INVESTMENT SUB-ADVISORY AGREEMENT
This INVESTMENT SUB-ADVISORY AGREEMENT (this "Agreement"), dated February
3, 2020, is by and among First Trust Exchange-Traded Fund III, a Massachusetts
business trust (the "Trust"), First Trust Advisors L.P., an Illinois limited
partnership (the "Manager") and a registered investment adviser with the
Securities and Exchange Commission (the "SEC"), and Vivaldi Asset Management,
LLC a Delaware limited liability company and a registered investment adviser
with the SEC (the "Sub-Adviser").
WHEREAS, the First Trust Merger Arbitrage ETF (the "Fund") is a series of
the Trust, an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust has retained the Manager to serve as the investment
adviser for the Fund pursuant to an Investment Management Agreement between the
Manager and the Trust with an effective date for the Fund of February 3, 2020
(as such agreement may be modified from time to time, the "Management
Agreement");
WHEREAS, the Management Agreement provides that the Manager may, subject
to certain requirements, appoint one or more sub-advisers at its own cost and
expense for the purpose of furnishing certain services required under the
Management Agreement; and
WHEREAS, the Trust and the Manager desire to retain the Sub-Adviser to
furnish investment advisory services for the Fund's investment portfolio, upon
the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Appointment. The Trust and the Manager hereby appoint the Sub-Adviser
to serve as Sub-Adviser and to provide certain investment sub-advisory services
to the Fund for the period and on the terms set forth in this Agreement. The
Sub-Adviser accepts such appointment and agrees to furnish the services herein
set forth for the compensation herein provided. The Sub-Adviser shall, for all
purposes herein provided, be deemed an independent contractor and, unless
otherwise expressly provided or authorized, shall have no authority to act for
nor represent the Trust, the Fund or the Manager in any way, nor otherwise be
deemed an agent of the Trust, the Fund or the Manager.
2. Services to Be Performed. Subject always to the supervision of the
Trust's Board of Trustees (the "Board of Trustees" or the "Board") and the
Manager, the Sub-Adviser will act as sub-adviser for, and manage on a
discretionary basis the investment and reinvestment of the assets of the Fund,
furnish an investment program in respect of, make investment decisions for, and
place all orders (either directly or through the Manager) for the purchase and
sale of securities and other assets for the Fund's investment portfolio, all on
behalf of the Fund and as described in the Fund's most current effective
registration statement on Form N-1A and as the same may thereafter be amended
from time to time. In the performance of its duties, the Sub-Adviser will (a)
satisfy any applicable fiduciary duties it may have to the Fund, (b) monitor the
Fund's investments or other instruments, (c) comply with the provisions of the
Trust's Declaration of Trust and By-laws, as amended from time to time and
communicated by the Fund or the Manager to the Sub-Adviser, (d) comply with (i)
the investment objective, policies and restrictions stated in the Fund's most
recently effective prospectus and statement of additional information, (ii) such
other investment objectives, policies, restrictions or instructions as the
Manager or the Trust's Board of Trustees may communicate to the Sub-Adviser in
writing, and (iii) any changes to the objectives, policies, restrictions or
instructions required under the foregoing (i) and (ii) as communicated to the
Sub-Adviser in writing and (e) assist in the valuation of portfolio assets held
by the Fund as requested by the Manager or the Fund. The Sub-Adviser and the
Manager will each make its officers and employees available to the other from
time to time at reasonable times to review the investment objective, policies
and restrictions of the Fund and to consult with each other regarding the
investment affairs of the Fund. The Fund or the Manager will provide the
Sub-Adviser with current copies of the Trust's Declaration of Trust, the Trust's
By-laws and any amendments thereto.
Unless otherwise provided by the Manager, the Sub-Adviser is responsible for
voting in respect of securities and other assets held in the Fund's portfolio
and will exercise or not exercise a right to vote in accordance with the
Sub-Adviser's proxy voting policy, a copy of which has been provided to the
Manager. The Sub-Adviser shall promptly notify the Manager and the Fund of any
material change in the voting policy. Unless otherwise provided by the Manager,
the Sub-Adviser is permitted to represent any holdings on behalf of the Fund at
any ordinary or special meeting of shareholders and has the right to exercise
any voting rights or any other similar or connected rights.
