Exhibit 23(d)(xxxi)
SUBADVISORY AGREEMENT
This SUBADVISORY AGREEMENT is dated as of May 1, 2007 by and between AIG
SUNAMERICA ASSET MANAGEMENT CORP., a Delaware corporation (the "Adviser"), and
OPPENHEIMERFUNDS, INC., a Colorado corporation (the "Subadviser").
WITNESSETH:
WHEREAS, the Adviser and SunAmerica Series Trust, a Massachusetts business
trust (the "Trust"), have entered into an Investment Advisory and Management
Agreement dated as of January 1, 1999, as amended from time to time (the
"Advisory Agreement"), pursuant to which the Adviser has agreed to provide
investment management, advisory and administrative services to the Trust, and
pursuant to it which the Adviser may delegate one or more of its duties to a
subadviser pursuant to a written subadvisory agreement; and
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Act"), as an open-end management investment company and may
issue shares of beneficial interest, no par value per share, in separately
designated portfolios representing separate funds with their own investment
objectives, policies and purposes; and
WHEREAS, the Subadviser is engaged in the business of rendering investment
advisory services and is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended; and
WHEREAS, the Adviser desires to retain the Subadviser to furnish investment
advisory services to the investment portfolio(s) of the Trust listed on Schedule
A attached hereto (the "Portfolio(s)"), and the Subadviser is willing to furnish
such services;
NOW, THEREFORE, it is hereby agreed between the parties hereto as follows:
1. DUTIES OF THE SUBADVISER. The Adviser hereby engages the services of the
Subadviser in furtherance of its Advisory Agreement with the Trust. Pursuant to
this Subadvisory Agreement and subject to the oversight and review of the
Adviser, the Subadviser will manage the investment and reinvestment of the
assets of each Portfolio. The Subadviser will determine, in its discretion and
subject to the oversight and review of the Adviser, the securities and other
investments to be purchased or sold. As reasonably requested, the Subadviser
will provide the Adviser with records concerning its activities which the
Adviser or the Trust is required to maintain, and will render regular reports to
the Adviser and to officers and Trustees of the Trust concerning its discharge
of the foregoing responsibilities. The Subadviser, as agent and attorney-in-fact
of the Trust, may, when it deems appropriate and without prior consultation with
the Adviser, (a) buy, sell, exchange, convert and otherwise trade in any stocks,
bonds and other securities including money market instruments, whether the
issuer is organized in the United States or outside the United States, (b) place
orders for the execution of such securities
transactions with or through such brokers, dealers or issuers as the Subadviser
may select and (c) purchase, sell, exchange or convert foreign currency in the
spot or forward markets as necessary to facilitate transactions in international
securities for the Portfolio(s). In addition, the custodian shall provide the
Subadviser with daily reports regarding the cash levels in the Portfolio. The
Subadviser shall discharge the foregoing responsibilities subject to the review
and oversight of the officers and the Trustees of the Trust and, using its best
efforts and provided it has had sufficient opportunity to act, in compliance
with such policies as the Trustees of the Trust may from time to time establish,
and in compliance with (a) the objectives, policies, restrictions and
limitations for the Portfolio(s) as set forth in the Trust's current prospectus
and statement of additional information; and (b) applicable laws and
regulations.
In performing its obligations under this Agreement, the Subadviser may
rely upon information provided to it by the Portfolio(s) or on behalf of the
Portfolio(s), the Adviser, the Portfolio(s)' custodian(s) or other agent and
will not independently verify the accuracy or completeness of such information.
The Subadviser (and its officers, directors/trustees, agents, employees,
controlling persons, shareholders and any other person or entity affiliated with
the Subadviser) shall not be liable for any loss, claim or damages related to
such reliance.
The Adviser agrees to provide the Subadviser with such assistance as
may be reasonably requested by the Subadviser in connection with its activities
under this Agreement, including, without limitation, information concerning the
Portfolio(s), its funds available, or to become available, for investment and
generally as to the conditions of the Portfolio(s) or the Portfolio(s)' affairs.
In addition, the Adviser will provide the Subadviser with such materials or
information regarding the Portfolio(s) that the Subadviser may reasonably
request to the extent they may materially affect the duties of the Subadviser.
