INVESTMENT ADVISORY AGREEMENT
Agreement made as of January 31, 2011 and amended
as of May 18, 2016, between DBX ETF TRUST (the "Company"), a
Delaware statutory trust, and DBX ADVISORS LLC (the "Adviser"),
a Delaware limited liability company.
W I T N E S S E T H:
WHEREAS, the Company is an open-end investment company
registered under the Investment Company Act of 1940, as amended
(the "1940 Act"), and organized as a statutory trust under the
laws of the State of Delaware on behalf of each series listed on
Schedule A, as it may be amended from time to time to add or
remove series (each, a "Fund");
WHEREAS, the Adviser is engaged primarily in rendering
investment advisory and management services and is registered as
an investment adviser under the Investment Advisers Act of 1940,
as amended ("Advisers Act");
WHEREAS, the Company wishes to retain the Adviser to
provide investment advisory and management services to the
Company with respect to each Fund of the Company; and
the Funds.
WHEREAS, the Adviser is willing to render such investment advisory
services to
NOW, THEREFORE, in consideration of the premises and
mutual promises hereinafter set forth, the parties hereto agree
as follows:
1. Appointment of Adviser
The Company hereby appoints the Adviser to act as an
investment adviser to the Funds, subject to the supervision
and oversight the Board of Trustees (the "Board") of the
Company, for the period and on the terms set forth in this
Agreement. The Adviser accepts such appointment and agrees to
render the services herein set forth, for the compensation
herein specified in Schedule A.
(a) Subject to the supervision of the Board and
consistent with its fiduciary duties to each Fund, the Adviser
will manage the investment operations and determine the
composition of the portfolio of each Fund, including the
purchase, retention and disposition of the securities and other
instruments held by the Funds, in accordance with the terms of
this Agreement, each Fund's investment objective and policies
and each Fund's then-current prospectus and statement of
additional information contained in the Company's Registration
Statement on Form N-1A (the "Prospectus and SAI"), as they may
be amended or supplemented from time to time.
As part of the services it will provide hereunder, the
Adviser will:
(i) furnish continuously an investment program
for each Fund;
(ii) designate the identity and weighting of the
securities (and amount of cash, if any) to be
accepted in exchange for creation units of a Fund
or that will be applicable that day to redemption
requests received by a Fund;
(iii) provide supervision of each Fund's investments
and determine from time to time what investments
or securities will be purchased, retained or sold
by the Funds and what portion, if any, of the
assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the
investments for each Fund;
(v) maintain books and records with respect to each
Fund's securities transactions and keep the Board
fully informed on an ongoing basis of all
material facts concerning the services provided
by the Adviser pursuant to this Agreement and the
Adviser's key personnel and operations providing
services with respect to the Funds; make regular
and periodic special reports of such additional
information concerning the same as may
reasonably be requested from time to time by the
Board; and attend meetings with the Board, as
reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods
established by the Board, which may be amended
from time to time, the Adviser will promptly
notify the Company's fund accounting agent of
securities and instruments in a Fund which the
Adviser believes should be fair valued in
accordance with the Company's Valuation
Procedures. Subject to the foregoing, the
Adviser will determine the fair value of all
securities and other investments/assets in the
Funds, as necessary, and use reasonable efforts to
arrange for the provision of valuation
information or a price(s) from a party(ies)
independent of the Adviser for each security or
other investment/asset in each Fund for which
market prices are not readily available;
(vii) provide any and all material performance
information, records and supporting documentation
about accounts the Adviser manages, if
appropriate, which are relevant to the Funds
and that have investment objectives, policies,
and strategies substantially similar to those
employed by the Adviser in managing the Funds
that may be reasonably necessary, under
applicable laws, to allow the Funds or their
agent to present information concerning the
Adviser's prior performance in the Company's
Prospectus and SAI and any permissible reports and
materials prepared by the Funds or their agent;
and
(viii) cooperate with and provide reasonable assistance
to the Company's administrator, the Company's
custodian and foreign custodians, the Company's
transfer agent and pricing agents, the Company's
officers and all other agents and representatives
of the Company, keep all such persons
fully informed as to such matters as they may
reasonably deem necessary to the performance of
their obligations to the Company, provide prompt
responses to reasonable requests made by such
persons and maintain any appropriate interfaces
with each so as to promote the efficient exchange
of information.
