Exhibit 99.(d)(1)
SECOND AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
E*TRADE FUNDS ("TRUST")
(with respect to Index Funds)
AGREEMENT, effective commencing as of September 15, 2003 with respect to
only the E*TRADE Technology Index Fund and effective as of November 10, 2003
with respect to each other series listed on the attached Exhibit A (each series
(including E*TRADE Technology Index Fund) is hereinafter referred to as a
"Fund") between E*TRADE Asset Management, Inc. ("Adviser") and E*TRADE Funds
("Trust")
WHEREAS, the Trust is a Delaware statutory trust organized pursuant to a
Trust Instrument dated November 4, 1998, as amended from time to time ("Trust
Instrument"), and is registered under the Investment Company Act of 1940, as
amended ("1940 Act"), as an open-end management investment company, and each
Fund is a series of the Trust; and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Trust has retained the Adviser to render investment advisory
services to the Trust, on behalf of the: E*TRADE International Index Fund and
the E*TRADE S&P 500 Index Fund pursuant to an Amended and Restated Investment
Advisory Agreement dated August 12, 1999; E*TRADE Xxxxxxx 2000 Index pursuant to
an amendment to that Amended and Restated Investment Advisory Agreement dated
October 22, 1999; and E*TRADE Technology Index Fund pursuant to a separate
Investment Advisory Agreement dated August 12, 1999;
WHEREAS, the Trust wishes to continue to retain the Adviser to render
investment advisory services to each Fund, and the Trust and Adviser desire to
amend the prior investment advisory agreements between the parties in order to
reflect additional duties and responsibilities being assumed by the Adviser with
respect to all of the Funds and to increase the investment advisory fees with
respect to the E*TRADE International Index Fund and the E*TRADE Xxxxxxx 2000
Index Fund.
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the Trust and the Adviser as follows:
1. Appointment. The Trust hereby appoints the Adviser to act as investment
adviser to each Fund subject to the supervision of the Trustees of the Trust,
and for the periods and in the manner and on the terms and conditions set forth
in this Agreement. The Adviser accepts such appointment for the compensation
herein provided and agrees to furnish the services and to assume the obligations
set forth in this Agreement commencing on its effective date.
2. Investment Advisory Duties.
(a) Subject to the supervision of the Board of Trustees of the Trust, the
Adviser:
(i) will have overall supervisory responsibility for the general
management and investment of each Fund's assets and will provide a program of
continuous investment management for each Fund in accordance with each Fund's
investment objective, policies and limitations as stated in each Fund's
Prospectus and Statement of Additional Information included as part of the
Trust's Registration Statement filed with the Securities and Exchange Commission
("SEC") and as the Prospectus and Statement of Additional Information may be
amended or otherwise supplemented from time to time, copies of which shall be
provided to the Adviser by the Trust;
(ii) may, at its own expense (and subject to approval by the Board of
Trustees and the investment objective, policies and limitations set forth in
each Fund's Prospectus and Statement of Additional Information) select and
contract with one or more investment sub-advisers (each a "Sub-Adviser"), who
may be granted discretionary investment authority for all or a portion of the
portfolio of any Fund, or materially modify or terminate any sub-advisory
agreement; provided, that any sub-advisory agreement with a Sub-Adviser shall be
in compliance with and approved as required by the 1940 Act or in accordance
with exemptive relief granted by the SEC under the 1940 Act; and
(iii) will have full investment discretion to make all determinations
with respect to the investment of a Fund's assets not then managed by a
Sub-Adviser. In connection with the Adviser's responsibilities herein, the
Adviser will assess each Fund's investment focus and will seek to implement
decisions with respect to the allocation and reallocation of each Fund's assets
among one or more current or new Sub-Advisers from time to time, as the Adviser
deems appropriate, to enable each Fund to achieve its investment goals. In
addition, the Adviser will monitor compliance of each Sub-Adviser with the
investment objectives, policies and restrictions of any Fund (or portion of any
Fund) under the management of such Sub-Adviser, and review and report to the
Board of Trustees of the Trust on the performance of each Sub-Adviser.
(iv) will furnish, or cause the appropriate Sub-Adviser(s) to furnish,
to the Trust such statistical information, with respect to the assets or
investments that a Fund (or portions of any Fund) may hold or contemplate
purchasing, as the Trust may reasonably request.
