77Q MA - N4T5
MANAGEMENT AGREEMENT
Xxxx Xxxxx Partners Fund Advisor, LLC
This MANAGEMENT AGREEMENT ("Agreement") is made this 27th day of April,
2007, by and between Xxxx Xxxxx Partners Variable Equity Trust (the "Trust")
and Xxxx Xxxxx Partners Fund Advisor, LLC, a Delaware limited liability
company (the "Manager").
WHEREAS, the Trust is a Maryland business trust registered as a
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, the Manager is engaged primarily in rendering investment
advisory, management and administrative services and is registered as an
investment adviser under the Investment Advisers Act of 1940, as amended;
WHEREAS, the Trust wishes to retain the Manager to provide investment
advisory, management, and administrative services to the Trust with respect
to the series of the Trust designated in Schedule A annexed hereto (the
"Fund"); and
WHEREAS, the Manager is willing to furnish such services on the terms
and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1.The Trust hereby appoints the Manager to act as investment
adviser and administrator of the Fund for the period and on the terms set
forth in this Agreement. The Manager accepts such appointment and agrees to
render the services herein set forth, for the compensation herein provided.
2.The Fund shall at all times keep the Manager fully informed
with regard to the securities owned by it, its funds available, or to become
available, for investment, and generally as to the condition of its affairs.
It shall furnish the Manager with such other documents and information with
regard to its affairs as the Manager may from time to time reasonably
request.
3.(a) Subject to the supervision of the Trust's Board of
Trustees (the "Board"), the Manager shall regularly provide the Fund with
investment research, advice, management and supervision and shall furnish a
continuous investment program for the Fund's portfolio of securities and
other investments consistent with the Fund's investment objectives, policies
and restrictions, as stated in the Fund's current Prospectus and Statement of
Additional Information. The Manager shall determine from time to time what
securities and other investments will be purchased (including, as permitted
in accordance with this paragraph, swap agreements, options and futures),
retained, sold or exchanged by the Fund and what portion of the assets of the
Fund's portfolio will be held in the various securities and other investments
in which the Fund invests, and shall implement those decisions (including the
execution of investment documentation), all subject to the provisions of the
Trust"s Declaration of Trust and By-Laws (collectively, the "Governing
Documents"), the 1940 Act, and the applicable rules and regulations
promulgated thereunder by the Securities and Exchange Commission (the "SEC")
and interpretive guidance issued thereunder by the SEC staff and any other
applicable federal and state law, as well as the investment objectives,
policies and restrictions of the Fund referred to above, and any other
specific policies adopted by the Board and disclosed to the Manager. The
Manager is authorized as the agent of the Trust to give instructions to the
custodian of the Fund as to deliveries of securities and other investments
and payments of cash for the account of the Fund. Subject to applicable
provisions of the 1940 Act and direction from the Board, the investment
program to be provided hereunder may entail the investment of all or
substantially all of the assets of the Fund in one or more investment
companies. The Manager will place orders pursuant to its investment
determinations for the Fund either directly with the issuer or with any
broker or dealer, foreign currency dealer, futures commission merchant or
others selected by it. In connection with the selection of such brokers or
dealers and the placing of such orders, subject to applicable law, brokers or
dealers may be selected who also provide brokerage and research services (as
those terms are defined in Section 28(e) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) to the Funds and/or the other accounts
over which the Manager or its affiliates exercise investment discretion. The
Manager is authorized to pay a broker or dealer who provides such brokerage
and research services a commission for executing a portfolio transaction for
the Fund which is in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Manager
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services provided by such
broker or dealer. This determination may be viewed in terms of either that
particular transaction or the overall responsibilities which the Manager and
its affiliates have with respect to accounts over which they exercise
investment discretion. The Board may adopt policies and procedures that
modify and restrict the Manager"s authority regarding the execution of the
Fund"s portfolio transactions provided herein. The Manager shall also
provide advice and recommendations with respect to other aspects of the
business and affairs of the Fund, shall exercise voting rights, rights to
consent to corporate action and any other rights pertaining to the Fund's
portfolio securities subject to such direction as the Board may provide, and
shall perform such other functions of investment management and supervision
as may be directed by the Board. The Manager may execute on behalf of the
Fund certain agreements, instruments and documents in connection with the
services performed by it under this Agreement. These may include, without
limitation, brokerage agreements, clearing agreements, account documentation,
futures and option agreements, swap agreements, other investment related
agreements, and any other agreements, documents or instruments the Manager
believes are appropriate or desirable in performing its duties under this
Agreement.