To carry out the duties and responsibilities provided
hereunder, the Adviser is hereby authorized, as agent and
attorney-in-fact for the Company, for the account of, at the
risk of and in the name of the Funds, to place orders and
issue instructions for the Funds. In all purchases, sales and
other transactions in securities for the Funds, the Adviser is
authorized to exercise full discretion and act for the Funds in
the same manner and with the same force and effect as the Funds
might or could do with respect to such purchases, sales or other
transactions, as well as with respect to all other things
necessary or incidental to the furtherance or conduct of such
purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will
be subject to, and will perform its responsibilities in
accordance, with the following: (i) the Company's Agreement and
Declaration of Trust, as the same may be hereafter modified
and/or amended from time to time ("Declaration of Trust"); (ii)
the By-Laws of the Company, as the same may be hereafter
modified and/or amended from time to time ("By-Laws"); (iii) the
currently effective Prospectus and SAI of the Company filed
with the Securities and Exchange Commission ("SEC") and
delivered to the Adviser, as the same may be hereafter modified,
amended and/or supplemented;
(iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of
1986, as amended, and the rules under each, and all other
federal and state laws or regulations applicable to the Company
and the Fund(s); (v) any order or no-action letter of the SEC
governing the operation of the Company; (vi) the rules of any
securities exchange applicable to a Fund; (vii) the Company's
policies and procedures adopted pursuant to Rule 38a-1 under
the 1940 Act (the "Compliance Manual"); and (viii) other
policies, procedures and directives adopted from time to time
by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i)
all necessary facilities and personnel, including salaries,
expenses and fees of any personnel required for the Adviser to
faithfully perform its duties under this Agreement; and (ii)
furnish administrative facilities, including bookkeeping, and
all equipment necessary for the efficient conduct of the
Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to
effect all Fund transactions subject to the conditions set
forth herein. The Adviser will place all necessary orders with
brokers, dealers, or issuers, and will negotiate brokerage
commissions, if applicable. The Adviser is directed at all
times to seek to execute transactions for each Fund (i) in
accordance with any written policies, practices or procedures
that may be established by the Board from time to time and which
have been provided to the Adviser, (ii) as described in the
applicable Fund's Prospectus and SAI, and (iii) in accordance
with applicable federal and state laws and regulations. In
placing any orders for the purchase or sale of investments for
each Fund, in the name of the Fund or its nominees, the Adviser
will use its best efforts to seek to obtain for the Fund "best
execution," considering all of the circumstances, and will
maintain records adequate to demonstrate compliance with
this requirement. In no instance will Fund securities
be
purchased from or sold to the Adviser, or any affiliated person
thereof, except in accordance with the 1940 Act, the Advisers
Act and the rules under each, and all other federal and state
laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in "soft-
dollar" transactions, permitted by Section 28(e) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"),
without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase
or sale of a security to be in the best interest of the Fund(s)
as well as other clients of the Adviser and its affiliates, the
Adviser to the extent permitted by applicable laws and
regulations, may, but will be under no obligation to,
aggregate the securities to be purchased or sold to attempt
to obtain a more favorable price or lower brokerage
commissions and efficient execution. Allocation of the
securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by the Adviser in the
manner which the Adviser considers to be the most equitable and
consistent with its fiduciary obligations to each Fund and to
its other clients over time. The Company agrees that the
Adviser and its affiliates may give advice and take action in
the performance of their duties with respect to any of their
other clients that may differ from advice given, or the timing
or nature of actions taken, with respect to the Funds. The
Company acknowledges that Adviser and its affiliates are
fiduciaries to other entities, some of which have the same or
similar investment objectives (and will hold the same or similar
investments) as the Funds, and that the Adviser will carry out
its duties hereunder together with its duties under such
relationships.
(h) The Adviser will maintain and preserve all
accounts, books and records with respect to each Fund as are
required of the Funds and an investment adviser of a registered
investment company pursuant to the 1940 Act and Advisers Act
and the rules thereunder and will file with the SEC all forms
pursuant to Section 13 of the Exchange Act, with respect to its
duties as are set forth herein.