(v) will apprise, or cause the appropriate Sub-Adviser(s) to apprise,
the Trust of important developments materially affecting any Fund (or any
portion of a Fund) that they advise and furnish the Trust, from time to time,
with such information as may be appropriate for this purpose.
(vi) furnish, or cause the appropriate Sub-Adviser(s) to furnish, to
the Trustees of the Trust such periodic and special reports as the Trustees of
the Trust may reasonably request. In addition, the Adviser agrees, and agrees to
cause the appropriate Sub-Adviser(s), to furnish to the Board of Trustees of the
Trust third-party data reporting services all currently available standardized
performance information and other customary data.
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(b) In performing its investment management services to each Fund
hereunder, the Adviser will provide each Fund with ongoing investment guidance,
policy direction, including oral and written research, monitoring of all
sub-advised portions of each Fund, analysis, advice, statistical and economic
data and judgments regarding individual investments, general economic conditions
and trends and long-range investment policy.
(c) Subject to the approval of the Board of Trustees of the Trust, the
Adviser shall have the authority to manage cash and money market instruments for
cash flow purposes.
(d) The Adviser will advise as to the securities, instruments, repurchase
agreements, options and other investments and techniques that each Fund will
purchase, sell, enter into or use, and will provide an ongoing evaluation of
each Fund's portfolio. The Adviser will advise as to what portion of each Fund's
portfolio shall be invested in securities and other assets, and what portion if
any, should be held uninvested.
(f) The Adviser further agrees that, in performing its duties hereunder, it
will, and that the Sub-Advisory Agreements it enters into with any Sub-Adviser
shall require that the Sub-Adviser will:
(i) comply with the 1940 Act and all rules and regulations thereunder,
the Advisers Act, the Internal Revenue Code ("Code") and all other applicable
federal and state laws and regulations, and with any applicable procedures
adopted by the Trustees. The Adviser also will provide, and will cause the
Sub-Advisers to provide, to the Trust such information and assurances (including
sub-certifications) as the Trust may reasonably request from time to time in
order for the Trust to comply with its disclosure and reporting obligations
imposed under applicable federal laws and regulations;
(ii) use reasonable efforts to manage each Fund so that it will
qualify, and continue to qualify, as a regulated investment company under
Subchapter M of the Code and regulations issued thereunder;
(iii) place orders for the purchase and sale of investment for each
Fund directly with the issuer or with any broker or dealer in accordance with
(I) each Fund's investment objectives and investment program and all applicable
policies and procedures described in each Fund's Prospectus and/or Statement of
Additional Information, (II) any written policies and procedures adopted by the
Trust regarding the such matters, and (III) with all applicable legal
requirements;
(iv) make available to the Trust's administrator ("Administrator"),
any sub-administrator ("Sub-Administrator") and the Trust, promptly upon their
request, such copies of its investment records and ledgers with respect to each
Fund as may be required to assist the Administrator, the Sub-Administrator and
the Trust in their compliance with applicable laws and regulations. The Adviser
will furnish the Trustees with such periodic and special reports regarding each
Fund and any Sub-Adviser as they may reasonably request;
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(v) immediately notify the Trust in the event that the Adviser or any
of its affiliates, or any Sub-Adviser or any of its affiliates: (I) becomes
aware that it is subject to a statutory disqualification that prevents the
Adviser or Sub-Adviser from serving as investment adviser pursuant to this
Agreement or a Sub-Advisory Agreement; or (II) becomes aware that it is the
subject of an administrative proceeding or enforcement action by the SEC or
other regulatory authority. The Adviser further agrees to notify the Trust
immediately of any material fact known to the Adviser respecting or relating to
the Adviser or any Sub-Adviser or any their affiliates that is not contained in
the Trust's Registration Statement regarding each Fund, or any amendment or
supplement thereto, but that is required to be disclosed thereon, and of any
statement contained therein that becomes untrue in any material respect; and
(vi) in providing investment advice to each Fund, use no inside
information that may be in its possession or in the possession of any of its
affiliates, nor will the Adviser or any Sub-Adviser seek to obtain any such
information.
(g) will promptly notify the Trust in writing of the occurrence of any of
the following events:
(i) the Adviser or a Sub-Adviser fails to be registered as an
investment adviser under the Advisers Act or under the laws of any jurisdiction
in which Adviser or such Sub-Adviser is required to be registered as an
investment adviser in order to perform its obligations under this Agreement;
(ii) the Adviser or a Sub-Adviser is served or otherwise receives
notice of any action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, involving the affairs of
the Trust; and/or
(iii) the chief executive officer or controlling stockholder (or
partners) of the Adviser or any Sub-Adviser or the portfolio manager of any Fund
changes or there is otherwise an actual change in control or management of
Adviser.
