Investing Fund Agreement
This Investing Fund Agreement ("Agreement") is made as of the date set forth below between Curian Variable Series Trust (the "Investment Company"), a business trust organized under laws of the Commonwealth of Massachusetts, on behalf of itself or its separate series listed on Schedule A (as such schedule may be amended from time to time in accordance with the provisions of Section 8 of this Agreement), severally and not jointly (each an "Investing Fund" and collectively the "Investing Funds"), and First Trust Exchange-Traded Fund, First Trust Exchange-Traded Fund II, First Trust Exchange-Traded Fund III, First Trust Exchange-Traded Fund IV, First Trust Exchange-Traded Fund V, First Trust Exchange-Traded Fund VI, First Trust Exchange-Traded Fund VII, First Trust Exchange-Traded AlphaDEX® Fund and First Trust Exchange-Traded AlphaDEX® Fund II, each a business trust organized under the laws of the Commonwealth of Massachusetts (each a "Trust" and collectively the "Trusts"), each on behalf of its respective series, as in existence on the date hereof or as created from time to time in the future, other than as set forth on Schedule B (as such schedule may be amended from time to time), severally and not jointly (each a Fund" and collectively the "Funds").
From and after the date hereof, this Agreement supersedes any prior Investing Fund Agreement(s) entered into by the Investment Company with any Trust or Trusts. Any prior Investing Fund Agreement(s) entered into by such parties are deemed terminated upon execution of this Agreement, notwithstanding any termination provisions set forth in such prior Investing Fund Agreement(s).
Whereas, Sections 12(d)(1)(A) and (B) of the Investment Company Act of 1940, as amended (the "1940 Act"), limit the ability of an investment company to invest in shares of another investment company, and therefore limit the ability of an Investing Fund to invest in shares of a Fund; and
Whereas, each Trust and the Investment Company are each an investment company registered as such under the 1940 Act; and
Whereas, the Securities and Exchange Commission (the "SEC") has granted an order (Rel. No. 27845, May 30, 2007) (the "Order") which permits registered investment companies to acquire shares of the Funds in excess of the limits set forth in Sections 12(d)(1)(A) and (B) in accordance with the terms and conditions of the Order and the representations and conditions in amendment no. 1 to the application filed to obtain the Order (the "Application"); and
Whereas, in reliance on the Order, an Investing Fund may, from time to time, acquire shares of one or more Funds ("Shares") in excess of the limits imposed by Sections 12(d)(1)(A) and (B); and
Whereas, pursuant to the conditions set forth in the Application for the Order, an Investing Fund must enter into an agreement with a Fund prior to acquiring Shares in such Fund in excess of the limits imposed by Section 12(d)(1)(A)(i);
Now, Therefore, in consideration of the potential benefits to a Fund and Investing Fund arising out of such Investing Fund's investment in a Fund, the parties agree as follows:
1. Capitalized Terms. Capitalized terms used and not otherwise defined herein shall have the meanings assigned such terms in the Application. References to the terms, conditions and responsibilities under the Order are intended to include the terms, conditions and responsibilities set forth in the Application for the Order.
2. Representations and Obligations of the Funds. The Trusts represent that they have provided the Investing Funds with true and accurate copies of the Order, the related SEC Notice of Application for the Order and the Application (attached hereto as Appendix 1). Each Trust will promptly provide an Investing Fund a copy of any amendments to the Order. Each Trust agrees to adhere to the terms and conditions of the Order (regardless of whether restated or referred to in this Agreement).
3. Representations and Obligations of the Investing Funds. (a) Pursuant to Condition 8 of the Application for the Order, each Investing Fund represents that such Investing Fund's board of directors or trustees, investment advisers, Sponsors and trustees, as applicable, understand the terms and conditions of the Order and agree to fulfill their responsibilities under the Order.
(b) Pursuant to Condition 8 of the Order, at the time of its investment in Shares of a Fund in excess of the 3% limit in Section 12(d)(1)(A)(i), an Investing Fund will notify such Fund of the investment. At such time, such Investing Fund will also transmit to such Fund a list of the names of each Investing Fund Affiliate and Underwriting Affiliate. Such Investing Fund will notify such Fund of any changes to the list of names as soon as reasonably practicable after the change occurs. Such Investing Fund will maintain and preserve a copy of the Order, this Agreement, and the list referred to in the immediately preceding sentence with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
(c) Each Investing Fund will promptly notify the applicable Fund in writing of any purchase or acquisition of Shares that causes such Investing Fund to hold (i) 5% or more of such Fund's total outstanding voting securities or (ii) 10% or more of such Fund's total outstanding voting securities.