The Subadviser represents and warrants to the Adviser that it shall
use its best efforts to manage each Portfolio (a) in compliance with all
applicable federal and state laws, including securities, commodities and banking
laws, governing its operations and investments; (b) so as not to jeopardize
either the treatment of the variable annuity contracts which offer the
Portfolio(s) (the "Contracts") as annuity contracts for purposes of the Internal
Revenue Code of 1986, as amended (the "Code"); and (c) to minimize any penalties
payable by the Trust or the Portfolio(s). Without limiting the foregoing, the
Subadviser represents and warrants that it shall use its best efforts to manage
each Portfolio in compliance with (a) the applicable provisions of Subchapter M,
chapter 1 of the Code ("Subchapter M") for each Portfolio to be treated as a
"regulated investment company" under Subchapter M; (b) the diversification
requirements specified in the Internal Revenue Service's regulations under
Section 817(h) of the Code; (c) the provisions of the Act and rules adopted
thereunder; (d) the objectives, policies, restrictions and limitations for the
Portfolio(s) as set forth in the Trust's current prospectus and statement of
additional information as most recently provided by the Adviser to the
Subadviser; and (e) the policies and procedures as adopted by the Trustees of
the Trust, provided the Subadviser has had sufficient opportunity to implement
such policies and procedures. The Subadviser shall furnish information to the
Adviser, as requested, for purposes of compliance with the distribution
requirements necessary to avoid payment of any excise tax pursuant to Section
4982 of the Code.
-2-
The Adviser will provide the Subadviser with advance notice of any
change in the Portfolio(s)' investment objectives, policies and restrictions as
stated in the prospectus or in any procedures and policies adopted by the
Trustees of the Trust and/or the Adviser, and the Subadviser shall, in the
performance of its duties and obligations under this Agreement, manage each
Portfolio's investments in compliance with such changes, provided the Subadviser
has received prompt notice of the effectiveness of such changes from the Trust
or the Adviser and has had sufficient opportunity to implement such changes. In
addition to such notice, the Adviser shall provide to the Subadviser a copy of a
modified Prospectus reflecting such changes provided that such Prospectus was so
modified.
The Subadviser shall provide reasonable assistance [which would
include a recommended price followed by a written rationale] to the Adviser
regarding the valuation of securities that are not registered for public sale,
not traded on any securities markets, or otherwise may be deemed illiquid for
purposes of the 1940 Act and for which market quotations are not readily
available, provided, however, that the parties acknowledge that the Subadviser
is not the fund accounting agent for the Portfolio(s) and is not responsible for
pricing determinations or calculations and any information provided pursuant to
this provision by the Subadviser will be provided for information purposes only.
The Subadviser makes no representation or warranty, express or
implied, that any level of performance or investment results will be achieved by
the Portfolio(s), whether on a relative or absolute basis.
The Subadviser further represents and warrants that to the extent that
any statements or omissions made in any Registration Statement for the Contracts
or shares of the Trust, or any amendment or supplement thereto, are made in
reliance upon and in conformity with information furnished by the Subadviser
expressly for use therein, such Registration Statement and any amendments or
supplements thereto will, when they become effective, conform in all material
respects to the requirements of the Securities Act of 1933 and the rules and
regulations of the Commission thereunder (the "1933 Act") and the Act and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
The Subadviser agrees: (a) to maintain a level of errors and omissions
or professional liability insurance coverage that, at all times during the
course of this Agreement, is appropriate given the nature of its business, and
(b) from time to time and upon reasonable request, make representations to the
Adviser as to the status and amount of such coverage.
The Subadviser accepts such employment 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.
