As filed with the Securities and Exchange Commission on November 5, 2019
1933 Act Registration No. 333-210186
1940 Act Registration No. 811-23147
United States
Securities and Exchange Commission
Washington, D.C. 20549
Form N-1A
Registration Statement Under the Securities Act of 1933 | [ ] |
Pre-Effective Amendment No. __ | [ ] |
Post-Effective Amendment No. 75 | [X] |
and/or | |
Registration Statement Under the Investment Company Act of 1940 | [ ] |
Amendment No. 77 | [X] |
First Trust Exchange-Traded Fund VIII
(Exact name of registrant as specified in charter)
120 East Liberty Drive, Suite 400
Wheaton, Illinois 60187
(Address of Principal Executive Offices) (Zip Code)
Registrant’s Telephone Number, including Area Code: (800) 621-1675
W. Scott Jardine, Esq., Secretary
First Trust Exchange-Traded Fund VIII
First Trust Advisors L.P.
120 East Liberty Drive, Suite 400
Wheaton, Illinois 60187
(Name and Address of Agent for Service)
Copy to:
Eric F. Fess, Esq.
Chapman and Cutler LLP
111 West Monroe Street
Chicago, Illinois 60603
It is proposed that this filing will become effective (check appropriate box):
[X] immediately upon filing pursuant to paragraph (b)
[ ] on (date) pursuant to paragraph (b)
[ ] 60 days after filing pursuant to paragraph (a)(1)
[ ] on (date) pursuant to paragraph (a)(1)
[ ] 75 days after filing pursuant to paragraph (a)(2)
[ ] on (date) pursuant to paragraph (a)(2) of Rule 485.
If appropriate, check the following box:
[ ] this post-effective amendment designates a new effective date for a previously filed post-effective amendment.
Contents of Post-Effective Amendment No. 75
This Registration Statement comprises the following papers and contents:
The Facing Sheet
Part A - Prospectus for FT Cboe Vest U.S. Equity Buffer ETF – August
Part B – Statement of Additional Information for FT Cboe Vest U.S. Equity Buffer ETF – August
Part C - Other Information
Signatures
Index to Exhibits
Exhibits
First Trust
Exchange-Traded Fund VIII |
Ticker Symbol: | FAUG |
Exchange: | Cboe BZX |
• | The Fund will invest substantially all of its assets in FLexible EXchange® Options (“FLEX Options”) on the SPDR® S&P 500® ETF Trust (the “Underlying ETF”). FLEX Options are customizable exchange-traded option contracts guaranteed for settlement by the Options Clearing Corporation. The Fund uses FLEX Options to employ a “target outcome strategy.” Target outcome strategies seek to produce pre-determined investment outcomes based upon the performance of an underlying security or index. The pre-determined outcomes sought by the Fund, which include the buffer and cap discussed below (“Outcomes”), are based upon the value of the FLEX Options on the first day of the Target Outcome Period (see below) and reference the performance of the Underlying ETF over the period of ____________ through ____________. This period is referred to as the initial “Target Outcome Period.” Following this initial Target Outcome Period, each subsequent Target Outcome Period will be a one-year period from the third Friday in August of each year and ending on the third Friday in August of the following year. Approximately one week prior to the end of the current Target Outcome Period, the Fund’s website will be updated to alert existing shareholders that the Target Outcome Period is approaching its conclusion and will disclose the anticipated cap range for the next Target Outcome Period. For more information, see the Fund’s Statement of Additional Information. The Fund will not terminate after the conclusion of the Target Outcome Period. After the conclusion of the Target |
Outcome Period, another will begin. There is no guarantee that the Outcomes for a Target Outcome Period will be realized. | |
• | The Fund’s strategy has been specifically designed to produce the Outcomes based upon the Underlying ETF’s returns over the duration of the Target Outcome Period. The Outcomes may only be realized if you are holding shares on the first day of the Target Outcome Period and continue to hold them on the last day of the Target Outcome Period. If you purchase shares after the Target Outcome Period has begun or sell shares prior to the Target Outcome Period’s conclusion, you may experience investment returns very different from those that the Fund seeks to provide. Additionally, there is no guarantee that the Fund will successfully achieve its investment objective. |
• | Fund shareholders are subject to an upside return cap that represents the maximum percentage return an investor can achieve from an investment in the Fund for the Target Outcome Period. Therefore, even though the Fund’s returns are based upon the Underlying ETF, if the Fund experiences returns for the Target Outcome Period in excess of the cap, you will not experience those excess gains. The cap is set on the first day of the Target Outcome Period and is [__]% prior to taking into account any fees or expenses charged to shareholders. When the Fund’s annual Fund management fee of __% of the Fund’s average daily net assets is taken into account, the cap is __%. The cap will be further reduced by any brokerage commissions, trading expenses, taxes and any extraordinary expenses incurred by the Fund. Please note, if the Target Outcome Period has begun and the Fund has increased in value to a level near to the cap, an investor purchasing at that price has little or no ability to achieve gains but remains vulnerable to downside risks. Additionally, the cap may rise or fall from one Target Outcome Period to the next. There is no guarantee that the cap will remain the same upon the conclusion of the Target Outcome Period. |
• | The Fund only seeks to provide shareholders that hold shares for the entire Target Outcome Period with a buffer against the first 10% of Underlying ETF losses (based upon the value of the Underlying ETF at the time the Fund entered into the FLEX Options on the first day of the Target Outcome Period) during the Target Outcome Period. You will bear all Underlying ETF losses exceeding 10% on a one-to-one basis. The buffer is provided prior to taking into account annual Fund management fees equal to __% of the Fund’s daily net assets, brokerage commissions, trading expenses, taxes and any extraordinary expenses incurred by the Fund. A shareholder that purchases shares at the beginning of the Target Outcome Period may lose their entire investment. While the Fund seeks to limit losses to 90% for shareholders who hold shares for the entire Target Outcome Period, there is no guarantee it will successfully do so. Depending upon market conditions at the time of purchase, a shareholder that purchases shares after the Target Outcome Period has begun may also lose their entire investment. For instance, if the Target Outcome Period has begun and the Fund has decreased in value beyond the pre-determined 10% buffer, an investor purchasing shares at that price may not benefit from the buffer. Similarly, if the Target Outcome Period has begun and the Fund has increased in value, an investor purchasing shares at that price may not benefit from the buffer until the Fund’s value has decreased to its value at the commencement of the Target Outcome Period. |
• | The Fund’s website, www.ftportfolios.com/retail/etf/EtfSummary.aspx?Ticker= FAUG provides important Fund information (including Target Outcome Period start and end dates and the cap and buffer), as well information relating to the potential outcomes of an investment in the Fund on a daily basis. If you are contemplating purchasing shares, please visit the website. Investors considering purchasing shares after the Target Outcome Period has begun or selling shares prior to the end of the Target Outcome Period should visit the website to fully understand potential investment outcomes. |
• | As stated above and explained in greater detail within the prospectus, if the Fund has experienced certain levels of either gains or losses since the beginning of the Target Outcome Period, there may be little to no ability to achieve gains or benefit from the buffer for the remainder of the Target Outcome Period. The website contains important information that will assist you in determining whether to buy shares. |
• | Although the Fund’s shares are listed for trading on a national securities exchange, there can be no assurance that an active trading market for the shares will develop or be maintained. |
Management Fees | 0.85% |
Distribution and Service (12b-1) Fees | 0.00% |
Other Expenses(1) | 0.00% |
Total Annual Fund Operating Expenses | 0.85% |
(1) | “Other Expenses” is an estimate based on the expenses the Fund expects to incur for the current fiscal year. |
1 Year | 3 Years |
$87 | $271 |
• | If the Underlying ETF appreciates over the Target Outcome Period, the combination of FLEX Options held by the Fund provides upside participation that is intended to match that of the Underlying ETF, up to a cap that is determined at the start of the Target Outcome Period. The cap for the current Target Outcome Period is [__]% before fees, expenses and taxes and [__]% after fees and expenses, excluding brokerage commissions, trading fees, taxes and extraordinary expenses not included in the Fund’s management fee |
• | If the Underlying ETF decreases over the Target Outcome Period, the combination of FLEX Options held by the Fund provides a payoff at expiration that is intended to compensate for losses experienced by the Underlying ETF (if any), in an amount not to exceed 10% before fees, expenses and taxes. |
• | If the Underlying ETF has decreased in value by more than 10% over the Target Outcome Period, the Fund will experience all subsequent losses on a one-to-one basis. |
• | The combination of cash equivalents (a) and the FLEX Options (b) seek to replicate the returns of the Underlying ETF. At the expiration date, these positions should realize a value equal to that of the price of the Underlying ETF. |
• | Taken together, positions (c) and (d) produce the 10% “buffer,” where position (c) is the top end of the buffer and position (d) is the bottom end. The payoff at expiration will compensate for losses experienced by the Underlying ETF (if any), in an amount not to exceed 10%. |
• | The strike level of the FLEX Option in position (e) produces the cap and is chosen so that the combined net investment in (a) through (e) is approximately equal to the Fund’s NAV. |
• | The combination of positions (a) through (e) creates a maximum growth opportunity equal to the return experienced by the Underlying ETF at expiration, not to exceed the cap, while providing a 10% buffer from losses, before fees and expenses. |
• | Karan Sood, Managing Director of Cboe Vest |
• | Howard Rubin, Managing Director of Cboe Vest |
• | Mr. Sood has over ten years of experience in derivative based investment strategy design and trading. Mr. Sood joined Cboe Vest in 2012. Prior to joining Cboe Vest Mr. Sood worked at ProShares Advisors LLC. Prior to ProShares, Mr. Sood worked as a Vice President at Barclays Capital. Last based in New York, he was responsible for using derivatives to design structured investment strategies and solutions for the firm’s institutional clients in the Americas. Prior to his role in New York, Mr. Sood worked in similar capacity in London with Barclays Capital’s European clients. Mr. Sood received a master’s degree in Decision Sciences & Operations Research from London School of Economics & Political Science. He also holds a bachelor’s degree in engineering from the Indian Institute of Technology, Delhi. |
• | Mr. Rubin has over twenty years of experience as a portfolio manager. Mr. Rubin joined Cboe Vest in 2017. Prior to joining Cboe Vest, Mr. Rubin served as Director of Portfolio Management at ProShares Advisors LLC from December 2007 to September 2013. Mr. Rubin also served as Senior Portfolio Manager of ProFund Advisors LLC from November 2004 to December 2007 and Portfolio Manager of ProFund Advisors LLC from April 2000 through November 2004. Mr. Rubin holds the Chartered Financial Analyst (CFA) designation. Mr. Rubin received a master’s degree in Finance from George Washington University. He also holds a bachelor’s degree in economics from Wharton School of Finance, University of Pennsylvania. |
First Trust
Exchange-Traded Fund VIII |
FUND NAME | TICKER SYMBOL | EXCHANGE | ||
FT Cboe Vest U.S. Equity Buffer ETF – August | FAUG | Cboe BZX |
(1) | The Fund may not issue senior securities, except as permitted under the 1940 Act. |
(2) | The Fund may not borrow money, except as permitted under the 1940 Act. |
(3) | The Fund will not underwrite the securities of other issuers except to the extent the Fund may be considered an underwriter under the Securities Act of 1933, as amended (the “1933 Act”), in connection with the purchase and sale of portfolio securities. |
(4) | The Fund will not purchase or sell real estate or interests therein, unless acquired as a result of ownership of securities or other instruments (but this shall not prohibit the Fund from purchasing or selling securities or other instruments backed by real estate or of issuers engaged in real estate activities). |
(5) | The Fund may not make loans to other persons, except through (i) the purchase of debt securities permissible under the Fund's investment policies, (ii) repurchase agreements, or (iii) the lending of portfolio securities, provided that no such loan of portfolio securities may be made by the Fund if, as a result, the aggregate of such loans would exceed 33⅓% of the value of the Fund's total assets. |
