AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AGREEMENT made the 27th day of October, 2017, by and between
Xxxxxxxxxxx ETF Trust (hereinafter referred to as the "Trust"),
and OFI Advisors, LLC (hereinafter referred to as "OFI").
WHEREAS, the Trust is an open-end management investment
company registered as such with the Securities and Exchange
Commission (the "Commission") pursuant to the Investment Company
Act of 1940, as amended (the "Investment Company Act"), and OFI
is an investment adviser registered as such with the Commission
under the Investment Advisers Act of 1940, as amended;
WHEREAS, each fund listed in Schedule A hereof (each, a
"Fund") is a series of the Trust having a separate portfolio,
investment policies and investment restrictions;
WHEREAS, the Trust and OFI entered into an Investment
Advisory Agreement effective as of December 2, 2015, restated
effective October 11, 2016, restated effective October 28, 2016,
restated effective February 17, 2017 and further restated
effective September 30, 2017 (the "Agreement");
WHEREAS, OFI serves as investment adviser to each Fund
pursuant to the Agreement, effective as to each Fund as of the
date specified in Schedule A; and
WHEREAS, the parties wish to amend and restate such
Agreement as provided herein:
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, it is agreed by and between the
parties, as follows:
1. General Provision.
a. The Trust hereby employs OFI and OFI hereby undertakes
to act as the investment adviser of the Fund and to perform for
the Fund such other duties and functions as are hereinafter set
forth. OFI shall, in all matters, give to the Fund and the
Trust's Board of Trustees the benefit of its best judgment,
effort, advice and recommendations and shall, at all times
conform to, and use its best efforts to enable the Fund to
conform to: (i) the provisions of the Investment Company Act and
any rules or regulations thereunder; (ii) any other applicable
provisions of state or federal law; (iii) the provisions of the
Declaration of Trust and By-Laws of the Trust as amended from
time to time; (iv) policies and determinations of the Board of
Trustees of the Trust; (v) the fundamental policies and
investment restrictions of the Fund as reflected in the Trust's
registration statement under the Investment Company Act; and
(vi) the Prospectus and Statement of Additional Information of
the Trust in effect from time to time. The appropriate officers
and employees of OFI shall be available upon reasonable notice
for consultation with any of the trustees and officers of the
Trust with respect to any matters dealing with the business and
affairs of the Trust including the valuation of any of the
Fund's portfolio securities which do not have readily available
market quotations.
2. Investment Management.
a. OFI shall, subject to the direction and control by the
Trust's Board of Trustees: (i) regularly provide investment
advice and recommendations to the Fund with respect to its
investments, investment policies and the purchase and sale of
securities; (ii) supervise continuously the investment program
of the Fund and the composition of its portfolio and determine
what securities shall be purchased or sold by the Fund; and
(iii) arrange, subject to the provisions of paragraph 7 hereof,
for the purchase of securities and other investments for the
Fund and the sale of securities and other investments held in
the portfolio of the Fund.
b. Provided that the Trust shall not be required to pay any
compensation other than as provided by the terms of this
Agreement and subject to the provisions of paragraph 7 hereof,
OFI may obtain investment information, research or assistance
from any other person, firm or corporation to supplement, update
or otherwise improve its investment management services.
c. To the extent permitted by applicable law, OFI may, from
time to time in its sole discretion, appoint one or more sub-
advisers, including, without limitation, affiliates of OFI, to
perform investment advisory services with respect to the Fund
and may, in its sole discretion, terminate any or all such sub-
advisers at any time to the extent permitted by applicable law.
d. Provided that nothing herein shall be deemed to protect
OFI from willful misfeasance, bad faith or gross negligence in
the performance of its duties, or reckless disregard of its
obligations and duties under the Agreement, OFI shall not be
liable for any loss sustained by reason of good faith errors or
omissions in connection with any matters to which this Agreement
relates.
e. Nothing in this Agreement shall prevent OFI or any
officer thereof from acting as investment adviser for any other
person, firm or corporation and shall not in any way limit or
restrict OFI or any of its directors, officers, stockholders or
employees from buying, selling or trading any securities for its
or their own account or for the account of others for whom it or
they may be acting, provided that such activities will not
adversely affect or otherwise impair the performance by OFI of
its duties and obligations under this Agreement and under the
Investment Advisers Act of 1940.