3. Futures and Options. The Adviser's investment authority shall include
advice with regard to purchasing, selling, or covering open positions, and
generally dealing in financial futures contracts and options thereon, or master
funds which do so in accordance with those rule and regulations of the Commodity
Futures Trading Commission ("CFTC") applicable to registered investment
companies and their investment advisers.
The Adviser's authority shall include authority to: (i) open and
maintain brokerage accounts for financial futures and options (such accounts
hereinafter referred to as "Brokerage Accounts") on behalf of and in the name of
each Fund; and (ii) execute for and on behalf of the Brokerage Accounts,
standard customer agreements with any broker or dealer. The Adviser may, using
such of the securities and other property in the Brokerage Accounts as the
Adviser deems necessary or desirable, direct the custodian to deposit on behalf
of each Fund, original and maintenance brokerage deposits and otherwise direct
payments of cash, cash equivalents and
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securities and other property into such brokerage accounts and to such brokers
as the Adviser deems desirable or appropriate.
4. Section 11 of the Securities Exchange Act of 1934, as amended. The Trust
hereby agrees that any entity or person associated with Adviser that is a member
of a national securities exchange is authorized to effect any transaction on
such exchange for the account of a Fund to the extent and as permitted by
Section 11(a)(1)(H) of the Securities Exchange Act of 1934, as amended ("1934
Act").
5. Brokerage Transactions. The Adviser will, as appropriate, select
broker-dealers to execute portfolio transactions for the Funds and will monitor
each Sub-Adviser's selection and use of broker-dealers to execute portfolio
transactions for the Funds. All purchase and sale orders will be placed with
broker-dealers who are selected by the Adviser or the Sub-Adviser as able to
provide "best execution" of such orders for the Funds. "Best execution" shall
mean prompt and reliable execution at the most favorable securities price,
taking into account the other provisions hereinafter set forth. Whenever the
Adviser places orders, or directs the placement of orders, for the purchase or
sale of portfolio securities on behalf of each Fund, in selecting brokers or
dealers to execute such orders, the Adviser is expressly authorized to consider
the fact that a broker or dealer has furnished statistical, research or other
information or services that may enhance the Adviser's research and portfolio
management capability generally. It is further understood in accordance with
Section 28(e) of 1934 Act that the Adviser use a broker whose commissions on
transactions that may exceed the commissions that another broker would have
charged for effecting the transactions, provided that the Adviser determines in
good faith that the amount of commission charged was reasonable in relation to
the value of brokerage and/or research services (as defined in Section 28(e))
provided by such broker, viewed in terms either of each Fund or the Adviser's
overall responsibilities to the Adviser's discretionary accounts.
5. Directed Brokerage. Subject to the requirement to seek best price and
execution, and to the appropriate policies and procedures approved by the Board
of Trustees, the Trust reserves the right to direct the Adviser to cause
Sub-Advisers to effect transactions in portfolio securities through
broker-dealers in a manner that will help generate resources to: (i) pay the
cost of certain expenses which the Trust is required to pay or for which the
Trust is required to arrange payment pursuant to Section 7(b) of this Agreement
("Trust Expenses"); or (ii) finance activities that are primarily intended to
result in the sale of Fund shares. At the discretion of the Trustees of the
Trust, such resources may be used to pay or cause the payment of Trust Expenses
or may be used to finance activities that are primarily intended to result in
the sale of Fund shares.
6. Allocation of Charges and Expenses.
(a) Except as otherwise specifically provided in this Section 6, the
Adviser shall pay the compensation and expenses of all of its directors,
officers and employees who serve as trustees, officers and executive employees
of the Trust (including the Trust's share of payroll taxes), and the Adviser
shall make available, without expense to each Fund, the service of its
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directors, officers and employees who may be duly elected officers of the Trust,
subject to their individual consent to serve and to any limitations imposed by
law.