Notwithstanding that the Manager may, at its discretion, select brokers,
dealers, futures commission merchants, banks and other agents or counterparties
that will execute purchases and sales of portfolio investments for the Fund,
unless otherwise notified by the Manager, the Sub-Adviser is also authorized to
select such entities in conjunction with the purchases and sales of portfolio
investments for the Fund. With respect to such activities, the Sub-Adviser is
directed to use its commercially reasonable efforts to obtain best execution,
taking into account all appropriate factors, including among other things,
price, dealer spread or commission, size and difficulty of the transaction and
research or other services provided. Subject to approval by the Board of
Trustees and compliance with the policies and procedures adopted by the Board of
Trustees for the Fund and to the extent permitted by and in conformance with
applicable law (including, if applicable, Rule 17e-1 under the 1940 Act), the
Sub-Adviser may select brokers or dealers affiliated with the Sub-Adviser. It is
understood that the Sub-Adviser will not be deemed to have acted unlawfully, or
to have breached a fiduciary duty to the Trust or the Fund, or be in breach of
any obligation owing to the Trust or the Fund under this Agreement, or
otherwise, solely by reason of its having caused the Fund to pay a member of a
securities exchange, a broker or a dealer a commission for effecting a
securities transaction for the Fund in excess of the amount of commission
another member of an exchange, broker or dealer would have charged if the
Sub-Adviser determined in good faith that the commission paid was reasonable in
relation to the value of the brokerage or research services provided by such
member, broker or dealer, viewed in terms of that particular transaction or the
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Sub-Adviser's overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion.
In addition, the Sub-Adviser may, to the extent permitted by applicable
law, aggregate purchase and sale orders of securities or other instruments
placed with respect to the assets of the Fund with similar orders being made
simultaneously for other accounts managed by the Sub-Adviser or its affiliates,
if in the Sub-Adviser's reasonable judgment such aggregation shall result in an
overall economic benefit to the Fund, taking into consideration the selling or
purchase price, brokerage commissions and other expenses. In the event that a
purchase or sale of an asset of the Fund occurs as part of any aggregate sale or
purchase orders, the objective of the Sub-Adviser and any of its affiliates
involved in such transaction shall be to allocate the assets so purchased or
sold, as well as expenses incurred in the transaction, among the Fund and other
accounts in a fair and equitable manner. Nevertheless, the Fund and the Manager
acknowledge that under some circumstances, such allocation may adversely affect
the Fund with respect to, among other things, the price or size of the assets
obtainable or salable. Whenever the Fund and one or more other investment
advisory clients of the Sub-Adviser have available funds for investment,
investments suitable and appropriate for each will be allocated in a manner
believed by the Sub-Adviser to be equitable to each, although such allocation
may result in a delay in one or more client accounts being, or the inability of
one or more accounts to be, fully invested that would not occur if such an
allocation were not made. Moreover, it is possible that due to differing
investment objectives or for other reasons, the Sub-Adviser and its affiliates
may purchase securities or other instruments of an issuer for one client and at
approximately the same time recommend selling or sell the same or similar types
of securities, assets or instruments for another client.
The Sub-Adviser will not arrange purchases or sales of securities or other
assets between the Fund and other accounts advised by the Sub-Adviser or its
affiliates unless (a) such purchases or sales are in accordance with applicable
law (including, if applicable, Rule 17a-7 under the 0000 Xxx) and the Fund's
policies and procedures, (b) the Sub-Adviser determines the purchase or sale is
in the best interests of the Fund, and (c) the Board of Trustees has approved
these types of transactions.
The Fund may adopt policies and procedures that modify or restrict the
Sub-Adviser's authority regarding the execution of the Fund's portfolio
transactions provided herein.
For purposes of complying with Rule 10f-3, Rule 12d3-1, Rule 17a-10 and
Rule 17e-1 under the 1940 Act, the Sub-Adviser hereby agrees that it will not
consult with any other sub-adviser of an investment company or a series of an
investment company that is advised by the Manager (the "First Trust Fund
Complex") or an affiliated person of a sub-adviser (including any sub-adviser
that is a principal underwriter or an affiliated person of such principal
underwriter), concerning transactions for the Fund or any fund in the First
Trust Fund Complex in securities or other fund assets. In addition, with respect
to a fund in the First Trust Fund Complex with multiple sub-advisers, the
Sub-Adviser shall be limited to providing investment advice with respect to only
the discrete portion of a fund's portfolio as may be determined from time to
time by the Board of Trustees or the Manager, and shall not consult with a
sub-adviser (including any sub-adviser that is a principal underwriter or an
affiliated person of such principal underwriter) as to any other portion of a
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fund's portfolio concerning transactions for a fund in securities or other
assets. Notwithstanding the foregoing, the provisions of this paragraph do not
apply to consultations between the Sub-Adviser and any sub-adviser retained by
the Sub-Adviser pursuant to Section 4 hereof.
