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77Q(1)(e): Copies of any new or amended Registrant investment advisory contracts
SUB-ADVISORY AGREEMENT
BETWEEN
XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
and
SSgA FUNDS MANAGEMENT, INC.
XXXXXXX SACHS VARIABLE INSURANCE TRUST EQUITY INDEX FUND
THIS SUB-ADVISORY AGREEMENT ("Agreement") is made as of January 6, 2006
by and between XXXXXXX XXXXX ASSET MANAGEMENT, L.P. ("Investment Manager") and
SSgA FUNDS MANAGEMENT, INC. ("Sub-Adviser").
WHEREAS, Xxxxxxx Sachs Variable Insurance Trust, a Delaware statutory
trust ("Trust"), is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, pursuant to a Management Agreement ("Management Agreement") by
and between the Trust and the Investment Manager, the Trust has appointed the
Investment Manager to furnish investment advisory and other services to the
Trust on behalf of the Trust's Equity Index Fund ("Fund"); and
WHEREAS, the Management Agreement authorizes the Investment Manager to
provide, either directly or through third parties, investment advisory services
with respect to the Fund; and
WHEREAS, subject to the terms and provisions of this Agreement, the
Investment Manager desires to retain the Sub-Adviser to furnish sub-investment
advisory services on behalf of the Fund; and
WHEREAS, this Agreement and the Sub-Adviser have been approved by the
vote of the initial shareholder of the Fund, and by the vote of a majority of
those members of the Trust's Board of Trustees who are not interested persons of
the Investment Manager or the Sub-Adviser, cast in person at a meeting called
for the purpose of voting on such approval.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Engagement of the Sub-Adviser. The Investment Manager hereby engages the
services of the Sub-Adviser in furtherance of its Management Agreement with the
Trust on behalf of the Fund. Pursuant to this Sub-Advisory Agreement and subject
to the supervision and oversight of the Investment Manager, the Sub-Adviser
shall manage the investment and reinvestment of the assets of the Fund. In this
regard, the Sub-Adviser shall determine in its discretion the securities and
other investments to be purchased or sold for the Fund, subject at all times to
the diversification requirements of Section 817(h) of the Internal Revenue Code
of 1986, as amended (the "Internal Revenue Code"). The Sub-Adviser shall provide
the Investment Manager and the Trust with records concerning its activities
which the Investment Manager or the Trust is required to maintain, and shall
render regular reports to the Investment Manager and to Officers and Trustees of
the Trust concerning its discharge of its responsibilities under this Agreement.
Unless the Investment Manager or the Trust instructs otherwise in writing, the
Sub-Adviser is authorized to exercise tender and exchange offers and to vote
proxies and corporate actions on behalf of the Fund, each as the Sub-Adviser
determines is in the best interest of the Fund. The Sub-Adviser shall vote
proxies in accordance with its Proxy Voting Policy, a copy of which has been
provided to the Investment Manager. The Sub-Adviser shall discharge the
foregoing responsibilities subject to the control of the Officers and the
Trustees of the Trust and in compliance with such policies as the Trustees of
the Trust may from time to time establish and provide to the Sub-Adviser in
writing, and in compliance with the objectives, policies and limitations for the
Fund set forth in the Fund's registration statement under the 1940 Act as
amended from time to time and provided to the Sub-Adviser ("Registration
Statement"), applicable laws, rules and regulations, and the guidelines,
policies or procedures adopted by the Trust's Board of Trustees, or implemented
by the Investment Manager, with respect to the Fund or to the Sub-Adviser's
activities under this Agreement and provided to the Sub-Adviser in writing
("Board/Investment Manager Procedures"). The Sub-Adviser shall not be
responsible for filings proofs of claim with respect to securities held by the
Fund.
The Sub-Adviser accepts its engagement under this Section 1 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;
provided, however, that the Sub-Adviser shall not be required to pay the cost
(including taxes, brokerage commissions and other transaction costs, if any) of
securities and other investments purchased or sold for the Fund or any other
expenses except as specified in this Agreement. The Sub-Adviser shall not
consult with any other sub-investment adviser for the Fund or the Trust (if any)
concerning transactions for the Fund or the Trust in securities or other assets.
The Sub-Adviser agrees to comply with all laws, rules and regulations
applicable to its activities in connection with the performance of this
Agreement.
2. Fund Transactions. In connection with purchases and sales of portfolio
securities for the account of the Fund, neither the Sub-Adviser nor any of its
partners, officers or employees shall act as principal, except as otherwise
permitted by the 1940 Act. The Sub-Adviser or its agents shall arrange for the
placing of orders for the purchase and sale of portfolio securities and other
instruments for the Fund's account with brokers or dealers (including affiliates
of the Investment Manager and the Sub-Adviser) selected by the Sub-Adviser. In
the selection of such brokers or dealers (including affiliates of the Investment
Manager and the Sub-Adviser) and the placing of such orders the Sub-Adviser is
directed at all times to seek for the Fund the most favorable execution and net
price available. It is also understood that it may be desirable for the Fund
that Sub-Adviser have access to supplemental investment and market research and
security and economic analyses that are consistent with Section 28(e) of the
Securities Exchange Act of 1934, as amended, and are provided by brokers who may
execute brokerage transactions at a higher cost to the Fund than may result when
allocating brokerage to other brokers on the basis of seeking the most favorable
price and efficient execution. Therefore, subject to such conditions and
limitations as may be established by the Investment Manager from time to time,
if any, the Sub-Adviser is authorized to consider such services provided to the
Fund and other accounts over which the Sub-Adviser or any of its affiliates
exercises investment discretion and to place orders for the purchase and sale of
securities for the Fund with such brokers, subject to review by the Investment
Manager and the Trust's Board of Trustees from time to time with respect to the
extent and continuation of this practice. It is understood that the services
provided by such brokers may be useful to the Sub-Adviser in connection with its
services to other clients. The Sub-Adviser may, on occasions when it deems the
purchase or sale of a security to be in the best interests of the Fund as well
as its other clients, aggregate, to the extent permitted by applicable laws,
rules and regulations, the securities to be sold or purchased in order to obtain
the best net price and the most favorable execution. In such event, allocation
of the securities so purchased or sold, as well as the expenses incurred in the
transaction, shall be made by the Sub-Adviser in the manner it considers to be
the most equitable and consistent with its obligations to the Fund and to such
other clients.
3. Compensation of the Sub-Adviser. For all services to be rendered and payments
made as provided in this Agreement, the Investment Manager shall pay the
Sub-Adviser, in arrears, each calendar quarter a fee at an annual rate equal to
the percentage of the average daily net assets of the Fund set forth with
respect to the Fund on Annex A. The "average daily net assets" of the Fund shall
be determined on the basis set forth in the Fund's prospectus(es) or otherwise
consistent with the 1940 Act and the rules and regulations thereunder.
