FRANKLIN TEMPLETON RULE 12d1-4 FUND OF FUNDS INVESTMENT AGREEMENT
FRANKLIN XXXXXXXXX
RULE 12d1-4
THIS AGREEMENT, dated as of January 13, 2022, is made among the Acquiring Funds, severally and not jointly (each, an “Acquiring Fund”), and the Acquired Funds, severally and not jointly (each, an “Acquired Fund” and together with the Acquiring Funds, the “Funds”),
in each case as listed on Schedule A, as amended from time to time. This Agreement shall be effective as of January 18, 2022.
WHEREAS, each Fund is registered with the U.S. Securities and Exchange Commission (“SEC”) as an
investment company under the Investment Company Act of 1940, as amended, (the “1940 Act”);
WHEREAS, the Acquiring Funds are offered only to variable annuity and variable life insurance separate accounts established by insurance
companies to fund variable annuity contracts and variable life insurance policies and to qualified retirement and pension plans not affiliated with Xxxx Xxxxx Partners Fund Advisor, LLC, the Acquiring Funds’ investment adviser; and
WHEREAS, Section 12(d)(1)(A) of the 1940 Act limits the extent to which a registered investment company may invest in shares of other registered investment companies and
Section 12(d)(1)(B) limits the extent to which a registered investment company, its principal underwriter (“Distributor”) or registered brokers or dealers (“Brokers”) may
knowingly sell shares of such registered investment company to other investment companies;
WHEREAS, Rule 12d1-4 under the 1940 Act (the “Rule”) permits (i) registered investment companies, such as the Acquiring Funds, to
invest in shares of other registered investment companies, such as the Acquired Funds, in excess of the limits of Section 12(d)(1)(A) of the 1940 Act, and (ii) registered investment companies, such as the Acquired Funds, as well as the Distributor
and Brokers, knowingly to sell shares of the Acquired Funds to the Acquiring Funds in excess of the limits of Section 12(d)(1)(B) of the 1940 Act, subject to compliance with the conditions of the Rule;
WHEREAS, an Acquiring Fund may, from time to time, invest in shares of one or more Acquired Funds in excess of the limitations of Section 12(d)(1)(A), as applicable, in
reliance on the Rule;
WHEREAS, an Acquired Fund, Distributor, or Broker, from time to time, may knowingly sell Shares of one or more Acquired Funds to an Acquiring Fund in excess of the
limitations of Section 12(d)(1)(B) in reliance on the Rule; and
WHEREAS, to date such investments have been governed by a Participation Agreement dated as of April 2, 2020 by and among the parties (the “Participation
Agreement”) and made in reliance on SEC exemptive relief that will be rescinded one year from the effective date of the Rule;
NOW THEREFORE, in accordance with the Rule, the Acquiring Funds and the Acquired
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Funds desire to set forth the following terms pursuant to which the Acquiring Funds may invest in the Acquired Funds in reliance on the Rule and the Acquired Funds,
Distributor, or Broker may sell shares of the Acquired Funds to the Acquiring Funds in reliance on the Rule.
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1.
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Terms of Investment
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(a) In order to help reasonably address the risk of undue influence on an Acquired Fund that operates as a mutual fund (“Acquired
Mutual Fund”) by an Acquiring Fund, and to assist the Acquired Mutual Fund’s investment adviser with making the required findings under the Rule, each Acquiring Fund and each Acquired Mutual Fund agree as follows:
(i) In-kind redemptions. The Acquiring Fund acknowledges and agrees that, if and to the extent consistent with
the Acquired Mutual Fund’s registration statement, as amended from time to time, the Acquired Mutual Fund in its sole discretion may honor any redemption request partially or wholly in-kind. In the event that the Acquired Mutual Fund honors a
redemption request partially or wholly in-kind, the Acquired Mutual Fund shall have sole discretion to determine the selection of its portfolio securities to distribute in-kind.
(ii) Timing/advance notice of redemptions. The Acquiring Fund will use reasonable efforts to spread large
redemption requests over multiple days or to provide advance notification of redemption requests to the Acquired Mutual Fund(s) whenever practicable and consistent with the Acquiring Fund’s best interests. The Acquired Mutual Fund acknowledges and
agrees that any notification provided pursuant to the foregoing is not a commitment to redeem and constitutes an estimate that may differ materially from the amount, timing and manner in which a redemption request is submitted, if any.
(iii) Scale of investment. Upon a reasonable request by an Acquired Mutual Fund, the Acquiring Fund will
provide summary information regarding the anticipated timeline of its investment in the Acquired Mutual Fund and the scale of its contemplated investments in the Acquired Mutual Fund.
(b) In order to assist the Acquiring Fund’s investment adviser with evaluating the complexity of the structure and fees and expenses associated with an
investment in an Acquired Fund, each Acquired Fund shall provide each Acquiring Fund with information on the fees and expenses of the Acquired Fund and such other information relating to the Acquired Fund as may be reasonably requested by the
Acquiring Fund to facilitate compliance with the Rule. In accordance with the foregoing and in recognition of each Acquired Fund’s obligations regarding disclosure of material nonpublic information under applicable laws, rules and regulations,
including without limitation Regulation FD, each Acquiring Fund and Acquired Fund agree that the information on fees and expenses of each Acquired Fund shall be provided through delivery or access to publicly available documents.