The Sub-Adviser will communicate to the officers and Trustees of the Trust
such information relating to transactions for the Fund as they may reasonably
request. In no instance will the Fund's portfolio assets be purchased from or
sold to the Manager, the Sub-Adviser or any affiliated person of either the
Trust, the Manager or the Sub-Adviser, except as may be permitted under the 1940
Act and under no circumstances will the Sub-Adviser select brokers or dealers
for Fund transactions on the basis of Fund share sales by such brokers or
dealers.
The Sub-Adviser further agrees that it:
(a) will use the same degree of skill and care in providing such
services as it uses in providing services to other fiduciary accounts for
which it has investment responsibilities;
(b) will (i) conform in all material respects to all applicable
rules and regulations of the SEC, the Commodity Futures Trading Commission
and any other applicable regulatory authority, (ii) comply in all material
respects with all policies and procedures adopted by the Board of Trustees
for the Fund and communicated to the Sub-Adviser in writing, (iii) conduct
its activities under this Agreement in all material respects in accordance
with any applicable law and regulations of any governmental authority
pertaining to its investment advisory activities and commodity trading
advisory activities and (iv) promptly notify the Manager and the Fund if
the Sub-Adviser intends to engage in any derivative transactions on behalf
of the Fund's portfolio;
(c) will report to the Manager and to the Board of Trustees on a
quarterly basis and will make appropriate persons available for the
purpose of reviewing with representatives of the Manager and the Board of
Trustees on a regular basis at such times as the Manager or the Board of
Trustees may reasonably request in writing regarding the management of the
Fund, including, without limitation, review of the general investment
strategies of the Fund, the performance of the Fund's investment portfolio
in relation to relevant standard industry indices and general conditions
affecting the marketplace and will provide various other reports from time
to time as reasonably requested by the Manager or the Board of Trustees;
(d) will prepare and maintain such books and records with respect
to the Fund's assets and other transactions for the Fund's investment
portfolio as required under applicable law, the Fund's compliance policies
and procedures or as otherwise requested by the Manager or the Board of
Trustees and will prepare and furnish the Manager and the Board of
Trustees such periodic and special reports as the Board of Trustees or the
Manager may request. Such records shall be open to inspection at all
reasonable times by the Manager or the Fund and any appropriate regulatory
authorities. The Sub-Adviser further agrees that all records that it
maintains for the Fund are the property of the Fund and the Sub-Adviser
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will surrender promptly to the Fund any such records upon the request of
the Manager or the Fund (provided, however, that the Sub-Adviser shall be
permitted to retain copies thereof); and shall be permitted to retain
originals (with copies to the Fund) to the extent required under Rule
204-2 under the Investment Advisers Act of 1940 or other applicable law;
and
(e) will monitor the pricing of portfolio assets, and events
relating to the issuers of those assets and the markets in which the
securities or other assets trade in the ordinary course of managing the
portfolio investments of the Fund, and will notify the Manager promptly of
any issuer-specific or market events or other situations that occur
(particularly those that may occur after the close of a foreign market in
which the investments may primarily trade but before the time at which the
Fund's investments are priced on a given day) that may materially impact
the pricing of one or more securities or other assets in the Fund's
portfolio. In addition, the Sub-Adviser will at the Manager's request
assist the Manager in evaluating the impact that such an event may have on
the net asset value of the Fund and in determining a recommended fair
value of the affected investment or investments.