(i) The Adviser will, unless and until otherwise
directed by the Board and consistent with seeking the best
interest of the Funds, exercise (or not exercise in its
discretion) all rights of security holders with respect to
securities held by each Fund, including, but not limited to:
voting proxies in accordance with the Company's then-current
proxy voting policies, converting, tendering, exchanging or
redeeming securities; acting as a claimant in class action
litigation (including litigation with respect to securities
previously held); and exercising rights in the context of a
bankruptcy or other reorganization. Unless the Board gives
written instructions to the contrary, the Adviser will vote all
proxies solicited by or with respect to the issuers of
securities in which assets of the Fund may be invested in
accordance with the Adviser's proxy voting guidelines, a copy of
which has been provided to the Company.
(j) The Adviser will provide, or arrange for the
provision of, transfer agency, custody, fund administration and
accounting and all other non-distribution related services
necessary for the Funds' operations, subject in each case to
the approval of the Board. The Adviser will also provide
supervisory personnel who will be responsible for supervising
and monitoring the performance of the Company's service
providers in connection with their duties. Such personnel may
be employees of the Adviser or employees of affiliates of the
Adviser or of other organizations. The Adviser will also
administer the Company's business affairs, provides
office facilities and equipment and certain clerical,
bookkeeping and administrative services and will permit its
officers and employees to serve without compensation as
officers, trustees or employees of the Company.
2. Compensation
(a) The Company will pay, or arrange for payment to,
the Adviser as compensation for providing services in accordance
with this Agreement a unitary advisory fee as set forth in
Schedule A. The Adviser will pay its own expenses in connection
with the services to be provided by it pursuant to this
Agreement. In addition, the Adviser will be responsible for the
compensation of officers or employees of the Company who are
also officers or employees of the Adviser, except as may
otherwise be determined by the Board. During the term of this
Agreement for each Fund listed on Schedule A hereto, the Adviser
shall pay all of the expenses of the Fund (including
compensation of members of the Board who are not "interested
persons" (as that term is defined in the 0000 Xxx) of a
Fund), except for the fee payments under this Agreement,
payments under the Fund's 12b-1 plan, if any, brokerage
expenses, taxes, interest, litigation expenses and other
extraordinary expenses.
(b) Subject to the provisions of this Agreement and
the mutual agreement of the parties, the duties of the Adviser
and the fees to be paid to the Adviser under and pursuant to
this Agreement or other arrangement entered into in accordance
with this Agreement may be adjusted from time to time by the
parties, to the extent permitted by law, subject to the prior
approval of the Independent Trustees.
3. Use of Name
The Trust may use the name "DBX" or any variant
thereof in connection with the name of the Trust or any of the
Funds, only for so long as this Agreement or any extension,
renewal or amendment hereof remains in effect. At such time as
this Agreement shall no longer be in effect, the Trust shall
cease to use such a name or any other similar name.
In no event shall the Trust use the name "DBX" or
any variant thereof if the Adviser's functions are transferred
or assigned to a company over which the Adviser does not have
control or with which it is not affiliated. In the event that
this Agreement shall no longer be in effect or the Adviser's
functions are transferred or assigned to a company over which
the Adviser does not have control or with which it is not
affiliated, the Trust shall use its best efforts to legally
change its name by filing the required documentation with
appropriate state and federal agencies.
4. Liability and Indemnification
(a) Except as may otherwise be provided by the 1940
Act or any other federal securities law, neither the Adviser
nor any of its officers, members or employees (its
"Affiliates") will be liable for any losses, claims, damages,
liabilities or litigation (including legal and other expenses)
incurred or suffered by the Company as a result of any error
of judgment by the Adviser or its Affiliates with respect to
each Fund, except that nothing in this Agreement will operate
or purport to operate in any way to exculpate, waive or limit
the liability of the Adviser or its Affiliates for, and the
Adviser will indemnify and hold harmless the
Company against any and all losses, claims, damages,
liabilities or litigation (including reasonable legal and other
expenses) to which the Company may become subject under the 1933
Act, the 1940 Act, the Advisers Act, or under any other
statute, or common law or otherwise arising out of or based on
(i) any breach by the Adviser of an Adviser representation or
warranty made herein, (ii) any willful misconduct, bad faith,
reckless disregard or gross negligence of the Adviser in the
performance of any of its duties or obligations hereunder or
(iii) any untrue statement of a material fact contained in
the Prospectus and SAI, proxy materials, reports,
advertisements, sales literature, or other materials pertaining
to the Fund(s) or the omission to state therein a material
fact known to the Adviser which was required to be stated
therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished to the Company, or the omission of
such information, by the Adviser Indemnitees (as defined below)
for use therein.
