LICENSE AGREEMENT
This License Agreement, dated as of this 22nd day of June, 2015, (the
"Commencement Date"), is made by and between Indxx, LLC ("Licensor"), having an
office at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000, and First
Trust Advisors L.P. ("First Trust" or "Licensee"), having an office at 000 Xxxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, Licensor compiles, calculates and maintains, such index(es) (the
"Index(es)") that are identified in the Schedules hereto that are mutually
agreed to and executed by the parties (the "Schedules"), and Licensor owns
rights in and to the Index(es), the proprietary data related thereto, and the
Licensor Marks (defined below) (such rights, including without limitation,
copyright, trademark or proprietary rights and trade secrets, being hereinafter
collectively referred to as the "Intellectual Property"); and
WHEREAS, Licensor uses and has trade names, trademark and/or service xxxx
rights to the designations identified in the Schedules (such rights being
hereinafter individually and collectively referred to as the "Licensor Marks");
and
WHEREAS, First Trust wishes to use the Index(es) and the Licensor Marks,
pursuant to the terms and conditions hereinafter set forth, in connection with
(i) the listing for trading, marketing and promotion of the Products (as defined
in Section 1(b)) and (ii) making disclosure about the Products under applicable
laws, rules and regulations in order to indicate that Licensor is the source of
the Index.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, it is agreed as follows:
1. Grant of License.
(a) Subject to the terms and conditions of this Agreement, Licensor hereby
grants to First Trust a non-transferable, exclusive license (i) to use the
Index(es) solely in connection with issuing and listing for trading of the
Products on or through a stock exchange (an "Approved Stock Exchange") in the
Territory (as defined in the applicable Schedule) and (ii) to use and refer to
the Licensor Marks in connection with the marketing and promotion of the
Products in order to indicate that the Products are based on the Index(es) and
that Licensor is the source of the Index(es), and as may otherwise be required
by applicable laws, rules or regulations or under this Agreement.
(b) As used in this Agreement, "Products" means the products designated in
the Schedules that are based upon an Index (but not any part of any Index other
than the whole Index, and not any subset of the components of any Index) and
correlated to the underlying securities comprising such Index. Any change to the
terms of the Products as such terms are described in the applicable Schedule
shall be subject to Licensor's prior written consent.
(c) First Trust agrees that it shall use commercially reasonable efforts
to list the Products on at least one Approved Stock Exchange in the North
American Market as soon as practicable after the Commencement Date.
(d) Licensor agrees that it shall not license the Index(es) to any other
person or entity at any other time during the Term.
(e) Nothing contained in this Agreement constitutes a license to First
Trust to use the Index(es) other than as expressly provided herein.
(f) First Trust acknowledges that the Index(es) and the Licensor Marks are
the exclusive property of Licensor and that Licensor has and retains all
Intellectual Property and other proprietary rights therein. Except as otherwise
specifically provided herein, Licensor reserves all rights to the Index(es) and
the Licensor Marks, and this Agreement shall not be construed to transfer to
First Trust any ownership right to, or equity interest in, the Index(es) or the
Licensor Marks, or in any Intellectual Property or other proprietary rights
pertaining thereto.
(g) First Trust acknowledges that the Index(es) and their compilation and
composition, and any changes therein, are and will be in the complete control
and sole discretion of Licensor.
(h) First Trust agrees that nothing in this Agreement includes a license
grant to issue, list or trade options on the Products, and neither First Trust
nor any of its affiliates shall issue, list or trade options on the Products, or
permit any third party directly or indirectly to issue, list or trade options on
the Products, without Licensor's prior written consent.
(i) First Trust acknowledges and agrees that Licensor reserves the right
to enter into a license agreement with the Approved Stock Exchange(s) and any
other exchange or securities market that may trade the Products. Licensor will
notify First Trust if it contacts any such exchange or securities market
concerning a license agreement.
(j) First Trust agrees that, prior to the issuance or sale of any
Products, it will obtain an agreement substantially in the form of Exhibit II
hereto, with such revisions thereto as are approved in advance by Licensor in
writing, from any person or entity (other than First Trust or certain of its
affiliates as provided in Section 12(a)) that issues such products (the
"Sublicensee").
