DBX ETFs FUND OF FUNDS INVESTMENT AGREEMENT
DBX ETFs
FUND OF FUNDS INVESTMENT AGREEMENT
THIS AGREEMENT, dated as of January 25, 2022, on behalf of each Acquiring Fund listed on Schedule A, severally and not jointly (each, an “Acquiring Fund”), and DBX ETF Trust, on behalf of each Acquired Fund listed on Schedule B, severally and not jointly (each, an “Acquired Fund” and together with the Acquiring Funds, the “Funds”).
WHEREAS, each Fund is registered with the U.S. Securities and Exchange Commission (“SEC”) as an investment company under the Investment Company Act of 1940, as amended, (the “1940 Act”);
WHEREAS, Section 12(d)(1)(A) of the 1940 Act limits the extent to which a registered investment company may invest in shares of other registered investment companies, Section 12(d)(1)(B) limits the extent to which a registered investment company, its principal underwriter or registered brokers or dealers may knowingly sell shares of such registered investment company to other investment companies, and Section 12(d)(1)(C) limits the extent to which an investment company may invest in the shares of a registered closed-end investment company;
WHEREAS, Rule 12d1-4 under the 1940 Act (the “Rule”) permits registered investment companies, such as the Acquiring Funds, to invest in shares of other registered investment companies, such as the Acquired Funds, in excess of the limits of Section 12(d)(1) of the 1940 Act subject to compliance with the conditions of the Rule; and
WHEREAS, an Acquiring Fund may, from time to time, invest in shares of one or more Acquired Funds in excess of the limitations of Section 12(d)(1)(A) in reliance on the Rule;
NOW THEREFORE, in accordance with the Rule, the Acquiring Funds and the Acquired Funds desire to set forth the following terms pursuant to which the Acquiring Funds may invest in the Acquired Funds in reliance on the Rule.
1. TERMS OF INVESTMENT
(a) In order to help reasonably address the risk of undue influence on an Acquired Fund by an Acquiring Fund, and to assist the Acquired Fund’s investment adviser with making the required findings under the Rule, each Acquiring Fund and each Acquired Fund agree as follows solely with respect to an investment by such Acquiring Fund in an Acquired Fund that exceeds the limits in Section 12(d)(1)(A) of the 1940 Act:
(i) In-kind redemptions. The Acquiring Fund acknowledges and agrees that, if and to the extent consistent with the Acquired Fund’s registration statement, as amended from time to time, and Rule 6c-11, the Acquired Fund may honor any redemption request partially or wholly in-kind.
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(ii) Scale of investment. Upon a reasonable request by an Acquired Fund, the Acquiring Fund will provide summary information regarding the anticipated timeline of its investment in the Acquired Fund and the scale of its contemplated investment in the Acquired Fund.
(b) In order to assist the Acquiring Fund’s investment adviser with evaluating the complexity of the structure and fees and expenses associated with an investment in an Acquired Fund, each Acquired Fund shall provide each Acquiring Fund with publicly available information on the fees and expenses of the Acquired Fund reasonably requested by the Acquiring Fund to comply with the terms and conditions of the Rule.
| 2. | REPRESENTATIONS OF THE ACQUIRED FUNDS. |
(a) In connection with any investment by an Acquiring Fund in an Acquired Fund in excess of the limitations in Section 12(d)(1)(A), the Acquired Fund agrees to: (i) comply with all conditions of the Rule, as interpreted or modified by the SEC or its Staff from time to time, applicable to Acquired Funds; (ii) comply with its obligations under this Agreement; and (iii) promptly notify the Acquiring Fund if such Acquired Fund fails to comply with the Rule with respect to an investment by the Acquiring Fund, as interpreted or modified by the SEC or its Staff from time to time, or this Agreement.
| 3. | REPRESENTATIONS OF THE ACQUIRING FUNDS. |
(a) In connection with any investment by an Acquiring Fund in an Acquired Fund in excess of the limitations in Section 12(d)(1)(A), the Acquiring Fund agrees to: (i) comply with all conditions of the Rule, as interpreted or modified by the SEC or its Staff from time to time, applicable to Acquiring Funds; (ii) comply with its obligations under this Agreement; and (iii) promptly notify the Acquired Fund if such Acquiring Fund fails to comply with the Rule with respect to its investment in such Acquired Fund, as interpreted or modified by the SEC or its Staff from time to time, or this Agreement.