(b) Except as may otherwise be provided by the 1940
Act or any other federal securities law, the Company will
indemnify and hold harmless the Adviser, all affiliated persons
thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx)
and all controlling persons (as described in Section 15 of the
1933 Act) (collectively, "Adviser Indemnitees") against any and
all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses) to which any of
the Adviser Indemnitees may become subject under the 1933 Act,
the 1940 Act, the Advisers Act, or under any other statute, at
common law or otherwise, arising out of or based on this
Agreement; provided however, the Company will not indemnify or
hold harmless the Adviser Indemnitees for any losses, claims,
damages, liabilities or litigation (including reasonable legal
and other expenses) arising out of or based on (i) any breach
by the Adviser of an Adviser representation or warranty made
herein, (ii) any willful misconduct, bad faith, reckless
disregard or gross negligence of the Adviser in the
performance of any of its duties or obligations hereunder or
(iii) any untrue statement of a material fact contained in the
Prospectus and SAI, proxy materials, reports, advertisements,
sales literature, or other materials pertaining to the Fund(s)
or the omission to state therein a material fact known to the
Adviser which was required to be stated therein or necessary to
make the statements therein not misleading, if such statement
or omission was made in reliance upon information furnished to
the Company, or the omission of such information, by the Adviser
Indemnities for use therein.
(c) A party seeking indemnification hereunder (the
"Indemnified Party") will
(i) provide prompt notice to the other of any claim ("Claim")
for which it intends to seek indemnification, (ii) grant
control of the defense and /or settlement of the Claim to the
other party, and (iii) cooperate with the other party in the
defense thereof. The Indemnified Party will have the right at
its own expense to participate in the defense of any Claim, but
will not have the right to control the defense, consent to
judgment or agree to the settlement of any Claim without the
written consent of the other party. The party providing the
indemnification will not consent to the entry of any judgment
or enter any settlement which (i) does not include, as an
unconditional term, the release by the claimant of all
liabilities for Claims against the Indemnified Party or (ii)
which otherwise adversely affects the rights of the Indemnified
Party.
5. Representations of the Adviser
The Adviser represents, warrants and agrees as follows:
(a) The Adviser (i) is registered as an investment
adviser under the Advisers Act and will continue to be so
registered for so long as this Agreement remains in effect; (ii)
is not prohibited by the 1940 Act, the Advisers Act or other
law, regulation or order from performing the services
contemplated by this Agreement; (iii) has met and will seek to
continue to meet, for so long as this Agreement remains in
effect, any other applicable federal or state requirements, or
the applicable requirements of any regulatory or industry self-
regulatory agency necessary to be met in order to perform the
services contemplated by this Agreement; (iv) has the authority
to enter into and perform the services contemplated by this
Agreement; and (v) will promptly notify the Company of the
occurrence of any event that would substantially impair the
Adviser's ability to fulfill its commitment under this Agreement
or disqualify the Adviser from serving as an investment adviser
of an investment company pursuant to Section 9(a) of the 1940
Act or otherwise. The Adviser will also promptly notify each
Fund if it is served or otherwise receives notice of any
action, suit, proceeding, inquiry or investigation, at law or
in equity, before or by any court, government agency, self
regulatory organization, public board or body, involving the
affairs of the Funds or the Adviser, provided, however, that
routine regulatory examinations will not be required to be
reported by this provision.
(b) The Adviser has adopted a written code of
ethics complying with the requirements of Rule 17j-1 under the
1940 Act and Rule 204A-1 under the Advisers Act and will provide
the Board with a copy of such code of ethics, together with
evidence of its adoption. Within forty-five days of the end of
the last calendar quarter of each year that this Agreement is in
effect, and as otherwise requested, the president, chief
operating officer or a vice-president of the Adviser will
certify to the Company that the Adviser has complied with the
requirements of Rule 17j-1 and Rule 204A-1 during the
previous year and that there has been no material violation
of the Adviser's code of ethics or, if such a material
violation has occurred, that appropriate action was taken in
response to such violation. Upon the written request of the
Company, the Adviser will permit the Company to examine the
reports required to be made to the Adviser by Rule 17j-1(c)(1)
and Rule 204A-1(b) and all other records relevant to the
Adviser's code of ethics but only to the extent such reports
and/or records relate to the provision of services hereunder.