The fee for any calendar quarter during which this Agreement is in
effect for less than the entire quarter shall be pro-rated based on the number
of days during such quarter that the Agreement was in effect.
4. Delivery of Information, Reports and Certain Notifications. The Investment
Manager agrees to furnish to the Sub-Adviser current prospectuses, statements of
additional information, proxy statements, reports of shareholders, financial
statements, charter documents and such other information with regard to the
affairs of the Fund as the Sub-Adviser may reasonably request.
The Sub-Adviser shall report regularly on a timely basis to Investment
Manager and to the Board of Trustees of the Trust and shall make appropriate
persons available for the purpose of reviewing with representatives of
Investment Manager and the Board of Trustees on a regular basis at reasonable
times the management of the Fund, the performance of the Fund in relation to
standard industry indices and general conditions affecting the marketplace. The
Sub-Adviser agrees to render to the Investment Manager such other periodic and
special reports on a timely basis regarding its activities under this Agreement
as the Investment Manager may reasonably request. In addition, the Sub-Adviser
shall assist the Fund and the Investment Manager in complying with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and shall, if requested, provide
certifications in the form reasonably requested by the Fund relating to the
Sub-Adviser's services under this Agreement.
The Sub-Adviser represents and warrants to the Investment Manager that:
(a) it is registered as an investment adviser under the Investment Advisers Act
of 1940 and is registered or licensed as an investment adviser under the laws of
all jurisdictions in which its activities require it to be so registered or
licensed; (b) it will use its reasonable best efforts to maintain each such
registration or license in effect at all times during the term of this
Agreement; and (c) it is duly organized and validly existing, and is authorized
to enter into this Agreement and to perform its obligations hereunder. The
Sub-Adviser shall promptly notify the Investment Manager and the Trust in
writing of the occurrence of any of the following events: (w) any of the
foregoing representations and warranties becomes untrue after the execution of
this Agreement; (x) the Sub-Adviser becomes aware that it is subject to any
statutory disqualification that prevents the Sub-Adviser from serving as an
investment adviser pursuant to this Agreement; (y) the Sub-Adviser shall have
been served or otherwise becomes aware of any action, suit, proceeding, inquiry
or investigation applicable to it, at law or in equity, before or by any court,
public board or body, involving the affairs of the Fund; and (z) the President
of the Sub-Adviser or any portfolio manager of the Fund shall have changed. The
Sub-Adviser further agrees to notify the Investment Manager and the Trust
promptly if any statement regarding the Sub-Adviser contained in the Trust's
Registration Statement with respect to the Fund, or any amendment or supplement
thereto, becomes untrue or incomplete in any material respect.
The Investment Manager represents and warrants to the Sub-Adviser that:
(a) it has received a copy of Part II of the Sub-Adviser's Form ADV; (b) it has
full corporate power and authority to enter into this Agreement (including the
power and authority to appoint the Sub-Adviser hereunder) and to carry out its
terms; and (c) the Fund is either (i) excluded from the definition of the term
"pool" under Section 4.5 of the General Regulations under the Commodity Exchange
Act ("Rule 4.5"), or (ii) a qualifying entity under Rule 4.5(b) for which a
notice of eligibility has been filed.
5. Status of the Sub-Adviser. The services of the Sub-Adviser under this
Agreement are not to be deemed exclusive, and the Sub-Adviser is free to render
similar services to others so long as its services to the Fund are not impaired
thereby. The Sub-Adviser 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 Investment Manager or the Fund in any way or otherwise
be deemed an agent of the Investment Manager or the Fund.
Without limiting the foregoing, the Investment Manager represents that
it and the Trust understand that the Sub-Adviser now acts, shall continue to
act, or may act in the future, as investment adviser or investment sub-adviser
to fiduciary and other managed accounts, including other investment companies
and that the Investment Manager and the Trust have no objection to the
Sub-Adviser so acting, provided that the Sub-Adviser duly performs all
obligations under this Agreement. The Investment Manager and the Trust also
understand that the Sub-Adviser may give advice and take action with respect to
any of its other clients or for its own account which may differ from the timing
or nature of action taken by the Sub-Adviser with respect to the Fund. Nothing
in this Agreement imposes upon the Sub-Adviser any obligation to purchase or
sell or to recommend for purchase or sale, with respect to the Fund, any
security which the Sub-Adviser or its partners, officers, employees or
affiliates may purchase or sell for its or their own account(s) or for the
account of any other client.
6. Certain Records. The Sub-Adviser agrees to maintain, in the form and for the
period required by Rule 31a-2 under the 1940 Act, all records relating to the
Sub-Adviser's services under this Agreement and the Fund's investments made by
the Sub-Adviser as are required by Section 31 under the 1940 Act, and rules and
regulations thereunder, and by other applicable legal provisions, including the
Investment Advisers of 1940 and the Securities and Exchange Act of 1934, and to
preserve such records for the periods and in the manner required by that
Section, and those rules, regulations and legal provisions. Any records required
to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule
31a-2 promulgated under the 1940 Act which are prepared or maintained by the
Sub-Adviser on behalf of the Fund are the property of the Fund and shall be
surrendered promptly to the Fund or the Investment Manager on request.
The Sub-Adviser 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 Fund's auditors, the
Fund or any representative of the Fund, the Investment Manager, or any
governmental agency or other instrumentality having regulatory authority over
the Fund.
7. Reference to the Sub-Adviser. The Investment Manager and the Trust are
authorized to publish and distribute any information, including but not limited
to registration statements, advertising or promotional material, regarding the
provision of sub-investment advisory services by the Sub-Adviser pursuant to
this Agreement and to use in advertising, publicity or otherwise the name of the
Sub-Adviser, or any trade name, trademark, trade device, service xxxx, symbol or
logo of the Sub-Adviser, without the prior written consent of the Sub-Adviser.
In addition, the Investment Manager may distribute information regarding the
provision of sub-investment advisory services by the Sub-Adviser to the Trust's
Board of Trustees without the prior written consent of the Sub-Adviser. The
Investment Manager shall provide copies of such items to the Sub-Adviser within
a reasonable time following such use, publication or distribution.
