Exhibit 6(d)(30)
SUB-ADVISORY AGREEMENT
AGREEMENT made this 5th day of April, 2002, by and between DEUTSCHE
INVESTMENT MANAGEMENT AMERICAS INC., a Delaware corporation (the "Adviser") and
DREMAN VALUE MANAGEMENT, L.L.C., a Delaware limited liability company (the
"Sub-Adviser").
WHEREAS, XXXXXXX VARIABLE SERIES II, a Massachusetts business trust
(the "Fund") is a management investment company registered under the Investment
Company Act of 1940, as amended ("the Investment Company Act");
WHEREAS, the Fund has retained the Adviser to render to it investment
advisory and management services with regard to the Fund, including the series
known as the SVS Dreman Financial Services Portfolio (the "Financial Services
Series"), pursuant to an Investment Management Agreement (the "Management
Agreement"); and
WHEREAS, the Adviser desires at this time to retain the Sub-Adviser to
render investment advisory and management services for the Financial Services
Series and the Sub-Adviser is willing to render such services;
NOW THEREFORE, in consideration of the mutual covenants hereinafter
contained, it is hereby agreed by and between the parties hereto as follows:
1. Appointment of Sub-Adviser.
(a) The Adviser hereby employs the Sub-Adviser to manage the investment
and reinvestment of the assets of the Financial Services Series in accordance
with the applicable investment objectives, policies and limitations and subject
to the supervision of the Adviser and the Board of Trustees of the Fund for the
period and upon the terms herein set forth, and to place orders for the purchase
or sale of portfolio securities for the Financial Services Series account with
brokers or dealers selected by the Sub-Adviser; and, in connection therewith,
the Sub-Adviser is authorized as the agent of the Financial Services Series to
give instructions to the Custodian and Accounting Agent of the Fund as to the
deliveries of securities and payments of cash for the account of the Financial
Services Series. In connection with the selection of such brokers or dealers and
the placing of such orders, the Sub-Adviser is directed to seek for the
Financial Services Series best execution of orders. Subject to such policies as
the Board of Trustees of the Fund determines and subject to satisfying the
requirements of Section 28(e) of the Securities Exchange Act of 1934, the
Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any
duty, created by this Agreement or otherwise, solely by reason of its having
caused the Financial Services Series to pay a broker or dealer an amount of
commission for effecting a securities transaction in excess of the amount of
commission another broker or dealer would have charged for effecting that
transaction, if the Sub-Adviser determined in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer viewed in terms of either that
particular transaction or the Sub-Adviser's overall responsibilities with
respect to the clients of the Sub-Adviser as to which the Sub-Adviser exercises
investment discretion. The Adviser recognizes that all research services and
research that the Sub-Adviser receives are available for all clients of the
Sub-Adviser, and that the Financial Services Series and other clients of the
Sub-Adviser may benefit thereby. The investment of funds shall be subject to all
applicable restrictions of the Agreement and Declaration of Trust of the Fund as
may from time to time be in force to the extent the same are provided to the
Sub-Adviser.
(b) The Sub-Adviser accepts such employment and agrees during the
period of this Agreement to render such investment management services in
accordance with the applicable investment objectives, policies and limitations
set out in the Fund's prospectus and Statement of Additional Information, as
amended from time to time, to the extent the same are provided the Sub-Adviser,
to furnish related office facilities and equipment and clerical, bookkeeping and
administrative services for the Financial Services Series, and to assume the
other obligations herein set forth for the compensation herein provided. The
Sub-Adviser shall assume and pay all of the costs and expenses of performing its
obligations under this Agreement. The Sub-Adviser shall for all purposes herein
provided be deemed to be an independent
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contractor and, unless otherwise expressly provided or authorized, shall have no
authority to act for or represent the Fund, the Financial Services Series or the
Adviser in any way or otherwise be deemed an agent of the Fund, the Financial
Services Series or the Adviser.