(k) Licensor agrees that no person or entity (other than First Trust, its
Sublicensee as provided in Section 1(j) and any exchange trading the Product)
shall need to obtain a license from Licensor with respect to the issuance, sale
and servicing of a Product.
2. Term.
The term of this Agreement shall commence as of the Launch Date and shall
remain in full force and effect for two (2) years following the date the Product
begins trading on an Approved Stock Exchange ("Launch Date"), unless this
Agreement is terminated earlier as provided herein (such term being referred to
herein as the "Term"). At the end of the Term, this Agreement shall
automatically renew for successive one-year periods (each, a "Renewal Term")
unless either party terminates the Agreement by providing the other party a
written notice to that effect one hundred eighty (180) days prior written notice
of termination (The Initial Term and the Renewal Term being referred to herein
as, the "Term").
3. License Fees.
(a) As consideration for the license granted herein, First Trust shall pay
to Licensor license fees ("License Fees") as set forth on the Schedules hereto.
For the avoidance of doubt, First Trust shall be responsible for paying the
License Fees hereunder beginning on the Launch Date and until the License
Agreement expires or terminates, whichever comes first.
2
(b) Licensor shall have the right to audit on a confidential basis and
upon reasonable prior notice to First Trust, the relevant books and records of
First Trust to confirm the accuracy of any one or more calculations of License
Fees. Licensor shall bear its own costs of any such audit.
(c) Licensor acknowledges that the License Fees are reasonable.
4. Termination.
(a) If there is a material breach of this Agreement by either party (the
"Breaching Party" and "Non-breaching Party" or "Harmed Party"), or if either
party believes in good faith that material damage or harm is occurring to its
reputation or good will by reason of its continued performance hereunder (other
than pursuant to Section 4(d)), then the Non-breaching Party or the Harmed
Party, as the case may be, may terminate this Agreement, effective thirty (30)
days after written notice thereof to the other party (with reasonable
specificity as to the nature of the breach or the condition causing such damage
or harm, as the case may be, and including a statement as to such party's intent
to terminate), unless the other party shall correct such breach or the condition
causing such damage or harm, as the case may be, within such 30-day period.
(b) First Trust may terminate this Agreement upon ninety (90) days' prior
written notice to Licensor (or such lesser period of time as may be necessary
pursuant to law, rule, regulation or court order) if (i) any legislation or
regulation is finally adopted or any government interpretation is issued that
prevents First Trust from issuing, marketing or promoting the Products; (ii) any
material litigation or regulatory proceeding regarding Licensor is commenced;
(iii) First Trust elects to terminate the public offering or other distribution
of all Products for any reason; or (iv) any of the events set forth in Section
4(c)(i) or (iii) occurs.
(c) Licensor may terminate this Agreement upon ninety (90) days' prior
written notice to First Trust if (i) any legislation or regulation is finally
adopted or any government interpretation is issued that in Licensor's reasonable
judgment materially impairs Licensor's ability to license and provide the
Index(es) or the Licensor Marks under this Agreement; (ii) any litigation or
proceeding is commenced which relates, directly or indirectly, to Licensor's
licensing and providing the Index(es) or the Licensor Marks under this
Agreement, or (iii) any such litigation proceeding is threatened and Licensor
reasonably believes that such litigation or proceeding would be reasonably
likely to have a material and adverse effect on the Index(es) or the Licensor
Marks or on Licensor's ability to perform under this Agreement.
(d) Notwithstanding anything to the contrary herein, Licensor shall have
the right, in its sole discretion, to cease compiling, calculating and
publishing values of any of the Index(es) at any time that Licensor determines
that such Index no longer meets or will not be capable of meeting the criteria
established by Licensor for maintaining the Index, and thereupon to terminate
this Agreement, provided Licensor provides First Trust with at least one hundred
eighty (180) days' prior written notice.
(e) Licensor may terminate this Agreement, upon written notice to First
Trust, if any securities exchange or other source (i) ceases to provide data to
Licensor necessary for providing the Index(es), (ii) terminates Licensor's right
to receive data in the form of a "feed" from such securities exchange or other
source, (iii) materially restricts Licensor's right to redistribute data
received from such securities exchange or other source, or (iv) institutes
charges (other than nominal charges or charges which Licensor deems to be
reasonable to be incurred in connection with providing the Index(es)) for the
provision of data to Licensor or the redistribution of data by Licensor; in any
case, Licensor will provide First Trust with as much prior written notice as
possible.
