INVESTMENT ADVISORY AGREEMENT
Agreement made as of January 31, 2011 between
DBX ETF TRUST (the"Company"), a Delaware
statutory trust, and DBX ADVISORS LLC (the
"Adviser"), a Delaware limited liability compay.
WITNESSETH:
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-I A
(the "Prospectus and SAI"), as they may be amended
or supplemented from time to time.
part of the services it will provide hereunder, the
Adviser will:
(i) furnish continuously an investment
program for each Fund;
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;
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;
make changes on behalf of the Company in the
investments for each Fund; 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
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, 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
unconditiona l 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
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
Adviser by Rule of services hereunder. (c)
accordance with Rule 17j- l (c)(1) and Rule 206
204A-I(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 The
Adviser has adopted and implemented and will
maintain (a) in
(4)-7 under the Advisers Act, policies and
procedures reasonably
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 3 1 a-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.
00.Xxxxxx 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.
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
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 1 940 Act or the rules
or regulations thereunder.
15.Notices
Notices of any kind to be given hereunder
will he 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.
1
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.
00.Xxxxxxx and Shareholder Liability
The Adviser is hereby expressly put on notice
of the limitation of shareholder liability as set forth in
the Declaration of Trust and agrees that obligations, if
any, assumed by the Company pursuant to this
Agreement will be limited in all cases to the
Company and its
assets, and if the liability relates to one or
more series, the obligations hereunder will be limited
to the respective assets of the Fund. The Adviser
further agrees that it will not seek satisfaction of any
such obligation from the shareholders or any
individual shareholder of the Funds, nor from the
Trustees or any individual Trustee of the Company.
20.Governing Law
This Agreement will be governed by the laws
of the State of New York without reference to
conflicts of laws principles. Any and all litigation or
other disputes arising from this
Agreement will be commenced in a federal or
state court of competent jurisdiction in New York
City, New York.
21.Interpretation
Any question of interpretation of any term or
provision of this Agreement having a counterpart in
or otherwise derived from a term or provision of the
1940 Act will be resolved by reference to such term
or provision of the 1940 Act and to interpretations
thereof, if any, by
the United States courts or, in the absence of
any controlling decision of any such court, by rules,
regulations or orders of the SEC validly issued
pursuant to the 1940 Act. Specifically, the terms
"vote of a majority of the outstanding voting
securities," "interested persons," "assignment" and
`'affiliated persons," as used herein will have the
meanings assigned to them by Section 2(a) of the
1940 Act. In addition, where the effect of a
requirement of the 1940 Act reflected in any
provision of this Agreement is relaxed by a
rule, regulation or order of the SEC, whether of
special or of general application, such provision will
be deemed to incorporate the effect of such rule,
regulation or order.
IN WITNESS WHEREOF, the parties hereto
have caused this instrument to be executed by their
officers designated below as of the date set forth
above.
DBX ETF TRUST
By: /s/ Xxxx Xxxxxxxx
Name Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
By:/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
DBX ADVISORS LLC
By:/s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Chief Executive Officer
By:/s/ Xxxxxx Xxxxxxxxxxx
Name Xxxxxx Xxxxxxxxxxx
Title: Chief Operating Officer
SCHEDULE A
(as of January 31, 2011)
Effective Date of
Fund
Agreement
DBX MSCI Emerging Markets Currency-Hedged
Equity Fund
DBX MSCI EAFE Currency-Hedged Equity Fund
DBX MSCI Brazil Currency-Hedged Equity Fund
DBX MSCI Canada Currency-Hedged Equity Fund
DBX MSCI Japan Currency-Hedged Equity Fund
SCHEDULE B
(as of January 31, 2011)
Fund
Advisory Fee*
DBX MSCI Emerging
Markets Currency-
Hedged Equity Fund
0.65%
DBX MSCI EAFE
Currency-Fledged
Equity Fund
0.35%
DBX MSCI Brazil
Currency-Hedged
Equity Fund
0.60%
DBX MSCI Canada
Currency-Hedged
Equity Fund
0.50%
DBX MSCI Japan
Currency-Hedged
Equity Fund
0.50%
*
Expressed as a percentage of
average daily net assets. Out
of each Fund's advisory fee,
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.