(6) | The Fund may not purchase or sell physical commodities unless acquired as a result of ownership of securities or other instruments (but this shall not prevent the Fund from purchasing or selling options, futures contracts, forward contracts or other derivative instruments, or from investing in securities or other instruments backed by physical commodities). |
(7) | The Fund may not invest 25% or more of the value of its total assets in securities of issuers in any one industry or group of industries except to the extent that the Underlying ETF is concentrated in an industry or group of industries. This restriction does not apply to obligations issued or guaranteed by the U.S. government, its agencies or instrumentalities, or securities of other investment companies. |
(1) | The Fund may invest in U.S. government securities, including bills, notes and bonds differing as to maturity and rates of interest, which are either issued or guaranteed by the U.S. Treasury or by U.S. government agencies or instrumentalities. U.S. government securities include securities that are issued or guaranteed by the U.S. Treasury, by various agencies of the U.S. government, or by various instrumentalities that have been established or sponsored by the U.S. government. U.S. Treasury securities are backed by the “full faith and credit” of the United States. Securities issued or guaranteed by federal agencies and U.S. government-sponsored instrumentalities may or may not be backed by the full faith and credit of the United States. Some of the U.S. government agencies that issue or guarantee securities include the Export-Import Bank of the United States, the Farmers Home Administration, the Federal Housing Administration, the Maritime Administration, the Small Business Administration and The Tennessee Valley Authority. An instrumentality of the U.S. government is a government agency organized under federal charter with government supervision. Instrumentalities issuing or guaranteeing securities include, among others, the Federal Home Loan Banks, the Federal Land Banks, the Central Bank for Cooperatives, Federal Intermediate Credit Banks and the Federal National Mortgage Association (“Fannie Mae”). In the case of those U.S. government securities not backed by the full faith and credit of the United States, the investor must look principally to the agency or instrumentality issuing or guaranteeing the security for ultimate repayment and may not be able to assert a claim against the United States itself in the event that the agency or instrumentality does not meet its commitment. The U.S. government, its agencies and instrumentalities do not guarantee the market value of their securities; consequently, the value of such securities may fluctuate. |
(2) | The Fund may invest in certificates of deposit issued against funds deposited in a bank or savings and loan association. Such certificates are for a definite period of time, earn a specified rate of return and are normally negotiable. If such certificates of deposit are non-negotiable, they will be considered illiquid securities and be subject to the Fund's 15% restriction on investments in illiquid securities. Pursuant to the certificate of deposit, the issuer agrees to pay the amount deposited plus interest to the bearer of the certificate on the |
date specified thereon. Under current FDIC regulations, the maximum insurance payable as to any one certificate of deposit is $250,000; therefore, certificates of deposit purchased by the Fund may not be fully insured. The Fund may only invest in certificates of deposit issued by U.S. banks with at least $1 billion in assets. | |
(3) | The Fund may invest in bankers’ acceptances, which are short-term credit instruments used to finance commercial transactions. Generally, an acceptance is a time draft drawn on a bank by an exporter or an importer to obtain a stated amount of funds to pay for specific merchandise. The draft is then “accepted” by a bank that, in effect, unconditionally guarantees to pay the face value of the instrument on its maturity date. The acceptance may then be held by the accepting bank as an asset or it may be sold in the secondary market at the going rate of interest for a specific maturity. |
(4) | The Fund may invest in repurchase agreements, which involve purchases of debt securities with counterparties that are deemed by the Sub-Advisor to present acceptable credit risks. In such an action, at the time the Fund purchases the security, it simultaneously agrees to resell and redeliver the security to the seller, who also simultaneously agrees to buy back the security at a fixed price and time. This assures a predetermined yield for the Fund during its holding period since the resale price is always greater than the purchase price and reflects an agreed-upon market rate. Such actions afford an opportunity for the Fund to invest temporarily available cash. The Fund may enter into repurchase agreements only with respect to obligations of the U.S. government, its agencies or instrumentalities, certificates of deposit or bankers’ acceptances in which the Fund may invest. Repurchase agreements may be considered loans to the seller, collateralized by the underlying securities. The risk to the Fund is limited to the ability of the seller to pay the agreed-upon sum on the repurchase date; in the event of default, the repurchase agreement provides that the affected Fund is entitled to sell the underlying collateral. If the value of the collateral declines after the agreement is entered into, however, and if the seller defaults under a repurchase agreement when the value of the underlying collateral is less than the repurchase price, the Fund could incur a loss of both principal and interest. The portfolio managers monitor the value of the collateral at the time the action is entered into and at all times during the term of the repurchase agreement. The portfolio managers do so in an effort to determine that the value of the collateral always equals or exceeds the agreed-upon repurchase price to be paid to the Fund. If the seller were to be subject to a federal bankruptcy proceeding, the ability of the Fund to liquidate the collateral could be delayed or impaired because of certain provisions of the bankruptcy laws. |
(5) | The Fund may invest in bank time deposits, which are monies kept on deposit with banks or savings and loan associations for a stated period of time at a fixed rate of interest. There may be penalties for the early withdrawal of such time deposits, in which case the yields of these investments will be reduced. |
(6) | The Fund may invest in commercial paper, which are short-term unsecured promissory notes, including variable rate master demand notes issued by corporations to finance their current operations. Master demand notes are direct lending arrangements between the Fund and a corporation. There is no secondary market for the notes. However, they are redeemable by the Fund at any time. The Fund's portfolio managers will consider the financial condition of the corporation (e.g., earning power, cash flow and other liquidity ratios) and will continuously monitor the corporation’s ability to meet all of its financial obligations, because the Fund's liquidity might be impaired if the corporation were unable to pay principal and interest on demand. The Fund may invest in commercial paper only if it has received the highest rating from at least one nationally recognized statistical rating organization or, if unrated, judged by the Sub-Advisor to be of comparable quality. |
(7) | The Fund may invest in shares of money market funds, as consistent with its investment objective and policies. Shares of money market funds are subject to management fees and other expenses of those funds. Therefore, investments in money market funds will cause the Fund to bear proportionately the costs incurred by the money market funds’ operations. At the same time, the Fund will continue to pay its own management fees and expenses with respect to all of its assets, including any portion invested in the shares of other investment companies. It is possible for the Fund to lose money by investing in money market funds. |
(1) | Market Risk. Market risk is the risk that the value of the underlying assets may go up or down. Adverse movements in the value of an underlying asset can expose the Fund to losses. Derivative instruments may include elements of leverage and, accordingly, fluctuations in the value of the derivative instrument in relation to the underlying asset may be magnified. The successful use of derivative instruments depends upon a variety of factors, particularly the portfolio managers’ ability to predict movements of the securities, currencies and commodities markets, which may require different skills than predicting changes in the prices of individual securities. There can be no assurance that any particular strategy adopted will succeed. A decision to engage in a derivative transaction will reflect the portfolio managers’ judgment that the derivative transaction will provide value to the Fund and its shareholders and is consistent with the Fund's objective, investment limitations and operating policies. In making such a judgment, the portfolio managers will analyze the benefits and risks of the derivative transactions and weigh them in the context of the Fund's overall investments and investment objective. |
(2) | Credit Risk/Counterparty Risk. Credit risk is the risk that a loss may be sustained as a result of the failure of a counterparty to comply with the terms of a derivative instrument. The counterparty risk for exchange-traded derivatives is generally less than for privately negotiated or over-the-counter (“OTC”) derivatives, since generally a clearing agency, which is the issuer or counterparty to each exchange-traded instrument, provides a guarantee of performance. For privately negotiated instruments, there is no similar clearing agency guarantee. In all transactions, the Fund will bear the risk that the counterparty will default, and this could result in a loss of the expected benefit of the derivative transactions and possibly other losses to the Fund. The Fund will enter into transactions in derivative instruments only with counterparties that First Trust reasonably believes are capable of performing under the contract. |
(3) | Correlation Risk. Correlation risk is the risk that there might be an imperfect correlation, or even no correlation, between price movements of a derivative instrument and price movements of investments being hedged. When a derivative transaction is used to completely hedge another position, changes in the market value of the combined position (the derivative instrument plus the position being hedged) result from an imperfect correlation between the price movements of the two instruments. With a perfect hedge, the value of the combined position remains unchanged with any change in the price of the underlying asset. With an imperfect hedge, the value of the |
derivative instrument and its hedge are not perfectly correlated. For example, if the value of a derivative instrument used in a short hedge (such as writing a call option, buying a put option or selling a futures contract) increased by less than the decline in value of the hedged investments, the hedge would not be perfectly correlated. This might occur due to factors unrelated to the value of the investments being hedged, such as speculative or other pressures on the markets in which these instruments are traded. The effectiveness of hedges using instruments on indices will depend, in part, on the degree of correlation between price movements in the index and the price movements in the investments being hedged. | |
(4) | Liquidity Risk. Liquidity risk is the risk that a derivative instrument cannot be sold, closed out or replaced quickly at or very close to its fundamental value. Generally, exchange contracts are very liquid because the exchange clearinghouse is the counterparty of every contract. OTC transactions are less liquid than exchange-traded derivatives since they often can only be closed out with the other party to the transaction. The Fund might be required by applicable regulatory requirements to maintain assets as “cover,” maintain segregated accounts and/or make margin payments when taking positions in derivative instruments involving obligations to third parties (i.e., instruments other than purchase options). If the Fund is unable to close out its positions in such instruments, it might be required to continue to maintain such assets or accounts or make such payments until the position expires, matures or is closed out. These requirements might impair the Fund's ability to sell a security or make an investment at a time when it would otherwise be favorable to do so, or require that the Fund sell a portfolio security at a disadvantageous time. The Fund's ability to sell or close out a position in an instrument prior to expiration or maturity depends upon the existence of a liquid secondary market or, in the absence of such a market, the ability and willingness of the counterparty to enter into a transaction closing out the position. Due to liquidity risk, there is no assurance that any derivatives position can be sold or closed out at a time and price that is favorable to the Fund. |
(5) | Legal Risk. Legal risk is the risk of loss caused by the unenforceability of a party’s obligations under the derivative. While a party seeking price certainty agrees to surrender the potential upside in exchange for downside protection, the party taking the risk is looking for a positive payoff. Despite this voluntary assumption of risk, a counterparty that has lost money in a derivative transaction may try to avoid payment by exploiting various legal uncertainties about certain derivative products. |