(d) If an Investing Fund exceeds either (i) the 5% limitation of Section 12(d)(1)(A)(ii) of the 1940 Act or (ii) the 10% limitation of Section 12(d)(1)(A)(iii) of the 1940 Act, it agrees to disclose in its prospectus that it may invest in exchange-traded funds such as the Funds and disclose in "plain English" in its prospectus the unique characteristics of doing so, including but not limited to, the expense structure, and any additional expenses of investing in the Funds and other exchange-traded funds.
(e) Each Investing Fund (i) acknowledges that it has received a copy of the Order, the related SEC Notice of Application for the Order and the Application; (ii) agrees to adhere to the terms and conditions of the Order (regardless of whether restated or referred to in this Agreement) and this Agreement and to participate in the proposed transactions in a manner that addresses the concerns underlying the Order; (iii) represents that investments in the Funds will be accomplished in compliance with its investment restrictions and will be consistent with the investment policies set forth in its registration statement; (iv) acknowledges that it may rely on the Order only to invest in shares of the Funds and not in any other investment company; and (v) agrees to promptly notify the applicable Funds if it fails to comply with the Order or this Agreement.
(f) Each Investing Fund represents to each applicable Fund that, if it is a management investment company or a series thereof, each of its investment advisers and sub-advisers is registered as an investment adviser under the Investment Advisers Act of 1940, as amended.
(g) Any of the provisions of this Agreement notwithstanding, each Investing Fund represents to the applicable Funds that it operates, and will continue to operate, in compliance with the 1940 Act and the SEC's rules and regulations thereunder. Each Investing Fund agrees that each Fund is entitled to rely on the representations contained in this Agreement, that no Fund has an independent duty to monitor an Investing Fund's compliance with this Agreement, the Order, the 1940 Act, or the SEC's rules and regulations thereunder, and that such Investing Fund has sole responsibility to monitor the limits of Section 12(d)(1)(A) as they pertain to its acquisition of Shares.
(h) The Investing Funds will comply with the disclosure requirements set forth in Investment Company Act Release No. 27399 (June 20, 2006).
4. Section 17(e). Each of the Investing Funds and Funds acknowledges that receipt of compensation by (a) an affiliated person of the Investing Fund or an affiliated person of such person, for the purchase by such Investing Fund of Shares of a Fund or (b) an affiliated person of the Fund, or an affiliated person of such person, for the sale by such Fund of Shares to an Investing Fund is subject to Section 17(e) of the 1940 Act.
5. Indemnification. Each Investing Fund agrees to hold harmless and indemnify the applicable Fund, including any of its principals, trustees, officers, employees and agents, against and from any and all losses, expenses or liabilities incurred by or claims or actions ("Claims") asserted against the respective Fund, including any of its respective principals, trustees, officers, employees and agents, to the extent such Claims result from (i) a violation or alleged violation by the respective Investing Fund of any provision of this Agreement or (ii) a violation or alleged violation by the respective Investing Fund of the terms and conditions of the Order, such indemnification to include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Claims.
Subject to Section 9(d) below, each applicable Fund agrees to hold harmless and indemnify the applicable Investing Fund, including any of its directors or trustees, officers, employees and agents, against and from any Claims asserted against the respective Investing Fund, including any of its directors or trustees, officers, employees and agents, to the extent such Claims result from (i) a violation or alleged violation by the respective Fund of any provision of this Agreement or (ii) a violation or alleged violation by the respective Fund of the terms and conditions of the Order, such indemnification to include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Claims; provided, that no Fund shall be liable for indemnifying any Investing Fund for any Claims resulting from violations that occur as a result of incomplete or inaccurate information provided by an Investing Fund to the respective Fund pursuant to the terms and conditions of the Order or this Agreement.
6. Materials. To the extent that an Investing Fund refers to any Fund in any prospectus, statement of additional information or otherwise, such Investing Fund agrees to:
(a) Refer to such Fund as, for example, the "First Trust Exchange-Traded [AlphaDEX®][Index] Fund"; and
(b) Include the following notice within reasonable proximity to the reference to such Fund:
Neither [the Fund] nor any affiliate thereof makes any representations regarding the advisability of investing in [Name of Investing Fund]. [If the Fund is a series of the First Trust Exchange-Traded AlphaDEX® Fund or the First Trust Exchange-Traded AlphaDEX® Fund II, add: AlphaDEX® is a registered trademark of First Trust Portfolios L.P. A patent application with respect to the AlphaDEX® stock selection methodology is pending at the United States Patent and Trademark Office.]
7. Notices. All notices, including all information that either party is required to provide under the terms of this Agreement and the terms and conditions of the Order, shall be in writing and shall be delivered by registered or overnight mail, facsimile, or electronic mail to the address for each party specified below (which address may be changed from time to time by notice to the other party).
