Agreement for Nasdaq-100(R) Index-Related Derivative Products
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 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 and The Victory
Portfolios (Licensee), whose principal offices are located at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, XX 00000.
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 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. 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.
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).
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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.
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.
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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.
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):
Nasdaq(R), Nasdaq-100(R), and Nasdaq-100 Index(R) are registered trademarks
of The Nasdaq Stock Market, Inc. (which with its affiliates are the
"Corporations") and are licensed by the Fund. The Fund has not been passed
on by the Corporations as to its legality or suitability. The Fund is not
issued, endorsed, sold, or promoted by the Corporations.
The Corporations make no express or implied warranties, and disclaim all
warranties including all warranties of merchantability or fitness for a
particular purpose with respect to the Fund/Index (meaning the Nasdaq-100
Index, the Fund, their use, the results to be obtained from their use,
and/or any data included therein). The Corporations shall have no liability
for any damages, claims, losses, or expenses with respect to the
Fund/Index. The Corporations shall have no liability for any lost profits
or special, punitive, incidental, indirect, or consequential damages, even
if notified of the possibility of such damages.
For more details, see the disclaimer in the Statement of Additional
Information.
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 The Victory Portfolios. The
product(s) have not been passed on by the Corporations 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).
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Section 9. Sub-Licensees. Licensee may sub-license the use of the Index by
thesubsidiaries 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 enforceable under applicable local law
and contains the provisions set forth in Attachment III, modified solely to make
them enforceable under applicable local law(s). Licensee may not waive any
provision of the sub-license or of this Agreement without Consent of Nasdaq.
Section 10. Limited Warranty. Nasdaq warrants that it will calculate the
Index in accordance with its then applicable method for calculation of the
Index. LICENSEE'S SOLE REMEDY IN EVENT OF A FAILURE OF THIS WARRANTY IS TO HAVE
NASDAQ RECALCULATE THE INDEX FOR THE AFFECTED TIMES ACCORDING TO NASDAQ'S
APPLICABLE METHOD FOR CALCULATION OF THE INDEX AT THE AFFECTED TIME(S). IN THE
EVENT THAT NASDAQ IS UNABLE OR UNWILLING TO RECALCULATE THE INDEX FOR AN
AFFECTED PERIOD OF OVER SEVEN CONSECUTIVE BUSINESS DAYS, NASDAQ WILL REFUND TO
THE LICENSEE THE PORTION OF FEES CALCULATED IN SECTION 11. THE CORPORATIONS DO
NOT REPRESENT OR WARRANT THAT THE INDEX OR THE MEANS BY WHICH NASDAQ CALCULATES
THE INDEX IS FREE OF DEFECTS. THE CORPORATIONS DO NOT REPRESENT OR WARRANT THE
TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE CALCULATION OF THE INDEX,
OR THAT THE INDEX WILL MEET LICENSEE'S REQUIREMENTS. THE FOREGOING WARRANTIES
ARE IN LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED CONDITIONS OR WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, ANY IMPLIED WARRANTY
ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND OF
ANY OTHER WARRANTY OR OBLIGATION ON THE PART OF THE CORPORATIONS.
Section 11. Refunds. Where this Section is cross-referenced, the portion of
Fees refunded will be calculated as follows. If an applicable Fee was paid for
the right to Issue a Derivative Product during a period of time, then the amount
of the Fee to be refunded shall be the amount of the Fee times the number of
days 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
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use the Index and Marks specified in this Agreement and that the license shall
not infringe the title or any patent, copyright, trade secret, trademark,
service xxxx, or other proprietary (Intellectual Property) right of any third
party. Nasdaq will as its sole and entire liability and obligation to Licensee
(and any third party or sub-licensee): defend, indemnify, and hold harmless
(Indemnify) Licensee (including its and its sub-licensee's officers, directors,
employees, and agents) against any and all claims, demands, actions, suits, or
proceedings (Disputes) asserting that the Index or any Xxxx infringes any
Intellectual Property right of any third party and Nasdaq will pay the third
party the total amount of any award, judgment, or settlement (including all
damages however designated) awarded to such third party resulting from the
Dispute to the extent caused by failure of Nasdaq's warranty.
