Exhibit h(7)
Agreement for Nasdaq-100(R) Index-Related Derivative Products
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THIS AGREEMENT, is made by and between The Nasdaq Stock Market,
Inc.(Nasdaq), a Delaware Corporation which is a subsidiary of the National
Association of Securities Dealers, Inc. (NASD) (NASD with its subsidiaries are
collectively referred to as the Corporations), whose principal offices are
located at ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ and
_________________________ (Licensee), whose principal offices are located at
____________________________________________.
WHEREAS, Nasdaq possesses certain rights in the Nasdaq-100(R)Index
(Index); and
WHEREAS, Nasdaq possesses certain rights to Nasdaq(R), Nasdaq-100(R),
and Nasdaq-100 Index(R)as trade names, trademarks or service marks (Marks); and
WHEREAS, Nasdaq determines the components of the Index, calculates,
maintains, and disseminates the Index; and
WHEREAS, Licensee desires to use and Nasdaq desires to license the
right to use the Index as a benchmark, component of a pricing or settlement
mechanism for the fund, financial instrument, derivative or other products noted
in Attachment II (Derivative Products) to be issued, listed and/or traded by
Licensee or its authorized affiliates and use the Marks solely in materials
relating or referring to the Derivative Products; and
WHEREAS, Licensee is legally authorized to issue shares of the fund, or
issue, enter into, write, sell, redeem, purchase and/or renew (Issue, Issuing,
or Issuance) such Derivative Products, and each Derivative Product will be
Issued as legally required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, Licensee and Nasdaq, intending to be
legally bound, agree as follows:
Section 1. Term and Life of Agreement.
1.1 The Term of this Agreement for a particular Derivative Product is
that stated for that Derivative Product in Attachment II. In the absence of a
statement there, the Term for that Derivative Product is the period from the
Effective Date stated in Attachment II. (if none is stated, the date signed by
Nasdaq) until the end of one year therefrom; thereafter, the Term of this
Agreement shall renew for subsequent one year terms, unless either party gives
Notice to the other at least 90 days before the end of the present Term, or
otherwise terminates the Term of this Agreement as provided herein.
1.2. The Life of this Agreement for a particular Derivative Product is
that stated for that Derivative Product in Attachment II. In the absence of a
statement there, the Life for that
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Derivative Product is until one year after the date of the expiration or
cancellation of the last of that Derivative Product Issued under this Agreement.
Section 2. Scope of License. Nasdaq hereby grants Licensee a
non-exclusive, non-transferable and non-sub-licensable (except as provided
herein) license to use the Index as a component of a pricing or settlement
mechanism for Derivative Products which are Issued by Licensee during the Term
of this Agreement. Nasdaq further grants Licensee the right to use the Marks
solely in materials referring or relating to the Derivative Products during the
Life of this Agreement. No license is granted to use the Index or Marks for any
other use, including as part of a news service or for collateral products,
without the Consent of Nasdaq. During the Life of this Agreement, no further
Consent of Nasdaq need be obtained for use of the Index or Marks by any
syndicator or underwriter of a Derivative Product offering, or for any secondary
or other resale of that Derivative Product, provided such secondary or other
resale, syndication, or underwriting is legal under applicable law.
Section 3. Fees. Licensee shall pay Nasdaq the fees specified in
Attachment II. (Fees), in immediately available United States funds. Where there
are Annual Fees, such are due as of the effective date of this Agreement, or by
the beginning date of any subsequent Term. Fees established as due by a
particular date, are due by that date. All other Fees are due within 30 days of
the date established for the production of the report or date of the invoice
upon which the Fee is based. Any amount not paid within 30 days after its due
date is subject to interest at the rate of 1 1/2% per month (or the highest rate
permitted by law) until paid, plus costs of collection, including reasonable
in-house and outside attorneys' fees. Licensee shall also assume full and
complete responsibility for the payment of any taxes, charges or assessments
imposed on Licensee, any sub-licensee, or the Corporations by any foreign or
domestic national, state, provincial, local or other government bodies, or
subdivisions thereof, and any penalties or interest, (other than personal
property or income taxes imposed on Nasdaq) relating to this Agreement. In
addition, if Licensee is required by applicable law to deduct or withhold any
such tax, charge or assessment from the amounts due Nasdaq, then such amounts
due shall be increased so that the net amount actually received by Nasdaq after
the deduction or withholding of any such tax, charge or assessment, will equal
one hundred percent (100%) of the charges specified.
