Exhibit (d)38
SUB-INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made as of the 1st day of August, 1999 by and among Xxxx Xxxxxxx
Variable Series Trust I, a Massachusetts business trust (the "Series"), Xxxxxx
Xxxxxxx Xxxx Xxxxxx Investment Management Inc., a Delaware corporation ("Xxxxxx
Xxxxxxx"), and Xxxx Xxxxxxx Mutual Life Insurance Company, a Massachusetts
corporation ("JHMLICO").
WHEREAS, the Series is organized and is engaged in business as an open-end
management investment company and is so registered under the Investment Company
Act of 1940 (the "1940 Act"); and
WHEREAS, JHMLICO and Xxxxxx Xxxxxxx are each engaged in the business of
rendering investment advice under the Investment Advisers Act of 1940; and
WHEREAS, the Series is authorized to issue shares of capital stock in
separate classes with each such class representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Series offers shares in several classes, one of which is
designated as the Emerging Markets Equity Portfolio (together with all other
classes established by the Series, collectively referred to as the
"Portfolios"), each of which pursues its investment objectives through separate
investment policies; and
WHEREAS, the Series has retained JHMLICO to render investment management
services to the Series pursuant to an Investment Management Agreement dated as
of April 14, 1998 (the "Investment Management Agreement"), pursuant to which it
may contract with Xxxxxx Xxxxxxx as a sub-manager as provided for herein;
NOW, THEREFORE, WITNESSETH: That it is hereby agreed between the parties
hereto as follows:
1. APPOINTMENT OF SUB-MANAGER
(a) Subject Portfolio. Xxxxxx Xxxxxxx is hereby appointed and Xxxxxx
Xxxxxxx hereby accepts the appointment to act as investment adviser and manager
to the Emerging Markets Equity Portfolio (the "Subject Portfolio") for the
period and on the terms herein set forth, for the compensation herein provided.
(b) Additional Subject Portfolios. In the event that the Series and
JHMLICO desire to retain Xxxxxx Xxxxxxx to render investment advisory services
hereunder for any other
Portfolio, they shall so notify Xxxxxx Xxxxxxx in writing. If it is willing to
render such services, Xxxxxx Xxxxxxx shall notify the Series in writing,
whereupon such Portfolio shall become a Subject Portfolio hereunder.
(c) Incumbency Certificates. Xxxxxx Xxxxxxx shall furnish to JHMLICO,
immediately upon execution of this Agreement, a certificate of a senior officer
of Xxxxxx Xxxxxxx setting forth (by name and title, and including specimen
signatures) those officers of Xxxxxx Xxxxxxx who are authorized to make
investment decisions for the Subject Portfolio pursuant to the provisions of
this Agreement. Xxxxxx Xxxxxxx shall promptly provide supplemental certificates
in connection with each additional Subject Portfolio (if any) and further
supplemental certificates, as needed, to reflect all changes with respect to
such authorized officers for any Subject Portfolio. On behalf of the Series,
JHMLICO shall instruct the custodian for the Subject Portfolio to accept
instructions with respect to the Subject Portfolio from the officers of Xxxxxx
Xxxxxxx so named.
(d) Independent Contractor. Xxxxxx Xxxxxxx shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or be deemed an agent of
the Series.
(e) Xxxxxx Xxxxxxx'x Representations. Xxxxxx Xxxxxxx represents, warrants
and agrees (i) that it is registered as an investment adviser under the
Investment Advisers Act of 1940, and that it will remain so registered and will
comply with the requirements of said Act, and the rules and regulations
thereunder, at all times while this Agreement remains in effect, (ii) that it
will promptly notify JHMLICO if the foregoing representation and agreement shall
cease to be true (in any material respect) at any time during the term of this
Agreement, (iii) that it will promptly notify JHMLICO of any material change in
the senior management or ownership of Xxxxxx Xxxxxxx, or of any change in the
identity of the senior personnel who manage the Subject Portfolio, (iv) that it
has adopted a code of ethics complying with the requirements of Rule 17j-1 of
the Securities and Exchange Commission (the "SEC") under the 1940 Act and has
provided true and complete copies of such code to the Series and to JHMLICO, and
has adopted procedures designed to prevent violations of such code, and (v) that
it has furnished the Series and JHMLICO each with a copy of Xxxxxx Xxxxxxx'x
Form ADV, as most recently filed with the SEC, and will promptly furnish updated
copies at least annually.
2. PROVISION OF INVESTMENT MANAGEMENT SERVICES.
Xxxxxx Xxxxxxx will provide for the Subject Portfolio a continuing and
suitable investment program consistent with the investment policies, objectives
and restrictions of said Portfolio, as established by the Series and JHMLICO.
