EXHIBIT 2.2
LICENSE AGREEMENT
This Agreement is made as of this ____ day of July, 2008, by and between
Xxxxxxx Xxxxxxxx Partners Capital Management L.P., a Delaware limited
partnership ("PWP"), and Xxx Xxxxxx Funds Inc., a Delaware corporation ("Xxx
Xxxxxx").
WITNESSETH:
WHEREAS, PWP is an investment adviser registered under the Investment
Advisers Act of 1940, as amended (the "Advisers Act");
WHEREAS, PWP uses in commerce and has certain trade name, trademark and/or
service xxxx rights to the designation "Xxxxxxx Xxxxxxxx Partners Capital
Management L.P." and "Xxxxxxx Xxxxxxxx Partners" (the "PWP Marks");
WHEREAS, PWP owns rights to its use of a proprietary investment process (the
"PWP Investment Process") and the PWP Marks (such rights, including without
limitation, copyright, patent, trademark or proprietary rights and trade
secrets, collectively referred to herein as the "Property");
WHEREAS, Xxx Xxxxxx sponsors, underwrites and distributes a wide array of
unit investment trusts ("UITs");
WHEREAS, Xxx Xxxxxx desires to establish one or more UITs that will each
initially invest all or a portion of its assets in securities selected by Xxx
Xxxxxx from a list provided by PWP in accordance with the securities selection
criteria set forth in Exhibit A attached hereto (such UITs are referred to
herein as the "Trusts");
WHEREAS, Xxx Xxxxxx, on behalf of the Trusts, desires to license the Property
for use in connection with the Trusts; and
WHEREAS, Xxx Xxxxxx, on behalf of the Trusts, desires to obtain certain
additional services from PWP with respect to the securities included in the
portfolio of a particular Trust; and
WHEREAS, PWP is willing to license the Property to Xxx Xxxxxx, on behalf of
itself and the Trusts, and is willing to provide the aforesaid services to Xxx
Xxxxxx, under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Grant of License. (a) Subject to the terms and conditions of this
Agreement, PWP hereby grants to Xxx Xxxxxx, on behalf of itself and the Trusts,
a nontransferable, limited, non-exclusive license to use and refer within the
United States to the Property solely in connection with the creation,
administration, marketing, promotion and distribution of the Trusts, in such
manner as may be reasonably deemed to be appropriate by Xxx Xxxxxx and subject
to the terms hereof. It is expressly agreed and understood that no rights to use
the Property are granted hereunder other than those specifically described and
expressly granted herein.
(b) PWP covenants and agrees that no person or entity other than Xxx Xxxxxx
shall need to obtain any other license with respect to the Property in
connection with the initial sale of the Trusts or subsequent resales of the
Trusts in the secondary market.
(c) PWP represents and warrants that it has made common law claims to or
otherwise owns all proprietary rights, including, but not limited to, trade
name, trademark and/or service xxxx and trade secrets, in and to the Property
and has the right to license the same to Xxx Xxxxxx and the Trusts pursuant to
this Agreement.
Except as otherwise specifically provided herein, Xxx Xxxxxx acknowledges
that PWP reserves all rights to the Property, and this Agreement shall not be
construed to transfer to Xxx Xxxxxx any ownership right to, or equity interest
in, any of the Property. Such license shall terminate upon termination of this
Agreement.
2. Selection of Securities. During the period commencing on the date set
forth above and ending concurrently with the Initial Term (as defined in Section
6 hereof), Xxx Xxxxxx shall provide PWP with reasonable advance notice of the
filing of each registration statement (inclusive of any post-effective
amendments) pertaining to a Trust (each, a "Registration Statement") and,
subject to the foregoing, PWP will provide to Xxx Xxxxxx within ten (10) days of
Xxx Xxxxxx'x written request a list of securities in accordance with the
securities selection criteria set forth in Exhibit A in connection with each
Trust. Xxx Xxxxxx will then choose the final portfolio of securities (the
"Selected Securities") based upon all information available to it, including,
among other factors, market capitalization and liquidity considerations. Such
Selected Securities will be deposited in the related Trust's portfolio (the
"Portfolio Securities");
In addition, PWP hereby agrees to consult periodically with and advise Xxx
Xxxxxx regarding the securities or methodologies used to select the Portfolio
Securities at a time and place mutually agreed upon by the parties. With the
prior consent of PWP, which consent will not be unreasonably withheld, Xxx
Xxxxxx may permit others associated with the operation, management or marketing
of the Trusts to participate in these consultations. Each party hereto shall be
responsible for all of its own expenses incurred in connection with this
Agreement; provided, that in the event that a representative of PWP incurs
travel expenses (i.e., transportation, hotel, meals) in connection with the
above-described activities, Xxx Xxxxxx shall reimburse PWP for all such
reasonable expenses. Notwithstanding the preceding, PWP is not, and shall not
be, obligated to engage in any way or to any extent in any marketing or
promotional activities in connection with the Trusts or in making any
representation or statement to investors or prospective investors in connection
with the marketing or promotion of the Trusts by Xxx Xxxxxx.