3
(f) First Trust may terminate this Agreement upon written notice to
Licensor if Product is not listed on an Approved Stock Exchange within two (2)
years of the Commencement Date.
5. Licensor Obligations; First Trust's Obligations.
(a) Licensor agrees to provide reasonable support for First Trust's
development and educational efforts with respect to the Products as follows:
(i) Licensor shall use its best efforts to respond within
forty-eight (48) hours to any reasonable requests by First Trust for
information regarding the Index(es).
(ii) Licensor or its agent shall calculate and publicly disseminate
through Network B of the Consolidated Tape Association the values two
versions of the Index(es) (a price return index and a total return index)
at least once every fifteen (15) seconds on each business day (excluding a
day that is a Saturday, Sunday or a day on which The New York Stock
Exchange is closed), in accordance with current industry standards, which
procedures may be modified upon prior written notice to First Trust. In
the event an agent calculates and/or distributes the values of the
Index(es), Licensor shall promptly notify First Trust.
(iii) Licensor shall provide First Trust with thirty (30) days prior
written notice of any change in the methodology of the Index(es).
(iv) Licensor agrees to supply to First Trust on each business day,
the value of the Index(es), its/their constituents and its/their
weightings.
(v) Licensor shall use its best efforts to promptly correct, or
instruct its agent to correct, any mathematical errors made in Licensor's
computations of the Index(es) which are brought to Licensor's attention by
First Trust; provided, that nothing in this Section 5 shall give First
Trust the right to exercise any judgment or require any changes with
respect to Licensor's method of composing, calculating or determining the
Index(es); and, provided, further, that nothing herein shall be deemed to
modify the provisions of Section 9 of this Agreement.
(b) First Trust shall incorporate the disclaimer set forth in Exhibit I
hereto in its agreement with any Approved Stock Exchange. Licensor may also
require any Approved Stock Exchange to have in place prior to listing the
Product a limitation of liability for index providers in such form as in keeping
with industry standards.
6. Trademark Filings; Recognition of Intellectual Property Rights; Protection
of Intellectual Property; Quality Control.
(a) During the Term, Licensor shall apply for such trademark and trade
name registrations for the Licensor Marks only in such jurisdictions, if any,
where Licensor considers such filings appropriate. First Trust shall reasonably
cooperate with Licensor in the maintenance of such rights and registrations and
shall do such acts and execute such instruments as are reasonably necessary or
appropriate for such purpose; however, any expenses reasonably incurred by First
Trust therein shall be absorbed by Licensor. First Trust shall use the following
notice when referring to the Index(es) or any of the Licensor Marks in any
informational materials to be used in connection with the Products (including,
where applicable, advertisements, brochures and promotional and any other
similar informational materials, and any documents or materials required to be
filed with governmental or regulatory agencies and excluding specifically any
4
summary prospectus) that in any way use or refer to Licensor, the Index(es) or
any of the Licensor Marks (collectively, the "Informational Materials"):
"Licensor," and "[LICENSOR INDEX]," are trademarks of Licensor and
have been licensed for use for certain purposes by First Trust Advisors
LP. [INSERT Name of Product(s)] is based on the Licensor Index and is not
sponsored, endorsed, sold or promoted by Licensor, and Licensor makes no
representation regarding the advisability of trading in such product(s).
or such similar language as may be approved in advance in writing by Licensor.
