EXECUTION COPY
EXHIBIT 99.A4.2
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SUBLICENSE AGREEMENT
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(DIAMONDS to Trustee on behalf of DIAMONDS Trust)
This Sublicense Agreement is entered into as of this 1st day of
November, 2005 (this "Sublicense Agreement"), by and among STATE STREET BANK AND
TRUST COMPANY, a Massachusetts bank and trust company, in its capacity as
trustee ("Sublicensee") of the DIAMONDS Trust, Series 1, a unit investment trust
registered under the Investment Company Act of 1940 and organized under the laws
of the State of New York (the "DIAMONDS Trust"), STATE STREET GLOBAL MARKETS,
LLC, a Delaware limited liability company ("Licensee") and DOW ▇▇▇▇▇ & COMPANY,
INC. ("Dow ▇▇▇▇▇").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain License Agreement dated as of June 5,
1997 (the "Original License Agreement"), as amended, and as further amended and
restated by the Licensee and Dow ▇▇▇▇▇ on the date hereof (the "Restated License
Agreement"), Dow ▇▇▇▇▇ has granted Licensee a license to (i) use the Dow ▇▇▇▇▇
Industrial Average as set forth on Schedule A of the Restated License Agreement
(the "Index") solely in connection with the issuance of the Product described in
Appendix A attached hereto and incorporated herein traded on or through one or
more Approved Exchange(s) (as defined in the Restated License Agreement) in the
United States and (ii) to use and refer to the Dow ▇▇▇▇▇ Marks (as defined in
the Restated License Agreement) in connection with the marketing and promotion
of the Product;
WHEREAS, in connection with the use of the Index in accordance with the
Restated License Agreement and the issuance of the Product by the DIAMONDS Trust
and for purposes ancillary thereto Sublicensee wishes to use and refer to the
Index and Dow ▇▇▇▇▇ Marks; and
WHEREAS, all capitalized and undefined terms used herein have the
meanings assigned to them in the Restated License Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, pursuant to Section 1(i) of the
Restated License Agreement, the parties hereto agree as follows:
1. Subject to the terms and conditions of the Restated License
Agreement, Licensee hereby grants to Sublicensee for the benefit of the DIAMONDS
Trust a non-exclusive and non-transferable sublicense (which shall not be
further sublicensable by Sublicensee) to use the Index and Dow ▇▇▇▇▇ Marks for
the term of the Restated License Agreement solely in connection with the
issuance by the DIAMONDS Trust of the Product described in Appendix A and for
purposes ancillary thereto. Such sublicense will be royalty-free with respect to
the parties hereto.
2. This Sublicense Agreement shall terminate upon (a) a material breach
by Sublicensee of this Sublicense Agreement which remains uncured after fifteen
days from the date on which Sublicensee receives written notice of breach from
Licensee, (b) the expiration or termination of the DIAMONDS Trust or (c)
termination or expiration of the Restated License Agreement.
3. Licensee acknowledges and agrees that its obligations under the
License Agreement to Dow ▇▇▇▇▇ remain as principal and shall be unaffected by
any defense or claim that Dow ▇▇▇▇▇ or Licensee may have against Sublicensee
under this Sublicense Agreement.
4. Sublicensee acknowledges that it has received and read a copy of the
Restated License Agreement.
5. This Sublicense Agreement shall be construed in accordance with the
laws of New York State without giving effect to the principles of conflicts of
laws. It is the intent of the parties that the substantive law 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. Each party
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 State District Court for the Southern
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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 on improper venue or inconvenient forum. Each
party hereto waives any right it may have to a jury trial in connection with any
legal action, proceeding, controversy or claim between the parties arising out
of or relating to the Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Sublicense
Agreement as of the date first set forth above.
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE OF THE
DIAMONDS TRUST, SERIES 1
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Senior Vice President
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STATE STREET GLOBAL MARKETS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Its: Vice President
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DOW ▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Its: President, Dow ▇▇▇▇▇ Indexes/Ventures
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[Signature page to DIAMONDS Sublicense Agreement]
APPENDIX A TO SUBLICENSE AGREEMENT
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PRODUCTS DESCRIPTION
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DIAMONDS TRUST, SERIES 1 that is an Exchange-Traded Fund (organized as a UIT)
registered under the Investment Company Act of 1940 which seeks to replicate the
performance of the Dow ▇▇▇▇▇ Industrial Average.