3. Proprietary Rights. Xxx Xxxxxx acknowledges that the results of the PWP
Investment Process are produced, compiled, coordinated, arranged and prepared by
PWP through the application of methods and standards of judgment used and
developed through the expenditure of considerable work, time and money by PWP.
Xxx Xxxxxx acknowledges that the selection of the Portfolio Securities results
from the application of the PWP Investment Process, which is PWP's valuable
asset, and Xxx Xxxxxx agrees that it will take reasonable measures to prevent
any unauthorized use of the information provided to it concerning the selection,
compilation, coordination, arrangement and preparation of such assets.
4. Ongoing Services. During the term of this Agreement, PWP shall provide to
Xxx Xxxxxx, on behalf of the Trusts, the following ongoing information services
with respect to the Portfolio Securities: (i) a quarterly letter that reviews
sector trends and significant events regarding issuers of Portfolio Securities,
(ii) as necessary, notice of and information regarding announced corporate
actions occurring to issuers of Portfolio Securities and (iii) as necessary,
notice and information regarding significant downward price declines and
significant negative credit events regarding issuers of Portfolio Securities.
Xxx Xxxxxx acknowledges and agrees that PWP provides investment advice and
recommendations to, and executes portfolio transactions on behalf of, other
clients and its own account, and that such advice and such transactions may not
be consistent with positions taken by Xxx Xxxxxx or the Trusts.
5. Provision of Materials. (a) Xxx Xxxxxx shall provide PWP with a copy of
each draft prospectus, and any amendment thereto, all correspondence, including
deficiency letters, received from, and draft responses for submission to, the
Securities and Exchange Commission and any other applicable regulatory
institution with respect to any Trust ("Regulatory Correspondence"), and shall
not file or submit such draft prospectuses or Regulatory Correspondence until
PWP has been given the opportunity to review and comment on such materials and
any subsequent changes thereto. Xxx Xxxxxx agrees to provide PWP with a
reasonable period of time to review the draft prospectuses and Regulatory
Correspondence. PWP agrees that it shall promptly provide to Xxx Xxxxxx comments
on the draft prospectuses and Regulatory Correspondence. The obligations of the
parties with respect to Regulatory Correspondence shall survive any termination
of this Agreement.
(b) Xxx Xxxxxx shall submit to PWP for PWP's review and approval all public
informational materials relating to a Trust that refer to PWP (e.g., all
prospectuses, registration statements, advertisements, brochures and other
similar materials, including documents required to be filed with governmental or
regulatory agencies); provided, however, that Xxx Xxxxxx shall not be required
to submit to PWP for PWP's review and approval any public information materials
that contain references to PWP that are substantially identical to materials
previously reviewed and approved by PWP. PWP's approval of such public
informational materials shall not be unreasonably withheld or delayed.
(c) PWP shall provide Xxx Xxxxxx with information reasonably requested by Xxx
Xxxxxx about the Portfolio Securities for use by Xxx Xxxxxx in preparing updated
prospectus disclosure and marketing materials for the Trusts.
(d) PWP shall not use the name Xxx Xxxxxx, the name of any affiliate of Xxx
Xxxxxx or generally describe its services to Xxx Xxxxxx in any publicity
release, communication with the media or advertising without the prior review
and approval by Xxx Xxxxxx, such approval not to be unreasonably withheld or
delayed.