(b) Except for the rights expressly granted to First Trust hereunder,
First Trust agrees that the Licensor Marks and all Intellectual Property and
other rights, registrations and entitlement thereto, together with all
applications, registrations and filings with respect to any of the Licensor
Marks and any renewals and extensions of any such applications, registration and
filings, are and shall remain the sole and exclusive property of Licensor. First
Trust agrees that any benefit to the Licensor Marks resulting from First Trust's
use pursuant to this Agreement shall inure solely to Licensor. First Trust
agrees to cooperate reasonably with Licensor in the maintenance of such rights
and registrations and shall do such acts and execute such instruments as are
reasonably necessary or appropriate for such purpose. First Trust acknowledges
that each of the Licensor Marks is part of the business and goodwill of Licensor
and agrees that it shall not, during the term of this Agreement or thereafter,
contest the fact that First Trust's rights in the Licensor Marks under this
Agreement (i) are limited solely to the use of the Licensor Marks as expressly
provided in Section 1(a), and (ii) shall cease upon termination of this
Agreement, except as otherwise expressly provided herein. First Trust recognizes
the value of the reputation and goodwill associated with the Licensor Marks and
acknowledges that such goodwill associated with the Licensor Marks belongs
exclusively to Licensor, and that Licensor, except as otherwise expressly set
forth herein, is the owner of all right, title and interest in and to the
Licensor Marks in connection with the Products. First Trust further acknowledges
that all rights in any translations, derivatives or modifications in the
Licensor Marks which may be created by or for First Trust shall be and shall
remain the exclusive property of Licensor and said property shall be and shall
remain a part of the Intellectual Property subject to the provisions and
conditions of this Agreement. First Trust shall never, either directly or
indirectly, contest Licensor's exclusive ownership of any of the Intellectual
Property. Licensor and First Trust each agree that, in the event that First
Trust uses the Licensor Marks in conjunction with First Trust's own
trademark(s), neither party shall own, register, license or assign such
resulting xxxx (the "Composite Xxxx"). Each party will retain the exclusive
ownership and proprietary rights in its respective trademark(s).
(c) First Trust shall use its reasonable efforts to protect
the goodwill and reputation of Licensor, the Index and the Licensor Marks in
connection with its use of the Index(es) and any of the Licensor Marks under
this Agreement. First Trust shall submit to Licensor, for Licensor's review and
approval, and First Trust shall not use until receiving Licensor's approval
thereof in writing, all Informational Materials. Licensor's approval shall be
required with respect to the use of and description of Licensor, the Index(es)
or any of the Licensor Marks. Licensor shall notify First Trust, in writing, of
its approval or disapproval of any Informational Materials within three (3)
business days (excluding any day that is a Saturday, Sunday or a day on which
The New York Stock Exchange is closed) following receipt thereof from First
Trust. In the event that First Trust does not receive such written consent or
approval within three (3) business days, then Licensor shall be deemed to have
consented to and approved such Information Materials. Once Informational
Materials have been approved by Licensor, subsequent Informational Materials
which do not alter the use or description of Licensor, the Index(es) or the
5
Licensor Marks, as the case may be, need not be submitted for review and
approval by Licensor.
(d) Except as may be expressly otherwise agreed in writing by Licensor, or
as otherwise permitted or required under this Agreement, the Licensor Marks and
First Trust's marks, the marks of any of their respective affiliates or the
marks of any third party, to the extent they appear in any Informational
Material, shall appear separately and shall be clearly identified with regard to
ownership. Whenever the Licensor Marks are used in any Informational Material in
connection with any of the Products, the name of First Trust shall appear in
close proximity to the Licensor Marks so that the identity of First Trust, and
its status as an authorized First Trust of such Licensor Marks, is clear and
obvious.
(e) First Trust agrees that any proposed change in the use of the Licensor
Marks shall be submitted to Licensor for, and shall be subject to, Licensor's
prior written consent.
(f) If at any time Licensor is of the opinion that First Trust is not
properly using the Intellectual Property in connection with the Products or
Informational Materials, or that the standard of quality of any of the Products
or Informational Materials does not conform to the reasonable industry
standards, Licensor shall give notice to First Trust to that effect. Upon
receipt of such notice, First Trust shall forthwith correct the defects in the
non-conforming Products or Informational Materials so that they comply with all
required standards.
7. Proprietary Rights.
(a) First Trust expressly acknowledges and agrees that the Index(es) are
selected, compiled, coordinated, arranged and prepared by Licensor through the
application of methods and standards of judgment used and developed through the
expenditure of considerable work, time and money by Licensor. First Trust also
expressly acknowledges and agrees that the Index(es) and the Licensor Marks are
valuable assets of Licensor and First Trust agrees that it will take reasonable
measures to prevent any unauthorized use of the information provided to it
concerning the selection, compilation, coordination, arrangement and preparation
of the Index(es).
