Exhibit H(9)
EXHIBIT H(9)
LICENSE AGREEMENT
LICENSE AGREEMENT, dated as of February 19, 1999 (the "Commencement
Date") by and between STANDARD & POOR'S, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P"), a New York corporation, having an office at 00
Xxxxxxxx, Xxx Xxxx, XX 00000, and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
("Licensee"), a Wisconsin corporation having an office at 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS, S&P compiles, calculates, maintains and owns rights in and to
the S&P MidCap 400 Index and to the proprietary data therein contained (such
rights being hereinafter individually and collectively referred to as the "S&P
MidCap 400 Index"); and
WHEREAS, S&P uses in commerce and has trade name and trademark rights
to the designations "Standard & Poor's-Register Xxxx-", "S&P-Register
Xxxx-", "S&P MidCap 400 Index" and "Standard & Poor's MidCap Index", in
connection with the S&P MidCap 400 Index (such rights being hereinafter
individually and collectively referred to as the "S&P Marks"); and
WHEREAS, Licensee wishes to use the S&P MidCap 400 Index, either
(i) directly or (ii) through a separate arrangement between Licensee and the
issuer, distributor, advisor and/or sponsor of an investment product, the
returns of which are based on the S&P MidCap 400 Index, as a component of the
product or products described in Exhibit A attached hereto and made a part
hereof (individually and collectively referred to as the "Product"); and
WHEREAS, Licensee wishes to use the S&P Marks in connection with the
issuance, marketing and/or promotion of the Product and in connection with
making disclosure about the Product under applicable law, rules and regulations
in order to indicate that S&P is the source of the S&P MidCap 400 Index; and
WHEREAS, Licensee wishes to obtain S&P's authorization to use the S&P
MidCap 400 Index and the S&P Marks in connection with the Product pursuant to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT OF LICENSE.
(a) Subject to the terms and conditions of this Agreement, S&P hereby
grants to Licensee a non-transferable, non-exclusive license (i) to use the S&P
MidCap 400 Index as a component of the Product, either (A) directly or (B)
indirectly through an arrangement between Licensee and the issuer, distributor,
advisor and/or sponsor of an investment product, the returns of which are based
on the S&P MidCap 400 Index, to be marketed and/or promoted by Licensee and (ii)
to use and refer to the S&P Marks in connection with the distribution, marketing
and promotion of the Product (including in the name of the Product) and in
connection with making such disclosure about the Product as Licensee deems
necessary or desirable under any applicable law, rules, regulations or
provisions of this Agreement, but, in each case, only to the extent necessary to
indicate the source of the S&P MidCap 400 Index. It is expressly agreed and
understood by Licensee that no rights to use the S&P MidCap 400 Index and the
S&P Marks are granted hereunder other than those specifically described and
expressly granted herein.
(b) Licensee agrees and acknowledges that the license granted pursuant
to this Agreement is limited to the Product(s) identified and described in
Exhibit A and that if Licensee wishes to use the S&P MidCap 400 Index and/or S&P
Marks in connection with any additional Product(s), it shall first be required
to enter into a written amendment to this Agreement on terms mutually acceptable
to S&P and Licensee.
2. TERM.
The term of this Agreement shall commence on the Commencement Date and
shall continue in effect thereafter until it is terminated in accordance with
its terms.
3. LICENSE FEES.
(a) Licensee shall pay to S&P the license fees ("License Fees")
specified and provide the data called for in Exhibit B, attached hereto and made
a part hereof.
(b) During the term of this Agreement and for a period of one (1) year
after its termination, S&P shall have the right, during normal business hours
and upon reasonable notice to Licensee, to audit on a confidential basis the
relevant books and records of Licensee to determine that License Fees have been
accurately determined. The costs of such audit shall be borne by S&P unless it
determines that it has been underpaid by five percent (5%) or more; in such
case, costs of the audit shall be paid by Licensee.
