FUND OF FUNDS INVESTMENT AGREEMENT
Exhibit (h)(9)(i)
FUND OF FUNDS INVESTMENT AGREEMENT
THIS AGREEMENT, dated as of January 19, 2022, between 1290 Funds and EQ Advisors Trust (each, a “Trust”), on behalf of their various series, severally and not jointly (each, an “Acquiring Fund”), and AB Cap Fund, Inc. (“AB Cap”), on behalf of its series AB Small Cap Growth Portfolio (the “Acquired Fund” and together with the Acquiring Funds, the “Funds”).
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, 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, Section 12(d)(1)(B) limits the extent to which a registered investment company, its principal underwriter or registered brokers or dealers may knowingly sell shares of such registered investment company to other investment companies, and Section 12(d)(1)(C) limits the extent to which an investment company may invest in the shares of a registered closed-end investment company;
WHEREAS, Rule 12d1-4 under the 1940 Act (the “Rule”) permits registered investment companies, such as the Acquiring Funds, to invest in shares of other registered investment companies, such as the Acquired Fund, in excess of the limits of Section 12(d)(1) of the 1940 Act subject to compliance with the conditions of the Rule; and
WHEREAS, an Acquiring Fund may, from time to time, invest in shares of the Acquired Funds in excess of the limitations of Section 12(d)(1)(A) in reliance on the Rule;
NOW THEREFORE, in accordance with the Rule, the Trust and AB Cap desire to set forth the following terms pursuant to which the Acquiring Funds may invest in the Acquired Fund in reliance on the Rule.
| 1. | Terms of Investment |
| (a) | In order to help reasonably address the risk of undue influence on an Acquired Fund by an Acquiring Fund, and to assist the Acquired Fund’s investment adviser with making the required findings under the Rule, each Acquiring Fund and the Acquired Fund agree as follows: |
| (i) | Each Acquiring Fund shall use reasonable efforts to provide the Acquired Fund at least five business days’ notice of any redemption request(s) by the Acquiring Funds in the aggregate of greater than 1% of the Acquired Fund’s total net assets as of the preceding business day. All redemption requests by any Acquiring Fund over any period of five business days shall be aggregated for purposes of determining whether the requests meet the 1% threshold set forth in the prior sentence. |
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| (b) | In order to assist the Acquiring Funds’ investment adviser with evaluating the complexity of the structure and fees and expenses associated with an investment in the Acquired Fund in order to make the required finding under the Rule, the Acquired Fund shall provide each Acquiring Fund with information on the fees and expenses of the Acquired Fund reasonably requested by the Acquiring Fund with reference to the Rule. |
| 2. | Representations of the Acquired Fund |
In connection with any investment by an Acquiring Fund in the Acquired Fund in excess of the limitations in Section 12(d)(1)(A), the Acquired Fund agrees to: (i) comply with all conditions of the Rule, as interpreted or modified by the SEC or its staff (the “Staff”) from time to time, applicable to the Acquired Fund, including the limitations on investments required by Rule 12d1-4(b)(3)(ii); (ii) comply with its obligations under this Agreement; and (iii) promptly notify the Acquiring Fund if the 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 the Staff from time to time, or this Agreement.
| 3. | Representations of the Acquiring Funds |
In connection with any investment by an Acquiring Fund in the Acquired Fund in excess of the limitations in Section 12(d)(1)(A), the Acquiring Fund agrees to: (i) comply with all conditions of the Rule (including the limitations on control and associated voting requirements set out in Rule 12d1-4((b)(1)), as interpreted or modified by the SEC or its Staff from time to time, applicable to the Acquiring Fund; (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 the Acquired Fund, as interpreted or modified by the SEC or its Staff from time to time, or this Agreement.
| 4. | Indemnification |
Each Acquiring Fund agrees to hold harmless and indemnify the Acquired Fund, including any of its principals, directors, 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 its principals, directors, officers, employees and agents, to the extent such Claims result from (i) a violation by the Acquiring Fund of any provision of this Agreement or (ii) a violation by the Acquiring Fund or the Acquiring Fund’s investment adviser of the conditions of the Rule with respect to an investment covered by this Agreement, such indemnification to include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Claims; provided, however, that an Acquiring Fund shall not be liable for indemnifying the Acquired Fund or any of its principals, directors, officers, employees and agents for any Claims resulting from violations that occur as a result of incomplete or inaccurate information provided by the Acquired Fund to the Acquiring Fund pursuant to terms and conditions of the Rule or this Agreement.