6. Fees. (a) For the license granted pursuant to Section 1, Xxx Xxxxxx, on
behalf of each of the Trusts, agrees that each Trust shall pay PWP an annual fee
equal to twenty basis points (0.200%) of the average daily Net Asset Value of
such Trust (the "License Fee"). The trustee of each Trust shall accrue such fee
daily and pay such fee to PWP in quarterly installments within fifteen (15) days
following the end of each calendar quarter during the term of such Trust. "Net
Asset Value" as used in this Agreement shall mean "current net asset value" as
defined in Rule 2a-4 under the Investment Company Act of 1940 (the "Investment
Company Act").
(b) If in any calendar year, the total of the License Fee paid to PWP with
respect to all Trusts does not at least equal $50,000 (the "Minimum Annual
Fee"), Xxx Xxxxxx shall pay to PWP any such shortfall by January 31 of the
following calendar year; provided, however, that no Minimum Annual Fee shall be
paid in any calendar year in which no Trusts were in existence during such year.
The Minimum Annual Fee shall be prorated in the year that this Agreement is
executed to give effect to the number of days in which this Agreement was in
effect during such year.
(c) If independently audited financial statements for the Trusts are
prepared, upon request by PWP, Xxx Xxxxxx shall provide PWP with such audited
financial statements promptly after receipt thereof by Xxx Xxxxxx. PWP may use
such audited financial statements to confirm the accuracy of any one or more
calculations of the License Fee. PWP shall not bear the cost of any such audit.
In addition, PWP shall have the right to audit on a confidential basis the
relevant books and records of Xxx Xxxxxx to confirm the accuracy of any one or
more calculations of the License Fee. PWP shall bear its own costs of any such
audit unless it is determined that PWP has been underpaid by five percent (5%)
or more with respect to the payments being audited, in which case PWP's costs of
such audit shall be paid by Xxx Xxxxxx.
7. Term. The term of this Agreement shall commence as of the date set forth
above (the "Effective Date") and shall remain in full force and effect until the
fifth anniversary of the Effective Date, unless this Agreement is terminated
earlier as provided herein (such term being referred to as the "Initial Term").
At the end of the Initial Term, this Agreement shall automatically renew for
successive one-year periods (each, a "Renewal Term") unless a party terminates
the Agreement by providing the other party a written notice to that effect
ninety (90) days prior to the end of the then-current term. The Initial Term and
any Renewal Term are referred to herein as the "Term".
8. Minimum Number of Trusts; Exclusivity; Right of First Refusal. (a) Xxx
Xxxxxx agrees to use commercially reasonable efforts to establish at least one
Trust in each calendar year during the first eighteen months of the Initial
Term, and PWP covenants and agrees that neither PWP, nor anyone acting on its
behalf, shall be associated or involved with any UIT sponsor, distributor or
seller in the creation, marketing or sale of any non-exchange traded UIT
selected using parameters substantially similar to those described in Exhibit A
within the United States other than the Trusts during the period from the
Effective Date until eighteen (18) months thereof (the "Initial Exclusivity
Period").
(b) Provided that Xxx Xxxxxx is in material compliance with all terms and
conditions contained in this Agreement, PWP covenants and agrees that, during
the Initial Exclusivity Period, neither PWP nor anyone acting on its behalf
shall be associated or involved with anyone in connection with the creation,
administration, management, marketing or sale of any UIT within the United
States unless PWP shall have first promptly delivered a bona fide written offer
to Xxx Xxxxxx to act as sponsor, depositor, adviser, promoter, underwriter or
distributor of such a UIT and Xxx Xxxxxx shall have failed to provide a written
acceptance of such offer to PWP within 30 days after receipt of such offer.
(c) Nothing contained herein shall limit the right of PWP to participate in
the sponsoring, creation, marketing or promotion of any exchange-traded funds,
private placements, separately managed accounts, mutual funds or any product not
subject to the registration requirements under the Investment Company Act,
including, but not limited to, any investment company (as defined in Section
3(a)(1) of the Investment Company Act, disregarding the provisions of Sections
3(b) and 3(c) thereof).
9. Assignment. Neither of the parties hereto may assign its respective rights
and obligations under this Agreement without the prior written consent of the
other party, except that an assignment to an affiliate shall be permitted solely
upon written notice to the other party.