4. TERMINATION.
(a) At any time during the term of this Agreement, either party may give
the other party sixty (60) days prior written notice of termination if the
terminating party believes in good faith that material damage or harm is
occurring to the reputation or goodwill of that party by reason of its continued
performance hereunder, and such notice shall be effective on the date specified
therein of such termination, unless the other party shall correct the condition
causing such damage or harm within the notice period.
(b) In the case of breach of any of the material terms or conditions of
this Agreement by either party, the other party may terminate this Agreement by
giving sixty (60) days prior written notice of its intent to terminate, and such
notice shall be effective on the date specified therein for such termination
unless the breaching party shall correct such breach within the notice period.
(c) S&P shall have the right, in its sole discretion, to cease
compilation and publication of the S&P MidCap 400 Index and, in such event, to
terminate this Agreement if S&P does not offer a replacement or substitute
index. In the event that S&P intends to discontinue the S&P MidCap 400 Index,
S&P shall give
Licensee at least one (1) year's written notice prior to such discontinuance,
which notice shall specify whether a replacement or substitute index will be
made available.
Licensee shall have the option hereunder within sixty (60) days after
receiving such written notice from S&P to notify S&P in writing of its intent to
use the replacement or substitute index, if any, under the terms of this
Agreement. In the event that Licensee does not exercise such option or no
substitute or replacement index is made available, this Agreement shall be
terminated as of the date specified in the S&P notice and the License Fees to
the date of such termination shall be computed as provided in Subsection 4(f).
(d) Licensee may terminate this Agreement upon ninety (90) days prior
written notice to S&P if (i) Licensee is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in
Licensee's reasonable judgment materially impairs Licensee's ability to market
and/or promote the Product; (ii) any material litigation or regulatory
proceeding regarding the Product is threatened or commenced; or (iii) Licensee
elects to terminate the public offering or other distribution of the Product or
the investment objective of the Product is no longer to track the performance of
the S&P MidCap 400 Index, as may be applicable. In such event the License Fees
to the date of such termination shall be computed as provided in Subsection
4(f).
(e) S&P may terminate this Agreement upon ninety (90) days (or upon such
lesser period of time if required pursuant to a court order) prior written
notice to Licensee if (i) S&P is informed of the final adoption of any
legislation or regulation or the issuance of any interpretation that in S&P's
reasonable judgment materially impairs S&P's ability to license and provide the
S&P MidCap 400 Index and S&P Marks under this Agreement in connection with such
Product; or (ii) any litigation or proceeding is threatened or commenced and S&P
reasonably believes that such litigation or proceeding would have a material and
adverse effect upon the S&P Marks and/or the S&P MidCap 400 Index or upon the
ability of S&P to perform under this Agreement. In such event the
License Fees to the date of such termination shall be computed as provided in
Subsection 4(f).
(f) In the event of termination of this Agreement as provided in
Subsections 4(a), (b), (c), (d) or (e), the License Fees to the date of such
termination shall be computed by prorating the amount of the applicable annual
License Fees shown in Exhibit B on the basis of the number of elapsed days in
the current term.
(g) Upon termination of this Agreement, Licensee shall cease to use the
S&P MidCap 400 Index and the S&P Marks in connection with the Product; provided
that Licensee may continue to utilize any previously printed materials which
contain the S&P Marks for a period of ninety (90) days following such
termination.
5. S&P'S OBLIGATIONS.
(a) It is the policy of S&P to prohibit its employees who are directly
responsible for changes in the components of the S&P MidCap 400 Index from
purchasing or beneficially owning any interest in the Product and S&P believes
that its employees comply with such policy. Licensee shall have no
responsibility for ensuring that such S&P employees comply with such S&P policy
and shall have no duty to inquire whether any investors or sellers of the
Product are such S&P employees. S&P shall have no liability to the Licensee with
respect to its employees' adherence or failure to adhere to such policy.
