Exhibit 4(b)
AMENDED AND RESTATED SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 27th day of February 1997, as amended and
restated on _____________, 2004, by and between XXXXXXX XXXXX INVESTMENT
MANAGERS, L.P. (formerly known as Xxxxxxx Xxxxx Asset Management, L.P.), a
Delaware limited partnership (hereinafter referred to as "MLIM"), and XXXXXXX
XXXXX ASSET MANAGEMENT U.K. LIMITED, a corporation organized under the laws of
England and Wales (hereinafter referred to as "MLAM U.K.").
W I T N E S S E T H:
WHEREAS, XXXXXXX XXXXX SERIES FUND, INC. (the "Fund") is a Maryland
corporation engaged in business as an open-end management investment company and
is registered under the Investment Company Act of 1940, as amended (hereinafter
referred to as the "Investment Company Act"); and
WHEREAS, MLIM and MLAM U.K. are engaged principally in rendering
investment advisory services and are registered as investment advisers under the
Investment Advisers Act of 1940, as amended; and
WHEREAS, MLAM U.K. is a member of the Investment Management Regulatory
Organization, a self-regulating organization recognized under the Financial
Services Act of 1986 of the United Kingdom (hereinafter referred to as "IMRO"),
and the conduct of its investment business is regulated by IMRO: and
WHEREAS, MLIM has entered into investment advisory agreements (the
`-Advisory Agreements") pursuant to which MLIM provides management and
investment and advisory services to the Fund; and
WHEREAS, MLAM U.K. is willing to provide investment advisory services to
MLIM in connection with the operations of each series of the Fund listed on
Exhibit A as such Schedule may be amended from time to time (the "Portfolios")
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, MLAM U.K and MLIM hereby agree as follows:
ARTICLE I
Duties of MLAM U.K.
MLIM hereby employs MLAM U.K. to act as investment adviser to MLIM and to
furnish, or arrange for affiliates to furnish, the investment advisory services
described below, subject to the broad supervision of MLIM and the Fund, for the
period and on the terms and conditions set forth in this Agreement. MLAM U.K.
hereby accepts such employment and agrees during such period, at its own
expense, to render, or arrange for the rendering of, such
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services and to assume the obligations herein set forth for the compensation
provided for herein. MLIM and its affiliates shall for all purposes herein be
deemed a Professional Investor as defined under the rules promulgated by IMRO
(hereinafter referred to as the "IMRO Rules"). MLAM U.K. and its affiliates
shall for all purposes herein be deemed to be independent contractors and shall,
unless otherwise expressly provided or authorized, have no authority to act for
or represent the Fund in any way or otherwise be deemed agents of the Fund.
MLAM U.K. shall have the right to make unsolicited calls on MLIM and shall
provide MLIM with such investment research, advice and supervision as the latter
may from time to time consider necessary for the proper supervision of the
assets of each Portfolio; shall furnish continuously an investment program for
each Portfolio and shall make recommendations from time to time as to which
securities shall be purchased, sold or exchanged and what portion of the assets
of each Portfolio shall be held in the various securities in which the Portfolio
invests, options, futures, options on futures or cash; all of the foregoing
subject always to the restrictions of the Articles of Incorporation and By-Laws
of the Fund, as they may be amended and/or restated from time to time, the
provisions of the Investment Company Act and the statements relating to the
Portfolio's investment objective(s), investment policies and investment
restrictions as the same are set forth in the currently effective prospectus and
statement of additional information relating to the shares of the Fund under the
Securities Act of 1933, as amended (the "Prospectus" and "Statement of
Additional Information", respectively). MLAM U.K. shall make recommendations and
effect transactions with respect to foreign currency matters, including foreign
exchange contracts, foreign currency options, foreign currency futures and
related options on foreign currency futures and forward foreign currency
transactions. MLAM U.K. shall also make recommendations or take action as to the
manner in which voting rights, rights to consent to corporate action and any
other rights pertaining to the portfolio securities of the Portfolios shall be
exercised.
MLAM U.K. will not hold money on behalf of MLIM or the Portfolios, nor
will MLAM U.K. be the registered holder of the registered investments of MLIM or
the Portfolios or be the custodian of documents or other evidence of title.
ARTICLE II
Allocation of Charges and Expenses
MLAM U.K. assumes and shall pay for maintaining the staff and personnel
necessary to perform its obligations under this Agreement and shall at its own
expense provide the office space, equipment and facilities which it is obligated
to provide under Article I hereof and shall pay all compensation of officers of
the Fund and all directors of the Fund who are affiliated persons of MLAM U.K.
ARTICLE III
Compensation of MLAM U.K.
