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Exhibit 23(d)(2)
XXXXX VARIABLE ACCOUNT FUND, INC.
SUB-ADVISORY AGREEMENT
JANUARY 1, 2001
Xxxxx Selected Advisers - NY, Inc.
000 Xxxxx Xxx.
Xxx Xxxx, XX 00000
Re: Sub-Advisory Agreement for Xxxxx Variable Account Fund, Inc.
This is to confirm that Xxxxx Selected Advisers, L.P. (the "Adviser"), is
retaining Xxxxx Selected Advisers - NY, Inc. ("DSA-NY"), as investment
sub-adviser for the portfolio of Xxxxx Variable Account Fund, Inc. (the "Fund").
The terms and conditions of your retention are as follows:
1. Service as Sub-Adviser. DSA-NY shall act as an investment sub-adviser for
the Fund and will provide such investment management and research services
as the Adviser shall request subject to the general supervision of the
Board of Directors of the Fund, Xxxxx Selected Advisers, L.P. (the
"Adviser"), and to any applicable provisions as are in effect from time to
time of (a) the Articles of Incorporation and Bylaws of the Fund; (b) the
prospectus, statement of additional information and other information set
forth in the Fund's registration documents under the Securities Act of 1933
and the Investment Company Act of 1940 ("1940 Act"), including any
supplements thereto; (c) the Investment Advisory Agreement between the
Adviser and the Fund (the "Investment Advisory Agreement"), the Adviser's
and the Fund's Code of Ethics; and (d) any additional policies or
guidelines established by the Fund's Board of Directors or the Adviser.
DSA-NY acknowledges receipt of copies of the above documents as in effect
on the date of acceptance of this letter. The Adviser agrees that it will
promptly deliver to DSA-NY any amendments, changes or additions of or to
these documents.
2. Securities Transactions. DSA-NY agrees that all securities transactions
will conform to (a) the stated objectives and policies of the Fund; (b) the
brokerage policies set forth in the Investment Advisory Agreement (which
are hereby incorporated by reference herein) and the registration
documents; and (c) those investment and brokerage policies or guidelines
directed by the Board of Directors of the Fund, any committee thereof and
the Adviser.
3. Independent Contractor. DSA-NY shall be an independent contractor. Unless
otherwise expressly provided or authorized hereunder, or by the Board of
Directors of the Fund, DSA-NY shall have no authority to represent the Fund
or the Adviser in any way or otherwise be an agent of the Adviser or the
Fund, except with regard to the execution of securities transactions on
behalf of the Fund with registered broker/dealers, including broker/dealers
affiliated with the Adviser, provided such transactions comply with Rule
17e-1 of the 1940 Act.
4. Reports and Other Documentation. DSA-NY shall provide the Adviser with any
reports, analyses or other documentation the Adviser requests including
those related to placement of security transactions, its administrative
responsibilities and its responsibility to monitor compliance with stated
investment objectives, policies and limitations and the investment
performance of the Fund. DSA-NY agrees, directly or through an agent, to
provide daily information with respect to any portfolio transactions of the
Fund to the Adviser. DSA-NY agrees to provide all documentation reasonably
required by the Adviser to maintain the Fund's accounting records in
accordance with the 1940 Act and the Investment Advisers Act of 1940 and
the regulations issued thereunder, and to preserve copies of all documents
and records related to asset transactions, positions and valuations related
to the Fund in the manner and for the periods prescribed by such
regulations. DSA-NY further agrees that all documents and records it
maintains relating to the Fund are the property of the Fund, and will be
surrendered to the Adviser or the Fund upon the request of either. DSA-NY
agrees to provide information and to allow inspection of such documents and
records at reasonable times by any authorized representative of the
Adviser, the Fund's Board of Directors or any committee thereof, the Fund's
independent public accountants or appropriate regulatory authorities.
DSA-NY shall provide to the Adviser a copy of its Form ADV as filed with
the SEC and as amended from time to time, and a written list of persons
DSA-NY has authorized to give written and/or oral instructions to the
Adviser and the Fund custodian.
5. Personnel Available. DSA-NY agrees to make its personnel who are engaged in
activities on behalf of the Fund available at reasonable times for
consultations with the Adviser's personnel and the Fund's Board of
Directors or any committee thereof, including attendance at their meetings,
wherever situated. In addition, personnel of DSA-NY, at the request of the
Adviser, will attend other meetings to be scheduled at mutually convenient
times and shall be reimbursed for its reasonable expenses in connection
therewith.
6. Office Facilities, Equipment and Personnel. DSA-NY agrees to provide all
office facilities, equipment and personnel for carrying out its duties
hereunder at its own expense. In addition, DSA-NY shall, if requested by
the Adviser or the Fund, employ at its own expense and subject to the prior
written approval of the Adviser which approval shall not be unreasonably
withheld (i) a public auditing firm, (ii) attorneys, and (iii) such other
professional staff as in the sole discretion of the Adviser are necessary
to assure the fulfillment of the terms and conditions of this agreement.
7. Non Exclusive Services. It is agreed that DSA-NY's services are not to be
deemed exclusive, and DSA-NY shall be free to render similar services or
other services to others provided that (i) its services hereunder are not
impaired and are not in violation of federal or state securities laws, and
(ii) that it shall not provide services to any registered investment
company other than the Fund or other investment companies managed by the
Adviser without the Adviser's prior express written permission.
