FIRST TRUST NASDAQ(R) CLEAN EDGE(R) SMART GRID INFRASTRUCTURE INDEX FUND
SUBLICENSE AGREEMENT
THIS 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 (Licensee is a licensee of The NASDAQ OMX Group, Inc. (f/k/a The
Nasdaq Stock Market, Inc.) ("NASDAQ OMX"), whose principal offices are located
at Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, XX 00000 and Clean Edge, Inc.
("Clean Edge"), whose principal offices are located at 0 Xxxxxxxx Xxxxx,
Xxxxxxx, XX 94610), and First Trust NASDAQ(R) Clean Edge(R) Smart Grid
Infrastructure Index Fund, a series of the First Trust Exchange-Traded Fund II
("Sub-Licensee"), whose principal offices are located at 000 X. Xxxxxxx Xxxxx,
Xxxxx 000 in Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, NASDAQ OMX possesses certain rights to Nasdaq(R), OMX(R), NASDAQ
OMX(R), and NASDAQ OMX(R) Clean Edge(R) Smart Grid Infrastructure IndexSM as
trademarks and service marks (the "NASDAQ OMX Marks");
WHEREAS, Clean Edge possesses certain rights to the Clean Edge(R) name and
registered trademark (the "Clean Edge Xxxx") (NASDAQ OMX Marks and the Clean
Edge Xxxx are collectively referred to as "Marks");
WHEREAS, NASDAQ OMX and Clean Edge jointly own the NASDAQ OMX(R) Clean Edge(R)
Smart Grid Infrastructure IndexSM (the "Smart Grid Infrastructure Index"); and
jointly develop the eligibility and selection criteria and certain rules for the
Smart Grid Infrastructure Index;
WHEREAS, Clean Edge determines the universe of eligible securities, from which
the Smart Grid Infrastructure Index components shall be selected;
WHEREAS, NASDAQ OMX calculates, maintains, and disseminates the Smart Grid
Infrastructure Index and such efforts involve the considerable expenditure of
time, effort, judgment and money;
WHEREAS, Licensee desires to use and NASDAQ OMX and Clean Edge desire to license
the right to use the Smart Grid Infrastructure Index as a benchmark, component
of a pricing or settlement mechanism for the fund, financial instrument,
derivative or other products noted in Attachment II to this Amendment No. 2 (the
"Smart Grid Infrastructure Index Derivative Products") to be issued, listed
and/or traded by Licensee or its authorized affiliates and use the Marks solely
in materials relating or referring to the Smart Grid Infrastructure Index
Derivative Products;
WHEREAS, Licensee is legally authorized to issue shares of the fund, or issue,
enter into, write, sell, redeem, purchase and/or renew ("Issue", "Issuing", or
"Issuance") such Smart Grid Infrastructure Index Derivative Products, and each
Smart Grid Infrastructure Index Derivative Product will be Issued as legally
required under applicable law; and
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WHEREAS, the parties wish to amend the Agreement for purposes of extending the
representations, warranties, rights, obligations, covenants, agreements and
disclaimers of the parties thereunder to this Amendment No. 2, and to the Smart
Grid Infrastructure Index, the NASDAQ OMX Marks, the Clean Edge Xxxx and the
Smart Grid Infrastructure Index Derivative Products.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, 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, Nasdaq and Clean Edge 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 and/or Clean Edge may exercise any
rights against Sub-Licensee (including, for example, limitation of liability,
indemnification, or audit rights) that Nasdaq and Clean Edge have against the
Licensee to the same extent as if Sub-Licensee were directly contracting with
Nasdaq and Clean Edge. Sub-Licensee agrees it will not assert against Nasdaq
and/or Clean Edge any defense, claim, or right Sub-Licensee may have against
Licensee, including those of set-off, abatement, counter-claim, contribution, or
indemnification.
Section 2. 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 3. Term. The Term of this Sub-License Agreement automatically
terminates, without Notice, if the Term of the License Agreement terminates for
any reason.
Section 4. General Provisions. Sections from 22, through and including, Section
28 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.
Section 5. Reimbursement. Sublicensee agrees to reimburse Licensee for all
License Fees paid by Licensee to Licensor under the License Agreement.
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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, President
Date: November 9, 2009
First Trust NASDAQ(R) Clean Edge(R) Smart Grid Infrastructure Index Fund
("Sub-Licensee")
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx, President
Date: November 9, 2009