(c) The Adviser has adopted and implemented and will
maintain (a) in accordance with Rule 206(4)-7 under the
Advisers Act, policies and procedures reasonably designed to
prevent violation by the Adviser and its supervised persons (as
such term is defined by the Advisers Act) of the Advisers Act
and the rules thereunder; and (b) to the extent that the
Adviser's activities or services could affect the Fund(s),
policies and procedures reasonably designed to prevent
violation of the federal securities laws (as such term is
defined in Rule 38a-1 under the 0000 Xxx) by the Fund(s) and
the Adviser (such policies and procedures being the "Compliance
Program"). The Adviser has provided the Company with a copy of
its Compliance Program and promptly will furnish a copy of all
amendments to the Compliance Program at least annually.
(d) The Adviser has provided the Company with a copy
of its Form ADV, which as of the date of this Agreement is its
Form ADV as most recently filed with the SEC and promptly will
furnish a copy of all amendments to the Company at least
annually. Such amendments will reflect those changes in the
Adviser's organizational structure, professional
staff or other significant developments affecting the Adviser,
which are required by the Advisers Act.
(e) The Adviser will notify the Company of any
assignment of this Agreement or change of control of the
Adviser, as applicable, and any changes in the key personnel
who are either the portfolio manager(s) of the Fund(s) or
senior management of the Adviser, in each case prior to or
promptly after, such change. The Adviser agrees to bear all
reasonable expenses of the Company, if any, arising out of an
assignment or change in control.
(f) The Adviser will notify the Company immediately
upon detection of (a) any material failure to manage the
Fund(s) in accordance with the Fund(s)' stated investment
objectives and policies or any applicable law; (b) any material
breach of any of the Fund(s)' or the Adviser's policies,
guidelines or procedures (including the Compliance Program); or
(c) any pending or threatened regulatory action, investigation,
lawsuit or other proceeding relating to the Adviser's management
of the Fund(s) and/or that could reasonably be expected to have
a material impact on the Adviser's ability to conduct its
business. Following the occurrence of any event set forth in
this paragraph, the Adviser agrees to cooperate with and
provide reasonable assistance to personnel of the Company
(including the chief compliance officer of the Adviser and/or
the Company) or their designees in connection with any efforts
to remedy or respond to such event.
(g) The Adviser agrees to maintain an appropriate
level of errors and omissions or professional liability
insurance coverage.
(h) The Adviser will promptly provide all other
information and documentation reasonably requested by the
Company or the Board.
6. Non-Exclusivity
The services of the Adviser to the Funds and the
Company are not to be deemed to be exclusive, and the Adviser
will be free to render investment advisory or other services to
others and to engage in other activities, provided the Adviser
furnishes adequate disclosure of possible conflicts of interest
and implements procedures designed to mitigate or eliminate such
conflicts. It is understood and agreed that the directors,
officers, and employees of the Adviser are not prohibited from
engaging in any other business activity or from rendering
services to any other person, or from serving as partners,
officers, directors, or employees of any other firm or
corporation.
7. Supplemental Arrangements
The Adviser may from time to time employ or associate
itself with any person it believes to be particularly suited to
assist it in providing the services to be performed by such
Adviser hereunder, provided that no such person will perform
any services with respect to the Funds that would constitute an
assignment or require a written advisory agreement pursuant to
the 1940 Act, except as otherwise provided in this Section 7. In
performing its duties under this Agreement, the Adviser may
delegate some or all of its duties and obligations under this
Agreement to one or more investment sub-advisers, including but
not limited to delegating the
voting of proxies relating to a Fund's portfolio securities in
accordance with the proxy voting policies and procedures of
such investment sub-adviser; provided, however, that any such
delegation shall be pursuant to an agreement with terms agreed
upon by the Company and approved in a manner consistent with
the 1940 Act and provided, further, that no such delegation
shall relieve the Adviser from its duties and obligations of
management and supervision of the management of each Fund's
assets pursuant to this Agreement and to applicable law. Any
compensation payable to such persons will be the sole
responsibility of the Adviser, and the Company will not have
any obligations with respect thereto or otherwise arising
under the Agreement.
