Exhibit 23(d)(46)
(Health Sciences)
SUB-INVESTMENT MANAGEMENT AGREEMENT
AMONG
XXXX XXXXXXX VARIABLE SERIES TRUST I
XXXX XXXXXXX LIFE INSURANCE COMPANY
AND
XXXXXX INVESTMENT MANAGEMENT LLC
SUB-INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made as of the thirtieth day of April, 2001 by and among Xxxx
Xxxxxxx Variable Series Trust I, a Massachusetts business trust (the "Trust"),
Xxxx Xxxxxxx Life Insurance Company, a Massachusetts corporation ("JHLICO"), and
Xxxxxx Investment Management LLC ("Advisers");
WHEREAS, the Trust is organized and is engaged in business as an open-end
management investment company and is so registered under the Investment Company
Act of 1940 (the "1940 Act"); and
WHEREAS, JHLICO and Advisers are each engaged in the business of rendering
investment advice under the Investment Advisers Act of 1940; and
WHEREAS, the Trust is authorized to issue shares of capital stock in separate
classes with each such class representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Trust offers shares in several classes, one of which is
designated as the Health Sciences Fund, (together with all other classes
established by the Trust, collectively referred to as the "Funds"), each of
which pursues its investment objectives through separate investment policies;
and
WHEREAS, the Trust has retained JHLICO to render investment management
services to the Trust pursuant to an Investment Management Agreement dated as of
April 30, 2001 (the "Investment Management Agreement"), pursuant to which it may
contract with Advisers as a Sub-Manager as provided for herein;
NOW, THEREFORE, WITNESSETH: That it is hereby agreed between the parties
hereto as follows:
1. APPOINTMENT OF SUB-MANAGER
(a) Subject Fund. Advisers is hereby appointed and Advisers hereby accepts the
appointment to act as investment adviser and manager to the Health Sciences
Fund (the "Subject Fund") for the period and on the terms herein set forth,
for the compensation herein provided.
(b) Additional Subject Funds. In the event that the Trust and JHLICO desire to
retain Advisers to render investment advisory services hereunder for any
other Fund, they shall so notify Advisers in writing. If it is willing to
render such services, Advisers shall notify the Trust in writing, whereupon
such Fund shall become a Subject Fund hereunder.
(c) Incumbency Certificates. Advisers shall furnish to JHLICO, immediately
upon execution of this Agreement, a certificate of a senior officer of
Advisers setting forth (by name and title, and including specimen
signatures) those employees of Advisers who are authorized to issue
instructions for trades for the Subject Fund pursuant to the provisions of
this Agreement. Advisers shall promptly provide supplemental certificates,
as needed, in connection with each additional Subject Fund (if any) and
further supplemental certificates, as needed, to reflect all changes with
respect to such employees for any Subject Fund. On behalf of the Trust,
JHLICO shall instruct the custodian for the Subject Fund to accept
instructions with respect to the Subject Fund from the employees of
Advisers so named.
(d) Independent Contractor. Advisers 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 be deemed an agent
of the Trust.
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(e) Advisers' Representations. Advisers represents, warrants and agrees
(i) that it is registered as an investment adviser under the Investment
Advisers Act of 1940, and that it will remain so registered and will comply
with the requirements of said Act, and the rules and regulations
thereunder, at all times while this Agreement remains in effect, (ii) that
it will promptly notify JHLICO if the foregoing representation and
agreement shall cease to be true (in any material respect) at any time
during the term of this Agreement, (iii) that it will promptly notify
JHLICO of any material change in the senior management or ownership of
Advisers, or of any change in the identity of the personnel who manage the
Subject Fund(s), (iv) that it has adopted a code of ethics complying with
the requirements of Rule 17j-1 of the Securities and Exchange Commission
(the "SEC") under the 1940 Act and has provided true and complete copies of
such code to the Trust and to JHLICO, and has adopted procedures designed
to prevent violations of such code, and (v) that it has furnished the Trust
and JHLICO each with a copy of Advisers' Form ADV, as most recently filed
with the SEC, and will promptly furnish copies of each future amendment
thereto.