3. Other Duties of OFI.
OFI shall, at its own expense, provide and supervise the
activities of all administrative and clerical personnel as shall
be required to provide effective corporate administration for
the Fund, including (i) the compilation and maintenance of such
records with respect to its operations as may reasonably be
required; (ii) the preparation and filing of such reports with
respect thereto as shall be required by the Commission; (iii)
the composition of periodic reports with respect to its
operations for shareholders of the Fund; (iv) the composition of
proxy materials for meetings of the Fund's shareholders, and (v)
the composition of such registration statements as may be
required by Federal securities laws for continuous public sale
of shares of the Fund. OFI shall, at its own cost and expense,
also provide the Trust with adequate office space, facilities
and equipment.
4. Allocation of Expenses.
During the term of this Agreement, OFI shall pay all of the
expenses of the Fund, except for (i) the fee payment under this
Agreement, (ii) distribution fees or expenses under the Fund's
12b-1 plan (if any), (iii) interest expenses, (iv) taxes, (v)
acquired fund fees and expenses, (vi) brokers' commissions and
any other portfolio transaction-related expenses and fees
arising out of transactions effected on behalf of the Fund,
(vii) credit facility fees and expenses, including interest
expenses and (viii) litigation and indemnification expenses and
other extraordinary expenses not incurred in the ordinary course
of the Fund's business. For the avoidance of doubt, OFI's
payment of such expenses may be accomplished through the Fund's
payment of such expenses and a corresponding reduction in the
fee payable to OFI pursuant to Paragraph 5 hereof; provided,
however, that if the amount of expenses paid by the Fund exceeds
the fee payable to OFI pursuant to Paragraph 5 hereof, OFI will
reimburse the Fund for such excess amount.
Any officers or employees of OFI or any entity controlling,
controlled by or under common control with OFI, who may also
serve as officers, trustees or employees of the Trust shall not
receive any compensation from the Trust for their services. The
expenses with respect to any two or more series of the Trust
shall be allocated in proportion to the net assets of the
respective series except where allocations of direct expenses
can be made.
5. Compensation of OFI.
The Trust agrees to pay OFI on behalf of the Fund and OFI
agrees to accept as full compensation for the performance of all
functions and duties on its part to be performed pursuant to the
provisions hereof, a management fee payable monthly and
calculated on the daily net assets of the Fund at an annual rate
as noted in Schedule A of this Agreement.
6. Use of Name "Xxxxxxxxxxx."
OFI hereby grants to the Trust a royalty-free, non-
exclusive license to use the name "Xxxxxxxxxxx" in the name of
the Trust and the Fund for the duration of this Agreement and
any extensions or renewals thereof. Such license may, upon
termination of this Agreement, be terminated by OFI, in which
event the Trust shall promptly take whatever action may be
necessary to change its name and the name of the Fund and
discontinue any further use of the name "Xxxxxxxxxxx" in the
name of the Trust or the Fund or otherwise. The name
"Xxxxxxxxxxx" may be used or licensed by OFI in connection with
any of its activities, or licensed by OFI to any other party.
7. Portfolio Transactions and Brokerage.
a. OFI is authorized, in arranging the Fund's portfolio
transactions, to employ or deal with such members of securities
or commodities exchanges, brokers or dealers, including
"affiliated" broker-dealers (as that term is defined in the
Investment Company Act) (hereinafter "broker-dealers"), as may,
in its best judgment, implement the policy of the Fund to
obtain, at reasonable expense, the "best execution" (prompt and
reliable execution at the most favorable security price
obtainable) of the Fund's portfolio transactions as well as to
obtain, consistent with the provisions of subparagraph (c) of
this paragraph 7, the benefit of such investment information or
research as will be of significant assistance to the performance
by OFI of its investment management functions.