2. PORTFOLIO TRANSACTIONS. The Subadviser is responsible for decisions to
buy or sell securities and other investments for the assets of each Portfolio,
broker-dealers and futures commission merchants' selection, and negotiation of
brokerage commission and futures
-3-
commission merchants' rates. As a general matter, in executing portfolio
transactions, the Subadviser may employ or deal with such broker-dealers or
futures commission merchants as may, in the Subadviser's best judgement, provide
prompt and reliable execution of the transactions at favorable prices and
reasonable commission rates. In selecting such broker-dealers or futures
commission merchants, the Subadviser shall consider all relevant factors
including, but not limited to, price (including the applicable brokerage
commission, dealer spread or futures commission merchant rate), the size of the
order, the nature of the market for the security or other investment, the timing
of the transaction, the reputation, experience and financial stability of the
broker-dealer or futures commission merchant involved, the quality of the
service, the difficulty of execution, the execution capabilities and operational
facilities of the firm involved, and, in the case of securities, the firm's risk
in positioning a block of securities. Subject to such policies as the Trustees
may determine and consistent with Section 28(e) of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), the Subadviser shall not be deemed to have
acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of the Subadviser's having caused a Portfolio to pay
a member of an exchange, broker or dealer an amount of commission for effecting
a securities transaction in excess of the amount of commission another member of
an exchange, 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 services
provided by such member of an exchange, broker or dealer viewed in terms of
either that particular transaction or the Subadviser's overall responsibilities
with respect to such Portfolio and to other clients as to which the Subadviser
exercises investment discretion. In accordance with Section 11(a) of the 1934
Act and Rule 11a2-2(T) thereunder, and subject to any other applicable laws and
regulations including Section 17(e) of the Act and Rule 17e-1 thereunder, the
Subadviser may engage its affiliates, the Adviser and its affiliates or any
other subadviser to the Trust and its respective affiliates, as broker-dealers
or futures commission merchants to effect portfolio transactions in securities
and other investments for a Portfolio. The Subadviser will promptly communicate
to the Adviser and to the officers and the Trustees of the Trust such
information relating to portfolio transactions as they may reasonably request.
To the extent consistent with applicable law, the Subadviser may aggregate
purchase or sell orders for the Portfolio with contemporaneous purchase or sell
orders of other clients of the Subadviser or its affiliated persons. In such
event, allocation of the securities so purchased or sold, as well as allocation
of the expenses incurred in the transaction, will be made by the Subadviser in
the manner the Subadviser determines to be equitable and consistent with its and
its affiliates' fiduciary obligations to the Portfolio and to such other
clients. The Adviser hereby acknowledges that such aggregation of orders may not
result in more favorable pricing or lower brokerage commissions in all
instances.
3. COMPENSATION OF THE SUBADVISER. The Subadviser shall not be entitled to
receive any payment from the Trust and shall look solely and exclusively to the
Adviser for payment of all fees for the services rendered, facilities furnished
and expenses paid by it hereunder. As full compensation for the Subadviser under
this Agreement, the Adviser agrees to pay to the Subadviser a fee at the annual
rates set forth in Schedule A hereto with respect to the assets managed by the
Subadviser for each Portfolio listed thereon. Such fee shall be accrued daily
and paid monthly as soon as practicable after the end of each month (i.e., the
applicable annual fee rate divided by 365 applied to each prior days' net assets
in order to calculate the daily accrual).
-4-
If the Subadviser shall provide its services under this Agreement for less than
the whole of any month, the foregoing compensation shall be prorated.
4. OTHER SERVICES. At the request of the Trust or the Adviser, the
Subadviser in its discretion, may make available to the Trust, office
facilities, equipment, personnel and other services in order to facilitate
meetings or other similar functions. Such office facilities, equipment,
personnel and services shall be provided for or rendered by the Subadviser and
billed to the Trust or the Adviser at the Subadviser's cost.
5. REPORTS. The Trust, the Adviser and the Subadviser agree to furnish to
each other, if applicable, current prospectuses, statements of additional
information, proxy statements, reports of shareholders, copies of their
financial statements, and such other information with regard to their affairs
and that of the Trust as each may reasonably request.
6. STATUS OF THE SUBADVISER. The services of the Subadviser to the Adviser
and the Trust are not to be deemed exclusive, and the Subadviser shall be free
to render similar services to others so long as its services to the Trust are
not impaired thereby. The Subadviser shall be deemed to be an independent
contractor and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Trust in any way or otherwise be deemed an
agent of the Trust.
7. PROXY VOTING. The Adviser will vote proxies relating to the Portfolio's
securities. The Adviser will vote all such proxies in accordance with such proxy
voting guidelines and procedures adopted by the Board of Trustees. The Adviser
may, on certain non-routine matters, consult with the Subadviser before voting
proxies relating to the Portfolio's securities. The Adviser will instruct the
custodian and other parties providing services to the Trust promptly to forward
to the proxy voting service copies of all proxies and shareholder communications
relating to securities held by each Portfolio (other than materials relating to
legal proceedings).
8. CERTAIN RECORDS. The Subadviser hereby undertakes and agrees to
maintain, in the form and for the periods required by applicable laws, rules and
regulations, all records relating to the investments of the Portfolio(s) that
are required to be maintained by the Trust pursuant to the applicable law, on
behalf of the Adviser.
