TRANSFER AND ASSUMPTION AGREEMENT
Exhibit 99(d)(1)(b)
TRANSFER AND ASSUMPTION AGREEMENT
This Transfer and Assumption Agreement (the “Agreement”) is made as of January 1, 2025 (the “Closing Date”) by and among Virtus Investment Advisers, LLC, a Delaware limited liability company (formerly, Virtus Investment Advisers, Inc., a Massachusetts corporation (the “Transferee”); Virtus Advisers, LLC, a Delaware limited liability company (formerly, Virtus ETF Advisers LLC, a Delaware limited liability company) (the “Adviser”); and Virtus ETF Trust II, a Delaware statutory trust (the “Trust” and collectively with the Adviser, the “Transferor”), on behalf of its series listed on Schedule A attached hereto (each, a “Fund” and collectively, the “Funds”).
WITNESSETH THAT:
WHEREAS, the Transferee and the Adviser are each an investment adviser registered with the U.S. Securities and Exchange Commission (the “SEC”) under the Investment Advisers Act of 1940 (the “Advisers Act”);
WHEREAS, the Adviser and the Trust are parties to an Investment Advisory Agreement dated as of January 4, 2016 (as amended, the “Advisory Agreement”), with respect to the Funds;
WHEREAS, the Adviser and the Trust on behalf of the ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ Clean Energy ETF (“VCLN”) are parties to a Fee Waiver Agreement effective as of August 2, 2021 (as amended, the “VCLN Fee Waiver Agreement”), with respect to VCLN;
WHEREAS, the Adviser and the Trust on behalf of the Virtus Newfleet ABS/MBS ETF (“VABS”) are parties to a Fee Waiver Agreement effective as of February 9, 2021 (as amended, the “VABS Fee Waiver Agreement”), with respect to VABS;
WHEREAS, the Adviser and the Trust on behalf of the Virtus Newfleet Short Duration Core Plus Bond ETF (“SDCP”) are parties to a Fee Waiver Agreement effective as of November 7, 2023 (the “SDCP Fee Waiver Agreement”), with respect to SDCP;
WHEREAS, the Adviser and the Trust on behalf of the Virtus Seix Senior Loan ETF (“SEIX”) are parties to a Fee Waiver Agreement effective as of November 28, 2023 (as amended, the “SEIX Fee Waiver Agreement”), with respect to SEIX (the SEIX Fee Waiver Agreement, the VCLN Fee Waiver Agreement, the VABS Fee Waiver Agreement and the SDCP Fee Waiver Agreements, each, a “Fee Waiver Agreement” and collectively, the “Fee Waiver Agreements”);
WHEREAS, the Advisory Agreement provides in substance for its automatic termination in the event of its assignment, in accordance with the requirements of Section 15(a)(4) of the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the Adviser wishes to transfer to the Transferee, and the Transferee wishes to assume, the rights and obligations of the Adviser under the Fee Waiver Agreements;
WHEREAS, the Transferee and the Adviser are both indirect, wholly-owned subsidiaries of Virtus Investment Partners, Inc. (“Virtus”) and are, therefore, under common control of Virtus;
WHEREAS, certain registered investment advisers within the corporate organizational structure of Virtus will be reorganized and the Transferee will replace the Adviser as adviser to the Funds (the “Reorganization”);
WHEREAS, following the Reorganization, the Transferee and the Adviser will remain indirect, wholly-owned subsidiaries of Virtus, and therefore under the control of Virtus;
WHEREAS, the Reorganization will not result in a change of actual control or management of either the Adviser or the Transferee and, therefore, under Rule 2a-6 of the 1940 Act, is not an assignment that would cause a termination of the Advisory Agreement in accordance with its terms; and
WHEREAS, at a meeting held on November 20, 2024, the Board of Trustees of the Trust (the “Board”), including a majority of Trustees who are not “interested persons” (as defined in Section 2(a)(19) of the 1940 Act) of the Trust or any investment adviser to the Trust, approved the appointment of the Transferee as the investment adviser to the Funds in connection with the Reorganization and authorized any officer of the Funds to execute and deliver such documentation appropriate to accomplish the transfer and assumption of the Advisory Agreement and the Fee Waiver Agreements;
WHEREAS, the Trust wishes to confirm its express written consent to the transfer, assumption and amendment of the Advisory Agreement and the Fee Waiver Agreements as set forth in this Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound, and for the consideration set forth herein, the sufficiency of which is hereby acknowledged, agree as follows:
1. AMENDMENT OF THE ADVISORY AGREEMENT AND THE FEE WAIVER AGREEMENTS. The name of the adviser in the Advisory Agreement and in each Fee Waiver Agreement is hereby changed from “Virtus ETF Advisers LLC” to “Virtus Investment Advisers, LLC.”
2. ASSUMPTION BY THE TRANSFEREE. The Transferee, intending to be legally bound, hereby agrees as of the Closing Date, to assume all of the duties and obligations of the Adviser with respect to the provision of investment management services to each Fund under the Advisory Agreement and with respect to the waiver of fees and/or assumption of expenses under the respective Fee Waiver Agreement, and accepts and agrees to perform all such duties and obligations in connection therewith.
3. REPRESENTATIONS OF THE TRANSFEREE. The Transferee hereby represents and warrants as of the Closing Date: (i) it is registered as an investment adviser with the SEC under the Advisers Act, and its registration is currently in full force and effect; (ii) it is capable and is legally empowered to assume the duties and obligations under the Advisory Agreement and under the Fee Waiver Agreements, and to act as adviser to the Funds; (iii) all action required of the Transferee to assume the duties and obligations under the Advisory Agreement and under the Fee Waiver Agreements has been taken; (iv) this Agreement creates a valid and binding agreement enforceable against the Transferee in accordance with its terms; and (v) each of the Advisory Agreement and the Fee Waiver Agreements creates a valid and binding agreement enforceable against the Transferee in accordance with its terms.
4. CONSENT OF THE TRUST. By executing this Agreement, the Trust expressly consents to the transfer, assumption and amendment of the Advisory Agreement and of each Fee Waiver Agreement as set forth in this Agreement.
5. GOVERNING LAW. This Agreement shall be governed by and enforced in accordance with the laws of the State of Delaware.
6. FURTHER ASSURANCES. Transferor and Transferee each agree to execute and deliver such further instruments, agreements and assurances as may be reasonably requested by the others to evidence and provide for the transfer by Transferor and the assumption by Transferee of the rights and obligations under the Advisory Agreement and the Fee Waiver Agreements.
7. COUNTERPARTS. This Agreement may be executed in counterparts, which may be executed and/or exchanged electronically, each of which, when taken together, shall constitute one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto intending to be legally bound have caused this Transfer and Assumption Agreement to be executed by their duly authorized officers or other representatives.
| VIRTUS ADVISERS, LLC | |
| (formerly, Virtus ETF Advisers LLC) |
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| Title: | Executive Vice President |
| VIRTUS
INVESTMENT ADVISERS, LLC (formerly, Virtus Investment Advisers, Inc.) |
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| Title: | Executive Vice President |
| VIRTUS
ETF TRUST II On behalf of its series listed on Schedule A |
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: | President |
SCHEDULE A
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ Clean Energy ETF
Virtus Newfleet ABS/MBS ETF
Virtus Newfleet Short Duration Core Plus Bond ETF
Virtus Seix Senior Loan ETF