Exhibit(d)(45)
SVS: GROWTH OPPORTUNITIES PORTFOLIO (JANUS)
SUBADVISORY AGREEMENT
AGREEMENT made as of the 5th day of April, 2002 between Deutsche
Investment Management Americas Inc., a Delaware corporation (hereinafter called
the "Manager"), and Janus Capital Management LLC, a Delaware Limited Liability
Company (hereinafter called the "Subadviser").
WITNESSETH:
WHEREAS, Xxxxxxx Variable Series II (the "Trust") is a Massachusetts
business trust organized with one or more series of shares, and is registered as
an investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Manager desires to utilize the services of the Subadviser
to provide subadvisory services with respect to the investment portfolio of SVS
Growth Opportunities Portfolio (the "Series"), being one of the portfolio series
of the Trust, which is under the management of the Manager pursuant to an
Investment Management Agreement between the Manager and the Trust dated April 5,
2002; and
WHEREAS, the Subadviser is willing to perform such services on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, it is agreed as follows:
1. The Subadviser's Services. The Subadviser will serve the Manager as
investment counsel with respect to the Series.
The Subadviser is hereby authorized and directed and hereby agrees,
subject to the stated investment policies and restrictions of the Series as set
forth in the current Prospectus and Statement of Additional Information of the
Trust (including amendments) furnished to the Subadviser and in accordance with
the Declaration of Trust and By-laws of the Trust, as both may be amended from
time to time and furnished to the Subadviser, governing the offering of its
shares and subject to such resolutions, policies and procedures as from time to
time may be adopted by the Trustees of the Trust and furnished to the
Subadviser, to develop, recommend and implement such investment program and
strategy for the Series, to provide research and analysis relative to the
investment program and investments of the Series, to determine what securities
should be purchased and sold and to monitor on a continuing basis the
performance of the portfolio securities of the Series. In addition, the
Subadviser will place orders for the purchase and sale of portfolio securities
and, subject to the provisions of the following paragraph, will take reasonable
steps to assure that portfolio transactions are effected at the best price and
execution available. The Subadviser will advise the Fund's custodian and the
Manager
on a prompt basis of each purchase and sale of a portfolio security specifying
the name of the issuer, the CUSIP number (if available), the description and
amount or number of shares of the security purchased, the market price,
commission and gross or net price, trade date, settlement date and identity of
the effecting broker or dealer. From time to time as the Trustees of the Trust
or the Manager may reasonably request, the Subadviser will furnish to the
Manager, Trust's officers and to each of its Trustees reports on portfolio
transactions and reports on assets held in the Series, all in such detail as the
Trust or the Manager may reasonably request. The Subadviser will also inform the
Manager, Trust's officers and Trustees on a current basis of changes in
investment strategy or tactics or any other developments materially affecting
the Series. The Subadviser will make its officers and employees available to
meet with the Manager and officers and Trustees of the Trust at least quarterly
on due notice and at such other times as may be mutually agreeable, to review
the investments and investment performance of the Series in the light of the
Trust's investment objectives and policies and market conditions.
Absent written instructions to the Manager to the contrary, the
Subadviser shall place all orders for the purchase and sale of investment
instruments for the Series with brokers or dealers selected by the Subadviser
consistent with best execution, which, subject to and consistent with the
policies and procedures of the Trust relating to Rule 17e-1 under the 1940 Act,
may include brokers or dealers affiliated with the Subadviser. Purchase or sell
orders for the Series may be aggregated with contemporaneous purchase or sell
orders of other clients of the Subadviser. The Subadviser shall use its best
efforts to obtain execution of portfolio transactions at prices that are
advantageous to the Series and at commission rates that are reasonable in
relation to the benefits received. The Subadviser may select brokers or dealers
on the basis that they provide brokerage, research or other services or products
to the Series and/or other accounts serviced by the Subadviser. The Subadviser
may place portfolio transactions with a broker or dealer with which it has
negotiated a commission in excess of the commission another broker or dealer
would have charged for effecting that transaction if the Subadviser determines
in good faith that such amount of commission was reasonable in relation to the
value of the brokerage and research provided by such broker or dealer, viewed in
terms of either that particular transaction or the overall responsibilities that
the Subadviser has with respect to the Series and to accounts over which it
exercises investment discretion, and not all such services or products will
necessarily be used by the Subadviser in managing the Series. In addition,
consistent with best execution, the Subadviser may execute portfolio
transactions through brokers and dealers that sell shares of mutual funds
advised by the Subadviser or recommend to their customers that they purchase
shares of such funds. If the Subadviser determines that any product or service
furnished by a broker-dealer has a mixed use, such that it also serves functions
that do not assist the Subadviser in carrying out its investment decision-making
process, the Subadviser shall be responsible for making and documenting a
reasonable allocation of the costs of such service or product. The portion of
the product or service that the Subadviser determines will assist it in carrying
out its investment decision-making process may be paid for in brokerage
commission dollars.
