SUB-ADVISORY AGREEMENT
Agreement made as of October 20, 2010 between DBX STRATEGIC ADVISORS LLC
(formerly XShares Advisors LLC) (the "Adviser"), a Delaware limited liability
company, and TDAM USA Inc. (the "Sub-Adviser"), a Delaware corporation.
W I T N E S S E T H:
WHEREAS, the Adviser has entered into an Investment Advisory Agreement
dated as of October 20, 2010, (the "Investment Advisory Agreement") with TDX
Independence Funds, Inc., (the "Company") an open-end investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act") and organized as a corporation under the laws of the State of Maryland on
behalf of each Fund listed on Schedule A (the "Fund"), pursuant to which the
Adviser acts as adviser to the Fund;
WHEREAS, the Investment Advisory Agreement contemplates that the Adviser
may appoint a sub-adviser to perform certain services relating to the
management of the investment operations of the Fund, and the Sub-Adviser is
willing to render such investment advisory services to the Fund; and
WHEREAS, the Sub-Adviser is registered as an investment adviser under
the Investment Advisers Act of 1940.
NOW, THEREFORE, in consideration of the premises and mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Sub-Adviser
The Adviser hereby appoints the Sub-Adviser to act as an investment
adviser to the Fund, subject to the supervision and oversight of the Adviser
and the Directors of the Company for the period and on the terms set forth in
this Agreement. The Sub-Adviser accepts such appointment and agrees to render
the services herein set forth, for the compensation herein specified in
Schedule A.
(a) Subject to the direction, supervision and control of the Adviser and
the Board and consistent with its fiduciary duties to each Fund, the
Sub-Adviser will manage the investment operations and determine the composition
of the portfolio of each Fund, including the purchase, retention and
disposition of the securities and other instruments held by the Fund, in
accordance with the terms of this Agreement, the Fund's investment objective
and policies, the Fund's then-current Prospectus and Statement of Additional
Information contained in the Company's Registration Statement on Form N-1A (the
"Registration Statement"), as such prospectus and SAI are amended or
supplemented from time to time.
As part of the services it will provide hereunder, the Sub-Adviser will:
(i) provide supervision of each Fund's investments, furnish a continuous
investment program for the Funds, determine from time to time what
investments or
securities will be purchased, retained or sold by the Funds, and what
portion of the assets will be invested or held uninvested as cash;
(ii) maintain books and records with respect to the Company's securities
transactions and keep the Board and the Adviser fully informed in
writing on an ongoing basis as agreed by the Adviser and the Sub-Adviser
of all material facts concerning the investment and reinvestment of the
assets in the Funds, the Sub-Adviser and its key investment personnel
and operations providing services with respect to the Fund; make regular
and periodic special written reports of such additional information
concerning the same as may reasonably be requested from time to time by
the Adviser or the Board, and the Sub-Adviser will attend meetings with
the Adviser and/or the Directors, as reasonably requested, to discuss
the foregoing;
(iii) in accordance with procedures and methods established by the Board,
which may be amended from time to time, and in conjunction with the
Adviser, Sub-Adviser will promptly notify the Adviser and the Company's
Fund Accounting Agent of securities in a Fund for which the Sub-Adviser
believes should be fair valued in accordance with the Company's
Valuation Procedures. Such fair valuation may be required when the
Sub-Adviser becomes aware of significant events that may affect the
pricing of all or a portion of a Fund's portfolio. The Sub-Adviser will
provide assistance in determining the fair value of all securities and
other investments/assets in the Funds, as necessary, and use reasonable
efforts to arrange for the provision of valuation information or a
price(s) from a party(ies) independent of the Sub-Adviser for each
security or other investment/asset in the Fund for which market prices
are not readily available, it being understood that the Sub-Adviser will
not be responsible for determining the value of any such security;
(iv) provide any and all material performance information, records and
supporting documentation about accounts the Sub-Adviser manages, if
appropriate, which are relevant to the Fund and that have investment
objectives, policies, and strategies substantially similar to those
employed by the Sub-Adviser in managing the Fund that may be reasonably
necessary, under applicable laws, to allow the Fund or its agent to
present information concerning the Sub-Adviser's prior performance in
the Company's Prospectus and SAI (as hereinafter defined) and any
permissible reports and materials prepared by the Fund or its agent; and
(v) cooperate with and provide reasonable assistance to the Adviser, the
Company's administrator, the Company's custodian and foreign custodians,
the Company's transfer agent and pricing agents and all other agents and
representatives of the Company and the Adviser, keep all such persons
fully informed as to such matters as they may reasonably deem necessary
to the performance of their obligations to the Company and the Adviser,
provide prompt responses to reasonable requests made by such persons and
maintain any appropriate interfaces with each so as to promote the
efficient exchange of information.