From time to time, JHMLICO or the Series may provide Xxxxxx Xxxxxxx with
additional or amended investment policies, guidelines and restrictions. Xxxxxx
Xxxxxxx, as sub-manager, will manage the investment and reinvestment of the
assets in the Subject Portfolio, and perform the functions set forth below,
subject to the overall supervision, direction, control and review of JHMLICO and
the Board of Trustees of the Series, consistent with the applicable
investment policies, guidelines and restrictions, the provisions of the Series'
Declaration of Trust, Bylaws, prospectus, statement of additional information
(each as in effect from time to time), the 1940 Act and all other applicable
laws and regulations (including any applicable investment restrictions imposed
by state insurance laws and regulations or any directions or instructions
delivered to Xxxxxx Xxxxxxx in writing by JHMLICO or the Series from time to
time). By its signature below, Xxxxxx Xxxxxxx acknowledges receipt of a copy of
the Series' Declaration of Trust, Bylaws, prospectus, and statement of
additional information, each as in effect on the date of this Agreement.
Xxxxxx Xxxxxxx will, at its own expense:
(a) advise the Series in connection with investment policy decisions to be
made by its Board of Trustees or any committee thereof regarding the Subject
Portfolio and, upon request, furnish the Series with research, economic and
statistical data in connection with said Portfolio's investments and investment
policies;
(b) submit such reports and information as JHMLICO or the Series' Board of
Trustees may reasonably request, to assist the custodian in its determination of
the market value of securities held in the Subject Portfolio;
(c) place orders for purchases and sales of portfolio investments for the
Subject Portfolio;
(d) give instructions to the Subject Portfolio's custodian concerning the
delivery of securities and transfer of cash for the Subject Portfolio;
(e) maintain and preserve the records relating to its activities hereunder
required by the 1940 Act to be maintained and preserved by the Series, to the
extent not maintained by the custodian, transfer agent or JHMLICO;
(f) at the close of business each day, provide JHMLICO and the custodian
with copies of trade tickets, and a daily summary sufficient to verify trade
data received by the custodian from third parties for each transaction effected
for the Subject Portfolio;
(g) as soon as practicable following the end of each calendar month,
provide JHMLICO with written statements showing all transactions effected for
the Subject Portfolio during the month, a summary listing all investments held
in such Portfolio as of the last day of the month, and such other information as
JHMLICO may reasonably request in connection with the accounting services that
JHMLICO provides for the Subject Portfolio; and
(h) absent specific instructions to the contrary provided to it by JHMLICO
and subject to its receipt of all necessary voting materials, vote all proxies
with respect to investments of the Subject Portfolio in accordance with Xxxxxx
Xxxxxxx'x proxy voting policy as most recently provided to JHMLICO.
On its own initiative, Xxxxxx Xxxxxxx will apprise JHMLICO and the Series
of important political and economic developments materially affecting the
marketplace or the Subject Portfolio, and will furnish JHMLICO and the Series'
Board of Trustees from time to time such information as is appropriate for this
purpose. Xxxxxx Xxxxxxx will also make its personnel available in Boston or
other reasonable locations as often as annually to discuss the Subject Portfolio
and Xxxxxx Xxxxxxx'x management thereof, to educate JHMLICO sales personnel with
respect thereto, and for such other purposes as the Series or JHMLICO may
reasonably request.
The Series and JHMLICO will provide timely information to Xxxxxx Xxxxxxx
regarding such matters as purchases and redemptions of shares in the Subject
Portfolio and the cash requirements of, and cash available for investment in,
the Portfolio. JHMLICO will timely provide Xxxxxx Xxxxxxx with copies of monthly
accounting statements for the Subject Portfolio, and such other information
(including, without limitation, reports concerning the classification of
Portfolio securities for purposes of Subchapter M of the Internal Revenue Code
and Treasury Regulations Section 1.817) as may be reasonably necessary or
appropriate in order for Xxxxxx Xxxxxxx to perform its responsibilities
hereunder.
Xxxxxx Xxxxxxx may perform its services through its affiliates, employees,
officers or agents, and neither JHMLICO nor the Series shall be entitled to the
advice, recommendation or judgment of any specific person; provided, however,
that the persons identified in the prospectus relating to the Subject Portfolio
shall perform the portfolio management dutuies described therein until Xxxxxx
Xxxxxxx notifies JHMLICO or and the Series that one or more other affiliates,
employees, officers or agents identified in such notice shall assume such duties
as of a specific date.
