SUB-ADVISORY AGREEMENT
Agreement made as of January 31, 2011 between DBX ADVISORS
LLC (the
"Adviser"), a Delaware limited liability company, and TDAM
USA Inc. (the "Sub-Adviser"), a Delaware corporation.
WITNESSETH:
WHEREAS, the Adviser has entered into an Investment
Advisory Agreement
dated as of January 31, 2011, (the "Investment Advisory
Agreement") with DBX ETF Trust (the
"Company"), an open-end investment company registered under the
Investment Company Act of
1940, as amended (the "1940 Act"), and organized as a statutory
trust under the laws of the State
of Delaware on behalf of each Fund listed on Schedule A, as it
may be amended from time to
time to add or remove series (each, a "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 subadvisory 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 sub-adviser to the Fund, subject to the
supervision and oversight of the Adviser and the Board of
Trustees (the "Board") 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-IA (the
"Prospectus and SAI"), as they may be amended or supplemented
from time to time.
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As part of the services it will provide hereunder, the Sub-
Adviser will:
(i) designate the identity and weighting of the securities (and
amount of cash, if any)
to be accepted in exchange for creation units of a Fund or
that will be applicable
that day to redemption requests received by a Fund;
(ii) provide supervision of each Fund's investments and determine
from time to time
what investments or securities will be purchased,
retained or sold by the Funds and what portion, if
any, of the assets of each Fund will be held
uninvested;
(iii) maintain books and records with respect to the each
Fund'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 Board, as reasonably
requested, to discuss the foregoing;
(iv) in accordance with procedures and methods established by the
Board, which may
be amended from time to time (the "Valuation
Procedures"), and in conjunction
with the Adviser, Sub-Adviser will promptly notify
the Adviser and the
Company's fund accounting agent if they become aware
of an event that could
affect the pricing of all or any portion of a Fund's
portfolio. The Sub-Adviser
will also provide assistance, at the request of the
appropriate party and pursuant to
the Valuation Procedures, in determining the fair
value, from time to time, of a
specific security or other investment/asset in each
Fund for which market prices
are not readily available, it being understood that
the Sub-Adviser will not be
solely responsible for determining the value of any such
security;
(v) 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 and any permissible
reports and materials prepared by the Fund or its
agent; and
(vi) 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
16004673.9
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
he subject to, and
will perform its responsibilities in accordance with the
following: (i) the Company's Agreement
and Declaration of Trust, as the same may be hereafter modified
and/or amended from time to
time ("Declaration of Trust"); (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 SAI 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; (iv) the 1940 Act, the Advisers Act, the
Internal Revenue Code of 1986, as
amended, and the rules tinder 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
3Sa-1 under the 1940 Act (the "Compliance Manual") and other
policies and procedures adopted
from time to time by the Board 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 Declaration of Trust, 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. 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 SubAdviser'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 or the Adviser from time to time and which have been
provided to the Sub-Adviser, (ii) as
described in the applicable Fund'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.
(e) The Sub-Adviser may, in compliance with Section 28(e)
of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), participate in
bundled brokerage and
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commission sharing arrangements, and receive eligible brokerage
products and services from
participating brokers. In all such cases, the Sub-Adviser shall
(i) determine that the brokerage
product or service provides lawful and appropriate assistance
in the execution of securities
transactions, and (ii) make a good faith determination that the
amount of commissions paid is
reasonable in relation to the brokerage products or services
provided. The Sub-Adviser is not
authorized to obtain third party fundamental research materials
with client commissions and shall
not do so.
(f) 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 tinder 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 tinder such relationships.
(g) 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.
(h) The Sub-Adviser will, unless and until otherwise
directed by the Adviser
or the Board 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; 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
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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 he 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 who are not "interested
persons" (as defined in the 1940 Act, with such Board members
being "Independent Trustees").
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 0000 Xxx) 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, had 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 fhct 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
0000 Xxx) 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
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(i) any breach by the Sub-Adviser of a Sub-Adviser
representation or warranty made herein, (ii) any willful
misconduct, had 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
16004673.9
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-l(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 0000 Xxx) by the
Fund(s) and the Sub-Adviser (such policies and
procedures being the "Compliance Program"). The Sub-Adviser has
provided the Company and
the Adviser with access to its Compliance Program and promptly will
furnish a copy of all
amendments to the Compliance Program at least annually.
(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 SF,C 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 SubAdviser, which are required by the Advisers Act.
