EXHIBIT d(2)
INVESTMENT SUB-ADVISORY AGREEMENT
THIS INVESTMENT SUB-ADVISORY AGREEMENT ("Agreement"), made this __ day
of March, 2002 by and between Xxxxxx Advisors, LLC, a Delaware limited liability
company (the "Adviser"), and [SUB-ADVISER], a [STATE OF ORGANIZATION AND TYPE OF
ENTITY] (the "Sub-Adviser").
Adviser and Sub-Adviser agree as follows:
1. Adviser hereby engages the services of Sub-Adviser in connection with
Adviser's management of the __________ Portfolio (the "Portfolio") of MLIG
Variable Insurance Trust (the "Trust"). Pursuant to this Agreement and subject
to the oversight and supervision by Adviser and the officers and the board of
trustees of the Trust, Sub-Adviser shall manage the investment and reinvestment
of that portion of the assets of the Portfolio that the Adviser shall, from time
to time, direct.
2. Sub-Adviser hereby accepts appointment by Adviser in the foregoing
capacity and agrees, at its own expense, to render the services set forth herein
and to provide the office space, furnishings, equipment and personnel required
by it to perform such services on the terms and for the compensation provided in
this Agreement.
3. In particular, Sub-Adviser shall furnish continuously an investment
program for the Portfolio and shall determine from time to time in its
discretion the securities and other investments to be purchased or sold or
exchanged and what portions of the Portfolio shall be held in various
securities, cash or other investments. In this connection, Sub-Adviser shall
provide Adviser and the officers and trustees of the Trust with such reports and
documentation as the latter shall reasonably request regarding Sub-Adviser's
management of the Portfolio assets.
4. Sub-Adviser shall carry out its responsibilities under this Agreement in
compliance with: (a) the Portfolio's investment objective, policies and
restrictions as set forth in the Trust's current registration statement, (b)
such policies or directives as the Trust's trustees may from time to time
establish or issue and communicate to the Sub-Adviser in writing, and (c)
applicable law and related regulations. Adviser shall promptly notify
Sub-Adviser in writing of changes to (a) or (b) above and shall notify
Sub-Adviser in writing of changes to (c) above promptly after it becomes aware
of such changes.
In particular, the Sub-Adviser shall be responsible to ensure that the
Portfolio: (a) complies with the diversification requirements of Section 817(h)
of the Internal Revenue Code of 1986, as amended, (the "Code") and regulations
issued thereunder as these apply to separate accounts through which variable
life insurance contracts and variable annuity contracts are issued, and (b)
continuously qualifies as a regulated investment company under Sub-Chapter M of
the Code.
5. Sub-Adviser shall take all actions which it considers necessary to
implement the investment policies of the Portfolio as these relate to the
Portfolio, and in particular, to place all orders for the purchase or sale of
securities or other investments for the Portfolio with brokers or dealers
selected by it, and to that end, Sub-Adviser is authorized as the agent of the
Trust to give instructions to the Trust's custodian as to deliveries of
securities or other investments and payments of cash for the account of the
Portfolio. In connection with the selection of brokers or dealers and the
placing of purchase and sale orders with respect to investments of the
Portfolio, except where Adviser or the Trust instruct Sub-Adviser to place
orders with a particular broker or dealer, Sub-Adviser is directed at all times
to seek to obtain best execution and price within the policy guidelines
determined by the Trust's board of trustees and set forth in the Trust's current
registration statement.
To the extent permitted by the policy guidelines set forth in the
Trust's current registration statement, Sub-Adviser is authorized to consider,
in the selection of brokers and dealers to execute portfolio transactions, not
only the available prices and rates of brokerage commissions, but also other
relevant factors which may include, without limitation: (a) the execution
capabilities of such brokers and dealers, (b) research, custody and other
services provided by such brokers and dealers which the Sub-Adviser believes
will enhance its general portfolio management capabilities, (c) the size of the
transaction, (d) the difficulty of execution, (e) the operational facilities of
such brokers and dealers, (f) the risk to such a broker or dealer of positioning
a block of securities, and (g) the overall quality of brokerage and research
services provided by such brokers and dealers. In connection with the foregoing,
Sub-Adviser is specifically authorized to pay those brokers and dealers who
provide brokerage and research services to it a higher commission than that
charged by other brokers and dealers if the Sub-Adviser determines in good faith
that the amount of such commission is reasonable in relation to the value of
such services in terms of either the particular transaction or in terms of
Sub-Adviser's overall responsibilities with respect to the Portfolio and to any
other client accounts or portfolios which Sub-Adviser advises. The execution of
such transactions shall not be considered to represent an unlawful breach of any
duty created by this Agreement or otherwise.
