MANAGEMENT AGREEMENT Legg Mason Partners Fund Advisor, LLC
Exhibit (d)(1)
MANAGEMENT AGREEMENT
Xxxx Xxxxx Partners Fund Advisor, LLC
Xxxx Xxxxx Partners Fund Advisor, LLC
This MANAGEMENT AGREEMENT (“Agreement”) is made this 1st day of August, 2006, by and between
Xxxx Xxxxx Partners Variable Portfolios II (the “Trust”) and Xxxx Xxxxx Partners Fund Advisor, LLC,
a Delaware limited liability company (the “Manager”).
WHEREAS, the Trust is registered as a management investment company under the Investment
Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the Manager is engaged primarily in rendering investment advisory, management and
administrative services and is registered as an investment adviser under the Investment Advisers
Act of 1940, as amended;
WHEREAS, the Trust wishes to retain the Manager to provide investment advisory, management,
and administrative services to the Trust with respect to the series of the Trust designated in
Schedule A annexed hereto (the “Fund”); and
WHEREAS, the Manager is willing to furnish such services on the terms and conditions
hereinafter set forth;
NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, it is
agreed as follows:
1. The Trust hereby appoints the Manager to act as investment adviser and administrator of the
Fund for the period and on the terms set forth in this Agreement. The Manager accepts such
appointment and agrees to render the services herein set forth, for the compensation herein
provided.
2. The Fund shall at all times keep the Manager fully informed with regard to the securities
owned by it, its funds available, or to become available, for investment, and generally as to the
condition of its affairs. It shall furnish the Manager with such other documents and information
with regard to its affairs as the Manager may from time to time reasonably request.
3. (a) Subject to the supervision of the Trust’s Board of Trustees (the “Board”), the Manager
shall regularly provide the Fund with investment research, advice, management and supervision and
shall furnish a continuous investment program for the Fund’s portfolio of securities and other
investments consistent with the Fund’s investment objectives, policies and restrictions, as stated
in the Fund’s current Prospectus and Statement of Additional Information. The Manager shall
determine from time to time what securities and other investments will be purchased, retained, sold
or exchanged by the Fund and what portion of the assets of the Fund’s portfolio will be held in the
various securities and other investments in which the Fund invests, and shall implement those
decisions, all subject to the provisions of the Trust’s Declaration of Trust and By-Laws
(collectively, the “Governing Documents”), the 1940 Act, and the applicable rules and regulations
promulgated thereunder by the Securities and Exchange Commission (the “SEC”) and interpretive
guidance issued thereunder by the SEC staff and any other applicable
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federal and state law, as well as the investment objectives, policies and restrictions of the Fund
referred to above, and any other specific policies adopted by the Board and disclosed to the
Manager. The Manager is authorized as the agent of the Trust to give instructions to the custodian
of the Fund as to deliveries of securities and other investments and payments of cash for the
account of the Fund. Subject to applicable provisions of the 1940 Act and direction from the
Board, the investment program to be provided hereunder may entail the investment of all or
substantially all of the assets of a Fund in one or more investment companies. The Manager will
place orders pursuant to its investment determinations for the Fund either directly with the issuer
or with any broker or dealer, foreign currency dealer, futures commission merchant or others
selected by it. In connection with the selection of such brokers or dealers and the placing of
such orders, subject to applicable law, brokers or dealers may be selected who also provide
brokerage and research services (as those terms are defined in Section 28(e) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) to the Funds and/or the other accounts over
which the Manager or its affiliates exercise investment discretion. The Manager is authorized to
pay a broker or dealer who provides such brokerage and research services a commission for executing
a portfolio transaction for a Fund which is in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Manager determines in good faith
that such amount of commission is reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer. This determination may be viewed in terms of either
that particular transaction or the overall responsibilities which the Manager and its affiliates
have with respect to accounts over which they exercise investment discretion. The Board may adopt
policies and procedures that modify and restrict the Manager’s authority regarding the execution of
the Fund’s portfolio transactions provided herein. The Manager shall also provide advice and
recommendations with respect to other aspects of the business and affairs of the Fund, shall
exercise voting rights, rights to consent to corporate action and any other rights pertaining to a
Fund’s portfolio securities subject to such direction as the Board may provide, and shall perform
such other functions of investment management and supervision as may be directed by the Board.
