SUBLICENSE AGREEMENT
This Sublicense Agreement (the "Sublicense Agreement"), dated as of
January 9, 2015 is made by and among the First Trust Exchange-Traded Fund, on
behalf of its series, First Trust Total US Market AlphaDEX ETF (the
"Sub-Licensee"), The NASDAQ OMX Group, Inc. ("Index Provider"), and First Trust
Portfolios L.P. ("First Trust").
W I T N E S S E T H :
WHEREAS, pursuant to the License Agreement dated August 5, 2014, as
amended, entered by and between Index Provider and First Trust and to which this
Exhibit B is attached (the "License Agreement"), Index Provider has granted
First Trust a license to use certain indexes, copyright, trademark and
proprietary rights and trade secrets of Index Provider (as further described in
the License Agreement, the "Index Provider Enhanced Indexes and the Index
Provider Marks") in connection with the issuance, sale, marketing and/or
promotion of certain financial products (as further defined in the License
Agreement, the "Products");
WHEREAS, Sub-Licensee wishes to issue, sell, market and/or promote
the Products and to use and refer to the Index Provider Enhanced Indexes and
Index Provider Marks in connection therewith; 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. License. First Trust hereby grants to Sub-licensee a
non-exclusive and non-transferable sublicense to use the Index Provider Enhanced
Indexes and the Index Provider Marks in connection with the issuance,
distribution, marketing and/or promotion of the Products.
2. The Sub-licensee acknowledges that it has received and read a
copy of the License Agreement (excluding the Exhibit setting forth the license
fees) and agrees to be bound by all the provisions thereof, including, without
limitation, those provisions imposing any obligations on the First Trust
(including, without limitation, the indemnification obligations in Section 11
insofar as such obligations arise out of or relate to the Products to be sold,
issued, marketed and/or promoted by the Sub-licensee).
3. Sub-licensee agrees that its obligations under the License
Agreement pursuant to Section 2 of this Sublicense Agreement are as principal,
and may be enforced by the Index Provider, and shall be unaffected by any
defense or claim that First Trust may have against Index Provider.
4. This Sublicense Agreement shall be construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
provisions. The provisions of Section 14(e) of the License Agreement with
respect to the venue for any action shall be applicable to any action relating
to or arising out of this Sublicense Agreement to which the Index Provider is,
or should be, a party.
IN WITNESS WHEREOF, the parties hereto have executed this Sublicense
Agreement as of the date first set forth above.
FIRST TRUST EXCHANGE-TRADED FUND,
ON BEHALF OF ITS SERIES, FIRST TRUST
TOTAL US MARKET ALPHADEX ETF
/s/ Xxxxx X. Xxxxx
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By: Xxxxx X. Xxxxx
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Title: Treasurer and CFO
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FIRST TRUST PORTFOLIOS L.P.
/s/ Xxxxx X. Xxxxx
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By: Xxxxx X. Xxxxx
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Title: Controller
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