SUB-SUB-ADVISORY AGREEMENT
Exhibit D(4)Q(2)
This SUB-SUB-ADVISORY AGREEMENT is made as of this 7th day of June, 2010 (the “Sub-Sub-Advisory Agreement”), between Janus Capital Management LLC, a Delaware limited liability company (“Janus”) and Xxxxxxx Investment Management LLC, a Delaware limited liability company (“Xxxxxxx”).
WHEREAS, THE VARIABLE ANNUITY LIFE INSURANCE COMPANY (“VALIC”) is engaged as the investment adviser of VALIC Company II, an investment company organized under the laws of Delaware as a business trust (“XX XX”). pursuant to an Investment Sub-Advisory Agreement, XX XX is a series type of investment company issuing separate classes (or series) of shares of beneficial interest and is registered as an open-end, management investment company under the Investment Company Act of 1940, as amended (“1940 Act”) ;
WHEREAS, VALIC has entered into an investment Sub-Advisory Agreement with Janus (the “Sub-Advisory Agreement”) in order for Janus to assume certain responsibilities and obligations of VALIC under the Investment Advisory Agreement with respect to the Large Cap Value fund (the “Fund”).
WHEREAS, Janus is authorized under the Sub-Advisory Agreement to delegate any of its duties and obligations to any affiliated person (as such term is defined in the 0000 Xxx) that is eligible to serve as an investment adviser to an investment company registered under the 1940 Act on such terms and conditions as Janus deems necessary or appropriate, provided that VALIC consents to any such delegation and to the terms and conditions thereof and such delegation is permitted by and in conformity with the 1940 Act;
WHEREAS, Xxxxxxx 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 (the “Advisers Act”);
WHEREAS, Janus desires to delegate to Xxxxxxx its duties and responsibilities for providing the day to day portfolio management of the Fund and Xxxxxxx is willing to accept such delegation and to render such i portfolio management services;
NOW, THEREFORE, the parties agree as follows:
1. Delegation. Janus hereby delegates to Xxxxxxx the following duties and responsibilities required to be performed by Janus for the Fund pursuant to the Sub-Advisory Agreement with respect to the investment and reinvestment of the assets of the Fund: Xxxxxxx shall manage the investment operations of the Fund, shall determine without prior consultation with VALIC or Janus, what securities and other assets of the Fund will be acquired, held, disposed of or loaned, and shall direct Janus with respect to the execution of trades in connection with such determinations, in conformity with the investment objectives, policies and restrictions of the Fund. Xxxxxxx shall not issue directly to broker(s) or dealer(s) purchase or sell orders with respect to the securities of the Fund and shall not be responsible for aggregating purchase or sell orders for the Fund. Xxxxxxx hereby accepts such delegation and agrees to perform such duties and assume such responsibilities, subject to the oversight of Janus.
2. Further Obligations of Xxxxxxx.
(a) In all matters relating to the performance of this Sub-Management Agreement with respect to the Fund, all of Xxxxxxx’ acts or omissions shall be in conformity with: (i) the Sub-Advisory Agreement between VALIC and Janus; (ii) the investment goals and restrictions specified by
VALIC and the Fund documents (prospectus and SAI) provided to Xxxxxxx; (iii) the Advisers Act; and (iv) all other applicable federal and state laws governing the Fund’s operations and investments.
(b) Xxxxxxx shall provide timely reports to Janus on its activities under this Sub-Management Agreement as agreed on from time to time, and shall provide Janus with all information or documents that Janus may reasonably request in connection with this Sub-Management Agreement.
(c) Xxxxxxx shall maintain all books and records required to be maintained by Xxxxxxx pursuant to the Advisers Act and shall make such records available to Janus upon reasonable request.
(d) Except to the extent otherwise required by any applicable federal or state laws or by any direction of VALIC or Janus, Xxxxxxx shall keep confidential any and all information concerning the affairs of the Fund.
(e) Xxxxxxx at its expense will make available to VALIC at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of VALIC, Janus and Xxxxxxx, by telephone, in order to review the investment policies, performance and other investment related information regarding the Fund and to consult with the VC II’s Board of Trustees (“the Board”) and VALIC regarding the Fund’s investment affairs, including economic, statistical and investment matters related to VALIC’s duties hereunder, and will provide periodic reports as requested to VALIC relating to the investment strategies it employs as well as Perkin’s duties hereunder. Xxxxxxx and its personnel shall also cooperate fully with counsel and auditors for, and the Chief Compliance Officers of, Janus, VALIC, the Fund and the Board.