12.2. Licensee agrees to Indemnify Corporations (including its and their
officers, directors, employees, and agents) from any and all Disputes as the
result of Licensee (including any sub-licensee) failure to fulfill its
obligations under this Agreement, any Licensee (including any sub-licensee) use
of the Index or any Xxxx that is not expressly permitted by this Agreement,
claims relating to or arising from a Derivative Product, or any other matter
relating or arising out of this Agreement except to the extent directly caused
by actions of the Corporations and will pay the third party the total amount of
any award, judgment, or settlement (including all damages however designated)
awarded such third party resulting from such Dispute except to the extent
directly caused by actions of the Corporations.
12.3. The right to be Indemnified shall apply to a dispute only if:
(a) the party seeking indemnification promptly, and within no more than 5
calendar days of its receipt of notice of such Dispute, gives Notice to the
other party of the Dispute;
(b) the party seeking to be Indemnified cooperates fully with the other in
the defense thereof (such cooperation does not require and is without
waiver by either party of attorney/client, work product, or other
privilege);
(c) the Indemnifying party has sole control of the defense and all related
settlement negotiations.
12.4. In the event of a Dispute involving infringement or if in Nasdaq's
opinion such a Dispute is likely to occur, or if the use of the Index or Xxxx is
enjoined, Nasdaq may, at its sole option and expense, procure for Licensee the
right to continue using the Index or Xxxx, replace or modify the Index or Xxxx
to become non-infringing, or terminate the Term of the Agreement (with a refund
of Fees for that Term calculated in Section 11).
Section 13. Limitation of Liability.
13.1 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
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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.
13.2 Nasdaq acknowledges the following limitation of liability: The terms
"The Victory Portfolios" and "Trustees" refer, respectively, to the trust
created and the Trustees, as trustees but not individually or personally, acting
from time to time under the Trust Instrument, to which reference is hereby made
and a copy of which is on file at the office of the Secretary of State of the
State of Delaware, such reference being inclusive of any and all amendments
thereto so filed or hereafter filed. The obligations of "The Victory Portfolios"
entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities and
are not binding upon any of the Trustees, shareholders or representatives of
Licensee personally, but bind only the assets of Licensee, and all persons
dealing with Licensee must look solely to the assets of Licensee for the
enforcement of any claims against Licensee.
Section 14. Consequential Damages. EXCEPT AS NOTED IN SECTION 12 AND EXCEPT
FOR A BREACH OF SECTION 16, THE CORPORATIONS SHALL NOT BE LIABLE TO THE
LICENSEE, ANY SUB-LICENSEE, OR ANY OTHER PERSON FOR ANY LOST PROFITS,
ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR INCREASED
EXPENSES OF OPERATION, LOSS OF GOODWILL, FOR LOSS CAUSED IN SALE OF, PURCHASE
OF, OR BY THE DERIVATIVE PRODUCT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE,
OR SPECIAL DAMAGES, EVEN IF THE CORPORATIONS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Section 15. Force Majeure. Notwithstanding any other term or condition of
this Agreement, neither Nasdaq nor Licensee shall be obligated to perform or
observe its obligations undertaken in this Agreement (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
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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 xxxx,
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.
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.
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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 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.
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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: Xxxxxx Xxxxxxxx
Title: Secretary
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone #: (000) 000-0000
(b) if to Nasdaq:
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Address: The Nasdaq Stock Market, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone #: (000) 000-0000
With, in the event of notices of Dispute or default, a required
copy to:
The Nasdaq Stock Market, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
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
10
each such term and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
Section 27. Counterparts. The Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and such counterparts
together shall constitute but one and the same instrument.
Section 28. Schedule of Attachments. The following Attachments are referred
to in this Agreement and are incorporated as if set forth in full herein. In the
event of a conflict between the Attachments and this Agreement, the Attachments
shall govern:
Attachment I. -- Sub-Licensees
Attachment II. -- Definition of Derivative Products and Prices
Attachment III. -- Nasdaq Index Sub-license Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
The Victory Portfolios (Licensee)
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
AUTHORIZED OFFICER
Date: June 1, 2000
------------------------------------------
Executed this 31st day of May, 2000, for and on behalf of:
The Nasdaq Stock Market, Inc. (Nasdaq)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------------------
Title: Senior Vice President
-------------------------------------------
AUTHORIZED OFFICER
11
ATTACHMENT I.