3. ALLOCATION OF EXPENSES.
Each party to this Agreement shall bear the costs and expenses of
performing its obligations hereunder. In this regard, the Series specifically
agrees to assume the expense of:
(a) brokerage commissions for transactions in the portfolio investments of
the Series and similar fees and charges for the acquisition, disposition,
lending or borrowing of such portfolio investments;
(b) custodian fees and expenses;
(c) all taxes, including issuance and transfer taxes, and reserves for
taxes payable by the Series to federal, state or other governmental agencies;
(d) interest payable on the Series' borrowings; and
(e) obtaining licenses and/or other forms of authorization to invest in
various countries.
Nothing in this Agreement shall alter the allocation of expenses and costs
agreed upon between the Series and JHMLICO in the Investment Management
Agreement or any other agreement to which they are parties.
4. SUB-ADVISORY FEES.
For all of the services rendered with respect to the Subject Portfolio as
herein provided, JHMLICO shall pay to Xxxxxx Xxxxxxx a fee (for the payment of
which the Series shall have no obligation or liability), based on the Current
Net Assets of the Subject Portfolio, as set forth in Schedule I attached hereto
and made a part hereof. Such fee shall be accrued daily and payable monthly, as
soon as practicable after the last day of each calendar month. In the case of
termination of this Agreement with respect to the Subject Portfolio during any
calendar month, the fee with respect to such Portfolio accrued to but excluding
the date of termination shall be paid promptly following such termination. For
purposes of computing the amount of advisory fee accrued for any day, "Current
Net Assets" shall mean the Subject Portfolio's net assets as of the most recent
preceding day for which the Subject Portfolio's net assets were computed.
5. PORTFOLIO TRANSACTIONS.
In connection with the investment and reinvestment of the assets of the
Subject Portfolio, Xxxxxx Xxxxxxx is authorized to select the brokers or dealers
that will execute purchase and sale transactions for the Portfolio and to use
its best efforts to obtain the best available price and most favorable execution
with respect to all such purchases and sales of portfolio securities for said
Portfolio. Such brokers or dealers may be affiliates of Xxxxxx Xxxxxxx, provided
such transactions comply with Rule 17e-1 under the 1940 Act and the procedures
approved by the Series' Board of Trustees. Xxxxxx Xxxxxxx shall maintain records
adequate to demonstrate compliance with this requirement. Subject to this
primary requirement, and maintaining as its first consideration the benefits to
the Subject Portfolio and its shareholders, Xxxxxx Xxxxxxx shall have the right
subject to the control of the Board of Trustees, and to the extent authorized by
the Securities Exchange Act of 1934, to follow a policy of selecting brokers who
furnish brokerage and research services to the Subject Portfolio or to Xxxxxx
Xxxxxxx, and who charge a higher commission rate to the Subject Portfolio than
may result when allocating brokerage solely on the basis of seeking the most
favorable price and execution. Xxxxxx Xxxxxxx shall determine in good faith that
such higher cost was reasonable in relation to the value of the brokerage and
research services provided.
Xxxxxx Xxxxxxx will not retain, but shall pay over or credit to the
Subject Portfolio, any tender offer solicitation fees or similar payments
received on account of the tender of investments of the Subject Portfolio. The
foregoing sentence, however, shall not prevent affiliates of Xxxxxx Xxxxxxx from
receiving fees or payments in connection with transactions in which such
affiliates have been retained to act as financial adviser, dealer, manager or
other capacity.
6. OWNERSHIP OF INFORMATION, RECORDS, AND CONFIDENTIALITY.
The Series shall own and control all records maintained hereunder by
Xxxxxx Xxxxxxx on the Series' behalf and, in the event of termination of this
Agreement with respect to any Portfolio for any reason, all records relating to
that Portfolio shall be promptly returned to the Series, free from any claim or
retention of rights by Xxxxxx Xxxxxxx, provided that (subject to the last
paragraph of this Section 6) Xxxxxx Xxxxxxx may retain copies of such records.
Xxxxxx Xxxxxxx also agrees, upon request of the Series, promptly to surrender
such books and records or, at its expense, copies thereof, to the Series or make
such books and records available for audit or inspection, during normal business
hours, by representatives of regulatory authorities or other persons reasonably
designated by the Series. Xxxxxx Xxxxxxx further agrees to maintain, prepare and
preserve such books and records in accordance with the 1940 Act and rules
thereunder, including but not limited to Rules 31a-1 and 31a-2, and to supply
all information requested by any insurance regulatory authorities to determine
whether all insurance laws and regulations are being complied with. Xxxxxx
Xxxxxxx shall supply the Board of Trustees and officers of the Series and
JHMLICO with all statistical information regarding investments which is
reasonably required by them and reasonably available to Xxxxxx Xxxxxxx.