(b) Prior to making an investment in an Acquired Fund in excess of the limits of Section 12(d)(1)(A)(i), an Acquiring Fund agrees to provide notice to the Acquired Fund.
| 4. | Indemnification |
(a) Each Acquiring Fund agrees to hold harmless and indemnify an Acquired Fund, including any of its principals, directors or trustees, officers, employees and agents, against and from any and all losses, expenses or liabilities incurred by or claims or actions (“Claims”) asserted against such Acquired Fund, including any of its principals, directors or trustees, officers, employees and agents, to the extent such Claims result from (i) a violation or alleged violation by the Acquiring Fund of any provision of this Agreement or (ii) a violation or alleged violation by the Acquiring Fund of the terms and conditions of the Rule with respect to the Acquiring Fund’s investment in the Acquired Fund, such indemnification to include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Claims;
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provided that no Acquiring Fund shall be liable for indemnifying any Acquired Fund for any Claims resulting from violations that occur as a result of incomplete or inaccurate information provided by the Acquired Fund to such Acquiring Fund pursuant to terms and conditions of the Rule or this Agreement.
(b) Each Acquired Fund agrees to hold harmless and indemnify an Acquiring Fund, including any of its principals, directors or trustees, officers, employees and agents, against and from any Claims asserted against such Acquiring Fund, including any of its principals, directors or trustees, officers, employees and agents, to the extent such Claims result from (i) a violation or alleged violation by the Acquired Fund of any provision of this Agreement or (ii) a violation or alleged violation by the Acquired Fund of the terms and conditions of the Rule with respect to the Acquiring Fund’s investment in the Acquired Fund, such indemnification to include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Claims; provided that no Acquired Fund shall be liable for indemnifying any Acquiring Fund for any Claims resulting from violations that occur as a result of incomplete or inaccurate information provided by the Acquiring Fund to such Acquired Fund pursuant to terms and conditions of the Rule or this Agreement.
| 5. | NOTICES |
All notices, including all information that either party is required to provide under the terms of this Agreement and the Rule, shall be in writing and shall be delivered by registered or overnight mail or electronic mail to the address for each party specified below.
| If to the Acquiring Fund: | If to the Acquired Fund: | |
| Xxxxxxxxx Xxxxxxxx | Xxxxx Xxxxxxx | |
| c/o Highland Capital Management Fund | Chief Compliance Officer – DBX ETF Trust | |
| Advisors, L.P. | DWS Investment Management Americas | |
| 000 Xxxxxxxx Xxxxx, Xxxxx 000 | 000 Xxxxx Xxxxxx | |
| Xxxxxx, XX 00000 | Xxx Xxxx, XX 00000 | |
| Email: Xxxxxxxxx@xxxxxxxxxxxx.xxx | Email: xxxxx.xxxxxxx@xx.xxx | |
| With a copy to: | ||
| Xxxx Xxxxxxxx | ||
| Secretary – DBX ETF Trust | ||
| DWS Investment Management Americas | ||
| 000 Xxxxxx Xxxxxx, 0xx Xxxxx | ||
| Xxxxxx, XX 00000 | ||
| Email: xxxx.xxxxxxxx@xx.xxx | ||
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| 6. | TERM AND TERMINATION; ASSIGNMENT; AMENDMENT |
(a) This Agreement shall be effective for the duration of the Acquired Funds’ and the Acquiring Funds’ reliance on the Rule, as interpreted or modified by the SEC or its Staff from time to time. While the terms of the Agreement shall only be applicable to investments in Funds made in reliance on the Rule, as interpreted or modified by the SEC or its Staff from time to time, the Agreement shall continue in effect until terminated pursuant to Section 6(b).
(b) This Agreement shall continue until terminated in writing by either party upon sixty
(60) days’ notice to the other party provided, however, that the provisions of Section 4 shall survive the termination of this Agreement. Upon termination of this Agreement, the Acquiring Funds may not purchase additional shares of the Acquired Funds beyond the Section 12(d)(1)(A) limits in reliance on the Rule.
(c) This Agreement may not be assigned by either party without the prior written consent of the other. In the event either party assigns this Agreement to a third party as provided in this Section, such permitted third party shall be bound by the terms and conditions of this Agreement applicable to the assigning party.
(d) Except as otherwise provided in this Agreement, the Agreement may be amended only by a writing that is signed by each affected party.
(e) In any action involving the Acquiring Funds under this Agreement, each Acquired Fund agrees to look solely to the individual Acquiring Fund(s) that are involved in the matter in controversy and not to any other series of the Acquiring Funds.
(f) In any action involving the Acquired Funds under this Agreement, each Acquiring Fund agrees to look solely to the individual Acquired Fund(s) that are involved in the matter in controversy and not to any other series of the Acquired Funds.
(g) This Agreement shall automatically terminate with respect to a particular Fund upon the termination of such Fund. Such termination of the Agreement on behalf of the respective Fund shall not terminate this Agreement with respect to other Funds that are parties hereto.
| 6. | MISCELLANEOUS |
(a) Counterparts. This Agreement may be executed in two or more counterparts, each of which is deemed an original but all of which together constitute one and the same instrument.