(c) The Sub-Adviser will keep the Adviser, for itself and on behalf of
the Fund, informed of developments materially affecting the Fund or the
Financial Services Series and shall, on the Sub-Adviser's own initiative and as
reasonably requested by the Adviser, for itself and on behalf of the Fund,
furnish to the Adviser from time to time whatever information the Adviser
reasonably believes appropriate for this purpose.
(d) The Sub-Adviser shall provide the Adviser with such investment
portfolio accounting and shall maintain and provide such detailed records and
reports as the Adviser may from time to time reasonably request, including
without limitation, daily processing of investment transactions and periodic
valuations of investment portfolio positions as required by the Adviser, monthly
reports of the investment portfolio and all investment transactions and the
preparation of such reports and compilation of such data as may be required by
the Adviser to comply with the obligations imposed upon it under the Management
Agreement. The Sub-Adviser agrees to install in its offices computer equipment
or software, as provided by the Adviser at its expense, for use by the
Sub-Adviser in performing its duties under this Sub-Advisory Agreement,
including inputting on a daily basis that day's portfolio transactions in the
Financial Services Series.
(e) The Sub-Adviser shall maintain and enforce adequate security
procedures with respect to all materials, records, documents and data relating
to any of its responsibilities pursuant to this Agreement including all means
for the effecting of securities transactions.
(f) The Sub-Adviser agrees that it will provide to the Adviser or the
Fund promptly upon request reports and copies of such of its investment records
and ledgers with respect to the Financial Services Series as appropriate to
assist the Adviser and the Fund in monitoring compliance with the Investment
Company Act and the Investment Advisers Act of 1940 (the "Advisers Act"), as
well as other applicable laws. The Sub-Adviser will furnish the Fund's Board of
Trustees such periodic and special reports with respect to the Financial
Services Series as the Adviser the Board of Trustees may reasonably request,
including statistical information with respect to the Financial Services Series'
securities.
(g) In compliance with the requirements of Rule 31a-3 under the
Investment Company Act, the Sub-Adviser hereby agrees that any records that it
maintains for the Fund are the property of the Fund and further agrees to
surrender promptly any such records upon the Fund's or the Adviser's request,
although the Sub-Adviser may, at the Sub-Adviser's own expense, make and retain
copies of such records. The Sub-Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 under the Investment Company Act any records
with respect to the Sub-Adviser's duties hereunder required to be maintained by
Rule 31a-1 under the Investment Company Act to the extent that the Sub-Adviser
prepares and maintains such records pursuant to this Agreement and to preserve
the records required by Rule 204-2 under the Advisers Act for the period
specified in that Rule.
(h) The Sub-Adviser agrees that it will immediately notify the Adviser
and the Fund in the event that the Sub-Adviser: (i) becomes subject to a
statutory disqualification that prevents the Sub-Adviser from serving as an
investment adviser pursuant to this Agreement; or (ii) is or expects to become
the subject of an administrative proceeding or enforcement action by the United
States Securities and Exchange Commission ("SEC") or other regulatory authority.
(i) The Sub-Adviser agrees that it will immediately forward, upon
receipt, to the Adviser, for itself and as agent for the Fund, any
correspondence from the SEC or other regulatory authority that relates to the
Financial Services Series.
(j) The Sub-Adviser acknowledges that it is an "investment adviser" to
the Fund within the meaning of the Investment Company Act and the Advisers Act.
(k) The Sub-Adviser shall be responsible for maintaining an appropriate
compliance program to
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ensure that the services provided by it under this Agreement are performed in a
manner consistent with applicable laws and the terms of this Agreement. The
Sub-Adviser agrees to provide such reports and certifications regarding its
compliance program as the Adviser or the Fund shall reasonably request from time
to time.