(b) Each party shall treat as confidential and shall not disclose or
transmit to any third party (i) any documentation or other materials that are
marked as "Confidential" by the providing party and (ii) the terms of this
Agreement (collectively, "Confidential Information"). Confidential Information
as described in clause (i) of the preceding sentence shall not include (A) any
information that is available to the public or to the receiving party hereunder
from sources other than the providing party (provided that such source is not
subject to a confidentiality agreement with regard to such information) or (B)
any information that is independently developed by the receiving party without
use of or reference to information from the providing party.
(c) Notwithstanding the foregoing, either party may reveal Confidential
Information to any regulatory agency or court of competent jurisdiction if such
information to be disclosed is (i) approved in writing by the providing party
for disclosure or (ii) required by law, regulatory agency, self-regulatory
agency, governmental body or court order to be disclosed by the receiving party,
provided, if permitted by law, that prior written notice of such required
disclosure is given to the providing party and provided further that the
receiving party shall cooperate with the providing party to limit the extent of
such disclosure. The provisions of Section 7 shall survive termination or
expiration of this Agreement for a period of five (5) years from disclosure by
either party to the other of the last item of such Confidential Information.
6
8. Warranties; Disclaimers.
(a) Each party represents and warrants to the other that it has the
authority to enter into this Agreement according to its terms, and that its
execution and delivery of this Agreement and its performance hereunder will not
violate any agreement applicable to it or violate any applicable laws, rules or
regulations. First Trust represents and warrants to Licensor that the Products
listed for trading, and the marketing and promotion thereof, by First Trust will
not violate any applicable laws, rules or regulations, including without
limitation, securities, commodities, and banking laws.
(b) First Trust shall include the statement contained in Exhibit I hereto
in each agreement, if any, with the Approved Stock Exchange, prospectus,
registration statement or similar document relating to any Products (and upon
request shall furnish copies thereof to Licensor), and First Trust expressly
agrees to be bound by the terms of the statement contained in Exhibit I hereto
(which terms are expressly incorporated herein by reference and made a part
hereof).
(c) Licensor represents and warrants that it has the right and authority
to enter into this Agreement and to license the Intellectual Property to First
Trust pursuant to this Agreement and that the licensing of the Intellectual
Property to First Trust will not breach any contract to which Licensor is a
party or constitute an infringement of any U.S. Trademark, copyright or other
proprietary right of any third party.
9. Indemnification.
(a) First Trust shall indemnify and hold harmless Licensor, its
affiliates, and their officers, directors, employees and agents, against any and
all judgments, damages, costs or losses of any kind (including reasonable
attorneys' fees and experts' fees) as a result of any claim, action or
proceeding that arises out of or relates to (i) a material breach by First Trust
of its representations or warranties under this Agreement, or (ii) the Licensed
Products; provided however that (i) Licensor notifies Licensee within ten (10)
days of such claim, action or proceeding, (ii) Licensor grants Licensee control
of its defense and/or settlement, and (iii) Licensor cooperates with First Trust
in the defense thereof. Licensor shall have the right, at its own expense, to
participate in the defense of any claim, action or proceeding against which it
is indemnified hereunder; provided, however, it shall have no right to control
the defense, consent to judgment, or agree to settle any such claim, action, or
proceeding without the written consent of First Trust without waiving the
indemnity hereunder. First Trust, in the defense of any such claim, action or
proceeding, except with the written consent of Licensor, shall not consent to
entry of any judgment or enter into any settlement which either (i) does not
include, as an unconditional term, the grant by the claimant to Licensor of a
release of all liabilities in respect of such claims or (ii) otherwise adversely
affects the rights of Licensor. The foregoing notwithstanding, First Trust shall
not be required to indemnify Licensor to the extent any claims, actions or
proceeding arise out of or relate to (i) a breach by Licensor of its
representations or warranties made herein, (ii) any third party claim alleging
that a Product or Intellectual Property licensed hereunder violates or infringes
any proprietary right of any third party, or (iii) Licensor's negligence or
willful misconduct. This provision shall survive the termination or expiration
of this Agreement.