In connection with the selection of brokers or dealers and the placing
of purchase and sale orders with respect to investments of the Portfolio, when
instructed to do so by either the Trust or the Adviser, Sub-Adviser agrees and
is authorized to place orders with one or more brokers or dealers identified by
the Trust or Adviser (including brokers or dealers who are affiliated persons of
the Trust or Adviser). The execution of such transactions shall not be
considered to represent an unlawful breach of any duty created by this Agreement
or otherwise.
Sub-Adviser also is authorized to aggregate purchase and sale orders for
securities held (or to be held) in the Portfolio with similar orders being made
on the same day for other client accounts or portfolios managed by Sub-Adviser.
When an order is so aggregated: (a) the actual prices applicable to the
aggregated transaction will be averaged and the Portfolio and each other account
or portfolio participating in the aggregated transaction shall be treated as
having purchased or sold its portion of the securities at such average price,
and (b) all transaction costs incurred in effecting the aggregated transaction
shall be shared on a pro-rata basis among the accounts or portfolios (including
the Portfolio) participating in the transaction. Adviser
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recognizes that in some cases this procedure may adversely affect the size of
the position obtainable for the Portfolio.
When recommending or effecting a transaction in a particular security or
investment for more than one client account or portfolio (including the
Portfolio), Sub-Adviser may allocate such recommendations or transactions among
all accounts and portfolios for whom the recommendation is made or transaction
is effected on a basis that Sub-Adviser considers equitable.
6. Sub-Adviser's services under this Agreement are not exclusive.
Sub-Adviser may provide the same or similar services to other clients. Adviser
acknowledges that, except when transactions for multiple clients are aggregated,
transactions in a specific security or other investment may not be recommended
or executed at the same time or price for all client accounts or portfolios
(including the Portfolio) for which that security or investment is recommended
or executed. This Agreement does not require Sub-Adviser to give priority to the
Portfolio over other client accounts or portfolios.
7. Sub-Adviser shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Adviser, the Trust or the Portfolio or
otherwise be deemed agents of the Adviser, the Trust or the Portfolio.
8. Sub-Adviser or an affiliated person of Sub-Adviser may act as broker for
the Portfolio in connection with the purchase or sale of securities or other
investments for the Portfolio, subject to: (a) the requirement that Sub-Adviser
seek to obtain best execution and price within the policy guidelines determined
by the Trust's board of trustees and set forth in the Trust's current
registration statement; (b) the provisions of the Investment Advisers Act of
1940, as amended (the "Advisers Act"); (c) the provisions of the Securities
Exchange Act of 1934, as amended; and (d) other applicable provisions of law.
Such brokerage services are not within the scope of the duties of Sub-Adviser
under this Agreement. Subject to the requirements of applicable law and any
procedures adopted by Trust's board of trustees, Sub-Adviser or its affiliated
persons may receive brokerage commissions, fees or other remuneration from the
Portfolio or the Trust for such services in addition to Sub-Adviser's fees for
services under this Agreement.
9. The Adviser delegates the Adviser's discretionary authority to exercise
voting rights with respect to the securities and other investments in the
Portfolio to the Sub-Adviser. The Sub-Adviser shall exercise these voting rights
unless and until the Adviser revokes this delegation. The Adviser may revoke
this delegation at any time without cause. The Sub-Adviser shall maintain and
preserve a record, in an easily-accessible place for a period of not less than
three years, of the Sub-Adviser's voting procedures, and of the Sub-Adviser's
actual votes, and shall supply this record to the Adviser, or any authorized
representative of the Adviser, upon the written request of the Adviser or the
Adviser's authorized representative, as appropriate.
10. Nothing in this Agreement shall require Sub-Adviser to take or receive
physical possession of cash, securities or other investments of the Portfolio.
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11. Sub-Adviser is registered with the U.S. Securities and Exchange
Commission under the Advisers Act. Sub-Adviser shall remain so registered
throughout the term of this Agreement and shall notify Adviser immediately if
Sub-Adviser ceases to be so registered as an investment adviser.
12. Sub-Adviser: (a) is duly organized and validly existing under the laws
of the __________________ with the power to own and possess its assets and carry
on its business as it is now being conducted, (b) has the authority to enter
into and perform the services contemplated by this Agreement, (c) is not
prohibited by the Investment Company Act of 1940, as amended, (the "1940 Act")
or the Advisers Act from performing the services contemplated by this Agreement,
(d) has met, and will continue to seek to meet for the duration of this
Agreement, 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 this Agreement, and (e) will promptly
notify Adviser of the occurrence of any event that would disqualify it from
serving as an investment adviser to an investment company pursuant to Section
9(a) of the 1940 Act.