b. OFI shall select broker-dealers to effect the Fund's
portfolio transactions on the basis of its estimate of their
ability to obtain best execution of particular and related
portfolio transactions. The abilities of a broker-dealer to
obtain best execution of particular portfolio transaction(s)
will be judged by OFI on the basis of all relevant factors and
considerations including, insofar as feasible, the execution
capabilities required by the transaction or transactions; the
ability and willingness of the broker-dealer to facilitate the
Fund's portfolio transactions by participating therein for its
own account; the importance to the Fund of speed, efficiency or
confidentiality; the broker-dealer's apparent familiarity with
sources from or to whom particular securities might be purchased
or sold; as well as any other matters relevant to the selection
of a broker-dealer for particular and related transactions of
the Fund.
c. OFI shall have discretion, in the interests of the Fund,
to allocate brokerage on the Fund's portfolio transactions to
broker-dealers, other than an affiliated broker-dealer,
qualified to obtain best execution of such transactions who
provide brokerage and/or research services (as such services are
defined in Section 28(e)(3) of the Securities Exchange Act of
1934) for the Fund and/or other accounts for which OFI or its
affiliates exercise "investment discretion" (as that term is
defined in Section 3(a)(35) of the Securities Exchange Act of
1934) and to cause the Trust to pay such broker-dealers a
commission for effecting a portfolio transaction for the Fund
that is in excess of the amount of commission another broker-
dealer adequately qualified to effect such transaction would
have charged for effecting that transaction, if OFI determines,
in good faith, that such commission is reasonable in relation to
the value of the brokerage and/or research services provided by
such broker-dealer, viewed in terms of either that particular
transaction or the overall responsibilities of OFI and its
investment advisory affiliates with respect to the accounts as
to which they exercise investment discretion. In reaching such
determination, OFI will not be required to place or attempt to
place a specific dollar value on the brokerage and/or research
services provided or being provided by such broker-dealer. In
demonstrating that such determinations were made in good faith,
OFI shall be prepared to show that all commissions were
allocated for the purposes contemplated by this Agreement and
that the total commissions paid by the Trust over a
representative period selected by the Trust's trustees were
reasonable in relation to the benefits to the Fund.
d. OFI shall have no duty or obligation to seek advance
competitive bidding for the most favorable commission rate
applicable to any particular portfolio transactions or to select
any broker-dealer on the basis of its purported or "posted"
commission rate but will, to the best of its ability, endeavor
to be aware of the current level of the charges of eligible
broker-dealers and to minimize the expense incurred by the Fund
for effecting its portfolio transactions to the extent
consistent with the interests and policies of the Fund as
established by the determinations of the Board of Trustees of
the Trust and the provisions of this paragraph 7.
e. The Trust recognizes that an affiliated broker-dealer:
(i) may act as one of the Fund's regular brokers so long as it
is lawful for it so to act; (ii) may be a major recipient of
brokerage commissions paid by the Trust; and (iii) may effect
portfolio transactions for the Fund only if the commissions,
fees or other remuneration received or to be received by it are
determined in accordance with procedures contemplated by any
rule, regulation or order adopted under the Investment Company
Act for determining the permissible level of such commissions.
8. Duration.
This Agreement, with respect to each Fund (including any
series of the Trust added to this Agreement by execution of an
amended Schedule A), will take effect on the date set forth next
to that Fund's name in Schedule A. Unless earlier terminated
pursuant to paragraph 10 hereof, this Agreement, with respect to
each Fund, shall remain in effect until two years from the
effective date specified in Schedule A, and thereafter will
continue in effect from year to year, so long as such
continuance shall be approved at least annually by the Trust's
Board of Trustees, including the vote of the majority of the
Trustees of the Trust who are not parties to this Agreement or
"interested persons" (as defined in the Investment Company Act)
of any such party, cast in person at a meeting called for the
purpose of voting on such approval, or by the holders of a
"majority" (as defined in the Investment Company Act) of the
outstanding voting securities of the Fund and by such a vote of
the Trust's Board of Trustees.