8. Regulation
The Adviser will submit to all regulatory and
administrative bodies having jurisdiction over the services
provided pursuant to this Agreement any information, reports,
or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and
regulations and will promptly provide the Company with copies of
such information, reports and materials.
9. Records
The records relating to the services provided under
this Agreement will be the property of the Company and will be
under its control; however, the Company will furnish to the
Adviser such records and permit it to retain such records
(either in original or in duplicate form) as it will reasonably
require in order to carry out its business. In compliance with
the requirements of Rule 31a-3 under the 1940 Act, the Adviser
hereby agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act any records that it maintains for the
Trust and which are required to be maintained by Rule 31a-1
under the 1940 Act. In the event of the termination of this
Agreement or upon the Company's request, such records will
promptly be returned to the Company by the Adviser free from
any claim or retention of rights therein, provided that the
Adviser may retain any such records that are required by law
or regulation. The Adviser will keep confidential any
information obtained in connection with its duties hereunder and
disclose such information only if the Company has authorized
such disclosure or if such disclosure is expressly required or
requested by applicable federal or state regulatory
authorities, or as otherwise required by law.
10. Agency Cross Transactions
From time to time, the Adviser or brokers or dealers
affiliated with it may find themselves in a position to buy for
certain of their brokerage clients (each an "Account")
securities which the Adviser's investment advisory clients wish
to sell, and to sell for certain of their brokerage clients
securities which advisory clients wish to buy. Where one of the
parties is an advisory client, the Adviser or the affiliated
broker or dealer cannot participate in this type of transaction
(known as a cross transaction) on behalf of an advisory client
and retain commissions from one or both parties to the
transaction without the advisory client's consent. This is
because in a situation where the Adviser is making the
investment decision (as opposed to a brokerage client who makes
his own investment decisions), and the Adviser or an affiliate
is receiving commissions from both sides of the transaction,
there is a potential conflicting division of
loyalties and responsibilities on the Adviser's part regarding
the advisory client. The SEC has adopted a rule under the
Advisers Act, which permits the Adviser or its affiliates to
participate on behalf of an Account in agency cross
transactions if the advisory client has given written consent
in advance. By execution of this Agreement, the Company
authorizes the Adviser or its affiliates to participate in
agency cross transactions involving an Account. The Company may
revoke its consent at any time by written notice to the Adviser.
11. Duration
As to each Fund, this Agreement shall continue until the date
set forth opposite such Funds' name on Schedule A hereto
("Reapproval Date") and thereafter shall continue automatically
for successive annual periods ending on the day of each year
set forth opposite the Funds' name on Schedule A hereto
("Reapproval Day"), provided such continuance is specifically
approved at least annually: (i) by either the Board or by
vote of a "majority of the outstanding voting securities" (as
defined in the 0000 Xxx) of such Fund, and (ii) in either
event, by the vote of a majority of the Independent Trustees
cast in person at a meeting called for the purpose of voting on
such approval. Additional Funds may be added to Schedule A by
the Company upon written notice to the Adviser and only after
the approval by the Board of the Company, including a majority
of the Independent Trustees, cast in person at a meeting called
for the purpose of voting such approval and, if required under
the 1940 Act, a majority of the outstanding voting securities
(as defined in the 0000 Xxx) of each Fund.
12. Termination of Agreement
This Agreement may be terminated with respect to any
Fund at any time, without the payment of any penalty, by the
Board, including a majority of the Independent Trustees, or by
the vote of a majority of the outstanding voting securities of
such Fund, on sixty (60) days' written notice to the Adviser.
This Agreement may also be terminated with respect to any Fund
at any time, without the payment of any penalty, by the
Adviser, on sixty (60) days' written notice to such Fund. This
Agreement will automatically terminate, without the payment of
any penalty in the event this Agreement is assigned (as defined
in the 0000 Xxx) or terminates for any other reason. This
Agreement will also terminate upon written notice to the other
party that the other party is in material breach of this
Agreement, unless the other party in material breach of this
Agreement cures such breach to the reasonable satisfaction of
the party alleging the breach within thirty (30) days after
written notice. As discussed in Section 14 below, any
"assignment" (as that term is defined in the 0000 Xxx) of this
Agreement will result in automatic termination of this
Agreement.
