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
CEA Smartphone 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(R), OMX(R), NASDAQ
OMX(R), and NASDAQ OMX CEA Smartphone Index(SM) as trade names and registered
trademarks ("MARKS");
WHEREAS, NASDAQ OMX determines the components of the NASDAQ OMX CEA
Smartphone 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.
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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
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Name: Xxxxx X. Xxxxx
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Title: CEO of First Trust Advisors L.P.
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AUTHORIZED OFFICER
Date: February 14, 2011
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FIRST TRUST NASDAQ CEA SMARTPHONE INDEX FUND ("SUB-LICENSEE")
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: President of First Trust Exchange-Traded Fund II
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AUTHORIZED OFFICER
Date: February 14, 2011
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