10. Relationship of the Parties. The parties understand and agree that this
Agreement shall not be deemed to create any partnership or joint venture between
Xxx Xxxxxx and PWP, and that the services performed hereunder by PWP shall be as
an independent contractor and not as an employee or agent of Xxx Xxxxxx or any
Trust. Neither party shall have authority whatsoever to bind the other (or, in
the case of PWP, any Trust) on any agreement or obligation and each of the
parties agrees that it shall not hold itself out as an employee or agent of the
other (or, in the case of PWP, of any Trust).
11. Termination. (a) PWP may immediately terminate this Agreement upon a
material breach of any representation, warranty or covenant of Xxx Xxxxxx that
is not remedied within ten (10) business days after written notice.
(b) Xxx Xxxxxx may immediately terminate this Agreement upon a material
breach of any representation, warranty or covenant of PWP that is not remedied
within ten (10) business days after written notice thereof.
(c) PWP and Xxx Xxxxxx may terminate this Agreement at any time upon mutual
written agreement to that effect.
Any termination under Section 11(a) or (b) shall not limit any other remedies
for breach the non-breaching party may have at law or in equity. Notwithstanding
any provision of this Agreement to the contrary, termination of this Agreement
shall not constitute termination of any Trust. Following any termination,
however, PWP shall receive all fees as they become due with respect to all then
existing Trusts in accordance with Section 6 hereof.
12. Confidentiality. (a) The parties agree that certain material and
information which has or may come into the possession or knowledge of each party
in connection with this Agreement or the performance hereof (e.g., proprietary
business information (including, without limitation, the names and addresses or
other personal information of customers, distributors, information providers and
suppliers)), consists of confidential and proprietary data whose disclosure to
or use by third parties would be damaging. In addition, a party may reasonably
designate, by notice in writing delivered to the other party, other information
as being confidential or a trade secret.
(b) All such proprietary or confidential information of each party hereto
shall be kept secret by the other party to the degree it keeps secret its own
confidential or proprietary information. Such information belonging to any party
shall not be disclosed by another party to its employees, officers, agents,
service providers or affiliates, except on a need-to-know basis, but may be
disclosed by such other party to state, Federal, or other governmental agencies,
authorities or courts as required by law or regulation, or upon their order or
request provided prompt notice of such order or request is given by such other
party to the party to which such information belongs, if such notice is legally
permitted.
(c) No information that would otherwise be proprietary or confidential for
purposes of this Agreement pursuant to subsections (a) or (b) above shall be
subject to the restrictions on disclosure imposed by this Section in the event
and to the extent that (i) such information is in, or becomes part of, the
public domain otherwise than through the fault of a party to which such
information does not belong, (ii) such information was known to such party prior
to the execution of this Agreement, or (iii) such information was revealed to
such party by a third person, and which the receiving party reasonably believes
has been obtained by such third person not in violation of any existing
confidentiality or non-disclosure agreement.
(d) Each party acknowledges and agrees that a breach of this Section would
cause a permanent and irreparable damage for which money damages would be an
inadequate remedy. Therefore, each party shall be entitled to seek equitable
relief (including injunction and specific performance) in the event of any
breach of the provisions of this Section, in addition to all other remedies
available to such party at law or in equity.
(e) The covenants set forth in this Section shall survive the termination of
this Agreement.
13. Covenants. During the period of this Agreement and for as long as any of
the Trusts remains outstanding, each of the parties agrees to:
(a) comply with all codes, regulations and laws applicable to the performance
of its obligations under this Agreement and obtain or have obtained all
necessary permits, licenses and other authorizations necessary for such
performance and maintain its business reputation and good standing;
(b) take such other actions as the other party hereto may reasonably request
to more effectively carry out its obligations under this Agreement; and
(c) do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations, including, but not by way of limitation,
obtaining all consents, approvals, and authorizations, required of such party in
connection with the consummation of the transactions contemplated by this
Agreement. No party shall take any action that would be expected to result in
any of its representations and warranties set forth in this Agreement being or
becoming untrue in any material respect.
In addition, neither party may refer to the other party or any of the other
party's affiliates, in any kind of communications, whether oral, written or
electronic, or otherwise, and whether in a piece published by such party or in
response to questions of the media or others, without the other party's prior
consent, except that such consent shall not be required to the extent that the
content of a communication is substantially similar to information included in
(i) a communication to which the party has previously given consent, (ii) any
Registration Statement or (iii) other publicly available materials produced by
the party that is being referred to or described. Notwithstanding anything to
the contrary in this paragraph, a party may withdraw consent upon reasonable
written notice to the other party. Upon withdrawal of consent, the notified
party may continue to distribute any existing inventories of previously
consented-to printed materials.