Section 4.00 Audit Rights.
4.1.0 During the Life of this Agreement, Nasdaq shall have the right,
with reasonable Notice to Licensee, during normal business hours, to audit on a
Confidential basis, any relevant books and records of Licensee or its
sub-licensees to ensure that the type and amount of Fees calculated or stated to
be payable to Nasdaq are complete and accurate. Licensee shall bear the costs of
such audit (including reasonable in-house and outside accountant and attorneys'
fees, if incurred) if Nasdaq determines that Licensee (together with its
sub-licensees) has not paid, calculated, and/or reported Fees of more than five
percent of that due Nasdaq under this Agreement.
Section 5. Review of Materials.
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5.1. Licensee shall submit to Nasdaq for review a copy of any material
submitted to any regulatory body or governmental agency, which is required in
order to obtain approval for the Issuance or resale of any Derivative Product.
To the extent practicable, such materials or a copy of the then best draft shall
be given to Nasdaq at least 3 business days before their submittal to the body
or agency (but in any event, a copy of the final document shall be sent by
Notice to Nasdaq no later than 3 business days after submittal to the agency or
body).
5.2. Licensee shall give Nasdaq a copy, within 3 business days of
receipt, of any notice, correspondence, process, or other material received from
any regulatory body, governmental agency, or any court, during or after the
approval process which indicates that any Derivative Product is or might be in
violation of, or otherwise not subject to approval because of, any law, or any
rule, regulation, or order of any applicable body or agency.
5.3. For Derivative Product offerings which may be sold to the public,
Licensee shall provide Nasdaq with a copy of any informational or promotional
materials referring or relating to such offering, including, any prospectus,
offering memorandum, registration statement, circular, advertisement, or
brochure at least 3 business days prior to its initial dissemination to third
parties. Licensee need not resupply a copy of any material which is
substantially like material previously submitted to Nasdaq and is identical as
it describes the Corporations or their operations, the markets operated by the
Corporations, the Index or the Marks, or the authorization, review, or
endorsement of the Corporations of the Derivative Product. For all other
Derivative Products, Licensee shall provide a description of such product to
Nasdaq within 3 business days of the initial Issue of such product, and upon
reasonable request, provide Nasdaq, on a Confidential basis, a copy of any
materials or agreements related to such product.
5.4. If Nasdaq reasonably objects by Notice or fax transmission to
Licensee to any material as it describes the Corporations or their operations,
the markets operated by the Corporations, the Index or the Marks, or the
authorization, review, or endorsement of the Corporations of the Derivative
Product, Licensee shall alter or withdraw such material to Nasdaq's satisfaction
within 30 days of receipt of Nasdaq objection. If Licensee refuses to so alter
or withdraw, Nasdaq may terminate the Term of this License with regard to that
Derivative Product, upon 30 days Notice to Licensee, with an opportunity to cure
within that period.
Section 6. Protection of Marks. Nasdaq will use reasonable efforts to
maintain and protect the value of its Index and Marks. However, nothing shall
obligate Nasdaq to undertake an action or settlement, or refrain from an action
or settlement with respect to any particular potential, threatened, or actual
infringement of its Index or Marks. Licensee shall cooperate with Nasdaq in
maintenance, registrations, and policing of Nasdaq's rights in the Index and the
Marks. Such cooperation is not a waiver of nor shall it require to violate its
attorney/client, work product, or other privilege.
Section 7. Calculation of Index.
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7.1. Licensee agrees that the Index is a product of the selection,
coordination, arrangement, and editing of Nasdaq and that such efforts involve
the considerable expenditure by Nasdaq of time, effort, and judgment. As between
the parties, Licensee recognizes that Nasdaq is the rightful licensor of the
Index and the Marks. No license is granted to Licensee to calculate the Index.
While Nasdaq will use reasonable efforts based on sources deemed reliable in
calculating the Index, NASDAQ DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF
THE INDEX OR OF THE DATA USED TO CALCULATE THE INDEX OR DETERMINE THE INDEX
COMPONENTS, OR THE UNINTERRUPTED OR UN-DELAYED CALCULATION OR DISSEMINATION OF
THE INDEX. NASDAQ DOES NOT GUARANTEE THAT THE INDEX ACCURATELY REFLECTS PAST,
PRESENT, OR FUTURE MARKET PERFORMANCE. NASDAQ IS NOT RESPONSIBLE FOR ANY
MANIPULATION OR ATTEMPTED MANIPULATION OF THE INDEX BY MEMBERS OF THE NASD.
