SUB-LICENSE AGREEMENT
Exhibit (h)(3)
This Sub-license Agreement (the “Sub-license Agreement”), dated as of the 15th of February, 2011, is made by and among FocusShares Trust, a Delaware statutory trust (the “Sub-licensee”) and FocusShares, LLC, a Delaware limited liability company (the “Licensee” or “Sub-licensor”).
WITNESSETH:
WHEREAS, pursuant to that certain Morningstar Master License Agreement, dated as of October 26, 2010, that certain Amendment No. 1 to the Morningstar Master License Agreement, dated as of February 14, 2011, and that certain Index Product License Agreement, dated as of October 26, 2010 (collectively, the “License Agreement”), in each case by and between Morningstar, Inc. (the “Licensor”) and Licensee, Licensor has granted Licensee a license to use certain copyright, trademark and proprietary rights, trade secrets and index products of Licensor (as further described in the License Agreement, the “Intellectual Property” and “Products”) in connection with the issuance,
sale, marketing and/or promotion of certain financial products (as further defined in the License Agreement, the “Licensee Products”);
WHEREAS, Sub-licensee wishes to issue, sell, market and/or promote the Licensee Products and to use and refer to the Intellectual Property and Products in connection therewith;
WHEREAS, Sub-licensee has entered into a Investment Advisory Agreement with the Sub-licensor whereby Sub-licensor will act as investment adviser to certain series of Sub-licensee, which series are Licensee Products; and
WHEREAS, all capitalized terms used herein shall have the meanings assigned to them in the License Agreement unless otherwise defined herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereto agree as follows:
1. Sub-license. Sub-licensor hereby grants to Sub-licensee a non-exclusive and non-transferable Sub-license to use the Intellectual Property in connection with the issuance, distribution, marketing and/or promotion of the Licensee Products set forth on Appendix A hereto.
2. The Sub-licensee acknowledges that it has received and read a copy of the License Agreement (excluding the schedule setting forth the license fees) and agrees to be bound by all the provisions thereof, including, without limitation, those provisions imposing any obligations on Licensee.
3. Sub-licensee agrees that its obligations under the License Agreement pursuant to Section 2 of this Sub-license Agreement are as principal and shall be unaffected by any defense or claim that Licensee may have against Licensor.
4. It is the intent of the parties that the substantive law of the State of New York governs this Agreement and not the law of any other jurisdiction incorporated through choice of law or conflicts of law principles. Each party agrees that any legal action, proceeding, controversy or claim between the parties arising out of or relating to this Agreement may be brought and prosecuted only in the United States District Court for the Southern District of New York or in the Supreme Court in and for the County of New York, and by execution of this Agreement each party hereto submits to the exclusive jurisdiction of such court and waives any objection it
might have based upon improper venue or inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have executed this Sub-license Agreement as of the date first set forth above.
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/s/ Xxxx Xxxx
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By:
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Xxxx Xxxx
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Title:
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President
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FOCUSSHARES, LLC
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/s/ Xxxx Xxxx
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By:
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Xxxx Xxxx
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Title:
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President
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[Signature page to Sub-License Agreement]
Appendix A
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Product
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Licensee Product
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Morningstar® US MarketSM Index
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Focus Morningstar US Market Index ETF
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Morningstar® Large CapSM Index
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Focus Morningstar Large Cap Index ETF
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Morningstar® Mid CapSM Index
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Focus Morningstar Mid Cap Index ETF
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Morningstar® Small CapSM Index
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Focus Morningstar Small Cap Index ETF
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Morningstar® Basic MaterialsSM Index
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Focus Morningstar Basic Materials Index ETF
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Morningstar® Communication ServicesSM Index
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Focus Morningstar Communication Services Index ETF
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Morningstar® Consumer CyclicalSM Index
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Focus Morningstar Consumer Cyclical Index ETF
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Morningstar® Consumer DefensiveSM Index
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Focus Morningstar Consumer Defensive Index ETF
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Morningstar® EnergySM Index
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Focus Morningstar Energy Index ETF
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Morningstar® Financial ServicesSM Index
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Focus Morningstar Financial Services Index ETF
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Morningstar® Health CareSM Index
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Focus Morningstar Health Care Index ETF
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Morningstar® IndustrialsSM Index
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Focus Morningstar Industrials Index ETF
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Morningstar® Real EstateSM Index
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Focus Morningstar Real Estate Index ETF
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Morningstar® TechnologySM Index
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Focus Morningstar Technology Index ETF
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Morningstar® UtilitiesSM Index
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Focus Morningstar Utilities Index ETF
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