(b) Subject to the direction and control of the Board, the Manager shall perform such
administrative and management services as may from time to time be reasonably requested by the Fund
as necessary for the operation of the Fund, such as (i) supervising the overall administration of
the Fund, including negotiation of contracts and fees with and the monitoring of performance and
xxxxxxxx of the Fund’s transfer agent, shareholder servicing agents, custodian and other
independent contractors or agents, (ii) providing certain compliance, fund accounting, regulatory
reporting, and tax reporting services, (iii) preparing or participating in the preparation of Board
materials, registration statements, proxy statements and reports and other communications to
shareholders, (iv) maintaining the Fund’s existence, and (v) during such times as shares are
publicly offered, maintaining the registration and qualification of the Fund’s shares under federal
and state laws. Notwithstanding the foregoing, the Manager shall not be deemed to have assumed any
duties with respect to, and shall not be responsible for, the distribution of the shares of any
Fund, nor shall the Manager be deemed to have assumed or have any responsibility with respect to
functions specifically assumed by any transfer agent, fund accounting agent, custodian, shareholder
servicing agent or other agent, in each case employed by the Fund to perform such functions.
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(c) The Fund hereby authorizes any entity or person associated with the Manager which is a
member of a national securities exchange to effect any transaction on the exchange for the account
of the Fund which is permitted by Section 11(a) of the Exchange Act and Rule 11a2-2(T) thereunder,
and the Fund hereby consents to the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(a)(2)(iv). Notwithstanding the foregoing, the Manager agrees that it will not
deal with itself, or with members of the Board or any principal underwriter of the Fund, as
principals or agents in making purchases or sales of securities or other property for the account
of the Fund, nor will it purchase any securities from an underwriting or selling group in which the
Manager or its affiliates is participating, or arrange for purchases and sales of securities
between a Fund and another account advised by the Manager or its affiliates, except in each case as
permitted by the 1940 Act and in accordance with such policies and procedures as may be adopted by
a Fund from time to time, and will comply with all other provisions of the Governing Documents and
the Fund’s then-current Prospectus and Statement of Additional Information relative to the Manager
and its directors and officers.
4. Subject to the Board’s approval, the Manager or the Fund may enter into contracts with one
or more investment subadvisers or subadministrators, including without limitation, affiliates of
the Manager, in which the Manager delegates to such investment subadvisers or subadministrators any
or all its duties specified hereunder, on such terms as the Manager will determine to be necessary,
desirable or appropriate, provided that in each case the Manager shall supervise the activities of
each such subadviser or subadministrator and further provided that such contracts impose on any
investment subadviser or subadministrator bound thereby all the conditions to which the Manager is
subject hereunder and that such contracts are entered into in accordance with and meet all
applicable requirements of the 1940 Act.
5. (a) The Manager, at its expense, shall supply the Board and officers of the Trust with all
information and reports reasonably required by them and reasonably available to the Manager and
shall furnish the Fund with office facilities, including space, furniture and equipment and all
personnel reasonably necessary for the operation of the Fund. The Manager shall oversee the
maintenance of all books and records with respect to the Fund’s securities transactions and the
keeping of the Fund’s books of account in accordance with all applicable federal and state laws and
regulations. In compliance with the requirements of Rule 31a-3 under the 1940 Act, the Manager
hereby agrees that any records that it maintains for the Fund are the property of the Fund, and
further agrees to surrender promptly to the Fund any of such records upon the Fund’s request. The
Manager further agrees to arrange for the preservation of the records required to be maintained
by Rule 31a-1 under the 1940 Act for the periods prescribed by Rule 31a-2 under the 1940 Act.
The Manager shall authorize and permit any of its directors, officers and employees, who may be
elected as Board members or officers of the Fund, to serve in the capacities in which they are
elected.