8. Liability and Indemnification. Except as may otherwise be provided by the
1940 Act or any other federal securities law, the Sub-Adviser shall not be
liable for any losses, claims, damages, liabilities or litigation (including
legal and other expenses) incurred or suffered by the Investment Manager or the
Trust as a result of any error of judgment or mistake of law by the Sub-Adviser
with respect to the Fund, except that nothing in this Agreement shall operate or
purport to operate in any way to exculpate, waive or limit the liability of the
Sub-Adviser for, and the Sub-Adviser shall indemnify and hold harmless the
Trust, the Investment Manager, all affiliated persons thereof within the meaning
of Section 2(a)(3) of the 1940 Act ("affiliated person") and all persons, if any
who, within the meaning of Section 15 of the Securities Act of 1933, as amended
(the "1933 Act"), control ("controlling person") the Trust or the Investment
Manager (collectively, "Investment Manager Indemnitees"), against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses), to which any of the Investment Manager Indemnitees may
become subject under the 1933 Act, the 1940 Act, the Investment Advisers Act of
1940, as amended (the "Advisers Act"), the Internal Revenue Code, under any
other statute, law, rule or regulation, at common law or otherwise, arising out
of the Sub-Adviser's responsibilities hereunder (a) to the extent of and as a
result of the willful misconduct, bad faith, or gross negligence by the
Sub-Adviser, any of the Sub-Adviser's employees or representatives or any
affiliate of or any person acting on behalf of the Sub-Adviser, or (b) as a
result of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, proxy materials, reports,
advertisements, sales literature or other materials pertaining to the Fund,
including any amendment thereof or any supplement thereto, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading, if such a statement
or omission was made in reliance upon and in conformity with written information
furnished by the Sub-Adviser to the Investment Manager, the Trust or any
affiliated person of the Investment Manager or the Trust or upon verbal
information confirmed by the Sub-Adviser in writing, or (c) to the extent of,
and as a result of, the failure of the Sub-Adviser to execute, or cause to be
executed, portfolio investment transactions according to the requirements of the
1940 Act, the Internal Revenue Code, the Registration Statement and the
Board/Investment Manager Procedures; provided, however, that in no case is the
Sub-Adviser's indemnity in favor of any Investment Manager Indemnitee deemed to
protect such person against any liability to which any such person would
otherwise be subject by reason of willful misconduct, bad faith or gross
negligence in the performance of such person's duties or by reason of such
person's reckless disregard of obligations and duties under this Agreement.
Except as may otherwise be provided by the 1940 Act or any other
federal securities law, the Investment Manager shall not be liable for any
losses, claims, damages, liabilities or litigation (including legal and other
expenses) incurred or suffered by the Sub-Adviser as a result of any error of
judgment or mistake of law by the Investment Manager with respect to the Fund,
except that nothing in this Agreement shall operate or purport to operate in any
way to exculpate, waive or limit the liability of the Investment Manager for,
and the Investment Manager shall indemnify and hold harmless the Sub-Adviser,
any affiliated person of the Sub-Adviser and each controlling person of the
Sub-Adviser, if any, against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses), to which the
Sub-Adviser or such affiliated person or controlling person of the Sub-Adviser
may become subject under the 1933 Act, the 1940 Act, the Advisers Act, the
Internal Revenue Code, under any other statute, law, rule or regulation, at
common law or otherwise, arising out of the Investment Manager's
responsibilities as investment manager of the Fund (a) to the extent of and as a
result of the willful misconduct, bad faith, or gross negligence by the
Investment Manager, any of the Investment Manager's employees or representatives
or any affiliate of or any person acting on behalf of the Investment Manager, or
(b) as a result of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, proxy materials, reports,
advertisements, sales literature or other materials pertaining to the Fund,
including any amendment thereof or any supplement thereto, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading, if such a statement
or omission was made other than in reliance upon and in conformity with written
information furnished by the Sub-Adviser, or any affiliated person of the
Sub-Adviser or other than upon verbal information confirmed by the Sub-Adviser
in writing; provided, however, that in no case is the Investment Manager's
indemnity in favor of the Sub-Adviser or any affiliated person or controlling
person of the Sub-Adviser deemed to protect such person against any liability to
which any such person would otherwise be subject by reason of willful
misconduct, bad faith or gross negligence in the performance of such person's
duties or by reason of its reckless disregard of such person's obligations and
duties under this Agreement.
9. Duration and Termination. This Agreement is effective as of its execution
date, and shall continue in full force and effect with respect to the Fund until
June 30, 2006. This Agreement shall continue in full force and effect with
respect to the Fund from year to year thereafter so long as such continuance is
specifically approved at least annually (a) 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 approval, and (b) by the Trustees of the Trust or by vote of a
majority of the outstanding voting securities of the Fund voting separately;
provided, however, that if the shareholders fail to approve the Agreement as
provided herein, the Sub-Adviser may continue to serve hereunder in the manner
and to the extent permitted by the 1940 Act and the rules and regulations
thereunder. The foregoing requirement that continuance of this Agreement be
"specifically approved at least annually" shall be construed in a manner
consistent with the 1940 Act and the rules and regulations thereunder.
This Agreement may be terminated at any time, without the payment of
any penalty, by vote of a majority of the Trustees of the Trust or by a vote of
a majority of the outstanding voting securities of the Fund or by the Investment
Manager on not less than 60 days written notice to the Sub-Adviser, or by the
Sub-Adviser at any time without the payment of any penalty on not less than 60
days' written notice to Investment Manager and the Trust. This Agreement shall
automatically terminate in the event of its assignment.
Notices and other writings delivered or mailed postage prepaid to the
Investment Manager and the Trust at 00 Xxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxxx, or to the Sub-Adviser at State Street Financial
Center, Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Chief
Compliance Officer, or to such other address as the Investment Manager or the
Sub-Adviser may hereafter specify by written notice to the most recent address
specified by the other party, shall be deemed to have been properly delivered or
given hereunder to the respective addressee.
As used in this Section 9, the terms "assignment," "interested persons"
and a "vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in the 1940 Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the Securities and
Exchange Commission under that Act.
This Agreement shall also terminate in the event that the Management
Agreement by and between the Trust on behalf of the Fund and the Investment
Manager referred to in Section 1 is terminated.
10. Confidentiality. The Sub-Adviser shall treat confidentially and as
proprietary information of the Trust and the Investment Manager all records and
other information relative to the Trust, the Fund and the Investment Manager and
their prior, present or potential shareholders and clients, and shall not use
such records and information for any purpose other than performance of its
responsibilities and duties hereunder (except after prior notification to and
approval in writing by the Trust and the Investment Manager, which approval
shall not be unreasonably withheld and may not be withheld and shall be deemed
granted where the Sub-Adviser may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities or when so requested by the Trust and the
Investment Manager).