It shall be the duty of the Subadviser to furnish to the Trustees of
the Trust such
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information as may reasonably be requested in order for such Trustees to
evaluate this Agreement or any proposed amendments thereto for the purposes of
casting a vote pursuant to Section 9 hereof, including any information requested
pursuant to section 15(c) of the 1940 Act. Any information reasonably deemed
proprietary by the Subadviser shall be subject to the provisions of Section 6
hereof.
The Subadviser shall not be responsible for fund accounting nor shall
it be required to generate fund accounting data.
The Series assets shall be maintained in the custody of the custodian
identified by the Manager in writing (the "Custodian"). Any assets added to the
Series shall be delivered directly to the Custodian. The Subadviser shall have
no liability for the acts or omissions of any Custodian, other than (subject to
Section 11) for acts or omissions arising in reliance on instructions from the
Subadviser.
In the performance of its duties hereunder, the Subadviser is and shall
be an independent contractor and except as otherwise expressly provided herein
or otherwise authorized in writing, shall have no authority to act for or
represent the Trust, the Series or the Manager in any way or otherwise be deemed
to be an agent of the Trust, the Series or the Manager.
In furnishing the services under this Agreement, the Subadviser will
comply with the requirements of the 1940 Act applicable to it, the regulations
promulgated thereunder, and all other applicable laws and regulations. The
Subadviser will immediately notify the Manager and the Trust in the event that
the Subadviser: (i) becomes subject to a statutory disqualification that
prevents the Subadviser from serving as an investment adviser pursuant to this
Agreement; or (ii) becomes the subject of an administrative proceeding or
enforcement action by the Securities and Exchange Commission or other regulatory
authority, which proceeding or action could reasonably be deemed material to the
Subadviser's performance of its duties under this Agreement (unless the
Subadviser is prohibited by applicable law or regulation from disclosing such
proceeding or action). The Subadviser will immediately forward, upon receipt, to
the Manager any correspondence from the Securities and Exchange Commission or
other regulatory authority that relates to the Series.
The Subadviser shall be responsible for the preparation and filing of
reports on Schedule 13G and Form 13F with respect to securities held by the
Series, but unless otherwise expressly agreed to in writing, the Subadviser
shall not be responsible for the preparation or filing of any other reports
required of the Series by any governmental or regulatory agency.
The Subadviser may request information from the Manager or from the
fund accountant, the Custodian or other service providers to the Series to
enable the Subadviser to monitor compliance with portfolio restrictions of the
Series. In the event such information is not made available to the Subadviser
reasonably promptly upon request, the Subadviser shall notify the Manager in
writing. If the Manager does not provide (or arrange for the provision of) such
information to the Subadviser reasonably
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promptly upon receipt of written notice from the Subadviser, the Manager shall
assume responsibility for the monitoring to which the requested information
relates.
2. Delivery of Documents to Subadviser. The Manager will furnish to the
Subadviser copies of each of the following documents:
(a) The Declaration of Trust of the Trust as in effect on the date
hereof;
(b) The By-laws of the Trust in effect on the date hereof;
(c) The resolutions of the Trustees approving the engagement of the
Subadviser as subadviser to the Series and approving this Agreement;
(d) The resolutions of the Trustees selecting the Manager as investment
manager to the Trust and approving the form of the Investment
Management Agreement with the Trust, on behalf of the Series;
(e) The Investment Management Agreement with the Trust, on behalf of
the Series;
(f) The Code of Ethics of the Trust and of the Manager as currently in
effect;
(g) Current copies of the Series' Prospectus and Statement of
Additional Information;
(h) Resolutions, policies and procedures adopted by the Trustees of the
Trust in respect of the management or operation of the Series; and
(i) Such other information as the Subadviser may reasonably request in
connection with the performance of its duties under this Agreement.