(6) | Systemic or “Interconnection” Risk. Systemic or “interconnection” risk is the risk that a disruption in the financial markets will cause difficulties for all market participants. In other words, a disruption in one market will spill over into other markets, perhaps creating a chain reaction. Much of the OTC derivatives market takes place among the OTC dealers themselves, thus creating a large interconnected web of financial obligations. This interconnectedness raises the possibility that a default by one large dealer could create losses for other dealers and destabilize the entire market for OTC derivative instruments. |
Name and
Year of Birth |
Position
and Offices with Trust |
Term of
Office and Year First Elected or Appointed |
Principal Occupations
During Past 5 Years |
Number of
Portfolios in the First Trust Fund Complex Overseen by Trustee |
Other
Trusteeships or Directorships Held by Trustee During the Past 5 Years |
TRUSTEE WHO IS AN INTERESTED PERSON OF THE TRUST | |||||
James A. Bowen (1)
1955 |
Chairman of the Board and Trustee |
• Indefinite term
• Since inception |
Chief Executive Officer, First Trust Advisors L.P. and First Trust Portfolios L.P.; Chairman of the Board of Directors, BondWave LLC (Software Development Company) and Stonebridge Advisors LLC (Investment Advisor) | 167 Portfolios | None |
INDEPENDENT TRUSTEES | |||||
Richard E. Erickson
1951 |
Trustee |
• Indefinite term
• Since inception |
Physician; Officer, Wheaton Orthopedics; Limited Partner, Gundersen Real Estate Limited Partnership (June 1992 to December 2016); Member, Sportsmed LLC (April 2007 to November 2015) | 167 Portfolios | None |
Name and
Year of Birth |
Position and
Offices with Trust |
Term of Office and
Length of Service |
Principal Occupations
During Past 5 Years |
OFFICERS OF THE TRUST | |||
James M. Dykas
1966 |
President and Chief Executive Officer |
• Indefinite term
• Since inception |
Managing Director and Chief Financial Officer (January 2016 to present), Controller (January 2011 to January 2016), Senior Vice President (April 2007 to January 2016), First Trust Advisors L.P. and First Trust Portfolios L.P.; Chief Financial Officer (January 2016 to present), BondWave LLC (Software Development Company) and Stonebridge Advisors LLC (Investment Advisor) |
W. Scott Jardine
1960 |
Secretary and Chief Legal Officer |
• Indefinite term
• Since inception |
General Counsel, First Trust Advisors L.P. and First Trust Portfolios L.P.; Secretary and General Counsel, BondWave LLC; and Secretary, Stonebridge Advisors LLC |
Daniel J. Lindquist
1970 |
Vice President |
• Indefinite term
• Since inception |
Managing Director, First Trust Advisors L.P. and First Trust Portfolios L.P. |
Kristi A. Maher
1966 |
Chief Compliance Officer and Assistant Secretary |
• Indefinite term
• Since inception |
Deputy General Counsel, First Trust Advisors L.P. and First Trust Portfolios L.P. |
Donald P. Swade
1972 |
Treasurer, Chief Financial Officer and Chief Accounting Officer |
• Indefinite term
• Since inception |
Senior Vice President (July 2016 to Present), Vice President (April 2012 to July 2016), First Trust Advisors L.P. and First Trust Portfolios L.P. |
Roger F. Testin
1966 |
Vice President |
• Indefinite term
• Since inception |
Senior Vice President, First Trust Advisors L.P. and First Trust Portfolios L.P. |
Stan Ueland
1970 |
Vice President |
• Indefinite term
• Since inception |
Senior Vice President, First Trust Advisors L.P. and First Trust Portfolios L.P. |
(1) | Mr. Bowen is deemed an “interested person” of the Trust due to his position as Chief Executive Officer of First Trust, investment advisor of the Fund. |
Name of Trustee |
Estimated Compensation from
the Fund (1) |
Total Compensation from
the First Trust Fund Complex (2) |
Richard E. Erickson | $4,101 | $424,710 |
Thomas R. Kadlec | $4,089 | $413,499 |
Robert F. Keith | $4,089 | $414,497 |
Niel B. Nielson | $4,076 | $403,375 |
(1) | The estimated compensation to be paid by the Fund to the Independent Trustees for one fiscal year for services to the Fund. |
(2) | The total compensation paid to the Independent Trustees for the calendar year ended December 31, 2018 for services to the 161 portfolios, which consisted of 7 open-end mutual funds, 15 closed-end funds and 139 exchange-traded funds. |
Trustee |
Dollar Range of
Equity Securities in the Fund (Number of Shares Held) |
Aggregate Dollar Range of
Equity Securities in All Registered Investment Companies Overseen by Trustee in the First Trust Fund Complex |
Interested Trustee | ||
James A. Bowen | None | Over $100,000 |
Independent Trustees | ||
Richard E. Erickson | None | Over $100,000 |
Thomas R. Kadlec | None | Over $100,000 |
Robert F. Keith | None | Over $100,000 |
Niel B. Nielson | None | Over $100,000 |
• | Mr. Sood has over ten years of experience in derivative based investment strategy design and trading. Mr. Sood joined Cboe Vest in 2012. Prior to joining Cboe Vest Mr. Sood worked at ProShares Advisors LLC. Prior to ProShares, Mr. Sood worked as a Vice President at Barclays Capital. Last based in New York, he was responsible for using derivatives to design structured investment strategies and solutions for the firm’s institutional clients in the Americas. Prior to his role in New York, Mr. Sood worked in similar capacity in London with Barclays Capital’s European clients. Mr. Sood received a master’s degree in Decision Sciences & Operations Research from London School of Economics & Political Science. He also holds a bachelor’s degree in engineering from the Indian Institute of Technology, Delhi. |
• | Mr. Rubin has over twenty years of experience as a portfolio manager. Mr. Rubin joined Cboe Vest in 2017. Prior to joining Cboe Vest, Mr. Rubin served as Director of Portfolio Management at ProShares Advisors LLC from December 2007 to September 2013. Mr. Rubin also served as Senior Portfolio Manager of ProFund Advisors LLC from November 2004 to December 2007 and Portfolio Manager of ProFund Advisors LLC from April 2000 through November 2004. Mr. Rubin holds the Chartered Financial Analyst (CFA) designation. Mr. Rubin received a master’s degree in Finance from George Washington University. He also holds a bachelor’s degree in economics from Wharton School of Finance, University of Pennsylvania. |
Portfolio Managers |
Registered
Investment Companies Number of Accounts ($ Assets in Thousands) |
Other Pooled
Investment Vehicles Number of Accounts ($ Assets in Thousands) |
Other Accounts
Number of Accounts ($ Assets in Thousands) |
Registered
Investment Companies With Performance Fees Number of Accounts ($ Assets in Thousands) |
Other Pooled
Investment Vehicles With Performance Fees Number of Accounts ($ Assets in Thousands) |
Other Accounts
With Performance Fees Number of Accounts ($ Assets in Thousands) |
Karan Sood |
4
($262,011) |
2
($12,463) |
8
|
NA | N/A | N/A |
Howard Rubin |
4
($262,011) |
2
($12,463) |
8
|
NA | N/A | N/A |
(1) | Common stocks and other equity securities listed on any national or foreign exchange other than The Nasdaq Stock Market LLC ("Nasdaq") and the London Stock Exchange Alternative Investment Market (“AIM”) will be valued at the last sale price on the exchange on which they are principally traded, or the official closing price for Nasdaq and AIM securities. Portfolio securities traded on more than one securities exchange are valued at the last sale price or official closing price, as applicable, on the Business Day as of which such value is being determined at the close of the exchange representing the principal market for such securities. |
(2) | Shares of open-end funds are valued at fair value which is based on NAV per share. |
(3) | Securities traded in the OTC market are fair valued at the mean of their most recent bid and asked price, if available, and otherwise at their closing bid price. |
(4) | Exchange-traded options and futures contracts are valued at the closing price in the market where such contracts are principally traded. If no closing price is available, they will be fair valued at the mean of their most recent bid and asked price, if available, and otherwise at their closing bid price. OTC options and futures contracts are fair valued at the mean of their most recent bid and asked price, if available, and otherwise at their closing bid price. |
(5) | Forward foreign currency contracts are fair valued at the current day’s interpolated foreign exchange rate, as calculated using the current day’s spot rate, and the 30-, 60-, 90- and 180-day forward rates provided by an independent pricing service or by certain independent dealers in such contracts. |
(1) | Fixed-income securities, convertible securities, interest rate swaps, credit default swaps, total return swaps, currency swaps, currency-linked notes, credit-linked notes and other similar instruments will be fair valued using a pricing service. |
(2) | Fixed-income and other debt securities having a remaining maturity of 60 days or less when purchased are fair valued at cost adjusted for amortization of premiums and accretion of discounts (amortized cost), provided the Advisor’s Pricing Committee has determined that the use of amortized cost is an appropriate reflection of fair value given market and issuer specific conditions existing at the time of the determination. Factors that may be considered in determining the appropriateness of the use of amortized cost include, but are not limited to, the following: |
(i) | the credit conditions in the relevant market and changes thereto; |
(ii) | the liquidity conditions in the relevant market and changes thereto; |
(iii) | the interest rate conditions in the relevant market and changes thereto (such as significant changes in interest rates); |
(iv) | issuer-specific conditions (such as significant credit deterioration); and |
(v) | any other market-based data the Advisor’s Pricing Committee considers relevant. In this regard, the Advisor’s Pricing Committee may use last-obtained market-based data to assist it when valuing portfolio securities using amortized cost. |
(3) | Repurchase agreements will be valued as follows. Overnight repurchase agreements will be fair valued at cost when it represents the best estimate of fair value. Term repurchase agreements (i.e., those whose maturity exceeds seven days) will be fair valued by the Advisor’s Pricing Committee at the average of the bid quotations obtained daily from at least two recognized dealers. |
• | the name of the issuer; |
• | the exchange ticker symbol, if available; |
• | the CUSIP number, if available; |
• | the shareholder meeting date; |
• | a brief identification of the matter voted on; |
• | whether the matter was proposed by the issuer or a security holder; |
• | whether the Firm cast its vote on the matter; |
• | how the Firm cast its vote on the matter (for, against, abstain, or withhold regarding the election of directors); and |
• | whether the Firm cast its vote for or against management. |
First Trust Exchange-Traded Fund VIII
Part C – Other Information
Item 28. | Exhibits |
Exhibit No. Description
(a) | (1) Declaration of Trust of the Registrant. (1) |
(2) Amended and Restated Establishment and Designation of Series, dated September 9, 2019. (4)
(b) | By-Laws of the Registrant. (1) |
(c) | Not applicable |
(d) | (1) Investment Management Agreement, dated December 18, 2018. (3) |
(2) Amended Schedule A to Investment Management Agreement between Registrant and First Trust Advisors L.P. (4)
(3) Investment Sub-Adviosory Agreement. (4)
(e) | (1) Distribution Agreement. (2) |
(2) Exhibit A to Distribution Agreement by and between the Registrant and First Trust Portfolios L.P. (4)
(f) | Not Applicable. |
(g) | (1) Custody Agreement between the Registrant and The Bank of New York Mellon Corporation. (2) |
(2) Schedule I to Custody Agreement between the Registrant and The Bank of New York Mellon Corporation.(4)
(h) | (1) Administration and Accounting Agreement between the Registrant and The Bank of New York Mellon Corporation. (2) |
(2) Amendment to Exhibit A of the Administration and Accounting Agreement. (4)
(3) Transfer Agency and Service Agreement between the Registrant and The Bank of New York Mellon Corporation. (2)
(4) Amendment to Exhibit A of the Transfer Agency Agreement. (4)
(5) Form of Subscription Agreement. (2)
(6) Form of Participant Agreement. (2)
(i) | (1) Opinion and Consent of Morgan, Lewis & Bockius LLP. (4) |
(2) Opinion and Consent of Chapman and Cutler LLP. (4)
(j) | Not Applicable. |
(k) | Not Applicable. |
(l) | Not Applicable. |
(m) | (1) 12b-1 Service Plan. (2) |
(2) Exhibit A to 12b-1 Service Plan. (4)
(n) | Not Applicable. |
(o) | Not Applicable. |
(p) | (1) First Trust Advisors L.P., First Trust Portfolios L.P. Code of Ethics, amended on July 1, 2013. (1) |
(2) First Trust Funds Code of Ethics, amended on October 30, 2013. (1)
(q) | Powers of Attorney for Messrs. Bowen, Erickson, Kadlec, Keith and Nielson authorizing James A. Bowen, W. Scott Jardine, James M. Dykas, Kristi A. Maher and Eric F. Fess to execute the Registration Statement. (1) |
__________________
(1) | Incorporated by reference to the Registrant’s Registration Statement on Form N-1A (File No. 333-210186) filed on March 14, 2016. |
(2) | Incorporated by reference to the Registrant’s Registration Statement on Form N-1A (File No. 333-210186) filed on September 26, 2016. |
(3) | Incorporated by reference to the Registrant’s Registration Statement on Form N-1A (File No. 333-210186) filed on December 19, 2018. |
(4) | Filed herewith. |
Item 29. | Persons Controlled By or Under Common Control with Registrant |
Not Applicable.