Subject to the provisions of Section 6, the Trust and the Investment
Manager shall treat confidentially and as proprietary information of the
Sub-Adviser all records and other information relative to the Sub-Adviser, and
shall not use such records and information for any purpose other than
performance of its responsibilities and duties hereunder and under the
Management Agreement (except after prior notification to and approval in writing
by the Sub-Adviser, which approval shall not be unreasonably withheld and may
not be withheld and shall be deemed granted where the Trust or the Investment
Manager may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities or when so requested by the Sub-Adviser.)
11. Use of Goldman Names. The Sub-Adviser shall not, without prior written
consent of the Investment Manager, in each instance, (a) use in advertising,
publicity or otherwise the name of "Xxxxxxx, Xxxxx & Co." or "Xxxxxxx Sachs,"
including the name of any affiliate, partner or employee of Xxxxxxx, Xxxxx & Co.
or any of its affiliates, nor any trade name, trademark, trade device, service
xxxx, symbol, logo or any abbreviation, contraction or simulation thereof owned
by Xxxxxxx, Xxxxx & Co. or any of its affiliates; or (b) represent, directly or
indirectly, that any product or any service provided by the Sub-Adviser has been
approved or endorsed by Xxxxxxx, Sachs & Co. or any of its affiliates.
12. Severability. If any provision of this Agreement is held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
13. Amendments. This Agreement may be amended in accordance with the 1940 Act,
provided that any amendment, alteration or modification shall be in writing duly
executed by the proper officials of the parties hereto.
14. Survival. Sections 7, 8, 10 and 11 shall survive the termination of
this Agreement.
--------
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 1940 Act and the
rules and regulations thereunder. To the extent that the applicable laws of the
State of New York or any provisions herein conflict with the applicable
provisions of the 1940 Act, the latter shall control.
IN WITNESS WHEREOF, the parties have caused their respective duly
authorized officers to execute this Agreement as of January 6, 2006.
XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
By:_/s/ Xxxxxx Uniacke______________
------------------
Authorized Officer
SSgA FUNDS MANAGEMENT, INC.
By: /s/ Xxxxx Ross_____
-------------- -------------
Authorized Officer
Annex A
to
Sub-Advisory Agreement between
Xxxxxxx Sachs Asset Management, L.P. and
SSgA Funds Management, Inc.
Pursuant to Section 3 of the attached Sub-Advisory Agreement between Xxxxxxx
Xxxxx Asset Management, L.P. (the "Investment Manager") and SSgA Funds
Management, Inc. (the "Sub-Adviser") with respect to the Xxxxxxx Sachs Variable
Insurance Trust Equity Index Fund (the "Fund"), the Investment Manager shall pay
the Sub-Adviser, in arrears, each calendar quarter a fee at an annual rate equal
to the following percentage of the average daily net assets of the Fund (as
defined in said Section 3):
| 0.03% on the first $50 million
| 0.02% on the next $200 million
| 0.01% on the next $750 million
| 0.008% over $1 billion.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx Xxxxx Asset Management, L.P.
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
MANAGEMENT AGREEMENT
Dated August 5, 2005 for the
XXXXXXX SACHS VARIABLE INSURANCE TRUST
EQUITY INDEX FUND
Dear Sirs:
Xxxxxxx Xxxxx Variable Insurance Trust (the "Registrant") is organized as a
business trust under the laws of the State of Delaware to engage in the business
of an investment company. The shares of the Registrant ("Shares") may be divided
into multiple series ("Series"), including the Series listed on Annex A
(including any Series added to Annex A in the future, each a "Fund"). Each
Series will represent the interests in a separate portfolio of securities and
other assets. Each Series may be terminated, and additional Series established,
from time to time by action of the Trustees. The Registrant, on behalf of the
respective Funds, has selected you to act as an investment adviser and
administrator of the Funds designated on Annex A and to provide, either directly
or through third parties, certain services with respect to those Funds, as more
fully set forth below, and you are willing to act as such investment adviser and
administrator and to perform such services under the terms and conditions
hereinafter set forth. Accordingly, the Registrant agrees with you as follows:
1. Name of Registrant. The Registrant may use any name including or derived from
the name "Xxxxxxx Sachs" in connection with a Fund only for so long as this
Agreement or any extension, renewal or amendment hereof remains in effect,
including any similar agreement with any organization which shall have succeeded
to your business as investment adviser or administrator. Upon the termination of
this Agreement, the Registrant (to the extent that it lawfully can) will cause
the Funds to cease to use such a name or any other name indicating that it is
advised by or otherwise connected with you or any organization which shall have
so succeeded to your business.
2. Affiliated Advisers and Sub-Advisers. At your discretion, you may provide
advisory and administration services through your own employees or the employees
of one or more affiliated companies that are qualified to act as investment
adviser, or administrator to the Registrant under applicable law and are under
the common control of Xxxxxxx, Xxxxx & Co. provided that (a) all persons, when
providing services hereunder, are functioning as part of an organized group of
persons; and (b) such organized group of persons is managed at all times by your
authorized officers. You may also engage one or more investment advisers which
are either registered as such or specifically exempt from registration under the
Investment Advisers Act of 1940, as amended, to act as sub-advisers to provide
with respect to any Fund services that are set forth in paragraphs 3 and 6
hereof, all as shall be set forth in a written contract, which contract shall be
subject to approval by the vote of a majority of the Trustees who are not
interested persons of you, the sub-adviser, or of the Registrant, cast in person
at a meeting called for the purpose of voting on such approval and otherwise
approved in a manner that is consistent with the terms of the Investment Company
Act of 1940, as amended (the "1940 Act") and the rules and regulations
thereunder. In the event that one or more sub-advisers are so engaged, you will
supervise and oversee the activities of each sub-adviser under its sub-advisory
contract on behalf of a Fund.
3. Management Services.
(a) You will, either directly, through one or more sub-advisers, or
both: (i) regularly provide each Fund with investment research, advice
and supervision; (ii) furnish continuously an investment program for
each Fund consistent with the investment objectives and policies of the
Fund; and (iii) determine from time to time what securities shall be
purchased for a Fund, what securities shall be held or sold by a Fund,
and what portion of a Fund's assets shall be held uninvested as cash,
subject always to the provisions of the Registrant's Declaration of
Trust and By-Laws and of the 1940 Act, and to the investment
objectives, policies and restrictions of the Fund, as each of the same
shall be from time to time in effect, and subject, further, to such
policies and instructions as the Trustees of the Registrant may from
time to time establish.