(l) The Sub-Adviser maintains a written Code of Ethics that complies
with the requirements of Rule 17j-1 under the Investment Company Act. The
Sub-Adviser certifies that it has adopted procedures reasonably necessary to
prevent its "access persons," as such term is defined in Rule 17j-1, from
violating the Code of Ethics. The Sub-Adviser shall notify the Board upon the
adoption of any material change to its Code of Ethics so that the Board,
including a majority of the Trustees who are not interested persons of the Fund,
may approve such change not later than six months after its adoption by the
Sub-Adviser, as required by Rule 17j-1. The Sub-Adviser also shall provide the
Fund with a copy of any amendments to its Code of Ethics that do not represent a
material change to such Code. Within 45 days of the end of each calendar year
while this Agreement is in effect (or more frequently if required by Rule 17j-1
or as the Fund may reasonably request), the Sub-Adviser shall provide the Board
with a written report that, as required by Rule 17j-1: (i) describes any issue
arising under the Sub-Adviser's Code of Ethics or procedures since the last
report to the Board, including, but not limited to, information about material
violations of the Code or procedures and sanctions imposed in response to the
material violations, and (ii) certifies that the Sub-Adviser has adopted
procedures reasonably necessary to prevent its access persons from violating its
Code of Ethics. Upon the written request of the Fund, the Sub-Adviser shall
permit the Fund to examine the reports to be made by the Sub-Adviser under Rule
17j-1(d) and the records the Sub-Adviser maintains pursuant to Rule 17j-1(f).
2. Compensation.
For the services and facilities described herein, the Adviser will pay
to the Sub-Adviser, 15 days after the end of each calendar month, a sub-advisory
fee of 1/12 of an annualized rate of 0.3375 of 1% of the average daily net
assets as defined below of the Financial Services Series for such month.
For the month and year in which this Agreement becomes effective or
terminates, there shall be an appropriate proration on the basis of the number
of days that the Agreement is in effect during the month and year, respectively.
3. Net Asset Value. The net asset value for the Financial Services
Series shall be calculated as the Board of Trustees of the Fund may determine
from time to time in accordance with the provisions of the Investment Company
Act. On each day when net asset value is not calculated, the net asset value of
the Financial Services Series shall be deemed to be the net asset value as of
the close of business on the last day on which such calculation was made for the
purpose of the foregoing computations.
4. Duration and Termination.
(a) This Agreement shall become effective with respect to the Financial
Services Series on the first business day following the date it is approved in
the manner required by the Investment Company Act and the rules and regulations
thereunder and shall remain in full force until May 1, 2003, unless sooner
terminated or not annually approved as hereinafter provided. Notwithstanding the
foregoing, this Agreement shall continue in force through May 1, 2003, and from
year to year thereafter, only as long as such continuance is specifically
approved at least annually and in the manner required by the Investment Company
Act and the rules and regulations thereunder, with the first annual renewal to
be coincident with the next renewal of the Management Agreement.
(b) This Agreement shall automatically terminate in the event of its
assignment or in the event of the termination of the Management Agreement. In
addition, the Adviser has the right to terminate this Agreement upon immediate
notice if the Sub-Adviser becomes statutorily disqualified from performing its
duties under this Agreement or otherwise is legally prohibited from operating as
an investment adviser.
(c) If a party breaches this Agreement in any material respect which is
not cured within sixty (60) days
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of the other party giving it written notice of such breach, the other party may
effect termination of this Agreement on written notice to the defaulting party.
(d) This Agreement may be terminated at any time, without the payment
by the Fund of any penalty, by the Board of Trustees of the Fund, or by vote of
a majority of the outstanding voting securities of the Financial Services
Series, or by the Adviser. The Fund may effect termination of this Agreement by
action of the Board of Trustees of the Fund or by vote of a majority of the
outstanding voting securities of the Financial Services Series on sixty (60)
days written notice to the Adviser and the Sub-Adviser. The Adviser may effect
termination of this Agreement on sixty (60) days written notice to the
Sub-Adviser.
(e) The Sub-Adviser may terminate this Agreement upon ninety (90) days
written notice to the Adviser.
(f) The terms "assignment" and "vote of a majority of the outstanding
voting securities" shall have the meanings set forth in the Investment Company
Act and the rules and regulations thereunder.
(g) Termination of this Agreement shall not affect the right of the
Sub-Adviser to receive payments on any unpaid balance of the compensation
described in Section 2 earned prior to such termination.
(h) The provisions of Section 9 shall survive the termination of this
Agreement.