Item 30. | Indemnification |
Section 9.5 of the Registrant’s Declaration of Trust provides as follows:
Section 9.5. Indemnification and Advancement of Expenses. Subject to the exceptions and limitations contained in this Section 9.5, every person who is, or has been, a Trustee, officer, or employee of the Trust, including persons who serve at the request of the Trust as directors, trustees, officers, employees or agents of another organization in which the Trust has an interest as a shareholder, creditor or otherwise (hereinafter referred to as a "Covered Person"), shall be indemnified by the Trust to the fullest extent permitted by law against liability and against all expenses reasonably incurred or paid by him or in connection with any claim, action, suit or proceeding in which he becomes involved as a party or otherwise by virtue of his being or having been such a Trustee, director, officer, employee or agent and against amounts paid or incurred by him in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person to the extent such indemnification is prohibited by applicable federal law.
The rights of indemnification herein provided may be insured against by policies maintained by the Trust, shall be severable, shall not affect any other rights to which any Covered Person may now or hereafter be entitled, shall continue as to a person who has ceased to be such a Covered Person and shall inure to the benefit of the heirs, executors and administrators of such a person.
Subject to applicable federal law, expenses of preparation and presentation of a defense to any claim, action, suit or proceeding subject to a claim for indemnification under this Section 9.5 shall be advanced by the Trust prior to final disposition thereof upon receipt of an undertaking by or on behalf of the recipient to repay such amount if it is ultimately determined that he is not entitled to indemnification under this Section 9.5.
To the extent that any determination is required to be made as to whether a Covered Person engaged in conduct for which indemnification is not provided as described herein, or as to whether there is reason to believe that a Covered Person ultimately will be found entitled to indemnification, the Person or Persons making the determination shall afford the Covered Person a rebuttable presumption that the Covered Person has not engaged in such conduct and that there is reason to believe that the Covered Person ultimately will be found entitled to indemnification.
As used in this Section 9.5, the words "claim," "action," "suit" or "proceeding" shall apply to all claims, demands, actions, suits, investigations, regulatory inquiries, proceedings or any other occurrence of a similar nature, whether actual or threatened and whether civil, criminal, administrative or other, including appeals, and the words "liability" and "expenses" shall include without limitation, attorneys' fees, costs, judgments, amounts paid in settlement, fines, penalties and other liabilities.
Item 31. | Business and Other Connections of the Investment Adviser |
First Trust Advisors L.P. (“First Trust”), investment adviser to the Registrant, serves as adviser or sub-adviser to various other open-end and closed-end management investment companies and is the portfolio supervisor of certain unit investment trusts. The principal business of certain of First Trust’s principal executive officers involves various activities in connection with the family of unit investment trusts sponsored by First Trust Portfolios L.P. (“FTP”). The principal address for all these investment companies, First Trust, FTP and the persons below is 120 East Liberty Drive, Suite 400, Wheaton, Illinois 60187.
A description of any business, profession, vocation or employment of a substantial nature in which the officers of First Trust who serve as officers or trustees of the Registrant have engaged during the last two years for his or her account or in the capacity of director, officer, employee, partner or trustee appears under “Management of the Fund” in the Statement of Additional Information. Such information for the remaining senior officers of First Trust appears below:
Name and Position with First Trust | Employment During Past Two Years |
Andrew S. Roggensack, President | Managing Director and President, First Trust |
R. Scott Hall, Managing Director | Managing Director, First Trust |
Ronald D. McAlister, Managing Director | Managing Director, First Trust |
David G. McGarel, Chief Investment Officer, Chief Operating Officer and Managing Director | Managing Director; Senior Vice President, First Trust |
Kathleen Brown, Chief Compliance Officer and Senior Vice President | Chief Compliance Officer and Senior Vice President, First Trust |
Brian Wesbury, Chief Economist and Senior Vice President | Chief Economist and Senior Vice President, First Trust |
Item 32. | Principal Underwriter |
(a) FTP serves as principal underwriter of the shares of the Registrant, First Trust Exchange-Traded Fund, First Trust Exchange-Traded Fund II, First Trust Exchange-Traded Fund III, First Trust Exchange-Traded Fund IV, First Trust Exchange-Traded Fund V, First Trust Exchange Traded Fund VI, First Trust Exchange-Traded Fund VII, First Trust Exchange-Traded AlphaDEX® Fund, First Trust Exchange-Traded AlphaDEX® Fund II, First Trust Variable Insurance Trust and First Trust Series Fund. FTP serves as principal underwriter and depositor of the following investment companies registered as unit investment trusts: the First Trust Combined Series, FT Series (formerly known as the First Trust Special Situations Trust), the First Trust Insured Corporate Trust, the First Trust of Insured Municipal Bonds and the First Trust GNMA.
(b)
(c) Not Applicable.
Item 33. | Location of Accounts and Records |
First Trust, 120 East Liberty Drive, Wheaton, Illinois 60187, maintains the Registrant’s organizational documents, minutes of meetings, contracts of the Registrant and all advisory material of the investment adviser.
Item 34. | Management Services |
Not Applicable.
Item 35. | Undertakings |
Not Applicable.
Signatures
Pursuant to the requirements of the Securities Act of 1933 and the Investment Company Act of 1940, the Registrant certifies that it meets all of the requirements for effectiveness of this Registration Statement under Rule 485(b) under the Securities Act of 1933 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, duly authorized in the City of Wheaton, and State of Illinois, on the 5th day of November, 2019.
First Trust Exchange-Traded Fund VIII | ||
By: | /s/ James M. Dykas | |
James M. Dykas, President and
Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated:
Signature | Title | Date | |
/s/ James M. Dykas |
President and Chief Executive
Officer |
November 5, 2019 | |
James M. Dykas | |||
/s/ Donald P. Swade |
Treasurer, Chief Financial Officer
and Chief Accounting Officer |
November 5, 2019 | |
Donald P. Swade | |||
James A. Bowen* |
)
Trustee ) |
||
) | |||
Richard E. Erickson* |
)
Trustee ) |
||
) | |||
Thomas R. Kadlec* |
)
Trustee ) |
||
) | By: | /s/ W. Scott Jardine | |
Robert F. Keith* |
)
Trustee ) |
W. Scott Jardine
Attorney-In-Fact |
|
) | November 5, 2019 | ||
Niel B. Nielson * |
)
Trustee ) |
||
) |
* |
Original powers of attorney authorizing James A. Bowen, W. Scott Jardine, James M. Dykas, Eric F. Fess and Kristi A. Maher to execute Registrant's Registration Statement, and Amendments thereto, for each of the trustees of the Registrant on whose behalf this Registration Statement is filed, were previously executed, filed as an exhibit and are incorporated by reference herein.. |
Index to Exhibits
(a) | (2) Amended and Restated Establishment and Designation of Series, dated September 9, 2019. |
(d) | (2) Amended Schedule A to Investment Management Agreement between Registrant and First Trust Advisors L.P. |
(d)(3) Investment Sub-Adviosory Agreement.
(e) | (2) Exhibit A to Distribution Agreement by and between the Registrant and First Trust Portfolios L.P. |
(g) | (2) Schedule I to Custody Agreement between the Registrant and The Bank of New York Mellon Corporation. |
(h) | (2) Amendment to Exhibit A of the Administration and Accounting Agreement. |
(h)(4) Amendment to Exhibit A of the Transfer Agency Agreement.
(i) | (1) Opinion and Consent of Morgan, Lewis & Bockius LLP. |
(i)(2) Opinion and Consent of Chapman and Cutler LLP.