13. Amendments to the Agreement
Except to the extent permitted by the 1940 Act or the
rules or regulations thereunder or pursuant to exemptive relief
or no-action relief granted by the SEC, this Agreement may be
amended by the parties only if such amendment, if material, is
specifically approved by the vote of a majority of the
outstanding voting securities of a Fund and by the vote of a
majority of the Independent Trustees cast in person at a
meeting called for the purpose of voting on such approval. The
required shareholder approval will be effective with respect to
a Fund if a majority of the outstanding voting
securities of the Fund vote to approve the
amendment, notwithstanding that the amendment may not have been
approved by a majority of the outstanding voting securities of
any other Fund affected by the amendment or all the Funds of
the Company.
Any change, waiver, discharge or termination of a
provision of this Agreement, whether or not such change is
deemed to be material, may be made only by an instrument in
writing signed by both the Company and the Adviser.
14. Assignment
The Adviser will not assign or transfer its rights and
obligations under this Agreement. Any assignment (as that term
is defined in the 0000 Xxx) of the Agreement will result in
the automatic termination of this Agreement, as provided in
Section 12 hereof. The Adviser agrees to bear all reasonable
legal, printing, mailing, proxy and related expenses of the
Company, if any, arising out of any assignment of this
Agreement by the Adviser. Notwithstanding the foregoing, no
assignment will be deemed to result from any changes in the
directors, officers or employees of such Adviser except as may be
provided to the contrary in the 1940 Act or the rules or
regulations thereunder.
15. Notices
Notices of any kind to be given hereunder will be in
writing and will be duly given if mailed or delivered as
follows: (a) to the Adviser at DBX Advisors LLC, 00 Xxxx Xxxxxx,
Xxx Xxxx, XX, Attention: Xxxxxx Xxxxxxxxxxx; (b) to the Funds
at DBX ETF Trust, 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxx X. Xxxxxxxx; or (c) at such other address or to
such other individual as any of the foregoing will designate by
notice to the others.
All notices required to be given pursuant to this
Agreement will be delivered or mailed to the address listed
above of each applicable party in person or by registered or
certified mail or a private mail or delivery service providing
the sender with notice of receipt or such other address as
specified in a notice duly given to the other parties. Notice
will be deemed given on the date delivered or mailed in
accordance with this paragraph.
16. Entire Agreement
This Agreement contains the entire understanding and
agreement of the parties with respect to each Fund.
This Agreement may be executed in two or more
counterparts, each of which when so executed will be deemed to
be an original, but such counterparts will together constitute
one and the same document.
17. Headings
The headings in the sections of this Agreement are
inserted for convenience of reference only and will not
constitute a part hereof.
18. Severability
Should any portion of this Agreement for any reason be
held to be void in law or in equity, the Agreement will be
construed, insofar as is possible, as if such portion had never
been contained herein.
19. Company and Shareholder Liability
The Adviser is hereby expressly put on notice of the
limitation of shareholder liability as set forth in the
Declaration of Trust and agrees that obligations, if any,
assumed by the Company pursuant to this Agreement will be
limited in all cases to the Company and its assets, and if the
liability relates to one or more series, the obligations
hereunder will be limited to the respective assets of the Fund.
The Adviser further agrees that it will not seek satisfaction of
any such obligation from the shareholders or any individual
shareholder of the Funds, nor from the Trustees or any
individual Trustee of the Company.
20. Governing Law
This Agreement will be governed by the laws of the
State of New York without reference to conflicts of laws
principles. Any and all litigation or other disputes arising from
this Agreement will be commenced in a federal or state court of
competent jurisdiction in New York City, New York.
21. Interpretation
Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise
derived from a term or provision of the 1940 Act will be
resolved by reference to such term or provision of the 1940 Act
and to interpretations thereof, if any, by the United States
courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued
pursuant to the 1940 Act. Specifically, the terms "vote of a
majority of the outstanding voting securities," "interested
persons," "assignment" and "affiliated persons," as used herein
will have the meanings assigned to them by Section 2(a) of the
1940 Act. In addition, where the effect of a requirement of the
1940 Act reflected in any provision of this Agreement is
relaxed by a rule, regulation or order of the SEC, whether of
special or of general application, such provision will be deemed
to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as
of the date set forth above.
DBX ETF TRUST
By: /s/ Xxxx X.
