INVESTMENT MANAGEMENT AGREEMENT
INVESTMENT MANAGEMENT AGREEMENT made this ____ day of ____________,
2005, by and between FIRST TRUST EXCHANGE-TRADED FUND, a Massachusetts business
trust (the "Company"), and FIRST TRUST ADVISORS, L.P., an Illinois limited
partnership (the "Adviser").
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company;
WHEREAS, the Company is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Company intends to initially offer shares in one series,
the First Trust Dow Xxxxx Select MicroCap Index(sm) Fund, and any other series
as to which this Agreement may hereafter be made applicable and set forth on
Schedule A hereto (each such series being herein referred to as a "Fund," and
collectively as the "Funds"); and
WHEREAS, the Company desires to retain the Adviser as investment
adviser, to furnish certain investment advisory and portfolio management
services to the Company with respect to the Funds, and the Adviser is willing to
furnish such services.
WITNESSETH:
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Company hereby engages the Adviser to act as the investment
adviser for, and to manage the investment and reinvestment of the assets of,
each Fund in accordance with each Fund's investment objectives and policies and
limitations, and to administer each Fund's affairs to the extent requested by
and subject to the supervision of the Board of Trustees of the Company for the
period and upon the terms herein set forth. The investment of each Fund's assets
shall be subject to the Fund's policies, restrictions and limitations with
respect to securities investments as set forth in the Fund's then current
registration statement under the l940 Act, and all applicable laws and the
regulations of the Securities and Exchange Commission relating to the management
of registered open-end management investment companies.
The Adviser accepts such employment and agrees during such period to
render such services, to furnish office facilities and equipment and clerical,
bookkeeping and administrative services (other than such services, if any,
provided by the Funds' transfer agent, administrator or other service providers)
for the Funds, to permit any of its officers or employees to serve without
compensation as trustees or officers of the Company if elected to such
positions, and to assume the obligations herein set forth for the compensation
herein provided. The Adviser shall at its own expense furnish all executive and
other personnel, office space, and office facilities required to render the
investment management and administrative services set forth in this Agreement.
In the event that the Adviser pays or assumes any expenses of a Fund not
required to be paid or assumed by the Adviser under this Agreement, the Adviser
shall not be obligated hereby to pay or assume the same or similar expense in
the future; provided, that nothing contained herein shall be deemed to relieve
the Adviser of any obligation to a Fund under any separate agreement or
arrangement between the parties.
2. The Adviser shall, for all purposes herein provided, be deemed to
be an independent contractor and, unless otherwise expressly provided or
authorized, shall neither have the authority to act for nor represent the
Company in any way, nor otherwise be deemed an agent of the Company.
3. For the services and facilities described in Section 1, each Fund
will pay to the Adviser, at the end of each calendar month, and the Adviser
agrees to accept as full compensation therefor, an investment management fee
equal to the annual rate of [___]% of the Fund's average daily net assets.
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 shall have been in effect during the month and year,
respectively. The services of the Adviser to the Company under this Agreement
are not to be deemed exclusive, and the Adviser shall be free to render similar
services or other services to others so long as its services hereunder are not
impaired thereby.
4. The Adviser shall arrange for suitably qualified officers or
employees of the Adviser to serve, without compensation from the Company, as
trustees, officers or agents of the Company, if duly elected or appointed to
such positions, and subject to their individual consent and to any limitations
imposed by law.
5. For purposes of this Agreement, brokerage commissions paid by a
Fund upon the purchase or sale of a Fund's portfolio securities shall be
considered a cost of securities of the Fund and shall be paid by the Fund.
6. The Adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of a Fund's securities on behalf of the
Fund, and is directed to use its commercially reasonable efforts to obtain best
execution, which includes most favorable net results and execution of the Fund's
orders, taking into account all appropriate factors, including price, dealer
spread or commission, size and difficulty of the transaction and research or
other services provided. Subject to approval by the Company's Board of Trustees
and to the extent permitted by and in conformance with applicable law (including
Rule 17e-1 of the 1940 Act), the Adviser may select brokers or dealers
affiliated with the Adviser. It is understood that the Adviser will not be
deemed to have acted unlawfully, or to have breached a fiduciary duty to the
Company, or be in breach of any obligation owing to the Company 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
Adviser determined in good faith that the commission paid was reasonable in
relation to the brokerage or research services provided by such member, broker
or dealer, viewed in terms of that particular transaction or the Adviser's
-2-
overall responsibilities with respect to its accounts, including the Fund, as to
which it exercises investment discretion.