If to the Investment Company or an Investing Fund:
Xxxxx X. Xxxx
Vice President, General Counsel & Secretary
0 Xxxxxxxxx Xxx, X-00
Xxxxxxx, Xxxxxxxx 00000
517/706-5517
xxxxx.xxxx@xxxxxxx.xxx
If to a Fund
000 X. Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: 000-000-0000
Confirm: 000-000-0000
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: 000-000-0000
Confirm: 000-000-0000
8. Amendments to Schedules; Other Amendments. (a) In the event the Investment Company establishes an additional series of shares which it desires to designate as an "Investing Fund" under the terms hereof, it shall so notify the Funds in writing, and if the Funds agree (which agreement shall be evidenced by a revised Schedule A, a copy of which shall be provided as soon as practicable to the Investment Company), such series of shares shall become an Investing Fund hereunder, including for purposes of the list set forth on Schedule A hereto. No further action shall be required by any party hereto to effect the foregoing addition.
(b) In the event any Trust in its sole discretion desires to exclude any series thereof from being designated as a "Fund" under the terms hereof, it shall so notify the Investment Company in writing and such series of shares shall be listed on Schedule B hereto and shall not be a "Fund" under this Agreement. No further action shall be required by any party hereto to effect the foregoing exclusion.
(c) With the exception of Schedules A and B, no amendment, modification or supplement of any provision of this Agreement will be valid or effective unless made in writing and signed by a duly authorized representative of each party.
9. Termination; Governing Law. (a) This Agreement will continue until terminated in writing by either party upon 60 days' notice to the other party. This Agreement may not be assigned by either party without the prior written consent of the other.
(b) This Agreement will be governed by Illinois law without regard to choice of law principles.
(c) If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force and effect, if the essential terms and conditions of this Agreement for both parties remain valid, legal and enforceable.
(d) In any action involving a Fund under this Agreement, each Investing Fund agrees to look solely to the assets of the Fund to which the action relates and not to any other series of the applicable Trust or any other Trust or series thereof.
(e) It is expressly acknowledged and agreed that the obligations of each Trust (and its respective Funds) hereunder shall not be binding upon any of the shareholders, Trustees, officers, employees or agents of such Trust (and its respective Funds), personally, but shall bind only the trust property of such Trust (and its respective Funds) as provided in such Trust's Declaration of Trust. The execution and delivery of this Agreement have been authorized by the Trustees of each Trust and signed by an officer of the applicable Trust, acting as such, and neither such authorization by such Trustees nor such execution and delivery by such officer shall be deemed to have been made by any of them individually or to impose any liability on any of them personally, but shall bind only the trust property of the applicable Trust and the applicable Funds as provided in the respective Trust's Declaration of Trust.
(f) It is expressly acknowledged and agreed that the obligations of the Investment Company (and its Investing Funds) hereunder shall not be binding upon any of the shareholders, trustees, officers, employees or agents of the Investment Company (and its Investing Funds), personally, but shall bind only the trust property of the Investment Company (and its Investing Funds) as provided in the Investment Company's Declaration of Trust. The execution and delivery of this Agreement have been authorized by the trustees of the Investment Company and signed by an officer of the Investment Company, acting as such, and neither such authorization by such trustees nor such execution and delivery by such officer shall be deemed to have been made by any of them individually or to impose any liability on any of them personally, but shall bind only the trust property of the Investment Company and the Investment Funds as provided in the Investment Company's Declaration of Trust.
[Signature Page Follows]
--
In Witness Whereof, the parties have duly executed this Agreement as of the 24th day of April, 2014. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
|
By:
|
/s/Xxxxx X. Xxxxxxx
|
|
By:
|
|
|
Name:
|
Xxxxx X. Xxxxxxx
|
|
Title:
|
Assistant Secretary
|
First Trust Exchange-Traded Fund
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
First Trust Exchange-Traded Fund II
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
First Trust Exchange-Traded Fund III
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
First Trust Exchange-Traded Fund IV
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
--
First Trust Exchange-Traded Fund V
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
First Trust Exchange-Traded Fund VI
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
First Trust Exchange-Traded Fund VII
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
First Trust Exchange-Traded AlphaDEX® Fund
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
First Trust Exchange-Traded AlphaDEX® Fund II
|
By:
|
/s/Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title:
|
President and CEO
|
--
Schedule A
List of Investing Funds
Curian Tactical Advantage 35 Fund
Curian Tactical Advantage 60 Fund
Curian Tactical Advantage 75 Fund
Curian Dynamic Risk Advantage – Income Fund
Schedule B
List of Excluded Funds