8. Limitation of Liability, Expenses of Claims. In the absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of its
obligations or duties hereunder, DSA-NY, its officers, directors and
employees shall not be subject to liability for any act or omission in the
cause of, or connected with, rendering service hereunder or for any losses
that may be sustained in the purchase, holding or sale of any security. In
the event of any claim, arbitration, suit, or administrative proceedings in
which DSA-NY or the Adviser is a party and in which it is finally
determined that there is liability or wrongdoing by only one of us, the
party liable or found to be the wrongdoer shall pay for all liability and
expenses of such claim or proceeding including reasonable attorneys' fees.
If it is determined that there is liability or wrongdoing by both or
neither of us, then each shall pay their own liability and expenses. In the
event of any settlement of any such claim, arbitration, suit or proceeding
before final determination by a court or arbitrator(s), the liability and
expenses shall be assumed as agreed between the parties, but if there is no
agreement within thirty (30) days of such settlement, then the assumption
of liability and expenses shall be settled by arbitration, in accordance
with the then applicable rules of the American Arbitration Association.
Judgment upon the award rendered by the arbitrator shall be final and
binding and may be entered in any court having jurisdiction. The parties
shall pay for their own costs and expenses with respect to any such
arbitration and may be included in the arbitrator's award.
9. Compliance With Law, Code of Ethics. As investment sub-adviser, DSA-NY
understands that it will be responsible for complying with all provisions
of applicable law, including the 1940 Act, the Investment Advisers Act of
1940, and the Xxxxxxx Xxxxxxx and Securities Fraud Enforcement Act of 1988,
and all rules and regulations thereunder. DSA-NY agrees to adopt and comply
with the "Code of Ethics of and for Xxxxx Selected Advisers, L.P. and the
Companies For Which It Acts As Investment Adviser" as in effect from time
to time and to keep in effect a policy and supervisory procedures designed
to prevent xxxxxxx xxxxxxx.
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10. Payment for Services, Payment of Expenses. The parties acknowledge that
DSA-NY is controlled by or under common control with the Adviser. The
Adviser shall pay DSA-NY all reasonable direct and indirect costs
associated with the maintenance of an office and the performance of the
terms of this Agreement. The Adviser shall also reimburse expenses
expressly approved for reimbursement by the Adviser. Payment for DSA-NY's
services and reimbursement of expenses approved by the Adviser shall be
made monthly, in arrears, by the 15th day of the following month.
11. Term of Agreement, Effective Date. This Agreement shall become effective
for an initial period of not more than two years from its effective date,
and shall continue in full force and effect continuously thereafter, if its
continuance is approved at least annually as required by the 1940 Act;
provided, however, that if the continuation of this Agreement is not
approved, DSA-NY may continue to serve in the manner and to the extent
permitted by the 1940 Act and the rules and regulations thereunder.
The effective date of this Agreement shall be the date this Agreement has
been approved as required by the 1940 Act.
12. Termination of Agreement, No Assignment. This Agreement shall automatically
terminate immediately in the event of its assignment (except as otherwise
permitted by the 1940 Act or rules thereunder), or in the event of the
termination of the Investment Advisory Agreement. This Agreement may be
terminated without payment of any penalty at any time (a) upon sixty (60)
days' written notice to DSA-NY by the Adviser or upon such sixty (60) days'
written notice to DSA-NY by the Fund pursuant to action by its Board of
Directors or by the vote of a majority of the outstanding voting securities
of the Fund, or (b) upon 60 or more days' written notice by DSA-NY to the
Adviser. The terms "assignment" and "vote of a majority of the outstanding
voting securities" shall have the meaning set forth in the 1940 Act and the
rules and regulations thereunder. Termination of this Agreement shall not
affect DSA-NY's right to receive payments on any unpaid balance of the
compensation earned and reimbursable expenses incurred prior to such
termination. Upon receipt of notification of termination as provided above,
DSA-NY shall immediately cease all activities in connection with the Fund
except as otherwise directed by the Adviser.
13. Use of "Xxxxx" Name. DSA-NY agrees that it shall abide by the terms of the
agreement of the Adviser with the Fund as to the names of the Fund and the
Adviser and shall not use the name of the Adviser or the Fund without the
prior written consent of the Adviser or the Fund.
14. Independent Provisions. If any provisions of this Agreement shall be held
or made invalid by a court decision, statute or rule or otherwise, the
remainder shall not be thereby affected.
15. Applicable State Law. The Agreement shall be construed according to the
laws of the State of New Mexico. It may be executed in counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the same agreement.
If the foregoing terms and conditions are acceptable to you, please so
acknowledge in the space provided. Upon your acceptance, the retention and the
mutual obligations in respect thereto shall be effective as provided herein.
Sincerely,
Xxxxx Selected Advisers, L.P. Accepted and Approved this 1st day of January, 2001
By Xxxxx Investments, LLC Xxxxx Selected Advisers - NY, Inc.
General Partner
By:_________________________________________ By:___________________________________________
Its:________________________________________ Its:__________________________________________
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