Exhibit (d)(21)
INVESTMENT SUB-ADVISORY AGREEMENT
THIS INVESTMENT SUB-ADVISORY AGREEMENT ("Agreement"), made this 29th day of
June, 2005, by and between Xxxxxx Advisors, LLC, a Delaware limited liability
company (the "Adviser"), and Xxxxxxx Capital Management, LLC, a Delaware limited
liability company (the "Sub-Adviser").
Adviser and Sub-Adviser agree as follows:
1. Adviser hereby engages the services of the Sub-Adviser in connection with
Adviser's management of the Xxxxxx/Xxxxxxx Large Cap CORE Portfolio (the
"Portfolio") of MLIG Variable Insurance Trust (the "Trust"). Pursuant to this
Agreement and subject to the oversight and supervision by Adviser and the
officers and the board of trustees of the Trust, Sub-Adviser shall manage the
investment and reinvestment of the assets of the Xxxxxx/ Xxxxxxx Large Cap CORE
Portfolio that the Adviser shall, from time to time, direct.
2. Sub-Adviser hereby accepts appointment by Adviser in the foregoing capacity
and agrees, at its own expense, to render the services set forth herein and to
provide the office space, furnishings, equipment and personnel required by it to
perform such services on the terms and for the compensation provided in this
Agreement.
3. In particular, Sub-Adviser shall furnish continuously an investment program
for the Portfolio and shall determine from time to time in its discretion the
securities and other investments to be purchased or sold or exchanged and what
portions of the Portfolio shall be held in various securities, cash or other
investments. Sub-Adviser may give standing instructions to the Portfolio's
custodian to automatically invest any uninvested cash assets of the Portfolio in
particular cash equivalent investments on a daily basis. In this connection,
Sub-Adviser shall provide Adviser and the officers and trustees of the Trust
with such reports and documentation as the latter shall reasonably request
regarding Sub-Adviser's management of the Portfolio assets.
4. Sub-Adviser shall carry out its responsibilities under this Agreement in
compliance with: (a) the Portfolio's investment objective, policies and
restrictions as set forth in the Trust's current registration statement, (b)
such policies or directives as the Trust's trustees may from time to time
establish or issue and communicate to the Sub-Adviser in writing, and (c)
applicable law and related regulations. Adviser shall promptly notify
Sub-Adviser in writing of changes to (a) or (b) above and shall notify
Sub-Adviser in writing of changes to (c) above promptly after it becomes aware
of such changes.
In particular, the Sub-Adviser shall be responsible to ensure that the
Portfolio: (a) complies with the diversification requirements of Section 817(h)
of the Internal Revenue Code of 1986, as amended, (the "Code") and regulations
issued thereunder as these apply to separate accounts through which variable
life insurance contracts and variable annuity contracts are issued, and (b)
continuously qualities as a regulated investment company under Sub-Chapter M of
the Code.
Sub-Adviser shall not consult with sub-advisers of other investment
portfolios of the Trust, concerning transactions in portfolio securities or
other portfolio investments of the Portfolio.
Sub-Adviser does not warrant that the investment performance or holdings of
the Portfolio will match the performance or holdings of an index or benchmark or
any other portfolio managed by Sub-Adviser. The performance and holdings of the
Portfolio may differ substantially from those of other portfolios managed by
Sub-Adviser. Adviser and the Trust may represent in disclosure documents (to the
extent consistent with specific disclosure language agreed upon by the
Sub-Adviser) that the Sub-Adviser will manage the Portfolio in the Sub-Adviser's
diversified growth style. Adviser and the Trust will not represent, however,
that the Sub-Adviser will manage the Portfolio identically with or similarly to
any other particular portfolio managed by Sub-Adviser.
