SUBADVISORY AGREEMENT
Exhibit
(d)(16)
This SUBADVISORY AGREEMENT (“Agreement”) is made this 1st day of August, 2006, by and between
Western Asset Management Company, a corporation organized under the laws of California (the
“Subadviser”) and Western Asset Management Company Limited, a corporation organized under the laws
of England and Wales (“WAML”).
WHEREAS, the Subadviser has been retained by Xxxx Xxxxx Partners Fund Advisor, LLC to provide
investment advisory, management, and administrative services to Xxxx Xxxxx Partners Variable
Portfolios II (the “Trust”), a registered management investment company under the Investment
Company Act of 1940, as amended (the “1940 Act”) with respect to the series of the Trust designated
in Schedule A annexed hereto (the “Fund”); and
WHEREAS, the Subadviser wishes to engage WAML to provide certain investment advisory services
to the Fund, and WAML is willing to furnish such services on the terms and conditions hereinafter
set forth;
NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, it is
agreed as follows:
1. In accordance with and subject to the Subadvisory Agreement between the Subadviser and Xxxx
Xxxxx Partners Fund Advisor, LLC with respect to the Fund (the “Subadvisory Agreement”), the
Subadviser hereby appoints WAML to act as a subadviser with respect to the Fund for the period and
on the terms set forth in this Agreement. WAML accepts such appointment and agrees to render the
services herein set forth, for the compensation herein provided.
2. The Subadviser shall cause WAML to be kept fully informed at all times with regard to the
securities owned by the Fund, its funds available, or to become available, for investment, and
generally as to the condition of the Fund’s affairs. The Subadviser shall furnish WAML with such
other documents and information with regard to the Fund’s affairs as WAML may from time to time
reasonably request.
3. (a) Subject to the supervision of the Trust’s Board of Trustees (the “Board”), Xxxx Xxxxx
Partners Fund Advisor, LLC and the Subadviser, WAML shall regularly provide the Fund with respect
to such portion of the Fund’s assets as shall be allocated to WAML by the Subadviser from time to
time (the “Allocated Assets”), with investment research, advice, management and supervision and
shall furnish a continuous investment program for the Allocated Assets consistent with the Fund’s
investment objectives, policies and restrictions, as stated in the Fund’s current Prospectus and
Statement of Additional Information. WAML shall, with respect to the Allocated Assets, determine
from time to time what securities and other investments will be purchased (including, as permitted
in accordance with this paragraph, swap agreements, options and futures), retained, sold or
exchanged by the Fund and what portion of the Allocated Assets will be held in the various
securities and other investments in which the Fund invests, and shall implement those decisions
(including the execution of investment documentation), all subject to the provisions of the Trust’s
Declaration of Trust and By-Laws (collectively, the “Governing Documents”), the 1940 Act, and the
applicable rules and regulations promulgated thereunder by the Securities and Exchange Commission
(the “SEC”) and interpretive guidance issued thereunder by the SEC staff and any other applicable
federal and state law, as well as the investment objectives, policies and restrictions of the Fund
referred to above, and any other specific policies adopted by the Board and disclosed to WAML. WAML
is authorized as the agent of the Trust to give instructions with respect to the Allocated Assets
to the custodian of the Fund as to deliveries of securities and other investments and payments of
cash for the account of the Fund. Subject to applicable provisions of the 1940 Act, the
investment program to be provided hereunder may entail the investment of all or substantially
all of the assets of the Fund in one or more investment companies. WAML will place orders pursuant
to its investment determinations for the Fund either directly with the issuer or with any broker or
dealer, foreign currency dealer, futures commission merchant or others selected by it. In
connection with the selection of such brokers or dealers and the placing of such orders, subject to
applicable law, brokers or dealers may be selected who also provide brokerage and research services
(as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) to the Fund and/or the other accounts over which WAML or its affiliates
exercise investment discretion. WAML is authorized to pay a broker or dealer who provides such
brokerage and research services a commission for executing a portfolio transaction for the Fund
which is in excess of the amount of commission another broker or dealer would have charged for
effecting that transaction if WAML determines in good faith that such amount of commission is
reasonable in relation to the value of the brokerage and research services provided by such broker
or dealer. This determination may be viewed in terms of either that particular transaction or the
overall responsibilities which WAML and its affiliates have with respect to accounts over which
they exercise investment discretion. The Board may adopt policies and procedures that modify and
restrict WAML’s authority regarding the execution of the Fund’s portfolio transactions provided
herein. WAML shall exercise voting rights, rights to consent to corporate action and any other
rights pertaining to the Allocated Assets subject to such direction as the Board may provide, and
shall perform such other functions of investment management and supervision as may be directed by
the Board.