(b) Subject to the direction and control of the Board, the Manager
shall perform such administrative and management services as may from time to
time be reasonably requested by the Fund as necessary for the operation of
the Fund, such as (i) supervising the overall administration of the Fund,
including negotiation of contracts and fees with and the monitoring of
performance and xxxxxxxx of the Fund's transfer agent, shareholder servicing
agents, custodian and other independent contractors or agents, (ii) providing
certain compliance, fund accounting, regulatory reporting, and tax reporting
services, (iii) preparing or participating in the preparation of Board
materials, registration statements, proxy statements and reports and other
communications to shareholders, (iv) maintaining the Fund"s existence, and
(v) during such times as shares are publicly offered, maintaining the
registration and qualification of the Fund"s shares under federal and state
laws. Notwithstanding the foregoing, the Manager shall not be deemed to have
assumed any duties with respect to, and shall not be responsible for, the
distribution of the shares of any Fund, nor shall the Manager be deemed to
have assumed or have any responsibility with respect to functions
specifically assumed by any transfer agent, fund accounting agent, custodian,
shareholder servicing agent or other agent, in each case employed by the Fund
to perform such functions.
(c) The Fund hereby authorizes any entity or person associated with
the Manager which is a member of a national securities exchange to effect any
transaction on the exchange for the account of the Fund which is permitted by
Section 11(a) of the Exchange Act and Rule 11a2-2(T) thereunder, and the Fund
hereby consents to the retention of compensation for such transactions in
accordance with Rule 11a2-2(T)(a)(2)(iv). Notwithstanding the foregoing, the
Manager agrees that it will not deal with itself, or with members of the
Board or any principal underwriter of the Fund, as principals or agents in
making purchases or sales of securities or other property for the account of
the Fund, nor will it purchase any securities from an underwriting or selling
group in which the Manager or its affiliates is participating, or arrange for
purchases and sales of securities between the Fund and another account
advised by the Manager or its affiliates, except in each case as permitted by
the 1940 Act and in accordance with such policies and procedures as may be
adopted by the Fund from time to time, and will comply with all other
provisions of the Governing Documents and the Fund"s then-current Prospectus
and Statement of Additional Information relative to the Manager and its
directors and officers.
4.Subject to the Board's approval, the Manager or the Fund
may enter into contracts with one or more investment subadvisers or
subadministrators, including without limitation, affiliates of the Manager,
in which the Manager delegates to such investment subadvisers or
subadministrators any or all its duties specified hereunder, on such terms as
the Manager will determine to be necessary, desirable or appropriate,
provided that in each case the Manager shall supervise the activities of each
such subadviser or subadministrator and further provided that such contracts
impose on any investment subadviser or subadministrator bound thereby all the
conditions to which the Manager is subject hereunder and that such contracts
are entered into in accordance with and meet all applicable requirements of
the 1940 Act.
5.(a)The Manager, at its expense, shall supply the Board
and officers of the Trust with all information and reports reasonably
required by them and reasonably available to the Manager and shall furnish
the Fund with office facilities, including space, furniture and equipment and
all personnel reasonably necessary for the operation of the Fund. The
Manager shall oversee the maintenance of all books and records with respect
to the Fund's securities transactions and the keeping of the Fund's books of
account in accordance with all applicable federal and state laws and
regulations. In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Manager hereby agrees that any records that it maintains for
the Fund are the property of the Fund, and further agrees to surrender
promptly to the Fund any of such records upon the Fund's request. The
Manager further agrees to arrange for the preservation of the records
required to be maintained by Rule 31a-1 under the 1940 Act for the periods
prescribed by Rule 31a-2 under the 1940 Act. The Manager shall authorize and
permit any of its directors, officers and employees, who may be elected as
Board members or officers of the Fund, to serve in the capacities in which
they are elected.