5. Sub-Adviser shall take all actions which it considers necessary to implement
the investment policies of the Portfolio as these relate to the Portfolio, and
in particular, to place all orders for the purchase or sale of securities or
other investments for the Portfolio with brokers or dealers selected by it, and
to that end, Sub-Adviser is authorized as the agent of the Trust to give
instructions to the Trust's custodian as to deliveries of securities or other
investments and payments of cash for the account of the Portfolio. In connection
with the selection of brokers or dealers and the placing of purchase and sale
orders with respect to investments of the Portfolio, except where Adviser or the
Trust instruct Sub-Adviser to place orders with a particular broker or dealer,
Sub-Adviser is directed at all times to seek to obtain best execution within the
policy guidelines determined by the Trust's board of trustees and set forth in
the Trust's current registration statement, and Sub-Adviser's applicable
policies and procedures.
As currently permitted by the policy and guidelines set forth in the
Trust's current registration statement and as authorized by Section 28(e) of the
Securities Exchange Act of 1934, Sub-Adviser is authorized to consider, in the
selection of brokers and dealers to execute portfolio transactions, not only the
available prices and rates of brokerage commissions, but also other relevant
factors which may include, without limitation: (a) the execution capabilities of
such brokers and dealers, (b) research, custody and other services provided by
such brokers and dealers which the Sub-Adviser believes will enhance its general
portfolio management capabilities, (c) the size of the transaction, (d) the
difficulty of execution, (e) the operational facilities of such brokers and
dealers, (f) the block-positioning capabilities of such brokers or dealers, and
(g) the overall quality of brokerage and research services provided by such
brokers and dealers. In connection with the foregoing, Sub-Adviser is
specifically authorized to pay those brokers and dealers who provide brokerage
and research services to it a higher commission than that charged by other
brokers and dealers if the Sub-Adviser determines in good faith that the amount
of such commission is reasonable in relation to the value of such services in
terms of either the particular transaction or in terms of Sub-Adviser's overall
responsibilities with respect to the Portfolio and to any other client accounts
or portfolios which Sub-Adviser advises. The execution of such transactions
shall not be considered to represent an unlawful breach of any duty created by
this Agreement or otherwise.
In connection with the selection of brokers or dealers and the placing of
purchase and sale orders with respect to investments of the Portfolio, when
instructed to do so by either the Trust or the Adviser, Sub-Adviser agrees,
consistent with its applicable policies and procedures, and is authorized to
place orders with one or more brokers or dealers identified by the Trust or
Adviser (including brokers or dealers who are affiliated persons of the Trust or
Adviser). The execution of such
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transactions shall not be considered to represent an unlawful breach of any duty
created by this Agreement or otherwise.
Sub-Adviser also is authorized to aggregate purchase and sale orders for
securities held (or to be held) in the Portfolio with similar orders being made
on the same day for other client accounts or portfolios managed by Sub-Adviser.
When an order is so aggregated Sub-Adviser will generally, consistent with its
applicable policies and procedures: (a) seek to assure that each account
participating in the aggregated transaction receives the average share price for
the securities, and (b) all transaction costs incurred in effecting the
aggregated transaction shall be shared on a pro-rata basis among the accounts or
portfolios (including the Portfolio) participating in the transaction. The
Adviser and the Trust recognize that in some cases aggregating transactions may
adversely affect the size of the position obtainable for the Portfolio.
When recommending or effecting a transaction in a particular security or
investment for more than one client account or portfolio (including the
Portfolio), Sub-Adviser may allocate such recommendations or transactions among
any or all accounts and portfolios for whom the recommendation is made or
transaction is effected on a basis that Sub-Adviser considers equitable.
6. Sub-Adviser's services under this Agreement are not exclusive. Sub-Adviser
may provide the same or similar services to other clients. Adviser acknowledges
that, except when transactions for multiple clients are aggregated, transactions
in a specific security or other investment may not be recommended or executed at
the same time or price for all client accounts or portfolios (including the
Portfolio) for which that security or investment is recommended or executed.
This Agreement does not require Sub-Adviser to give priority to the Portfolio
over other client accounts or portfolios.
7. Sub-Adviser shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Adviser, the Trust or the Portfolio or
otherwise be deemed agents of the Adviser, the Trust or the Portfolio.