Nasdaq is free to pick and alter the components and method of calculation of the
Index without Consent of Licensee.
7.2. Nasdaq shall give Licensee 90 days Notice of the cessation of
public calculation or dissemination of the Index. However, Nasdaq shall either
continue to provide Licensee with a calculation of the Index for the Life of
this Agreement, or, on a Confidential basis, provide Licensee with the then
applicable method of calculation of the Index. Licensee may terminate the Term
of this Agreement on the date Noticed by Nasdaq for the cessation or
dissemination of the Index, and Nasdaq shall refund Licensee a portion of the
pre-paid Fees for that Term calculated according to Section 11.1.
Section 8. Marking of Licensee's Use.
8.1. In any prospectus, offering memorandum, contract, or in some other
conspicuous written manner, for each Derivative Product to each third party
involved in such Issuance, Licensee shall insure that substantially the
following language appears (in conspicuous type, such as at least 11 point type
and the second paragraph in bold) so as to be enforceable under applicable local
law(s):
The Product(s) is not sponsored, endorsed, sold or promoted by The
Nasdaq Stock Market, Inc.(including its affiliates) (Nasdaq, with its
affiliates, are referred to as the Corporations). The Corporations have
not passed on the legality or suitability of, or the accuracy or
adequacy of descriptions and disclosures relating to, the Product(s).
The Corporations make no representation or warranty, express or implied
to the owners of the Product(s) or any member of the public regarding
the advisability of investing in securities generally or in the
Product(s) particularly, or the ability of the Nasdaq-100 Index(R) to
track general stock market performance. The Corporations' only
relationship to [Licensee] (Licensee) is in the licensing of the
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Nasdaq-100", Nasdaq-100 Index(R), and Nasdaq(R) trademarks or service
marks, and certain trade names of the Corporations and the use of the
Nasdaq-100 Index(R) which is determined, composed and calculated by
Nasdaq without regard to Licensee or the Product(s). Nasdaq has no
obligation to take the needs of the Licensee or the owners of the
Product(s) into consideration in determining, composing or calculating
the Nasdaq-100 Index(R). The Corporations are not responsible for and
has not participated in the determination of the timing of, prices at,
or quantities of the Product(s) to be issued or in the determination or
calculation of
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the equation by which the Product(s) is to be converted into cash. The
Corporations have no liability in connection with the administration,
marketing or trading of the Product(s).
THE CORPORATIONS DO NOT GUARANTEE THE ACCURACY AND/OR UNINTERRUPTED
CALCULATION OF THE NASDAQ-100 INDEX(R) OR ANY DATA INCLUDED THEREIN.
THE CORPORATIONS MAKE NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO
BE OBTAINED BY LICENSEE, OWNERS OF THE PRODUCT(S), OR ANY OTHER PERSON
OR ENTITY FROM THE USE OF THE NASDAQ-100 INDEX(R) OR ANY DATA INCLUDED
THEREIN. THE CORPORATIONS MAKE NO EXPRESS OR IMPLIED WARRANTIES, AND
EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE WITH RESPECT TO THE NASDAQ-100 INDEX(R) OR
ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO
EVENT SHALL THE CORPORATIONS HAVE ANY LIABILITY FOR ANY LOST PROFITS OR
SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN
IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. In all other materials relating or referring to a Derivative
Product, Licensee shall include at least this much of the above language, or
similar formulation:
The Nasdaq-100(R), Nasdaq-100 Index(R), and Nasdaq(R) are trade or
service marks of The Nasdaq Stock MaRket, Inc. (which with its
affiliates are the Corporations) and are licensed for use by
[Licensee]. The product(s) have not been passed on by the Corporations
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as to their legality or suitability. The product(s) are not issued,
endorsed, sold, or promoted by the Corporations. THE CORPORATIONS MAKE
NO WARRANTIES AND BEAR NO LIABILITY WITH RESPECT TO THE PRODUCT(S).