(b) Subject to the general supervision of the Trustees of the
Registrant, you will, either directly, through one or more
sub-advisers, or both, provide certain administrative services to each
Fund including the following. You will, to the extent such services are
not required to be performed by others pursuant to the custodian
agreement (or the transfer agency agreement to the extent that a person
other than you is serving thereunder as the Registrant's transfer
agent), (i) provide supervision of all aspects of each Fund's
operations not referred to in paragraph (a) above; (ii) provide each
Fund with personnel to perform such executive, administrative and
clerical services as are reasonably necessary to provide effective
administration of the Fund; (iii) arrange for, at the Registrant's
expense, (A) the preparation for each Fund of all required tax returns,
(B) the preparation and submission of reports to existing shareholders
and (C) the periodic updating of the Fund's prospectuses and statements
of additional information and the preparation of reports filed with the
Securities and Exchange Commission and other regulatory authorities;
(iv) maintain all of the Funds' records; and (v) provide the Funds with
adequate office space and all necessary office equipment and services
including telephone service, heat, utilities, stationery supplies and
similar items.
(c) You will also provide to the Registrant's Trustees such periodic
and special reports as the Trustees may reasonably request. You shall
for all purposes herein be deemed to be an independent contractor and
shall, except as otherwise expressly provided or authorized, have no
authority to act for or represent the Registrant or the Funds in any
way or otherwise be deemed an agent of the Registrant or the Funds.
PHTRANS\449028\1 - 13 -
[GRAPHIC OMITTED][GRAPHIC OMITTED]
PHTRANS\449028\1
(d) You will maintain all books and records with respect to the Funds'
securities transactions required by sub-paragraphs (b)(5), (6), (7),
(9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act (other
than those records being maintained by the Funds' custodian or transfer
agent) and preserve such records for the periods prescribed therefor by
Rule 31a-2 of the 1940 Act. You will also provide to the Registrant's
Trustees such periodic and special reports as the Board may reasonably
request.
(e) You will notify the Registrant of any change in your membership
within a reasonable time after such change.
(f) Your services hereunder are not deemed exclusive and you shall be
free to render similar services to others.
4. Allocation of Charges and Expenses. You will pay all costs incurred by you in
connection with the performance of your duties under paragraph 3. You will pay
the compensation and expenses of all personnel of yours and will make available,
without expense to the Funds, the services of such of your partners, officers
and employees as may duly be elected officers or Trustees of the Registrant,
subject to their individual consent to serve and to any limitations imposed by
law. You will not be required to pay any expenses of any Fund other than those
specifically allocated to you in this paragraph 4. In particular, but without
limiting the generality of the foregoing, you will not be required to pay: (a)
organization expenses of the Funds; (b) fees and expenses incurred by the Funds
in connection with membership in investment company organizations; (c) brokers'
commissions; (d) payment for portfolio pricing services to a pricing agent, if
any; (e) legal, auditing or accounting expenses (including an allocable portion
of the cost of your employees rendering legal and accounting services to the
Funds); (f) taxes or governmental fees; (g) the fees and expenses of the
transfer agent of the Registrant; (h) the cost of preparing stock certificates
or any other expenses, including clerical expenses of issue, redemption or
repurchase of Shares of the Funds; (i) the expenses of and fees for registering
or qualifying Shares for sale and of maintaining the registration of the Funds
and registering the Registrant as a broker or a dealer; (j) the fees and
expenses of Trustees of the Registrant who are not affiliated with you; (k) the
cost of preparing and distributing reports and notices to shareholders, the
Securities and Exchange Commission and other regulatory authorities; (l) the
fees or disbursements of custodians of each Fund's assets, including expenses
incurred in the performance of any obligations enumerated by the Declaration of
Trust or By-Laws of the Registrant insofar as they govern agreements with any
such custodian; or (m) litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of the Fund's
business. You shall not be required to pay expenses of activities which are
primarily intended to result in sales of Shares of the Funds.
5. Compensation of the Manager.
(a) For all services to be rendered and payments made as provided in
paragraphs 3 and 4 hereof, the Registrant on behalf of each Fund will
pay you each month a fee at an annual rate equal to the percentage of
the average daily net assets of the Fund set forth with respect to such
Fund on Annex A. The "average daily net assets" of a Fund shall be
determined on the basis set forth in the Fund's prospectus(es) or
otherwise consistent with the 1940 Act and the regulations promulgated
thereunder.
(b) In addition to the foregoing, you may from time to time agree not
to impose all or a portion of your fee otherwise payable hereunder (in
advance of the time such fee or portion thereof would otherwise accrue)
and/or undertake to pay or reimburse a Fund for all or a portion of its
expenses not otherwise required to be borne or reimbursed by you. Any
such fee reduction or undertaking may be discontinued or modified by
you at any time.
6. Avoidance of Inconsistent Position. In connection with purchases or sales of
portfolio securities for the account of the Funds, neither you nor any of your
partners, officers or employees will act as a principal, except as otherwise
permitted by the 1940 Act. You or your agent (or one or more sub-advisers or
their agents) shall arrange for the placing of all orders for the purchase and
sale of portfolio securities for each Fund's account with brokers or dealers
(including Xxxxxxx, Sachs & Co.) selected by you (or them). In the selection of
such brokers or dealers (including Xxxxxxx, Xxxxx & Co.) and the placing of such
orders, you are directed at all times to seek for the Funds the most favorable
execution and net price available. It is also understood that it is desirable
for the Funds that you have access to supplemental investment and market
research and security and economic analyses provided by brokers who may execute
brokerage transactions at a higher cost to a Fund than may result when
allocating brokerage to other brokers on the basis of seeking the most favorable
price and efficient execution. Therefore, you are authorized to place orders for
the purchase and sale of securities for the Funds with such brokers, subject to
review by the Registrant's Trustees from time to time with respect to the extent
and continuation of this practice. It is understood that the services provided
by such brokers may be useful to you in connection with your services to other
clients. If any occasion should arise in which you give any advice to your
clients concerning the Shares of the Funds, you will act solely as investment
counsel for such clients and not in any way on behalf of any Fund. You may, on
occasions when you deem the purchase or sale of a security to be in the best
interests of a Fund as well as your other customers (including any other Series
or any other investment company or advisory account for which you or any of your
affiliates acts as an investment adviser), aggregate, to the extent permitted by
applicable laws and regulations, the securities to be sold or purchased in order
to obtain the best net price and the most favorable execution. In such event,
allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by you in the manner you consider to
be the most equitable and consistent with your fiduciary obligations to the Fund
and to such other customers.
7. Limitation of Liability of Manager and Fund. You shall not be liable for any
error of judgment or mistake of law or for any loss suffered by a Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on your part
in the performance of your duties or from reckless disregard by you of your
obligations and duties under this Agreement. Any person, even though also
employed by you, who may be or become an employee of and paid by the Registrant
or the Funds shall be deemed, when acting within the scope of his employment by
the Funds, to be acting in such employment solely for the Funds and not as your
employee or agent. A Fund shall not be liable for any claims against any other
Fund or Series of the Registrant.
