INVESTMENT SUB-ADVISORY AGREEMENT
Exhibit (d)(10)
THIS INVESTMENT SUB-ADVISORY AGREEMENT (“Agreement”), made this 1st day of January, 2009 by and between Xxxxxx Advisors, LLC, a Delaware limited liability
company (the “Advisor”), and Lazard Asset Management LLC (the “Sub-Advisor”) a Delaware Limited
Liability Company (“Lazard”).
Advisor and Sub-Advisor agree as follows:
1. Advisor hereby engages the services of Sub-Advisor in connection with Advisor’s management of
the Xxxxxx/Lazard International Portfolio (the “Portfolio”) of MLIG Variable Insurance Trust (the
“Trust”). Pursuant to this Agreement and subject to the oversight and supervision by Advisor and
the officers and the board of trustees of the Trust. Sub-Advisor shall manage the investment and
reinvestment of that portion of the assets of the Portfolio that the Advisor shall, from time to
time, direct.
3. In particular, Sub-Advisor 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-Advisor shall provide Advisor and
the officers and trustees of the Trust with such reports and documentation as the latter shall
reasonably request regarding Sub-Advisor’s management of the Portfolio assets.
In particular, the Sub-Advisor shall manage the assets of the Portfolio for which it is
responsible in such a manner that the Portfolio: (a) is able to comply with the diversification
requirements of Section 817(h) of the Internal Revenue Code of 1986, (the “Code”) as amended, and
Treasury Regulation 1.817-5 issued thereunder as these apply to separate accounts through which
variable life insurance contracts and variable annuity contracts are issued, and (b) is able to
qualify as a regulated investment company under Sub-Chapter M of the Code.
Sub-Adviser shall not consult with sub-advisers of other investment portfolios of the
trust, concerning transactions in securities or other portfolio investments of the Portfolio
or of
other investment portfolios of the Trust.
To the extent permitted by the policy guidelines set forth in the Trust’s current
registration statement, Sub-Advisor 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-Advisor 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-Advisor 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-Advisor 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-Advisor’s overall responsibilities with respect to the Portfolio and to any other client
accounts or portfolios which Sub-Advisor 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 Advisor, Sub-Advisor agrees and is authorized to place orders with one or more brokers or
dealers identified by the Trust or Advisor (including brokers or dealers who are affiliated
persons of the Trust or Advisor). The execution of such transactions shall not be considered to
represent an unlawful breach of any duty created by this Agreement or otherwise.
Sub-Advisor also is authorized, but is not required 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-Advisor. 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. Advisor 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-Advisor may allocate such
recommendations or transactions among all or a portion of accounts and portfolios for whom the
recommendation is made or transaction is effected on a basis that Sub-Advisor considers equitable
over time.
9. The Advisor delegates the Advisor’s discretionary authority to exercise voting rights with
respect to the securities and other investments in the Portfolio to the Sub-Advisor. The
Sub-Advisor shall exercise these voting rights unless and until the Advisor revokes this
delegation. The Advisor may revoke this delegation at any time without cause. The Sub-Advisor
shall maintain and preserve a record, in an easily-accessible place for a period of not less than
three years, of the Sub-Advisor’s voting procedures, and of the Sub-Advisor’s actual votes, and
shall supply this record to the Advisor, or any authorized representative of the Advisor, upon the
written request of the Advisor or the Advisor’s authorized representative, as appropriate.
10. Nothing in this Agreement shall require Sub-Advisor to take or receive physical possession of
cash, securities or other investments of the Portfolio.
12. Sub-Advisor and/or Lazard, as applicable: (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 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 contemplated by this Agreement, and (e) will promptly notify Advisor of the occurrence of
any event that would disqualify it from serving as an investment advisor to an investment company
pursuant to Section 9(a) of the 1940 Act.
