EX-99.d.4
SUB-ADVISORY AGREEMENT
AGREEMENT, dated as of August 1, 2008 by and between VTL Associates, LLC
(the "Investment Adviser"), a Pennsylvania limited liability company having its
principal office and place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Mellon Capital Management Corporation (the
"Sub-Adviser"), an indirect wholly-owned subsidiary of The Bank of New York
Mellon 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 January 25, 2008 with RevenueShares ETF Trust (the
"Trust") an investment company registered under the Investment Company Act of
1940, as amended ("Investment Company Act");
WHEREAS, the Sub-Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Board of Trustees of the Trust 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 Trust (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, subject to the approval of the Board of Trustees of the
Trust (the "Board" or the "Trustees") 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 and the Trustees of the Trust, and in accordance with the
terms and conditions of this Agreement. Subject to any other written
instructions of the Investment Adviser or the Trust, Sub-Adviser is hereby
appointed the Fund's agent and attorney-in-fact for the limited purposes of
executing account documentation, agreements, contracts and other documents as
Sub-Adviser shall be requested by brokers, dealers, counter parties and other
persons in connection with its management of the Fund's assets.
2. ACCEPTANCE OF APPOINTMENT
The Sub-Adviser accepts that appointment and agrees to render the services
herein set forth, for the compensation herein provided. To the extent consistent
with the Services described in Section 3, Sub-Adviser may purchase, hold and
sell The Bank of New York Mellon Corporation stock, which is the stock of an
affiliate of the Sub-Adviser, and may do so only in accordance with the
provisions of the Investment Company Act and any regulations, orders or
interpretations of the Securities and Exchange Commission or its Staff
thereunder.
The assets of each Fund will be maintained in the custody of a custodian
(who shall be identified by the Investment Adviser in writing). Except to the
extent that such custodian is an affiliate or a separately identifiable division
of the Sub-Adviser, 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 TRUST
A. Subject to the succeeding provisions of this section, the oversight and
supervision of the Investment Adviser and the direction and control of the
Trust's Board of Trustees, the Sub-Adviser will perform certain of the
day-to-day operations of the Funds which may include one or more of the
following services at the request of the Investment Adviser. As sub-adviser to
each Fund, the Sub-Adviser will manage 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.
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) keep 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 Trustees of the Trust, and attend meetings with the
Investment Adviser and/or the Trustees, as reasonably requested, to discuss
the foregoing;
(iv) Sub-Adviser shall promptly notify the Investment Adviser 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 advice about the fair value of all
securities and other investments/assets in the Fund, as requested;
provided, however, that the parties acknowledge that the Trust is
responsible for any fair value pricing; and
(v) cooperate with and provide reasonable assistance to the Investment
Adviser, the Trust's administrator, the Trust's custodian and foreign
custodians, the Trust's transfer agent and pricing agents and all other
agents and representatives of the Trust and the Investment Adviser, keep
all such persons fully informed as to such matters as the Sub-Adviser
considers in good faith to be necessary to the performance of their
obligations to the Trust 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 currently effective
Prospectus and Statement of Additional Information of the Trust filed with the
U.S. Securities and Exchange Commission ("SEC"), as the same may be hereafter
modified, amended and/or supplemented ("Prospectus and SAI"); (ii) 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 Sub-Adviser, the
Trust and the Fund(s); (iii) any order or no-action letter of the SEC governing
the operation of the Trust, (iv) the Trust's compliance policies and procedures;
and (v) the written instructions of the Investment Adviser. In the event that
the Sub-Adviser is unable to perform in accordance with (iv) or (v), it shall
promptly so notify, respectively, the Trust's chief compliance officer or 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 Prospectus and SAI, any order or no-action letter of the SEC
governing the operation of the Trust, and the Trust's compliance policies and
procedures. The Investment Adviser further undertakes to provide the Sub-Adviser
with copies or other written notice of any amendments, modifications or
supplements to any such above-mentioned document and Sub-Adviser will not need
to comply until such amendment, modification or supplement has been provided to
the Sub-Adviser.
D. The Sub-Adviser shall submit copies or summaries of its current policies
and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act,
and any of its other policies or procedures
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required to comply with Rule 38a-1 under the Investment Company Act
(collectively, the "Sub-Adviser Compliance Procedures"), to the Trust's Board of
Trustees for approval pursuant to Rule 38a-1(a)(2) under the Investment Company
Act. The Sub-Adviser shall furnish the services hereunder to the Trust in
accordance with the Sub-Adviser Compliance Procedures.
E. 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 recordkeeping, and all equipment
necessary for the efficient conduct of the Sub-Adviser's duties under this
Agreement.