(f) In accordance with procedures adopted by the Board, as amended from time to time, Xxxxxxx will provide assistance to Janus and the Fund in the fair valuation of Fund securities for security prices that are not readily available. Any valuation assistance provided is for informational purposes only and is not a recommendation by Xxxxxxx. Xxxxxxx will use its reasonable efforts to provide, based upon its own expertise, and to arrange with parties independent of Xxxxxxx such as broker-dealers for the provision of, valuation information or prices for securities for which prices are deemed by VALIC or Fund’s accounting agent not to be readily available in the ordinary course of business from an automated pricing service. In addition, Xxxxxxx will assist the Fund and its agents in determining whether prices obtained for valuation purposes accurately reflect market price information relating to the assets of the Fund at such times as Janus or VALIC shall reasonably request, including but not limited to, the hours after the close of a securities market and prior to the daily determination of the Fund’s net asset value per share. VALIC acknowledges that VALIC’s designated pricing agent, and not Janus or Xxxxxxx, is responsible for providing valuation of the assets in the Fund.
(g) Xxxxxxx at its expense will provide Janus, VALIC and/or the Fund’s Chief Compliance Officer with such compliance reports as may be reasonably requested from time to time. Notwithstanding the foregoing, Xxxxxxx will promptly report to Janus and VALIC any material violations of the federal securities laws (as defined in Rule 38a-1 of the 0000 Xxx) that it is aware of or of any material violation of Perkin’s compliance policies and procedures that pertain to the Fund, as well as any change in portfolio manager(s) of the Fund.
(h) Xxxxxxx will (i) assist in the preparation of disclosures regarding factors that have affected the Fund’s performance, including the relevant market conditions and the investment strategies and techniques used by Xxxxxxx, for each period as requested by Janus or VALIC; and (ii) review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis.
(i) Xxxxxxx shall immediately notify Janus and VALIC in the event that Xxxxxxx or any of its affiliates becomes aware:
| i. | that it is subject to a statutory disqualification that prevents Xxxxxxx from serving as an investment manager pursuant to this Agreement; or |
| ii. | that it is the subject of an administration proceeding or enforcement action by the Securities and Exchange Commission (the “Commission”) or other regulatory authority. |
(j) Xxxxxxx shall use the same skill and care in providing services to the Fund as it uses in providing services to fiduciary accounts for which it has investment responsibility.
(k) Xxxxxxx is hereby prohibited from consulting with any other sub-advisers of the Fund, other sub-advisers to another portfolio of XX XX, or other sub-advisers to a portfolio under common control with the Fund concerning transactions of the Fund in securities or other assets. Notwithstanding the foregoing, Xxxxxxx may consult with Janus regarding transactions of the Fund in securities or other assets, or as otherwise consistent with the terms of this Sub-Management Agreement.
3. Obligations of Janus.
(a) No provision of this Agreement shall relieve Janus of its duties or responsibilities under the Sub-Advisory Agreement and Janus shall appropriately oversee, monitor and evaluate Xxxxxxx” performance of its duties and responsibilities under this Sub-Sub-Advisory- Agreement.
(b) Janus shall be responsible for the execution of all transactions upon receipt of an order from Xxxxxxx, including but not limited to, the broker used to execute the transaction, the compensation paid to such broker, and the party with which the transaction will be consummated.
(c) Janus shall be responsible for providing accurate and current information with respect to records maintained for the Fund.
(d) Janus shall be responsible for ensuring that all of Janus’ acts or omissions under this Sub-Sub-Advisory Agreement comply with all applicable federal and state laws.
4. Compensation. Xxxxxxx shall be paid by Janus for its services under the Agreement with respect to the Fund a fee at an annual rate equal to (i) fifty percent (50%) of the advisory fees Janus receives from the VALIC.
5. Expenses and Excluded Expenses. Xxxxxxx shall pay all its own costs and expenses incurred in rendering the services required under this Sub-Management Agreement. Notwithstanding any other provision hereof, it is expressly agreed that Xxxxxxx shall not be responsible to pay any expenses of Janus or the Fund, including but not limited to organizational, operational or business expenses of Janus or the Fund, such as, (a) brokerage commissions and other costs in connection with the purchase or sale of securities or other investment instruments with respect to the Fund; (b) custodian fees and expenses of the Fund; and (c) interest and taxes of the Fund.