5. Representations and Warranties. The Sub-Adviser hereby represents
and warrants as follows:
(a) The Sub-Adviser is registered with the SEC as an investment adviser
under the Advisers Act, and such registration is current, complete and in full
compliance with all material applicable provisions of the Advisers Act and the
rules and regulations thereunder;
(b) The Sub-Adviser has all requisite authority to enter into, execute,
deliver and perform the Sub-Adviser's obligations under this Agreement;
(c) The Sub-Adviser's performance of its obligations under this
Agreement does not conflict with any law, regulation or order to which the
Sub-Adviser is subject; and
(d) The Sub-Adviser has reviewed the portion of (i) the registration
statement filed with the SEC, as amended from time to time for the Fund
("Registration Statement"), and (ii) the Fund's prospectus and supplements
thereto, in each case in the form received from the Adviser with respect to the
disclosure about the Sub-Adviser and the Financial Services Series of which the
Sub-Adviser has knowledge (the "Sub-Adviser and Financial Services Information")
and except as advised in writing to the Adviser such Registration Statement,
prospectus and any supplement contain, as of its date, no untrue statement of
any material fact of which the Sub-Adviser has knowledge and do not omit any
statement of a material fact of which the Sub-Adviser has knowledge which was
required to be stated therein or necessary to make the statements contained
therein not misleading.
6. Covenants. The Sub-Adviser hereby covenants and agrees that, so long
as this Agreement shall remain in effect:
(a) The Sub-Adviser shall maintain the Sub-Adviser's registration as an
investment adviser under the Advisers Act, and such registration shall at all
times remain current, complete and in full compliance with all material
applicable provisions of the Advisers Act and the rules and regulations
thereunder;
(b) The Sub-Adviser's performance of its obligations under this
Agreement shall not conflict with any law, regulation or order to which the
Sub-Adviser is then subject;
(c) The Sub-Adviser shall at all times comply in all material respects
with the Advisers Act and the Investment Company Act, and all rules and
regulations thereunder, and all other applicable laws and regulations, and the
Registration Statement, prospectus and any supplement and with any applicable
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procedures adopted by the Fund's Board of Trustees, provided that such
procedures are substantially similar to those applicable to similar
funds for which the Board of Trustees of the Fund is responsible and
that such procedures are identified in writing to the Sub-Adviser;
(d) The Sub-Adviser shall promptly notify the Adviser and the
Fund upon the occurrence of any event that might disqualify or prevent
the Sub-Adviser from performing its duties under this Agreement. The
Sub-Adviser further agrees to notify the Adviser of any changes that
would cause the Registration Statement or prospectus for the Fund to
contain any untrue statement of a material fact or to omit to state a
material fact which is required to be stated therein or is necessary to
make the statements contained therein not misleading, in each case
relating to Sub-Adviser and Financial Services Information; and
(e) For the entire time this Agreement is in effect and for a
period of two years thereafter, the Sub-Adviser shall maintain a claims
made bond issued by a reputable fidelity insurance company against
larceny and embezzlement, covering each officer and employee of the
Sub-Adviser, at a minimum level of $3 million which provides coverage
for acts or alleged acts which occurred during the period of this
Agreement.
7. Use of Names.
(a) The Sub-Adviser acknowledges and agrees that the names
Xxxxxxx Variable Series II and, Xxxxxxx (whether used by themselves or
in combination with other words), and abbreviations or logos associated
with those names, are the valuable property of the Adviser and its
affiliates; that the Fund, the Adviser and their affiliates have the
right to use such names, abbreviations and logos; and that the
Sub-Adviser shall use the names Xxxxxxx Variable Series II and,
Xxxxxxx, and associated abbreviations and logos, only in connection
with the Sub-Adviser's performance of its duties hereunder. Further, in
any communication with the public and in any marketing communications
of any sort, the Sub-Adviser agrees to obtain prior written approval
from the Adviser before using or referring to Xxxxxxx Variable Series
II, Xxxxxxx or Xxxxxxx Variable Series II Dreman Financial Services
Portfolio or any abbreviations or logos associated with those names;
provided that nothing herein shall be deemed to prohibit the
Sub-Adviser from referring to the performance of the Financial Services
Series in the Sub-Adviser's marketing material as long as such
marketing material does not constitute "sales literature" or
"advertising" for the Financial Services Series, as those terms are
used in the rules, regulations and guidelines of the SEC and the
National Association of Securities Dealers, Inc.