2. PROVISION OF INVESTMENT MANAGEMENT SERVICES.
Advisers will provide for each Subject Fund a continuing and suitable
investment program consistent with the investment policies, objectives and
restrictions of said Fund, as established by the Trust and JHLICO and as
delivered in writing to Advisers. From time to time, JHLICO or the Trust may
provide Advisers with additional or amended investment policies, guidelines and
restrictions. Advisers, as Sub-Manager, will manage the investment and
reinvestment of the assets in the Subject Fund, and perform the functions set
forth below, subject to the overall supervision, direction, control and review
of JHLICO and the Board of Trustees of the Trust, consistent with the applicable
investment policies, guidelines and restrictions, the provisions of the Trust's
Declaration of Trust, Bylaws, prospectus, statement of additional information
(each as in effect from time to time), the 1940 Act and all other applicable
laws and regulations (including any applicable investment restrictions imposed
by state insurance laws and regulations or any directions or instructions
delivered to Advisers in writing by JHLICO or the Trust from time to time). By
its signature below, Advisers acknowledges receipt of a copy of the Trust's
Declaration of Trust, Bylaws, prospectus, and statement of additional
information, each as in effect on the date of this Agreement.
Advisers will, at its own expense:
(a) advise the Trust in connection with investment policy decisions to be made
by its Board of Trustees or any committee thereof regarding the Subject
Fund and, upon request, furnish the Trust with research, economic and
statistical data in connection with said Fund's investments and investment
policies;
(b) submit such reports and information as JHLICO or the Trust's Board of
Trustees may reasonably request, to assist the custodian in its
determination of the market value of securities held in the Subject Fund
for which market prices or quotations are not available (it being
understood that Adviser is not responsible for the pricing of the Trust's
assets);
(c) place orders for purchases and sales of portfolio investments for the
Subject Fund;
(d) give instructions to the Subject Fund's custodian concerning the delivery
of securities and transfer of cash for the Subject Fund;
(e) maintain and preserve the records relating to its activities hereunder
required by the 1940 Act to be maintained and preserved by it as investment
adviser to the Trust
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(f) at the close of business each day, provide JHLICO and the custodian with
copies of trade tickets for each transaction effected for the Subject Fund,
and promptly forward to the custodian copies of all brokerage or dealer
confirmations;
(g) as soon as practicable following the end of each calendar month, provide
JHLICO with written statements showing all transactions effected for the
Subject Fund during the month, a summary listing all investments held in
such Fund as of the last day of the month, and such other information as
JHLICO may reasonably request in connection with the accounting services
that JHLICO provides for the Subject Fund (it being understood that
Advisers is not responsible for such accounting services); and
(h) absent specific instructions to the contrary provided to it by JHLICO and
subject to its receipt of all necessary voting materials, vote all proxies
with respect to investments of the Subject Fund in accordance with
Advisers' proxy voting policy as most recently supplied to JHLICO.
On its own initiative, Advisers will apprise JHLICO and the Trust of
important political and economic developments materially affecting the
marketplace or the Subject Fund, and will furnish JHLICO and the Trust's Board
of Trustees from time to time such information as is appropriate for this
purpose. Advisers will also make its personnel available in Boston or other
reasonable locations as often as quarterly to discuss the Subject Fund and
Advisers' management thereof, to educate JHLICO sales personnel with respect
thereto, and for such other purposes as the Trust or JHLICO may reasonably
request.
The Trust and JHLICO will provide timely information to Advisers regarding
such matters as purchases and redemptions of shares in the Subject Fund and the
cash requirements of, and cash available for investment in, the Fund. JHLICO
will timely provide Advisers with copies of monthly accounting statements for
the Subject Fund, and such other information (including, without limitation,
reports concerning the classification of portfolio securities of the Subject
Fund for purposes of Subchapter M of the Internal Revenue Code and Treasury
Regulations Section 1.817) as may be reasonably necessary or appropriate in
order for Advisers to perform its responsibilities hereunder.