(b) The Adviser shall not be required to pay pursuant to this Agreement any
expenses of each Fund other than those specifically allocated to the Adviser in
this Section 6. In particular, but without limiting the generality of the
foregoing, the Adviser shall not be responsible, except to the extent of the
reasonable compensation of such of the Trust's employees as are officers or
employees of the Adviser whose services may be involved, for the following
expenses of each Fund: organization and certain offering expenses of each Fund
(including out-of-pocket expenses, but not including the Adviser's overhead and
employee costs); fees payable to the Adviser and to any other Fund advisers or
consultants; legal expenses; auditing and accounting expenses; interest
expenses; telephone, telex, facsimile, postage and other communications
expenses; taxes and governmental fees; fees, dues and expenses incurred by or
with respect to each Fund in connection with membership in investment company
trade organizations; cost of insurance relating to fidelity coverage for the
Trust's officers and employees; fees and expenses of each Fund's Administrator,
Sub-Administrator and Fund Accounting Agent or of any custodian, subcustodian,
transfer agent, registrar, or dividend disbursing agent of each Fund; the
expenses of any master fund in which any Fund invests; payments to the
Administrator, Sub-Administrator or Fund Accounting Agent for maintaining each
Fund's financial books and records and calculating its daily net asset value;
other payments for portfolio pricing or valuation services to pricing agents,
accountants, bankers and other specialists, if any; expenses of preparing share
certificates; other expenses in connection with the issuance, offering,
distribution or sale of securities issued by each Fund; expenses relating to
investor and public relations; expenses of registering and qualifying shares of
each Fund for sale; freight, insurance and other charges in connection with the
shipment of each Fund's portfolio securities; brokerage commissions or other
costs of acquiring or disposing of any portfolio securities or other assets of
each Fund, or of entering into other transactions or engaging in any investment
practices with respect to each Fund; expenses of printing and distributing
prospectuses, Statements of Additional Information, reports, notices and
dividends to stockholders; costs of stationery or other office supplies; any
litigation expenses; costs of stockholders' and other meetings; the compensation
and all expenses (specifically including travel expenses relating to each Fund's
business) of officers, Trustees and employees of the Trust who are not
interested persons of the Adviser; and travel expenses (or an appropriate
portion thereof) of officers or Trustees of the Trust who are officers,
directors or employees of the Adviser to the extent that such expenses relate to
attendance at meetings of the Board of Trustees of the Trust with respect to
matters concerning each Fund, or any committees thereof or advisers thereto.
7. Compensation.
As compensation for the services provided and expenses assumed by the
Adviser under this Agreement, the Trust will arrange for each Fund to pay the
Adviser at the end of each calendar month an advisory fee computed daily at an
annual rate equal to the amount of average daily net assets listed opposite each
Fund's name in Exhibit A, attached hereto. The "average
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daily net assets" of each Fund shall mean the average of the values placed on
each Fund's net assets as of 4:00 p.m. (New York time) on each day on which the
net asset value of each Fund is determined consistent with the provisions of
Rule 22c-1 under the 1940 Act or, if each Fund lawfully determines the value of
its net assets as of some other time on each business day, as of such other
time. The value of net assets of each Fund shall always be determined pursuant
to the applicable provisions of the Trust Instrument and the Registration
Statement. If, pursuant to such provisions, the determination of net asset value
is suspended for any particular business day, then for the purposes of this
section 6, the value of the net assets of each Fund as last determined shall be
deemed to be the value of its net assets as of the close of the New York Stock
Exchange, or as of such other time as the value of the net assets of each Fund's
portfolio may lawfully be determined, on that day. If the determination of the
net asset value of the shares of each Fund has been so suspended for a period
including any month end when the Adviser's compensation is payable pursuant to
this section, then the Adviser's compensation payable at the end of such month
shall be computed on the basis of the value of the net assets of each Fund as
last determined (whether during or prior to such month). If each Fund determines
the value of the net assets of its portfolio more than once on any day, then the
last such determination thereof on that day shall be deemed to be the sole
determination thereof on that day for the purposes of this section 6.
8. Books and Records. The Adviser agrees to maintain, and to cause each
Sub-Adviser to maintain, such books and records with respect to its services to
each Fund as are required by 1940 Act and the Investment Advisers Act of 1940,
as amended ("Advisers Act") and the rules and regulations adopted thereunder,
and by other applicable legal provisions, and to preserve such records for the
periods and in the manner required by the 1940 Act, the Advisers Act and the
rules, regulations and legal provisions thereunder. The Adviser also agrees, and
shall cause each Sub-Adviser to agree, that records the Adviser or any
Sub-Adviser maintains and preserves pursuant to Rules 31a-1 and 31a-2 under the
1940 Act and Rule 204-2(c)(2) under the Advisers Act and otherwise in connection
with its services under this Agreement are the property of the Trust and will be
surrendered promptly to the Trust upon its request. The Adviser further agrees
that it will furnish, and will cause each Sub-Adviser to furnish, to regulatory
authorities having the requisite authority any information or reports in
connection with its services hereunder or under any Sub-Advisory Agreement which
may be requested in order to determine whether the operations of each Fund are
being conducted in accordance with applicable laws and regulations.