(m) | (2) Exhibit A to 12b-1 Service Plan. |
FIRST TRUST EXCHANGE-TRADED FUND VIII
AMENDED AND RESTATED ESTABLISHMENT AND DESIGNATION OF SERIES OF
SHARES OF BENEFICIAL INTEREST
(EFFECTIVE AS OF SEPTEMBER 9, 2019)
WHEREAS, pursuant to Section 4.9 of the Amended and Restated Declaration of Trust dated June 12, 2017 as the same may be amended from time to time (the "Declaration"), of First Trust Exchange-Traded Fund VIII, a Massachusetts business trust (the "Trust"), the Board of Trustees of the Trust divided the Shares of the Trust into five series of shares of beneficial interests in the Trust (each, a "Series"): First Trust Strategic Mortgage REIT ETF, First Trust Long/Short Currency Strategy ETF, First Trust Equity Market Neutral ETF, First Trust CEF Income Opportunity ETF and First Trust Municipal CEF Income Opportunity ETF (the "Initial Series") as set forth on Appendix A to the Declaration;
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on October 25, 2016, designated two additional Series to be named EquityCompass Equity Risk Manager ETF and EquityCompass Tactical Equity Risk Manager ETF and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the designations;
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on December 12, 2016, terminated First Trust Equity Market Neutral ETF as a series of the Trust, designated one additional Series of the Trust to be named First Trust TCW Opportunistic Fixed Income ETF, and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the termination and the designation;
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on January 17, 2017, renamed the two Series EquityCompass Equity Risk Manager ETF and EquityCompass Tactical Equity Risk Manager ETF as EquityCompass Risk Manager ETF and EquityCompass Tactical Risk Manager ETF and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the name changes;
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on September 11, 2017, terminated First Trust Strategic Mortgage REIT ETF and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the termination;
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on March 5, 2018, designated an additional Series to be named First Trust TCW Unconstrained Plus Bond ETF and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the designation;
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on April 23, 2018, designated one additional Series to be named First Trust Pax U.S. Equity ESG Leaders ETF and authorized the amendment and restatement of the Establishment and Designation of Series of
Shares of Beneficial Interest in order to incorporate the designation; and
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on June 11, 2018, designated two additional Series to be named First Trust Brookmont Dividend Equity ETF and First Trust Limited Duration Strategic Focus ETF, and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the designation; and
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on December 9 & 10, 2018, terminated First Trust Brookmont Dividend Equity ETF and First Trust Long/Short Currency Strategy ETF, and renamed First Trust Limited Duration Strategic Focus ETF as First Trust Low Duration Strategic Focus ETF, and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the terminations and the name change;
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on January 17, 2019, designated two additional Series to be named First Trust Buffer April ETF, and First Trust Ultra Buffer April ETF, and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the designation;
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on June 2, 2019, designated three additional Series to be named First Trust Active Factor Small Cap ETF, First Trust Active Factor Mid Cap ETF, and First Trust Active Factor Large Cap ETF, and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the designation; and
WHEREAS, pursuant to Section 4.9 of the Declaration, the Board of Trustees of the Trust, at a meeting held on September 9, 2019, changed the name of First Trust Buffer April ETF to FT Cboe Vest US Equity Buffer ETF-August; changed the name of First Trust Ultra Buffer April ETF to FT Cboe Vest US Equity Deep Buffer ETF-August; designated two additional Series to be named FT Cboe Vest US Equity Buffer ETF-November and FT Cboe Vest US Equity Deep Buffer ETF-November; and authorized the amendment and restatement of the Establishment and Designation of Series of Shares of Beneficial Interest in order to incorporate the designation.
NOW THEREFORE, the undersigned does hereby certify that the following Series of the Trust have been established and designated by the Trustees of the Trust, with such relative rights, preferences, privileges, limitations, restrictions and other relative terms as are set forth below:
1. First Trust CEF Income Opportunity ETF
2. First Trust Municipal CEF Income Opportunity ETF
3. EquityCompass Risk Manager ETF
4. EquityCompass Tactical Risk Manager ETF
5. First Trust TCW Opportunistic Fixed Income ETF
6. First Trust TCW Unconstrained Plus Bond ETF
7. First Trust Pax U.S. Equity ESG Leaders ETF
8. First Trust Low Duration Strategic Focus ETF
9. FT Cboe Vest US Equity Buffer ETF-August
10. FT Cboe Vest US Equity Deep Buffer ETF-August
11. First Trust Active Factor Small Cap ETF
12. First Trust Active Factor Mid Cap ETF
13. First Trust Active Factor Large Cap ETF
14. FT Cboe Vest US Equity Buffer ETF-November
15. FT Cboe Vest US Equity Deep Buffer ETF-November
1. Each Share of each Series is entitled to all the rights and preferences accorded to Shares under the Declaration.
2. The number of authorized Shares of each Series is unlimited.
3. Each Series shall be authorized to hold cash, invest in securities, instruments and other property, use investment techniques, and have such goals or objectives as from time to time described in the prospectus and statement of additional information contained in the Trust's then currently effective registration statement under the Securities Act of 1933 to the extent pertaining to the offering of Shares of the Series, as the same may be amended and supplemented from time to time ("Prospectus"). Each Share of a Series shall represent a beneficial interest in the net assets allocated or belonging to such Series only, and such interest shall not extend to the assets of the Trust generally (except to the extent that General Assets (as defined in the Declaration) are allocated to such Series), and shall be entitled to receive its pro rata share of the net assets of the Series upon liquidation of the Series, all as set forth in Section 4.9 of the Declaration.
4. With respect to each Series, (a) the purchase price of the Shares, (b) fees and expenses, (c) qualifications for ownership, if any, (d) the method of determination of the net asset value of the Shares, (e) minimum purchase amounts, if any, (f) minimum account size, if any, (g) the price, terms and manner of redemption of the Shares, (h) any conversion or exchange feature or
privilege, (i) the relative dividend rights, and (j) any other relative rights, preferences, privileges, limitations, restrictions and other relative terms have been established by the Trustees in accordance with the Declaration and are set forth in the Prospectus with respect to such Series.
5. The Trustees may from time to time modify any of the relative rights, preferences, privileges, limitations, restrictions and other relative terms of a Series that have been established by the Trustees or redesignate any of the Series without any action or consent of the Shareholders.
6. The designation of any Series hereby shall not impair the power of the Trustees from time to time to designate additional Series of Shares of the Trust.
7. Capitalized terms not defined herein have the meanings given to such terms in the Declaration.
IN WITNESS WHEREOF, the undersigned, being the Assistant Secretary of the Trust, has executed this instrument as of September 9, 2019.
/s/ Erin Klassman ---------------------------------------- Erin Klassman, Assistant Secretary |
STATE OF ILLINOIS ) ) SS. COUNTY OF DUPAGE ) |
Then personally appeared the above-named person(s) who are known to me to be the Assistant Secretary of the Trust whose name and signature are affixed to the foregoing Amended and Restated Establishment and Designation of Series of Shares of Beneficial Interest and who acknowledged the same to be his free act and deed, before me this September 9, 2019.
/s/ Sandra Kim Streit ---------------------------------- Notary Public My Commission Expires: 5/28/2021 |
SCHEDULE A
(as of November 1, 2019)
FUNDS
Series NET ASSETS EFFECTIVE DATE -------------------------------------------------------------------------------- First Trust Low Duration Strategic Focus ETF 0.20% 12/19/2018 -------------------------------------------------------------------------------- First Trust Cboe Vest U.S. Equity Buffer ETF - August 0.85% 11/1/2019 -------------------------------------------------------------------------------- First Trust Cboe Vest U.S. Equity Deep Buffer ETF - August 0.85% 11/1/2019 -------------------------------------------------------------------------------- First Trust Cboe Vest U.S. Equity Buffer ETF - November 0.85% 11/1/2019 -------------------------------------------------------------------------------- First Trust Cboe Vest U.S. Equity Deep Buffer ETF - November 0.85% 11/1/2019 -------------------------------------------------------------------------------- |
INVESTMENT SUB-ADVISORY AGREEMENT
This INVESTMENT SUB-ADVISORY AGREEMENT (this "Agreement"), dated November 1, 2019 is by and among First Trust Exchange-Traded Fund VIII, a Massachusetts business trust (the "Trust"), First Trust Advisors L.P., an Illinois limited partnership (the "Manager") and a registered investment adviser with the Securities and Exchange Commission (the "SEC"), and Cboe Vest Financial LLC, a Delaware limited liability company and a registered investment adviser with the SEC (the "Sub-Adviser").
WHEREAS, the Trust is an open-end management investment company registered under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust intends to offer shares in the series set forth on Schedule A attached hereto and any other series as to which this Agreement may hereafter be made applicable and set forth on Schedule A, which may be amended from time to time (each such series being herein referred to as a "Fund" and collectively, the "Funds");
WHEREAS, the Trust has retained the Manager to serve as the investment adviser for the Funds pursuant to an Investment Management Agreement between the Manager and the Trust dated December 18, 2018 and effective on behalf of the respective Fund on November 1, 2019 (as such agreement may be modified from time to time, the "Management Agreement");
WHEREAS, the Management Agreement provides that the Manager may, subject to certain requirements, appoint a sub-adviser at its own cost and expense for the purpose of furnishing certain services required under the Management Agreement for the respective Fund;
WHEREAS, pursuant to the Management Agreement, a Fund will pay to the Manager, at the end of each calendar month, and the Manager agrees to accept as full compensation therefor, an investment management fee equal to an annual rate of such Fund's average daily net assets as set forth in the Management Agreement with respect to such Fund (the "Investment Management Fee"), and the Manager will pay all of the expenses of such Fund (including the cost of transfer agency, custody, fund administration, legal, audit and other services and license fees, if any) but excluding the fee payment under the Management Agreement, interest, taxes, brokerage commissions and other expenses connected with the execution of portfolio transactions, such as dividend and distribution expenses from securities sold short and/or other investment related costs, distribution and service fees payable pursuant to a Rule 12b-1 Plan, if any, and extraordinary expenses (collectively, the "Fund Expenses"); and
WHEREAS, the Trust and the Manager desire to retain the Sub-Adviser to furnish investment advisory services for each Fund's investment portfolio upon the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1. Appointment. The Trust and the Manager hereby appoint the Sub-Adviser to serve as Sub-Adviser and to provide certain investment sub-advisory services to each Fund for the period and on the terms set forth in this Agreement and Schedule A. The Sub-Adviser accepts such appointment and agrees to furnish the services herein set forth for the compensation set forth on Schedule A. The Sub-Adviser shall, for all purposes herein provided, be deemed an independent contractor and, unless otherwise expressly provided or authorized, shall have no authority to act for nor represent the Trust, any Fund or the Manager in any way, nor otherwise be deemed an agent of the Trust, any Fund or the Manager.
2. Services to Be Performed. Subject always to the supervision of the Trust's Board of Trustees (the "Board of Trustees" or the "Board") and the Manager, the Sub-Adviser will act as sub-adviser for, and manage on a discretionary basis the investment and reinvestment of the assets of each Fund allocated to the Sub-Adviser from time to time, furnish an investment program in respect of, make investment decisions for, and place all orders for the purchase and sale of securities and other assets for each Fund's investment portfolio, all on behalf of such Fund and also as described in the Fund's most current effective registration statement on Form N-1A, or any successor form thereto, and as the same may thereafter be amended from time to time. The Sub-Adviser will be responsible for the investment of only the assets which the Manager allocates to the Sub-Adviser for management under this Agreement, plus all investments, reinvestments and proceeds of the sale thereof, including, without limitation, all interest, dividends and appreciation on investments, less depreciation thereof and withdrawals by the Manager therefrom, there being no minimum or maximum percentage of the Fund's assets to be allocated to the Sub-Adviser from time to time hereunder. In the performance of its duties, the Sub-Adviser will (a) satisfy any applicable fiduciary duties it may have to each Fund, (b) monitor each Fund's investments or other instruments, (c) comply with the provisions of the Trust's Declaration of Trust and By-laws, as amended from time to time and communicated by a Fund or the Manager to the Sub-Adviser, (d) comply with (i) the respective investment objective(s), policies and restrictions stated in the applicable Fund's most recently effective prospectus and statement of additional information, (ii) such other investment objectives, policies, restrictions or instructions as the Manager or the Trust's Board of Trustees may communicate to the Sub-Adviser in writing, and (iii) any changes to the objectives, policies, restrictions or instructions required under the foregoing (i) and (ii) as communicated to the Sub-Adviser in writing and (e) assist in the valuation of portfolio assets held by each Fund as requested by the Manager or the respective Fund. The Sub-Adviser and the Manager will each make its officers and employees available to the other from time to time at reasonable times to review the investment objectives, policies and restrictions of the Funds and to consult with each other regarding the investment affairs of the Funds. Each Fund or the Manager will provide the Sub-Adviser with current copies of the Trust's Declaration of Trust, the Trust's By-laws, and any Fund objectives, policies or limitations not appearing in such Fund's prospectus or statement of additional information as they may be relevant to the Sub-Adviser's performance under this Agreement. Each Fund's prospectus, each Fund's statement of additional information and any amendments thereto are made available on such Fund's public website.