For the services rendered, the facilities furnished and expenses assumed
by MLAM U.K, MLIM shall pay to MLAM U.K. a fee in an amount to be determined
from time to
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time by MLIM and MLAM U.K. but in no event in excess of the amount that MLIM
actually receives for providing services to the Portfolios pursuant to the
applicable Advisory Agreement.
ARTICLE IV
Limitation of Liability of MLAM U.K.
MLAM U.K. 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
performance of sub-advisory services rendered with respect to the Portfolios,
except for willful misfeasance, bad faith or gross negligence in the performance
of its duties, or by reason of reckless disregard of its obligations and duties
hereunder. As used in this Article IV, MLAM U.K. shall include any affiliates of
MLAM U.K. performing services for MLIM contemplated hereby and directors,
officers and employees of MLAM U.K. and such affiliates.
ARTICLE V
Activities of MLAM U.K.
The services of MLAM U.K. to the Portfolios are not to be deemed to be
exclusive. MLAM U.K. and any person controlled by or under common control with
MLAM U.K. (for purposes of this Article V referred to as "affiliates") are free
to render services to others. It is understood that directors, officers,
employees and shareholders of the Portfolios are or may become interested in
MLAM U.K. and its affiliates, as directors, officers, employees and shareholders
or otherwise and that directors, officers, employees and shareholders of MLAM
U.K. and its affiliates are or may become similarly interested in the
Portfolios, and that MLAM U.K. and directors, officers, employees, partners and
shareholders of its affiliates may become interested in the Portfolios as
shareholders or otherwise.
ARTICLE VI
MLAM U.K. Statements Pursuant to IMRO Rules
Any complaints concerning MLAM U.K. should be in writing addressed to the
attention of the Managing Director of MLAM U.K. MLIM has the right to obtain
from MLAM U.K. a copy of the IMRO complaints procedure and to approach IMRO
directly.
MLAM U.K. may make recommendations, subject to the investment restrictions
referred to in Article I herein, regarding Investments Not Readily Realizable
(as that term is used in the IMRO Rules) or investments denominated in a
currency other than British pound sterling. There can be no certainty that
market makers will be prepared to deal in unlisted or thinly traded securities
and an accurate valuation may be hard to obtain. The value of investments
recommended by MLAM U.K. may be subject to exchange rate fluctuations, which may
have favorable or unfavorable effects on investments.
MLAM U.K. may make recommendations, subject to the investment restrictions
referred to in Article I herein, regarding options, futures or contracts for
differences. Markets
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can be highly volatile and such investments carry a high degree of risk of loss
exceeding the original investment and any margin on deposit.
ARTICLE VII
Duration and Termination of this Agreement
This Agreement shall become effective with respect to each Portfolio as of
the date first above written and shall remain in force until the date of
termination of the Advisory Agreement relating to such Portfolio (but not later
than two years after the date hereof) and thereafter, but only so long as such
continuance is specifically approved at least annually by (1) the board of
directors of the Fund (the "Directors") or by the vote of a majority of the
outstanding voting securities of such Portfolio and (ii) a majority of those
Directors 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.
This Agreement may be terminated with respect to a Portfolio at any time,
without the payment of any penalty by MLIM or by vote of a majority of the
outstanding voting securities of such Portfolio, or by MLAM U.K., on sixty days'
written notice to the other party. This Agreement shall automatically terminate
with respect to each Portfolio in the event of its assignment or in the event of
the termination of the Advisory Agreement relating to such Portfolio. Any
termination shall be without prejudice to the completion of transactions already
initiated.
ARTICLE VIII
Amendments to this Agreement
This Agreement may be amended with respect to any Portfolio by the parties
only if such amendment is specifically approved by (1) the Directors of the Fund
or by the vote of a majority of outstanding voting securities of such Portfolio
and (ii) a majority of those Directors 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.
ARTICLE IX
Definitions of Certain Terms
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person", when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act and the rules and regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission under
said Act.
ARTICLE X
Governing Law
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This Agreement shall be construed in accordance with the laws of the State
of New York and the applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXXX XXXXX INVESTMENT MANAGERS, L.P.
By: Princeton Services, Inc.,
its General Partner
By: ______________________________________
Name:
Title:
XXXXXXX XXXXX ASSET MANAGEMENT X.X.XXXXXXX
By: ______________________________________
Name:
Title:
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Exhibit A
Mercury Balanced Capital Strategy Portfolio
Mercury Core Bond Strategy Portfolio
Mercury Fundamental Growth Strategy Portfolio
Mercury Global Allocation Portfolio
Mercury High Yield Portfolio
Mercury Intermediate Government Bond Portfolio
Mercury Large Cap Core Strategy Portfolio
Mercury Money Reserve Portfolio
Mercury Global SmallCap Portfolio
Mercury Equity Dividend Portfolio
Mercury Mid Cap Value Opportunities Portfolio
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