8. Duration and Termination of this Agreement. This Agreement shall remain in
force as to each Fund until June 30, 2006 and shall continue for periods of one
year thereafter, but only so long as such continuance is specifically approved
at least annually (a) by the vote of a majority of the Trustees who are not
interested persons (as defined in the 0000 Xxx) of the Registrant and have no
financial interest in this Agreement, cast in person at a meeting called for the
purpose of voting on such approval and (b) by a vote of a majority of the
Trustees of the Registrant or of a majority of the outstanding voting securities
of such Fund. The aforesaid requirement that continuance of this Agreement be
"specifically approved at least annually" shall be construed in a manner
consistent with the 1940 Act and the rules and regulations thereunder. This
Agreement may, on 60 days written notice to the other party, be terminated in
its entirety or as to a particular Fund at any time without the payment of any
penalty, by the Trustees of the Registrant, by vote of a majority of the
outstanding voting securities of a Fund, or by you. This Agreement shall
automatically terminate in the event of its assignment. In interpreting the
provisions of this Agreement, the definitions contained in Section 2(a) of the
1940 Act (particularly the definitions of "interested person," "assignment" and
"majority of the outstanding voting securities"), as from time to time amended,
shall be applied, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission by any rule, regulation or order.
9. Amendment of this Agreement. No provisions of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. No amendment of this Agreement shall be effective as
to a Fund until approved by vote of the holders of a majority of the outstanding
voting securities of such Fund and by a majority of the Trustees of the
Registrant, including a majority of the Trustees who are not interested persons
(as defined in the 0000 Xxx) of the Registrant and have no financial interest in
this Agreement, cast in person at a meeting called for the purpose of voting on
such amendment. Notwithstanding the foregoing, this Agreement may be amended at
any time to add to a new Fund to Annex A, or for any other reason permitted by
the 1940 Act and the regulations and interpretations thereunder, provided such
amendment is approved by a majority of the Trustees of the Registrant, including
a majority of the Trustees who are not interested persons (as defined in the
0000 Xxx) of the Registrant and have no financial interest in this Agreement.
This paragraph does not apply to any agreement described in paragraph 5(b)
hereof, which shall be effective during the period you specify in a prospectus,
sticker, or other document made available to current or prospective
shareholders.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
11. Miscellaneous. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
The name Xxxxxxx Xxxxx Variable Insurance Trust is the designation of
the Trustees for the time being under an Agreement and Declaration of Trust
dated September 16, 1997 as amended from time to time, and all persons dealing
with the Trust or a Fund must look solely to the property of the Trust or such
Fund for the enforcement of any claims as none of the Trustees, officers, agents
or shareholders assume any personal liability for obligations entered into on
behalf of the Trust.
If you are in agreement with the foregoing, please sign the form of
acceptance on the Registrant counterpart of this letter and return such
counterpart to the Registrant, whereupon this letter shall become a binding
contract.
Yours very truly,
XXXXXXX SACHS VARIABLE INSURANCE TRUST
Attest: By:_/s/ Xxxxxx Uniacke_____
--------------------------- ------------------------
Name: Xxxxxx Xxxxxxx
Position: _____________________ Position: President
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
Attest: By: _/s/ Xxxxxx X. Surloff_
---------------------------- ------------------------
Name: Xxxxxx X. Xxxxxxx
Position: ______________________ Position: Managing Director
Annex A
Xxxxxxx Sachs Asset Management L.P. will provide the services provided for in
the attached Management Agreement to the
Fund listed below for the annual fee rates indicated.
Name of Fund Annual Fee Rate
Xxxxxxx Xxxxx Equity Index Fund 0.30%
XXXXXXX SACHS VARIABLE INSURANCE TRUST
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx Xxxxx Asset Management Xxxxxxx Sachs Asset Management
Xxx Xxx Xxxx Xxxxx Xxxxxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxxxxxxx Xx.
Xxxxxx, Xxxxxxx
MANAGEMENT AGREEMENT
Dear Sirs:
Xxxxxxx Xxxxx Variable Insurance Trust (the "Registrant") is organized as a
business trust under the laws of the State of Delaware to engage in the business
of an investment company. The shares of the Registrant ("Shares") may be divided
into multiple series ("Series"), including the Series listed on Annex A
(including any Series added to Annex A in the future, each a "Fund"). Each
Series will represent the interests in a separate portfolio of securities and
other assets. Each Series may be terminated, and additional Series established,
from time to time by action of the Trustees. The Registrant on behalf of each
Fund has selected you to act as an investment adviser and administrator of each
Fund as designated on Annex A and to provide certain services, as more fully set
forth below, and you are willing to act as such investment adviser and
administrator and to perform such services under the terms and conditions
hereinafter set forth. Accordingly, the Registrant agrees with you as follows:
1. Name of Registrant. The Registrant may use any name including or derived from
the name "Xxxxxxx Sachs" in connection with a Fund only for so long as this
Agreement or any extension, renewal or amendment hereof remains in effect,
including any similar agreement with any organization which shall have succeeded
to your business as investment adviser or administrator. Upon the termination of
this Agreement, the Registrant (to the extent that it lawfully can) will cause
the Funds to cease to use such a name or any other name indicating that it is
advised by or otherwise connected with you or any organization which shall have
so succeeded to your business.
2. Affiliated Advisers and Sub-Advisers. At your discretion, you may provide
advisory and administration services through your own employees or the employees
of one or more affiliated companies that are qualified to act as investment
adviser, or administrator to the Registrant under applicable law and are under
the common control of Xxxxxxx Xxxxx & Co. provided that (i) all persons, when
providing services hereunder, are functioning as part of an organized group of
persons; and (ii) that such organized group of persons is managed at all times
by your authorized officers. You may also engage one or more investment advisers
which are either registered as such or specifically exempt from registration
under the Investment Advisers Act of 1940, as amended, to act as sub-advisers to
provide with respect to any Fund certain services set forth in Paragraphs 3 and
6 hereof, all as shall be set forth in a written contract to which the
Registrant, on behalf of the particular Fund, and you shall be parties, which
contract shall be subject to approval by the vote of a majority of the Trustees
who are not interested persons of you, the sub-adviser, or of the Registrant,
cast in person at a meeting called for the purpose of voting on such approval
and by the vote of a majority of the outstanding voting securities of the Fund
and otherwise consistent with the terms of the Investment Company Act of 1940,
as amended (the "1940 Act").