(b) In furnishing services hereunder, the Sub-Adviser will be subject
to, and will perform its responsibilities in accordance with the following:
(i) the Company's Articles of Incorporation, as the same may be hereafter
modified and/or amended from time to time ("Certificate of Incorporation");
(ii) the By-Laws of the Company, as the same may be hereafter modified and/or
amended from time to time ("By-Laws"); (iii) the currently effective Prospectus
and Statement of Additional Information of the Company filed with the
Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as
the same may be hereafter modified, amended and/or supplemented ("Prospectus
and SAI"); (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of
1986, as amended, and the rules under each, and all other federal and state
laws or regulations applicable to the Company and the Fund(s); (v) any order or
no-action letter of the SEC governing the operation of the Company; (vi) the
Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940
Act (the "Compliance Manual") and other policies and procedures adopted from
time to time by the Board of Directors of the Company; and (vii) the written
instructions of the Adviser. Upon request from the Sub-Adviser, the Adviser
will provide the Sub-Adviser with current copies of the Certificate of
Incorporation, By-Laws, Prospectus and SAI, any order or no-action letter of
the SEC governing the operation of the Company, Compliance Manual and other
relevant policies and procedures that are adopted by the Board of Directors.
The Adviser undertakes to provide the Sub-Adviser with copies or other written
notice of any amendments, modifications or supplements to any such
above-mentioned documents.
(c) The Sub-Adviser, at its expense, will furnish (i) all necessary
facilities and personnel, including salaries, expenses and fees of any
personnel required for the Sub-Adviser to faithfully perform its duties under
this Agreement; and (ii) furnish administrative facilities, including
bookkeeping, and all equipment necessary for the efficient conduct of the
Sub-Adviser's duties under this Agreement.
(d) The Sub-Adviser will select brokers and dealers to effect all Fund
transactions subject to the conditions set forth herein. The Sub-Adviser will
place all necessary orders with brokers, dealers, or issuers, and will
negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at
all times to seek to execute transactions for each Fund (i) in accordance with
any written policies, practices or procedures that may be established by the
Board of Directors or the Adviser from time to time and which have been
provided to the Sub-Adviser, (ii) as described in the Company's Prospectus and
SAI, and (iii) in accordance with applicable federal and state laws and
regulations. In placing any orders for the purchase or sale of investments for
each Fund, in the name of the Fund or its nominees, the Sub-Adviser will use
its best efforts to seek to obtain for the Fund "best execution", considering
all of the circumstances, and will maintain records adequate to demonstrate
compliance with this requirement. In no instance will Fund securities be
purchased from or sold to the Sub-Adviser, or any affiliated person thereof,
except in accordance with the 1940 Act, the Advisers Act and the rules under
each, and all other federal and state laws and regulations applicable to the
Company and the Fund.
(d) The Sub-Adviser is not authorized to engage in "soft-dollar"
transactions, permitted by Section 28(e) of the Securities Exchange Act of
1934, as amended ("Exchange Act"), without the express written approval of the
Adviser or the Company's Board of Directors.
(e) On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of the Fund(s) as well as other clients of
the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by
applicable laws and regulations, may, but will be under no obligation to,
aggregate the securities to be purchased or sold to attempt to obtain a more
favorable price or lower brokerage commissions and efficient execution.
Allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by the Sub-Adviser in the manner
which the Sub-Adviser considers to be the most equitable and consistent with
its fiduciary obligations to each Fund and to its other clients over time. The
Adviser agrees that the Sub-Adviser and its affiliates may give advice and take
action in the performance of their duties with respect to any of their other
clients that may differ from advice given, or the timing or nature of actions
taken, with respect to the Fund. The Adviser also acknowledges that the
Sub-Adviser and its affiliates are fiduciaries to other entities, some of which
have the same or similar investment objectives (and will hold the same or
similar investments) as the Fund, and that the Sub-Adviser will carry out its
duties hereunder together with its duties under such relationships.
(f) The Sub-Adviser will maintain and preserve all accounts, books and
records with respect to each Fund as are required of an investment adviser of a
registered investment company pursuant to the 1940 Act and Advisers Act and the
rules thereunder and will file with the SEC all forms pursuant to Section 13 of
the Exchange Act, with respect to its duties as are set forth herein.
(g) The Sub-Adviser will, unless and until otherwise directed by the
Adviser or the Board of Directors and consistent with seeking the best interest
of the Fund, exercise (or not exercise in its discretion) all rights of
security holders with respect to securities held by each Fund, including, but
not limited to: voting proxies in accordance with the Company's then-current
proxy voting policies, converting, tendering, exchanging or redeeming
securities; acting as a claimant in class action litigation (including
litigation with respect to securities previously held); and exercising rights
in the context of a bankruptcy or other reorganization. Unless the Adviser or
the Board gives written instructions to the contrary, the Sub-Adviser will vote
all proxies solicited by or with respect to the issuers of securities in which
assets of the Fund may be invested in accordance with the Sub-Adviser's proxy
voting guidelines, a copy of which has been provided to the Adviser.
2. Compensation
The Advisor will pay, or arrange for payment to, the Sub-Adviser as
compensation for providing services in accordance with this Agreement those
fees as set forth in Schedule A. In addition, Sub-Adviser will be reimbursed by
the Company for any out-of-pocket expenses incurred by the Sub-Adviser which
traditionally include, but are not limited to, cost of obtaining prices for
security valuations (including manual broker quotes), Federal Reserve charges
related to securities transactions, postage and insurance on physical transfer
items, telecommunication charges, proxy voting execution, advice and reporting
etc. These expenses will be billed as they are incurred.
Subject to the provisions of this Agreement and the mutual agreement of
the parties, the duties of the Sub-Adviser and the fees to be paid to the
Sub-Adviser by the Adviser
under and pursuant to this Agreement or other arrangement entered into in
accordance with this Agreement may be adjusted from time to time by the
parties, to the extent permitted by law, subject to the prior approval of the
members of the Board of Directors who are not "interested persons" (as defined
in the 1940 Act).
3. Liability and Indemnification
(a) Except as may otherwise be provided by the 1940 Act or any other
federal securities law, neither the Sub-Adviser nor any of its officers,
members or employees (its "Affiliates") will be liable for any losses, claims,
damages, liabilities or litigation (including legal and other expenses)
incurred or suffered by the Adviser or the Company as a result of any error of
judgment by the Sub-Adviser or its Affiliates with respect to each Fund, except
that nothing in this Agreement will operate or purport to operate in any way to
exculpate, waive or limit the liability of the Sub-Adviser or its Affiliates
for, and the Sub-Adviser will indemnify and hold harmless the Company, the
Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3)
of the ▇▇▇▇ ▇▇▇) and all controlling persons (as described in Section 15 of the
Securities Act of 1933, as amended ("1933 Act")) (collectively, "Manager
Indemnitees") against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which any of the
Manager Indemnitees may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, or under any other statute, or common law or otherwise arising
out of or based on (i) any breach by the Sub-Adviser of a Sub-Adviser
representation or warranty made herein, (ii) any willful misconduct, bad faith,
reckless disregard or gross negligence of the Sub-Adviser in the performance of
any of its duties or obligations hereunder or (iii) any untrue statement of a
material fact contained in the Prospectus or SAI, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to the Fund(s)
or the omission to state therein a material fact known to the Sub-Adviser which
was required to be stated therein or necessary to make the statements therein
not misleading, if such statement or omission was made in reliance upon
information furnished to the Adviser or the Company, or the omission of such
information, by the Sub-Adviser Indemnitees (as defined below) for use therein.