(b) Severability. If any provision of this Agreement is determined to be invalid, illegal, in conflict with any law or otherwise unenforceable, the remaining provisions hereof will be considered severable and will not be affected thereby, and every remaining provision hereof will remain in full force and effect and will remain enforceable to the fullest extent permitted by applicable law.
(c) Addition or Removal of Acquiring and Acquired Funds. In the event that either party to this Agreement wishes to include one or more additional series on Schedules A or B, or remove one or more series from eligibility for purchase by adding the series to Schedule C, the relevant party shall notify the other party in writing, and, if the other party agrees in writing, the appropriate Schedule shall be amended accordingly and, in the case of series added to Schedule A or B, such series shall become an Acquiring Fund or Acquired Fund, as appropriate, under this Agreement.
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(d) Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations.
(e) The execution of this Agreement shall be deemed to constitute the termination as of the date of this Agreement of any and all prior agreements between the Acquiring Fund and an Acquired Fund that relates to the investment by the Acquiring Fund in any Acquired Fund in reliance on a participation agreement, exemptive order or other arrangement among the parties intended to achieve compliance with Section 12(d)(1) of the 1940 Act (the “Prior Section 12 Agreements”). The parties hereby waive any notice provisions, conditions to termination, or matters otherwise required to terminate such Prior Section 12 Agreements.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
DBX ETF Trust, on behalf of each of its series listed on Schedule B, severally and not jointly
| /s/ Xxxxxx Xxxxxxx | ||
| Name: | Xxxxxx Xxxxxxx | |
| Title: | President and Chief Executive Officer | |
Highland Funds I, on behalf of each of its series listed on Schedule A, severally and not jointly
| /s/ Xxxxx Xxxxxxxxxx |
| Name: Xxxxx Xxxxxxxxxx |
| Title: Treasurer |
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SCHEDULE A
Acquiring Funds
| • | NexPoint Event Driven Fund |
| • | Highland/iBoxx Senior Loan ETF |
| • | NexPoint Merger Arbitrage Fund |
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SCHEDULE B
Acquired Funds
DBX ETF Trust
Xtrackers Harvest CSI 300 China A-Shares ETF
Xtrackers Harvest CSI 500 China A-Shares Small Cap ETF
Xtrackers MSCI China A Inclusion Equity ETF
Xtrackers MSCI All World ex US Hedged Equity ETF
Xtrackers MSCI EAFE Hedged Equity ETF
Xtrackers MSCI Emerging Markets Hedged Equity ETF
Xtrackers MSCI Europe Hedged Equity ETF
Xtrackers MSCI Eurozone Hedged Equity ETF
Xtrackers MSCI Germany Hedged Equity ETF
Xtrackers MSCI Japan Hedged Equity ETF
Xtrackers FTSE Developed ex US Multifactor ETF
Xtrackers Xxxxxxx US Multifactor ETF
Xtrackers MSCI EAFE ESG Leaders Equity ETF
Xtrackers Emerging Markets Carbon Reduction and Climate Improvers ETF
Xtrackers MSCI Emerging Markets ESG Leaders Equity ETF
Xtrackers Bloomberg US Investment Grade Corporate ESG ETF
Xtrackers X.X. Xxxxxx ESG Emerging Markets Sovereign ETF
Xtrackers X.X. Xxxxxx ESG USD High Yield Corporate Bond ETF
Xtrackers Eurozone Equity ETF
Xtrackers International Real Estate ETF
Xtrackers MSCI All World ex US High Dividend Yield Equity ETF
Xtrackers MSCI EAFE High Dividend Yield Equity ETF
Xtrackers Low Beta High Yield Bond ETF
Xtrackers USD High Yield Corporate Bond ETF
Xtrackers High Beta High Yield Bond ETF
Xtrackers Japan JPX-Nikkei 400 Equity ETF
Xtrackers MSCI Kokusai Equity ETF
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Xtrackers S&P MidCap 400 ESG ETF
Xtrackers Xxxxxxx 1000 US Quality at a Reasonable Price ETF
Xtrackers Municipal Infrastructure Revenue Bond ETF
Xtrackers Short Duration High Yield Bond ETF
Xtrackers S&P SmallCap 600 ESG ETF
Xtrackers S&P 500 ESG ETF
Xtrackers MSCI USA ESG Leaders Equity ETF
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SCHEDULE C
Funds Excluded from Acquired Fund List
DBX ETF Trust
Xtrackers MSCI All China Equity ETF
Xtrackers Risk Managed USD High Yield Strategy ETF
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