(b) The Manager shall bear all expenses, and shall furnish all
necessary services, facilities and personnel, in connection with its
responsibilities under this Agreement. Other than as herein specifically
indicated, the Manager shall not be responsible for the Fund's expenses,
including, without limitation, advisory fees; distribution fees; interest;
taxes; governmental fees; voluntary assessments and other expenses incurred
in connection with membership in investment company organizations;
organization costs of the Fund; the cost (including brokerage commissions,
transaction fees or charges, if any) in connection with the purchase or sale
of the Fund"s securities and other investments and any losses in connection
therewith; fees and expenses of custodians, transfer agents, registrars,
independent pricing vendors or other agents; legal expenses; loan commitment
fees; expenses relating to share certificates; expenses relating to the
issuing and redemption or repurchase of the Fund's shares and servicing
shareholder accounts; expenses of registering and qualifying the Fund's
shares for sale under applicable federal and state law; expenses of
preparing, setting in print, printing and distributing prospectuses and
statements of additional information and any supplements thereto, reports,
proxy statements, notices and dividends to the Fund's shareholders; costs of
stationery; website costs; costs of meetings of the Board or any committee
thereof, meetings of shareholders and other meetings of the Fund; Board fees;
audit fees; travel expenses of officers, members of the Board and employees
of the Fund, if any; and the Fund's pro rata portion of premiums on any
fidelity bond and other insurance covering the Fund and its officers, Board
members and employees; litigation expenses and any non-recurring or
extraordinary expenses as may arise, including, without limitation, those
relating to actions, suits or proceedings to which the Fund is a party and
the legal obligation which the Fund may have to indemnify the Fund"s Board
members and officers with respect thereto.
0.Xx member of the Board, officer or employee of the Trust or
Fund shall receive from the Trust or Fund any salary or other compensation as
such member of the Board, officer or employee while he is at the same time a
director, officer, or employee of the Manager or any affiliated company of
the Manager, except as the Board may decide. This paragraph shall not apply
to Board members, executive committee members, consultants and other persons
who are not regular members of the Manager's or any affiliated company's
staff.
0.Xx compensation for the services performed and the
facilities furnished and expenses assumed by the Manager, including the
services of any consultants retained by the Manager, the Fund shall pay the
Manager, as promptly as possible after the last day of each month, a fee,
computed daily at an annual rate set forth opposite the Fund"s name on
Schedule A annexed hereto, provided however, that if the Fund invests all or
substantially all of its assets in another registered investment company for
which the Manager or an affiliate of the Manager serves as investment adviser
or investment manager, the annual fee computed as set forth on such Schedule
A shall be reduced by the aggregate management fees allocated to that Fund
for the Fund's then-current fiscal year from such other registered investment
company. The first payment of the fee shall be made as promptly as possible
at the end of the month succeeding the effective date of this Agreement, and
shall constitute a full payment of the fee due the Manager for all services
prior to that date. If this Agreement is terminated as of any date not the
last day of a month, such fee shall be paid as promptly as possible after
such date of termination, shall be based on the average daily net assets of
the Fund in that period from the beginning of such month to such date of
termination, and shall be that proportion of such average daily net assets as
the number of business days in such period bears to the number of business
days in such month. The average daily net assets of the Fund shall in all
cases be based only on business days and be computed as of the time of the
regular close of business of the New York Stock Exchange, or such other time
as may be determined by the Board.