3. Management Services.
(a) You will regularly provide each Fund with investment
research, advice and supervision and will furnish continuously an
investment program for each Fund consistent with the investment
objectives and policies of the Fund. You will determine from time to
time what securities shall be purchased for a Fund, what securities
shall be held or sold by a Fund, and what portion of a Fund's assets
shall be held uninvested as cash, subject always to the provisions of
the Registrant's Declaration of Trust and By-Laws and of the 1940 Act,
and to the investment objectives, policies and restrictions of the
Fund, as each of the same shall be from time to time in effect, and
subject, further, to such policies and instructions as the Trustees of
the Registrant may from time to time establish.
(b) Subject to the general supervision of the Trustees of the
Registrant, you will provide certain administrative services to each
Fund. You will, to the extent such services are not required to be
performed by others pursuant to the custodian agreement (or the
transfer agency agreement to the extent that a person other than you is
serving thereunder as the Registrant's transfer agent), (i) provide
supervision of all aspects of each Fund's operations not referred to in
paragraph (a) above; (ii) provide each Fund with personnel to perform
such executive, administrative and clerical services as are reasonably
necessary to provide effective administration of the Fund; (iii)
arrange for, at the Registrant's expense, (a) the preparation for each
Fund of all required tax returns, (b) the preparation and submission of
reports to existing shareholders and (c) the periodic updating of the
Fund's prospectuses and statements of additional information and the
preparation of reports filed with the Securities and Exchange
Commission and other regulatory authorities; (iv) maintain all of the
Funds' records; and (v) provide the Funds with adequate office space
and all necessary office equipment and services including telephone
service, heat, utilities, stationery supplies and similar items.
(c) You will also provide to the Registrant's Trustees such
periodic and special reports as the Trustees may reasonably request.
You shall for all purposes herein be deemed to be an independent
contractor and shall, except as otherwise expressly provided or
authorized, have no authority to act for or represent the Registrant or
the Funds in any way or otherwise be deemed an agent of the Registrant
or the Funds.
(d) You will maintain all books and records with respect to
the Funds' securities transactions required by sub-paragraphs (b)(5),
(6), (7), (9) and (10) and paragraph (f) of Rule 31a-1 under the 1940
Act (other than those records being maintained by the Fund's custodian
or transfer agent) and preserve such records for the periods prescribed
therefor by Rule 31a-2 of the 1940 Act. You will also provide to the
Registrant's Trustees such periodic and special reports as the Board
may reasonably request.
(e) You will notify the Registrant of any change in your
membership within a reasonable time after such change.
(f) Your services hereunder are not deemed exclusive and you
shall be free to render similar services to others.
4. Allocation of Charges and Expenses. You will pay all costs incurred by you in
connection with the performance of your duties under paragraph 3. You will pay
the compensation and expenses of all personnel of yours and will make available,
without expense to the Funds, the services of such of your partners, officers
and employees as may duly be elected officers or Trustees of the Registrant,
subject to their individual consent to serve and to any limitations imposed by
law. You will not be required to pay any expenses of any Fund other than those
specifically allocated to you in this Paragraph 4. In particular, but without
limiting the generality of the foregoing, you will not be required to pay: (i)
organization expenses of the Funds; (ii) fees and expenses incurred by the Funds
in connection with membership in investment company organizations; (iii)
brokers' commissions; (iv) payment for portfolio pricing services to a pricing
agent, if any; (v) legal, auditing or accounting expenses (including an
allocable portion of the cost of your employees rendering legal and accounting
services to the Fund); (vi) taxes or governmental fees; (vii) the fees and
expenses of the transfer agent of the Registrant; (viii) the cost of preparing
stock certificates or any other expenses, including clerical expenses of issue,
redemption or repurchase of Shares of the Fund; (ix) the expenses of and fees
for registering or qualifying Shares for sale and of maintaining the
registration of the Funds and registering the Registrant as a broker or a
dealer; (x) the fees and expenses of Trustees of the Registrant who are not
affiliated with you; (xi) the cost of preparing and distributing reports and
notices to shareholders, the Securities and Exchange Commission and other
regulatory authorities; (xii) the fees or disbursements of custodians of each
Fund's assets, including expenses incurred in the performance of any obligations
enumerated by the Declaration of Trust or By-Laws of the Registrant insofar as
they govern agreements with any such custodian; or (xiii) litigation and
indemnification expenses and other extraordinary expenses not incurred in the
ordinary course of the Fund's business. You shall not be required to pay
expenses of activities which are primarily intended to result in sales of Shares
of the Funds.
5. Compensation of the Manager.
(a) For all services to be rendered and payments made as
provided in Paragraphs 3 and 4 hereof, the Registrant on behalf of each
Fund will pay you each month a fee at an annual rate equal to the
percentage of the average daily net assets of the Fund set forth with
respect to such Fund on Annex A. The "average daily net assets" of a
Fund shall be determined on the basis set forth in the Fund's
prospectus(es) or otherwise consistent with the 1940 Act and the
regulations promulgated thereunder.
(b) In addition to the foregoing, you may from time to time
agree not to impose all or a portion of your fee otherwise payable
hereunder (in advance of the time such fee or portion thereof would
otherwise accrue) and/or undertake to pay or reimburse a Fund for all
or a portion of its expenses not otherwise required to be borne or
reimbursed by you. Any such fee reduction or undertaking may be
discontinued or modified by you at any time.
6. Avoidance of Inconsistent Position. In connection with purchases or sales of
portfolio securities for the account of the Funds, neither you nor any of your
partners, officers or employees will act as a principal, except as otherwise
permitted by the 1940 Act. You or your agent shall arrange for the placing of
all orders for the purchase and sale of portfolio securities for each Fund's
account with brokers or dealers (including Xxxxxxx, Sachs & Co.) selected by
you. In the selection of such brokers or dealers (including Xxxxxxx, Xxxxx &
Co.) and the placing of such orders, you are directed at all times to seek for
the Funds the most favorable execution and net price available. It is also
understood that it is desirable for the Funds that you have access to
supplemental investment and market research and security and economic analyses
provided by brokers who may execute brokerage transactions at a higher cost to a
Fund than may result when allocating brokerage to other brokers on the basis of
seeking the most favorable price and efficient execution. Therefore, you are
authorized to place orders for the purchase and sale of securities for the Funds
with such brokers, subject to review by the Registrant's Trustees from time to
time with respect to the extent and continuation of this practice. It is
understood that the services provided by such brokers may be useful to you in
connection with your services to other clients. If any occasion should arise in
which you give any advice to your clients concerning the Shares of the Funds,
you will act solely as investment counsel for such clients and not in any way on
behalf of any Fund. You may, on occasions when you deem the purchase or sale of
a security to be in the best interests of a Fund as well as your other customers
(including any other Series or any other investment company or advisory account
for which you or any of your affiliates acts as an investment adviser),
aggregate, to the extent permitted by applicable laws and regulations, the
securities to be sold or purchased in order to obtain the best net price and the
most favorable execution. In such event, allocation of the securities so
purchased or sold, as well as the expenses incurred in the transaction, will be
made by you in the manner you consider to be the most equitable and consistent
with your fiduciary obligations to the Fund and to such other customers. In
addition, you are authorized to take into account the sale of Shares of the
Registrant in allocating purchase and sale orders for portfolio securities to
brokers or dealers (including brokers and dealers that are affiliated with you),
provided that you believe that the quality of the transaction and the commission
is comparable to what they would be with other qualified firms.