14. Indemnification. (a) By Xxx Xxxxxx. Xxx Xxxxxx shall indemnify and hold
harmless PWP, its affiliates and each of their officers, directors, employees
and agents from and against any and all Losses arising out of: (i) any actual or
alleged inaccuracy or omission in any prospectus of a Trust or supplement
thereto, registration statement of a Trust, annual post-effective amendment or
annual report of a Trust or any advertising or promotional material generated by
Xxx Xxxxxx or a Trust, except with respect to any inaccuracy or omission or
alleged inaccuracy or omission made in reliance upon and in conformity with
written information PWP furnished to Xxx Xxxxxx describing PWP or the PWP
Investment Process for inclusion in any such prospectus, supplement,
registration statement, or advertising or promotional material; (ii) any breach
by Xxx Xxxxxx or any Trust of any representation, warranty or agreement
contained in this Agreement; and (iii) any violation or alleged violation of any
law or regulation applicable to a Trust, including, without limitation, the
Investment Company Act and the rules adopted by the Securities and Exchange
Commission thereunder, that arises out of any action taken or omitted to be
taken by Xxx Xxxxxx or any Trust, except to the extent any such Losses result
from PWP's fraud, willful misconduct, bad faith, reckless disregard of its
duties or gross negligence. "Losses" as used in this Section 14 shall mean
collectively, all claims, demands, actions, losses, damages, liabilities, costs,
charges, counsel fees and expenses.
(b) By PWP. PWP shall indemnify and hold harmless Xxx Xxxxxx, its affiliates
and each of their officers, directors, employees and agents from and against any
and all Losses arising out of: (i) any actual or alleged inaccuracy or omission
in any prospectus of a Trust or supplement thereto, registration statement of a
Trust or annual post-effective amendment or any advertising or promotional
material generated by Xxx Xxxxxx or a Trust, but in each case only to the extent
that the inaccuracy or omission or alleged inaccuracy or omission was made in
reliance upon and in conformity with written information PWP furnished to Xxx
Xxxxxx describing PWP or the PWP Investment Process for inclusion in any such
prospectus, supplement, registration statement, or advertising or promotional
material (ii) any breach by PWP of any representation, warranty or agreement
contained in this Agreement; and (iii) any failure of PWP to comply with any
law, rule or regulation, except to the extent any such Losses result from the
fraud, willful misconduct, bad faith, reckless disregard of its duties or gross
negligence of Xxx Xxxxxx, the Trusts, or Xxx Xxxxxx'x affiliates. For the
avoidance of doubt, the indemnification provisions of PWP under this Section
14(b) shall not apply to any information provided by PWP pursuant to Section
5(c) herein.
(c) A party's indemnification obligation hereunder shall be subject to the
party entitled to indemnification providing it with prompt written notice of any
claim, action or proceeding giving rise to such indemnification obligation and
granting it the option of control of the defense and/or settlement of such
claim, action or proceeding. No party shall without the written consent of the
indemnified party, effect any settlement in respect of which any indemnified
party is or could have been a party and indemnification could have been sought
hereunder unless: (i) it includes an unconditional release of the indemnified
party reasonably satisfactory to the indemnified party; and (ii) it does not
include any statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any indemnified person.
(d) The indemnifications set forth in this Section 14 shall survive the
termination of this Agreement for any cause whatsoever.
15. Limitation of Damages. (a) PWP shall not be liable to Xxx Xxxxxx, a Trust
or any unitholders of the Trusts for any loss or damage hereunder resulting from
PWP's actions or omissions to act or otherwise; provided, however, that the
foregoing shall not be effective to the extent not permitted by law. PWP MAKES
NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY XXX XXXXXX,
INVESTORS IN THE TRUSTS, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE
SELECTED SECURITIES OR THE PWP INVESTMENT PROCESS OR ANY DATA RELATED THERETO.
PWP EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE.