3. ALLOCATION OF EXPENSES.
Each party to this Agreement shall bear the costs and expenses of performing
its obligations hereunder. In this regard, the Trust specifically agrees to
assume the expense of:
(a) brokerage commissions for transactions in the portfolio investments of the
Trust and similar fees and charges for the acquisition, disposition,
lending or borrowing of such portfolio investments;
(b) custodian fees and expenses;
(c) all taxes, including issuance and transfer taxes, and reserves for taxes
payable by the Trust to federal, state or other governmental agencies; and
(d) interest payable on the Trust's borrowings.
Nothing in this Agreement shall alter the allocation of expenses and costs
agreed upon between the Trust and JHLICO in the Investment Management Agreement
or any other agreement to which they are parties.
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4. SUB-ADVISORY FEES.
For all of the services rendered with respect to the Subject Fund as herein
provided, JHLICO shall pay to Advisers a fee (for the payment of which the Trust
shall have no obligation or liability), based on the Current Net Assets of the
Subject Fund, as set forth in Schedule I attached hereto and made a part hereof.
Such fee shall be accrued daily and payable monthly, as soon as practicable
after the last day of each calendar month. In the case of termination of this
Agreement with respect to the Subject Fund during any calendar month, the fee
with respect to such Fund accrued to but excluding the date of termination shall
be paid promptly following such termination. For purposes of computing the
amount of advisory fee accrued for any day, "Current Net Assets" shall mean the
Subject Fund's net assets as of the most recent preceding day for which that
Subject Fund's net assets were computed.
5. FUND TRANSACTIONS.
In connection with the investment and reinvestment of the assets of the
Subject Fund, Advisers is authorized to select the brokers or dealers that will
execute purchase and sale transactions for the Fund and to use its best efforts
to obtain the best available price and most favorable execution with respect to
all such purchases and sales of portfolio securities for said Fund. Advisers
shall maintain records adequate to demonstrate compliance with this requirement.
Subject to this primary requirement, and maintaining as its first consideration
the benefits to the Subject Fund and its shareholders, Advisers shall have the
right subject to the control of the Board of Trustees, and to the extent
authorized by the Securities Exchange Act of 1934, to follow a policy of
selecting brokers who furnish brokerage and research services to the Subject
Fund or to the Advisers, and who charge a higher commission rate to the Subject
Fund than may result when allocating brokerage solely on the basis of seeking
the most favorable price and execution. Advisers shall determine in good faith
that such higher cost was reasonable in relation to the value of the brokerage
and research services provided.
Advisers will not receive any tender offer solicitation fees or similar
payments in connection with the tender of investments of any Fund.
6. OWNERSHIP OF INFORMATION, RECORDS, AND CONFIDENTIALITY.
Except for such records Advisers is required to maintain under the Investment
Advisers Act of 1940, as amended, the Trust shall own and control all records
maintained hereunder by Advisers on the Trust's behalf and, in the event of
termination of this Agreement with respect to any Subject Fund for any reason,
all records relating to that Fund and owned by the Trust shall be promptly
returned to the Trust, free from any claim or retention of rights by Advisers,
provided that (subject to the last paragraph of this Section 6) Advisers may
retain copies of such records. Advisers also agrees, upon request of the Trust,
promptly to surrender such books and records or, at its expense, copies thereof,
to the Trust or make such books and records available for audit or inspection by
representatives of regulatory authorities or other persons reasonably designated
by the Trust. Advisers further agrees to maintain, prepare and preserve such
books and records as it is required to as an investment sub-adviser to the Trust
in accordance with the 1940 Act and rules thereunder, including but not limited
to Rules 31a-1 and 31a-2, and to supply all such information related to the
Subject Fund as may be requested by any insurance regulatory authorities in
connection with such insurance authorities' administration of insurance laws
and regulations. Advisers shall supply the Board of Trustees and officers of
the Trust and JHLICO with all statistical information regarding investments
which is reasonably required by them and reasonably available to Advisers.