Unless otherwise advised by the Manager or the Trust's Board of Trustees, the Sub-Adviser is responsible for voting in respect of securities held in a Fund's portfolio and will exercise or not exercise a right to vote in accordance with the Sub-Adviser's proxy voting policy, a copy of which has been provided to the Manager. The Sub-Adviser shall promptly notify the Manager and the Funds of any material change in the voting policy. The Sub-Adviser is permitted to represent any holdings on behalf of a Fund at any ordinary or special meeting of shareholders and has the right to exercise any voting rights or any other similar or connected rights.
The Sub-Adviser is authorized to select, in consultation with the Manager, and enter into agreements with, the brokers, dealers, futures commission merchants, banks or any other agent or counterparty that will execute the purchases and sales of portfolio investments for the Funds, and is directed to use its commercially reasonable efforts to obtain best execution, which includes most favorable net results and execution of each Fund's orders, taking into account all appropriate factors, including among other things, price, dealer spread or commission, size and difficulty of the transaction and research or other services provided. Subject to approval by the Board of Trustees and compliance with the policies and procedures adopted by the Board of Trustees for the respective Fund and to the extent permitted by and in conformance with applicable law (including, Rule 17e-1 under the 1940 Act), the Sub-Adviser may select brokers or dealers affiliated with the Sub-Adviser. It is understood that the Sub-Adviser will not be deemed to have acted unlawfully, or to have breached a fiduciary duty to the Trust or the Funds, or be in breach of any obligation owing to the Trust or the Funds under this Agreement, or otherwise, solely by reason of its having caused a 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 Sub-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 Sub-Adviser's overall responsibilities with respect to its accounts, including the Fund, as to which it exercises investment discretion.
In addition, the Sub-Adviser may, to the extent permitted by applicable law, aggregate purchase and sale orders of securities or other instruments placed with respect to the assets of a Fund with similar orders being made simultaneously for other accounts managed by the Sub-Adviser or its affiliates, if in the Sub-Adviser's reasonable judgment such aggregation shall result in an overall economic benefit to such 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 Sub-Adviser and any of its affiliates involved in such transaction shall be to allocate the assets so purchased or sold, as well as expenses incurred in the transaction, among such Fund and other accounts in a fair and equitable manner. Nevertheless, the Funds and the Manager acknowledge that under some circumstances, such allocation may adversely affect a Fund with respect to, among other things, the price or size of the assets obtainable or salable. Whenever a Fund and one or more other investment advisory clients of the Sub-Adviser have available funds for investment, investments suitable and appropriate for each will be allocated in a manner believed by the Sub-Adviser to be equitable to each, although such allocation may result in a delay in one or more client accounts being, or the inability of one or more accounts to be, 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 Sub-Adviser and its affiliates may purchase securities or other instruments of an issuer for one client and at approximately the same time recommend selling or sell the same or similar types of securities, assets or instruments for another client.
The Sub-Adviser will not arrange purchases or sales of securities or other assets between any Fund and other accounts advised by the Sub-Adviser or its affiliates unless (a) such purchases or sales are in accordance with applicable law (including if applicable Rule 17a-7 under the 1940 Act) and the Fund's policies and procedures, (b) the Sub-Adviser determines the purchase or sale is in the best interests of the Fund, and (c) the Board of Trustees has approved these types of transactions.
A Fund may adopt policies and procedures that modify or restrict the Sub-Adviser's authority regarding the execution of such Fund's portfolio transactions provided herein. The Manager agrees to notify the Sub-Adviser promptly of any such changes to policies and procedures in writing.
For purposes of complying with Rule 10f-3, Rule 12d3-1, Rule 17a-10 and Rule 17e-1 under the 1940
Act, the Sub-Adviser hereby agrees that it will not consult with any other sub-adviser of an investment company or a series of an investment company that is advised by the Manager (the "First Trust Fund Complex") or an affiliated person of a sub-adviser (including any sub-adviser that is a principal underwriter or an affiliated person of such principal underwriter), concerning transactions for the Fund or any fund in the First Trust Fund Complex in securities or other fund assets. In addition, with respect to a fund in the First Trust Fund Complex with multiple sub-advisers, the Sub-Adviser shall be limited to providing investment advice with respect to only the discrete portion of a fund's portfolio as may be determined from time-to-time by the Board of Trustees or the Manager, and shall not consult with the sub-adviser (including any sub-adviser that is a principal underwriter or an affiliated person of such principal underwriter) as to any other portion of a fund's portfolio concerning transactions for a fund in securities or other assets. Notwithstanding the foregoing, the provisions in this paragraph do not apply to the consultations between the Sub-Adviser and any sub-adviser retained by the Sub-Adviser pursuant to Section 4 hereof.
The Sub-Adviser will communicate to the officers and Trustees of the Trust such information relating to transactions for the Fund, as they may reasonably request. In no instance will any Fund's portfolio assets be purchased from or sold to the Manager, the Sub-Adviser or any affiliated person of either the Trust, the Manager, or the Sub-Adviser, except as may be permitted under the 1940 Act, and under no circumstances will the Sub-Adviser select brokers or dealers for Fund transactions on the basis of Fund share sales by such brokers or dealers.
The Sub-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 other fiduciary accounts for which it has investment responsibilities;
(b) will (i) conform in all material respects to all applicable rules and regulations of the SEC, the Commodity Futures Trading Commission and any other applicable regulatory authority, (ii) comply in all material respects with all policies and procedures adopted by the Board of Trustees for the Funds and communicated to the Sub-Adviser in writing, and (iii) conduct its activities under this Agreement in all material respects in accordance with any applicable law and regulations of any governmental authority pertaining to its investment advisory activities and commodity trading advisory activities;
(c) will report to the Manager and to the Board of Trustees on a quarterly basis and will make appropriate persons available for the purpose of reviewing with representatives of the Manager and the Board of Trustees on a regular basis at such times as the Manager or the Board of Trustees may reasonably request in writing regarding the management of the Funds, including, without limitation, review of the general investment strategies of the Funds, the performance of the Funds' investment portfolios 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 Manager or the Board of Trustees;
(d) will prepare and maintain such books and records with respect to each Fund's assets and other transactions for each Fund's investment portfolio as required for registered investment advisers performing such services under applicable law, the Funds' compliance policies and procedures or as otherwise requested by the Manager or the Board of Trustees and will prepare and furnish the Manager and the Board of Trustees such periodic and special reports as the Board or the Manager may request. Such records shall be open to inspection at all reasonable times by the Manager or the Funds and any appropriate regulatory authorities. The Sub-Adviser further agrees that all records that it maintains for a Fund are the property of the respective Fund and the Sub-Adviser will surrender promptly to such Fund any such records upon the request of the Manager or such Fund (provided, however, that the Sub-Adviser shall be permitted to retain copies thereof); and shall be permitted to retain originals (with copies to the relevant Fund) to the extent required under Rule 204-2 under the Investment Advisers Act of 1940, as amended, or other applicable law,; and
(e) will monitor the pricing of portfolio assets, and events relating to the issuers of those assets and the markets in which the securities or other assets trade in the ordinary course of managing the portfolio investments of the Funds, and will notify the Manager promptly of any issuer-specific or market events or other situations that occur (particularly those that may occur after the close of a foreign market in which the investments may primarily trade but before the time at which the respective Fund's investments are priced on a given day) that may materially impact the pricing of one or more securities or other assets in the Fund's portfolio. In addition, the Sub-Adviser will at the Manager's request assist the Manager in evaluating the impact that such an event may have on the net asset value of the Fund and in determining a recommended fair value of the affected investment or investments.
3. Expenses. During the term of this Agreement, the Sub-Adviser will pay all expenses incurred by it in connection with its activities under this Agreement, other than the cost of securities and other assets (including brokerage commissions, if any, and other expenses connected with the execution of portfolio transactions) purchased for the Funds. Each Fund shall be responsible for payment of brokerage commissions, transfer fees, registration costs, transaction-related taxes and transaction-related expenses and fees arising out of transactions effected on behalf of the Fund. Further, the Sub-Adviser agrees to bear its costs and expenses arising in connection with any actual, proposed, or possible assignment of this Agreement (even if a proposed, expected or possible assignment ultimately does not take place). For the avoidance of doubt, without limiting the immediately preceding sentence, if there is a termination (or possible or anticipated termination) of this Agreement as a result of an assignment (or possible or anticipated assignment), then the Sub-Adviser shall bear, without limitation, (a) the expenses and costs incurred in connection with preparing, printing, filing and mailing an information statement or proxy statement, as applicable and (b) if relevant, solicitation and other costs associated with the use of a proxy statement.
4. Additional Sub-Advisers. Subject to obtaining the initial and periodic approvals required under Section 15 of the 1940 Act (after taking into account any exemptive order, no-action assurances or other relief, rule or regulation upon which the respective Fund may rely) and the approval of the Manager, the Sub-Adviser may retain one or more additional sub-advisers at the Sub-Adviser's own cost and expense for the purpose of furnishing one or more of the services described in Section 2 hereof with respect to a Fund. Retention of a sub-adviser hereunder shall in no way reduce the responsibilities or obligations of the Sub-Adviser under this Agreement and the Sub-Adviser shall be responsible to the Funds for all acts or omissions of any sub-adviser in connection with the performance of the Sub-Adviser's duties hereunder.
5. Compensation. For the services provided and the expenses assumed pursuant to this Agreement, the Manager will pay the Sub-Adviser, and the Sub-Adviser agrees to accept as full compensation therefor, a sub-advisory fee (the "Sub-Advisory Fee") for each respective Fund allocated to the Sub-Adviser equal to the percentage set forth in Schedule A for such Fund, monthly in arrears, of any remaining monthly Investment Management Fee paid to the Manager after the average Fund Expenses during the most recent twelve months (or shorter period during the first eleven months of this Agreement) are subtracted from the Investment Management Fee for that month. If the average accrued Fund Expenses for any rolling average twelve-month period are greater than the Investment Management Fee for the twelfth month of such period, no Sub-Advisory Fee will be due the Sub-Adviser for such month. For the avoidance of doubt, any deficit will not be carried forward for purposes of calculating the Sub-Advisory Fee in any subsequent month. 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 is in effect during the month and year, respectively. At the request of the Sub-Adviser, the Manager shall provide the Sub-Adviser with an accounting reasonably satisfactory to the Sub-Adviser of the calculation of the Sub-Advisory Fee. The Manager shall provide prompt advance notice to the Sub-Adviser of any change to the Manager's compensation agreements with respect to the Fund, which change may require approval by the Board of Trustees.