(b) S&P shall not and is in no way obliged to engage in any marketing or
promotional activities in connection with the Product or in making any
representation or statement to investors or prospective investors in connection
with the promotion by Licensee of the Product.
(c) S&P agrees to provide reasonable support for Licensee's development
and educational efforts with respect to the Product as follows: (i) S&P shall
provide Licensee, upon request but subject to any agreements of confidentiality
with respect thereto, copies of the results of any marketing research conducted
by or on behalf of S&P with respect to the S&P MidCap 400 Index;
and (ii) S&P shall respond in a timely fashion to any reasonable requests for
information by Licensee regarding the S&P MidCap 400 Index.
(d) S&P or its agent shall calculate and disseminate the S&P MidCap 400
Index at least once each fifteen (15) seconds in accordance with its current
procedures, which procedures may be modified by S&P.
(e) S&P shall promptly correct or instruct its agent to correct any
mathematical errors made in S&P's computations of the S&P MidCap 400 Index which
are brought to S&P's attention by Licensee, provided that nothing in this
Section 5 shall give Licensee the right to exercise any judgment or require any
changes with respect to S&P's method of composing, calculating or determining
the S&P MidCap 400 Index; and, provided further, that nothing herein shall be
deemed to modify the provisions of Section 9 of this Agreement.
6. INFORMATIONAL MATERIALS REVIEW.
Licensee shall use its best efforts to protect the goodwill and
reputation of S&P and of the S&P Marks in connection with its use of the S&P
Marks under this Agreement. Licensee shall submit to S&P for its review and
approval all informational materials pertaining to and to be used in connection
with the Product, including, where applicable, all prospectuses, plans,
registration statements, application forms, contracts, videos, advertisements,
brochures and promotional and any other similar informational materials
(including documents required to be filed with governmental or regulatory
agencies) that in any way use or refer to S&P, the S&P MidCap 400 Index, or the
S&P Marks (the "Informational Materials"). S&P's approval shall be required with
respect to the use of and description of S&P, the S&P Marks and the S&P MidCap
400 Index and shall not be unreasonably withheld or delayed by S&P.
Specifically, S&P shall notify Licensee of its
approval or disapproval of any Informational Materials within forty-eight (48)
hours (excluding Saturday, Sunday and New York Stock Exchange Holidays)
following receipt thereof from Licensee. Any disapproval shall indicate S&P's
reasons therefor. Any failure by S&P to respond within such forty-eight (48)
hour period shall be deemed to constitute a waiver of S&P's right to review such
Informational Materials. Informational Materials shall be addressed to S&P, c/o
Xxxxxx Xxxxxxxxxx, Specialist - Index Licensing/Marketing, Equity Index
Services, at the address specified in Subsection 12(d). Informational Materials
may be submitted via facsimile (to 000-000-0000 or 212-412-0429) if they are
less than 20 pages and legible after transmission. Once Informational Materials
have been approved by S&P, subsequent Informational Materials which do not alter
the use or description of S&P, the S&P Marks or the S&P MidCap 400 Index need
not be submitted for review and approval by S&P.
7. PROTECTION OF VALUE OF LICENSE.
(a) During the term of this Agreement, S&P shall use its best efforts to
maintain in full force and effect federal registrations for "Standard &
Poor's-Register Xxxx-" and "S&P-Register Xxxx-". S&P shall at S&P's own expense
and sole discretion exercise S&P's common law and statutory rights against
infringement of the S&P Marks, copyrights and other proprietary rights.
