INVESTMENT ADVISORY AGREEMENT
Agreement made as of January 31, 2011 and amended as
of February 7, 2014, 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
WHEREAS, the Adviser is willing to render such
investment advisory services to the Funds.
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 B.
(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 B. 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
This Agreement will become effective upon the date
first above written (and as set forth on Schedule A with respect
to additional Funds to be added following the date first written
above), provided that this Agreement will not take effect unless
it has first been approved: (i) by a vote of a majority of the
Independent Trustees, cast in person at a meeting called for the
purpose of voting on such approval, and (ii) by vote of a
majority of each Fund's outstanding securities. This Agreement
will continue in effect for a period more than two years from
the date of its execution only so long as 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: ____________________
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
DBX ADVISORS LLC
By: ____________________
Name: Xxxx Xxxxxxxx
Title: Chief Operating Officer
By: ____________________
Name: Xxxxxx Xxxxxxxxxxx
Title: Chief Executive Officer
SCHEDULE A
(as of February 7, 2014)
Fund
Effective Date of Agreement
db X-trackers MSCI Emerging Markets Hedged Equity Fund
January 31, 2011
db X-trackers MSCI EAFE Hedged Equity Fund
January 31, 2011
db X-trackers MSCI Brazil Hedged Equity Fund
January 31, 2011
db X-trackers MSCI Germany Hedged Equity Fund
January 31, 2011
db X-trackers MSCI Japan Hedged Equity Fund
January 31, 2011
db X-trackers Regulated Utilities Fund
March 25, 2013
db X-trackers Municipal Infrastructure Revenue Bond Fund
March 25, 2013
db X-trackers Solactive Investment Grade Subordinated Debt Fund
July 25, 2013
db X-trackers MSCI Asia Pacific ex Japan Hedged Equity Fund
July 25, 2013
db X-trackers MSCI Europe Hedged Equity Fund
July 25, 2013
db X-trackers MSCI United Kingdom Hedged Equity Fund
July 25, 2013
db X-trackers MSCI South Korea Hedged Equity Fund
November 18, 2013
db X-trackers MSCI Mexico Hedged Equity Fund
November 18, 2013
db X-trackers MSCI All World ex-US Hedged Equity Fund
November 18, 2013
db X-trackers S&P 500 CROCI Equity Fund
November 18, 2013
db X-trackers EAFE CROCI Equity Fund
November 18, 2013
db X-trackers Ultra Short Duration Fund
November 18, 2013
db X-trackers Managed Municipal Bond Fund
November 18, 2013
db X-trackers Harvest CSI 300 China A-Shares Fund
February 7, 2014
SCHEDULE B
(as of February 7, 2014)
Fund
Advisory Fee*
db X-trackers MSCI Emerging Markets Hedged Equity Fund
0.65%
db X-trackers MSCI EAFE Hedged Equity Fund
0.35%
db X-trackers MSCI Brazil Hedged Equity Fund
0.60%
db X-trackers MSCI Germany Hedged Equity Fund
0.45%
db X-trackers MSCI Japan Hedged Equity Fund
0.45%
db X-trackers Regulated Utilities Fund
0.45%
db X-trackers Municipal Infrastructure Revenue Bond Fund
0.30%
db X-trackers Solactive Investment Grade Subordinated Debt Fund
0.45%
db X-trackers MSCI Asia Pacific ex Japan Hedged Equity Fund
0.60%
db X-trackers MSCI Europe Hedged Equity Fund
0.45%
db X-trackers MSCI United Kingdom Hedged Equity Fund
0.45%
db X-trackers MSCI South Korea Hedged Equity Fund
0.58%
db X-trackers MSCI Mexico Hedged Equity Fund
0.50%
db X-trackers MSCI All World ex-US Hedged Equity Fund
0.40%
db X-trackers S&P 500 CROCI Equity Fund
0.30%
db X-trackers EAFE CROCI Equity Fund
0.40%
db X-trackers Ultra Short Duration Fund
0.25%
db X-trackers Managed Municipal Bond Fund
0.40%
db X-trackers Harvest CSI 300 China A-Shares Fund
0.80%
* 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 extraordinary expenses.