The Subadviser agrees that all accounts, books and other records
maintained and preserved by it as required hereby shall be subject at any time,
and from time to time, to such reasonable periodic, special and other
examinations by the Securities and Exchange Commission, the Trust's auditors,
the Trust or any representative of the Trust, the Adviser, or any governmental
agency or other instrumentality having regulatory authority over the Trust.
9. REFERENCE TO THE SUBADVISER. Neither the Trust nor the Adviser or any
affiliate or agent thereof shall make reference to or use the name of the
Subadviser or any of its affiliates in any advertising or promotional materials
without the prior approval of the Subadviser, which approval shall not be
unreasonably withheld.
-5-
10. LIABILITY OF THE SUBADVISER. (a) In the absence of willful misfeasance,
bad faith, gross negligence or reckless disregard of obligations or duties
("disabling conduct") hereunder on the part of the Subadviser (and its officers,
directors/trustees, agents, employees, controlling persons, shareholders and any
other person or entity affiliated with the Subadviser) the Subadviser shall not
be subject to liability to the Adviser (and its officers, directors/trustees,
agents, employees, controlling persons, shareholders and any other person or
entity affiliated with the Adviser) or to the Trust (and its officers,
directors/trustees, agents, employees, controlling persons, shareholders and any
other person or entity affiliated with the Trust) for any act or omission in the
course of, or connected with, rendering services hereunder, including without
limitation, any error of judgment or mistake of law or for any loss suffered by
any of them in connection with the matters to which this Agreement relates,
except to the extent specified in Section 36(b) of the Act concerning loss
resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services. Except for such disabling conduct, the Adviser shall
indemnify the Subadviser (and its officers, directors, partners, agents,
employees, controlling persons, shareholders and any other person or entity
affiliated with the Subadviser) from any and all losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses)
arising from Subadviser's rendering of services under this Agreement.
(b) The Subadviser agrees to indemnify and hold harmless the Adviser
(and its officers, directors/trustees, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Adviser) and/or
the Trust (and its officers, directors/trustees, agents, employees, controlling
persons, shareholders and any other person or entity affiliated with the Trust)
against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses), to which the Adviser and/or the
Trust and their affiliates or such directors/trustees, officers or controlling
person may become subject under the Act, the 1933 Act, under other statutes,
common law or otherwise, which arise from the Subadviser's disabling conduct,
including but not limited to any material failure by the Subadviser to comply
with the provisions and representations and warranties set forth in Section 1 of
this Agreement; provided, however, that in no case is the Subadviser's indemnity
in favor of any person deemed to protect such other persons against any
liability to which such person would otherwise be subject by reasons of willful
misfeasance, bad faith, or gross negligence in the performance of his, her or
its duties or by reason of his, her or its reckless disregard of obligations and
duties under this Agreement.
11. PERMISSIBLE INTERESTS. Trustees and agents of the Trust are or may be
interested in the Subadviser (or any successor thereof) as directors/trustees,
partners, officers, or shareholders, or otherwise; directors/trustees, partners,
officers, agents, and shareholders of the Subadviser are or may be interested in
the Trust as trustees, or otherwise; and the Subadviser (or any successor) is or
may be interested in the Trust in some manner.
12. TERM OF THE AGREEMENT. This Agreement shall continue in full force and
effect with respect to each Portfolio until two years from the date hereof, and
from year to year thereafter so long as such continuance is specifically
approved at least annually (i) by the vote of a majority of those Trustees of
the Trust 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
-6-
approval, and (ii) by the Trustees of the Trust or by vote of a majority of the
outstanding voting securities of the Portfolio voting separately from any other
series of the Trust.
With respect to each Portfolio, this Agreement may be terminated at
any time, without payment of a penalty by the Portfolio or the Trust, by vote of
a majority of the Trustees, or by vote of a majority of the outstanding voting
securities (as defined in the Act) of the Portfolio, voting separately from any
other series of the Trust, or by the Adviser, on not less than 30 nor more than
60 days' written notice to the Subadviser. With respect to each Portfolio, this
Agreement may be terminated by the Subadviser at any time, without the payment
of any penalty, on 90 days' written notice to the Adviser and the Trust. The
termination of this Agreement with respect to any Portfolio or the addition of
any Portfolio to Schedule A hereto (in the manner required by the Act) shall not
affect the continued effectiveness of this Agreement with respect to each other
Portfolio subject hereto. This Agreement shall automatically terminate in the
event of its assignment (as defined by the Act).