(b) Licensee shall cooperate with S&P in the maintenance of such rights
and registrations and shall take such actions and execute such instruments as
S&P may from time to time reasonably request, and shall use the following notice
when referring to the S&P MidCap 400 Index or the S&P Marks in any Informational
Material:
"Standard & Poor's-Register Xxxx-", "S&P-Register Xxxx-", "Standard &
Poor's MidCap 400 Index", and "S&P MidCap 400 Index" are trademarks
of The XxXxxx-Xxxx Companies, Inc. and have been licensed for use by
The Northwestern Mutual Life Insurance
Company. The Product is not sponsored, endorsed, sold or
promoted by Standard & Poor's and Standard & Poor's makes no
representation regarding the advisability of investing in the
Product. [Please see the Statement of Additional Information
which sets forth certain additional disclaimers and limitations
of liabilities on behalf of S&P.]
or such similar language as may be approved in advance by S&P, it being
understood that such notice need only refer to the specific S&P Marks referred
to in the Informational Material.
8. PROPRIETARY RIGHTS.
(a) Licensee acknowledges that the S&P MidCap 400 Index is selected,
coordinated, arranged and prepared by S&P through the application of methods and
standards of judgment used and developed through the expenditure of considerable
work, time and money by S&P. Licensee also acknowledges that the S&P MidCap 400
Index and the S&P Marks are the exclusive property of S&P, that S&P has and
retains all proprietary rights therein (including, but not limited to trademarks
and copyrights) and that the S&P MidCap 400 Index and its compilation and
composition and changes therein are in the control and discretion of S&P.
(b) S&P reserves all rights with respect to the S&P MidCap 400 Index and
the S&P Marks except those expressly licensed to Licensee hereunder.
(c) Each party shall treat as confidential and shall not disclose or
transmit to any third party any documentation or other written materials that
are marked as "Confidential and Proprietary" by the providing party
("Confidential Information"). Confidential Information shall not include (i) any
information that is available to the public or to the receiving party hereunder
from sources other than the providing party (provided that such source is not
subject to a confidentiality agreement with regard to such information) or (ii)
any information that is independently developed by the receiving party without
use of or reference to information from the providing party. Notwithstanding the
foregoing, either party may reveal Confidential Information to
any regulatory agency or court of competent jurisdiction if such information to
be disclosed is (a) approved in writing by the other party for disclosure or (b)
required by law, regulatory agency or court order to be disclosed by a party,
provided, if permitted by law, that prior written notice of such required
disclosure is given to the other party and provided further that the providing
party shall cooperate with the other party to limit the extent of such
disclosure. The provisions of this Sub-section 8(c) shall survive any
termination of this Agreement for a period of five (5) years from disclosure by
either party to the other of the last item of such Confidential Information.
9. WARRANTIES; DISCLAIMERS.
(a) S&P represents and warrants that S&P has the right to grant the
rights granted to Licensee herein and that the license granted herein shall not
infringe any trademark, copyright or other proprietary right of any person not a
party to this Agreement.
(b) Licensee agrees expressly to be bound itself by and furthermore to
include all of the following disclaimers and limitations in each prospectus or
each Statement of Additional Information ("SAI") relating to the Product,
provided the SAI is incorporated by reference into the prospectus and the
prospectus contains disclosure regarding the S&P MidCap 400 Index that conforms
to the notice in Subsection 7(b), including a cross reference to the SAI
disclosure. Licensee shall furnish a copy of the prospectus and SAI thereof to
S&P:
The Product is not sponsored, endorsed, sold or promoted by Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"). S&P makes no
representation or warranty, express or implied, to the owners of the Product or
any member of the public regarding the advisability of investing in securities
generally or in the Product particularly or the ability of the S&P MidCap 400
Index to track general stock market performance. S&P's only relationship to the
Licensee is the licensing of certain trademarks and trade names of S&P and of
the S&P MidCap 400 Index which is determined, composed and calculated by S&P
without regard to the Licensee or the Product. S&P has no obligation to take the
needs of the Licensee or the owners of the Product into consideration in
determining, composing or calculating the S&P MidCap 400 Index. S&P is not
responsible for and has not participated in the determination of the prices and
amount of the Product or the timing of the issuance or sale of the Product or in
the determination or calculation of the equation by which the Product is to be
converted into cash. S&P has no obligation or liability in connection with the
administration, marketing or trading of the Product.