(b) The Fund hereby authorizes any entity or person associated with WAML which is a member of
a national securities exchange to effect any transaction on the exchange for the account of the
Fund which is permitted by Section 11(a) of the Exchange Act and Rule 11a2-2(T) thereunder, and the
Fund hereby consents to the retention of compensation for such transactions in accordance with Rule
11a2-2(T)(a)(2)(iv). Notwithstanding the foregoing, WAML agrees that it will not deal with itself,
or with members of the Board or any principal underwriter of the Fund, as principals or agents in
making purchases or sales of securities or other property for the account of the Fund, nor will it
purchase any securities from an underwriting or selling group in which WAML or its affiliates is
participating, or arrange for purchases and sales of securities between the Fund and another
account advised by WAML or its affiliates, except in each case as permitted by the 1940 Act and in
accordance with such policies and procedures as may be adopted by the Fund from time to time, and
will comply with all other provisions of the Governing Documents and the Fund’s then-current
Prospectus and Statement of Additional Information relative to WAML and its directors and officers.
4. WAML may delegate to any other one or more companies that WAML controls, is controlled by,
or is under common control with, or to specified employees of any such companies, certain of WAML’s
duties under this Agreement, provided in each case WAML will supervise the activities of each such
entity or employees thereof, that such delegation will not relieve WAML of any of its duties or
obligations under this Agreement and provided further that any such arrangements are entered into
in accordance with all applicable requirements of the 1940 Act.
5. WAML agrees that it will keep records relating to its services hereunder in accordance with
all applicable laws, and in compliance with the requirements of Rule 31a-3 under the 1940 Act, WAML
hereby agrees that any records that it maintains for the Fund are the property of the Fund, and
further agrees to surrender promptly to the Fund any of such records upon the Fund’s request. WAML
further agrees to arrange for the preservation of the records required to be maintained by Rule
31a-1 under the 1940 Act for the periods prescribed by Rule 31a-2 under the 1940 Act.
6. (a) WAML, at its expense, shall supply the Board, the officers of the Trust, Xxxx Xxxxx
Partners Fund Advisor, LLC and the Subadviser with all information and reports reasonably
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required by them and reasonably available to WAML relating to the services provided by WAML
hereunder.
(b) WAML shall bear all expenses, and shall furnish all necessary services, facilities and
personnel, in connection with its responsibilities under this Agreement. Other than as herein
specifically indicated, WAML shall not be responsible for the Fund’s expenses, including, without
limitation, advisory fees; distribution fees; interest; taxes; governmental fees; voluntary
assessments and other expenses incurred in connection with membership in investment company
organizations; organization costs of the Fund; the cost (including brokerage commissions,
transaction fees or charges, if any) in connection with the purchase or sale of the Fund’s
securities and other investments and any losses in connection therewith; fees and expenses of
custodians, transfer agents, registrars, independent pricing vendors or other agents; legal
expenses; loan commitment fees; expenses relating to share certificates; expenses relating to the
issuing and redemption or repurchase of the Fund’s shares and servicing shareholder accounts;
expenses of registering and qualifying the Fund’s shares for sale under applicable federal and
state law; expenses of preparing, setting in print, printing and distributing prospectuses and
statements of additional information and any supplements thereto, reports, proxy statements,
notices and dividends to the Fund’s shareholders; costs of stationery; website costs; costs of
meetings of the Board or any committee thereof, meetings of shareholders and other meetings of the
Fund; Board fees; audit fees; travel expenses of officers, members of the Board and employees of
the Fund, if any; and the Fund’s pro rata portion of premiums on any fidelity bond and other
insurance covering the Fund and its officers, Board members and employees; litigation expenses and
any non-recurring or extraordinary expenses as may arise, including, without limitation, those
relating to actions, suits or proceedings to which the Fund is a party and the legal obligation
which the Fund may have to indemnify the Fund’s Board members and officers with respect thereto.
7. No member of the Board, officer or employee of the Trust or Fund shall receive from the
Trust or Fund any salary or other compensation as such member of the Board, officer or employee
while he is at the same time a director, officer, or employee of WAML or any affiliated company of
WAML, except as the Board may decide. This paragraph shall not apply to Board members, executive
committee members, consultants and other persons who are not regular members of WAML’s or any
affiliated company’s staff.
8. As compensation for the services performed by WAML, including the services of any
consultants retained by WAML, the Subadviser shall pay WAML out of the subadvisory fee it receives
with respect to the Fund, and only to the extent thereof, as promptly as possible after the last
day of each month, a fee, computed daily at an annual rate set forth on Schedule A annexed hereto.
The first payment of the fee shall be made as promptly as possible at the end of the month
succeeding the effective date of this Agreement, and shall constitute a full payment of the fee due
WAML for all services prior to that date. If this Agreement is terminated as of any date not the
last day of a month, such fee shall be paid as promptly as possible after such date of termination,
shall be based on the average daily net assets of the Fund or, if less, the portion thereof
comprising the Allocated Assets in that period from the beginning of such month to such date of
termination, and shall be that proportion of such average daily net assets as the number of
business days in such period bears to the number of business days in such month. The average daily
net assets of the Fund or the portion thereof comprising the Allocated Assets shall in all cases be
based only on business days and be computed as of the time of the regular close of business of the
New York Stock Exchange, or such other time as may be determined by the Board.