(b) The Adviser acknowledges that "Dreman" is distinctive in
connection with investment advisory and related services provided by
the Sub-Adviser, the "Dreman" name is a property right of the
Sub-Adviser, and the "Dreman" name as used in the name of the Financial
Services Series is understood to be used by the Fund upon the
conditions hereinafter set forth; provided that the Fund may use such
name only so long as the Sub-Adviser shall be retained as the
investment sub-adviser of the Financial Services Series pursuant to the
terms of this Agreement.
(c) The Adviser acknowledges that the Fund and its agents may
use the "Dreman" name in the name of the Financial Services Series for
the period set forth herein in a manner not inconsistent with the
interests of the Sub-Adviser and that the rights of the Fund and its
agents in the "Dreman" name are limited to their use as a component of
the Financial Services Series name and in connection with accurately
describing the activities of the Financial Services Series, including
use with marketing and other promotional and informational material
relating to the Financial Services Series. In the event that the
Sub-Adviser shall cease to be the investment sub-adviser of the
Financial Services Series, then the Fund at its own or the Adviser's
expense, upon the Sub-Adviser's written request: (i) shall cease to use
the Sub-Adviser's name as part of the name of the Financial Services
Series or for any other commercial purpose (other than referring to the
Financial Services Series' former name in the Fund's Registration
Statement, proxy materials and other Fund documents to the extent
required by law, referring to the Fund's performance record for the
period for which the Sub-Adviser subadvised the Adviser in respect of
the Fund and, for a reasonable period, using the name in informing
others of the name change); and (ii) shall use its best efforts to
cause the Fund's officers and trustees to take any and all actions
which may be necessary or desirable to effect the foregoing and to
reconvey to the Sub-Adviser all rights which the Fund may have to such
name. The
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Adviser agrees to take any and all reasonable actions as may be necessary or
desirable to effect the foregoing and the Sub-Adviser agrees to allow the Fund
and its agents a reasonable time to effectuate the foregoing.
(d) The Sub-Adviser hereby agrees and consents to the use of the
Sub-Adviser's name upon the foregoing terms and conditions.
8. Standard of Care. Except as may otherwise be required by law, and
except as may be set forth in paragraph 9, the Sub-Adviser shall not be liable
for any error of judgment or of law or for any loss suffered by the Fund, the
Financial Services Series or the Adviser in connection with the matters to which
this Agreement relates, except loss resulting from willful misfeasance, bad
faith or gross negligence on the part of the Sub-Adviser in the performance of
its obligations and duties or by reason of its reckless disregard of its
obligations and duties under this Agreement.
9. Indemnifications.
(a) The Sub-Adviser agrees to indemnify and hold harmless the Adviser
and the Fund against any losses, expenses, claims, damages or liabilities (or
actions or proceedings in respect thereof), to which the Adviser or the Fund may
become subject arising out of or based on the breach by the Sub-Adviser of any
provisions of this Agreement or any wrongful action by the Sub-Adviser;
provided, however, that the Sub-Adviser shall not be liable under this paragraph
in respect of any loss, expense, claim, damage or liability to the extent that a
court having jurisdiction shall have determined by a final judgment, or
independent counsel agreed upon by the Sub-Adviser and the Adviser or the Fund,
as the case may be, shall have concluded in a written opinion, that such loss,
expense, claim, damage or liability resulted primarily from the Adviser's or the
Fund's willful misfeasance, bad faith or gross negligence or by reason of the
reckless disregard by the Adviser or the Fund of its duties. The foregoing
indemnification shall be in addition to any rights that the Adviser or the Fund
may have at common law or otherwise. The Sub-Adviser's agreements in this
paragraph shall, upon the same terms and conditions, extend to and inure to the
benefit of each person who may be deemed to control the Adviser or the Fund, be
controlled by the Adviser or the Fund, or be under common control with the
Adviser or the Fund and their affiliates, trustees, officers, employees and
agents. The Sub-Adviser's agreement in this paragraph shall also extend to any
of the Fund's, Financial Services Series', and Adviser's successors or the
successors of the aforementioned affiliates, trustees, officers, employees or
agents.