8. An affiliated person of Sub-Adviser may act as broker for die Portfolio in
connection with the purchase or sale of securities or other investments for the
Portfolio, subject to: (a) the requirement that Sub-Adviser seek to obtain best
execution within the policy guidelines determined by the Trust's board of
trustees and set forth in the Trust's current registration statement and Sub-
Adviser's applicable policies and procedures; (b) the provisions of the
Investment Advisers Act of 1940, as amended (the "Advisers Act"); (c) the
provisions of the Securities Exchange Act of 1934, as amended; and (d) other
applicable provisions of law. Such brokerage services are not within the scope
of the duties of Sub-Adviser under this Agreement. Subject to the requirements
of applicable law and any procedures adopted by Trust's board of trustees, Sub-
Adviser's affiliated persons may receive brokerage commissions, fees or other
remuneration from the Portfolio or the Trust for such services in addition to
Sub-Adviser's fees for services under this Agreement.
9. The Adviser delegates the Adviser's discretionary authority to exercise proxy
voting rights with respect to the securities and other investments in the
Portfolio to the Sub-Adviser. The Sub-Adviser shall exercise these voting rights
unless and until the Adviser revokes this delegation. The Adviser may revoke
this delegation at any time without cause. The Sub- Adviser's Proxy Voting
Policy and Procedures shall guide all proxy voting decisions by the
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Sub-Adviser. The Sub-Adviser shall maintain and preserve a record, in an
easily-accessible place, of the Sub-Adviser's voting procedures, and of the
Sub-Adviser's actual votes for such period as required under the Advisers Act,
and shall supply or have its designee supply this record to the Adviser, or any
authorized, representative of the Adviser, upon the written request of the
Adviser or the Adviser's authorized representative, as appropriate. The
Sub-Adviser shall have no responsibility to process or file any claim forms
relating to any litigation by or on behalf of the Trust or the Portfolio.
10. Sub-Adviser will not take or receive physical possession of cash, securities
or other investments of the Portfolio.
11. Sub-Adviser is registered as an investment adviser with the U.S. Securities
and Exchange Commission under the Advisers Act. Sub-Adviser shall remain so
registered throughout the term of this Agreement and shall notify Adviser
immediately if Sub-Adviser ceases to be so registered as an investment adviser.
12. Sub-Adviser: (a) is duly organized and validly existing under the laws of
the State of Delaware with the power to own and possess its assets and carry on
its business as it is now being conducted, (b) has the authority to enter into
and perform the services contemplated by this Agreement, (c) is not prohibited
by the Investment Company Act of 1940, as amended, (the "1940 Act") or the
Advisers Act from performing the services contemplated by this Agreement, (d)
has met, and will continue to seek to meet for the duration of this Agreement,
any other applicable federal or state requirements, or the applicable
requirements of any regulatory or industry self regulatory agency, necessary to
be met in order to perform the services this Agreement, and (e) will promptly
notify Adviser of the occurrence of any event that Sub-Adviser is aware of that
would disqualify it from serving as an investment adviser to an investment
company pursuant to Section 9(a) of the 1940 Act.
13. Adviser: (a) is duly organized and validly existing under the laws of the
State of Delaware with the power to own and possess its assets and carry on its
business as it is now being conducted, (b) has the authority to enter into and
perform the services contemplated by this Agreement, (c) is not prohibited by
the 1940 Act or the Advisers Act from performing the services contemplated by
this Agreement, (d) has met, and will continue to seek to meet for the duration
of this Agreement, any other applicable federal or state requirements, or the
applicable requirements of any regulatory or industry self-regulatory agency,
necessary to be met in order to perform the services of this Agreement, and (e)
will promptly notify Sub-Adviser of the occurrence of any event that would
disqualify it from serving as an investment adviser to an investment company
pursuant to Section 9(a) of the 1940 Act. Adviser represents that the Trust is
(and during the term of this Agreement, will remain) registered as an open-end
management investment company under the 1940 Act and that the shares of the
Trust representing an interest in the Portfolio are (and during the term of this
Agreement will remain) registered under the Securities Act of 1933 and under any
applicable state securities laws.
14. Sub-Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide Adviser and the
Trust with a copy of that code, together with evidence of its adoption. Within
20 days of the end of each calendar quarter during which this Agreement remains
in effect, the Sub-Adviser shall certify to Adviser or the Trust that
Sub-Adviser
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has adopted procedures reasonably necessary to prevent Access persons from
violating its Code of Ethics, and will report any material changes in or
material violations of its Code of Ethics.