The Manager will furnish the Subadviser from time to time with copies,
properly certified or otherwise authenticated, of all amendments of or
supplements to the foregoing, if any. Such amendments or supplements as to Items
(a) through (i) above will be provided within 30 days of the time such materials
became available to the Manager and until so provided the Subadviser may
continue to rely on those documents previously provided.
During the term of this Agreement, the Manager will provide the
Subadviser with a reasonable opportunity to review any amendments to the Series'
Prospectus or Statement of Additional Information prior to filing with the
Securities and Exchange Commission. The Manager will also furnish to the
Subadviser prior to use thereof copies of all other Trust documents, proxy
statements, reports to shareholders, sales literature, or other material
prepared for distribution to shareholders of the Series or the public that refer
in any way to the Subadviser, and will not use such material if the Subadviser
reasonably objects in writing after reasonable opportunity to review such
material after
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receipt thereof. However, the Manager and the Subadviser may agree amongst
themselves that certain of the above-mentioned documents do not need to be
furnished to the Subadviser prior to the document's use.
The Manager will cooperate with the Subadviser in establishing and
maintaining brokerage and other accounts that the Subadviser deems advisable to
allow for the purchase and sale of various forms of securities or other
instruments by the Series pursuant to this Agreement.
In the event of termination of this Agreement, the Manager will
continue to furnish to the Subadviser copies of any of the above-mentioned
materials that refer in any way to the Subadviser. The Manager shall furnish or
otherwise make available to the Subadviser such other information relating to
the business affairs of the Trust as the Subadviser at any time, or from time to
time, reasonably requests in order to discharge its obligations hereunder.
3. Delivery of Documents to the Manager. The Subadviser will furnish
the Manager with copies of each of the following documents:
(a) The Subadviser's most recent balance sheet;
(b) Separate lists of persons who the Subadviser wishes to have
authorized to give written and/or oral instructions to Custodians and
the fund accounting agent of Trust assets for the Series;
(c) The Code of Ethics of the Subadviser as currently in effect; and
(d) Such other documents or information as the Manager may reasonably
request in writing (on behalf of itself or the Trustees of the Trust)
in assessing the Subadviser.
The Subadviser will maintain a written code of ethics complying with
the requirements of Rule 17j-1 under the 1940 Act and will provide the Trust
with a copy of the code of ethics, including any amendments thereto, together
with evidence of its adoption and a certification to the effect that the
Subadviser has adopted procedures reasonably necessary to prevent its "access
persons" from violating its code of ethics. The Subadviser will be subject to
its code of ethics and will not be subject to any other code of ethics,
including that of the Manager, unless specifically adopted by the Subadviser. At
least annually (or more frequently if required by Rule 17j-1 or as the Trust or
the Manager may reasonably request), the Subadviser shall provide a written
report as to the matters required to be provided to the Trust by the Subadviser
under Rule 17j-1, including the certification provided for therein. Upon the
written request of the Trust, the Subadviser shall permit Trust to examine the
policies and procedures the Subadviser maintains pursuant to Rule 17j-1 to the
extent material to the assessment of the Subadviser's performance of its duties
under this Agreement.
Upon request by the Manager, the Subadviser will furnish the Manager
with
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copies of all material amendments of or supplements to the foregoing, if any.
Additionally, the Subadviser will provide to the Manager such other documents
relating to its services under this Agreement as the Manager may reasonably
request on a periodic basis. Such amendments or supplements as to item (a) will
be provided upon the reasonable request of the Manager, and such amendments or
supplements as to items (b) through (c) above will be provided within 30 days of
the time such materials became available to the Subadviser.
Any information reasonably deemed proprietary by the Subadviser shall
be subject to the provisions of Section 6 hereof.
The Subadviser will promptly notify the Manager of any proposed
transaction or other event that could reasonably be expected to result in an
"assignment" of this Agreement within the meaning of the 1940 Act. In addition,
the Subadviser will promptly complete and return to the Manager or the Trust any
reasonable compliance questionnaires or other reasonable inquiries submitted to
the Subadviser in writing.
