EXHIBIT 4.7
FORM OF MACRO LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is entered into as of
___________, 2006 (the "Effective Date"), by and among
MacroMarkets, LLC, a
Delaware limited liability company (the "Licensor"), the
MACROShares Up Oil
Benchmark Holding Trust, a New York trust (the "Up-MACRO Holding
Trust") and the
MACROShares Down Oil Benchmark Holding Trust, a New York trust (the
"Down-MACRO
Holding Trust" and, together with the Up-MACRO Holding Trust, each
a
"Licensee").
WHEREAS, the Up-MACRO Holding Trust was established pursuant to
the
Up-MACRO Holding Trust Agreement (as defined herein), pursuant to
which the
Up-MACRO Holding Trust will issue MACROShares Up Oil $[ ] Holding
Shares (the
"Up-MACRO Holding Shares") which represent units of undivided
beneficial
interest in the Up-MACRO Holding Trust;
WHEREAS, the Down-MACRO Holding Trust was established pursuant
to
Down-MACRO Holding Trust Agreement (as defined herein), pursuant to
which the
Down-MACRO Holding Trust will issue MACROShares Down Oil $[ ]
Holding Shares
(the "Down-MACRO Holding Shares" and together with the Up-MACRO
Holding Shares,
the "MACRO Holding Shares") which represent units of undivided
beneficial
interest in the Down-MACRO Holding Trust; and
WHEREAS, Licensor and Licensees desire to enter into a limited,
non-exclusive, non-transferable, fee-based license so as to allow
the Licensees
to issue MACRO Holding Shares utilizing the MACROs Structure, based
on the
Licensor's Patented Product (as defined herein), and the Licensor's
Marks.
NOW THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the Licensor and the
Licensees
(each a "Party" and collectively, the "Parties") agree as
follows:
1.
DEFINITIONS.
For the purposes of this Agreement, the following terms have
the
following meanings:
(a)
"Administrative Agent" means [ ], not in its individual
capacity but solely as Administrative Agent under the
Up-MACRO Holding Trust Agreement and the Down-MACRO Holding
Trust Agreement.
(b)
"Affiliate"
means, with respect to any Person, any other
Person that, directly or indirectly through one or more
intermediaries, Controls, or is Controlled by, or is under
common Control with, such Person.
(c)
"Agreement" has the meaning set forth in the preamble.
(d)
"Calculation Agent" means the American Stock Exchange, LLC,
not in its individual capacity but solely as Calculation
Agent under the Up-MACRO Holding Trust Agreement and the
Down-MACRO Holding Trust Agreement.
(e)
"Calculation Period" means, with respect to any Distribution
Date, the period to and including the last Distribution Date
(or, in the case of the first Distribution Date, from and
including the Closing Date) to but excluding the current
Distribution Date. The Calculation Period that precedes a
particular Distribution Date is referred to herein as being
"related" to such Distribution Date.
(f)
"Confidential Information" has the meaning set forth in
Section 10.
(g) "Control"
means, with respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise.
(h)
"Distribution Date" has the meaning set forth in the
applicable Holding Trust Agreement.
(i)
"Distribution Payment Date" has the meaning set forth in the
applicable Holding Trust Agreement.
(j)
"Down-MACRO Asset Amount" has the meaning set forth in the
Down-MACRO Holding Trust Agreement.
(k)
"Down-MACRO Holding Shares" has the meaning set forth in the
recitals.
(l)
"Down-MACRO Holding Trust" has the meaning set forth in the
recitals.
(m)
"Down-MACRO Holding Trust Agreement" means the Trust
Agreement, dated as of the date hereof, by and among MACROs
Securities Depositor, LLC, the Down-MACRO Holding Trustee,
the Administrative and Marketing Agent.
(n)
"Down-MACRO Holding Trustee" means [
],
a [
] [
], not in
its individual capacity but solely as trustee of the
Down-MACRO Holding Trust.
(o)
"Down-MACRO Prospectus" means the prospectus, dated as of [
], 2006, as may be amended, supplemented or otherwise
modified, pursuant to which Down-MACRO Holding Shares will be
offered to the public pursuant an effective registration
statement with the Securities and Exchange Commission.
(p) "Effective
Date" has the meaning set forth in the preamble.
(q)
"Indemnified Party" has the meaning set forth in Section
8(d).
(r) "Indemnifying Party"
has the meaning set forth in Section
8(d).
(s) "Licensed
Patents and Information" means any patents and
patent applications of the Licensor in the Territory, and any
related
know-how and trade secrets provided by Licensor to
Licensees, that are related to the MACROs Structure,
including but not limited to the patent applications as set
forth on Schedule I attached hereto.
(t) "Licensee"
has the meaning set forth in the preamble.
(u) "Licensor"
has the meaning set forth in the preamble.
(v) "Licensing
Fee" has the meaning set forth in Section 5(a)
hereunder.
(w) "Losses"
has the meaning set forth in Section 8(a) hereunder.