Xxxxxxxx Name:
Xxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer DBX ADVISORS
LLC
By: /s/ Xxxx X.
Xxxxxxxx Name:
Xxxx Xxxxxxxx
Title: Chief Operating Officer
By: /s/ Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title: Chief Executive Officer
SCHEDULE A
(as of May 18, 2016)
Information is displayed in the following order:
CURRENCY HEDGED FUNDS
ANNUAL FEE AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS*
REAPPROVAL DATE
REAPPROVAL DAY
Deutsche X-trackers MSCI
Emerging Markets Hedged Equity ETF
0.65%
February 28, 2016
February 28th
Deutsche X-trackers MSCI EAFE
Hedged Equity ETF
0.35%
February 28, 2016
February 28th
Deutsche X-trackers MSCI
Brazil Hedged Equity ETF
0.60%
February 28, 2016
February 28th
Deutsche X-trackers
MSCI Germany Hedged
Equity ETF
0.45%
February 28, 2016
February 28th
Deutsche X-trackers MSCI Japan Hedged Equity ETF
0.45%
February 28, 2016
February 28th
Deutsche X-trackers MSCI Asia Pacific
ex Japan Hedged Equity ETF
0.60%
February 28, 2016
February 28th
Deutsche X-trackers MSCI Europe Hedged Equity ETF
0.45%
February 28, 2016
February 28th
Deutsche X-trackers MSCI United Kingdom
Hedged Equity ETF
0.45%
February 28, 2016
February 28th
Deutsche X-trackers MSCI South Korea
Hedged Equity ETF
0.58%
February 28, 2016
February 28th
Deutsche X-trackers
MSCI Mexico Hedged Equity ETF
0.50%
February 28, 2016
February 28th
Deutsche X-trackers MSCI All
World ex- US Hedged Equity ETF
0.40%
February 28, 2016
February 28th
Deutsche X-trackers MSCI
Eurozone Hedged Equity ETF
0.45%
November 3, 2016
November 3rd
Deutsche X-trackers Dow
Xxxxx Hedged International Real Estate ETF
0.48%
February 19, 2017
February 19th
Deutsche X-trackers S&P
Hedged Global Infrastructure ETF
0.45%
February 19, 2017
February 19th
Deutsche X-trackers Japan
JPX-Nikkei 400 Hedged Equity ETF
0.45%
February 19, 2017
February 19th
Deutsche X-trackers MSCI
EAFE High Dividend Yield Hedged Equity ETF
0.45%
May 21, 2017
May 21st
Deutsche X-trackers MSCI Emerging Markets High
Dividend Yield Hedged Equity ETF
0.65%
May 21, 2017
May 21st
Deutsche X-trackers MSCI
Eurozone High Dividend Yield Hedged Equity ETF
0.45%
May 21, 2017
May 21st
Deutsche X-trackers MSCI All World ex US High
Dividend YieldHedged Equity ETF
0.45%
May 21, 2017
May 21st
Deutsche X-trackers
MSCI EAFE Small Cap Hedged Equity ETF
0.45%
May 21, 2017
May 21st
Deutsche X-trackers MSCI
Australia Hedged Equity ETF
0.45%
May 21, 2017
May 21st
Deutsche X-trackers MSCI
Southern Europe Hedged Equity ETF
0.45%
May 21, 2017
May 21st
Deutsche X-trackers
MSCI Italy Hedged Equity ETF
0.45%
May 21, 2017
May 21st
Deutsche X-trackers
MSCI Spain Hedged Equity ETF
0.45%
May 21, 2017
May 21st
EQUITY FUNDSDeutsche X-trackers Japan
JPX-Nikkei 400 Equity ETF
0.40%
February 19, 2017
February 19th
Deutsche X-trackers MSCI
Latin America Pacific Alliance ETF
0.55%
July 23, 2017
July 23rd
Deutsche X-trackers FTSE Developed ex US
Comprehensive Factor ETF
0.35%
November 4, 2017
November 4th
*Expressed as a percentage of average daily net assets. Out of each
Fund's advisory fee, the Adviser will pay all of the expenses of the
Fund, except for the fee payments under this Agreement, payments under
the Fund's 12b-1 plan, if any, brokerage expenses, taxes, interest,
litigation expenses and other extraaordinary expenses.