(b) Except as may otherwise be provided by the 1940 Act or any other
federal securities law, the Adviser will indemnify and hold harmless the
Sub-Adviser, all affiliated persons thereof (within the meaning of
Section 2(a)(3) of the ▇▇▇▇ ▇▇▇) and all controlling persons (as described in
Section 15 of the 1933 Act) (collectively, "Sub-Adviser Indemnitees") against
any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses) to which any of the Sub-Adviser
Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers
Act, or under any other statute, at common law or otherwise, arising out of or
based on this Agreement; provided however, the Adviser will not indemnify or
hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses)
arising out of or based on (i) any breach by the Sub-Adviser of a Sub-Adviser
representation or warranty made herein, (ii) any willful misconduct, bad faith,
reckless disregard or gross negligence of the Sub-Adviser in the performance of
any of its duties or obligations hereunder or (iii) any untrue statement of a
material fact contained in the Prospectus or SAI, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to the Fund(s)
or the omission to state therein a material fact known to the Sub-Adviser which
was required to be stated therein or necessary to make the statements therein
not misleading, if such statement or omission was made in reliance upon
information furnished to the Adviser or the Company, or the omission of such
information, by the Sub-Adviser Indemnities for use therein.
(c) A party seeking indemnification hereunder (the "Indemnified Party")
will (i) provide prompt notice to the other of any claim ("Claim") for which it
intends to seek indemnification, (ii) grant control of the defense and /or
settlement of the Claim to the other party, and (iii) cooperate with the other
party in the defense thereof. The Indemnified Party will have the right at its
own expense to participate in the defense of any Claim, but will not have the
right to control the defense, consent to judgment or agree to the settlement of
any Claim without the written consent of the other party. The party providing
the indemnification will not consent to the entry of any judgment or enter any
settlement which (i) does not include, as an unconditional term, the release by
the claimant of all liabilities for Claims against the Indemnified Party or
(ii) which otherwise adversely affects the rights of the Indemnified Party.
4. Representations of the Adviser
The Adviser represents, warrants and agrees as follows:
(a) The Adviser has been duly authorized by the Board to delegate to the
Sub-Adviser the provision of investment services to each Fund as contemplated
hereby.
(b) The Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) to the best of its knowledge, has met and
will seek to continue to meet for so long as this Agreement is in effect, any
other applicable federal or state requirements, or the applicable requirements
of any regulatory or industry self-regulatory agency necessary to be met in
order to perform the services contemplated by this Agreement; and (iv) will
promptly notify the Sub-Adviser of the occurrence of any event that would
disqualify the Adviser from serving as investment manager of an investment
company pursuant to Section 9(a) of the 1940 Act or otherwise.
5. Representations of the Sub-Adviser
The Sub-Adviser represents, warrants and agrees as follows:
(a) The Sub-Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) has met and will seek to continue to
meet, for so long as this Agreement remains in effect, any other applicable
federal or state requirements, or the applicable requirements of any regulatory
or industry self-regulatory agency necessary to be met in order to perform the
services contemplated by this Agreement; (iv) has the authority to enter into
and perform the services contemplated by this Agreement; and (v) will promptly
notify the Adviser of the occurrence of any event that would substantially
impair the Sub-Adviser's ability to fulfill its commitment under this Agreement
or disqualify the Sub-Adviser from serving as an investment adviser of an
investment company pursuant to
Section 9(a) of the 1940 Act or otherwise. The Sub-Adviser will also promptly
notify each Fund and the Adviser if it is served or otherwise receives notice
of any action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, government agency, self regulatory organization, public
board or body, involving the affairs of the Fund(s) or the Sub-Adviser,
provided, however, that routine regulatory examinations will not be required to
be reported by this provision.
