ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment
and Assumption Agreement") dated as of August 25, 2010 (the
"Effective Date") among F-Squared Investments, Inc.
("Assignor"), a Delaware corporation and a wholly owned
subsidiary of F-Squared Investment Management, LLC ("F-Squared
Holding Company"), and F-Squared Institutional Advisors, LLC
("Assignee"), a Delaware limited liability company and a wholly
owned subsidiary of F-Squared Holding Company.
W I T N E S S E T H:
WHEREAS, Assignor and Virtus Investment Advisers, Inc.
("Investment Adviser") are parties to that certain Subadvisory
Agreement dated as of September 29, 2009 and amended as of June
30, 2010 (the "Subadvisory Agreement"), whereby Assignor serves
as the subadviser to certain series of Virtus Opportunities
Trust (the "Trust"), as listed on Schedule C, as amended, of the
Subadvisory Agreement;
WHEREAS, Assignor desires to assign to Assignee, and
Assignee desires to accept all of Assignor's right, title and
interest in the Subadvisory Agreement with respect to Virtus
Premium AlphaSector Fund (the "Fund"), and (ii) Assignee desires
to acquire and to assume all of the duties and obligations of
Assignor under the Subadvisory Agreement with respect to the
Fund;
WHEREAS, this Assignment and Assumption Agreement does not
result in a change of actual control or management of the
subadviser to the Trust, and, therefore is not an "assignment"
as defined in Section 2(a)(4) of the Investment Company Act of
1940 (the "Act") nor an "assignment" for purposes of Section
15(a)(4) of the Act.
NOW, THEREFORE, in consideration of the mutual premises
herein contained, and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
Effective as of the Effective Date, Assignor hereby
designates Assignee as its successor under the Subadvisory
Agreement with respect to the Fund and hereby assigns, conveys,
transfers and sets over absolutely to Assignee, and Assignee
hereby accepts, all of Assignor's right, title and interest in
and to the Subadvisory Agreement with respect to the Fund and
Assignee hereby assumes and agrees to perform and discharge all
of Assignor's duties and obligations under the Subadvisory
Agreement with respect to the Fund.
The Trust and Investment Adviser hereby agree and consent
to the assignment and assumption by Assignee of the Subadvisory
Agreement with respect to the Fund, and agree that from and
after the Effective Date all of the representations, covenants,
and agreements in the Subadvisory Agreement of the Assignor with
respect to the Fund shall apply to the Assignee as though
Assignee were a named party to the Subadvisory Agreement with
respect to the Fund, except that any claim by the Trust and
Investment Adviser under the Subadvisory Agreement with respect
to the Fund, or liability with respect to services performed by
the Assignor, prior to the Effective Date, shall be made against
the Assignor rather than the Assignee.
Assignor, Assignee and Investment Adviser hereto further
agree that by signing this Assignment and Assumption Agreement,
Assignee shall become a party to the Subadvisory Agreement with
respect to the Fund with the same effect as if Assignee had
executed the Subadvisory Agreement with respect to the Fund as a
party thereto from and after the Effective Date and Assignee
shall have all of the rights and obligations of Assignor under
the Subadvisory Agreement with respect to the Fund and as of the
Effective Date shall be deemed to have made all of the
representations, covenants and agreements of Assignor contained
in the Subadvisory Agreement with respect to the Fund.
Neither this Assignment and Assumption Agreement nor any
term thereof may be changed, waived, discharged or terminated,
except by an instrument in writing signed by the parties hereto.
In case any provision in or obligation under this
Assignment and Assumption Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
To the extent that state law is not preempted by the
provisions of any law of the United States heretofore or
hereafter enacted, as the same may be amended from time to time,
this Assignment and Assumption Agreement shall be governed by,
and shall be construed and enforced in accordance with, the
internal laws of the State of Delaware, without regard to
conflicts of law principles.
This Assignment and Assumption Agreement may be executed in
one or more counterparts and by different parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
This Assignment and Assumption Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their
respective successors and assigns.
This Agreement sets forth the entire agreement of the
parties hereto with respect to the subject matter hereof and may
not be altered, amended, changed, waived, terminated or modified
in any respect or particular unless the same shall be in writing
and signed by each of the parties hereto.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Assumption Agreement to be duly executed and
delivered by their respective officers thereunto duly
authorized, as of the Effective Date.
TRUST:
VIRTUS OPPORTUNITIES TRUST
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
INVESTMENT ADVISER:
VIRTUS INVESTMENT ADVISERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice
President
ASSIGNEE:
F-SQUARED INSTITUTIONAL ADVISORS,
LLC
By: /s/ Xxxxxx Present
Name: Xxxxxx Present
Title: CEO
ASSIGNOR:
F-SQUARED INVESTMENTS, INC.
By: /s/ Xxxxxx Present
Name: Xxxxxx Present
Title: CEO