9. Aggregation of Orders. Provided that the investment objective, policies
and restrictions of each Fund are adhered to, the Trust agrees that the Adviser
may aggregate sales and purchase orders of securities held in each Fund with
similar orders being made simultaneously for other accounts managed by the
Adviser or with accounts of the affiliates of the Adviser, if in the Adviser's
reasonable judgment such aggregation shall result in an overall economic benefit
to the respective Fund taking into consideration the advantageous selling or
purchase price, brokerage commission and other expenses. The Trust acknowledges
that the determination of such economic benefit to each Fund by the Adviser
represents the Adviser's evaluation that each
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Fund is benefited by relatively better purchase or sales prices, lower
commission expenses and beneficial timing of transactions or a combination of
these and other factors.
10. Standard of Care and Limitation of Liability. The Adviser shall
exercise its best judgment in rendering the services provided by it under this
Agreement. The Adviser shall not be liable for any error of judgment or mistake
of law or for any loss suffered by each Fund or the holders of each Fund's
shares in connection with the matters to which this Agreement relates, provided
that nothing in this Agreement shall be deemed to protect or purport to protect
the Adviser against any liability to the Trust, each Fund or to holders of each
Fund's shares to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of the Adviser's reckless disregard of
its obligations and duties under this Agreement or otherwise for breach of this
Agreement. As used in this Section 9, the term "Adviser" shall include any
officers, directors, employees or other affiliates of the Adviser performing
services with respect to each Fund. Notwithstanding any other provision of this
Agreement, the Adviser shall not be liable for any loss to each Fund caused
directly or indirectly by circumstances beyond the Adviser's reasonable control
including, but not limited to, government restrictions, exchange or market
rulings, suspensions of trading, acts of civil or military authority, national
emergencies, earthquakes, floods or other catastrophes, acts of God, wars or
failures of communication or power supply.
11. Services Not Exclusive. It is understood that the services of the
Adviser are not exclusive, and that nothing in this Agreement shall prevent the
Adviser from providing similar services to other investment companies or to
other series of investment companies, including the Trust (whether or not their
investment objectives and policies are similar to those of each Fund) or from
engaging in other activities, provided such other services and activities do
not, during the term of this Agreement, interfere in a material manner with the
Adviser's ability to meet its obligations to each Fund hereunder. When the
Adviser recommends the purchase or sale of a security for other investment
companies and other clients, and at the same time the Adviser recommends the
purchase or sale of the same security for each Fund, it is understood that in
light of its fiduciary duty to each Fund, such transactions will be executed on
a basis that is fair and equitable to each Fund. In connection with purchases or
sales of portfolio securities for the account of each Fund, neither the Adviser
nor any of its directors, officers or employees shall act as a principal or
agent or receive any commission. If the Adviser provides any advice to its
clients concerning the shares of each Fund, the Adviser shall act solely as
investment counsel for such clients and not in any way on behalf of the Trust or
each Fund.
12. Duration and Termination.
(a) This Agreement shall continue for a period of two years from the date
of commencement, and thereafter shall continue automatically for successive
annual periods, provided such continuance is specifically approved at least
annually by (i) the Trustees or (ii) a vote of a "majority" (as defined in the
0000 Xxx) of each Fund's outstanding voting securities (as defined in the 1940
Act), provided that in either event the continuance is also approved by a
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majority of the Trustees who are not parties to this Agreement or "interested
persons" (as defined in the 0000 Xxx) of any party to this Agreement, by vote
cast in person (to the extent required by the 0000 Xxx) at a meeting called for
the purpose of voting on such approval.
(b) Notwithstanding the foregoing, this Agreement may be terminated: (i) at
any time without penalty by each Fund upon the vote of a majority of the
Trustees or by vote of the majority of each Fund's outstanding voting
securities, upon sixty (60) days' written notice to the Adviser or (ii) by the
Adviser at any time without penalty, upon sixty (60) days' written notice to the
Trust. This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act).
