Exhibit (d)(3)
SUB-ADVISORY AGREEMENT
AGREEMENT, dated as of July 24, 2007 by and between XShares Advisors LLC
(the "Investment Adviser"), a Delaware limited liability company having its
principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, and BNY Investment Advisors (the "Sub-Adviser"), a separately
identifiable division of the Bank of New York, a New York state banking
corporation having its principal office and place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Investment Adviser is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Investment Adviser has entered into an Investment Advisory
Agreement dated as of July 24, 2007 with TDAX Funds, Inc. (the "Corporation") an
investment company registered under the Investment Company Act of 1940, as
amended ("Investment Company Act");
WHEREAS, the Investment Adviser has entered into a separate Sub-Advisory
Agreement dated as of July 24, 2007 with Amerivest Investment Management, LLC
("Amerivest"), a registered investment adviser under the Advisers Act;
WHEREAS, the Sub-Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Board of Directors of the Corporation and the Investment
Adviser desire to retain the Sub-Adviser to render investment advisory and other
services to the funds specified in Appendix A hereto, as amended from time to
time, each a series of the Corporation (each a "Fund" and collectively, the
"Funds"), in the manner and on the terms hereinafter set forth;
WHEREAS, the Investment Adviser has the authority under the Investment
Advisory Agreement, with the consent of the Board of Directors of the
Corporation (the "Board" or the "Directors") to select sub-advisers for each
Fund; and
WHEREAS, the Sub-Adviser is willing to furnish such services to the
Investment Adviser and each Fund;
NOW, THEREFORE, the Investment Adviser and the Sub-Adviser agree as
follows:
1. APPOINTMENT OF THE SUB-ADVISER
The Investment Adviser hereby appoints the Sub-Adviser to act as a
sub-adviser for each Fund, subject to the supervision and oversight of the
Investment Adviser, Amerivest and the Directors of the Corporation, and in
accordance with the terms and conditions of this Agreement. The Sub-Adviser will
be an independent contractor and will have no authority to act for or represent
the Corporation or the Investment Adviser in any way or otherwise be deemed an
agent of the Corporation or the Investment Adviser except as expressly
authorized in this Agreement or another writing by the Corporation, the
Investment Adviser and the Sub-Adviser.
2. ACCEPTANCE OF APPOINTMENT
The Sub-Adviser accepts that appointment and agrees to render the services
herein set forth, for the compensation herein provided.
The assets of each Fund will be maintained in the custody of a custodian
(who shall be identified by the Investment Adviser in writing). The Sub-Adviser
will not have custody of any securities, cash or other assets of the Fund and
will not be liable for any loss resulting from any act or omission of the
custodian other than acts or omissions arising in reliance on instructions of
the Sub-Adviser.
3. SERVICES TO BE RENDERED BY THE SUB-ADVISER TO THE CORPORATION
A. As sub-adviser to each Fund, the Sub-Adviser will coordinate the
investment and reinvestment of the assets of the Fund and determine the
composition of the assets of the Fund, in accordance with the terms of this
Agreement, the Fund's Prospectus and Statement of Additional Information and
subject to the direction, supervision and control of the Investment Adviser and
the Directors of the Corporation.
B. As part of the services it will provide hereunder, the Sub-Adviser
will:
(i) formulate and implement a continuous investment program and
portfolio management compliance and reporting program for each Fund;
(ii) take whatever steps it deems necessary or advisable to
implement the investment program for each Fund by arranging for the
purchase and sale of securities and other investments;
(iii) coordinate with Amerivest to keep the Directors of the
Corporation and the Investment Adviser fully informed on an ongoing basis
of all material facts concerning the investment and reinvestment of the
assets of each Fund and the operations of the Sub-Adviser, 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 Investment Adviser or the Directors of the Corporation, and attend
meetings with the Investment Adviser and/or the Directors, as reasonably
requested, to discuss the foregoing;
(iv) in accordance with procedures and methods established by the
Directors of the Corporation, which may be amended from time to time, and
in conjunction with Amerivest, promptly notify the Investment Adviser or
the Directors of the Corporation of securities in a Fund for which fair
valuation may be required or of significant events that may require fair
value pricing of all or a portion of a Fund's portfolio, provide
assistance in determining the fair value of all securities and other
investments/assets in the Fund, as necessary, and use reasonable efforts
to arrange for the provision of valuation information or price(s) from
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; and
(v) cooperate with and provide reasonable assistance to the
Investment Adviser, Amerivest, the Corporation's administrator, the
Corporation's custodian and foreign custodians, the Corporation's transfer
agent and pricing agents and all other agents and representatives of the
Corporation and the Investment 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 Corporation and the Investment
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.