(b) Neither Xxx Xxxxxx nor PWP shall have any liability to the other or to
any other party for lost profits or indirect, punitive, special or consequential
damages (including lost profits) arising out of this Agreement, even if advised
of the possibility of such damages.
(c) Xxx Xxxxxx shall include the statement contained in Exhibit B hereto in
any filing with a governmental agency, and each prospectus and registration
statement (and upon request shall furnish copies thereof to PWP), and Xxx Xxxxxx
expressly agrees to be bound by the terms of the statement contained in Exhibit
B hereto (which terms are expressly incorporated herein by reference and made a
part hereof). Any changes in the statement contained in Exhibit B hereto must be
approved in advance in writing by an authorized officer of PWP.
(d) Notwithstanding any provision of this Agreement, and without limiting the
disclaimers set forth in this Agreement (including in Exhibit B hereto), in no
event shall the cumulative liability of PWP to Xxx Xxxxxx and its affiliates
(including the Trusts) under or relating to this Agreement at any time exceed
the aggregate amount of License Fee actually received by PWP pursuant to this
Agreement.
(e) Notwithstanding anything herein to the contrary, neither PWP nor Xxx
Xxxxxx shall bear responsibility or liability for any losses arising out of any
delay in or interruptions of performance of their respective obligations under
this Agreement due to any act of God, act of governmental authority, or act of
public enemy, or due to war, the outbreak or escalation of hostilities, riot,
fire, flood, civil commotion, insurrection, labor difficulty (including, without
limitation, any strike, other work stoppage, or slow-down), severe or adverse
weather conditions, power failure, communications line or other technological
failure, or other similar cause beyond the reasonable control of the party so
affected.
(f) This Section 15 shall survive any termination of this Agreement.
16. Warranties. Each party represents and warrants to the other that it has
the authority to enter into this Agreement according to its terms, and that its
execution and delivery of this Agreement and its performance hereunder will not
violate any agreement applicable to it or violate any applicable law or
regulation. Xxx Xxxxxx further represents and warrants to PWP that the issuance,
marketing, promotion, sale and resale of the Trusts by Xxx Xxxxxx will not
violate any agreement applicable to Xxx Xxxxxx or violate any applicable laws,
rules or regulations, including without limitation, securities, commodities and
banking laws.
17. Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of New York without reference
to or inclusion of the principles of choice of law or conflicts of law of that
jurisdiction. It is the intent of the parties that the substantive laws of the
State of New York govern this Agreement and not the law of any other
jurisdiction incorporated through choice of law or conflicts of law principles.
Xxx Xxxxxx and PWP each agrees that any legal action, proceeding, controversy or
claim between the parties arising out of or relating to this Agreement may be
brought and prosecuted only in the United States District Court for the Southern
District of New York or in the Supreme Court of the State of New York in and for
the First Judicial Department, and by execution of this Agreement each party
hereto submits to the exclusive jurisdiction of such court and waives any
objection it might have based upon improper venue or inconvenient forum. Each of
Xxx Xxxxxx and PWP hereby waives any right it may have in the future to a jury
trial in connection with any legal action, proceeding controversy or claim
between the parties arising out of or relating to this Agreement.
18. Waiver of Breach. The failure of any party to require the performance of
any term of this Agreement or the waiver of any party of any breach hereunder
shall not prevent a subsequent enforcement of such term nor be deemed a waiver
of any subsequent breach.
19. Scope of Agreement. This document constitutes the entire Agreement of the
parties with respect to the subject matter hereof, supersedes all prior oral or
written agreements, and can be amended only by a writing executed by all of the
parties.
20. Survival. Sections 6, 10, 11, 12, 14, 15 and 17 shall survive the
expiration or termination of this Agreement.
21. Notices. All notices from any party to the other pursuant to this
Agreement shall be in writing or by facsimile transmission and shall be sent to
the following addresses, or to such addresses as the parties hereto may be
notified in writing from time to time:
If to PWP:
Xxxxxxx Xxxxxxxx Partners Capital Management L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Aerospace, Defense and Security Portfolio
With a copy to:
Xxxxxxx Xxxxxxxx Partners Capital Management L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
If to Xxx Xxxxxx:
0 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
With copy to:
Xxx Xxxxxx Investments Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Office of the General Counsel
Notices shall be deemed given upon receipt via certified mail, overnight
courier, or hand delivery.