13. Advisor: (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 contemplated by this Agreement, and (e) will promptly notify Sub-Advisor of the
occurrence of any event that would disqualify it from serving as an investment advisor to an
investment company pursuant to Section 9(a) of the 1940 Act. Advisor 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 interests 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-Advisor has adopted a written code of ethics complying with the requirements of Rule 17j-1
under the 1940 Act and will provide Advisor and the Trust with a copy of that code, together with
evidence that it is currently in effect. 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-Advisor shall
certify to Advisor or the Trust that Sub-Advisor has complied with the requirements of Rule 17j-1
during the previous quarter and that there have been no material violations of Sub-Advisor’s code
of ethics or, if such a material violation has occurred, that appropriate action has been taken in
response to such violation. Upon written request of Advisor or the Trust, Sub-Advisor shall permit
representatives of Advisor or the Trust to examine the reports (or summaries of the reports)
reasonably relevant to the Portfolio required to be made to Sub-Advisor by Rule 17j-1(d)(1) and
other records evidencing enforcement of the code of ethics.
15. For the services rendered, the facilities furnished and the expenses assumed by Sub-Advisor,
Advisor shall pay Sub-Advisor at the end of each month a fee based on the average daily net assets
of the Portfolio at the following annual rates:
0.45% on the first $200 million
0.40% on the next $200 million
and
0.35% on amounts in excess of $400 million
0.40% on the next $200 million
and
0.35% on amounts in excess of $400 million
Sub-Advisor’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.
Sub-Advisor 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 Advisor or the
Trust any such books, records or information upon the Advisor’s or the Trust’s request (provided,
however, that Sub-Advisor 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-Advisor’s offices. Advisor and the Trust or either
of their authorized representative shall have the right to copy any records in the possession of
Sub-Advisor 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 Advisor or the Trust. The
Sub-Advisor agrees that the policies and procedures established by the Sub-Advisor 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-advisor/client relationship and
management and operation of the Portfolio, shall be made available for inspection by the Advisor
and the Trust or either of their authorized representatives not less frequently than annually.
17. Sub-Advisor 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 Advisor or the Trust, or if such disclosure is required by federal or state
regulatory authorities.
Sub-Advisor may disclose the investment performance of the Portfolio, provided that such
disclosure does not reveal the identity of the Advisor, the Portfolio or the Trust. Sub-Advisor
may, however, disclose that Advisor, 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-Advisor or its officers, trustees or employees, or reckless disregard by Sub-Advisor of its
duties under this Agreement (together, “disabling conduct”), Sub-Advisor shall not be liable to
Advisor, 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 by the Sub-Adviser with respect to the receipt of compensation to the Sub-Adviser for
services. Notwithstanding the foregoing, breach by the Sub-Advisor of the second paragraph of
section 4 hereof is deemed to be disabling conduct.
Sub-Advisor agrees to indemnify and defend Advisor, its officers, trustees, partners,
employees and any person who controls Advisor for any loss or expense (including attorneys’ fees)
arising out of any claim, demand, action, suit or proceeding arising out of the Sub-Advisor’s
failure to ensure that the Portfolio’s assets for which the Sub-Advisor is responsible have been
managed: (a) so that it is able to comply with the diversification requirements of Section 817(h)
of the Code and Treasury Regulation 1.817-5 issued thereunder as these apply to separate accounts
through which variable life insurance contracts and variable annuity contracts are issued, and (b)
so that it is able to qualify as a regulated investment company under Sub-Chapter M of the Code.
20. Advisor agrees to indemnify and defend Sub-Advisor, its officers, trustees, partners, members,
employees and any person who controls Sub-Advisor 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-Advisor approved
by the Sub-Advisor or provided to Advisor or the Trust by Sub-Advisor in writing).
21. The Sub-Advisor agrees to permit the Advisor and the Trust to use its name, along side the
Advisor’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 and only with prior
written approval of the Sub-Advisor, provided, however, that the Advisor and the Trust shall cease
such use of the Sub-Advisor’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, the
vote of 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 Advisor and Sub-Advisor, or by the Advisor, or by the
Sub-Advisor, 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 Advisor and the Trust regarding the Advisor’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.
| Xxxxxx Advisors, LLC | ||||||||
| By: | /s/ Xxxx Xxxxxxx
|
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| Name: | Xxxx Xxxxxxx | |||||||
| Title: | President | |||||||
ATTEST: |
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| Lazard Asset Management LLC | ||||||||
| By: Name: |
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
|
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| Title: | Deputy Chairman | |||||||
ATTEST: |
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