C. In furnishing services hereunder, the Sub-Adviser shall be subject to,
and shall perform in accordance with the following: (i) the Corporation'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
Corporation, 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 Corporation 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
Investment Company Act and the Advisers Act and the rules under each, and all
other federal and state laws or regulations applicable to the Corporation and
the Fund(s); (v) any order or no-action letter of the SEC governing the
operation of the Corporation, (vi) the Corporation's Compliance Manual and other
policies and procedures adopted from time to time by the Board of Directors of
the Corporation; and (vii) the written instructions of the Investment Adviser.
Prior to the commencement of the Sub-Adviser's services hereunder, the
Investment Adviser shall 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 Corporation,
Compliance Manual and other relevant policies and procedures that are adopted by
the Board
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of Directors. The Investment Adviser undertakes to provide the Sub-Adviser with
copies or other written notice of any amendments, modifications or supplements
to any such above-mentioned document.
D. The Sub-Adviser, at its expense, will furnish: (i) all necessary
facilities and personnel, including salaries, expenses and fees of any personnel
required for them to faithfully perform their duties under this Agreement; and
(ii) administrative facilities, including bookkeeping, and all equipment
necessary for the efficient conduct of the Sub-Adviser's duties under this
Agreement.
E. 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 Investment Adviser from time to time and which have been
provided to the Sub-Adviser, (ii) as described in the Corporation'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 shall use
its best efforts to obtain for the Fund "best execution", considering all of the
circumstances, and shall 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 Investment Company Act, the Advisers Act and the rules under each, and
all other federal and state laws and regulations applicable to the Corporation
and the Fund.
F. 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 Corporation's Board of Directors.
G. 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, the Sub-Adviser to the extent permitted by applicable laws and
regulations, may, but shall 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 Investment 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
Investment 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.
H. 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 Investment Company Act and
Advisers Act and the rules thereunder and shall file with the SEC all forms
pursuant to Section 13 of the Exchange Act, with respect to its duties as are
set forth herein.
I. The Sub-Adviser will, unless and until otherwise directed by the
Investment Adviser or the Board of Directors, exercise all rights of security
holders with respect to securities held by each Fund, including, but not limited
to: voting proxies in accordance with the Corporation'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.
4. COMPENSATION OF SUB-ADVISER
The Investment Adviser will pay, or cause Amerivest to pay, the
Sub-Adviser as compensation for providing services in accordance with this
Agreement those fees as set forth in Appendix B. In addition, Sub-Adviser shall
be reimbursed by the Corporation 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
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(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.
5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company Act or
any other federal securities law, neither the Sub-Adviser nor any of its
officers, members or employees (its "Affiliates") shall be liable for any
losses, claims, damages, liabilities or litigation (including legal and other
expenses) incurred or suffered by the Investment Adviser or the Corporation 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 shall 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 shall indemnify and hold
harmless the Corporation, the Investment Adviser, all affiliated persons thereof
(within the meaning of Section 2(a)(3) of the Investment Company Act) 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 Investment Company 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
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 Investment Adviser or the Corporation, 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 Investment Company Act or
any other federal securities law, the Investment Adviser shall indemnify and
hold harmless the Sub-Adviser, all affiliated persons thereof (within the
meaning of Section 2(a)(3) of the Investment Company Act) 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 Investment
Company 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
Investment Adviser shall 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 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 Investment
Adviser or the Corporation, or the omission of such information, by the
Sub-Adviser Indemnities for use therein.
C. A party seeking indemnification hereunder (the "Indemnified Party")
shall (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 shall have the right at its
own expense to participate in the defense of any Claim, but shall 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 shall 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.
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6. REPRESENTATIONS OF THE INVESTMENT ADVISER
The Investment Adviser represents, warrants and agrees that:
A. The Investment Adviser has been duly authorized by the Board of
Directors of the Corporation to delegate to the Sub-Adviser the provision of
investment services to each Fund as contemplated hereby.