8.The Manager assumes no responsibility under this Agreement
other than to render the services called for hereunder, in good faith, and
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
execution of securities transactions for the Fund, provided that nothing in
this Agreement shall protect the Manager against any liability to the Fund to
which the Manager would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its duties
or by reason of its reckless disregard of its obligations and duties
hereunder. As used in this Section 8, the term "Manager" shall include any
affiliates of the Manager performing services for the Trust or the Fund
contemplated hereby and the partners, shareholders, directors, officers and
employees of the Manager and such affiliates.
9.Nothing in this Agreement shall limit or restrict the right
of any director, officer, or employee of the Manager who may also be a Board
member, officer, or employee of the Trust or the Fund, to engage in any other
business or to devote his time and attention in part to the management or
other aspects of any other business, whether of a similar nature or a
dissimilar nature, nor to limit or restrict the right of the Manager to
engage in any other business or to render services of any kind, including
investment advisory and management services, to any other fund, firm,
individual or association. If the purchase or sale of securities consistent
with the investment policies of the Fund or one or more other accounts of the
Manager is considered at or about the same time, transactions in such
securities will be allocated among the accounts in a manner deemed equitable
by the Manager. Such transactions may be combined, in accordance with
applicable laws and regulations, and consistent with the Manager"s policies
and procedures as presented to the Board from time to time.
10.For the purposes of this Agreement, the Fund's "net assets"
shall be determined as provided in the Fund"s then-current Prospectus and
Statement of Additional Information and the terms "assignment," "interested
person," and "majority of the outstanding voting securities" shall have the
meanings given to them by Section 2(a) of the 1940 Act, subject to such
exemptions as may be granted by the SEC by any rule, regulation or order.
11.This Agreement will become effective with respect to the
Fund on the date set forth opposite the Fund"s name on Schedule A annexed
hereto, provided that it shall have been approved by the Trust"s Board and by
the shareholders of the Fund in accordance with the requirements of the 1940
Act and, unless sooner terminated as provided herein, will continue in effect
until November 30, 2007. Thereafter, if not terminated, this Agreement shall
continue in effect with respect to the Fund, so long as such continuance is
specifically approved at least annually (i) by the Board or (ii) by a vote of
a majority of the outstanding voting securities of the Fund, provided that in
either event the continuance is also approved by a majority of the Board
members who are not interested persons of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval.
12.This Agreement is terminable with respect to the Fund
without penalty by the Board or by vote of a majority of the outstanding
voting securities of the Fund, in each case on not more than 60 days' nor
less than 30 days' written notice to the Manager, or by the Manager upon not
less than 90 days' written notice to the Fund, and will be terminated upon
the mutual written consent of the Manager and the Trust. This Agreement
shall terminate automatically in the event of its assignment by the Manager
and shall not be assignable by the Trust without the consent of the Manager.
13.The Manager agrees that for services rendered to the Fund,
or for any claim by it in connection with services rendered to the Fund, it
shall look only to assets of the Fund for satisfaction and that it shall have
no claim against the assets of any other portfolios of the Trust. The
undersigned officer of the Trust has executed this Agreement not
individually, but as an officer under the Trust"s Declaration of Trust and
the obligations of this Agreement are not binding upon any of the Trustees,
officers or shareholders of the Trust individually.
00.Xx provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought, and no material amendment of the Agreement shall be
effective until approved, if so required by the 1940 Act, by vote of the
holders of a majority of the Fund's outstanding voting securities.
15.This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof. Should any part of
this Agreement be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby.
This Agreement shall be binding on and shall inure to the benefit of the
parties hereto and their respective successors.
16.This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of New
York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized.
XXXX XXXXX PARTNERS VARIABLE EQUITY TRUST
By:
Name:
Title:
XXXX XXXXX PARTNERS FUND ADVISOR, LLC
By:
Name:
Title:
Schedule A
Xxxx Xxxxx Partners Variable Small Cap Growth Portfolio
Date:
April 27, 2007
Fee:
The following percentage of the Fund"s average daily net assets: 0.75%
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