6. Services to Others. The Trust and the Manager acknowledge that the Sub-Adviser's services under this Agreement are not exclusive. Sub-Adviser now acts, or may in the future act, as an investment adviser to other managed accounts and as investment adviser or investment sub-adviser to one or more other investment companies that are not series of the Trust and may be similar to the Trust. In addition, the Trust and the Manager acknowledge that the directors, officers, stockholders, affiliates or persons employed by the Sub-Adviser to assist in the Sub-Adviser's duties under this Agreement will not devote their full time to such efforts. It is also agreed that the Sub-Adviser may use any supplemental research obtained for the benefit of a Fund in providing investment advice to its other investment advisory accounts and for managing its own accounts.
7. Limitation of Liability. The Sub-Adviser shall not be liable for, and the Trust and the Manager will not take any action against the Sub-Adviser to hold the Sub-Adviser liable for, any error of judgment or mistake of law or for any loss suffered by any Fund or the Manager (including, without limitation, by reason of the purchase, sale or retention of any security or other asset) in connection with the performance of the Sub-Adviser's duties under this Agreement, except for a loss resulting from willful misfeasance, bad faith or gross negligence on the part of the Sub-Adviser in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
8. Term; Termination. This Agreement shall become effective for each Fund on the date set forth in Schedule A for such Fund, provided that it has been approved in the manner required by the 1940 Act (after taking into effect any exemptive order, no-action assurances, or other relief, rule or regulation upon which any Fund may rely), and shall remain in full force until the two-year anniversary of the date of its effectiveness with respect to such Fund unless sooner terminated as hereinafter provided. This Agreement shall continue in force from year to year thereafter, but only as long as such continuance is specifically approved for the respective Fund at least annually in the manner required by the 1940 Act and the rules and regulations thereunder (after taking into effect any exemptive order, no-action assurances, or other relief, rule or regulation upon which any Fund may rely); provided, however, that if the continuation of this Agreement is not approved for a Fund, the Sub-Adviser may continue to serve in such capacity for such Fund in the manner and to the extent permitted by the 1940 Act and the rules and regulations thereunder.
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 the Manager or the Sub-Adviser upon sixty (60) days' written notice to the other parties. This Agreement may also be terminated with respect to a Fund by such Fund by action of the Board of Trustees or by a vote of a majority of the outstanding voting securities of such Fund upon sixty (60) days' written notice to such Sub-Adviser by the Fund without payment of any penalty; for clarity, termination of this Agreement by one Fund will not terminate this Agreement for the other Funds.
This Agreement may be terminated at any time with respect to a Fund without the payment of any penalty by the Manager, the Board of Trustees or by vote of a majority of the outstanding voting securities of the applicable Fund in the event that it shall have been established by a court of competent jurisdiction that the Sub-Adviser or any officer or director of the Sub-Adviser has taken any action that results in a breach of the material covenants of the Sub-Adviser set forth herein.
For clarity, termination of this Agreement with respect to one Fund will not automatically terminate this Agreement for the other Funds. The terms "assignment" and "vote of a majority of the outstanding voting securities" shall have the meanings set forth in the 1940 Act and the rules and regulations thereunder subject to such exemptions as may be granted by the Securities and Exchange Commission under that Act. This Agreement shall automatically terminate for a Fund in the event the Management Agreement between the Manager and the Trust on behalf of such Fund is terminated, assigned or not renewed.
Termination of this Agreement shall not affect the right of the Sub-Adviser to receive payments on any unpaid balance of the compensation described in Section 5 earned or accrued prior to such termination and for any additional period during which the Sub-Adviser serves as such for the respective Fund, subject to applicable law.
9. Compliance Certification. From time to time the Sub-Adviser shall provide such certifications with respect to Rule 38a-1 under the 1940 Act as are reasonably requested by a Fund or the Manager. In addition, the Sub-Adviser will, from time to time, provide a written assessment of its compliance program in conformity with current industry standards that is reasonably acceptable to the respective Fund to enable such Fund to fulfill its obligations under Rule 38a-1 under the 1940 Act.
10. Confidentiality. The Sub-Adviser shall treat as confidential and use
only in connection with the Funds in accordance with this Agreement all
non-public information of the any Fund and the Manager delivered to the
Sub-Adviser in the course of the Sub-Adviser's performances under this
Agreement. The Manager and the Funds shall treat as confidential and use only in
connection with the Funds in accordance with this Agreement all non-public
information of the Sub-Adviser delivered to a Fund or the Manager in the course
of the Sub-Adviser's performances under this Agreement, including for avoidance
of doubt investment decisions, trading strategies, and investment advice for a
Fund provided by or on behalf of the Sub-Adviser or any other sub-advisers
appointed by the Sub-Adviser under Section 4 ("Recommendations"). The
undertakings in the first two sentences of this paragraph shall not (a) limit
disclosures that are required to be made under applicable laws and regulations;
(b) apply to information that becomes public without a breach of this paragraph;
or (c) prohibit disclosures on a confidential basis to lawyers, accountants,
bankers, securities brokers, other sub-advisers appointed by the Sub-Adviser
under Section 4, or other service providers to any of the parties to this
Agreement related to the performances contemplated by this Agreement. The
parties acknowledge that any breach of the undertakings in the first two
sentences of this paragraph might result in immediate, irreparable injury to
another party and that, accordingly, equitable remedies, including ex parte
remedies, are appropriate in the event of any actual, apparent, or threatened
breach of any such undertaking. The undertakings in this paragraph shall apply
to derivative works.
The Fund and the Manager shall not use, or permit any of their affiliates to use, any Recommendations for any purpose other than the management of the Funds.
11. Use of Name and Trademarks. The Sub-Adviser permits the Manager and the Trust at no cost to use (a) the name "Cboe Vest" in the names of the Funds; and (b) the registered trademarks "TARGET OUTCOME INVESTMENTS", "TARGET OUTCOME FUNDS", and "TARGET OUTCOME ETF" in connection with the Funds, for the duration of this Agreement and any extensions or renewals thereof. Such permission will, upon termination of this Agreement, be automatically and without further action by the Sub-Adviser terminated, in which event the Funds shall promptly take whatever action may be necessary (including calling a meeting of the Board of Trustees) to change its name and to discontinue any further use of the name "Cboe Vest" in the names of the Funds or otherwise and to discontinue any further use of the registered trademarks listed in clause (b) above.
12. Notice. Any notice under this Agreement shall be sufficient in all respects if given in writing and delivered by commercial courier providing proof of delivery and addressed as follows or addressed to such other person or address as such party may designate for receipt of such notice.
If to the Manager or a Fund: If to the Sub-Adviser: First Trust Exchange-Traded Fund VIII, Cboe Vest Financial LLC on behalf of the ______________ ETF 1765 Greensboro Station Pl First Trust Advisors L.P. McLean VA 22101 120 East Liberty Drive, Suite 400 Attention: Jeffery Chang Wheaton, Illinois 60187 Attention: Secretary |
13. Limitations on Liability. All parties hereto are expressly put on notice of the Trust's 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 and a copy of which has been provided to the Sub-Adviser prior to the date hereof. This Agreement is executed by the Trust on behalf of each Fund by the Trust's officers in their capacity as officers and not individually and is not binding upon any of the Trustees, officers or shareholders of the Trust individually but the obligations imposed upon the Trust or a Fund by this Agreement are binding only upon the assets and property of the respective Fund, and persons dealing with the Trust or a Fund must look solely to the assets of such Fund for the enforcement of any claims.
14. Miscellaneous. The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect. This Agreement will be binding upon and shall inure to the benefit of the parties hereto and their respective successors.
15. Applicable Law. This Agreement shall be construed in accordance with applicable federal law and (except as to Section 13 hereof, which shall be construed in accordance with the laws of the Commonwealth of Massachusetts) the laws of the State of Illinois. For the avoidance of doubt, where the effect of a requirement of the 1940 Act reflected in any provision of this Agreement is relaxed by a rule, regulation, no action assurance, order (including amendment thereto) or other relief of the SEC, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, regulation, no-action assurance, order (including any amendment thereto) or other relief.
16. Amendment; Etc. This Agreement may only be amended, or its provisions modified or waived, in a writing signed by the party against which such amendment, modification or waiver is sought to be enforced.
17. Authority. Each party represents to the others that it is duly authorized and fully empowered to execute, deliver and perform this Agreement. The Trust represents that engagement of the Sub-Adviser has been duly authorized by the Trust and is in accordance with the Trust's Declaration of Trust and other governing documents of the Fund.
18. Third Party Beneficiaries. None of the provisions of this Agreement shall be for the benefit of, or enforceable by, any person or entity that is not a party hereto.
19. Forum Selection. Any action brought on or with respect to this Agreement or any other document executed in connection herewith or therewith by a party to this Agreement against another party to this Agreement shall be brought only in a court of competent jurisdiction in Chicago, Cook County, Illinois, or if venue does not lie in any such court only in a court of competent jurisdiction within the State of Illinois (the "Chosen Courts"). Each party to this Agreement (a) consents to jurisdiction in the Chosen Courts; (b) waives any objection to venue in any of the Chosen Courts; and (c) waives any objection that any of the Chosen Courts is an inconvenient forum. In any action commenced by a party hereto against another party to the Agreement, there shall be no right to a jury trial. THE RIGHT TO A TRIAL BY JURY IS EXPRESSLY WAIVED TO THE FULLEST EXTENT PERMITTED BY LAW.
20. Severability. Each provision of this Agreement is intended to be severable from the others so that if any provision or term hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remaining provisions and terms hereof; provided, however, that the provisions governing payment of the Sub-Advisory Fee described in Section 5 are not severable.
21. Entire Agreement; Counterparts. This Agreement constitutes the sole and entire agreement of the parties hereto with respect to the subject matter expressly set forth herein. This Agreement may be signed in any number of counterparts, each of which shall be an original with the same effect as if the signatures were upon the same instrument.
IN WITNESS WHEREOF, the Trust on behalf of the Fund, the Manager and the Sub-Adviser have caused this Agreement to be executed as of the day and year first above written.