9. Termination.
This Agreement may be terminated: (i) by OFI at any time
without penalty upon giving the Trust sixty days' written notice
(which notice may be waived by the Trust); or (ii) by the Trust
at any time without penalty upon sixty days' written notice to
OFI (which notice may be waived by OFI) provided that such
termination by the Trust shall be directed or approved by the
vote of a majority of all of the trustees of the Trust then in
office or by the vote of the holders of a "majority" (as defined
in the Investment Company Act) of the outstanding voting
securities of the Fund.
10. Assignment or Amendment.
This Agreement may not be amended without the affirmative
vote of the Board of Trustees of the Trust, including a majority
of the Trustees who are not parties to this Agreement or
interested persons of any such party, cast in person at a
meeting called for the purposes of voting on such approval and,
where required by the Investment Company Act, by a vote or
written consent of a "majority" of the outstanding voting
securities of the Trust, and shall automatically and immediately
terminate in the event of its "assignment," as defined in the
Investment Company Act.
11. Disclaimer of Trustee or Shareholder Liability.
OFI understands and agrees that the obligations of the
Trust under this Agreement are not binding upon any Trustee or
shareholder of the Trust or Fund personally, but bind only the
Trust and the Trust's property. OFI represents that it has
notice of the provisions of the Declaration of Trust of the
Trust disclaiming Trustee or shareholder liability for acts or
obligations of the Trust.
12. Definitions.
The terms and provisions of this Agreement shall be
interpreted and defined in a manner consistent with the
provisions and definitions of the Investment Company Act.
Xxxxxxxxxxx ETF Trust, for the Funds
listed in Schedule A hereof
By: /s/ Xxxxx X. Petersen___
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
OFI Advisors, LLC
By: /s/ Xxxxxx French___ _
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
Schedule A
Funds, Effective Date and Compensation to OFI
The fee payable by the Trust on behalf of each Fund shall be
calculated on the daily net assets of each Fund at an annual
rate as noted below:
THE INFORMATION DISPLAYED IN THE FOLLOWING ORDER:
FUND:
EFFECTIVE DATE:
COMPENSATION:
Oppenheimer Large Cap Revenue ETF
September 30, 2017*
0.39%
Oppenheimer Mid Cap Revenue ETF
September 30, 2017*
0.39%
Oppenheimer Small Cap Revenue ETF
September 30, 2017*
0.39%
Oppenheimer Consumer Discretionary Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Consumer Staples Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Energy Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Financials Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Health Care Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Industrials Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Information Technology Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Materials Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Utilities Sector Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Ultra Dividend Revenue ETF
September 30, 2017*
0.39%
Oppenheimer Emerging Markets Revenue ETF
September 30, 2017*
0.46%
Oppenheimer ESG Revenue ETF
September 30, 2017*
0.40%
Oppenheimer Global ESG Revenue ETF
September 30, 2017*
0.45%
Oppenheimer Global Revenue ETF
September 30, 2017*
0.43%
Oppenheimer International Revenue ETF
September 30, 2017*
0.42%
Xxxxxxxxxxx Xxxxxxx 0000 Dynamic Multifactor ETF
October 3, 2017
0.29%
Xxxxxxxxxxx Xxxxxxx 0000 Dynamic Multifactor ETF
October 3, 2017
0.39%
Xxxxxxxxxxx Xxxxxxx 0000 Momentum Factor ETF
October 3, 2017
0.19%
Xxxxxxxxxxx Xxxxxxx 0000 Value Factor ETF
October 3, 2017
0.19%
Xxxxxxxxxxx Xxxxxxx 0000 Low Volatility Factor ETF
October 3, 2017
0.19%
Xxxxxxxxxxx Xxxxxxx 0000 Size Factor ETF
October 3, 2017
0.19%
Xxxxxxxxxxx Xxxxxxx 0000 Quality Factor ETF
October 3, 2017
0.19%
Xxxxxxxxxxx Xxxxxxx 0000 Yield Factor ETF
October 3, 2017
0.19%
*Each Fund had an earlier effective date under the prior
version of this Agreement and for purposes of the duration
provision in clause 8, these Funds are subject to annual
continuance prior to August 31, 2018 and from year to year thereafter.