15. For the services rendered, the facilities furnished and the expenses assumed
by Sub-Adviser, Adviser shall pay Sub-Adviser at the end of each month a fee
based on the average daily net assets of the Portfolio at an annual rate of
0.40%.
Sub-Adviser's fee shall be accrued daily at l/365th of the applicable
annual rate set forth above. For the purpose of accruing compensation, the net
assets of the Portfolio shall be determined in the manner and on the dates set
forth in the current prospectus of the Trust, and, on days on which the net
assets are not so determined, the net asset value computation to be used shall
be as determined on the immediately preceding day on which the net assets were
determined. In the event of termination of this Agreement, all compensation due
through the date of termination will be calculated on a pro-rated basis through
the date of termination and paid within thirty business days of the date of
termination.
During any period when the determination of net asset value is suspended,
the net asset value of the Portfolio as of the last business day prior to such
suspension shall for this purpose be deemed to be the net asset value at the
close of each succeeding business day until it is again determined.
16. Sub-Adviser hereby undertakes and agrees to maintain, in the form and for
the period required by Rule 31a-2 under the 1940 Act, all records relating to
the Portfolio's investments that are required to be maintained by the Trust
pursuant to the requirements of paragraphs (b)(5), (b)(6), (b)(7), (b)(10) and
(f) of Rule 31a-1 under the 1940 Act.
Sub-Adviser agrees that all books and records which it maintains for the
Portfolio or the Trust are the property of the Trust and further agrees to
surrender promptly to the Adviser or the Trust any such books, records or
information upon the Adviser's or the Trust's request (provided, however, that
Sub-Adviser may retain copies of such records). All such books and records shall
be made available, within five business days of a written request, to the
Trust's accountants or auditors during regular business hours at Sub-Adviser's
offices. Adviser and the Trust or either of their authorized representatives
shall have the right to copy any records in the possession of Sub-Adviser which
pertain to the Portfolio or the Trust. Such books, records, information or
reports shall be made available to properly authorized government
representatives consistent with state and federal law and/or regulations. In the
event of the termination of this Agreement, all such books, records or other
information shall be returned to Adviser or the Trust. The Sub-Adviser agrees
that any policies and procedures established by the Sub-Adviser for managing
client assets, including, but not limited to, all policies and procedures
designed to ensure compliance with federal and state regulations governing the
sub-adviser/client relationship and management of the investment and
reinvestment of client assets, shall be made available for inspection by the
Adviser and the Trust or either of their authorized representatives not less
frequently than annually.
17. Sub-Adviser agrees that it will not disclose or use any records or
confidential information obtained pursuant to this Agreement in any manner
whatsoever except as authorized in this Agreement or specifically by Adviser or
the Trust, or if such disclosure is required by federal or state regulatory
authorities; provided, however, that the Sub-Adviser may disclose information
about the Portfolio to other persons for operational, compliance, or risk
management purposes as necessary for Sub-Adviser to perform its duties under
this Agreement.
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Sub-Adviser may disclose the investment performance of the Portfolio,
provided that such disclosure does not reveal the identity of the Adviser, the
Portfolio or the Trust. Sub-Adviser may, however, disclose that Adviser, the
Trust and the Portfolio are its clients, provided that such disclosure does not
reveal the investment performance or the composition of the Portfolio's assets
managed by the Sub-Adviser.
18. In the absence of willful misfeasance, bad faith or gross negligence on the
part of Sub-Adviser or its officers, trustees or employees, or reckless
disregard by Sub-Adviser of its duties under this Agreement (together,
"disabling conduct"), Sub-Adviser shall not be liable to Adviser, the Portfolio,
the Trust or to any shareholder of the Portfolio for any act or omission in the
course of, or connected with, rendering services hereunder or for any losses
that may be sustained in the purchase, holding or sale of any security.