S&P DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE S&P
MIDCAP 400 INDEX OR ANY DATA INCLUDED THEREIN AND S&P SHALL HAVE NO LIABILITY
FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. S&P MAKES NO WARRANTY,
EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY LICENSEE, OWNERS OF THE
PRODUCT, OR ANY OTHER PERSON OR ENTITY FROM THE USE OF THE S&P MidCap 400 INDEX
OR ANY DATA INCLUDED THEREIN. S&P MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND
EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE WITH RESPECT TO THE S&P MIDCAP 400 INDEX OR ANY DATA
INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL S&P
HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
Any changes in the foregoing disclaimers and limitations must be
approved in advance in writing by an authorized officer of S&P.
(c) 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
performance does not violate any laws, regulations or agreements applicable to
it.
(d) Licensee represents and warrants to S&P that the Product shall at
all times comply with the description in Exhibit A.
(e) Licensee represents and warrants to S&P that the Product shall not
violate any applicable law, including but not limited to banking, commodities
and securities laws.
(f) Neither party shall have any liability for lost profits or indirect,
punitive, special, or consequential damages arising out of this Agreement, even
if notified of the possibility of such damages. Without diminishing the
disclaimers and limitations set forth in Subsection 9(b), in no event shall the
cumulative liability of S&P to Licensee exceed the average annual License Fees
actually paid to S&P hereunder.
(g) Use of any marks by Licensee in connection with its Product
(including in the name of such Product) which are not the S&P Marks is at
Licensee's sole risk.
(h) The provisions of this Section 9 shall survive any termination of
this Agreement.
10. INDEMNIFICATION.
(a) Licensee shall indemnify and hold harmless S&P, its affiliates and
their officers, directors, employees and agents against any and all judgments,
damages, costs or losses of any kind (including reasonable attorneys' and
experts' fees) as a result of any claim, action, or proceeding that arises out
of or relates to (a) this Agreement, except insofar as it relates to a breach by
S&P of its representations or warranties hereunder, or (b) the Product;
provided, however, that S&P notifies Licensee promptly of any such claim, action
or proceeding. Licensee shall periodically reimburse S&P for its reasonable
expenses incurred under this Subsection 10(a). S&P shall have the right, at its
own expense, to participate in the defense of any claim, action or proceeding
against which it is indemnified hereunder; provided, however, it shall have no
right to control the defense, consent to judgment, or agree to settle any such
claim, action or proceeding without the written consent of Licensee without
waiving the indemnity hereunder. Licensee, in the defense of any such claim,
action or proceeding except with the written consent of S&P, shall not consent
to entry of any judgment or enter into any settlement which either (a) does not
include, as an unconditional term, the
grant by the claimant to S&P of a release of all liabilities in respect of such
claims or (b) otherwise adversely affects the rights of S&P. This provision
shall survive the termination or expiration of this Agreement.
(b) S&P shall indemnify and hold harmless Licensee, its affiliates and
their officers, directors, employees and agents against any and all judgments,
damages, costs or losses of any kind (including reasonable attorneys' and
experts' fees) as a result of any claim, action, or proceeding that arises out
of or relates to any breach by S&P of its representations or warranties under
this Agreement; provided, however, that (a) Licensee notifies S&P promptly of
any such claim, action or proceeding; (b) Licensee grants S&P control of its
defense and/or settlement; and (c) Licensee cooperates with S&P in the defense
thereof. S&P shall periodically reimburse Licensee for its reasonable expenses
incurred under this Subsection 10(b). Licensee shall have the right, at its own
expense, to participate in the defense of any claim, action or proceeding
against which it is indemnified hereunder; provided, however, it shall have no
right to control the defense, consent to judgment, or agree to settle any such
claim, action or proceeding without the written consent of S&P without waiving
the indemnity hereunder. S&P, in the defense of any such claim, action or
proceeding, except with the written consent of Licensee, shall not consent to
entry of any judgment or enter into any settlement which either (a) does not
include, as an unconditional term, the grant by the claimant to Licensee of a
release of all liabilities in respect of such claims or (b) otherwise adversely
affects the rights of Licensee. This provision shall survive the termination or
expiration of this Agreement.