(b) The Sub-Adviser has adopted a written code of ethics complying with
the requirements of Rule 17j-1 under the 1940 Act and Rule 204A-1 under the
Advisers Act and will provide the Adviser and the Board with a copy of such
code of ethics, together with evidence of its adoption. Within forty-five days
of the end of the last calendar quarter of each year that this Agreement is in
effect, and as otherwise requested, the president, Chief Operating Officer or a
vice-president of the Sub-Adviser will certify to the Adviser that the
Sub-Adviser has complied with the requirements of Rule 17j-1 and Rule 204A-1
during the previous year and that there has been no material violation of the
Sub-Adviser's code of ethics or, if such a material violation has occurred,
that appropriate action was taken in response to such violation. Upon the
written request of the Adviser, the Sub-Adviser will permit the Adviser, its
employees or its agents to examine the reports required to be made to the
Sub-Adviser by Rule 17j-1(c)(1) and Rule 204A-1(b) and all other records
relevant to the Sub-Adviser's code of ethics but only to the extent such
reports and/or records relate to the provision of services hereunder.
(c) The Sub-Adviser has adopted and implemented and will maintain (a) in
accordance with Rule 206(4)-7 under the Advisers Act, policies and procedures
reasonably designed to prevent violation by the Sub-Adviser and its supervised
persons (as such term is defined by the Advisers Act) of the Advisers Act and
the rules thereunder; and (b) to the extent that the Sub-Adviser's activities
or services could affect the Fund(s), policies and procedures reasonably
designed to prevent violation of the federal securities laws (as such term is
defined in Rule 38a-1 under the ▇▇▇▇ ▇▇▇) by the Fund(s) and the Sub-Adviser.
(d) The Sub-Adviser has provided the Company and the Adviser with a copy
of its Form ADV, which as of the date of this Agreement is its Form ADV as most
recently filed with the SEC and promptly will furnish a copy of all amendments
to the Company and the Adviser at least annually. Such amendments will reflect
those changes in the Sub-Adviser's organizational structure, professional staff
or other significant developments affecting the Sub-Adviser, which are required
by the Advisers Act.
(e) The Sub-Adviser will notify the Company and the Adviser of any
assignment of this Agreement or change of control of the Sub-Adviser, as
applicable, and any changes in the key personnel who are either the portfolio
manager(s) of the Fund(s) or senior management of the Sub-Adviser, in each case
prior to or promptly after, such change. The Sub-Adviser agrees to bear all
reasonable expenses of the Company, if any, arising out of an assignment or
change in control.
(f) The Sub-Adviser will notify the Adviser immediately upon detection
of (a) any material failure to manage the Fund(s) in accordance with the
Fund(s)' stated investment objectives and policies or any applicable law; or
(b) any material breach of any of the Fund(s)' or the Sub-Adviser's policies,
guidelines or procedures.
(g) The Sub-Adviser agrees to maintain an appropriate level of errors
and omissions or professional liability insurance coverage.
The Sub-Adviser agrees that neither it, nor any of its affiliates, will
knowingly in any way refer directly or indirectly to its relationship with the
Company, the Fund(s), the Adviser or any of their respective affiliates in
offering, marketing or other promotional materials without the express written
consent of the Adviser, except as required by rule, regulation or upon the
request of a governmental authority. However, the Sub-Adviser may use the
performance of the Fund in its composite performance.
6. Non-Exclusivity
The services of the Sub-Adviser to the Adviser, the Fund(s) and the
Company are not to be deemed to be exclusive, and the Sub-Adviser will be free
to render investment advisory or other services to others and to engage in
other activities, provided the Sub-Adviser furnishes adequate disclosure of
possible conflicts of interest and implements procedures designed to mitigate
or eliminate such conflicts. It is understood and agreed that the directors,
officers, and employees of the Sub-Adviser are not prohibited from engaging in
any other business activity or from rendering services to any other person, or
from serving as partners, officers, directors, or employees of any other firm
or corporation.
7. Supplemental Arrangements
The Sub-Adviser may from time to time employ or associate itself with
any person it believes to be particularly suited to assist it in providing the
services to be performed by such Sub-Adviser hereunder, provided that no such
person will perform any services with respect to the Fund(s) that would
constitute an assignment or require a written advisory agreement pursuant to
the 1940 Act. Any compensation payable to such persons will be the sole
responsibility of the Sub-Adviser, and neither the Adviser nor the Company will
have any obligations with respect thereto or otherwise arising under the
Agreement.
8. Regulation
The Sub-Adviser will submit to all regulatory and administrative bodies
having jurisdiction over the services provided pursuant to this Agreement any
information, reports, or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations
and will promptly provide the Adviser and Company with copies of such
information, reports and materials.