9. WAML assumes no responsibility under this Agreement other than to render the services
called for hereunder, in good faith, and shall not be liable for any error of judgment or mistake
of law, or for any loss arising out of any investment or for any act or omission in the execution
of securities transactions for the Fund, provided that nothing in this Agreement shall protect WAML
against any
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liability to the Subadviser, Xxxx Xxxxx Partners Fund Advisor, LLC or the Fund to which WAML
would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its reckless disregard of its obligations and duties
hereunder. As used in this Section 9, the term “WAML” shall include any affiliates of WAML
performing services for the Trust or the Fund contemplated hereby and the partners, shareholders,
directors, officers and employees of WAML and such affiliates.
10. Nothing in this Agreement shall limit or restrict the right of any director, officer, or
employee of WAML who may also be a Board member, officer, or employee of the Trust or the Fund, to
engage in any other business or to devote his time and attention in part to the management or other
aspects of any other business, whether of a similar nature or a dissimilar nature, nor to limit or
restrict the right of WAML to engage in any other business or to render services of any kind,
including investment advisory and management services, to any other fund, firm, individual or
association. If the purchase or sale of securities consistent with the investment policies of the
Fund or one or more other accounts of WAML is considered at or about the same time, transactions in
such securities will be allocated among the accounts in a manner deemed equitable by WAML. Such
transactions may be combined, in accordance with applicable laws and regulations, and consistent
with WAML’s policies and procedures as presented to the Board from time to time.
11. For the purposes of this Agreement, the Fund’s “net assets” shall be determined as
provided in the Fund’s then-current Prospectus and Statement of Additional Information and the
terms “assignment,” “interested person,” and “majority of the outstanding voting securities” shall
have the meanings given to them by Section 2(a) of the 1940 Act, subject to such exemptions as may
be granted by the SEC by any rule, regulation or order.
12. This Agreement will become effective with respect to the Fund on the date set forth
opposite the Fund’s name on Schedule A annexed hereto, provided that it shall have been approved by
the Trust’s Board and, if so required by the 1940 Act, by the shareholders of the Fund in
accordance with the requirements of the 1940 Act and, unless sooner terminated as provided herein,
will continue in effect through November 30, 2007. Thereafter, if not terminated, this Agreement
shall continue in effect with respect to the Fund, so long as such continuance is specifically
approved at least annually (i) by the Board or (ii) by a vote of a majority of the outstanding
voting securities of the Fund, provided that in either event the continuance is also approved by a
majority of the Board members who are not interested persons of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such approval.
13. This Agreement is terminable with respect to the Fund without penalty by the Board or by
vote of a majority of the outstanding voting securities of the Fund, in each case on not more than
60 days’ nor less than 30 days’ written notice to WAML, or by WAML upon not less than 90 days’
written notice to the Fund and the Subadviser, and will be terminated upon the mutual written
consent of the Subadviser and WAML. This Agreement shall terminate automatically in the event of
its assignment by WAML and shall not be assignable by the Subadviser without the consent of WAML.
14. WAML agrees that for any claim by it against the Fund in connection with this Agreement or
the services rendered under the Agreement, it shall look only to assets of the Fund for
satisfaction and that it shall have no claim against the assets of any other portfolios of the
Trust/Corporation.
15 No provision 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, and no material amendment of the Agreement shall be
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effective until approved, if so required by the 1940 Act, by vote of the holders of a majority
of the Fund’s outstanding voting securities.
16. This Agreement, and any supplemental terms contained on Annex I hereto, if applicable,
embodies the entire agreement and understanding between the parties hereto, and supersedes all
prior agreements and understandings relating to the subject matter hereof. Should any part of this
Agreement be held or made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement shall be binding on and shall inure to
the benefit of the parties hereto and their respective successors.
17. This Agreement shall be construed and the provisions thereof interpreted under and in
accordance with the laws of the State of New York.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
officers thereunto duly authorized.
| WESTERN ASSET MANAGEMENT COMPANY |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| WESTERN ASSET MANAGEMENT COMPANY LIMITED |
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| By: | ||||
| Name: | ||||
| Title: | ||||
The foregoing is acknowledged:
The undersigned officer of the Trust has executed this Agreement not individually but in
his/her capacity as an officer of the Trust. The Trust does not hereby undertake, on behalf of the
Fund or otherwise, any obligation to Western Asset Management Company Limited.
| XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS II |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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ANNEX I
This Annex I forms a part of the Subadvisory Agreement dated as of August 1, 2006 by and
between Western Asset Management Company, a California corporation, and Western Asset Management
Company Limited (“WAML”), an entity authorized and regulated in the United Kingdom by the Financial
Services Authority (the “FSA”).
1. WAML represents, warrants and covenants that it is authorized and regulated by the FSA.
2. WAML has classified the Fund as an Intermediate Customer as defined by the FSA Rules.
SCHEDULE A
Xxxx Xxxxx Partners Variable Diversified Strategic Income Portfolio
Date:
August 1, 2006
Fee:
The sub-advisory fee will be the following percentage of the Fund’s Allocated Assets: 0.30%
