3448871.2
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MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT ("Agreement") is made this 19th
day of October, 2006, by and between Xxxx Xxxxx Partners Variable
Portfolios II, a Massachusetts business trust (the "Trust") and
Xxxx Xxxxx Partners Fund Advisor, LLC, a Delaware limited
liability company (the "Manager").
WHEREAS, the Trust is registered as a management investment
company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Manager is engaged primarily in rendering
investment advisory, management, and administrative services and
is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended;
WHEREAS, the Trust wishes to retain the Manager to provide
investment advisory, management, and administrative services to
the Trust with respect to the series of the Trust designated in
Schedule A annexed hereto (the "Fund"); and
WHEREAS, the Manager 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. The Trust hereby appoints the Manager to act as
investment adviser and administrator of the Fund for the period
and on the terms set forth in this Agreement. The Manager accepts
such appointment and agrees to render the services herein set
forth, for the compensation herein provided.
2. The Fund shall at all times keep the Manager fully
informed with regard to the securities owned by it, its funds
available, or to become available, for investment, and generally
as to the condition of its affairs. It shall furnish the Manager
with such other documents and information with regard to its
affairs as the Manager may from time to time reasonably request.
3. (a) Subject to the supervision of the Trust's Board of
Trustees (the "Board"), the Manager shall regularly provide the
Fund with investment research, advice, management and supervision
and shall furnish a continuous investment program for the Fund's
portfolio of securities and other investments consistent with the
Fund's investment objectives, policies and restrictions, as
stated in the Fund's current Prospectus and Statement of
Additional Information. The Manager shall determine from time to
time what securities and other investments will be purchased,
retained, sold or exchanged by the Fund and what portion of the
assets of the Fund's portfolio will be held in the various
securities and other investments in which the Fund invests, and
shall implement those decisions, 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 the
Manager. The Manager is authorized as the agent of the Trust to
give instructions 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 and direction from the Board, the investment program to be
provided hereunder may entail the investment of all or
substantially all of the assets of a Fund in one or more
investment companies. The Manager 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 (the "Exchange Act")) to the
Funds and/or the other accounts over which the Manager or its
affiliates exercise investment discretion. The Manager is
authorized to pay a broker or dealer who provides such brokerage
and research services a commission for executing a portfolio
transaction for a Fund which is in excess of the amount of
commission another broker or dealer would have charged for
effecting that transaction if the Manager 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 the Manager 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 the Manager's authority regarding the
execution of the Fund's portfolio transactions provided herein.
The Manager shall also provide advice and recommendations with
respect to other aspects of the business and affairs of the Fund,
shall exercise voting rights, rights to consent to corporate
action and any other rights pertaining to a Fund's portfolio
securities 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) Subject to the supervision and direction of the Board,
the Manager will (a) assist in supervising all aspects of the
Fund's operations except those performed by other parties
pursuant to written agreements with the Fund; (b) supply the Fund
with office facilities (which may be in the Manager's own
offices), statistical and research data, data processing
services, clerical, accounting and bookkeeping services,
including but not limited to, the calculation of (i) net asset
value of shares of the Fund and (ii) service fees, internal
auditing and legal services, internal executive and
administrative services, and stationary and office supplies; and
(c) prepare reports to the shareholders of the Fund, tax returns
and reports to and filings with the SEC and state blue sky
authorities.
(c) The Fund hereby authorizes any entity or person
associated with the Manager 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, the Manager 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 the Manager or its
affiliates is participating, or arrange for purchases and sales
of securities between a Fund and another account advised by the
Manager 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 a 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 the Manager and its directors and
officers.
4. Subject to the Board's approval, the Manager or the Fund
may enter into contracts with one or more investment subadvisers
or subadministrators, including without limitation, affiliates of
the Manager, in which the Manager delegates to such investment
subadvisers or subadministrators any or all its duties specified
hereunder, on such terms as the Manager will determine to be
necessary, desirable or appropriate, provided that in each case
the Manager shall supervise the activities of each such
subadviser or subadministrator and further provided that such
contracts impose on any investment subadviser or subadministrator
bound thereby all the conditions to which the Manager is subject
hereunder and that such contracts are entered into in accordance
with and meet all applicable requirements of the 1940 Act.
5. (a) The Manager, at its expense, shall supply the Board
and officers of the Trust with all information and reports
reasonably required by them and reasonably available to the
Manager. In compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Manager 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. The Manager further agrees to arrange for the
preservation of any such records for the periods prescribed by
Rule 31a-2 under the 1940 Act. The Manager shall authorize and
permit any of its directors, officers and employees, who may be
elected as Board members or officers of the Fund, to serve in the
capacities in which they are elected.
(b) The Manager 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, the Manager 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.
6. 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
the Manager or any affiliated company of the Manager, 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 the Manager's or any
affiliated company's staff.
7. As compensation for the services performed and the
facilities furnished and expenses assumed by the Manager,
including the services of any consultants retained by the
Manager, the Fund shall pay the Manager, as promptly as possible
after the last day of each month, a fee, computed daily at an
annual rate set forth opposite the Fund's name on Schedule A
annexed hereto, provided however, that if the Fund invests all or
substantially all of its assets in another registered investment
company for which the Manager or an affiliate of the Manager
serves as investment adviser or investment manager, the annual
fee computed as set forth on such Schedule A shall be reduced by
the aggregate management fees allocated to that Fund for the
Fund's then-current fiscal year from such other registered
investment company. 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 the Manager 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 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 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.
8. The Manager 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 a Fund, provided that nothing in this Agreement
shall protect the Manager against any liability to the Fund to
which the Manager 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 8, the
term "Manager" shall include any affiliates of the Manager
performing services for the Trust or the Fund contemplated hereby
and the partners, shareholders, directors, officers and employees
of the Manager and such affiliates.
9. Nothing in this Agreement shall limit or restrict the
right of any director, officer, or employee of the Manager 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 the Manager 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 a
Fund or one or more other accounts of the Manager is considered
at or about the same time, transactions in such securities will
be allocated among the accounts in a manner deemed equitable by
the Manager. Such transactions may be combined, in accordance
with applicable laws and regulations, and consistent with the
Manager's policies and procedures as presented to the Board from
time to time.
10. 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.
11. 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 in accordance with the requirements of the 1940 Act
and, unless sooner terminated as provided herein, will continue
in effect until 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.
12. 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 the
Manager, or by the Manager upon not less than 90 days' written
notice to the Fund, and will be terminated upon the mutual
written consent of the Manager and the Trust. This Agreement
shall terminate automatically in the event of its assignment by
the Manager and shall not be assignable by the Trust without the
consent of the Manager.
13. The Manager agrees that for services rendered to the
Fund, or for any claim by it in connection with services rendered
to the Fund, 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. The undersigned officer of
the Trust has executed this Agreement not individually, but as an
officer under the Trust's Declaration of Trust and the
obligations of this Agreement are not binding upon any of the
Trustees, officers or shareholders of the Trust individually.
14. 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 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.
15. This Agreement 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.
16. 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]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers thereunto duly
authorized.
XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS II
By:
Name:
Title:
XXXX XXXXX PARTNERS FUND ADVISOR, LLC
By:
Name:
Title:
Schedule A
Xxxx Xxxxx Partners Variable Equity Index Portfolio
Date:
October 19, 2006
Fee:
The following percentage of the Fund's average daily net assets:
0.31%