(b) Licensor shall indemnify and hold harmless First Trust, its affiliates
and their directors, officers, employees, and agents against any and all
judgments, damages, costs or losses of any kind (including reasonable attorneys'
and experts' fees) as a result of any claim, action or proceeding that arises
out of or relates to a material breach by Licensor of its representations or
warranties under this Agreement; provided however, that (i) First Trust notifies
Licensor within ten (10) days of such claim, action or proceeding; (ii) First
7
Trust grants Licensor control of its defense and/or settlement; and (iii) First
Trust cooperates with Licensor in the defense thereof. First Trust shall have
the right, at its own expense, to participate in the defense of any claim,
action or proceeding against which it is indemnified hereunder; provided,
however, it shall have no right to control the defense, consent to judgment, or
agree to settle any such claim, action, or proceeding without the written
consent of Licensor without waiving the indemnity hereunder. Licensor, in the
defense of any such claim, action or proceeding except with the written consent
of Licensee, shall not consent to entry of any judgment or enter into any
settlement which either (i) does not include, as an unconditional term, the
grant by the claimant to Licensee of a release of all liabilities in respect to
such claims or (ii) otherwise adversely affects the rights of Licensee. The
foregoing notwithstanding, Licensor shall not be required to indemnify Licensee
to the extent any claims, actions or proceedings arise out of or relate to (i) a
breach by Licensee of its representations or warranties made herein, or (ii)
Licensee's negligence or willful misconduct. This provision shall survive the
termination or expiration of this Agreement.
10. Suspension of Performance.
Notwithstanding anything herein to the contrary, neither Licensor nor
First Trust shall bear responsibility or liability to the other party or to
third parties for any Losses arising out of any delay in or interruptions of
performance of their respective obligations under this Agreement due to any act
of God, act of governmental authority, or act of public enemy, or due to war,
the outbreak or escalation of hostilities, riot, fire, flood, civil commotion,
insurrection, labor difficulty (including, without limitation, any strike, other
work stoppage, or slow-down), severe or adverse weather conditions, power
failure, communications line or other technological failure, or other similar
cause beyond the reasonable control of the party so affected; provided, however,
that nothing in this Section 10 shall affect First Trust's obligations under
Section 9(a).
11. Injunctive Relief.
In the event of a material breach by one party ("Breaching Party") of
provisions of this Agreement relating to the Confidential Information of the
other party ("Non-breaching Party"), the Breaching Party acknowledges and agrees
that damages would be an inadequate remedy and that the Non-breaching Party
shall be entitled to seek preliminary and permanent injunctive relief to
preserve such confidentiality or limit improper disclosure of such Confidential
Information, but nothing herein shall preclude the Non-breaching Party from
pursuing any other action or remedy for any breach or threatened breach of this
Agreement. All remedies under this Section 11 shall be cumulative.
12. Other Matters.
(a) This Agreement is solely and exclusively between the parties hereto
and, except to the extent otherwise expressly provided herein, shall not be
assigned or transferred, nor shall any duty hereunder be delegated, by either
party, without the prior written consent of the other party, and any attempt to
so assign or transfer this Agreement or delegate any duty hereunder without such
written consent shall be null and void, except that no such consent shall be
required with respect to any assignment by either party to its parent,
subsidiary or affiliate. This Agreement shall be valid and binding on the
parties hereto and their successors and permitted assigns.
(b) This Agreement, including the Schedules and Exhibits hereto (which are
hereby expressly incorporated into and made a part of this Agreement),
constitutes the entire agreement of the parties hereto with respect to its
subject matter, and supersedes any and all previous agreements between the
parties with respect to the subject matter of this Agreement. There are no oral
or written collateral representations, agreements or understandings except as
provided herein.
8
(c) No waiver, modification or amendment of any of the terms and
conditions hereof shall be valid or binding unless set forth in a written
instrument signed by duly authorized officers of both parties. The delay or
failure by any party to insist, in any one or more instances, upon strict
performance of any of the terms or conditions of this Agreement or to exercise
any right or privilege herein conferred shall not be construed as a waiver of
any such term, condition, right or privilege, but the same shall continue in
full force and effect.
(d) No breach, default or threatened breach of this Agreement by either
party shall relieve the other party of its obligations or liabilities under this
Agreement.
(e) All notices and other communications under this Agreement shall be (i)
in writing, (ii) delivered by hand (with receipt confirmed in writing), by
registered or certified mail (return receipt requested), or by facsimile
transmission (with receipt confirmed in writing), to the address or facsimile
number set forth below or to such other address or facsimile number as either
party shall specify by a written notice to the other, and (iii) deemed given
upon receipt.
