EXHIBIT 23 (d) (5)
INVESTMENT SUB-ADVISORY AGREEMENT
THIS INVESTMENT SUB-ADVISORY AGREEMENT ("Agreement"), made this 19th day
of February, 2003, by and between Xxxxxx Advisors, LLC, a Delaware limited
liability company (the "Advisor"), and Delaware Management Company a Delaware
business trust (the "Sub-Advisor").
Advisor and Sub-Advisor agree as follows:
1. Advisor hereby engages the services of Sub-Advisor in connection with
Advisor's management of the Xxxxxx/Delaware Trend Portfolio (the "Portfolio") of
MLIG Variable Insurance Trust (the "Trust"). Pursuant to this Agreement and
subject to the oversight and supervision by Advisor and the officers and the
board of trustees of the Trust, Sub-Advisor shall manage the investment and
reinvestment of that portion of the assets of the Portfolio that the Advisor
shall, from time to time, direct.
2. Sub-Advisor hereby accepts appointment by Advisor 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-Advisor 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. In this connection, Sub-Advisor shall
provide Advisor and the officers and trustees of the Trust with such reports and
documentation as the latter shall reasonably request regarding Sub-Advisor's
management of the Portfolio assets.
4. Sub-Advisor 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-Advisor in writing, and (c)
applicable law and related regulations. Advisor shall promptly notify
Sub-Advisor in writing of changes to (a) or (b) above and shall notify
Sub-Advisor in writing of changes to (c) above promptly after it becomes aware
of such changes.
In particular, the Sub-Advisor 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 qualifies as a regulated investment company under Sub-Chapter M of
the Code.
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Sub-Advisor shall not consult with other sub-advisers of the Portfolio,
or with sub-advisers of other investment portfolios of the Trust, concerning
transactions in portfolio securities or other portfolio investments of the
Portfolio.
5. Sub-Advisor 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-Advisor 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 Advisor or the Trust instruct Sub-Advisor to place
orders with a particular broker or dealer, Sub-Advisor is directed at all times
to seek to obtain best execution and price within the policy guidelines
determined by the Trust's board of trustees and set forth in the Trust's current
registration statement.
To the extent permitted by the policy guidelines set forth in the
Trust's current registration statement, Sub-Advisor 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-Advisor 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 risk to such a broker or dealer of positioning
a block of securities, and (g) the overall quality of brokerage and research
services provided by such brokers and dealers. In connection with the foregoing,
Sub-Advisor 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-Advisor 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-Advisor's overall responsibilities with respect to the Portfolio and to any
other client accounts or portfolios which Sub-Advisor 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 Advisor, Sub-Advisor agrees and
is authorized to place orders with one or more brokers or dealers identified by
the Trust or Advisor (including brokers or dealers who are affiliated persons of
the Trust or Advisor). The execution of such transactions shall not be
considered to represent an unlawful breach of any duty created by this Agreement
or otherwise.
Sub-Advisor 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-Advisor.
When an order is so aggregated: (a) the actual prices applicable to the
aggregated transaction will be averaged and the Portfolio and each other account
or portfolio participating in the aggregated transaction shall be treated as
having
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purchased or sold its portion of the securities at such average price, 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. Advisor recognizes that in some
cases this procedure 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-Advisor may allocate such recommendations or transactions among
all accounts and portfolios for whom the recommendation is made or transaction
is effected on a basis that Sub-Advisor considers equitable.
6. Sub-Advisor's services under this Agreement are not exclusive.
Sub-Advisor may provide the same or similar services to other clients. Advisor
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-Advisor to give priority to the
Portfolio over other client accounts or portfolios.
7. Sub-Advisor 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 Advisor, the Trust or the Portfolio or
otherwise be deemed agents of the Advisor, the Trust or the Portfolio.
8. Sub-Advisor or an affiliated person of Sub-Advisor may act as broker for
the Portfolio in connection with the purchase or sale of securities or other
investments for the Portfolio, subject to: (a) the requirement that Sub-Advisor
seek to obtain best execution and price within the policy guidelines determined
by the Trust's board of trustees and set forth in the Trust's current
registration statement; (b) the provisions of the Investment Advisors Act of
1940, as amended (the "Advisors 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-Advisor
under this Agreement. Subject to the requirements of applicable law and any
procedures adopted by Trust's board of trustees, Sub-Advisor or its affiliated
persons may receive brokerage commissions, fees or other remuneration from the
Portfolio or the Trust for such services in addition to Sub-Advisor's fees for
services under this Agreement.
9. The Advisor delegates the Advisor's discretionary authority to exercise
voting rights with respect to the securities and other investments in the
Portfolio to the Sub-Advisor. The Sub-Advisor shall exercise these voting rights
unless and until the Advisor revokes this delegation. The Advisor may revoke
this delegation at any time without cause. The Sub-Advisor shall maintain and
preserve a record, in an easily-accessible place for a period of not less than
three years, of the Sub-Advisor's voting procedures, and of the Sub-Advisor's
actual votes, and shall supply this record to the Advisor, or any authorized
representative of the Advisor, upon the written request of the Advisor or the
Advisor's authorized representative, as appropriate.