The Acquired Fund agrees to hold harmless and indemnify each Acquiring Fund, including any of its principals, directors, officers, employees and agents, against and from any
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Claims asserted against the Acquiring Funds, including any principals, directors, officers, employees and agents, to the extent such Claims result from (i) a violation by the Acquired Fund of any provision of this Agreement or (ii) a violation by the Acquired Fund or the Acquired Fund’s investment adviser of the conditions of the Rule with respect to an investment covered by this Agreement, such indemnification to include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Claims; provided, however, that the Acquired Fund shall not be liable for indemnifying any Acquiring Fund or any of its principals, directors, officers, employees and agents for any Claims resulting from violations that occur as a result of incomplete or inaccurate information provided by the Acquiring Fund to the Acquired Fund pursuant to terms and conditions of the Rule or this Agreement.
| 5. | Miscellaneous |
| (a) | This Agreement shall be governed by the laws of the State of New York without regard to its choice of law principles. |
| (b) | In any action involving the Acquiring Funds under this Agreement, the Acquired Fund agrees to look solely to the individual Acquiring Fund(s) that are involved in the matter in controversy and not to any other series of Trust. |
| (c) | In any action involving the Acquired Fund under this Agreement, each Acquiring Fund agrees to look solely to the Acquired Fund and not to any other series of AB Cap. |
| 6. | 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.
| If to a Trust: c/o Equitable Investment Management 1290 Avenue of the Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Email: XXX-Xxxxxxxxxx@xxxxxxxxx.xxx |
If to AB Cap:
Xxxxxxx Xxxxxxx c/o AllianceBernstein L.P. 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Email: xxxxxxx.xxxxxxx@xxxxxxxxxxxxxxxxx.xxx
With a copy to: Xxxxxx X. Xxxxx, Esq. c/o AllianceBernstein, L.P. 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Email: xxxxxx.xxxxx@xxxxxxxxxxxxxxxxx.xxx |
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| 7. | Term and Termination; Assignment; Amendment |
| (a) | This Agreement shall be effective for the duration of the Acquired Fund’s 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 the Acquired Fund 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 7(b). |
| (b) | This Agreement shall continue until terminated in writing by either party upon 60 days’ written notice to the other party. Upon termination of this Agreement, no Acquiring Fund may purchase additional shares of the Acquired Fund beyond the Section 12(d)(1)(A) limits in reliance on the Rule. Each Acquiring Fund’s obligation in Section 1(a) of this Agreement to provide advance notice of redemptions shall survive termination of this Agreement until the Acquiring Funds’ aggregate investment in the Acquired Fund is less than 1% of the Acquired Fund’s total outstanding shares. |
| (c) | This Agreement may not be assigned by either party without the prior written consent of the other. |
| (d) | This Agreement may be amended only by a writing that is signed by each affected party. |
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
AB Cap Fund, Inc.
| /s/ Xxxx X. Xxxxx | ||
| Name of Authorized Signer: Xxxx X. Xxxxx | ||
| Title: Assistant Secretary | ||
1290 Funds
| /s/ Xxxxxxx Xxxxxxxxx | ||
| Name of Authorized Signature: Xxxxxxx Xxxxxxxxx | ||
|
Title: Senior Vice President and Chief Investment Officer | ||
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SCHEDULE A
Applicable Funds
Acquiring Funds
1290 VT Convertible Securities Portfolio
1290 VT DoubleLine Dynamic Allocation Portfolio
1290 VT DoubleLine Opportunistic Bond Portfolio
1290 VT Equity Income Portfolio
1290 VT GAMCO Mergers & Acquisitions Portfolio
1290 VT GAMCO Small Company Value Portfolio
1290 VT High Yield Bond Portfolio
1290 VT Low Volatility Global Equity Portfolio
1290 VT Micro Cap Portfolio
1290 VT Moderate Growth Allocation Portfolio
1290 VT Multi-Alternative Strategies Portfolio
1290 VT Natural Resources Portfolio