(b) The Adviser agrees to indemnify and hold harmless the Sub-Adviser
against any losses, expenses, claims, damages or liabilities (or actions or
proceedings in respect thereof), to which the Sub-Adviser may become subject
arising out of or based on the breach by the Adviser of any provisions of this
Agreement or the Management Agreement, or any wrongful action by the Adviser or
its affiliates in the distribution of the Fund's shares, or any wrongful action
by the Fund other than wrongful action that was caused by the breach by the
Sub-Adviser of the provisions of this Agreement; provided, however, that the
Adviser shall not be liable under this paragraph in respect of any loss,
expense, claim, damage or liability to the extent that a court having
jurisdiction shall have determined by a final judgment, or independent counsel
agreed upon by the Adviser and the Sub-Adviser shall have concluded in a written
opinion, that such loss, expense, claim, damage or liability resulted primarily
from the Sub-Adviser's willful misfeasance, bad faith or gross negligence or by
reason of the reckless disregard by the Sub-Adviser of its duties. The foregoing
indemnification shall be in addition to any rights that the Sub-Adviser may have
at common law or otherwise. The Adviser's agreements in this paragraph shall,
upon the same terms and conditions, extend to and inure to the benefit of each
person who may be deemed to control the Sub-Adviser, be controlled by the
Sub-Adviser or be under common control with the Sub-Adviser and to each of the
Sub-Adviser's and each such person's respective affiliates, directors, officers,
employees and agents. The Adviser's agreements in this paragraph shall also
extend to any of the Sub-Adviser's successors or the successors of the
aforementioned affiliates, directors, officers, employees or agents.
(c) Promptly after receipt by a party indemnified under paragraph 9(a)
or 9(b) above of notice of the commencement of any action, proceeding, or
investigation for which indemnification will be sought, such indemnified party
shall promptly notify the indemnifying party in writing; but the omission so to
notify the
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indemnifying party shall not relieve it from any liability which it may
otherwise have to any indemnified party unless such omission results in actual
material prejudice to the indemnifying party. In case any action or proceeding
shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, individually or jointly with any other
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of any action or
proceeding, the indemnifying party shall not be liable to the indemnified party
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. If the indemnifying party does not elect to assume the defense of
any action or proceeding, the indemnifying party on a monthly basis shall
reimburse the indemnified party for the reasonable legal fees and other costs of
defense thereof. Regardless of whether or not the indemnifying party shall have
assumed the defense of any action or proceeding, the indemnified party shall not
settle or compromise the action or proceeding without the prior written consent
of the indemnifying party, which shall not be unreasonably withheld.
10. Survival. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder shall not
be thereby affected.
11. Notices. Any notice under this Agreement shall be in writing,
addressed and delivered or mailed, postage prepaid, to the other party at such
address as such other party may designate for the receipt of such notice.
12. Governing Law. This Agreement shall be construed in accordance with
applicable federal law and the laws of the State of New York without giving
effect to the rules of conflict of laws in the State of New York to the extent
those rules would require or permit the application of another jurisdiction's
laws.
13. Miscellaneous.
(a) 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.
(b) Terms not defined herein shall have the meaning set forth in the
Fund's prospectus.
(c) 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.
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IN WITNESS WHEREOF, the Adviser and the Sub-Adviser have caused this
Agreement to be executed as of the day and year first above written.
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Title: Managing Director
--------------------------
DREMAN VALUE MANAGEMENT, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Chairman
--------------------------
FOR THE PURPOSE OF ACCEPTING ITS
OBLIGATIONS UNDER SECTION 7
HEREIN ONLY
XXXXXXX VARIABLE SERIES II
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------
Title: Vice President
-------------------------
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