Section 9. Sub-Licensees. Licensee may sub-license the use of the Index
by the subsidiaries or affiliates listed in Attachment I. Licensee may, by
Notice to Nasdaq, request permission to sub-license other subsidiaries or
affiliates under Licensee's control. Nasdaq will not unreasonably refuse its
Consent to such a request. Licensee may also request Nasdaq's prior Consent to
sub-license an entity which is a necessary participant in a Derivative Product
(e.g., a corporation Issuing a corporate bond with the Licensee as underwriter
and utilizing the Index as a pricing component). Nasdaq, in its sole discretion,
may Consent to such sub-license. The present list of sub-licensable entities is
listed in Attachment I.. However, Licensee shall assume all responsibility for
and will hold harmless and indemnify the Corporations against any action or
inaction by a sub-licensee as if such action or inaction were that of the
Licensee. In order to sub-license any entity, Licensee must have obtained an
agreement with the sub-licensee, which is in a form approved by the
Corporations. Licensee may not waive any provision of the sub-license or of this
Agreement without Consent of Nasdaq.
Section 10. Limited Warranty.
10.1. Nasdaq warrants that it will calculate the Index in accordance
with its then applicable method for calculation of the Index. LICENSEE'S SOLE
REMEDY IN EVENT OF A
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FAILURE OF THIS WARRANTY IS TO HAVE NASDAQ RECALCULATE THE INDEX FOR THE
AFFECTED TIMES ACCORDING TO NASDAQ'S APPLICABLE METHOD FOR CALCULATION OF THE
INDEX AT THE AFFECTED TIME(S). IN THE EVENT THAT NASDAQ IS UNABLE OR UNWILLING
TO RECALCULATE THE INDEX FOR AN AFFECTED PERIOD OF OVER SEVEN CONSECUTIVE
BUSINESS DAYS, NASDAQ WILL REFUND TO THE LICENSEE THE PORTION OF FEES CALCULATED
IN SECTION 11.1. THE CORPORATIONS DO NOT REPRESENT OR WARRANT THAT THE INDEX OR
THE MEANS BY WHICH NASDAQ CALCULATES THE INDEX IS FREE OF DEFECTS. THE
CORPORATIONS DO NOT REPRESENT OR WARRANT THE TIMELINESS, SEQUENCE, ACCURACY OR
COMPLETENESS OF THE CALCULATION OF THE INDEX, OR THAT THE INDEX WILL MEET
LICENSEE'S REQUIREMENTS. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL CONDITIONS
OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY
IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE OR PURPOSE, ANY IMPLIED WARRANTY ARISING FROM TRADE USAGE, COURSE OF
DEALING, OR COURSE OF PERFORMANCE, AND OF ANY OTHER WARRANTY OR OBLIGATION ON
THE PART OF THE CORPORATIONS.
SECTION 11 REFUNDS.
11.1. Where this Section is cross-referenced, the portion of Fees
refunded will be calculated as follows. If an applicable Fee was paid for the
right to Issue a Derivative Product during a period of time, then the amount of
the Fee to be refunded shall be the amount of the Fee times the number of days
in which the affected Derivative Product(s) were permitted under this Agreement
to be Issued, divided by the total number of days in the period. If a Fee was
paid which related to Issuance of an entire Derivative Product, then the amount
of the Fee to be refunded shall be the amount of the Fee actually paid which
related to that portion of that Derivative Product that was affected.
Section 12. Indemnification.
12.1. Nasdaq has registered the Marks in the United States and certain
other countries. In the United States Nasdaq warrants and represents that it has
the right to grant the rights to use the Index and Marks specified in this
Agreement and that the license shall not infringe the title or any patent,
copyright, trade secret, trademark, service ▇▇▇▇, or other proprietary
(Intellectual Property) right of any third party. Nasdaq will as its sole and
entire liability and obligation to Licensee (and any third party or
sub-licensee): defend, indemnify, and hold harmless (Indemnify) Licensee
(including its and its sub-licensee's officers, directors, employees, and
agents) against any and all claims, demands, actions, suits, or proceedings
(Disputes) asserting that the Index or any ▇▇▇▇ infringes any Intellectual
Property right of any third party and Nasdaq will pay the third party the total
amount of any award, judgment, or settlement (including all damages however
designated) awarded to such third party resulting from the Dispute to the extent
caused by failure of Nasdaq's warranty.
12.2. Licensee agrees to Indemnify Corporations (including its and
their officers, directors, employees, and agents) from any and all Disputes as
the result of Licensee (including any sub-licensee) failure to fulfill its
obligations under this Agreement, any Licensee (including any sub-licensee) use
of the Index or any ▇▇▇▇ that is not expressly permitted by
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this Agreement, claims relating to or arising from a Derivative Product, or any
other matter relating or arising out of this Agreement except to the extent
directly caused by actions of the Corporations and will pay the third party the
total amount of any award, judgment, or settlement (including all damages
however designated) awarded such third party resulting from such Dispute except
to the extent directly caused by actions of the Corporations.