9. Records
The records relating to the services provided under this Agreement will
be the property of the Company and will be under its control; however, the
Company will furnish to the Sub-Adviser such records and permit it to retain
such records (either in original or in duplicate form) as it will reasonably
require in order to carry out its business. In the event of the termination of
this Agreement, such other records will promptly be returned to the Company by
the Sub-Adviser free from any claim or retention of rights therein, provided
that the Sub-Adviser
may retain any such records that are required by law or regulation. The
Sub-Adviser will keep confidential any information obtained in connection with
its duties hereunder and disclose such information only if the Company has
authorized such disclosure or if such disclosure is expressly required or
requested by applicable federal or state regulatory authorities, or otherwise
required by law.
10. Duration
This Agreement will become effective upon the date first above written,
provided that this Agreement will not take effect unless it has first been
approved: (i) by a vote of a majority of those Directors of the Company who are
not "interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of any party to this
Agreement ("Independent Directors"), cast in person at a meeting called for the
purpose of voting on such approval, and (ii) by vote of a majority of the
Fund's outstanding securities. This Agreement will continue in effect for a
period more than two years from the date of its execution only so long as such
continuance is specifically approved at least annually (i) by either the Board
or by vote of a "majority of the outstanding voting securities" (as defined in
the ▇▇▇▇ ▇▇▇) of such Fund, and (ii) in either event, by the vote of a majority
of the Independent Directors cast in person at a meeting called for the purpose
of voting on such approval. Additional Funds may be added to Schedule A by the
Adviser upon sixty (60) days' written notice to the Sub-Adviser and only after
the approval by the Board of Directors of the Company, including a majority of
the Independent Directors, cast in person at a meeting called for the purpose
of voting such approval and, if required under the 1940 Act, a majority of the
outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund.
11. Termination of Agreement
This Agreement may be terminated with respect to any Fund at any time,
without the payment of any penalty, by the Board of Directors, including a
majority of the Independent Directors, or by the vote of a majority of the
outstanding voting securities of such Fund, on sixty (60) days' written notice
to the Adviser and the Sub-Adviser. This Agreement may also be terminated with
respect to any Fund at any time, without the payment of any penalty, by either
the Adviser or the Sub-Adviser, on sixty (60) days' written notice to the other
party and such Fund. This Agreement will automatically terminate, without the
payment of any penalty in the event the Investment Advisory Agreement between
the Adviser and the Company is assigned (as defined in the ▇▇▇▇ ▇▇▇) or
terminates for any other reason. This Agreement will also terminate upon
written notice to the other party that the other party is in material breach of
this Agreement, unless the other party in material breach of this Agreement
cures such breach to the reasonable satisfaction of the party alleging the
breach within thirty (30) days after written notice. As discussed in Section 14
below, any "assignment" (as that term is defined in the ▇▇▇▇ ▇▇▇) of this
Agreement will result in automatic termination of this Agreement.
12. Independent Contractor
The Sub-Adviser will for all purposes herein be deemed to be an
independent contractor and will, unless otherwise expressly provided herein or
authorized by the Board of Directors and the Adviser from time to time, have no
authority to act for or represent the Company in any way or otherwise be deemed
an agent of the Company.
13. Amendments to the Agreement
Except to the extent permitted by the 1940 Act or the rules or
regulations thereunder or pursuant to exemptive relief granted by the SEC, this
Agreement may be amended by the parties only if such amendment, if material, is
specifically approved by the vote of a majority of the outstanding voting
securities of a Fund and by the vote of a majority of the Independent Directors
cast in person at a meeting called for the purpose of voting on such approval.
The required shareholder approval will be effective with respect to the Fund if
a majority of the outstanding voting securities of the Fund vote to approve the
amendment, notwithstanding that the amendment may not have been approved by a
majority of the outstanding voting securities of any other Fund affected by the
amendment or all the Funds of the Company.
Any change, waiver, discharge or termination of a provision of this
Agreement, whether or not such change is deemed to be material, may be made
only by an instrument in writing signed by both the Adviser and the Sub-Adviser.