F. 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
Trustees or the Investment Adviser from time to time and which have been
provided to the Sub-Adviser, (ii) as described in the Trust'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, the
Trust's Compliance Manual, and all other federal and state laws and regulations
applicable to the Trust and the Fund.
G. 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 Trust's Board of Trustees.
H. 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 fair and reasonable result and
efficient execution, provided that the Sub-Adviser does not favor any account
over any other account. 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.
I. 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 any report on
Form 13F or Schedule 13G required by the Exchange Act, with respect to its
duties as are set forth herein.
J. The Sub-Adviser will, unless and until otherwise directed by the
Investment Adviser or the Board of Trustees, 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 Sub-Adviser's then-current proxy
voting policies (provided such policies have been approved by the Trust's Board
of Trustees), and converting, tendering, exchanging or redeeming securities.
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4. COMPENSATION OF SUB-ADVISER
The Investment Adviser will pay the Sub-Adviser as compensation for
providing services in accordance with this Agreement those fees as set forth in
Appendix B. In addition, the Investment Adviser shall be responsible for
extraordinary expenses incurred by the Sub-Adviser in connection with the
performance of its duties hereunder, including, without limitation, expenses
incurred with respect to proxy voting execution, advice and reporting.
In the event of termination of this Agreement, the fee provided in Appendix
B shall be computed on the basis of the period ending on the last business day
on which this Agreement is in effect, subject to a pro rata adjustment based on
the number of days elapsed in the month as a percentage of the total number of
days in such month.
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 Trust 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 Trust, 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 that 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 Trust, 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, its officers, employees, consultants and 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 that
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 Trust, 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
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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 that (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.
D. Notwithstanding anything in this Agreement to the contrary contained
herein, the Sub-Adviser shall not be responsible or liable for its failure to
perform under this Agreement or for any losses to the Investment Adviser or the
Trust resulting from any event beyond the reasonable control of the Sub-Adviser
or its agents, including but not limited to nationalization, expropriation,
devaluation, seizure, or similar action by any governmental authority, de facto
or de jure; or enactment, promulgation, imposition or enforcement by any such
governmental authority of currency restrictions, exchange controls, levies or
other charges affecting the Trust's property; or the breakdown, failure or
malfunction of any utilities or telecommunications systems; or any order or
regulation of any banking or securities industry including changes in market
rules and market conditions affecting the execution or settlement of
transactions; or acts of war, terrorism, insurrection or revolution; or acts of
God, or any other similar event.
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 Trustees
of the Trust to delegate to the Sub-Adviser the provision of investment services
to each Fund as contemplated hereby.
B. The Trust 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 material compliance and shall at
all times continue to be in material 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.
E. The Investment Adviser acknowledges receipt of Part II of Sub-Adviser's
Form ADV at least 48 hours prior to entering into this Agreement, as required by
Rule 204-3 under the Advisers Act.
F. The Investment Adviser shall provide (or cause the Trust's custodian to
provide) timely information to the Sub-Adviser regarding such matters as the
composition of assets in the portion of each Fund managed by the Sub-Adviser,
cash requirements and cash available for investment in such portion of each such
Fund, and all other information as may be reasonably necessary for the
Sub-Adviser to perform its duties hereunder.
7. REPRESENTATIONS OF THE SUB-ADVISER
The Sub-Adviser represents, warrants and agrees as follows:
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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 material 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 and the Sub-Adviser shall not be required to notify the Fund
of events subject to this provision until such time that it notifies its other
clients.
B. The Sub-Adviser is currently in material compliance and shall at all
times continue to be in material 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 Sub-Adviser shall
certify to the Investment 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 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 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 Investment Adviser on an annual basis. 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.
E. The Sub-Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage.
F. The Sub-Adviser agrees that it will not knowingly in any way refer
directly or indirectly to its relationship with the Trust, 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.
G. Sub-Adviser agrees not to consult with (i) other subadvisers to a Fund,
if any, (ii) other subadvisers to any other Fund of the Trust, or (iii) other
subadvisers to an investment company under common control with any Fund,
concerning transactions for a Fund in securities or other assets.
H. The Sub-Adviser acknowledges that the Investment Adviser and the Trust
intend to rely on Rule 17a-10, Rule 10f-3, Rule 12d3-1 and Rule 17e-1 under the
Investment Company Act, and the Sub-Adviser hereby agrees that it shall not
consult with any other sub-adviser to the Trust with respect to transactions in
securities for the Trust's portfolio or any other transactions of Trust assets.
I. The Sub-Adviser maintains commercially reasonable business continuity
procedures.
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8. NON-EXCLUSIVITY
The services of the Sub-Adviser to the Investment Adviser, the Fund(s) and
the Trust 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 Trustees, 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, Trustees, trustees, or employees of any other
firm or Trust.