4. Other Agreements, etc. It is understood that any of the
shareholders, Trustees, officers and employees of the Trust or the Series may be
a shareholder, director, officer or employee of, or be otherwise interested in,
the Subadviser, any interested person of the Subadviser, any organization in
which the Subadviser may have an interest or any organization which may have an
interest in the Subadviser, and that any such interested person or any such
organization may have an interest in the Trust or the Series. It is also
understood that the Subadviser, the Manager and the Trust may have advisory,
management, service or other contracts with other individuals or entities, and
may have other interests and businesses. When a security proposed to be
purchased or sold for the Series is also to be purchased or sold for other
accounts managed by the Subadviser at the same time, the Subadviser shall make
such purchases or sales on a pro-rata, rotating or other equitable basis so as
to avoid any one account's being preferred over any other account.
The Subadviser may give advice and take action with respect to other
funds or clients, or for its own account which may differ from the advice or the
timing or nature of action taken with respect to the Series. The Subadviser
makes no representation or warranty, express or implied, that any level of
investment performance or investment results will be achieved by the Series or
that the Series will perform comparably with any standard or index, including
other clients of the Subadviser, whether public or private.
Nothing in this Agreement shall be implied to prevent the (i) Manager
from engaging other subadvisers to provide investment advice and other services
in relation to portfolios of the Trust for which the Subadviser does not provide
such services, or to prevent the Manager from providing such services itself in
relation to such portfolios; or (ii) the Subadviser from providing investment
advice and other services to other funds or clients.
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5. Fees, Expenses and Other Charges.
(a) For its services hereunder, the Subadviser shall be paid a
management fee by the Manager by the 20th day of each month according
to the fee schedule attached hereto as Schedule A.
(b) The Subadviser, at its expense, will furnish all necessary
investment facilities, including salaries of personnel required for it
to execute its duties under this Agreement.
(c) The Manager, the Series and the Trust shall assume and pay their
respective organizational, operational and business expenses not
specifically assumed or agreed to be paid by the Subadviser pursuant to
this Agreement. The Subadviser shall pay its own organizational,
operational and business expenses but shall not be obligated to pay any
expenses of the Manager, the Trust, or the Series, including without
limitation (i) interest and taxes, (ii) brokerage commissions and other
costs in connection with the purchase or sale of securities or other
investment instruments for the Series, and (iii) custodian fees and
expenses. Any reimbursement to the Series of management fees required
by any expense limitation provision set forth in the Prospectus or
Statement of Additional Information of the Series, and any liability to
the Series arising out of a violation of Section 36(b) of the 1940 Act
by the Manager, shall be the sole responsibility of the Manager.
6. Confidentiality, etc. It is understood that any information or
recommendation supplied by the Subadviser in connection with the performance of
its obligations hereunder is to be regarded as confidential and for use only by
the Manager, the Trust or such persons as the Manager may designate in
connection with the Series, and further understood that any information
reasonably designated as proprietary by the Subadviser shall be subject to such
limitations on access or use as the Subadviser and the Manager or the Trust
shall reasonably agree. It is also understood that any information supplied to
the Subadviser in connection with the performance of its obligations hereunder,
particularly, but not limited to, any list of securities which, on a temporary
basis, may not be bought or sold for the Series, is to be regarded as
confidential and for use only by the Subadviser in connection with its
obligation to provide investment advice and other services to the Series.
The Manager will not, directly or indirectly, use, disclose or furnish,
to any person or entity, records or information concerning the business of the
Subadviser, except as necessary for the performance of its duties under this
Agreement or the Investment Management Agreement, or as required by applicable
law or regulation, upon prior written notice to the Subadviser. Subadviser is
the sole owner of the name and xxxx "Xxxxx." Other than as permitted by Section
2 hereof, the Manager will not, and will not permit the Series to, without prior
written consent of the Subadviser, use the name or xxxx "Janus" or make
representations regarding the Subadviser or its affiliates. Upon termination of
this Agreement for any reason, the Manager shall cease, and the Manager shall
cause the Series to cease, as promptly as practicable, all use of the Janus name
or
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any Xxxxx xxxx (except to the extent necessary in describing the management of
the Series during the term of this Agreement).
The Subadviser will maintain and enforce adequate security procedures
with respect to all materials, records, documents and data relating to any of
its responsibilities pursuant to this Agreement including all means for the
effecting of securities transactions.