12.3. The right to be Indemnified shall apply to a dispute only if:
(a) the party seeking indemnification promptly, and within no more than
5 calendar days of its receipt of notice of such Dispute, gives Notice
to the other party of the Dispute;
(b) the party seeking to be Indemnified cooperates fully with the other
in the defense thereof (such cooperation does not require and is
without waiver by either party of attorney/client, work product, or
other privilege);
(c) the Indemnifying party has sole control of the defense and all
related settlement negotiations.
12.4. In the event of a Dispute involving infringement or if in
Nasdaq's opinion such a Dispute is likely to occur, or if the use of the Index
or ▇▇▇▇ is enjoined, Nasdaq may, at its sole option and expense, procure for
Licensee the right to continue using the Index or ▇▇▇▇, replace or modify the
Index or ▇▇▇▇ to become non-infringing, or terminate the Term of the Agreement
(with a refund of Fees for that Term calculated in Section 11.1.
Section 13. Limitation of Liability. EXCEPT FOR LIABILITY RESULTING
FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE CORPORATIONS AND EXCEPT
TO THE EXTENT STATED IN SECTIONS 12, OR 16, THE TOTAL AMOUNT OF THE
CORPORATIONS' LIABILITY FOR CLAIMS OR LOSSES BASED UPON, ARISING OUT OF,
RESULTING FROM OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS
AGREEMENT, WHETHER BASED UPON CONTRACT, TORT, WARRANTY, OR OTHERWISE, SHALL IN
NO CASE EXCEED THE GREATER OF ONE YEAR'S FEES UNDER THIS AGREEMENT OR $20,000.
THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE CORPORATIONS' LIABILITY
UNDER THIS AGREEMENT. BOTH PARTIES UNDERSTAND AND AGREE THAT THE TERMS OF THIS
AGREEMENT REFLECT A NEGOTIATED AND REASONABLE ALLOCATION OF RISK AND LIMITATIONS
GIVEN COMMERCIAL REALITIES OF THE TRANSACTION.
Section 14. Consequential Damages. EXCEPT AS NOTED IN SECTION 12 AND
EXCEPT FOR A BREACH OF SECTION 16, THE CORPORATIONS SHALL NOT BE LIABLE TO THE
LICENSEE, ANY SUB-LICENSEE, OR ANY OTHER PERSON FOR ANY LOST PROFITS,
ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR INCREASED
EXPENSES OF OPERATION, LOSS OF GOODWILL, FOR LOSS CAUSED IN SALE OF, PURCHASE
OF, OR BY THE DERIVATIVE PRODUCT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE,
OR SPECIAL DAMAGES, EVEN IF THE CORPORATIONS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
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Section 15. Force Majeure. Notwithstanding any other term or condition
of this Agreement, neither Nasdaq nor Licensee shall be obligated to perform or
observe its obligations undertaken in this Agreement (except for obligations to
make payments hereunder) if prevented or hindered from doing so by any
circumstances beyond its control, including, without limitation, acts of God,
perils of the sea and air, fire, flood, drought, war, explosion, sabotage,
terrorism, embargo, civil commotion, acts of any governmental body, supplier
delays, communications, or power failure, equipment or software malfunction, and
labor disputes.
Section 16. Confidentiality. Each party shall protect information
declared by the other to be CONFIDENTIAL, or PROPRIETARY. In fulfilling its
confidentiality obligations, each party shall use a reasonable standard of care,
at least the same standard of care which it uses to protect its own similar
confidential or proprietary information. All confidential or proprietary
information must be conspicuously marked PROPRIETARY or CONFIDENTIAL.
Information revealed orally becomes subject to protection when related to marked
written materials or when designated as PROPRIETARY or CONFIDENTIAL as long as
the designation is confirmed in writing within 10 calendar days of the
designation. Either party (including the Corporations) may disclose information
to the extent demanded by a court, revealed to a government agency with
regulatory jurisdiction over the party (including the Corporations), or in the
party's regulatory responsibilities over its members, associated persons,
issuers, or others under the Exchange Act of 1934, or similar applicable law.