In addition, the Adviser may, to the extent permitted by applicable
law, aggregate purchase and sale orders of securities with similar orders being
made simultaneously for other accounts managed by the Adviser or its affiliates,
if in the Adviser's reasonable judgment such aggregation shall result in an
overall economic benefit to a 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 a Fund occurs as part of any aggregate sale or
purchase orders, the objective of the Adviser and any of its affiliates involved
in such transaction shall be to allocate the securities so purchased or sold, as
well as expenses incurred in the transaction, among the Fund and other accounts
in an equitable manner. Nevertheless, each Fund acknowledges that under some
circumstances, such allocation may adversely affect the Fund with respect to the
price or size of the securities positions obtainable or salable. Whenever a Fund
and one or more other investment advisory clients of the Adviser have available
funds for investment, investments suitable and appropriate for each will be
allocated in a manner believed by the Adviser to be equitable to each, although
such allocation may result in a delay in one or more client accounts being 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 Adviser and its affiliates may purchase securities of an issuer for one
client and at approximately the same time recommend selling or sell the same or
similar types of securities for another client.
The Adviser will not arrange purchases or sales of securities between a
Fund and other accounts advised by the Adviser or its affiliates unless (a) such
purchases or sales are in accordance with applicable law (including Rule 17a-7
of the 0000 Xxx) and the Company's policies and procedures, (b) the Adviser
determines the purchase or sale is in the best interests of each Fund, and (c)
the Company's Board of Trustees have approved these types of transactions.
To the extent a Fund seeks to adopt, amend or eliminate any objectives,
policies, restrictions or procedures in a manner that modifies or restricts
Adviser's authority regarding the execution of the Fund's portfolio
transactions, the Fund agrees to use reasonable commercial efforts to consult
with the Adviser regarding the modifications or restrictions prior to such
adoption, amendment or elimination.
The Adviser will communicate to the officers and trustees of the
Company such information relating to transactions for the Funds as they may
reasonably request. In no instance will portfolio securities be purchased by or
sold to the Adviser or any affiliated person of either the Company or the
Adviser, except as may be permitted under the 1940 Act.
The 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 fiduciary accounts
for which it has investment responsibilities;
-3-
(b) will conform in all material respects to all applicable
rules and regulations of the Securities and Exchange Commission and
comply in all material respects with all policies and procedures
adopted by the Board of Trustees for the Company and communicated to
the Adviser and, in addition, will conduct its activities under this
Agreement in all material respects in accordance with any applicable
regulations of any governmental authority pertaining to its investment
advisory activities;
(c) will report regularly to the Board of Trustees of the
Company (generally on a quarterly basis) and will make appropriate
persons available for the purpose of reviewing with representatives of
the Board of Trustees on a regular basis at reasonable times the
management of each Fund, including, without limitation, review of the
general investment strategies of each Fund, the performance of each
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 Board of Trustees of the Company; and
(d) will prepare and maintain such books and records with
respect to each Fund's securities and other transactions as required
under applicable law and will prepare and furnish the Company's Board
of Trustees such periodic and special reports as the Board of Trustees
may reasonably request. The Adviser further agrees that all records
which it maintains for each Fund are the property of the Fund and the
Adviser will surrender promptly to the Fund any such records upon the
request of the Fund (provided, however, that 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 of
the Investment Advisers Act of 1940 or other applicable law.
7. Subject to applicable statutes and regulations, it is understood
that officers, trustees, or agents of the Company are, or may be, interested
persons (as such term is defined in the 1940 Act and rules and regulations
thereunder) of the Adviser as officers, directors, agents, shareholders or
otherwise, and that the officers, directors, shareholders and agents of the
Adviser may be interested persons of the Fund otherwise than as trustees,
officers or agents.