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(c) An Acquiring Fund shall provide an Acquired Fund with information regarding the amount of the Acquiring Fund’s investments in the Acquired Fund, and information regarding
affiliates of the Acquiring Fund, upon the Acquired Fund’s reasonable request.
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2.
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Representations of the Acquired Funds.
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(a) In connection with any investment by an Acquiring Fund in an Acquired Fund in excess of the limitations in Section 12(d)(1)(A) or knowing sale of
shares by an Acquired Fund, Distributor, or Broker to an Acquiring Fund in excess of the limitations in Section 12(d)(1)(B), the Acquired Fund agrees to: (i) comply with all conditions of the Rule, as interpreted or modified by the SEC or its Staff
from time to time, applicable to the Acquired Funds; (ii) comply with its obligations under this Agreement; and (iii) promptly notify the Acquiring Fund if such Acquired Fund fails to comply with the Rule with respect to an investment by
the Acquiring Fund, as interpreted or modified by the SEC or its Staff from time to time, or fails to comply with this Agreement.
(b) Each Acquired Fund represents that it does not own as of the date of this Agreement, and it will not purchase or
otherwise acquire during the term of this Agreement, the securities of an investment company or private fund as defined in the Rule (a “Private Fund”) where immediately after such purchase or acquisition, the
securities of investment companies and Private Funds owned by the Acquired Fund have an aggregate value in excess of 10% of the value of the total assets of the Acquired Fund except as otherwise permitted by the Rule and guidance issued thereunder by
the SEC or its Staff, or relevant SEC exemptive relief.
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3.
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Representations of the Acquiring Funds.
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(a) In connection with any investment by an Acquiring Fund in an Acquired Fund in excess of the limitations in Section 12(d)(1)(A) or
knowing sale of Shares by an Acquired Fund, Distributor, or Broker to an Acquiring Fund in excess of the limitations in Section 12(d)(1)(B), the Acquiring Fund agrees to: (i) comply with all conditions of the Rule, as interpreted or modified by the
SEC or its Staff from time to time, applicable to the Acquiring Funds; (ii) comply with its obligations under this Agreement; and (iii) promptly notify the Acquired Fund if such Acquiring Fund fails to comply with the Rule with respect to its
investment in such Acquired Fund, as interpreted or modified by the SEC or its Staff from time to time, or fails to comply with this Agreement.
(b) An Acquiring Fund shall promptly notify an Acquired Fund:
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i.
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of any purchase or acquisition of shares in an Acquired Fund that causes such Acquiring Fund to hold 3% or more of such Acquired Fund’s total outstanding voting securities;
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| ii. |
of any purchase or acquisition of shares in an Acquired Fund that causes such Acquiring Fund to hold 5% or more of such Acquired Fund’s total outstanding voting securities; |
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| iii. |
where an Acquiring Fund and its Advisory Group (as defined in the Rule), individually or in the aggregate, hold more than 25% of such Acquired Fund’s total outstanding voting securities; and | |
| iv. |
if at any time an Acquiring Fund no longer holds voting securities of an Acquired Fund in excess of an amount noted in (i), (ii), or (iii) above. |
(c) Notwithstanding anything herein to the contrary, any Acquiring Fund that has an “affiliated person” (as defined under the 0000 Xxx) that is: (i) a broker-dealer, (ii) a broker-dealer or bank that
borrows as part of a securities lending program, or (iii) a futures commission merchant or a swap dealer, will: (a) not make an investment in an Acquired Fund that causes such Acquiring Fund to hold 5% or more of such Acquired Fund’s total
outstanding voting securities without prior approval from the Acquired Fund, and (b) notify the Acquired Fund if any investment by the Acquiring Fund that complied with (a) at the time of purchase no longer complies.
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4.
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Indemnification.
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(a) Each Acquiring Fund agrees to hold harmless and indemnify each Acquired Fund, including any of its principals, directors or trustees, officers, employees and agents, against and
from any and all losses, expenses or liabilities incurred by or claims or actions (“Claims”) asserted against the Acquired Fund, including any of their principals, directors or trustees, officers, employees and agents, to the extent such Claims
result from a violation or alleged violation by such Acquiring Fund of any provision of this Agreement, such indemnification to include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Claims;
provided that no Acquiring Fund shall be liable for indemnifying any Acquired Fund for any Claims resulting from violations that occur directly as a result of incomplete or inaccurate information provided by the Acquired Fund to such Acquiring Fund
pursuant to terms and conditions of this Agreement.