Xxxxxx Xxxxxxx shall not disclose or use any records or information
obtained pursuant hereto in any manner whatsoever except as expressly authorized
herein, and will keep confidential any information obtained pursuant hereto, and
disclose such information only if the Series has authorized such disclosure, or
if such disclosure is expressly required by applicable federal or state
regulatory authorities.
7. LIABILITY; STANDARD OF CARE.
No provision of this Agreement shall be deemed to protect Xxxxxx Xxxxxxx
or JHMLICO against any liability to the Series or its shareholders to which it
might otherwise be subject by reason of any willful misfeasance, bad faith or
negligence in the performance of its duties or the reckless disregard of its
obligations and duties under this Agreement or the Investment Management
Agreement. Nor shall any provision hereof be deemed to protect any trustee or
officer of the Series against any such liability to which he might otherwise be
subject by reason of any willful misfeasance, bad faith or negligence in the
performance his duties or the reckless disregard of his obligations and duties.
Adviser shall employ only qualified personnel to manage the Subject Portfolio;
shall comply with all applicable laws and regulations in the discharge of its
duties under this Agreement; shall (as provided in Section 2 above) comply with
the investment policies, guidelines and restrictions of the Subject Portfolio
and with the provisions of the Series' Declaration of Trust, Bylaws, prospectus
and statement of additional information; shall manage the Subject Portfolio
(subject to the receipt of, and based upon the information contained in,
periodic reports from JHMLICO or the custodian concerning the classification of
Portfolio securities for such purposes) as a regulated investment
company in accordance with subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code"), and Treasury Regulations Section 1.817-5(b); shall act at
all times in the best interests of the Series; and shall discharge its duties
with the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity and familiar with
such matters would use in the conduct of a similar enterprise. However, Xxxxxx
Xxxxxxx shall not be obligated to perform any service not described in this
Agreement, and shall not be deemed by virtue of this Agreement to have made any
representation or warranty that any level of investment performance or level of
investment results will be achieved.
8. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) Duration. This Agreement shall become effective with respect to the
Subject Portfolio on the date hereof and, with respect to any additional Subject
Portfolio, on the date of receipt by the Series of notice from Xxxxxx Xxxxxxx in
accordance with Paragraph 1(b) hereof that it is willing to serve with respect
to such Portfolio. Unless terminated as herein provided, this Agreement shall
remain in full force and effect for two years from the date hereof with respect
to the initial Subject Portfolio and, with respect to each additional Subject
Portfolio, until two years following the date on which such Portfolio becomes a
Subject Portfolio hereunder, and shall continue in full force and effect
thereafter with respect to each Subject Portfolio so long as such continuance
with respect to any such Portfolio is approved at least annually (a) by either
the Board of Trustees of the Series or by vote of a majority of the outstanding
voting shares of such Portfolio, and (b) in either event by the vote of a
majority of the trustees of the Series 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.
Any approval of this Agreement by the holders of a majority of the
outstanding shares of any Subject Portfolio shall be effective to continue this
Agreement with respect to any such Portfolio notwithstanding (A) that this
Agreement has not been approved by the holders of a majority of the outstanding
shares of any other Portfolio affected hereby, and (B) that this Agreement has
not been approved by the vote of a majority of the outstanding shares of the
Series, unless such approval shall be required by any other applicable law or
otherwise. The terms "assignment," "vote of a majority of the outstanding
shares" and "interested person," when used in this Agreement, shall have the
respective meanings specified in the 1940 Act and rules thereunder.
(b) Termination. This Agreement may be terminated with respect to any
Subject Portfolio at any time, without payment of any penalty, by the Series
pursuant to a vote of the trustees of the Series or a vote of a majority of the
outstanding shares of such Portfolio, which termination shall be effective
immediately upon delivery of notice thereof to Xxxxxx Xxxxxxx and JHMLICO. This
Agreement may be terminated by Xxxxxx Xxxxxxx on at least ninety days' prior
written notice to the Series and JHMLICO, and may be terminated by JHMLICO on at
least ninety days' prior written notice to the Series and Xxxxxx Xxxxxxx.
(c) Automatic Termination. This Agreement shall automatically and
immediately terminate in the event of its assignment (other than as permitted
pursuant to Section 15 below) or if the Investment Management Agreement is
terminated.