The obligation of non-disclosure shall not extend to: (1) information which is
then already in the possession of the party (including the Corporations) while
not under a duty of non-disclosure; (2) information which is generally known or
revealed to the public or within the applicable industry; (3) information which
is revealed to the party (including the Corporations) by a third party--unless
the party (including the Corporations) knows that such third party is under a
duty of non-disclosure; or (4) information which that party (including the
Corporations) develops independently of the disclosure. Each copy, including its
storage media, shall be marked with all notices which appear on the original.
The obligation of non-disclosure shall survive for a period of three years from
the date of disclosure.
Section 17. Non-use Of NASD Name and Marks. Except as provided
hereunder, Licensee shall not use the names National Association of Securities
Dealers, Inc., The Nasdaq Stock Market, Inc., "NASD", or "Nasdaq", in any
advertising or promotional media without the prior written consent of Nasdaq.
Except as provided hereunder, Licensee shall not use any trademark, service
▇▇▇▇, copyright, or patent of the Corporations, registered or unregistered,
without written consent of Nasdaq.
Section 18. Survival Of Provisions. The terms of this Agreement shall
apply to any rights that survive through the Life of this Agreement, the
cancellation, termination, or rescission of this Agreement,
namely--Confidentiality, Non-Use of NASD Name and Marks, Indemnification, and
any warranties.
Section 19. Cancellation.
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19.1. Either party may elect, without prejudice to any other rights or
remedies, to terminate the Term this Agreement, upon 30 days notice with an
opportunity to cure within the stated period, if the other party has failed to
perform any material obligation under this Agreement.
19.2. Either party may elect, without prejudice to any other rights or
remedies, to terminate the Term of this Agreement without notice, if a petition
in bankruptcy has been filed by or against the other party or the other party
has made an assignment for the benefit of creditors, or a receiver has been
appointed for the other party or any substantial portion of other party's
property, or the other party's or its officers or directors takes action
approving or makes an application for any of the above.
19.3. Licensee represents and warrants that at each time there is any
Issuance of a Derivative Product, that it and each of its sub-licensees and
involved entities shall have all applicable authority to Issue such Derivative
Products and that each such Derivative Product is Issued strictly in accordance
with all applicable legal requirements. Nasdaq may elect, without prejudice to
any other rights or remedies, to terminate the Term of this Agreement with
reasonable notice with an opportunity to cure within such period, if Nasdaq
reasonably believes that any Derivative Product is illegal or has been illegally
Issued, or if the Licensee or any sub-licensee or any involved entity does not
have the power to Issue any of the Derivative Products which it has or is
attempting to Issue.
19.4. Either party may elect, without prejudice to any other rights or
remedies, to terminate the Term of this Agreement with 30 days Notice (or in the
event of an emergency, with such Notice as is practicable), if either party's
ability to perform its obligations under this Agreement is substantially
impaired by any new statute, or new rule, regulation, order, opinion, judgment,
or injunction of the Securities and Exchange Commission (SEC), a court, an
arbitration panel, or governmental body or Self-Regulatory Organization with
jurisdiction over the party.
19.5. Licensee acknowledges that NASD is registered with the SEC as a
registered national securities association pursuant to Section 15A of the United
States Securities and Exchange Act and that as such NASD has a statutory
obligation to protect investors and the public interest, that Section 19(g)(1)
of the Act mandates that NASD, as a self-regulatory organization, comply with
the provisions of the Act, the rules and regulations thereunder, and its own
rules. Accordingly, Licensee agrees that Nasdaq, as a subsidiary of NASD, when
required to do so by NASD, may by written Notice to Licensee unilaterally limit
or terminate the Term of this Agreement or Licensee's right to Issue certain
Derivative Products. Licensee shall have available to it those procedural
protections provided by the Act and applicable rules thereunder.
Section 20. Subsequent Parties; Limited Relationship. The Agreement
shall inure to the benefit of and shall be binding upon the parties hereto and
their respective permitted successors, or assigns. Licensee shall not assign
this Agreement (including by operation of law) without the written consent of
Nasdaq. Nothing in the Agreement, express or implied, is intended to or shall
(a) confer on any person other than the parties hereto (and any of the
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Corporations), or their respective permitted successors or assigns, any rights
to remedies under or by reason of this Agreement; (b) constitute the parties
hereto partners or participants in a joint venture; or (c) appoint one party the
agent of the other.