FIRST TRUST ADVISORS L.P. FIRST TRUST EXCHANGE-TRADED FUND VIII, on behalf of the series listed on Schedule A By /s/ James M. Dykas By /s/ Donald P. Swade -------------------------------- ----------------------------- Title: Chief Financial Officer Title: Treasurer CBOE VEST FINANCIAL LLC By /s/ Karan Sood -------------------------------- Title: Chief Executive Officer |
SCHEDULE A
AS OF NOVEMBER 1, 2019
FUNDS
(AFTER FUND FUNDS EXPENSES) EFFECTIVE DATE -------------------------------------------------------------------------------- FT CBOE VEST U.S. EQUITY BUFFER ETF - AUGUST 50% NOVEMBER 1, 2019 -------------------------------------------------------------------------------- FT CBOE VEST U.S. EQUITY DEEP BUFFER ETF - AUGUST 50% NOVEMBER 1, 2019 -------------------------------------------------------------------------------- FT CBOE VEST U.S. EQUITY BUFFER ETF - NOVEMBER 50% NOVEMBER 1, 2019 -------------------------------------------------------------------------------- FT CBOE VEST U.S. EQUITY DEEP BUFFER ETF - NOVEMBER 50% NOVEMBER 1, 2019 -------------------------------------------------------------------------------- |
EXHIBIT A (AS OF NOVEMBER 1, 2019) SERIES OF THE TRUST ----------------------------------------------------------- ------------------- INDEX SERIES EFFECTIVE DATE ----------------------------------------------------------- ------------------- First Trust CEF Income Opportunity ETF September 28, 2016 ----------------------------------------------------------- ------------------- First Trust Municipal CEF Income Opportunity ETF September 28, 2016 ----------------------------------------------------------- ------------------- First Trust TCW Opportunistic Fixed Income ETF February 13, 2017 ----------------------------------------------------------- ------------------- EquityCompass Risk Manager ETF January 19, 2017 ----------------------------------------------------------- ------------------- EquityCompass Tactical Risk Manager ETF January 19, 2017 ----------------------------------------------------------- ------------------- First Trust TCW Unconstrained Plus Bond ETF May 29, 2018 ----------------------------------------------------------- ------------------- First Trust Low Duration Strategic Focus ETF December 18, 2018 ----------------------------------------------------------- ------------------- FT Cboe Vest U.S. Equity Buffer ETF - August November 1, 2019 ----------------------------------------------------------- ------------------- FT Cboe Vest U.S. Equity Deep Buffer ETF - August November 1, 2019 ----------------------------------------------------------- ------------------- FT Cboe Vest U.S. Equity Buffer ETF - November November 1, 2019 ----------------------------------------------------------- ------------------- FT Cboe Vest U.S. Equity Deep Buffer ETF - November November 1, 2019 ----------------------------------------------------------- ------------------- |
SCHEDULE I
Funds of the Trust
First Trust CEF Income Opportunity ETF
First Trust Municipal CEF Income Opportunity ETF
First Trust TCW Opportunistic Fixed Income ETF
EquityCompass Risk Manager ETF
EquityCompass Tactical Risk Manager ETF
First Trust TCW Unconstrained Plus Bond ETF
First Trust Low Duration Strategic Focus ETF
FT Cboe Vest U.S. Equity Buffer ETF - August
FT Cboe Vest U.S. Equity Deep Buffer ETF - August
FT Cboe Vest U.S. Equity Buffer ETF - November
FT Cboe Vest U.S. Equity Deep Buffer ETF - November
EXHIBIT A
First Trust CEF Income Opportunity ETF
First Trust Municipal CEF Income Opportunity ETF
First Trust TCW Opportunistic Fixed Income ETF
EquityCompass Risk Manager ETF
EquityCompass Tactical Risk Manager ETF
First Trust TCW Unconstrained Plus Bond ETF
FT Cboe Vest U.S. Equity Buffer ETF - August
FT Cboe Vest U.S. Equity Deep Buffer ETF - August
FT Cboe Vest U.S. Equity Buffer ETF - November
FT Cboe Vest U.S. Equity Deep Buffer ETF - November
EXHIBIT A
Funds of First Trust Exchange-Traded Fund VIII
As of November 1, 2019
First Trust CEF Income Opportunity ETF
First Trust Municipal CEF Income Opportunity ETF
First Trust TCW Opportunistic Fixed Income ETF
EquityCompass Equity Risk Manager ETF
EquityCompass Tactical Equity Risk Manager ETF
First Trust TCW Unconstrained Plus Bond ETF
First Trust Low Duration Strategic Focus ETF
FT Cboe Vest U.S. Equity Buffer ETF - August
FT Cboe Vest U.S. Equity Deep Buffer ETF - August
FT Cboe Vest U.S. Equity Buffer ETF - November
FT Cboe Vest U.S. Equity Deep Buffer ETF - November
November 5, 2019
First Trust Exchange-Traded Fund VIII
120 E. Liberty Street
Wheaton, Illinois 60187
Chapman and Cutler LLP
111 West Monroe Street
Chicago, IL 60603
Ladies and Gentlemen:
We have acted as special Massachusetts counsel to First Trust Exchange-Traded Fund VIII (the "Trust") on behalf of its series FT Cboe Vest U.S. Equity Buffer ETF-August (the "Fund") in connection with the Trust's Post-Effective Amendment to its Registration Statement on Form N-1A to be filed with the Securities and Exchange Commission on or about November 1, 2019 (as so amended, the "Registration Statement") with respect to the Fund's shares of beneficial interest, par value $.01 per share (the "Shares"). You have requested that we deliver this opinion to you in connection with the Trust's filing of such Registration Statement.
In connection with the furnishing of this opinion, we have examined the following documents:
(a) a certificate of the Secretary of the Commonwealth of Massachusetts as to the existence of the Trust;
(b) a copy, as filed with the Secretary of the Commonwealth of Massachusetts on June 16, 2017, of the Trust's Amended and Restated Declaration of Trust dated as of June 12, 2017 (the "Declaration");
(c) a copy, as filed with the Secretary of the Commonwealth of Massachusetts on October 2, 2019, of the Trust's Amended and Restated Establishment and Designation of Series of Shares of Beneficial Interest, effective as of September 9, 2019 (the "Designation");
(d) a certificate executed by an appropriate officer of the Trust, certifying as to, and attaching copies of, the Trust's Declaration, Designation, By-Laws, and resolutions adopted by the Trust's Board of Trustees at a meeting held on October 30, 2019 (the "Resolutions"); and
(e) a draft of the Registration Statement received on October 14,
2019.
First Trust Exchange-Traded Fund VIII
Chapman and Cutler LLP
November 5, 2019
In such examination, we have assumed the genuineness of all signatures, the conformity to the originals of all of the documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing any document. We have also assumed that the Registration Statement, as filed with the Securities and Exchange Commission, will be in substantially the form of filing referred to in paragraph (e) above. We have further assumed that the Trust's Declaration, Designation, By-Laws and the Resolutions will not have been amended, modified or withdrawn with respect to matters relating to the Shares and will be in full force and effect on the date of the issuance of such Shares.
This opinion is based entirely on our review of the documents listed above and such investigation of law as we have deemed necessary or appropriate. We have made no other review or investigation of any kind whatsoever, and we have assumed, without independent inquiry, the accuracy of the information set forth in such documents.
As to any opinion below relating to the formation or existence of the Trust under the laws of the Commonwealth of Massachusetts, our opinion relies entirely upon and is limited by the certificate of public officials referred to in (a) above.
This opinion is limited solely to the internal substantive laws of the Commonwealth of Massachusetts, as applied by courts located in Massachusetts (other than Massachusetts securities laws, as to which we express no opinion), to the extent that the same may apply to or govern the transactions referred to herein. No opinion is given herein as to the choice of law which any tribunal may apply to such transaction. In addition, to the extent that the Trust's Declaration, Designation or By-Laws refer to, incorporate or require compliance with the Investment Company Act of 1940, as amended, or any other law or regulation applicable to the Trust, except for the internal substantive laws of the Commonwealth of Massachusetts, as aforesaid, we have assumed compliance by the Trust with such Act and such other laws and regulations.
We understand that all of the foregoing assumptions and limitations are acceptable to you.
Based upon and subject to the foregoing, please be advised that it is our opinion that:
1. The Trust has been formed and is existing under the Trust's Declaration of Trust and the laws of the Commonwealth of Massachusetts as a voluntary association with transferable shares of beneficial interest commonly referred to as a "Massachusetts business trust."
First Trust Exchange-Traded Fund VIII
Chapman and Cutler LLP
November 5, 2019
2. The Shares, when issued and sold in accordance with the Resolutions and for the consideration described in the Registration Statement, will be validly issued, fully paid and nonassessable, except that, as set forth in the Registration Statement, shareholders of the Trust may under certain circumstances be held personally liable for its obligations.
This opinion is given as of the date hereof and we assume no obligation to update this opinion to reflect any changes in law or any other facts or circumstances which may hereafter come to our attention. We hereby consent to your reliance on this opinion in connection with your opinion to the Trust with respect to the Shares and to the filing of this opinion as an exhibit to the Registration Statement. In rendering this opinion and giving this consent, we do not concede that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP |
CHAPMAN AND CUTLER LLP 111 WEST MONROE STREET
CHICAGO, ILLINOIS 60603
November 5, 2019
First Trust Exchange-Traded Fund VI
120 East Liberty Drive, Suite 400
Wheaton, Illinois 60187
We have served as counsel for the First Trust Exchange-Traded Fund VIII (the "Trust"), which proposes to offer and sell shares of its series (the "Shares"), FT Cboe Vest U.S. Equity Buffer ETF - August (the "Fund"), in the manner and on the terms set forth in Post-Effective Amendment No. 75 and Amendment No. 77 to its Registration Statement on Form N-1A filed on or about November 5, 2019 (the "Amendment") with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and the Securities Act of 1933, as amended, respectively.
In connection therewith, we have examined such pertinent records and documents and matters of law, including the opinion of Morgan, Lewis & Bockius LLP issued to the Trust or Trust's counsel upon which we have relied as they relate to the laws of the Commonwealth of Massachusetts, as we have deemed necessary in order to enable us to express the opinion hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
The Shares of the Fund may be issued from time to time in accordance with the Trust's Amended and Restated Declaration of Trust dated June 12, 2017 and the Trust's By-Laws, and subject to compliance with the Securities Act of 1933, as amended, the Investment Company Act of 1940, as amended, and applicable state laws regulating the sale of securities and the receipt by the Fund of the purchase price of not less than the net asset value per Share, and such Shares, when so issued and sold by the Fund, will be legally issued, fully paid and non-assessable, except that, as set forth in the Amendment, shareholders of the Fund may under certain circumstances be held personally liable for its obligations.
November 5, 2019
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement (File No. 333-210186) relating to the Shares referred to above, to the use of our name and to the reference to our firm in said Registration Statement.
Respectfully submitted,
/s/ CHAPMAN AND CUTLER LLP ----------------------------- CHAPMAN AND CUTLER LLP |
EXHIBIT A
(as of November 1, 2019)
------------------------------------------------------------ ------------------- FUNDS EFFECTIVE DATE ------------------------------------------------------------ ------------------- First Trust CEF Income Opportunity ETF September 28, 2016 ----------------------------------------------------------- ------------------- First Trust Municipal CEF Income Opportunity ETF September 28, 2016 ----------------------------------------------------------- ------------------- First Trust TCW Opportunistic Fixed Income ETF February 13, 2017 ----------------------------------------------------------- ------------------- EquityCompass Risk Manager ETF January 19, 2017 ----------------------------------------------------------- ------------------- EquityCompass Tactical Risk Manager ETF January 19, 2017 ----------------------------------------------------------- ------------------- First Trust TCW Unconstrained Plus Bond ETF May 29, 2018 ----------------------------------------------------------- ------------------- First Trust Low Duration Strategic Focus ETF December 18, 2018 ----------------------------------------------------------- ------------------- FT Cboe Vest U.S. Equity Buffer ETF - August November 1, 2019 ----------------------------------------------------------- ------------------- FT Cboe Vest U.S. Equity Deep Buffer ETF - August November 1, 2019 ----------------------------------------------------------- ------------------- FT Cboe Vest U.S. Equity Buffer ETF - November November 1, 2019 ----------------------------------------------------------- ------------------- FT Cboe Vest U.S. Equity Deep Buffer ETF - November November 1, 2019 ----------------------------------------------------------- ------------------- |