9. SERVICES NOT EXCLUSIVE; USE OF XXXXXX XXXXXXX'X NAME AND LOGO.
The services of Xxxxxx Xxxxxxx to the Series are not to be deemed
exclusive and it shall be free to render similar services to others so long as
its services hereunder are not impaired thereby. It is specifically understood
that directors, officers and employees of Xxxxxx Xxxxxxx and of its subsidiaries
and affiliates may continue to engage in providing portfolio management services
and advice to other investment companies, whether or not registered, and other
investment advisory clients.
During the term of this Agreement, JHMLICO and the Series shall have the
non-exclusive and non-transferable right to use Xxxxxx Xxxxxxx'x name and logo
in all materials relating to the Subject Portfolio, including all prospectuses,
proxy statements, reports to shareholders, sales literature and other written
materials prepared for distribution to shareholders of the Series or the public.
However, prior to distribution of any materials which refer to Xxxxxx Xxxxxxx,
JHMLICO shall consult with Xxxxxx Xxxxxxx and shall furnish to Xxxxxx Xxxxxxx a
copy of such materials. Xxxxxx Xxxxxxx agrees to cooperate with JHMLICO and to
review such materials promptly. JHMLICO shall not distribute such materials if
Xxxxxx Xxxxxxx reasonably objects in writing, within five (5) business days of
its receipt of such copy (or such other time as may be mutually agreed), to the
manner in which its name and logo are used.
10. AVOIDANCE OF INCONSISTENT POSITION.
Except as permitted by the 1940 Act, the rules promulgated thereunder, and
the procedures adopted by the Series' Board of Trustees, Xxxxxx Xxxxxxx and its
directors, officers and employees will not act as principal or agent or receive
any commission in connection with the purchase and sale of portfolio securities
of the Subject Portfolio. Nothing in this Agreement, however, shall preclude the
combination of orders for the sale or purchase of portfolio securities of the
Subject Portfolio with those for other registered investment companies and
portfolios or accounts of other advisory clients managed by Xxxxxx Xxxxxxx or
its affiliates, if orders are allocated in a manner deemed equitable by Xxxxxx
Xxxxxxx among the accounts and at a price approximately averaged.
11. AMENDMENT.
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing. No amendment of this
Agreement shall be effective with respect to any Portfolio until approved
specifically by (a) the Board of Trustees of the Series, or by vote of a
majority of the outstanding shares of that Portfolio, and (b) by vote of a
majority of those trustees of the Series who are not interested persons of any
party to this Agreement cast in person at a meeting called for the purpose of
voting on such approval, unless otherwise permitted by the SEC, the 1940 Act or
the rules promulgated thereunder.
12. LIMITATION OF LIABILITY.
It is expressly agreed that the obligations of the Series hereunder shall
not be binding upon any of the trustees, shareholders, officers, agents or
employees of Series personally, but only bind the trust property of the Series,
as provided in the Series' Declaration of Trust.
13. NOTICES
Notices and other communications required or permitted under this
Agreement shall be in writing, shall be deemed to be effectively delivered when
actually received, and may be delivered by US mail (first class, postage
prepaid), by facsimile transmission, by hand or by commercial overnight delivery
service, addressed as follows:
SUB-MANAGER: Xxxxxx Xxxxxxx Xxxx Xxxxxx Investment Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax #: 000-000-0000
JHMLICO: Xxxx Xxxxxxx Mutual Life Insurance Company
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax #: 000-000-0000
SERIES: Xxxx Xxxxxxx Variable Series Trust I
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax #: 000-000-0000
14. GOVERNING LAW.
This agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts and the applicable provisions of the 1940 Act and
rules thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day first set forth above.
ATTEST: XXXX XXXXXXX VARIABLE SERIES
TRUST I
/s/ Xxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxxx X. Xxx Xxxx
-------------------------- -----------------------
Senior Counsel Title: Chairman
ATTEST: XXXX XXXXXXX MUTUAL LIFE
/s/ Xxxxx X. Xxxxxxxx, Xx. INSURANCE COMPANY
--------------------------
Senior Counsel
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Title: Vice President
ATTEST: XXXXXX XXXXXXX XXXX XXXXXX
INVESTMENT MANAGEMENT INC.
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Illegible
-------------------------- ---------------------------------
Vice President & Counsel Title: Managing Director
SCHEDULE I
FEES
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Current Net Assets Under Management Sub-Advisory Fee
----------------------------------- ----------------
On the first $10,000,000 110 basis points (1.10%) per annum
On the next $140,000,000 90 basis points (0.90%) per annum
On amounts over $150,000,000 80 basis points (0.80%) per annum