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Advisers shall not disclose or use any records or information obtained
pursuant hereto in any manner whatsoever except as expressly authorized herein,
and will keep confidential any information obtained pursuant hereto, and
disclose such information only if the Trust has authorized such disclosure, or
if such disclosure is expressly requested by applicable federal or state
regulatory authorities. Advisers shall provide reasonable notice to the Trust of
any such disclosure to applicable federal or state regulatory officials in
connection with any audit of the Subject Fund or the Trust, and in any event,
Advisers shall provide reasonable notice to the Trust of any threatened, pending
or final regulatory enforcement or other disciplinary action involving Advisers.
7. LIABILITY; STANDARD OF CARE.
Advisers shall be liable to JHLICO, the Trust or the Trust's shareholders for
losses resulting from any willful misfeasance, bad faith or negligence in the
performance of Advisers' duties or the reckless disregard of its obligations and
duties under this Agreement or the Investment Management Agreement. No
provision hereof shall be deemed to protect any trustee or officer of the Trust
against any such liability to which he might otherwise be subject by reason of
any willful misfeasance, bad faith or negligence in the performance his duties
or the reckless disregard of his obligations and duties. Adviser shall employ
only qualified personnel to manage the Subject Fund; shall comply with all
applicable laws and regulations in the discharge of its duties under this
Agreement; shall (as provided in Section 2 above) comply with the investment
policies, guidelines and restrictions of the Subject Fund and with the
provisions of the Trust's Declaration of Trust, Bylaws, prospectus and statement
of additional information; shall manage the Subject Fund (subject to the receipt
of, and based upon the information contained in, periodic reports from JHLICO or
the custodian concerning the classification of Fund securities for such
purposes) as a regulated investment company in accordance with subchapter M of
the Internal Revenue Code of 1986, as amended (the "Code"), and Treasury
Regulations Section 1.817-5(b); shall act at all times in the best interests of
the Trust; and shall discharge its duties with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person acting
in a like capacity and familiar with such matters would use in the conduct of a
similar enterprise. However, Advisers shall not be obligated to perform any
service not described in this Agreement, and shall not be deemed by virtue of
this Agreement to have made any representation or warranty that any level of
investment performance or level of investment results will be achieved.
8. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) Duration. This Agreement shall become effective with respect to the Subject
Fund on the date hereof and, with respect to any additional Subject Fund,
on the date of receipt by the Trust of notice from Advisers in accordance
with Paragraph 1(b) hereof that it is willing to serve with respect to such
Fund. Unless terminated as herein provided, this Agreement shall remain
in full force and effect for two years from the date hereof with respect to
the initial Subject Fund and, with respect to each additional Subject Fund,
until two years following the date on which such Fund becomes a Subject
Fund hereunder, and shall continue in full force and effect thereafter with
respect to each Subject Fund so long as such continuance with respect to
any such Fund is approved at least annually (a) by either the Board of
Trustees of the Trust or by vote of a majority of the outstanding voting
shares of such Fund, and (b) in either event by the vote of a majority of
the 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 approval.
(b) Any approval of this Agreement by the holders of a majority of the
outstanding shares of any Subject Fund shall be effective to continue this
Agreement with respect to any such Fund notwithstanding (A) that this
Agreement has not been approved by the holders of a majority of the
outstanding shares of any other Fund affected hereby, and (B) that this
Agreement has not been
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approved by the vote of a majority of the outstanding shares of the Trust,
unless such approval shall be required by any other applicable law or
otherwise. The terms "assignment," "vote of a majority of the outstanding
shares" and "interested person," when used in this Agreement, shall have
the respective meanings specified in the 1940 Act and rules thereunder.
(c) Termination. This Agreement may be terminated with respect to any Subject
Fund at any time, without payment of any penalty, by the Trust pursuant to
a vote of the trustees of the Trust or a vote of a majority of the
outstanding shares of the Subject Portfolio, which termination shall be
effective immediately upon delivery of notice thereof to Advisers and
JHLICO. This Agreement may be terminated by Advisers on at least ninety
days' prior written notice to the Series and JHLICO, and may be terminated
by JHLICO on at least ninety days' prior written notice to the Trust and
Advisers.