1290 VT Real Estate Portfolio
1290 VT Small Cap Value Portfolio
1290 VT SmartBeta Equity Portfolio
1290 VT Socially Responsible Portfolio
ATM International Managed Volatility Portfolio
ATM Large Cap Managed Volatility Portfolio
ATM Mid Cap Managed Volatility Portfolio
ATM Small Cap Managed Volatility Portfolio
EQ/2000 Managed Volatility Portfolio
EQ/400 Managed Volatility Portfolio
EQ/500 Managed Volatility Portfolio
EQ/AB Dynamic Aggressive Growth Portfolio
EQ/AB Dynamic Growth Portfolio
EQ/AB Dynamic Moderate Growth Portfolio
EQ/AB Short Duration Government Bond Portfolio
EQ/AB Small Cap Growth Portfolio
EQ/AB Sustainable U.S. Thematic Portfolio
EQ/Aggressive Growth Strategy Portfolio
EQ/All Asset Growth Allocation Portfolio
EQ/American Century Mid Cap Value Portfolio
EQ/American Century Moderate Growth Allocation Portfolio
EQ/AXA Investment Managers Moderate Allocation Portfolio
EQ/Balanced Strategy Portfolio
EQ/Capital Group Research Portfolio
EQ/ClearBridge Large Cap Growth Portfolio
EQ/ClearBridge Select Equity Managed Volatility Portfolio
EQ/Common Stock Index Portfolio
EQ/Conservative Growth Strategy Portfolio
EQ/Conservative Strategy Portfolio
EQ/Core Bond Index Portfolio
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EQ/Emerging Markets Equity PLUS Portfolio
EQ/Equity 500 Index Portfolio
EQ/Fidelity Institutional AM® Large Cap Portfolio
EQ/First Trust Moderate Growth Allocation Portfolio
EQ/Franklin Growth Allocation Portfolio
EQ/Franklin Moderate Allocation Portfolio
EQ/Franklin Rising Dividends Portfolio
EQ/Franklin Small Cap Value Managed Volatility Portfolio
EQ/Franklin Strategic Income Portfolio
EQ/Global Equity Managed Volatility Portfolio
EQ/Xxxxxxx Xxxxx Growth Allocation Portfolio
EQ/Xxxxxxx Sachs Mid Cap Value Portfolio
EQ/Xxxxxxx Xxxxx Moderate Growth Allocation Portfolio
EQ/Growth Strategy Portfolio
EQ/Intermediate Government Bond Portfolio
EQ/International Core Managed Volatility Portfolio
EQ/International Equity Index Portfolio
EQ/International Managed Volatility Portfolio
EQ/International Value Managed Volatility Portfolio
EQ/Invesco Xxxxxxxx Portfolio
EQ/Invesco Global Portfolio
EQ/Invesco Global Real Assets Portfolio
EQ/Invesco International Growth Portfolio
EQ/Invesco Moderate Allocation Portfolio
EQ/Invesco Moderate Growth Allocation Portfolio
EQ/Janus Enterprise Portfolio
EQ/JPMorgan Growth Allocation Portfolio
EQ/JPMorgan Value Opportunities Portfolio
EQ/Large Cap Core Managed Volatility Portfolio
EQ/Large Cap Growth Index Portfolio
EQ/Large Cap Growth Managed Volatility Portfolio
EQ/Large Cap Value Index Portfolio
EQ/Large Cap Value Managed Volatility Portfolio
EQ/Lazard Emerging Markets Equity Portfolio
EQ/Long-Term Bond Portfolio
EQ/Xxxxxx Xxxxxx Growth Portfolio
EQ/MFS International Growth Portfolio
EQ/MFS International Intrinsic Value Portfolio
EQ/MFS Mid Cap Focused Growth Portfolio
EQ/MFS Technology Portfolio
EQ/MFS Utilities Series Portfolio
EQ/Mid Cap Index Portfolio
EQ/Mid Cap Value Managed Volatility Portfolio
EQ/Moderate Growth Strategy Portfolio
EQ/Money Market Portfolio
EQ/Xxxxxx Xxxxxxx Small Cap Growth Portfolio
EQ/PIMCO Global Real Return Portfolio
EQ/PIMCO Real Return Portfolio
EQ/PIMCO Total Return Portfolio
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EQ/PIMCO Ultra Short Bond Portfolio
EQ/Quality Bond PLUS Portfolio
EQ/Small Company Index Portfolio
EQ/X. Xxxx Price Growth Stock Portfolio
EQ/X. Xxxx Price Health Sciences Portfolio
EQ/Ultra Conservative Strategy Portfolio
EQ/Value Equity Portfolio
EQ/Wellington Energy Portfolio
Equitable Growth MF/ETF Portfolio
Equitable Moderate Growth MF/ETF Portfolio
Multimanager Aggressive Equity Portfolio
Multimanager Core Bond Portfolio
Multimanager Technology Portfolio
1290 FUNDS
1290 Diversified Bond Fund
1290 DoubleLine Dynamic Allocation Fund
1290 GAMCO Small/Mid Cap Value Fund
1290 High Yield Bond Fund
1290 Multi-Alternative Strategies Fund
1290 SmartBeta Equity Fund
1290 Retirement 2020 Fund
1290 Retirement 2025 Fund
1290 Retirement 2030 Fund
1290 Retirement 2035 Fund
1290 Retirement 2040 Fund
1290 Retirement 2045 Fund
1290 Retirement 2050 Fund
1290 Retirement 2055 Fund
1290 Retirement 2060 Fund
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