13. Amendments. This Agreement may be amended at any time but only by the
mutual written agreement of the parties to this Agreement and in accordance with
any applicable legal or regulatory requirements. Except to the extent permitted
by the 1940 Act or the rules or regulations thereunder or pursuant to any
exemptive 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 each of the Funds
affected by the amendment (unless such approval is not required by Section 15 of
the 1940 Act as interpreted by the SEC or its staff) and by the vote of a
majority of the Independent Trustees of the Trust cast in person at a meeting
called for the purpose of voting on such approval. The required shareholder
approval shall be effective with respect to any Fund if a majority of the
outstanding voting securities of that Fund vote to approve the amendment,
notwithstanding that the amendment may not have been approved by a majority of
the outstanding voting securities of (a) any other Fund affected by the
amendment or (b) all the Funds of the Trust.
14. Proxies. Unless the Trust gives written instructions to the contrary,
the Adviser shall vote all proxies solicited by or with respect to the issuers
of securities in which assets of each Fund may be invested in a manner which
best serves the interests of each Fund's shareholders and in compliance with the
Trust's proxy voting policies and procedures.
15. Use of "E*TRADE" Name.
(a) It is understood (including by any Sub-Adviser) that the name "E*TRADE"
and any logo associated with that name, is the valuable property of E*TRADE
Group, Inc., and that the Trust and Adviser have the right to include "E*TRADE"
as a part of their name only so long as this Agreement shall continue in effect
and the Adviser is a wholly owned subsidiary of the E*TRADE Group, Inc. Further,
the Trust and the Adviser agree that: (i) they will use the name "E*TRADE" only
as a component of the names of the Trust, each Fund and the Adviser, and for no
other purposes; (ii) neither will purport to grant to any third party any rights
in the name "E*TRADE"; (iii) at the request of E*TRADE Group, Inc., the Trust or
the Adviser take such action as may be required to provide their consent to use
of the name "E*TRADE" by E*TRADE Group, Inc. or any affiliate of E*TRADE Group,
Inc., to whom E*TRADE Group, Inc. shall have granted the right to such use; and
(iv) E*TRADE Group, Inc. may use or grant to others the
9
right to use the name "E*TRADE", or any abbreviation thereof, as all or a
portion of a corporate or business name or for any commercial purpose, including
a grant of such right to any other investment company.
(b) Upon termination of this Agreement as to the Trust or its Fund, the
Trust and the Adviser shall, upon request of E*TRADE Group, Inc., cease to use
the name "E*TRADE" as part of the name of the Trust, each Fund or the Adviser,
as applicable. In the event of any such request by E*TRADE Group, Inc. that use
of the name "E*TRADE" shall cease, the Trust and the Adviser shall cause their
officers, trustees, directors and stockholders to take any and all such actions
which E*TRADE Group, Inc. may request to effect such request and to reconvey to
E*TRADE Group, Inc. any and all rights to the name "E*TRADE."
16. Notice. All notices required to be given pursuant to this Agreement
shall be delivered or mailed to the last known business address of the Trust or
Adviser in person or by registered mail or a private mail or delivery service
providing the sender with notice of receipt. Notice shall be deemed given on the
date delivered or mailed in accordance with this section.
17. Miscellaneous.
(a) This Agreement shall be governed by the laws of the State of California
without regard to the conflicts of law provisions thereof, provided that nothing
herein shall be construed in a manner inconsistent with the 1940 Act, the
Advisers Act, or rules or orders of the SEC thereunder.
(b) The captions of this Agreement are included for convenience only and in
no way define or limit any of the provisions hereof or otherwise affect their
construction or effect.
(c) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected hereby and, to this extent, the provisions of this
Agreement shall be deemed to be severable.
(d) Nothing herein shall be construed as constituting the Adviser as an
agent of the Trust or each Fund.
(e) All liabilities of the Trust hereunder are limited to the assets of
each Fund and shall not be binding upon any Trustee, officer or shareholder of
the Trust individually or upon any other series of the Trust.
(f) This Agreement contains the entire understanding and agreement of the
parties.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of September 15, 2003 with
respect to the E*TRADE Technology Index Fund and as of November 10, 2003 with
respect to each other Fund.
E*TRADE FUNDS
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
E*TRADE ASSET MANAGEMENT, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT A
Name of Fund Advisory Fee
------------ ------------
E*TRADE International Index Fund 0.25%
E*TRADE Xxxxxxx 2000 Index Fund 0.15%
E*TRADE S&P 500 Index Fund 0.07%
E*TRADE Technology Index Fund 0.25%
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