If to Licensor: Indxx, LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to First Trust: First Trust Advisors L.P.
000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
(f) It is the intent of the parties that the substantive law of the State
of New York govern 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, 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. Each party hereto hereby waives
any right it may have in the future to a jury trial in connection with any legal
action, proceeding controversy or claim between the parties arising out of or
relating to this Agreement.
(g) This Agreement (and any related agreement or arrangement between the
parties hereto) is solely and exclusively for the benefit of the parties hereto
and their respective successors, and nothing in this Agreement (or any related
agreement or arrangement between the parties hereto), express or implied, is
intended to or shall confer on any other person or entity (including, without
limitation, any purchaser of any Products issued by First Trust), any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement (or any such related agreement or arrangement between the parties
hereto).
9
(h) Section 4, Sections 7, Sections 8, 9, 11 and 12(e), (f) and (g), and
this Section 12(h), shall survive the expiration or termination of this
Agreement; provided, however, this Section shall not be deemed to constitute a
waiver of statute of limitations.
(i) The parties hereto are independent contractors. Nothing herein shall
be construed to place the parties in the relationship of partners or joint
venturers, and neither party shall acquire any power, other than as specifically
and expressly provided in this Agreement, to bind the other in any manner
whatsoever with respect to third parties.
(j) All references herein to "reasonable efforts" shall include taking
into account all relevant commercial and regulatory factors. All references
herein to "regulations" or "regulatory proceedings" shall include regulations or
proceedings by self-regulatory organizations such as securities or futures
exchanges.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
INDXX, LLC
By: /s/ Rahul Sen Sharma
Name: Rahul Sen Sharma
------------------------
Title: Partner
------------------------
Date: July 20, 2015
------------------------
FIRST TRUST ADVISORS L.P.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
------------------------
Title: Chief Operating Officer
------------------------
Date:
------------------------
10
INDEX OF ATTACHMENTS
SCHEDULES:
Schedule I License Schedule re Licensor Index with ETF
EXHIBITS:
Exhibit I Disclaimer Language
Exhibit II Sublicense Agreement
11
SCHEDULE I
INDEX LICENSING SCHEDULE
INDEXES: 1) Indxx Global Natural Resources Income Index
2) Indxx Global Agriculture Index
MARKS: N/A
PRODUCTS: The Products shall be exchange-traded funds, which are open-ended and
have the following characteristics: (i) the fund issues, sells, and redeems
blocks of shares, units or other interests; (ii) the fund shares are listed for
trading on an Approved Exchange and are available for trading throughout each
daily trading session; (iii) the trading of the fund shares may generally take
place in an unlimited amount; (iv) such shares, units or other interests are
generally redeemed "in kind"; (v) the fund has the investment objective of
replicating the performance of the Index; and (vi) is organized under the United
States Investment Company Act of 1940.
The name of the Product(s) shall be:
1) First Trust Indxx Global Natural Resources Income ETF
2) First Trust Indxx Global Agriculture ETF
TERRITORY: U.S.
ESTIMATED LAUNCH DATE: 4th quarter 2015
LICENSE FEES: First Trust shall pay Licensor a one-time fee per Index in the
amount of $9,000 for the first year of the Agreement and an annual license fee
(the "Annual Fee") of 5 basis points times the average daily net assets of each
Product for every year of the Agreement.
The Annual Fee(s) shall be computed and paid as follows:
(a) At the end of each of the calendar quarter during the Term, First
Trust shall calculate the average daily net asset value of each
Product during the quarter and multiply such amount by 0.0005 and
divide the resulting product by 4 resulting in the quarterly payment
to be paid to Index Provider by First Trust.
(b) Each quarterly payment shall be accompanied by a statement setting
forth the calculations on which the payment is based and shall be
paid within fifteen (15) days after the close of the quarter.
(c) All amounts shall be paid in US Dollars. The terms hereof shall be
deemed "Confidential Information" for purposes of Section 7(b) of
this Agreement.
The terms and conditions of this Schedule are acknowledged and agreed to:
INDXX, LLC FIRST TRUST ADVISORS L.P.