7. Representations and Covenants of the Parties. The Subadviser hereby
represents and warrants that (a) it is registered as an investment adviser under
the Investment Advisers Act of 1940 (the "Advisers Act"), (b) neither it nor any
"affiliated person" of it, as defined in the 1940 Act, is subject to any
disqualification that would make the Subadviser unable to serve as an investment
adviser to a registered investment company under Section 9 of the 1940 Act, (c)
it is validly existing and in good standing as a corporation under the laws of
Delaware, (d) it has all requisite corporate power and authority to execute,
deliver and perform this Agreement, and (e) such execution, delivery and
performance have been duly authorized by all necessary corporate proceedings of
the Subadviser. The Subadviser covenants that it will carry out appropriate
compliance procedures necessary to the operation of the Series as the Subadviser
and the Manager may agree. The Subadviser also covenants that it will manage the
Series in conformity with all applicable rules and regulations of the Securities
and Exchange Commission in all material respects and so that the Trust will
qualify as a regulated investment company under Subchapter M and Section 817 of
the Internal Revenue Code.
The Manager hereby represents and warrants that (a) it is registered as
an investment adviser under the Advisers Act, (b) it is validly existing and in
good standing as a corporation under the laws of Delaware, (c) it has all
requisite corporate power and authority to execute, deliver and perform this
Agreement, (d) such execution, delivery and performance have been duly
authorized by all necessary corporate proceedings of the Manager, (e) it has
authority under the Investment Management Agreement to execute, deliver and
perform this Agreement, and (f) it has received a copy of Part II of the
Subadviser's Form ADV.
8. Reports by the Subadviser and Records of the Series. The Subadviser
shall furnish the Manager monthly, quarterly and annual reports concerning
transactions and performance of the Series, including information required to be
disclosed in the Trust's registration statement, in such form as may be mutually
agreed, to review the Series and discuss the management of it. The Subadviser
shall permit the financial statements, books and records with respect to the
Series to be inspected and audited by the Trust, the Manager or their agents at
all reasonable times during normal business hours. The Subadviser shall
immediately notify and forward to both the Manager and legal counsel for the
Series any legal process served upon it on behalf of the Manager or the Trust.
The Subadviser shall promptly notify the Manager of any changes in any
information concerning the Subadviser of which the Subadviser becomes aware that
would be required to be disclosed in the Trust's registration statement.
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In compliance with the requirements of Rule 31a-3 under the 1940 Act,
the Subadviser agrees that all records it maintains for the Trust are the
property of the Trust and further agrees to surrender promptly to the Trust or
the Manager any such records upon the Trust's or the Manager's request. The
Subadviser further agrees to maintain for the Trust the records the Trust is
required to maintain under Rule 31a-1(b) of the 1940 Act insofar as such records
relate to the investment affairs of the Trust. The Subadviser further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the records
it maintains for the Trust.
9. Continuance and Termination; Amendment. This Agreement shall remain
in full force and effect through September 30, 2002, and is renewable annually
thereafter by specific approval of the Board of Trustees of the Trust or by the
affirmative vote of a majority of the outstanding voting securities of the
Series. Any such renewal shall be approved by the vote of a majority of the
Trustees of the Trust who are not interested persons under the 1940 Act, cast in
person at a meeting called for the purpose of voting on such renewal. This
Agreement may be terminated without penalty at any time by the Trustees, by vote
of a majority of the outstanding voting securities of the Series, or by the
Manager or by the Subadviser upon 60 days written notice, and will automatically
terminate in the event of its assignment by either party to this Agreement, as
defined in the 1940 Act, or upon termination of the Manager's Investment
Management Agreement with the Trust. In addition, the Manager or the Trust may
terminate this Agreement upon immediate notice if the Subadviser becomes
statutorily disqualified from performing its duties under this Agreement or
otherwise is legally prohibited from operating as an investment adviser.
This Agreement may be amended only in accordance with applicable law,
and only by a written instrument signed by all the parties to this Agreement.
10. Voting Rights. The Manager shall be responsible for exercising any
voting rights of any securities of the Series.