16004673.9
(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; (b) any material
breach of any of the Fund(s)' or
the Sub-Adviser's policies, guidelines or procedures (including
the Compliance Program); or (c)
any pending or threatened regulatory action, investigation,
lawsuit or other proceeding relating to
the Sub-Adviser's management of the Fund(s) and/or that could
reasonably be expected to have a
material impact on the Sub-Adviser's ability to conduct its
business. Following the occurrence
of any event set forth in this paragraph, the Sub-Adviser
agrees to cooperate with and provide
reasonable assistance to personnel of the Adviser and/or the
Company (including the Chief
Compliance Officer of the Adviser and/or the Company) or their
designees in connection with any efforts to remedy or respond
to such event.
(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 (whether
via amendments to its Form ADV
or otherwise) 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
16004673.9
pursuant to the 0000 Xxx. 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 the 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 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 0000 Xxx) of
such Fund, and (ii) in either event, 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 Schedule A by the Adviser upon sixty (60) days written
notice to the Sub-Adviser and
only after the approval by the Board of the Company, including
a majority of the Independent
Trustees, 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
0000 Xxx) of the Fund.
1 1. 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, including a majority of the
Independent Trustees, or
16004673.9
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 0000 Xxx) 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 0000 Xxx) of this Agreement will result in
automatic termination of this Agreement.
12. Independent Contractor
The Sub-Adviser will for all purposes herein he deemed to be
an independent
contractor and will, unless otherwise expressly provided herein or
authorized by the Board 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 or no-action 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 Trustees 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 0000 Xxx) of the Agreement
will result in the automatic termination of this Agreement, as
provided in Section 11 hereof. The SubAdviser 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 SubAdviser.
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.
16004673.9
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., 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxx, with a
copy to the Adviser; (b) to the
Adviser at DBX Advisors LLC, 00 Xxxx Xxxxxx, Xxx Xxxx, XX,
Attention: Xxxxxx Xxxxxxxxxxx;
(c) to the Fund at DBX ETF Trust, 00 Xxxx Xxxxxx, Xxx Xxxx, XX
00000; 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
Declaration of Trust 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
Trustees or any individual Trustee of the Company.
21. Governing Law
16004673.9
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.
[PAGE BREAK]
SCHEDULE A
As of July
24, 2015
1. Base Fee Schedule
Assets % per annum
First $5 Billion 0.055
Over $5 Billion 0.03
Minimum $50,000 per fund per annum applies at the
relationship level (i.e. number of funds times $50,000)
2. Funds managed by the Sub-Adviser
Deutsche X-trackers MSCI Emerging Markets Hedged Equity ETF Deutsche
X-trackers MSCI EAFE Hedged Equity ETF
Deutsche X-trackers MSCI Brazil Hedged Equity ETF
Deutsche X-trackers MSCI Asia Pacific ex Japan Hedged Equity ETF
Deutsche X-trackers MSCI Mexico Equity ETF
Deutsche X-trackers MSCI South Korea Hedged Equity ETF
Deutsche X-trackers MSCI Germany Hedged Equity ETF
Deutsche X-trackers MSCI Japan Hedged Equity ETF
Deutsche X-trackers MSCI Europe Hedged Equity ETF
Deutsche X-trackers MSCI United Kingdom Hedged Equity ETF
Deutsche X-trackers MSCI Eurozone Hedged Equity ETF
Deutsche X-trackers MSCI All World ex US Hedged Equity ETF
Deutsche X-trackers High Yield Corporate Bond - Interest Rate Hedged ETF
Deutsche X-trackers Investment Grade Bond - Interest Rate Hedged ETF
Deutsche X-trackers Emerging Markets Bond - Interest Rate Hedged ETF
Deutsche X-trackers Dow Xxxxx Hedged International Real Estate ETF
Deutsche X-trackers S&P Hedged Global Infrastructure ETF
Deutsche X-trackers Japan JPX-Nikkei 400 Equity ETF
Deutsche X-trackers Japan JPX-Nikkei 400 Hedged Equity ETF
Deutsche X-trackers Solactive Investment Grade Subordinated Debt ETF
Deutsche X-trackers MSCI EAFE High Dividend Yield Fledged Equity ETF
Deutsche X-trackers MSCI Emerging Markets High Dividend Yield Hedged Equity ETF
Deutsche X-trackers MSCI Eurozone High Dividend Yield Hedged Equity ETF
Deutsche X-trackers MSCI All World ex US High Dividend Yield Hedged Equity ETF
Deutsche X-trackers MSCI EAFE Small Cap Hedged Equity ETF
Deutsche X-trackers MSCI Australia Hedged Equity ETF
Deutsche X-trackers MSCI Southern Europe Hedged Equity ETF
Deutsche X-trackers MSCI Italy Hedged Equity ETF
Deutsche X-trackers MSCI Spain Hedged Equity ETF
This Schedule A supersedes any prior Schedules and the
Amending Agreement to this Agreement dated July 22, 2015.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as
of the 24th day of July 2015.
DBX Advisors LLC
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Chief Operating Officer
TDAM USA Inc.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Chief Executive Officer