8. The Adviser shall not be liable for any loss sustained by reason of
the purchase, sale or retention of any security, whether or not such purchase,
sale or retention shall have been based upon the investigation and research made
by any other individual, firm or corporation, if such recommendation shall have
been selected with due care and in good faith, except loss resulting from
willful misfeasance, bad faith, or gross negligence on the part of the Adviser
in the performance of its obligations and duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement.
9. Subject to obtaining the initial and periodic approvals required
under Section 15 of the 1940 Act, the Adviser may retain one or more
sub-advisers at the Adviser's own cost and expense for the purpose of furnishing
one or more of the services described in Section 1 hereof with respect to a
Fund. Retention of a sub-adviser shall in no way reduce the responsibilities or
obligations of the Adviser under this Agreement and the Adviser shall be
-4-
responsible to a Fund for all acts or omissions of any sub-adviser in connection
with the performance of the Adviser's duties hereunder.
10. The Company acknowledges that the Adviser now acts, and intends in
the future to act, as an investment adviser to other managed accounts and as
investment adviser or sub-investment adviser to one or more other investment
companies that are not a series of the Company. In addition, the Company
acknowledges that the persons employed by the Adviser to assist in the Adviser's
duties under this Agreement will not devote their full time to such efforts. It
is also agreed that the Adviser may use any supplemental research obtained for
the benefit of the Company in providing investment advice to its other
investment advisory accounts and for managing its own accounts.
11. This Agreement shall be effective on the date provided above,
provided it has been approved by a vote of a majority of the outstanding voting
securities held by shareholders of the respective Fund in accordance with the
requirements of the 1940 Act. This Agreement shall continue in effect until the
two-year anniversary of the date of its effectiveness, unless and until
terminated by either party as hereinafter provided, and shall continue in force
from year to year thereafter, but only as long as such continuance is
specifically approved, at least annually, in the manner required by the 1940
Act.
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 a Fund or by the Adviser upon sixty (60) days' written notice to the other
party. Each Fund may effect termination by action of the Board of Trustees or by
vote of a majority of the outstanding voting securities of the Fund, accompanied
by appropriate notice. This Agreement may be terminated, at any time, without
the payment of any penalty, by the Board of Trustees of the Company, or by vote
of a majority of the outstanding voting securities of the Company, in the event
that it shall have been established by a court of competent jurisdiction that
the Adviser, or any officer or director of the Adviser, has taken any action
which results in a breach of the material covenants of the Adviser set forth
herein. Termination of this Agreement shall not affect the right of the Adviser
to receive payments on any unpaid balance of the compensation, described in
Section 3, earned prior to such termination and for any additional period during
which the Adviser serves as such for the Fund, subject to applicable law. The
terms "assignment" and "vote of the majority of outstanding voting securities"
shall have the same meanings set forth in the 1940 Act and the rules and
regulations thereunder.
12. This Agreement may be amended or modified only by a written
instrument executed by both parties.
13. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule, or otherwise, the remainder shall not be
thereby affected.
14. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as such
other party may designate for receipt of such notice.
-5-
15. All parties hereto are expressly put on notice of the Company's
Agreement and 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. This
Agreement is executed on behalf of the Company by the Company's officers as
officers and not individually and the obligations imposed upon the Company by
this Agreement are not binding upon any of the Company's Trustees, officers or
shareholders individually but are binding only upon the assets and property of
the Company, and persons dealing with the Company must look solely to the assets
of the Company and those assets belonging to the subject Company, for the
enforcement of any claims.
16. This Agreement shall be construed in accordance with applicable
federal law and (except as to Section 15 hereof which shall be construed in
accordance with the laws of Massachusetts) the laws of the State of Illinois.
-6-
IN WITNESS WHEREOF, the Company and the Adviser have caused this
Agreement to be executed on the day and year above written.
FIRST TRUST EXCHANGE-TRADED FUND
By:
Name: Xxxxx X. Xxxxx
Title: President
ATTEST: _________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
FIRST TRUST ADVISORS, L.P.
By:
Name: Xxxxx X. Xxxxx
Title: President
ATTEST: _________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
SCHEDULE A
FUNDS
First Trust Dow Xxxxx Select MicroCap Index(sm) Fund