11. Indemnification, etc. The Subadviser agrees to indemnify and hold
harmless the Manager, any affiliated person within the meaning of Section
2(a)(3) of the 1940 Act ("affiliated person") of the Manager and each person, if
any, who, within the meaning of Section 15 of the Securities Act of 1933 (the
"1933 Act"), controls ("controlling person") the Manager, against any and all
losses, claims damages, liabilities or litigation (including reasonable legal
and other expenses), to which the Manager or such affiliated person or
controlling person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, under any other statute, at common law or otherwise, arising out
of Subadviser's responsibilities as portfolio manager of the Series (1) to the
extent of and as a result of the willful misconduct, bad faith, or gross
negligence by the Subadviser, any of the Subadviser's employees or
representatives or any affiliate of or any person acting on behalf of the
Subadviser, or (2) as a result of any untrue statement or alleged untrue
statement of a material fact contained in a prospectus or statement of
additional information covering the Series or the Trust or any amendment thereof
or any supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading, if such a
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statement or omission was made in reliance upon written information furnished by
the Subadviser to the Manager, the Trust or any affiliated person of the Manager
or the Trust expressly for use in the Trust's registration statement, or upon
verbal information confirmed by the Subadviser in writing expressly for use in
the Trust's registration statement or (3) to the extent of, and as a result of,
the failure of the Subadviser to execute, or cause to be executed, portfolio
transactions according to the standards and requirements of the 1940 Act.
In no case shall the Subadviser's indemnity in favor of the Manager or
any affiliated person or controlling person of the Manager, or any other
provision of this Agreement, be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
willful misconduct, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
under this Agreement.
Except as may otherwise be provided under the 1933 Act, the 1940 Act,
the Advisers Act, under any other statute, at common law or otherwise, neither
the Subadviser nor any of its affiliates, officers, directors, shareholders,
employees or agents shall be liable to the Manager for any loss, liability,
cost, damage or expense, including reasonable attorneys' fees and costs
(collectively referred to in this Agreement as "Losses"), including without
limitation Losses in connection with pricing information or other information
provided by Subadviser, except for Losses resulting from the gross negligence,
bad faith or willful misconduct, or reckless disregard of obligations and duties
under this Agreement, of the Subadviser or of its affiliates, officers,
directors, shareholders, employees or agents, as the case may be.
The Manager agrees to indemnify and hold harmless the Subadviser, any
affiliated person within the meaning of Section 2(a)(3) of the 1940 Act
("affiliated person") of the Subadviser and each person, if any, who, within the
meaning of Section 15 of the 1933 Act, controls ("controlling person") the
Subadviser, against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses), to which the
Subadviser or such affiliated person or controlling person may become subject
under the 1933 Act, the 1940 Act, the Advisers Act, under any other statute, at
common law or otherwise, arising out of the Manager's responsibilities as
investment manager of the Series (1) to the extent of and as a result of the
willful misconduct, bad faith, or gross negligence by the Manager, any of the
Manager's employees or representatives or any affiliate of or any person acting
on behalf of the Manager, or (2) as a result of any untrue statement or alleged
untrue statement of a material fact contained in a prospectus or statement of
additional information covering the Series or the Trust or any amendment thereof
or any supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading, if such a statement or omission was made by the Trust
other than in reliance upon written information furnished by the Subadviser, or
any affiliated person of the Subadviser, expressly for use in the Trust's
registration statement or other than upon verbal information confirmed by the
Subadviser in writing expressly for use in the Trust's registration statement.
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In no case shall the Manager's indemnity in favor of the Subadviser or
any affiliated person or controlling person of the Subadviser, or any other
provision of this Agreement, deemed to protect such person against any liability
to which any such person would otherwise be subject by reason of willful
misconduct, bad faith or gross negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and duties under this
Agreement.
Except as may otherwise be provided under the 1933 Act, the 1940 Act,
the Advisers Act, under any other statute, at common law or otherwise, neither
the Manager nor any of its affiliates, officers, directors, shareholders,
employees or agents shall be liable to the Subadviser for any Losses, including
without limitation Losses in connection with information provided by the
Manager, except for Losses resulting from the gross negligence, bad faith or
willful misconduct, or reckless disregard of obligations and duties under this
Agreement, of the Manager or of its affiliates, officers, directors,
shareholders, employees or agents, as the case may be.
The obligations of this Section 11 shall survive the termination of
this Agreement.
12. Certain Definitions. For the purposes of this Agreement, the "vote
of a majority of the outstanding voting securities of the Series" means the
affirmative vote, at a duly called and held meeting of shareholders of the
Series, (a) of the holders of 67% or more of the shares of the Series present
(in person or by proxy) and entitled to vote at such meeting, if the holders of
more than 50% of the outstanding shares of the Series entitled to vote at such
meeting are present in person or by proxy, or (b) of the holders of more than
50% of the outstanding shares of the Series entitled to vote at such meeting,
whichever is less.