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10. Nothing in this Agreement shall require Sub-Advisor to take or receive
physical possession of cash, securities or other investments of the Portfolio.
11. Sub-Advisor is registered with the U.S. Securities and Exchange
Commission under the Advisors Act. Sub-Advisor shall remain so registered
throughout the term of this Agreement and shall notify Advisor immediately if
Sub-Advisor ceases to be so registered as an investment advisor.
12. Sub-Advisor: (a) is duly organized and validly existing under the laws
of the State of New York 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 Advisors 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 Advisor of the occurrence of any event that would disqualify it from
serving as an investment advisor to an investment company pursuant to Section
9(a) of the 1940 Act.
13. Advisor: (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 Advisors 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 Sub-Advisor of the occurrence of any event that would
disqualify it from serving as an investment advisor to an investment company
pursuant to Section 9(a) of the 1940 Act. Advisor 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-Advisor has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide Advisor 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 president or a vice president of Sub-Advisor shall certify to
Advisor or the Trust that Sub-Advisor has complied with the requirements of Rule
17j-1 during the previous quarter and that there have been no violations of
Sub-Advisor's code of ethics or, if such a violation has occurred, that
appropriate action has been taken in response to such violation. Upon written
request of Advisor or the Trust, Sub-Advisor shall permit representatives of
Advisor or the Trust to examine the reports (or summaries of the reports)
required to be made to Sub-Advisor by Rule 17j-1(c)(1) and other records
evidencing enforcement of the code of ethics.
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15. For the services rendered, the facilities furnished and the expenses
assumed by Sub-Advisor, Advisor shall pay Sub-Advisor at the end of each month a
fee based on the average daily net assets of the Portfolio at the following
annual rates:
0.40% on the first $100 million
0.35% on the next $100 million
and
0.33% on amounts in excess of $200 million
Sub-Advisor's fee shall be accrued daily at 1/365th 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-Advisor 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)(9),
(b)(10) and (f) of Rule 31a-1 under the 1940 Act.
Sub-Advisor 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 Advisor or the Trust any such books, records or
information upon the Advisor's or the Trust's request (provided, however, that
Sub-Advisor 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-Advisor's
offices. Advisor and the Trust or either of their authorized representative
shall have the right to copy any records in the possession of Sub-Advisor 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 Advisor or the Trust. The Sub-Advisor agrees
that the policies and procedures established by the Sub-Advisor for managing the
Portfolio, including, but not limited to, all policies and procedures designed
to ensure compliance with federal and state regulations governing the
sub-advisor/client relationship and management and operation of the Portfolio,
shall be made available for inspection by the Advisor and the Trust or either of
their authorized representatives not less frequently than annually.
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17. Sub-Advisor 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 Advisor or
the Trust, or if such disclosure is required by federal or state regulatory
authorities.
Sub-Advisor may disclose the investment performance of the Portfolio,
provided that such disclosure does not reveal the identity of the Advisor, the
Portfolio or the Trust. Sub-Advisor may, however, disclose that Advisor, the
Trust and the Portfolio are its clients, provided that such disclosure does not
reveal the investment performance or the composition of the Portfolio.
18. In the absence of willful misfeasance, bad faith or gross negligence on
the part of Sub-Advisor or its officers, trustees or employees, or reckless
disregard by Sub-Advisor of its duties under this Agreement (together,
"disabling conduct"), Sub-Advisor shall not be liable to Advisor, 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, except
to the extent otherwise provided in Section 36(b) of the 1940 Act concerning
loss resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services. Notwithstanding the foregoing, breach by the
Sub-Advisor of the second paragraph of section 4 hereof is deemed to be
disabling conduct.
19. Sub-Advisor agrees to indemnify and defend Advisor, its officers,
trustees, partners, employees and any person who controls Advisor for any loss
or expense (including 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 relating to
disclosure about Sub-Advisor provided to Advisor by Sub-Advisor.
Sub-Advisor agrees to indemnify and defend Advisor, its officers,
trustees, partners, employees and any person who controls Advisor for any loss
or expense (including attorneys' fees) arising out of any claim, demand, action,
suit or proceeding arising out of the Sub-Advisor'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. Advisor agrees to indemnify and defend Sub-Advisor, its officers,
trustees, partners, employees and any person who controls Sub-Advisor for any
loss or expense (including 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 relating to disclosure about
Sub-Advisor approved by the Sub-Advisor or provided to Advisor or the Trust by
Sub-Advisor).
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21. The Sub-Advisor agrees to permit the Advisor and the Trust to use its
name, along side the Advisor'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 Advisor and the
Trust shall cease such use of the Sub-Advisor'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 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 Advisor and Sub-Advisor, or by the Advisor, or by the Sub-Advisor,
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 Advisor and the Trust regarding
the Advisor's management of the Portfolio.
24. This Agreement may be 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 Advisors Act and 1940 Act.
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.
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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
-----------------------------
Name: Xxxx Xxxxxxx
Title: President
ATTEST:
/s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------
Delaware Management Company
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
ATTEST:
/s/ Xxxxxxx Xxxxxxxx
---------------------------
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