7. Limitation of Liability of Manager and Fund. You shall not be liable for any
error of judgment or mistake of law or for any loss suffered by a Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on your part
in the performance of your duties or from reckless disregard by you of your
obligations and duties under this Agreement. Any person, even though also
employed by you, who may be or become an employee of and paid by the Registrant
or the Funds shall be deemed, when acting within the scope of his employment by
the Funds, to be acting in such employment solely for the Funds and not as your
employee or agent. A Fund shall not be liable for any claims against any other
Fund or Series of the Registrant.
8. Duration and Termination of this Agreement. This Agreement shall remain in
force as to each Fund until June 30, 1999 and shall continue for periods of one
year thereafter, but only so long as such continuance is specifically approved
at least annually (a) by the vote of a majority of the Trustees who are not
interested persons (as defined in the 0000 Xxx) of the Registrant and have no
financial interest in this Agreement, cast in person at a meeting called for the
purpose of voting on such approval and (b) by a vote of a majority of the
Trustees of the Registrant or of a majority of the outstanding voting securities
of such Fund. The aforesaid requirement that continuance of this Agreement be
"specifically approved at least annually" shall be construed in a manner
consistent with the 1940 Act and the rules and regulations thereunder. This
Agreement may, on 60 days written notice to the other party, be terminated in
its entirety or as to a particular Fund at any time without the payment of any
penalty, by the Trustees of the Registrant, by vote of a majority of the
outstanding voting securities of a Fund, or by you. This Agreement shall
automatically terminate in the event of its assignment. In interpreting the
provisions of this Agreement, the definitions contained in Section 2(a) of the
1940 Act (particularly the definitions of "interested person," "assignment" and
"majority of the outstanding voting securities"), as from time to time amended,
shall be applied, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission by any rule, regulation or order.
9. Amendment of this Agreement. No provisions of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. No amendment of this Agreement shall be effective as
to a Fund until approved by vote of the holders of a majority of the outstanding
voting securities of such Fund and by a majority of the Trustees of the
Registrant, including a majority of the Trustees who are not interested persons
(as defined in the 0000 Xxx) of the Registrant and have no financial interest in
this Agreement, cast in person at a meeting called for the purpose of voting on
such amendment. Notwithstanding the foregoing, this Agreement may be amended at
any time to add to a new Fund to Annex A, or for any other reason permitted by
the 1940 Act and the regulations and interpretations thereunder, provided such
amendment is approved by a majority of the Trustees of the Registrant, including
a majority of the Trustees who are not interested persons (as defined in the
0000 Xxx) of the Registrant and have no financial interest in this Agreement.
This Paragraph does not apply to any agreement described in Paragraph 5(b)
hereof, which shall be effective during the period you specify in a prospectus,
sticker, or other document made available to current or prospective
shareholders.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
11. Miscellaneous. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
The name Xxxxxxx Xxxxx Variable Insurance Trust is the designation of
the Trustees for the time being under an Agreement and Declaration of Trust
dated September 16, 1997 as amended from time to time, and all persons dealing
with the Trust or a Fund must look solely to the property of the Trust or such
Fund for the enforcement of any claims as none of Trustees, officers, agents or
shareholders assume any personal liability for obligations entered into on
behalf of the Trust. No Fund shall be liable for any claims against any other
Series.
If you are in agreement with the foregoing, please sign the form of
acceptance on the Registrant counterpart of this letter and return such
counterpart to the Registrant, whereupon this letter shall become a binding
contract.
Yours very truly,
XXXXXXX SACHS VARIABLE INSURANCE TRUST
Attest: By: /s/ Xxxxxx Xxxxxxx
--------------------------- ---------------------
Xxxxxx Xxxxxxx
Secretary of the Registrant President of the Registrant
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX XXXXX ASSET MANAGEMENT,
a division of Xxxxxxx, Sachs & Co.
Attest: By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Counsel to the Funds Group Managing Director
XXXXXXX XXXXX ASSET MANAGEMENT INTERNATIONAL,
an affiliate of Xxxxxxx, Sachs & Co.
Attest: By: /s/ Xxxxxx X. Xxxxxxx
---------------------------- -----------------------
Xxxxxx X. Xxxxxxx
Counsel to the Funds Group Managing Director
Annex A
August 5, 2005
The division of investment adviser and administrator services and the
compensation for such services shall be as follows:
Xxxxxxx Xxxxx Asset Management Annual Rate (%)
Xxxxxxx Sachs Growth and Income Fund 0.54
Xxxxxxx Xxxxx Mid Cap Value Fund 0.80
Xxxxxxx Sachs CORE Small Cap Equity Fund 0.75
Xxxxxxx Xxxxx CORE U.S. Equity Fund 0.65
Xxxxxxx Sachs Capital Growth Fund 0.75
Xxxxxxx Xxxxx Growth Opportunities Fund 1.00
Xxxxxxx Sachs Asset Management International
Xxxxxxx Xxxxx International Equity Fund 1.00
Xxxxxxx Sachs Fixed Income and Money Market Funds:
Xxxxxxx Xxxxx Government Income Fund 0.54
Xxxxxxx Sachs Core Fixed Income Fund 0.40
Xxxxxxx Xxxxx Money Market Fund 0.35
XXXXXXX SACHS VARIABLE INSURANCE TRUST
By: /s/ Xxxxxx Uniacke_______
Xxxxxx Xxxxxxx
President of the Registrant
XXXXXXX XXXXX ASSET MANAGEMENT,
a division of Xxxxxxx, Sachs & Co.
By: _/s/ Xxxxxx X. Xxxxxxx _
Xxxxxx X. Xxxxxxx
Managing Director
XXXXXXX SACHS ASSET MANAGEMENT INTERNATIONAL,
an affiliate of Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxx X. Xxxxxxx _
Xxxxxx X. Xxxxxxx
Managing Director