3. Expenses. During the term of this Agreement, the Sub-Adviser will pay
one-half of all expenses of the Fund (including the cost of transfer agency,
custody, fund administration, legal, audit and other services and license fees,
if any) but excluding (i) the fee payment under this Agreement, (ii) the
investment management fee payment under the Management Agreement, (iii)
interest, taxes, brokerage commissions, acquired fund fees, if any, and expenses
and other expenses connected with the execution of portfolio transactions (such
as dividend and distribution expenses from securities sold short and/or other
investment related costs), (iv) distribution and service fees payable pursuant
to a Rule 12b-1 plan, if any, and (v) extraordinary expenses (collectively, the
"Fund Expenses") in the manner set forth in Section 5 below. In addition, during
the term of this Agreement, the Sub-Adviser will pay all expenses incurred by it
in connection with its activities under this Agreement other than the cost of
securities and other assets (including brokerage commissions, if any) purchased
for the Fund. Further, the Sub-Adviser agrees to bear any and all costs and
expenses arising in connection with any actual, proposed, expected or possible
assignment of this Agreement (even if a proposed, expected or possible
assignment ultimately does not take place). For the avoidance of doubt, without
limiting the immediately preceding sentence, if there is a termination (or
possible or anticipated termination) of this Agreement as a result of an
assignment (or possible or anticipated assignment), then the Sub-Adviser shall
bear, without limitation, (a) the expenses and costs incurred in connection with
preparing, printing, filing and mailing an information statement or proxy
statement, as applicable and (b) if relevant, solicitation and other costs
associated with the use of a proxy statement. The preceding two sentences,
however, shall not apply in the event of an assignment or proposed assignment by
the Manager, including any termination of this Agreement that results from an
assignment of the Management Agreement or this Agreement, in each case, arising
from a change in control of the Manager.
4. Additional Sub-Advisers. Subject to obtaining the initial and periodic
approvals required under Section 15 of the 1940 Act (after taking into effect
any exemptive order, amendment thereto, no-action assurances or other relief,
rule or regulation upon which the Fund may rely) and the approval of the
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Manager, the Sub-Adviser may retain one or more additional sub-advisers at the
Sub-Adviser's own cost and expense for the purpose of furnishing one or more of
the services described in Section 2 hereof with respect to the Fund. Retention
of a sub-adviser hereunder shall in no way reduce the responsibilities or
obligations of the Sub-Adviser under this Agreement and the Sub-Adviser shall be
responsible to the Fund for all acts or omissions of any sub-adviser in
connection with the performance of the Sub-Adviser's duties hereunder.
5. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, the Manager will pay the Sub-Adviser, and the
Sub-Adviser agrees to accept as full compensation therefor, a portfolio
management fee (the "Management Fee") equal to the annual rate of 0.625% of the
average daily net assets of the Fund; provided, however, such Management Fee
payment shall be reduced by the amount of Fund Expenses owed by the Sub-Adviser
under Section 3 hereof. The Management Fee net of the Fund Expenses shall be
payable in arrears on or about the first day of each month during the term of
this Agreement. If the Fund Expenses owed by the Sub-Adviser are greater than
the Management Fee, the Sub-Adviser shall pay the Fund/Manager the difference by
the date the Management Fee would have been due.
For the month and year in which this Agreement becomes effective or terminates,
there shall be an appropriate proration on the basis of the number of days that
the Agreement is in effect during the month and year, respectively.
6. Services to Others. The Trust and the Manager acknowledge that the
Sub-Adviser now acts, or may in the future act, as an investment adviser to
other managed accounts and as investment adviser or investment sub-adviser to
one or more other investment companies that are not series of the Trust. In
addition, the Trust and the Manager acknowledge that the persons employed by the
Sub-Adviser to assist in the Sub-Adviser's duties under this Agreement will not
devote their full time to such efforts. It is also agreed that the Sub-Adviser
may use any supplemental research obtained for the benefit of the Fund in
providing investment advice to its other investment advisory accounts and for
managing its own accounts.
7. Limitation of Liability. The Sub-Adviser shall not be liable for, and
the Trust and the Manager will not take any action against the Sub-Adviser to
hold the Sub-Adviser liable for, any error of judgment or mistake of law or for
any loss suffered by the Fund or the Manager (including, without limitation, by
reason of the purchase, sale or retention of any security or other asset) in
connection with the performance of the Sub-Adviser's duties under this
Agreement, except for a loss resulting from willful misfeasance, bad faith or
gross negligence on the part of the Sub-Adviser in the performance of its duties
under this Agreement, or by reason of its reckless disregard of its obligations
and duties under this Agreement.