(b) The Manager shall bear all expenses, and shall furnish all necessary services, facilities
and personnel, in connection with its responsibilities under this Agreement. Other than as herein
specifically indicated, the Manager shall not be responsible for the Fund’s expenses, including,
without limitation, advisory fees; distribution fees; interest; taxes; governmental fees; voluntary
assessments and other expenses incurred in connection with membership in investment company
organizations; organization costs of the Fund; the cost (including brokerage commissions,
transaction fees or charges, if any) in connection with the purchase or sale of the
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Fund’s securities and other investments and any losses in connection therewith; fees and expenses
of custodians, transfer agents, registrars, independent pricing vendors or other agents; legal
expenses; loan commitment fees; expenses relating to share certificates; expenses relating to the
issuing and redemption or repurchase of the Fund’s shares and servicing shareholder accounts;
expenses of registering and qualifying the Fund’s shares for sale under applicable federal and
state law; expenses of preparing, setting in print, printing and distributing prospectuses and
statements of additional information and any supplements thereto, reports, proxy statements,
notices and dividends to the Fund’s shareholders; costs of stationery; website costs; costs of
meetings of the Board or any committee thereof, meetings of shareholders and other meetings of the
Fund; Board fees; audit fees; travel expenses of officers, members of the Board and employees of
the Fund, if any; and the Fund’s pro rata portion of premiums on any fidelity bond and other
insurance covering the Fund and its officers, Board members and employees; litigation expenses and
any non-recurring or extraordinary expenses as may arise, including, without limitation, those
relating to actions, suits or proceedings to which the Fund is a party and the legal obligation
which the Fund may have to indemnify the Fund’s Board members and officers with respect thereto.
6. No member of the Board, officer or employee of the Trust or Fund shall receive from the
Trust or Fund any salary or other compensation as such member of the Board, officer or employee
while he is at the same time a director, officer, or employee of the Manager or any affiliated
company of the Manager, except as the Board may decide. This paragraph shall not apply to Board
members, executive committee members, consultants and other persons who are not regular members of
the Manager’s or any affiliated company’s staff.
7. As compensation for the services performed and the facilities furnished and expenses
assumed by the Manager, including the services of any consultants retained by the Manager, the Fund
shall pay the Manager, as promptly as possible after the last day of each month, a fee, computed
daily at an annual rate set forth opposite the Fund’s name on Schedule A annexed hereto, provided
however, that if the Fund invests all or substantially all of its assets in another registered
investment company for which the Manager or an affiliate of the Manager serves as investment
adviser or investment manager, the annual fee computed as set forth on such Schedule A shall be
reduced by the aggregate management fees allocated to that Fund for the Fund’s then-current fiscal
year from such other registered investment company. The first payment of the fee shall be made as
promptly as possible at the end of the month succeeding the effective date of this Agreement, and
shall constitute a full payment of the fee due the Manager for all services prior to that date. If
this Agreement is terminated as of any date not the last day of a month, such fee shall be paid as
promptly as possible after such date of termination, shall be based on the average daily net assets
of the Fund in that period from the beginning of such month to such date of termination, and shall
be that proportion of such average daily net assets as the number of business days in such period
bears to the number of business days in such month. The average daily net assets of the Fund shall
in all cases be based only on business days and be computed as of the time of the regular close of
business of the New York Stock Exchange, or such other time as may be determined by the Board.
8. The Manager assumes no responsibility under this Agreement other than to render the
services called for hereunder, in good faith, and shall not be liable for any error of judgment or
mistake of law, or for any loss arising out of any investment or for any act or omission in the
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execution of securities transactions for a Fund, provided that nothing in this Agreement shall
protect the Manager against any liability to the Fund to which the Manager would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties hereunder. As used in
this Section 8, the term “Manager” shall include any affiliates of the Manager performing services
for the Trust or the Fund contemplated hereby and the partners, shareholders, directors, officers
and employees of the Manager and such affiliates.