13. Adviser: (a) is duly organized and validly existing under the laws of
the State of Delaware with the power to own and possess its assets and carry on
its business as it is now being conducted, (b) has the authority to enter into
and perform the services contemplated by this Agreement, (c) is not prohibited
by the 1940 Act or the Advisers Act from performing the services contemplated by
this Agreement, (d) has met, and will continue to seek to meet for the duration
of this Agreement, 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 this Agreement, and (e)
will promptly notify Sub-Adviser of the occurrence of any event that would
disqualify it from serving as an investment adviser to an investment company
pursuant to Section 9(a) of the 1940 Act. Adviser represents that the Trust is
(and during the term of this Agreement, will remain) registered as an open-end
management investment company under the 1940 Act and that the shares of the
Trust representing an interest in the Portfolio are (and during the term of this
Agreement will remain) registered under the Securities Act of 1933 and under any
applicable state securities laws.
14. Sub-Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide Adviser and the
Trust with a copy of that code, together with evidence of its adoption. Within
20 days of the end of each calendar quarter during which this Agreement remains
in effect, the president or a vice president of Sub-Adviser shall certify to
Adviser or the Trust that Sub-Adviser has complied with the requirements of Rule
17j-1 during the previous quarter and that there have been no violations of
Sub-Adviser's code of ethics or, if such a violation has occurred, that
appropriate action has been taken in response to such violation. Upon written
request of Adviser or the Trust, Sub-Adviser shall permit representatives of
Adviser or the Trust to examine the reports (or summaries of the reports)
required to be made to Sub-Adviser by Rule 17j-1(c)(1) and other records
evidencing enforcement of the code of ethics.
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15. For the services rendered, the facilities furnished and the expenses
assumed by Sub-Adviser, Adviser shall pay Sub-Adviser at the end of each month a
fee based on the average daily net assets of the Portfolio at the following
annual rates:
[0.__% on the first $___ million
0.__% on the next $___ million
0.__% on the next $___ million
and
0.__% on amounts in excess of $___ million]
Sub-Adviser's fee shall be accrued daily at 1/365th of the applicable annual
rate set forth above. For the purpose of accruing compensation, the net assets
of the Portfolio shall be determined in the manner and on the dates set forth in
the current prospectus of the Trust, and, on days on which the net assets are
not so determined, the net asset value computation to be used shall be as
determined on the immediately preceding day on which the net assets were
determined. In the event of termination of this Agreement, all compensation due
through the date of termination will be calculated on a pro-rated basis through
the date of termination and paid within thirty business days of the date of
termination.
During any period when the determination of net asset value is
suspended, the net asset value of the Portfolio as of the last business day
prior to such suspension shall for this purpose be deemed to be the net asset
value at the close of each succeeding business day until it is again determined.
16. Sub-Adviser hereby undertakes and agrees to maintain, in the form and
for the period required by Rule 31a-2 under the 1940 Act, all records relating
to the Portfolio's investments that are required to be maintained by the Trust
pursuant to the requirements of paragraphs (b)(5), (b)(6), (b)(7), (b)(9),
(b)(10) and (f) of Rule 31a-1 under the 1940 Act.
Sub-Adviser agrees that all books and records which it maintains for the
Portfolio or the Trust are the property of the Trust and further agrees to
surrender promptly to the Adviser or the Trust any such books, records or
information upon the Adviser's or the Trust's request (provided, however, that
Sub-Adviser may retain copies of such records). All such books and records shall
be made available, within five business days of a written request, to the
Trust's accountants or auditors during regular business hours at Sub-Adviser's
offices. Adviser and the Trust or either of their authorized representative
shall have the right to copy any records in the possession of Sub-Adviser which
pertain to the Portfolio or the Trust. Such books, records, information or
reports shall be made available to properly authorized government
representatives consistent with state and federal law and/or regulations. In the
event of the termination of this Agreement, all such books, records or other
information shall be returned to Adviser or the Trust. The Sub-Adviser agrees
that the policies and procedures established by the Sub-Adviser for managing the
Portfolio, including, but not limited to, all policies and procedures designed
to ensure compliance with federal and state regulations governing the
sub-adviser/client relationship and management and operation of the Portfolio,
shall be made available for inspection by the Adviser and the Trust or either of
their authorized representatives not less frequently than annually.
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17. Sub-Adviser agrees that it will not disclose or use any records or
confidential information obtained pursuant to this Agreement in any manner
whatsoever except as authorized in this Agreement or specifically by Adviser or
the Trust, or if such disclosure is required by federal or state regulatory
authorities.
Sub-Adviser may disclose the investment performance of the Portfolio and
the Portfolio, provided that such disclosure does not reveal the identity of the
Adviser, the Portfolio or the Trust. Sub-Adviser may, however, disclose that
Adviser, the Trust and the Portfolio are its clients, provided that such
disclosure does not reveal the investment performance or the composition of the
Portfolio.