Section 21. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes all prior negotiations, communications, writings, and understandings.
Section 22. Governing Law. This Agreement shall be deemed to have been
made in the United States, District of Columbia and shall be construed and
enforced in accordance with, and the validity and performance hereof shall be
governed by, the laws of the District of Columbia, without reference to
principles of conflicts of laws thereof. Licensee hereby consents to submit to
the jurisdiction of the courts for or in the District of Columbia in connection
with any action or proceeding instituted relating to this Agreement.
Section 23. Authorization. This Agreement shall not be binding upon a
party unless executed by an authorized officer of that party. Licensee, Nasdaq,
and the persons executing this Agreement represent that such persons are duly
authorized by all necessary and appropriate corporate or other action to execute
the Agreement on behalf of Nasdaq or Licensee.
Section 24. Headings. Section Headings are included for convenience
only and are not to be used to construe or interpret this Attachment.
Section 25. Notices. All notices, invoices, and other communications
required to be given in writing under this Agreement shall be directed to the
persons identified in subsections (a) and (b) below and shall be deemed to have
been duly given upon actual receipt by the parties, or upon constructive receipt
if sent by certified mail, return receipt requested (as of the date of signature
or of first refusal of the return receipt), or by any other delivery method
which obtains a signed delivery receipt, addressed to the person named below to
the following addresses or to such other address as any party hereto shall
hereafter specify by written notice to the other party or parties hereto:
(a) if to Licensee:
Name:_________________________________________
Title: _________________________________________
Address: ______________________________________
______________________________________
______________________________________
Telephone #: _________________________________
(b) if to Nasdaq:
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address: The Nasdaq Stock Market, Inc.
Second Floor
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
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Telephone #: (▇▇▇) ▇▇▇-▇▇▇▇
With, in the event of notices of Dispute or default, a required copy
to:
The Nasdaq Stock Market, Inc.
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Attn: Office of General Counsel - Nasdaq Contracts Group
Section 26. Amendment, Waiver, and Severability. Except as otherwise
provided herein, no provision of this Agreement may be amended, modified, or
waived, unless by an instrument in writing executed by a duly authorized officer
of the party against whom enforcement of such amendment, modification, or waiver
is sought (Consent).
26.1. No failure on the part of Nasdaq or Licensee to exercise, no
delay in exercising, and no course of dealing with respect to any right, power,
or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power, or privilege preclude
any other or further exercise thereof or the exercise of any other right, power,
or privilege under this Agreement.
26.2. If any of the provisions of this Agreement, or application
thereof to any person or circumstance, shall to any extent be held invalid or
unenforceable, the remainder of this Agreement, or the application of such terms
or provisions to persons or circumstances other than those as to which they are
held invalid or unenforceable, shall not be affected thereby and each such term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
Section 27. Counterparts. The Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and such counterparts
together shall constitute but one and the same instrument.
Section 28. Schedule of Attachments. The following Attachments are
referred to in this Agreement and are incorporated as if set forth in full
herein. In the event of a conflict between the Attachments and this Agreement,
the Attachments shall govern:
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Attachment I. -- Sub-licensees
Attachment I. -- Definition of Derivative Products and Prices
[This Space Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
__________________________________________ (Licensee)
By: __________________________________________
Name: __________________________________________
Title: __________________________________________
AUTHORIZED OFFICER
Date: __________________________________________
Executed this ______ day of _____________________, 19 ____, for and on behalf
of:
The Nasdaq Stock Market, Inc. (Nasdaq)
By: __________________________________________
Name: __________________________________________
Title: __________________________________________
AUTHORIZED OFFICER
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ATTACHMENT I.
-------------
Permitted Sub-Licensees of ________________________________________
Page 13
ATTACHMENT II.
--------------
Definition of Derivative Products and Prices
--------------------------------------------
No Derivative Product may be an instrument issued by the Options Clearing
Corporation (OCC) or another clearing agency registered under Section 17 of the
Securities Exchange Act of 1934 or any instrument exclusively regulated by the
Commodity Futures Trading Commission (FCTC) or an option on such instruments. A
Derivative Product may only be listed or traded on a Non-American Market. A
"Non-American Market" means any financial instrument (including equities,
options, futures, debt, etc.) exchange or market not located in the Americas and
one not registered with any securities regulatory agency or body in the
Americas.
Description of Product(s)
-------------------------
[Licensee to supply first draft of description of product]
FEE
---
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