B. The Corporation has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Sub-Adviser with a copy of such code of ethics.
C. The Investment Adviser is currently in compliance and shall at all
times continue to be in compliance with the requirements imposed upon the
Investment Adviser by applicable law and regulations.
D. The Investment Adviser (i) will be registered as an investment adviser
under the Advisers Act prior to the commencement of operation of the Funds and
thereafter will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company 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 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; (iv) has the authority to enter into and perform
the services contemplated by this Agreement, and (v) will promptly notify the
Sub-Adviser of the occurrence of any event that would disqualify the Investment
Adviser from serving as investment manager of an investment company pursuant to
Section 9(a) of the Investment Company Act or otherwise.
7. 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 Investment Company 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
Investment Adviser of the occurrence of any event that would disqualify the
Sub-Adviser from serving as an investment adviser of an investment company
pursuant to Section 9(a) of the Investment Company Act or otherwise. The
Sub-Adviser will also promptly notify each Fund and the Investment 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 of the Sub-Adviser shall not be required to be reported
by this provision.
B. The Sub-Adviser is currently in compliance and shall at all times
continue to be in compliance with the requirements imposed upon the Sub-Adviser
by applicable law and regulations.
C. The Sub-Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and Rule 204A-1
under the Advisers Act and will provide the Investment 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 shall certify to the
Investment Adviser that the Sub-Adviser has complied with the requirements of
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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 Investment Adviser, the Sub-Adviser
shall permit the Investment 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.
D. The Sub-Adviser has provided the Corporation and the Investment 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 Corporation and the Investment Adviser at least annually. Such
amendments shall reflect all changes in the Sub-Adviser's organizational
structure, professional staff or other significant developments affecting the
Sub-Adviser, as required by the Advisers Act.
F. The Sub-Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage.
G. 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
Corporation, the Fund(s), the Investment Adviser or any of their respective
affiliates in offering, marketing or other promotional materials without the
express written consent of the Investment Adviser, except as required by rule,
regulation or upon the request of a governmental authority.
8. NON-EXCLUSIVITY
The services of the Sub-Adviser to the Investment Adviser, the Fund(s) and
the Corporation are not to be deemed to be exclusive, and the Sub-Adviser shall
be free to render investment advisory or other services to others and to engage
in other activities. 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, trustees, or employees of any other
firm or corporation.
9. 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 shall perform any services with respect to the Fund(s) that would
constitute an assignment or require a written advisory agreement pursuant to the
Investment Company Act. Any compensation payable to such persons shall be the
sole responsibility of the Sub-Adviser, and neither the Investment Adviser nor
the Corporation shall have any obligations with respect thereto or otherwise
arising under the Agreement.
10. REGULATION
The Sub-Adviser shall 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
shall promptly provide the Advisor and Corporation with copies of such
information, reports and materials.
11. RECORDS
The records relating to the services provided under this Agreement shall
be the property of the Corporation and shall be under its control; however, the
Corporation shall furnish to the Sub-Adviser such records and permit it to
retain such records (either in original or in duplicate form) as it shall
reasonably require in order to carry out its business. In the event of the
termination of this Agreement, such other records shall promptly be returned to
the Corporation 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 Investment Adviser and the Sub-Adviser shall
keep confidential any information obtained
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in connection with its duties hereunder and disclose such information only if
the Corporation 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.
12. DURATION OF AGREEMENT
This Agreement shall become effective upon the date first above written,
provided that this Agreement shall not take effect unless it has first been
approved: (i) by a vote of a majority of those Directors of the Corporation who
are not "interested persons" (as defined in the Investment Company Act) 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 shall 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 by the Board
of Directors provided that in such event such continuance shall also be approved
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 Appendix A by the Investment Adviser upon sixty (60) days written
notice to the Sub-Adviser and only after the approval by the Board of Directors
of the Corporation, 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 Investment Company Act) of the Fund.