(x) "MACROs
Structure" means any synthetic structured products
which transform various economic goods and services, and
aggregate
economic measures, into interests (the value of
which is linked to the performance of a reference index or
price) that can be acquired by investors in the form of
securities and are based on the Patented Products.
(y) "MACRO
Holding Shares" has the meaning set forth in the
recitals.
(z) "Mark"
shall mean the trade names "MACRO" and "MacroMarkets."
(aa)
"Party(ies)" has the meaning set forth in the recitals.
(bb)
"Person" shall be construed broadly and shall include an
individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or another
entity, including a governmental entity (or any department,
agency or political subdivision thereof.
(cc)
"Proceeding" has the meaning set forth in Section 8(c)
hereunder.
(dd)
"Prospectus" shall mean either the Up-MACRO Prospectus or the
Down-MACRO Prospectus.
(ee)
"Service Providers" means each Licensee's service provider
which includes the Trustee, the Administrative Agent, the
Calculation Agent and MacroMarkets.
(ff)
"Territory" means worldwide.
(gg)
"Up-MACRO Asset Amount" has the meaning as defined in the
Up-MACRO Holding Trust Agreement.
(hh)
"Up-MACRO Holding Shares" has the meaning set forth in the
recitals.
(ii)
"Up-MACRO Holding Trust" has the meaning set forth in the
recitals.
(jj)
"Up-MACRO Holding Trust Agreement" means the Trust Agreement,
dated as of the date hereof, by and among MACROs Securities
Depositor, LLC, the Up-MACRO Holding Trustee, the
Administrative
and Marketing Agent.
(kk)
"Up-MACRO Holding Trustee" means [
],
a [
], not in its
individual capacity but solely as trustee of the Up-MACRO
Holding Trust.
(ll)
"Up-MACRO Prospectus" means the prospectus, dated as of [ ],
2006, as may be amended, supplemented or otherwise modified,
pursuant to which Up-MACRO Holding Shares will be offered to
the public pursuant an effective registration statement with
the Securities and Exchange Commission.
2.
LICENSES.
(a) The Licenses. Subject to the terms and conditions of this
Agreement, the Licensor hereby grants to each of the Licensees (i)
a limited,
non-exclusive, non-transferable, fee-based license for the term of
this
Agreement to use the Licensed Patents and Information solely in
connection with
each Licensee's activities as an issuer of the Holding Shares that
employ the
MACROs Structure and (ii) a limited, worldwide (to the extent
Licensor has
established trade marks rights in the Marks in countries outside of
the Unites
States), non-exclusive, and non-transferable, fee-based license for
the term of
this Agreement to use the Marks solely in each Licensee's name and
Licensee's
Holding Shares' names (collectively the "Licenses"). Each Licensee
expressly
agrees that the Licensor grants no rights to use the Licensed
Patents and
Information, the MACROs Structure or the Marks other than those
specifically
described and expressly granted herein.
(b) No Right to Sublicense. Each Licensee hereby expressly agrees
not
to sublicense the Licenses to any Person without the express prior
written
consent of the Licensor.
(c) Invalidation of Licensed Products. In the event that all of
the
patent claims in all of the Licenses have expired, or in the event
that all of
the patent claims in all remaining unexpired Licenses are finally
determined
(i.e., after exhaustion of all potential appeals) to be
unpatentable, invalid
or unenforceable by a court or other government agency of
competent
jurisdiction, the Fees payable under Section 5(a) shall
automatically be
reduced by twenty (20%) percent.
(d) Marking; Usage Guidelines. Each Licensee shall mark patent
rights
with respect to any patents licensed hereunder in a manner as
reasonably
directed by Licensor and/or approved by Licensor in writing in
advance, such
approval not to be unreasonably withheld. Each Licensee shall
include
appropriate service mark and trademark notices, including the
following written
notice in connection with its use of the Licensed Marks (or such
other written
ownership notice as reasonably requested by Licensor from time to
time):
"[insert Mark] are service marks of Macro Markets, LLC and are used
under
license to Licensee." Each Licensee shall designate the MACRO
Structure and
the MACRO Holding Shares only through the use of the Marks. Each
Licensee shall
adhere to Licensor's trademark usage guidelines with respect to the
Marks as
issued by Licensor from time to time.
(e) Compliance with Law. Licensee shall comply with all
applicable
laws and regulations in connection with the creation, development,
and
marketing of the MACRO Structured Product, including all
regulations of the
SEC, NASD and any other applicable federal or state regulatory
authorities.
(f) ALL RIGHTS NOT SPECIFICALLY AND EXPRESSLY GRANTED TO THE
LICENSEES
IN THIS ARTICLE 2 ARE HEREBY RESERVED TO THE LICENSOR.
3.
ACKNOWLEDGMENT OF RIGHTS.
(a) Property Rights. Each Licensee acknowledges that the
Licensed
Patents and Information, the MACROs Structure and the Marks are
and, under all
circumstances shall remain, the sole and exclusive property of the
Licensor.
All goodwill resulting from usage of the Licenses by the Licensees
pursuant to
this Agreement shall accrue to the benefit of the Licensor.