19. Sub-Adviser agrees to indemnify and defend Adviser, its officers, trustees,
partners, employees and any person who controls Adviser for any loss or expense
(including reasonable attorneys' fees) arising out of any claim, demand, action,
suit or proceeding arising out of any actual or alleged material misstatement or
omission in the Trust's registration statement, any proxy statement, or
communication to current or prospective investors in the Portfolio arising
directly out of disclosure about Sub-Adviser provided to Adviser by Sub-Adviser.
Sub-Adviser agrees to indemnify and defend Adviser, its officers, trustees,
partners, employees and any person who controls Adviser for any loss or expense
(including reasonable attorneys' fees) arising out of any claim, demand, action,
suit or proceeding arising out of the Sub-Adviser's failure to ensure that the
Portfolio: (a) complies with the diversification requirements of Section 817(h)
of the Code and regulations issued thereunder as these apply to separate
accounts through which variable life insurance contracts and variable annuity
contracts are issued, and (b) continuously qualifies as a regulated investment
company under Sub-Chapter M of the Code.
20. Adviser agrees to indemnify and defend Sub-Adviser, its officers, trustees,
partners, employees and any person who controls Sub-Adviser for any loss or
expense (including reasonable attorneys' fees) arising out of any claim, demand,
action, suit or proceeding arising out of any actual or alleged material
misstatement or omission in the Trust's registration statement, any proxy
statement, or other communication to current or prospective investors in the
Portfolio (other than a misstatement or omission arising directly out of
disclosure about Sub-Adviser approved by the Sub-Adviser or provided to Adviser
or the Trust by Sub-Adviser).
21. The Sub-Adviser agrees to permit the Adviser and the Trust to use its name,
along side the Adviser's name, in the Portfolio's name and in descriptions of
the Portfolio, as these appear in the Trust's prospectus(es) and/or sales
literature related to the Portfolio, provided, however, that the Adviser and the
Trust shall cease such use of the Sub-Adviser's name in the event that this
Agreement is terminated.
22. This Agreement shall not become effective unless and until it is approved by
the board of trustees of the Trust, including a majority of trustees who are not
parties to this Agreement or interested persons of any such party to this
Agreement, and, to the extent required by law, a majority of the outstanding
shares of the class of the Trust's stock representing an interest in the
Portfolio. This Agreement shall come into full force and effect on the date
which it is so approved. This Agreement shall continue in effect for two years
and shall thereafter continue in effect from year to
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year so long as such continuance is specifically approved at least annually by
(a) the board of trustees of the Trust, or by the vote of a majority of the
outstanding shares of the class of stock representing an interest in the
Portfolio, and (b) a majority of those trustees 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.
23. Notwithstanding any other provision of this Agreement, this Agreement may be
terminated at any time without the payment of any penalty, by the Trust's board
of trustees, or by vote of a majority of the outstanding shares of the class of
stock representing an interest in the Portfolio on sixty days written notice to
the Adviser and Sub-Adviser, or by the Adviser, or by the Sub-Adviser, on sixty
days written notice to the other. This Agreement shall automatically terminate
in the event of its assignment or in the event of the termination of the
investment advisory agreement between the Adviser and the Trust regarding the
Adviser's management of the Portfolio.
24. This Agreement may be materially amended by the parties only if such
amendment is specifically approved by (a) a majority of those trustees 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, and, if
required by applicable law, (b) a majority of votes attributable to the
outstanding Trust shares of the class representing an interest in the Portfolio.
25. The terms "assignment", "affiliated person" and "interested person", when
used in this Agreement, shall have the respective meanings specified in the 1940
Act. The term "majority of the outstanding shares of the class" means the lesser
of (a) 67% or more of the votes attributable to shares of such class present at
a meeting if more than 50% of the votes attributable to such shares are present
or represented by proxy or (b) more than 50% of the votes attributable to shares
of such class.
26. This Agreement shall be construed in accordance with laws of the State of
Delaware, and applicable provisions of the Advisers Act and 1940 Act.
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27. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
Xxxxxx Advisors, LLC
By /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
ATTEST:
/s/ Illegible
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Xxxxxxx Capital Management, LLC
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: President
ATTEST:
/s/ Illegible
-------------------------------------
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