13. 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, by the vote of a majority of the
outstanding voting securities of such Fund, on sixty (60) days' written notice
to the Investment Adviser and the Sub-Adviser. This Agreement will automatically
terminate, without the payment of any penalty in the event the Investment
Advisory Agreement between the Investment Adviser and the Corporation is
assigned (as defined in the Investment Company Act) 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. Any "assignment" (as that term is defined in the
Investment Company Act) of this Agreement will result in automatic termination
of this Agreement. The Sub-Adviser will notify the Corporation and the
Investment Adviser of any such assignment and of any changes in key personnel
who are either the portfolio manager(s) of the Funds 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 legal, printing, mailing, proxy and
related expenses of the Corporation and the Investment Adviser, if any, arising
out of an assignment of this Agreement by the Sub-Adviser.
14. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules
or regulations thereunder or pursuant to exemptive relief granted by the SEC,
this Agreement may be amended by the parties with respect to any Fund only if
such amendment, if material, is specifically approved by the vote of a majority
of the outstanding voting securities of such Fund (unless such approval is not
required by Section 15 of the Investment Company Act as interpreted by the SEC
or its staff or unless the SEC has granted an exemption from such approval
requirement) 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 shall 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 Corporation.
15. ASSIGNMENT
The Sub-Adviser shall not assign or transfer its rights and obligations
under this Agreement. Any assignment (as that term is defined in the Investment
Company Act) of the Agreement shall result in the automatic termination of this
Agreement, as provided in Section 13 hereof. The Sub-Adviser agrees to bear
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all reasonable legal, printing, mailing, proxy and related expenses of the
Corporation and the Investment Adviser, if any, arising out of any assignment of
this Agreement by the Sub-Adviser. Notwithstanding the foregoing, no assignment
shall 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
Investment Company Act or the rules or regulations thereunder.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to each Fund.
17. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
18. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the address listed below 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 shall be deemed given on the
date delivered or mailed in accordance with this paragraph.
For: BNY Investment Advisors
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For: XShares Advisors LLC
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For: TDAX Funds, Inc.
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With a copy to:
XShares Advisors LLC
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▇▇▇▇▇ ▇▇▇▇
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For: Amerivest Investment Management, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19. SEVERABILITY AND SURVIVAL
Should any portion of this Agreement for any reason be held to be void in law or
in equity, the Agreement shall be construed, insofar as is possible, as if such
portion had never been contained herein. Sections 5, 11 and 20 shall survive the
termination of this Agreement.
20. CORPORATION AND SHAREHOLDER LIABILITY
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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 Corporation pursuant to this
Agreement shall be limited in all cases to the Corporation and its assets, and
if the liability relates to one or more series, the obligations hereunder shall
be limited to the respective assets of the Fund. The Sub-Adviser further agrees
that it shall 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 Corporation.
21. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of New York, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
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
Investment Company Act shall be resolved by reference to such term or provision
of the Investment Company 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
Investment Company Act. Specifically, the terms "vote of a majority of the
outstanding voting securities," "interested persons," "assignment," and
"affiliated persons," as used herein shall have the meanings assigned to them by
Section 2(a) of the Investment Company Act. In addition, where the effect of a
requirement of the Investment Company 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 shall be deemed to incorporate
the effect of such rule, regulation or order.
[SIGNATURE PAGE TO FOLLOW]
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
XSHARES ADVISORS LLC BNY INVESTMENT ADVISORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer Title: Managing Director
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APPENDIX A
TO
SUB-ADVISORY AGREEMENT
TDAX Independence 2010 Exchange-Traded Fund
TDAX Independence 2020 Exchange-Traded Fund
TDAX Independence 2030 Exchange-Traded Fund
TDAX Independence 2040 Exchange-Traded Fund
TDAX Independence In-Target Exchange-Traded Fund
Dated: July 24, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
TO
SUB-ADVISORY AGREEMENT
Domestic Equity Funds: The Sub-Adviser shall be entitled to receive the fees
indicated below.
o 10 basis points (0.10%) of the first $100 million in combined daily
net assets of all domestic Equity Funds; and
o 5 basis points (0.05%) of the combined daily net assets of all
domestic Equity Funds in excess of $100 million.
There is a minimum annual investment management fee of $35,000 per Fund (the
"Minimum Annual Fee"). A domestic fund is defined by the Sub-Adviser as a fund
with less than 50% of its holdings and/or assets in non-U.S. markets. The
Sub-Adviser has decided to apply its Domestic Equity Funds' fee schedule to the
Funds. Funds with more than 50% of holdings and/or assets in non-U.S. markets
are global funds, and will be subject to a global fee schedule.
12