For the purposes of this Agreement, the terms "interested person" and
"assignment" shall have their respective meanings defined in the 1940 Act,
subject, however, to such exemptions as may be granted by the Securities and
Exchange Commission under said Act.
13. Notices. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered or sent by
pre-paid first class letter post to the following addresses or to such other
address as the relevant addressee shall hereafter notify for such purpose to the
others by notice in writing and shall be deemed to have been given at the time
of delivery.
If to the Manager: DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
If to the Trust: XXXXXXX VARIABLE SERIES II
SVS Growth Opportunities Portfolio
Xxx Xxxxxxxxxxxxx Xxxxx
00
Xxxxxx, XX 00000
Attention: Secretary
If to the Subadviser: Janus Capital Management LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
14. Instructions. The Subadviser is authorized to honor and act on any
notice, instruction or confirmation given by the Trust or Manager in writing
signed or sent by one of the persons whose names, addresses and specimen
signatures will be provided by the Trust or Manager from time to time.
15. Law. This Agreement is governed by and shall be construed in
accordance with the laws of the State of New York in a manner not in conflict
with the provisions of the 1940 Act, except with respect to Section 16, which
shall be construed in accordance with the laws of the State of Massachusetts.
16. Limitation of Liability of the Trust, Trustees, and Shareholders.
It is understood and expressly stipulated that none of the trustees, officers,
agents, or shareholders of the Trust shall be personally liable hereunder. It is
understood and acknowledged that all persons dealing with the Series must look
solely to the property of such Series for the enforcement of any claims against
such Series as neither the trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Trust or the
Series. No series of the Trust shall be liable for the obligations of any other
series.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute a single instrument.
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IN WITNESS WHEREOF, the parties hereto have each caused this instrument
to be signed in duplicate on its behalf by the officer designated below
thereunto duly authorized.
MANAGER:
DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC.
Attest: /s/Xxxxxxx X. Xxxxxx, Xx. By: /s/Xxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx, Xx. Name: Xxxx Xxxxxx
Managing Director Title: Managing Director
SUBADVISER:
JANUS CAPITAL MANAGEMENT LLC
Attest: By: /s/Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
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Schedule A to the Subadvisory Agreement
for the SVS Growth Opportunities Portfolio (the "Series"), a series of Xxxxxxx
Variable Series II (the "Trust") dated as of April 5, 2002 between Deutsche
Investment Management Americas Inc. ("Manager")
and Janus Capital Management LLC ("Subadviser")
FEE SCHEDULE
As compensation for its services described herein, Subadviser shall receive from
the Manager a monthly fee based on a percentage of the combined average daily
net assets of the Series and of the SVS Growth and Income Portfolio, calculated
as the product of (a) the monthly fee determined on the basis of the combined
average daily net assets of the Series and of the SVS Growth and Income
Portfolio as provided in the schedule below, and (b) the quotient of (i) average
daily net assets of the Series for the period in question divided by (ii) the
combined average daily net assets of the Series and of the SVS Growth and Income
Portfolio for such period.
Net Assets* Annualized Rate
----------- ---------------
On the first $100 million 0.55%
On the next $400 million 0.50%
On the balance over $500 million 0.45%
* Combined net assets of the SVS Growth Opportunities Portfolio and the
SVS Growth and Income Portfolio.
The "average daily net assets" of the Series and of the SVS Growth and Income
Portfolio shall be calculated at such time or times as the Trustees of the Trust
may determine in accordance with the provisions of the Investment Company Act of
1940, as amended. The value of the net assets shall always be determined
pursuant to the applicable provisions of the Declaration of Trust and the
Registration Statement of the Trust. If the determination of net asset value
does not take place for any particular day, for the purposes of this Schedule A,
the net asset value shall be deemed to be the net asset value determined as of
the close of business on the last day on which such calculation was made for the
purpose of the foregoing computation. If the value of the net assets of a
portfolio is determined more than once on any day, then the last such
determination thereof on that day shall be deemed to be the sole determination
thereof on that day for the purposes of this Schedule A. Fees are charged
monthly in arrears based on one-twelfth of the annual fee rate. Fees will be
prorated appropriately if Subadviser does not perform services pursuant to this
Subadvisory Agreement for a full month.
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