement, Licensee shall provide MSCI with a
statement of the total sales of each Trust from the beginning of any such
year through the end of such period. Licensee shall remit therewith a sum
determined by the application of the Formula for each trust for any amounts
owed to MSCI in excess of the paid Minimum Fee.
C) With the respect to the Global 45 Dividend Strategy (33%), effective as
of December 31, 2004, the annual license fee per Trust is equal to the
greater of (a) $10,000 (the "Minimum Fee") or (b) an amount determined by
the following formula, except the formula should only apply to the
mentioned percentage of the above stated trusts (the "Formula"): 0.05% of
the first $100 million of sales of the Trust during any year PLUS 0.04% of
the next $100 million of sales of the Trust during any year PLUS 0.03% of
all sales of the Trust during any year in excess of $200 million. The
annual period for purposes of Minimum fee shall be measured beginning each
August 1. Payment of such fee shall be made as follows: (i) $10,000 shall
be paid upon April 11 and (ii) within 10 days of the close of each
three-month period (ending in July, October, January and April) of any year
during the term of the Agreement, Licensee shall provide MSCI with a
statement of the total sales of each Trust from the beginning of any such
year through the end of such period. Licensee shall remit therewith a sum
determined by the application of the Formula for each trust for any amounts
owed to MSCI in excess of the paid Minimum Fee.
D) With the respect to the Multi-Strategy Series Portfolio: EAFE, EDVY (50%),
effective as of May 1, 2006, the annual license fee per Trust is equal to
the greater of (a) $15,000 (the "Minimum Fee") or (b) an amount determined
by the following formula, except the formula should only apply to the
mentioned percentage of the above stated trusts (the "Formula"): 0.05% of
the first $100 million of sales of the Trust during any year PLUS 0.04% of
the next $100 million of sales of the Trust during any year PLUS 0.03% of
all sales of the Trust during any year in excess of $200 million. The
annual period for purposes of Minimum fee shall be measured beginning each
August 1. Payment of such fee shall be made as follows: (i) $15,000 shall
be paid upon April 11 and (ii) within 10 days of the close of each
three-month period (ending in July, October, January and April) of any year
during the term of the Agreement, Licensee shall provide MSCI with a
statement of the total sales of each Trust from the beginning of any such
year through the end of such period. Licensee shall remit therewith a sum
determined by the application of the Formula for each trust for any amounts
owed to MSCI in excess of the paid Minimum Fee.
IV. SPECIAL CONDITIONS (IF ANY):
IN WITNESS WHEREOF, the parties hereto have executed this Schedule No.1 as of
the effective date set forth above.
MSCI INC. XXX XXXXXX FUNDS INC.
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