8. Term; Termination. This Agreement shall become effective on the date
first set forth above, provided that it has been approved in the manner required
by the 1940 Act (after taking into effect any exemptive order, amendment
thereto, no-action assurances, or other relief, rule or regulation upon which
the Fund may rely), and shall remain in full force until the two year
anniversary of the date of its effectiveness unless sooner terminated as
hereinafter provided. This Agreement shall continue in force from year to year
thereafter, but only as long as such continuance is specifically approved for
the Fund at least annually in the manner required by the 1940 Act and the rules
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and regulations thereunder (after taking into effect any exemptive order,
amendment thereto, no-action assurances, or other relief, rule or regulation
upon which the Fund may rely); provided, however, that if the continuation of
this Agreement is not approved for the Fund, the Sub-Adviser may continue to
serve in such capacity for the Fund in the manner and to the extent permitted by
the 1940 Act and the rules and regulations thereunder.
This Agreement shall automatically terminate in the event of its
assignment and may be terminated at any time without the payment of any penalty
by the Manager or the Sub-Adviser upon sixty (60) days' written notice to the
other parties. This Agreement may also be terminated by the Fund by action of
the Board of Trustees or by a vote of a majority of the outstanding voting
securities of the Fund upon sixty (60) days' written notice to the Sub-Adviser
by the Fund without payment of any penalty.
This Agreement may be terminated at any time without the payment of any
penalty by the Manager, the Board of Trustees or by vote of a majority of the
outstanding voting securities of the Fund in the event that it shall have been
established by a court of competent jurisdiction that the Sub-Adviser or any
officer or director of the Sub-Adviser has taken any action that results in a
breach of the material covenants of the Sub-Adviser set forth herein.
The terms "assignment" and "vote of a majority of the outstanding voting
securities" shall have the meanings set forth in the 1940 Act and the rules and
regulations thereunder.
This Agreement shall automatically terminate in the event the Management
Agreement between the Manager and the Trust on behalf of the Fund is terminated,
assigned or not renewed.
Termination of this Agreement shall not affect the right of the
Sub-Adviser to receive payments on any unpaid balance of the compensation
described in Section 5 or the obligation of the Sub-Adviser to pay its share of
Fund Expenses as described in Sections 3 and 5, earned or accrued prior to such
termination and for any additional period during which the Sub-Adviser serves as
such for the Fund, subject to applicable law.
9. Compliance Certification. From time to time, the Sub-Adviser shall
provide such certifications with respect to Rule 38a-1 under the 1940 Act, as
are reasonably requested by the Fund or the Manager. In addition, the
Sub-Adviser will, from time to time, provide a written assessment of its
compliance program in conformity with current industry standards that is
reasonably acceptable to the Fund to enable the Fund to fulfill its obligations
under Rule 38a-1 under the 1940 Act.
10. Use of Name. The Trust, the Fund and the Manager acknowledge that, as
among the Trust, the Fund and the Manager, on the one hand, and the Sub-Adviser,
on the other hand, the Sub-Adviser owns and controls the term "Vivaldi" and all
marks related thereto. The Manager represents and agrees that it will not use
the term "Vivaldi" in the name of the Fund without the express written
permission of the Sub-Adviser. Upon mutual agreement of the parties to use the
name "Vivaldi" in the name of the Fund, the Sub-Adviser hereby grants to the
Fund a world-wide, non-exclusive, fully-paid and royalty free license to use the
name "Vivaldi" in the name of the Fund for the remaining duration of this
Agreement and any extensions or renewals thereof. Such license will, upon
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termination of this Agreement or such earlier time as the parties may determine
to no longer use the name "Vivaldi" in the name of the Fund, be automatically
and without further action by the Sub-Adviser terminated, in which event the
Fund shall promptly take whatever action may be necessary (including calling a
meeting of the Board of Trustees) to change its name and to discontinue any
further use of the name "Vivaldi" in the name of the Fund or otherwise. Nothing
herein will prevent the Sub-Adviser from granting a license with respect to the
name "Vivaldi" to any other party in connection with any of its other
activities.
11. Notice. Any notice under this Agreement shall be sufficient in all
respects if given in writing and delivered by commercial courier providing proof
of delivery and addressed as follows or addressed to such other person or
address as such party may designate for receipt of such notice.