9. Nothing in this Agreement shall limit or restrict the right of any director, officer, or
employee of the Manager who may also be a Board member, officer, or employee of the Trust or the
Fund, to engage in any other business or to devote his time and attention in part to the management
or other aspects of any other business, whether of a similar nature or a dissimilar nature, nor to
limit or restrict the right of the Manager to engage in any other business or to render services of
any kind, including investment advisory and management services, to any other fund, firm,
individual or association. If the purchase or sale of securities consistent with the investment
policies of a Fund or one or more other accounts of the Manager is considered at or about the same
time, transactions in such securities will be allocated among the accounts in a manner deemed
equitable by the Manager. Such transactions may be combined, in accordance with applicable laws
and regulations, and consistent with the Manager’s policies and procedures as presented to the
Board from time to time.
10. For the purposes of this Agreement, the Fund’s “net assets” shall be determined as
provided in the Fund’s then-current Prospectus and Statement of Additional Information and the
terms “assignment,” “interested person,” and “majority of the outstanding voting securities” shall
have the meanings given to them by Section 2(a) of the 1940 Act, subject to such exemptions as may
be granted by the SEC by any rule, regulation or order.
11. This Agreement will become effective with respect to the Fund on the date set forth
opposite the Fund’s name on Schedule A annexed hereto, provided that it shall have been approved by
the Trust’s Board and by the shareholders of the Fund in accordance with the requirements of the
1940 Act and, unless sooner terminated as provided herein, will continue in effect until November
30, 2007. Thereafter, if not terminated, this Agreement shall continue in effect with respect to
the Fund, so long as such continuance is specifically approved at least annually (i) by the Board
or (ii) by a vote of a majority of the outstanding voting securities of the Fund, provided that in
either event the continuance is also approved by a majority of the Board members who are not
interested persons of any party to this Agreement, by vote cast in person at a meeting called for
the purpose of voting on such approval.
12. This Agreement is terminable with respect to the Fund without penalty by the Board or by
vote of a majority of the outstanding voting securities of the Fund, in each case on not more than
60 days’ nor less than 30 days’ written notice to the Manager, or by the Manager upon not less than
90 days’ written notice to the Fund, and will be terminated upon the mutual written consent of the
Manager and the Trust. This Agreement shall terminate automatically in the event of its assignment
by the Manager and shall not be assignable by the Trust without the consent of the Manager.
13. The Manager agrees that for services rendered to the Fund, or for any claim by it in
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connection with services rendered to the Fund, it shall look only to assets of the Fund for
satisfaction and that it shall have no claim against the assets of any other portfolios of the
Trust. The undersigned officer of the Trust has executed this Agreement not individually, but as
an officer under the Trust’s Declaration of Trust and the obligations of this Agreement are not
binding upon any of the Trustees, officers or shareholders of the Trust individually.
14. No provision of this Agreement may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought, and no material amendment of the Agreement shall be
effective until approved, if so required by the 1940 Act, by vote of the holders of a majority of
the Fund’s outstanding voting securities.
15. This Agreement embodies the entire agreement and understanding between the parties hereto,
and supersedes all prior agreements and understandings relating to the subject matter hereof.
Should any part of this Agreement be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby. This Agreement shall be
binding on and shall inure to the benefit of the parties hereto and their respective successors.
16. This Agreement shall be construed and the provisions thereof interpreted under and in
accordance with the laws of the State of New York.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
officers thereunto duly authorized.
| XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS II |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXX XXXXX PARTNERS FUND ADVISOR, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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Schedule A
Xxxx Xxxxx Partners Variable Appreciation Portfolio
Date:
August 1, 2006
Fee:
The following percentage of the Fund’s average daily net assets:
First $250 million—0.75%
Next $250 million—0.70%
Next $500 million—0.65%
Next $1 billion—0.60%
Next $1 billion—0.55%
Over $3 billion—0.50%
Next $250 million—0.70%
Next $500 million—0.65%
Next $1 billion—0.60%
Next $1 billion—0.55%
Over $3 billion—0.50%