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 Trust 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 that 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 Trust with copies of such information,
reports and materials. Nothing in this Agreement authorizes the Sub-Adviser to
waive any privilege to which the Trust or the Adviser may otherwise be entitled.
Sub-Adviser shall not be liable for damages incurred by the Adviser or to the
Trust to the extent that it provides information pursuant to this Section 10.
11. RECORDS
The records relating to the services provided under this Agreement shall be
the property of the Trust and shall be under its control; however, the Trust
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 Trust 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 in connection with its duties hereunder and disclose
such information only if the Trust 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 in accordance with Section
10 of this Agreement. Nothing in this Agreement authorizes the Sub-Adviser to
waive any privilege to which the Trust or the Adviser may otherwise be entitled.
Sub-Adviser shall not be liable for damages incurred by the Adviser or to the
Trust to the extent that it provides information pursuant to this Section 11.
12. DURATION OF AGREEMENT
This Agreement shall become effective upon the date first above written,
provided that this Agreement shall not take effect with respect to a Fund unless
it has first been approved: (i) by a vote of a majority of those trustees of the
Trust who are not "interested persons" (as defined in the Investment Company
Act) of any party to this Agreement ("Independent Trustees"), cast in person at
a meeting called for the purpose of voting on such approval, and (ii) by vote of
a majority of the outstanding voting securities (as defined in the Investment
Company Act) ("Outstanding Voting Securities") of the Fund or as permitted by
Rule 2a-6 of the Investment Company Act. 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
Trustees provided that in such event such continuance shall also be approved by
the vote of a majority of the Independent Trustees cast in person at a meeting
called for the purpose of voting on such approval. Additional Funds may be added
to Appendix A by written agreement of the Investment Adviser and the Sub-Adviser
and only after the approval by the Board of Trustees of the Trust, including a
majority
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of the Independent Trustees, cast in person at a meeting called for the purpose
of voting such approval and, if required under the Investment Company Act, a
majority of the Outstanding Voting Securities 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 Trustees, by the vote of a
majority of the Outstanding Voting Securities of such Fund, or by the Investment
Adviser, each on sixty (60) days written notice to the Investment Adviser and
the Sub-Adviser. In addition, this Agreement may be terminated with respect to
any Fund by the Sub-Adviser upon sixty (60) days' written notice to the
Investment 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 Trust 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 Trust 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 named in the Prospectus and/or SAI, 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 Trust 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 (i) the Investment Company Act or the
rules or regulations thereunder, (ii) exemptive relief granted by the SEC, or
(iii) interpretation of the SEC or its staff, 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 or the rules thereunder, 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 Trustees 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 Trust.
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. Notwithstanding the foregoing, no
assignment shall be deemed to result from any changes in the Trustees, officers
or employees of the 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.
8
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: Mellon Capital Management Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Manager of Client Service
or: VTL Associates, LLC
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
One Commerce Square
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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. TRUST AND SHAREHOLDER LIABILITY
The Sub-Adviser is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Declaration and agrees that
obligations, if any, assumed by the Trust pursuant to this Agreement shall be
limited in all cases to the Trust 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 Trustees or any individual Director of
the Trust. The assets of a Fund shall be available only to satisfy the
liabilities and obligations of that Fund, and not the liabilities or obligations
of any other Fund. All obligations of the Funds under this agreement are several
and not joint, and are included together in this Agreement solely for the sake
of convenience.
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, or
interpretation of this staff, whether of special or of general application, such
provision shall be deemed to incorporate the effect of such rule, regulation or
order.
9
23. COUNTERPARTS
This Agreement may be executed in counterparts each of which shall be
deemed to be an original and all of which, taken together, shall be deemed to
constitute one and the same instrument.
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.
VTL ASSOCIATES, LLC MELLON CAPITAL MANAGEMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President Title: EVP & Chief
Administrative Officer
10
APPENDIX A
TO
SUB-ADVISORY AGREEMENT
RevenueShares Large Cap Fund
RevenueShares Mid Cap Fund
RevenueShares Small Cap Fund
▇▇
▇▇▇▇▇▇▇▇ ▇
TO
SUB-ADVISORY AGREEMENT
SUB ADVISORY SERVICES - ANNUAL FEES - MELLON CAPITAL MANAGEMENT CORPORATION
o 8.0 basis points (0.08%) per annum on the fund's daily average net
assets up to $75 Million
o 6.0 basis points (0.06%) per annum on the next $50 Million.
o 3.0 basis points (0.03%) per annum on the excess
Minimum Annual Fees:
Each fund will be subject to the following minimum fee schedule:
$35,000 minimum annual fee per fund.
The above Annual Fees will be billed quarterly in arrears based on the average
daily market value of each Fund or at the minimum rate applied pro rata.
12