11. SUSPENSION OF PERFORMANCE.
Neither S&P nor Licensee shall bear responsibility or liability for any
losses arising out of any delay in or interruptions of their respective
performance of their obligations under this Agreement due to any act of God, act
of governmental authority, act of the 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, or other work
stoppage or slow down), severe or adverse
weather conditions, communications line failure, or other similar cause beyond
the reasonable control of the party so affected.
12. OTHER MATTERS.
(a) This Agreement is solely and exclusively between the parties hereto
and shall not be assigned or transferred by either party, without prior written
consent of the other party, and any attempt to so assign or transfer this
Agreement without such written consent shall be null and void.
(b) This Agreement constitutes the entire agreement of the parties
hereto with respect to its subject matter and may be amended or modified only by
a writing signed by duly authorized officers of both parties. This Agreement
supersedes all previous agreements between the parties with respect to the
subject matter of this Agreement. There are no oral or written collateral
representations, agreements, or understandings except as provided herein.
(c) No breach, default, or threatened breach of this Agreement by either
party shall relieve the other party of its obligations or liabilities under this
Agreement with respect to the protection of the property or proprietary nature
of any property which is the subject of this Agreement.
(d) Except as set forth in Section 6 hereof with respect to
Informational Materials, all notices and other communications under this
Agreement shall be (i) in writing, (ii) delivered by hand, by registered or
certified mail, return receipt requested, or by facsimile transmission to the
address or facsimile number set forth below or such address or facsimile number
as either party shall specify by a written notice to the other and (iii) deemed
given upon receipt.
NOTICE TO S&P: Standard & Poor's
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxx Xxxxxxxx
Senior Vice President
Index Services
Fax #: (000) 000-0000
NOTICE TO LICENSEE: The Northwestern Mutual Life
Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Fax #: (000) 000 0000
(e) Licensee shall notify S&P in writing of the name of each and every
insurance company that utilizes the Product for purposes of such insurance
company's variable insurance contracts. Licensee shall update such notice from
time to time as necessary.
(f) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
(g) Each party agrees that in connection with any legal action or
proceeding arising with respect to this Agreement, they will bring such action
or proceeding 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 each party agrees to submit to the jurisdiction of
such court and venue in such court and to waive any claim that such court is an
inconvenient forum.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first set forth above.
THE NORTHWESTERN MUTUAL STANDARD & POOR'S
LIFE INSURANCE COMPANY a division of
The XxXxxx-Xxxx Companies, Inc.
BY: BY:
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(Print Name) (Print Name)
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(Print Title) (Print Title)
EXHIBIT A
PRODUCT DESCRIPTION
Product: Northwestern Mutual Series Fund, Inc. - Index 400 Stock Portfolio (the
"Product") is an investment vehicle, underlying one or more insurance products,
which has an investment objective of tracking the price and yield performance of
publicly-traded common stocks of companies as represented by the S&P MidCap 400
Index.
and
Product: Variable Annuity-Variable Life (the "Product") is any variable
insurance product(s), the underlying value of which is linked to the performance
of an investment vehicle whose investment objective is to track the price and
yield performance of publicly-traded common stocks of companies as represented
by the S&P MidCap 400 Index.
EXHIBIT B
LICENSE FEES
Licensee shall pay S&P License Fees computed as follows:
The annual License Fees shall be the greater of $15,000 (the "Minimum Annual
Fee") or one basis point (.0001) of the average daily net assets of the Product
computed 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 S&P 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.
The parties agree that the terms upon which License Fees are calculated pursuant
to this Exhibit B shall be considered "Confidential Information" for purposes of
Subsection 8(c) of this Agreement.
