5
MANAGEMENT AGREEMENT
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 III, Inc. (the "Corporation") and Xxxx Xxxxx Partners
Fund Advisor, LLC, a Delaware limited liability company (the
"Manager").
WHEREAS, the Corporation 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 Corporation wishes to retain the Manager to
provide investment advisory, management, and administrative
services to the Corporation with respect to the series of the
Corporation 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 Corporation 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 Corporation's
Board of Directors (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 Corporation's Articles of Incorporation 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 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 Corporation 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.
(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 Corporation 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 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
Corporation or Fund shall receive from the Corporation 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 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 Corporation 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 Corporation 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
Corporation'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 Corporation. This
Agreement shall terminate automatically in the event of its
assignment by the Manager and shall not be assignable by the
Corporation without the consent of the Manager.
13. The Manager agrees that for services rendered to the Fund,
or for any claim by it in 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 Corporation.
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]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers thereunto duly
authorized.
XXXX XXXXX PARTNERS VARIABLE
PORTFOLIOS III, INC.
By:
Name:
Title:
XXXX XXXXX PARTNERS FUND ADVISOR,
LLC
By:
Name:
Title:
Schedule A
Xxxx Xxxxx Partners Variable Large Cap Value Portfolio
Date:
August 1, 2006
Fee:
The following percentage of the Fund's average daily net assets:
0.60%