/s/ Rahul Sen Sharma /s/ Xxxxx X. Xxxxx
---------------------------------- ----------------------------------
Name: Rahul Sen Sharma Name: Xxxxx X. Xxxxx
--------------------------- ---------------------------
Title: Partner Title: Treasurer and CFO
--------------------------- ---------------------------
Date: July 20, 2015 Date:
--------------------------- ---------------------------
i
EXHIBIT I
The [Products] are not sponsored, endorsed, sold or promoted by Licensor.
Licensor makes no representation or warranty, express or implied, to the owners
of the [Product(s)] or any member of the public regarding the advisability of
trading in the Product(s). Licensor's only relationship to First Trust Advisors
L.P. ("First Trust") is the licensing of certain trademarks and trade names of
Licensor and of the [INSERT Name of Index(es)] which is determined, composed and
calculated by Licensor without regard to First Trust or the [Product(s)],
Licensor has no obligation to take the needs of First Trust or the owners of the
[Product(s)] into consideration in determining, composing or calculating [INSERT
Name of Index(es)]. Licensor is not responsible for and has not participated in
the determination of the timing of, prices at, or quantities of the [Product(s)]
to be listed or in the determination or calculation of the equation by which the
[Product(s)] are to be converted into cash. Licensor has no obligation or
liability in connection with the administration, marketing or trading of the
[Product(s)].
LICENSOR DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE
[INSERT NAME OF INDEX(ES)] OR ANY DATA INCLUDED THEREIN AND LICENSOR SHALL HAVE
NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. LICENSOR MAKES
NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY [FIRST TRUST],
OWNERS OF THE [PRODUCT(S)], OR ANY OTHER PERSON OR ENTITY FROM THE USE OF THE
[INSERT NAME OF INDEX(ES)] OR ANY DATA INCLUDED THEREIN. LICENSOR MAKES NO
EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE
[INSERT NAMES OF INDEX(ES)] OR ANY DATA INCLUDED THEREIN, WITHOUT LIMITING ANY
OF THE FOREGOING, IN NO EVENT SHALL LICENSOR HAVE ANY LIABILITY FOR ANY LOST
PROFITS OR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. THERE ARE NO
THIRD PARTY BENEFICIARIES OF ANY AGREEMENTS OR ARRANGEMENTS BETWEEN LICENSOR AND
[FIRST TRUST].
EXHIBIT II
SUBLICENSE AGREEMENT
This Sublicense Agreement (the "Sublicense Agreement"), dated as of
______________, ______, is made by and among _________________________ (the
"Sublicensee") and First Trust Advisors L.P. ("First Trust" or "Sublicensor").
W I T N E S S E T H :
WHEREAS, pursuant to that certain License Agreement, dated as of
________________, by and between Licensor and First Trust ("License Agreement"),
___________________ ("Licensor") has granted First Trust a license to use an
Index and certain copyright, trademark and proprietary rights and trade secrets
of Licensor (as further described in the License Agreement, the "Intellectual
Property") in connection with the issuance, sale, marketing and/or promotion of
certain financial products (as further defined in the License Agreement, the
"Products");
WHEREAS, Sublicensee wishes to issue, sell, market and/or promote the
Products and to use and refer to the Intellectual Property 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. Sublicensor hereby grants to Sublicensee a non-exclusive and
non-transferable sublicense to use the Intellectual Property in connection with
the issuance, distribution, marketing and/or promotion of the Products (as
modified by Appendix A hereto, if applicable).
2. The Sublicensee 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 First Trust.
3. Sublicensee agrees that its obligations under the License
Agreement pursuant to Section 2 of this Sublicense Agreement are as principal
and shall be unaffected by any defense or claim that First Trust may have
against Licensor.
4. It is the intent of the parties that the substantive law of the
State of Illinois govern 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 Northern
District of Illinois or in the Circuit Court of DuPage County, Illinois, 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. Each party hereto hereby waives any right
it may have in the future to a jury trial in connection with any legal action,
proceeding controversy or claim between the parties arising out of or relating
to this Agreement.
5. Sublicensee agrees to reimburse Sublicensor for amounts paid by
Sublicensor to Licensor for License Fees.
IN WITNESS WHEREOF, the parties hereto have executed this Sublicense
Agreement as of the date first set forth above.
[SUBLICENSEE]
--------------------------------
By:
--------------------------------
Title:
--------------------------------
FIRST TRUST ADVISORS L.P.
--------------------------------
By:
--------------------------------
Title:
--------------------------------