(d) Automatic Termination. This Agreement shall automatically and immediately
terminate in the event of its assignment or if the Investment Management
Agreement is terminated.
9. SERVICES NOT EXCLUSIVE; USE OF ADVISERS' NAME AND LOGO.
(a) The services of Advisers to the Trust are not to be deemed exclusive and it
shall be free to render similar services to others so long as its services
hereunder are not impaired thereby. It is specifically understood that
directors, officers and employees of Advisers and of its subsidiaries and
affiliates may continue to engage in providing Fund management services and
advice to other investment companies, whether or not registered, and other
investment advisory clients.
(b) During the term of this Agreement, JHLICO and the Trust shall have the non-
exclusive and non-transferable right to use Advisers' name and logo in all
materials relating to the Subject Fund, including all prospectuses, proxy
statements, reports to shareholders, sales literature and other written
materials prepared for distribution to shareholders of the Trust or the
public. However, prior to distribution of any materials which refer to
Advisers or use its logo, JHLICO shall consult with Advisers and shall
furnish to Advisers a copy of such materials. Advisers agrees to cooperate
with JHLICO and to review such materials promptly. JHLICO shall not
distribute such materials if Advisers reasonably objects in writing, within
ten (10) days of its receipt of such copy (or such other time as may be
mutually agreed), to the manner in which its name and logo are used.
10. AVOIDANCE OF INCONSISTENT POSITION.
In connection with the purchase and sale of portfolio securities of the
Subject Fund, Advisers and its directors, officers and employees will not act as
principal or agent or receive any commission. Nothing in this Agreement,
however, shall preclude the combination of orders for the sale or purchase of
portfolio securities of the Subject Fund with those for other registered
investment companies managed by Advisers or its affiliates, if orders are
allocated in a manner deemed equitable by Advisers among the accounts and at a
price approximately averaged.
11. AMENDMENT.
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing. No amendment of this
Agreement shall be effective with respect to any Fund until approved
specifically by (a) the Board of Trustees of the Trust, or by vote of a majority
of the outstanding shares of that Fund, and (b) by vote of a majority of those
trustees of the Trust who are not interested persons of any party to this
Agreement cast in person at a meeting called for the purpose of voting on such
approval.
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12. LIMITATION OF LIABILITY.
It is expressly agreed that the obligations of the Trust hereunder shall not
be binding upon any of the trustees, shareholders, officers, agents or employees
of Trust personally, but only bind the trust property of the Trust, as provided
in the Trust's Declaration of Trust.
13. NOTICES
Notices and other communications required or permitted under this Agreement
shall be in writing, shall be deemed to be effectively delivered when actually
received, and may be delivered by US mail (first class, postage prepaid), by
facsimile transmission, by hand or by commercial overnight delivery service,
addressed as follows:
ADVISERS Xxxxxx Investment Management LLC
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Fax #: 000-000-0000
JHLICO: Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax #: 000-000-0000
TRUST: Xxxx Xxxxxxx Variable Series Trust I
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax #: 000-000-0000
14. GOVERNING LAW.
This agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts and the applicable provisions of the 1940 Act and
rules thereunder.
15. ASSIGNMENT.
This Agreement may not be assigned by any party, either in whole or in part,
without the prior written consent of each other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day first set forth above.
ATTEST: XXXX XXXXXXX VARIABLE SERIES
TRUST I
By:
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Title:
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ATTEST: XXXX XXXXXXX LIFE INSURANCE COMPANY
By:
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Title:
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ATTEST: XXXXXX INVESTMENT MANAGEMENT LLC
By:
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Title:
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SCHEDULE I
FEES
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HEALTH SCIENCES FUND
Current Net Assets Under Management Sub-Advisory Fee
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On the first $250,000,000 55 basis points (0.55%) per annum
On amounts over $250,000,000 50 basis points (0.50%) per annum