22. Severability. In the event that any provision of this Agreement or
application hereof to any person or in any circumstances shall be determined to
be invalid, unlawful, or unenforceable to any extent, the remainder of this
Agreement, and the application of any provision to persons or circumstances
other than those as to which it is determined to be unlawful, invalid or
enforceable, shall not be affected thereby, and each remaining provision of this
Agreement shall continue to be valid and may be enforced to the fullest extent
permitted by law.
23. Conflicts. In the event that any provision in this Agreement conflicts in
any way with the trust agreement governing a particular Trust, the provisions of
the trust agreement in respect thereof shall control.
24. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to
be executed by a duly authorized representative thereof as of the date first
above written.
XXX XXXXXX FUNDS INC.
By
Name
Title
XXXXXXX XXXXXXXX PARTNERS CAPITAL MANAGEMENT L.P.
By
Name
Title
--------------------------------------------------------------------------------
EXHIBIT A
The list provided by PWP to Xxx Xxxxxx for its selection of the portfolio of
each Trust will consist of securities issued by companies in the aerospace,
defense and security industries, and will be chosen by a team headed by Xxxxxx
Xxxxxxxx of PWP. PWP will focus on three important core competencies: investment
research, portfolio construction, and risk management. PWP will follow a
fundamental, bottom-up analysis of companies within these industries via
financial and non-financial due diligence. The list will consist of stocks from
the aerospace, defense and security industries, and multiple sub-sectors, such
as aerospace/defense prime and sub contractors, multi-industry companies with
strong aerospace/defense exposure, materials suppliers, space/satellites,
airlines/airports/travel-related, air freight/services, information technology
("IT") security/radio frequency identification, homeland/traditional security,
government IT, and related special situations. The securities selected will be
designed with a goal of minimizing correlation among constituent stocks,
although there can be no assurance in this regard. The investment process will
begin with idea filtration and generation, using financial and non-financial due
diligence to establish compelling valuation gaps in individual securities. From
there, PWP will make the final securities list using risk/reward analysis,
conviction levels, and catalyst/timing analysis.
EXHIBIT B
The [Trust products] are not sponsored, endorsed, sold or promoted by Xxxxxxx
Xxxxxxxx Partners Capital Management L.P. or its affiliates ("Xxxxxxx Xxxxxxxx
Partners"). Xxxxxxx Xxxxxxxx Partners makes no representation or warranty,
express or implied, to the owners of the [Trust product(s)] or any member of the
public regarding either the advisability of investing in securities generally or
in the [Trust product(s)] particularly or as to the results to be obtained by
the Securities or the [Trust products(s)]. Xxxxxxx Xxxxxxxx Partners' sole
responsibility is the identification of certain securities in accordance with
the securities selection criteria and providing research on individual
Securities in the [Trust product(s)] to the Sponsor. Xxxxxxx Xxxxxxxx Partners
is not responsible for any other aspects of the [Trust product(s)], including
without limitation the determination of net asset value per Unit. Xxxxxxx
Xxxxxxxx Partners will not be liable to the Sponsor, the [Trust product(s)] or
any Unitholders of the [Trust product(s)] for any loss or damage resulting from
Xxxxxxx Xxxxxxxx Partners' actions or omissions to act or otherwise; provided,
however, that the foregoing will not be effective to the extent not permitted by
law.
In its capacity as an investment adviser to other clients, Xxxxxxx Xxxxxxxx
Partners uses, and receives compensation for, an investment strategy and process
that is related to the process by which it determines the Securities in the
[Trust product(s)]. Although certain Securities in the [Trust product(s)] may be
purchased by Xxxxxxx Xxxxxxxx Partners for its other clients (or for itself),
the overall composition of the [Trust product(s)] is not the same as any
portfolio created by Xxxxxxx Xxxxxxxx Partners for its other clients. In
managing the accounts of its other clients, Xxxxxxx Xxxxxxxx Partners may make
the same, different or adverse recommendations, or effect the same, different or
adverse transactions, in the Securities and may do so without notice to the
Sponsor and without regard to the impact such activities may have on the [Trust
product(s)] or the value of the Units. This may have an adverse effect on the
prices of the Securities. This also may have an impact on the price the [Trust
product(s)] pays for the Securities and the price received upon Unit redemptions
or termination of the [Trust product(s)].
