SUB-LICENSE AGREEMENT
This agreement ("Agreement"), is made by and between First Trust Advisors
L.P. ("Licensee"), whose principal offices are located at 000 X. Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and who is a Licensee of The
NASDAQ OMX Group, Inc. ("NASDAQ OMX"), a Delaware Corporation whose
principal offices are located at Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx
Xxxx, XX 00000 and First Trust NASDAQ Global Auto Index Fund
("Sub-Licensee"), whose principal offices are located at 000 X. Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, NASDAQ OMX possesses certain rights to NASDAQ?, OMX?, NASDAQ
OMX?, and NASDAQ OMX Global Auto IndexSM as trade names and registered
trademarks ("Marks");
WHEREAS, NASDAQ OMX determines the components of the NASDAQ OMX CEA
Global Auto IndexSM and the proprietary data contained therein ("Index")
and such efforts involve the considerable expenditure of time, effort,
judgment and money; and
WHEREAS, NASDAQ OMX calculates, maintains, and disseminates the Index;
and
WHEREAS, NASDAQ OMX 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 issue 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, Licensee and Sub-Licensee, 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 OMX 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 OMX may exercise any rights against Sub-Licensee (including, for
example, limitation of liability, indemnification, or audit rights)
NASDAQ OMX has against the Licensee to the same extent as if Sub-Licensee
were directly contracting with NASDAQ OMX. Sub-Licensee agrees it will
not assert against NASDAQ OMX any defense, claim, or right Sub-Licensee
may have against Licensee, including those of set-off, abatement,
counter-claim, contribution, or indemnification.
Section 1. 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 2. Term. The Term of this Sub-License Agreement automatically
terminates, without Notice, if the Term of the License Agreement
terminates for any reason.
Section 3. General Provisions. The provisions 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.
First Trust Advisors L.P. ("Licensee")
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: CEO of First Trust Advisors L.P.
---------------------------------
AUTHORIZED OFFICER
Date: May 3, 2011
---------------------
First Trust NASDAQ Global Auto Index Fund ("Sub-Licensee")
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: President of First Trust Exchange-Traded Fund II
-------------------------------------------------
AUTHORIZED OFFICER
Date: May 3, 2011
---------------------