(b) Each Acquired Fund agrees to hold harmless and indemnify an Acquiring Fund, including any of its principals, directors or trustees, officers, employees and agents, against and
from any and all losses, expenses or liabilities incurred by or Claims asserted against the Acquiring Fund, including any of their principals, directors or trustees, officers, employees and agents, to the extent such Claims result from a violation or
alleged violation by such Acquired Fund of any provision of this Agreement, such indemnification to include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Claims; provided that no Acquired
Fund shall be liable for indemnifying any Acquiring Fund for any Claims resulting from violations that occur directly as a result of incomplete or inaccurate information provided by the Acquiring Fund to such Acquired Fund pursuant to terms and
conditions of this Agreement.
(c) No party to this Agreement shall be liable with respect to any special or consequential damages or any losses, claims, damages, or liabilities resulting from any act or failure
to act in accordance with the provisions of this Agreement.
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5.
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Notices. |
All notices, including all information that either party is required to provide under the terms of this Agreement and the Rule, shall be in writing and shall be delivered by registered or overnight mail, facsimile, or
electronic mail to the address for each party specified below.
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If to the Acquiring Fund:
Xxxxx Xxxxxxx
Vice President Investment Compliance
Franklin Xxxxxxxxx
Xxx Xxxxxxxx Xxxxxxx
Xxxxxxxx 000, 0xx Xxxxx
Xxx Xxxxx, XX 00000
E-mail: Rule12d1-
0XxxxxxxxxxXxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
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If to the Acquired Fund:
Xxxxxxxxx Xxxxxx - Mutual Funds
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Email: XX_Xxxx_xx_Xxxxx@xx.xxx
With a copy to:
Xxxxxxxxx Xxxxxx - General Counsel,
Mutual Funds
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
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6.
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Term and Termination; Assignment; Amendment |
(a) This Agreement shall be effective for the duration of the Acquired Funds’ and the Acquiring Funds’ reliance on the Rule, as interpreted or modified by the SEC or its Staff from time to time. While the
terms of the Agreement shall only be applicable to investments in Funds made in reliance on the Rule, as interpreted or modified by the SEC or its Staff from time to time, the Agreement shall continue in effect until terminated pursuant to Section
6(b).
(b) This Agreement shall continue until terminated in writing by either party upon 60 days’ written notice to the other party; provided, however, that the provisions of Section 4 shall survive termination
of this Agreement. Upon termination of this Agreement, the Acquiring Fund may not purchase additional shares of the Acquired Fund beyond the Section 12(d)(1)(A) limits in reliance on the Rule.
(c) This Agreement may not be assigned by either party without the prior written consent of the other. In the event either party assigns this Agreement to a third party as provided in this Section, such
permitted third party shall be bound by the terms and conditions of this Agreement applicable to the assigning party.
(d) This Agreement may be amended, including for the purpose of adding Acquiring Funds and Acquired Funds to Schedule A, only by a writing that is signed by each affected party.
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7.
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Additional Provisions |
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(a) The parties hereby mutually agree to terminate the Participation Agreement as of the date hereof and waive any provision of the Participation Agreement requiring advance notice of termination thereof. This
Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations.
(b) This Agreement will be governed by the laws of the State of Delaware without regard to its choice of law principles.
(c) In no event and under no circumstances will any party to this Agreement be liable to any person, including without limitation any other party to this Agreement, for any special, indirect or consequential loss or
damages resulting from any act or failure to act in accordance with the provision of this Agreement, even if such party had been advised of the possibility of such loss or damages.
(d) In any action arising under this Agreement, each Acquiring Fund and each Acquired Fund agrees to look solely to the particular Acquired Funds or Acquiring Funds, as applicable, involved in the matter in
controversy and not to any other Fund.
(e) The parties are hereby put on notice that no director/trustee, officer, employee, agent, employee or shareholder of the Funds shall have any personal liability under this Agreement, and that this Agreement is
binding only upon the assets and property of the applicable Funds.
(f) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. An electronic copy of a signature
received in Portable Document Format (PDF) or a copy of a signature received via a fax machine shall be deemed to be of the same force and effect as an original signature on an original executed document.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
[Signature page to follow.]
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| Acquiring Funds | |||
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| By: |
Xxxx Xxxxx Partners Fund Advisor, LLC, | ||
| On behalf of each of the Acquiring Funds | |||
| By: |
/s/ Xxxx X. Trust |
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| Name: |
Xxxx X. Trust | ||
| Title: |
President |
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| Acquired Funds | |||
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| By: |
Xxxxxxxxx Xxxxxx Advisers Management Trust | ||
| By: |
/s/ Xxxxx Xxxxxxx |
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| Name: |
Xxxxx Xxxxxxx | ||
| Title: |
Managing Director |
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SCHEDULE A
Acquiring Funds
Xxxx Xxxxx Partners Variable Equity Trust
Franklin Xxxxxxxxx Aggressive Model Portfolio
Franklin Xxxxxxxxx Conservative Model Portfolio
Franklin Xxxxxxxxx Moderate Model Portfolio
Franklin Xxxxxxxxx Moderately Aggressive Model Portfolio
Franklin Xxxxxxxxx Moderately Conservative Model Portfolio
Acquired Funds
Xxxxxxxxx Xxxxxx Advisers Management Trust
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