6. Termination. This Sub-Management Agreement may be terminated at any time by Janus by giving written notice to Xxxxxxx at least 60 days prior to the date on which such termination is to become effective. If Xxxxxxx materially breaches the terms of this Agreement, Janus may terminate the authority of Xxxxxxx to act hereunder upon delivery of written notice effective upon receipt. This Sub-
Management Agreement may be terminated at any time by Xxxxxxx by giving written notice to Janus at least 60 days prior to the date on which such termination is to become effective. This Sub-Management Agreement will automatically terminate with respect to VALIC and the Fund in the event that the Sub-Advisory Agreement by and between Janus and VALIC is terminated. Termination of this Sub-Management Agreement will not affect the validity of any action Xxxxxxx has previously taken, or Xxxxxxx’ liabilities or obligations for transactions initiated before termination.
7. Limited of Liability; Indemnification. Unless otherwise required by applicable law:
(a) Limitation of Liability. Janus and any of its affiliates, directors, officers, shareholders, employees or agents shall not be liable for any error of judgment or for any loss, liability, cost, damage, or expense (including reasonable attorney’s fees and costs) (collectively referred to as “Losses”) suffered by Xxxxxxx, the Fund or VALIC in connection with the performance of its obligations under this Sub-Management Agreement, except a loss resulting from willful misfeasance, bad faith or gross negligence on Janus’ part in the performance of its duties or from reckless disregard of its obligations and duties under this Sub-Management Agreement, except as may otherwise be provided by the 1940 Act or under the provisions of other federal securities laws or applicable state law which cannot be waived or modified hereby.
(b) Janus agrees to indemnify and hold harmless Xxxxxxx, its affiliates and each of their respective officers, directors, members, agents, employees, controlling persons and shareholders (each an “Indemnified Party” and collectively, the “Indemnified Parties”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which such Indemnified Parties may become subject arising from Janus’ acts or omissions under this Sub-Management Agreement, including, without limitation, liability for actions brought by VALIC or the Fund against any of such Indemnified Parties; provided, however, that in no case is Janus’ indemnity in favor of Indemnified Party deemed to protect or apply to such Indemnified Party against any liability to which such Indemnified Party would otherwise be subject by reason of such Indemnified Party’s own willful misfeasance, bad faith, gross negligence or reckless disregard of its obligations and duties, or any material breach of this Agreement.
(c) Limitation of Liability. Xxxxxxx and any of its affiliates, directors, officers, shareholders, employees or agents shall not be liable for any error of judgment or for any loss, liability, cost, damage, or expense (including reasonable attorney’s fees and costs) (collectively referred to as “Losses”) suffered by Janus, the Fund or VALIC in connection with the performance of its obligations under this Sub-Management Agreement, except a loss resulting from willful misfeasance, bad faith or gross negligence on Xxxxxxx’ part in the performance of its duties or from reckless disregard of its obligations and duties under this Sub-Management Agreement, except as may otherwise be provided by the 1940 Act or under the provisions of other federal securities laws or applicable state law which cannot be waived or modified hereby.
(d) Xxxxxxx agrees to indemnify and hold harmless Janus and its affiliates and each of their respective directors, officers, members, agents, employees, controlling persons and shareholders against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which Janus or its affiliates or such directors, officers, agents, employees, controlling persons or shareholders may become subject arising from Xxxxxxx’ acts or omissions under this Sub-Management Agreement, including, without limitation, liability for actions brought by VALIC or the Fund against any of such Indemnified Parties; provided, however, that in no case is Xxxxxxx indemnity in favor of any person deemed to protect or apply to such person 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 such person’s obligations and duties under this Agreement, or any material breach of this Agreement.
8. Representations of Xxxxxxx. Xxxxxxx hereby represents, warrants and covenants as follows:
(a) Xxxxxxx: (i) is registered as an investment adviser under the Advisers Act and will continue to be so registered for so long as this Sub-Management Agreement remains in effect; (ii) is not prohibited by the Advisers Act from performing the services contemplated by this Sub-Management Agreement; (iii) has met, and will continue to meet for so long as this Sub-Management Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory organization necessary to be met in order to perform the services contemplated by this Sub-Management Agreement; (iv) has the legal and corporate authority to enter into and perform the services contemplated by this Sub-Management Agreement; and (v) will immediately notify Janus of the institution of any administrative, regulatory or judicial proceeding against Xxxxxxx that could have a material adverse effect upon Xxxxxxx’ ability to fulfill its obligations under this Sub-Management Agreement.
(b) Xxxxxxx has provided Janus with a copy of its Form ADV as most recently filed with the U.S. Securities and Exchange Commission (“SEC”) and will, promptly after filing any amendment to its Form ADV with the SEC, furnish a copy of such amendment to Janus.