Performance results
of the MACRO Holding Trusts shall be the property of the Licensees
as
applicable.
(b) Acknowledgement of Rights. Each Licensee agrees and
acknowledges
that it will not directly or indirectly: (i) challenge or contest
the validity
or enforceability of the Licenses; (ii) dispute the validity,
enforceability or
the Licensor's ownership of the Marks, or initiate or participate
in any
proceeding of any kind opposing the grant of Marks, or challenging
any
trademark application in connection with the Marks; (iii) apply to
register or
otherwise obtain registration of (A) the Licenses, or (B) the Marks
or any
variation thereon or derivative thereof with any trademark,
business or domain
name registrar; or (iv) assist any other Person to do any of the
foregoing
(except if and to the extent required by court order or
subpoena).
(c) Maintaining the Licenses. Each Licensee shall, at the
Licensor's
expense, fully cooperate with and assist the Licensor in the
maintenance of any
patent, trademark, or other applications and shall execute or
obtain execution
of any documents that the Licensor shall reasonably request in
connection
therewith, including but not limited to any assignment of invention
rights.
(d) Any violation of Section 3(b) will constitute a material breach
of
this Agreement.
4.
TERM.
(a) Term. The term of this Agreement shall commence as of the
Effective Date and shall remain in full force and effect until the
expiration
or termination of both the Up-MACRO Holding Trust Agreement and the
Down-MACRO
Holding Trust Agreement, unless earlier terminated pursuant to the
terms of
this Agreement (the "Term").
(b) Termination. On expiration of this Agreement, the Licensee
shall
immediately cease from all use of the Licenses and inventions or
works based on
or derivative thereof; and shall immediately deliver all materials
bearing or
made in connection with the Licenses including without limitation
all
inventions or works based on or derivative thereof, to Licensor at
the address
set forth in the notice section below, or destroy them, at the
option of
Licensor.
5.
FEES
(a) Payment of Fees. On each Distribution Payment Date, each
Licensee
will pay to the Licensor, as payment in full for the Licenses
granted
hereunder, a fee equal to, for each day during each Calculation
Period, the
Up-MACRO Asset Amount or the Down-MACRO Asset Amount as applicable,
as of the
preceding day, multiplied by an annual fee rate of 0.40% and
divided by 365
or 366 depending on the number of days in the current year (the
"Licensing
Fee").
(b) Auditing Rights. The Licensor shall have the right, in each
calendar year, at its own expense and upon due notice to Licensees,
to have an
accountant audit during normal business hours and at Licensees'
designated
place of business, the books and records of each licensee, which
relate to the
asset amount of the Licensees, in order to verify the daily Asset
Amount of the
Licensees based on which the Licensing Fess are paid. In the event
that the any
discrepancies are found the Licensee shall each be jointly and
severally
responsible to pay to Licensor promptly any amount due and unpaid.
To the
extent that the amount due and unpaid has been found to exceed 5%
of the amount
that should have been paid during the preceding year from the
auditing day, the
Licensees shall each be jointly and severally responsible to pay
the amount due
promptly together with a penalty interest rate in the amount of [
]% per month.
6.
ENFORCEMENT.
(a) Each Licensee shall promptly (i) notify the Licensor of any
potential or actual infringement by a third party of any of the
Licensed
Patents and Information or Marks of which such Licensee becomes
aware, and (ii)
provide to the Licensor all evidence of such infringement in that
Licensee's
possession, custody or control. Licensor shall have the sole right,
but not the
obligation, to initiate any legal action at its own expense against
such
infringement and to recover damages and enforce any injunction
granted as a
result of any judgment in the Licensor's favor. The Licensor shall
have sole
control over any such action, including, without limitation, the
sole right to
settle and compromise such action. In the event of a dispute
between the
Licensor and any third party regarding the infringement, validity
or
enforceability of the Licensed Patents and Information or Marks,
each Licensee
agrees, at the Licensor's reasonable expense, to do all things
reasonably
requested by Licensor to assist Licensor in connection with such
dispute.
(b) Any Licensee's delay, of more than thirty (30) days, in
performing
its obligations pursuant to Section 6(a) hereof will constitute a
material
breach of this Agreement.
7.
REPRESENTATIONS AND WARRANTIES.
(a) Each Party hereby represents and warrants that (i) it has
the
power and authority to enter into this Agreement and perform its
obligations
hereunder; (ii) the execution and delivery of this Agreement have
been duly
authorized and all necessary actions have been taken to make this
Agreement a
legal, valid and binding obligation of such Party enforceable in
accordance
with its terms; and (iii) the execution and delivery of this
Agreement and the
performance by such Party of its obligations hereunder will not
contravene or
result in any breach of the Certificate of Incorporation, Bylaws or
any other
organizational document of such Party or of any agreement,
contract, indenture,
license, instrument or understanding or, to the best of its
knowledge, result
in any violation of law, rule, regulation, statute, order or decree
to which
such Party is bound or by which they or any of their property is
subject.
(b) Licensor represents and warrants