If to the Manager or the Fund: If to the Sub-Adviser:
First Trust Exchange-Traded Fund III, on
behalf of First Trust Merger Arbitrage ETF Vivaldi Asset Management, LLC
First Trust Advisors L.P. 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx, Xxxxxxxx 00000 Attention: General Counsel
Attention: Secretary
12. Limitations on Liability. All parties hereto are expressly put on
notice of the Trust's Declaration of Trust and all amendments thereto, a copy of
which is on file with the Secretary of the Commonwealth of Massachusetts, and
the limitation of shareholder and Trustee liability contained therein and a copy
of which has been provided to the Sub-Adviser prior to the date hereof. This
Agreement is executed by the Trust on behalf of the Fund by the Trust's officers
in their capacity as officers and not individually and is not binding upon any
of the Trustees, officers or shareholders of the Trust individually but the
obligations imposed upon the Trust or Fund by this Agreement are binding only
upon the assets and property of the Fund, and persons dealing with the Trust or
Fund must look solely to the assets of the Fund for the enforcement of any
claims.
13. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement will be binding upon and shall inure to the benefit of the parties
hereto and their respective successors.
14. Applicable Law. This Agreement shall be construed in accordance with
applicable federal law and (except as to Section 12 hereof, which shall be
construed in accordance with the laws of the Commonwealth of Massachusetts) the
laws of the State of Illinois. For the avoidance of doubt, where the effect of a
requirement of the 1940 Act reflected in any provision of this Agreement is
relaxed by a rule, regulation, no-action assurance, order (including any
amendment thereto) or other relief of the SEC, whether of special or of general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation, no-action assurance, order (including any amendment thereto)
or other relief.
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15. Amendment. This Agreement may only be amended, or its provisions
modified or waived, in a writing signed by the party against which such
amendment, modification or waiver is sought to be enforced.
16. Authority. Each party represents to the others that it is duly
authorized and fully empowered to execute, deliver and perform this Agreement.
The Trust represents that engagement of the Sub-Adviser has been duly authorized
by the Trust and is in accordance with the Trust's Declaration of Trust and
other governing documents of the Fund.
17. Third Party Beneficiaries. None of the provisions of this Agreement
shall be for the benefit of, or enforceable by, any person or entity that is not
a party hereto.
18. Forum Selection. Any action brought on or with respect to this
Agreement or any other document executed in connection herewith or therewith by
a party to this Agreement against another party to this Agreement shall be
brought only in a court of competent jurisdiction in Chicago, Xxxx County,
Illinois, or if venue does not lie in any such court only in a court of
competent jurisdiction within the State of Illinois (the "Chosen Courts"). Each
party to this Agreement (a) consents to jurisdiction in the Chosen Courts; (b)
waives any objection to venue in any of the Chosen Courts; and (c) waives any
objection that any of the Chosen Courts is an inconvenient forum. In any action
commenced by a party hereto against another party to the Agreement, there shall
be no right to a jury trial. THE RIGHT TO A TRIAL BY JURY IS EXPRESSLY WAIVED TO
THE FULLEST EXTENT PERMITTED BY LAW.
19. Severability. Each provision of this Agreement is intended to be
severable from the others so that if any provision or term hereof is illegal or
invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remaining provisions and terms hereof; provided,
however, that the provisions governing payment of the Management Fee described
in Section 5 and the obligation to pay Fund Expenses described in Sections 3 and
5 are not severable.
20. Entire Agreement; Counterparts. This Agreement constitutes the sole
and entire agreement of the parties hereto with respect to the subject matter
expressly set forth herein. This Agreement may be signed in any number of
counterparts, each of which shall be an original with the same effect as if the
signatures were upon the same instrument.
[Signature page follows.]
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IN WITNESS WHEREOF, the Trust on behalf of the Fund, the Manager and the
Sub-Adviser have caused this Agreement to be executed as of the day and year
first above written.
FIRST TRUST ADVISORS L.P. VIVALDI ASSET MANAGEMENT, LLC
By /s/ Xxxxx X. Xxxxx By /s/ Xxxx Xxxxxxxxx
------------------------------------- -------------------------------
Title: Chief Financial Officer Title: Chief Operating Officer
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FIRST TRUST EXCHANGE-TRADED FUND III,
on behalf of First Trust Merger Arbitrage ETF
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Title: President and CEO
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