This Agreement will also terminate in the event that the Advisory Agreement
by and between the Trust and the Adviser is terminated.
13. SEVERABILITY. 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.
14. AMENDMENTS. This Agreement may be amended by mutual consent in writing,
but the consent of the Trust must be obtained in conformity with the
requirements of the Act.
15. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of New York and the applicable provisions of the Act. To the
extent the applicable laws of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the Act, the latter shall
control.
16. PERSONAL LIABILITY. The Declaration of the Trust establishing the Trust
(the "Declaration"), is on file in the office of the Secretary of the
Commonwealth of Massachusetts, and, in accordance with that Declaration, no
Trustee, shareholder, officer, employee or agent of the Trust shall be held to
any personal liability, nor shall resort be had to their private property for
satisfaction of any obligation or claim or otherwise in connection with the
affairs of the Trust, but the "Trust Property," as defined in the Declaration,
only shall be liable.
17. SEPARATE SERIES. Pursuant to the provisions of the Declaration, each
Portfolio is a separate series of the Trust, and all debts, liabilities,
obligations and expenses of a particular Portfolio shall be enforceable only
against the assets of that Portfolio and not against the assets of any other
Portfolio or of the Trust as a whole.
18. CONFIDENTIALITY. The Subadviser will not disclose or use any records or
information obtained pursuant to this Agreement in any manner whatsoever except
as expressly authorized in this Agreement or as reasonably required to execute
transactions on behalf of the Portfolios, and will keep confidential any
non-public information obtained directly as a result of
-7-
this service relationship, and the Subadviser shall disclose such non-public
information only if the Adviser or the Board of Trustees has authorized such
disclosure by prior written consent, or if such information is or hereafter
otherwise is known by the Subadviser or has been disclosed, directly or
indirectly, by the Adviser or the Trust to others becomes ascertainable from
public or published information or trade sources, or if such disclosure is
expressly required or requested by applicable federal or state regulatory
authorities, or to the extent such disclosure is reasonably required by auditors
or attorneys of the Subadviser in connection with the performance of their
professional services or as may otherwise be contemplated by this Agreement.
Notwithstanding the foregoing, the Subadviser may disclose the total return
earned by the Portfolios and may include such total return in the calculation of
composite performance information.
The Trust and the Adviser will keep confidential any confidential records
or confidential information with respect to the Subadviser obtained pursuant to
this Agreement. The Trust and the Adviser will not disclose such confidential
records or confidential information unless the Subadviser has authorized such
disclosure, or unless such disclosure is required by applicable federal or state
law or regulations or regulatory authorities having the requisite authority.
19. NOTICES. All notices shall be in writing and deemed properly given when
delivered or mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
Subadviser: OppenheimerFunds, Inc.
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxx
with a copy to: OFI Legal Department
at the same address
Attention: Xxxxxxxx Ruffle
Adviser: AIG SunAmerica Asset Management Corp.
Harborside Financial Center
0000 Xxxxx 0
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Senior Vice President and General Counsel
with a copy to: AIG Retirement Services, Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Assistant Secretary of SunAmerica Series Trust
-8-
IN WITNESS WHEREOF, the parties have caused their respective duly
authorized officers to execute this Agreement as of the date first above
written.
AIG SUNAMERICA ASSET MANAGEMENT CORP.
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
OPPENHEIMERFUNDS, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
-9-
SCHEDULE A
Effective May 1, 2007
ANNUAL FEE
(AS A PERCENTAGE OF THE AVERAGE
DAILY NET ASSETS THE SUBADVISER
PORTFOLIO(S) MANAGES IN THE PORTFOLIO)
------------ ---------------------------------
EQUITY OPPORTUNITIES PORTFOLIO 0.400% ON FIRST $50 MILLION
0.350% ON NEXT $200 MILLION
0.300% OVER $250 MILLION
CAPITAL GROWTH PORTFOLIO 0.450% ON FIRST $50 MILLION
0.400% ON NEXT $200 MILLION
0.375% ON NEXT $250 MILLION
0.350% OVER $500 MILLION
-10-