18. In the absence of willful misfeasance, bad faith or gross negligence on
the part of Sub-Adviser or its officers, trustees or employees, or reckless
disregard by Sub-Adviser of its duties under this Agreement (together,
"disabling conduct"), Sub-Adviser shall not be liable to Adviser, the Portfolio,
the Trust or to any shareholder of the Portfolio for any act or omission in the
course of, or connected with, rendering services hereunder or for any losses
that may be sustained in the purchase, holding or sale of any security, except
to the extent otherwise provided in Section 36(b) of the 1940 Act concerning
loss resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services. Notwithstanding the foregoing, breach by the
Sub-Adviser of the second paragraph of section 4 hereof is deemed to be
disabling conduct.
19. Sub-Adviser agrees to indemnify and defend Adviser, its officers,
trustees, partners, employees and any person who controls Adviser for any loss
or expense (including attorneys' fees) arising out of any claim, demand, action,
suit or proceeding arising out of any actual or alleged material misstatement or
omission in the Trust's registration statement, any proxy statement, or
communication to current or prospective investors in the Portfolio relating to
disclosure about Sub-Adviser provided to Adviser by Sub-Adviser.
Sub-Adviser agrees to indemnify and defend Adviser, its officers,
trustees, partners, employees and any person who controls Adviser for any loss
or expense (including attorneys' fees) arising out of any claim, demand, action,
suit or proceeding arising out of the Sub-Adviser's failure to ensure that the
Portfolio: (a) complies with the diversification requirements of Section 817(h)
of the Code and regulations issued thereunder as these apply to separate
accounts through which variable life insurance contracts and variable annuity
contracts are issued, and (b) continuously qualifies as a regulated investment
company under Sub-Chapter M of the Code.
20. Adviser agrees to indemnify and defend Sub-Adviser, its officers,
trustees, partners, employees and any person who controls Adviser for any loss
or expense (including attorneys' fees) arising out of any claim, demand, action,
suit or proceeding arising out of any actual or alleged material misstatement or
omission in the Trust's registration statement, any proxy statement, or other
communication to current or prospective investors in the Portfolio (other than a
misstatement or omission relating to disclosure about Sub-Adviser approved by
the Sub-Adviser or provided to Adviser or the Trust by Sub-Adviser).
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21. The Sub-Adviser agrees to permit the Adviser and the Trust to use its
name, along side the Adviser's name, in the Portfolio's name and in descriptions
of the Portfolio, as these appear in the Trust's prospectus(es) and/or sales
literature related to the Portfolio, provided, however, that the Adviser and the
Trust shall cease such use of the Sub-Adviser's name in the event that this
Agreement is terminated.
22. This Agreement shall not become effective unless and until it is
approved by the board of trustees of the Trust, including a majority of trustees
who are not parties to this Agreement or interested persons of any such party to
this Agreement, and, to the extent required by law, a majority of the
outstanding shares of the class of the Trust's stock representing an interest in
the Portfolio. This Agreement shall come into full force and effect on the date
which it is so approved. This Agreement shall continue in effect for two years
and shall thereafter continue in effect from year to year so long as such
continuance is specifically approved at least annually by (a) the board of
trustees of the Trust, or by the vote of a majority of the outstanding shares of
the class of stock representing an interest in the Portfolio, and (b) a majority
of those trustees who are not parties to this Agreement or interested persons of
any such party cast in person at a meeting called for the purpose of voting on
such approval.
23. Notwithstanding any other provision of this Agreement, this Agreement
may be terminated at any time without the payment of any penalty, by the Trust's
board of trustees, or by vote of a majority of the outstanding shares of the
class of stock representing an interest in the Portfolio on sixty days written
notice to the Adviser and Sub-Adviser, or by the Adviser, or by the Sub-Adviser,
on sixty days written notice to the other. This Agreement shall automatically
terminate in the event of its assignment or in the event of the termination of
the investment advisory agreement between the Adviser and the Trust regarding
the Adviser's management of the Portfolio.
24. This Agreement may be amended by the parties only if such amendment is
specifically approved by (a) a majority of those trustees who are not parties to
this Agreement or interested persons of any such party cast in person at a
meeting called for the purpose of voting on such approval, and, if required by
applicable law, (b) a majority of votes attributable to the outstanding Trust
shares of the class representing an interest in the Portfolio.
25. The terms "assignment", "affiliated person" and "interested person",
when used in this Agreement, shall have the respective meanings specified in the
1940 Act. The term "majority of the outstanding shares of the class" means the
lesser of (a) 67% or more of the votes attributable to shares of such class
present at a meeting if more than 50% of the votes attributable to such shares
are present or represented by proxy or (b) more than 50% of the votes
attributable to shares of such class.
26. This Agreement shall be construed in accordance with laws of the State
of Delaware, and applicable provisions of the Advisers Act and 1940 Act.
27. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
Xxxxxx Advisors, LLC
By:
Title: President
ATTEST:
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[Sub-Adviser]
By:
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Title:
---------------------------
ATTEST:
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