(c) Xxxxxxx will notify Janus of any change in the identity or control of its members owning a 10% or greater interest in Xxxxxxx, or any change that would constitute a change in control of Xxxxxxx under the 1940 Act, prior to any such change if Xxxxxxx is aware, or should be aware, of any such change, but in any event as soon as any such change becomes known to Xxxxxxx.
(d) Xxxxxxx has adopted a code of ethics meeting the requirements of Rule 17j-1 under the 1940 Act and the requirements of Rule 204A-1 under the Advisers Act and has provided VALIC and the Board a copy of such code of ethics, together with evidence of its adoption, and will promptly provide copies of any changes thereto, together with evidence of their adoption. Upon request of Janus or VALIC, Xxxxxxx will supply VALIC a written report that (A) describes any issues arising under the code of ethics or procedures since Xxxxxxx’ last report, including but not limited to material violations of the code of ethics or procedures and sanctions imposed or remedial action taken in response to the material violations; and (B) certifies that the procedures contained in Xxxxxxx’ code of ethics are reasonably designed to prevent “access persons” from violating the code of ethics.
9. Independent Contractor. Xxxxxxx shall for all purposes hereunder by deemed to be an independent contractor and shall, unless otherwise provided or authorized, have no authority to act for or represent Janus, the Fund or VALIC in any way.
10. Notices. All notices or other communications under this Agreement will be in writing and will be deemed properly given when received by delivery in person, by overnight courier or by facsimile transmission followed by hard copy by regular mail, at the addresses set forth below, or to such other address as may be designated by the party entitled to receive the same by notice similarly given:
| (a) | To Janus at: |
Janus Capital Management LLC
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
| (b) | To Xxxxxxx at: |
Xxxxxxx, Investment Management LLC
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxx
13. Amendments. This Sub-Management Agreement may be amended by the parties only in a written instrument signed by the parties to this Agreement.
14. Governing Law. This Sub-Management Agreement shall be construed in accordance with the laws of the State of Colorado (without giving effect to the conflicts of laws principles thereof) and the Advisers Act. To the extent that the applicable laws of the State of Colorado conflict with the applicable provisions of the Advisers Act, the latter shall control.
15. Assignment. No assignment, as that term is defined in the Advisers Act, of this Sub-Management Agreement shall be made by Xxxxxxx without the written consent of Janus and VALIC.
16. Miscellaneous. This Sub-Management Agreement may be executed in two or more counterparts, which taken together shall constitute one and the same instrument. The headings in this Sub-Management Agreement are included for convenience of reference only and in no way define or limit any of the provisions thereof or otherwise affect their constructions or effect. If any provision of this Sub-Management Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Sub-Management Agreement shall not be affected thereby. This Sub-Management Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
17. Books and Records. Xxxxxxx shall keep the books and records required to be maintained by Xxxxxxx pursuant to this Sub-Management Agreement and shall timely furnish to VALIC all information relating to Xxxxxxx’ services under this Sub-Management Agreement needed by VALIC to keep the books and records of the Fund required by Rule 31a-1 under the 1940 Act. Xxxxxxx agrees that all records that it maintains on behalf of the Fund are property of the Fund and Xxxxxxx will surrender promptly to the Fund any of such records upon the Fund’s request; provided, however, that Xxxxxxx may retain a copy of such records. Xxxxxxx further agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any such records as are required to be maintained by it pursuant to this Agreement, and to provide reasonable advance notice to VALIC of its intention to destroy any such records after the expiration of the applicable retention period.
19. Use of Names. Xxxxxxx shall not use the name, trade name, trademarks, service marks and/or logo of VALIC, XX XX, and/or any subsidiaries or affiliates in any communications (written, verbal or electronic), including publicity releases, advertising or sales activities or brochures, or similar written materials or activities, other than in communications which are solely internal to Xxxxxxx or are with Janus, VALIC, the Fund, or any of their respective officers, directors or employees, without the prior written consent of VALIC.
20. Third-Party Beneficiary. The parties acknowledge and agree that VALIC, XX XX and the Fund are third-party beneficiaries of this Sub-Management Agreement, and it is intended that VALIC, XX XX and the Fund shall have the authority to enforce their respective rights hereunder.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by their officers designated below as of the day and year first above written.
| JANUS CAPITAL MANAGEMENT LLC | ||
| By: | /s/ XXXXXXX X. XXXXXXX | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Senior Vice President | |
| XXXXXXX INVESTMENT MANAGEMENT LLC | ||
| By: | /s/ XXX XXXX | |
| Name: | Xxx Xxxx | |
| Title: | Chief Operations Officer | |