14. Assignment
The Sub-Adviser will not assign or transfer its rights and obligations
under this Agreement. Any assignment (as that term is defined in the ▇▇▇▇ ▇▇▇)
of the Agreement will result in the automatic termination of this Agreement, as
provided in Section 11 hereof. The Sub-Adviser agrees to bear all reasonable
legal, printing, mailing, proxy and related expenses of the Company and the
Adviser, if any, arising out of any assignment of this Agreement by the
Sub-Adviser. Notwithstanding the foregoing, no assignment will be deemed to
result from any changes in the directors, officers or employees of such
Sub-Adviser except as may be provided to the contrary in the 1940 Act or the
rules or regulations thereunder.
15. Notices
Notices of any kind to be given hereunder will be in writing and will be
duly given if mailed or delivered as follows: (a) to the Sub-Adviser at TDAM
USA Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇, with a
copy to the Adviser; (b) to the Adviser at DBX Strategic Advisors LLC, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; (c) to the Fund at TDX
Independence Funds Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; or (d) at such
other address or to such other individual as any of the foregoing will
designate by notice to the others.
All notices required to be given pursuant to this Agreement will be
delivered or mailed to the address listed above of each applicable party in
person or by registered or certified mail or a private mail or delivery service
providing the sender with notice of receipt or such other address as specified
in a notice duly given to the other parties. Notice will be deemed given on the
date delivered or mailed in accordance with this paragraph.
16. Entire Agreement
This Agreement contains the entire understanding and agreement of the
parties with respect to each Fund.
This Agreement may be executed in two or more counterparts, each of
which when so executed will be deemed to be an original, but such counterparts
will together constitute one and the same document.
17. Headings
The headings in the sections of this Agreement are inserted for
convenience of reference only and will not constitute a part hereof.
19. Severability
Should any portion of this Agreement for any reason be held to be void
in law or in equity, the Agreement will be construed, insofar as is possible,
as if such portion had never been contained herein.
20. Company and Shareholder Liability
The Sub-Adviser is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Certificate of Incorporation and
agrees that obligations, if any, assumed by the Company pursuant to this
Agreement will be limited in all cases to the Company and its assets, and if
the liability relates to one or more series, the obligations hereunder will be
limited to the respective assets of the Fund. The Sub-Adviser further agrees
that it will not seek satisfaction of any such obligation from the shareholders
or any individual shareholder of the Fund(s), nor from the Directors or any
individual Director of the Company.
21. Governing Law
This Agreement will be governed by the laws of the State of New York
without reference to conflicts of laws principles. Any and all litigation or
other disputes arising from this Agreement will be commenced in a federal or
state court of competent jurisdiction in New York City, New York.
22. Interpretation
Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the 1940 Act will be resolved by reference to such term or provision of the
1940 Act and to interpretations thereof, if any, by the United States courts
or, in the absence of any controlling decision of any such court, by rules,
regulations or orders of the SEC validly issued pursuant to the 1940 Act.
Specifically, the terms "vote of a majority of the outstanding voting
securities," "interested persons," "assignment," and "affiliated persons," as
used herein will have the meanings assigned to them by Section 2(a) of the 1940
Act. In addition, where the effect of a requirement of the 1940 Act reflected
in any provision of this Agreement is relaxed by a rule, regulation or order of
the SEC, whether of special or of general application, such provision will be
deemed to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the date set forth above.
DBX STRATEGIC ADVISORS LLC
(formerly, XShares Advisors LLC)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
TDAM USA INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Managing Director
SCHEDULE A
FUNDS
TDX Independence 2010 Exchange-Traded Fund
TDX Independence 2020 Exchange-Traded Fund
TDX Independence 2030 Exchange-Traded Fund
TDX Independence 2040 Exchange-Traded Fund
TDX Independence In-Target Exchange-Traded Fund
COMPENSATION
The Sub-Adviser will be entitled to receive the fees indicated below.
10 basis points (0.10%) of the first $100 million in combined daily net assets
of all Funds; and
5 basis points (0.05% of the combined daily net assets of all Funds in excess
of $100 million.
There is a minimum annual investment management fee of $35,000 per Fund (the
"Minimum Annual Fee").