Permitted Sub-Licensees of The Victory Portfolios
N/A
12
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)
The Victory Portfolios is an open ended, non-diversified investment company
seeking to provide long term capital appreciation. The Fund pursues its
investment objective by attempting to duplicate the performance of the
Nasdaq-100 Index(R).
FEES
The annual License Fees shall be the greater of $10,000 (the "Minimum Annual
Fee") or four basis points (.04%) of the AVERAGE ANNUAL DAILY net assets of the
Product ACCRUED DAILY AND PAYABLE quarterly. The Minimum Annual Fee shall be
payable on the Commencement Date and each one-year anniversary thereof. Amounts
in excess of the Minimum Annual Fee shall be paid to Nasdaq within thirty (30)
days after the close of each calendar quarter in which they are incurred; each
such payment shall be accompanied by a statement setting forth the basis for its
calculation. In addition, at year end a statement providing average daily net
assets at each month end must be provided.
13
ATTACHMENT III.
Nasdaq Index Sub-License Agreement
THIS AGREEMENT, is made by and between ______________________________
(Licensee), whose principal offices are located at
_____________________________________ which is a Licensee of 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
affiliates are collectively referred to as the Corporations), whose principal
offices are located at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 and
____________________________ (Sub-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;
WHEREAS, Nasdaq and Licensee have previously entered into a separate
agreement concerning use of the Index and Marks in relating to certain
Derivative Products (License Agreement); and
WHEREAS, Sub-Licensee is either: (1) an affiliate or subsidiary under the
control of Licensee which desires to use the Index as a component of a pricing
or settlement mechanism for the Derivative Products; or (2) a necessary
participant in a Derivative Product (e.g., a corporation Issuing a corporate
bond with the Licensee as underwriter and utilizing the Index as a pricing
component) Issued by Licensee or an authorized Sub-Licensee affiliate or
subsidiary under the control of Licensee; and
WHEREAS, Licensee is legally authorized to shares of the fund, or issue,
enter into, write, sell, purchase and/or renew (Issue, Issuing, or Issuance)
such Derivative Products, and each Derivative Products will be Issued as legally
required under applicable law;
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained, Licensee and Nasdaq, intending to be legally
bound, agree as follows:
Section 1. Scope of Sub-License. Sub-Licensee hereby acknowledges that it
has received, reviewed, and understands the License Agreement entered into
between Licensee and Nasdaq relating to use of the Index and Marks. Except as
noted herein, Sub-Licensee hereby agrees to obligate itself to all the terms,
conditions, and obligations of that License Agreement as if Sub-Licensee were
the Licensee. Sub-Licensee agrees that Nasdaq may exercise any rights against
Sub-Licensee (including, for example, limitation of liability, indemnification,
or audit rights) Nasdaq has against the Licensee to the same extent as if
Sub-Licensee were directly contracting with Nasdaq. Sub-Licensee agrees it will
not assert against Nasdaq any
14
defense, claim, or right Sub-Licensee may have against Licensee, including those
of set-off, abatement, counter-claim, contribution, or indemnification.
Section 2. No Further Sub-License. All references in the License Agreement
to sub-licenses and sub-licensees, including any right of sub-licensee to grant
further sub-licenses or to permit further sub-licensees are not applicable to
this Sub-Licensee Agreement and are as if deleted from the License Agreement.
Section 3. Term. The Term of this Sub-License Agreement automatically
terminates, without Notice, if the Term of the License Agreement terminates for
any reason.
Section 4. General Provisions. Sections from 21, through and including,
Section 27 of the License Agreement govern this Sub-License Agreement. All terms
and definitions used in this Sub-License Agreement, unless otherwise indicated,
have the same meanings and definitions as in the License Agreement. LICENSEE HAS
NO AUTHORITY TO WAIVE, RENEGOTIATE, OR FORGIVE ANY PROVISION OF THE LICENSE
AGREEMENT AS IT APPLIES TO SUB-LICENSEE.
IN WITNESS WHEREOF, the parties hereto have caused this Sub-License
Agreement to be executed by their duly authorized officers.
______________________________________________________
(Licensee)
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
AUTHORIZED OFFICER
Date: ______________________________________________
______________________________________________________
(Sub-Licensee)
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
AUTHORIZED OFFICER
Date: ______________________________________________
15
