Exhibit (d)(2)(H)
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (this "Agreement") made as of August 9,
2001, by and between LSA Asset Management LLC, a Delaware limited liability
company (the "Manager"), and Fidelity Management & Research Company, a
Delaware corporation (the "Adviser").
WHEREAS, the Manager is registered with the Securities and
Exchange Commission (the "SEC") as an investment adviser under the Investment
Advisers Act of 1940, and the rules and regulations thereunder, as amended
from time to time (the "Advisers Act"); and
WHEREAS, LSA Variable Series Trust is a Delaware business trust
(the "Trust") registered with the SEC as an open-end management investment
company under the Investment Company Act of 1940, and the rules and
regulations thereunder, as amended from time to time (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial
interest in one or more investment portfolios, which are offered for sale
exclusively to separate accounts of life insurance companies as funding
options under variable life insurance and variable annuity contracts; and
WHEREAS, the Trust has appointed the Manager to serve as the
investment manager for one or more of the Trust's investment portfolios
pursuant to a Management Agreement, dated October 1, 1999, (the "Management
Agreement") and annually approved by the Board of Trustees of the Trust (the
"Trustees"); and
WHEREAS, the Trust and the Manager have obtained, among other
relief, an exemption from Section 15(a) of the 1940 Act, pursuant to an
order, dated October 4, 1999, of the SEC, permitting the Manager, subject to
certain conditions, to enter into and materially amend sub-advisory
agreements without shareholder approval; and
WHEREAS, the Management Agreement authorizes the Manager to select
and contract with other investment advisers to manage the investments and
determine the composition of the assets of, LSA Diversified Mid-Cap Fund, an
investment portfolio of the Trust (the "Fund"), in the manner and on the
terms and conditions set forth in the Management Agreement, subject to the
general supervision of the Trustees; and
WHEREAS, the Adviser is registered with the SEC as an investment
adviser under the Advisers Act; and
WHEREAS, the Manager desires to retain the Adviser to furnish
investment management services with respect to the Fund, and the Adviser
desires to furnish such services in the manner and on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the promises
and mutual covenants herein contained, the Manager and the Adviser agree as
follows:
1. APPOINTMENT. The Manager hereby appoints the Adviser to serve as
an investment adviser for the Fund, in the manner and on the terms and
conditions set forth in this Agreement. The Adviser accepts its appointment
as investment adviser and agrees to furnish the services herein set forth for
the compensation herein provided.
2. SUB-ADVISORY SERVICES.
(a) The Adviser shall, subject to the supervision of the Manager
and the Trustees, and in cooperation with any custodian and administrator
appointed by the Manager performing the duties of a custodian (the
"Custodian"), and administrator (the "Administrator") manage the investment
and reinvestment of the assets of the Fund. The Adviser shall use
commercially reasonable efforts to manage the Fund in conformity with:
i) The investment objective, policies and restrictions
of the Fund as set forth the Fund's then-current registration
statement, as filed with the SEC from time to time and provided
to the Adviser; and
ii) Any procedures, policies or guidelines established
by the Manager or the Trustees and furnished in writing to the
Adviser; and
iii) The provisions of Subchapter M of the Internal
Revenue Code of 1986, and the rules and regulations thereunder,
as amended from time to time (the "Code"); and
iv) The diversification requirements under Section
817(h) of the Code; and
v) The provisions of the 1940 Act (collectively, the
"Investment Guidelines").
Subject to the foregoing, the Adviser is authorized, in its
discretion and without prior consultation with the Manager, to buy, sell,
lend and otherwise trade in any stocks, bonds and other securities and
investment instruments on behalf of the Fund, without regard to the length of
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time the securities have been held and the resulting rate of portfolio
turnover or any tax considerations, and the majority or the whole of the Fund
may be invested in such proportions of stocks, bonds, other securities or
investment instruments, or cash, as the Adviser shall, in its best judgment,
determine. Notwithstanding any provisions of this Section 2(a) to the
contrary, the Adviser shall, upon written instructions from the Manager,
effect such portfolio transactions for the Fund as the Manager shall
determine are necessary in order for the Fund to comply with the above
enumerated requirements.
The Adviser shall furnish the Manager, the Custodian, and the
Administrator, as appropriate, with monthly, quarterly and annual reports
concerning transactions, performance, and management of the Fund in such form
as the Manager may reasonably request, and agrees to review the Fund and
discuss the management of the Fund with representatives or agents of the
Manager, or the Administrator, at their reasonable request. The Adviser shall
permit access to all books and records with respect to the Fund during normal
business hours, on reasonable notice. The Adviser shall also provide the
Manager, or the Administrator, with such other information and reports as the
Manager or the Administrator may reasonably request from time to time. The
Adviser shall make a senior portfolio manager of the Fund or an appropriate
investment professional available for presentations to the Trustees at a
meeting of the Board of Trustees annually, as well as other meetings as may
be reasonably requested.
(b) The Adviser shall make available to the Manager, promptly upon
request, any of the Fund's investment records and ledgers as are necessary to
assist the Manager to comply with the requirements of the 1940 Act and the
Advisers Act, as well as other applicable laws and regulations, and will
furnish to regulatory authorities having the requisite authority any
information or reports relating to its services under this Agreement that may
be requested in order to ascertain whether the Fund is being managed in a
manner consistent with applicable laws and regulations.
(c) The Advisers shall, in connection with the purchase and sale
of securities for the Fund, arrange for the transmission to the Custodian on
a daily basis, such confirmations, trade tickets, and other documents and
information, including, but not limited to, Cusp, Sedum, or other numbers
that identify securities to be purchased or sold on behalf of the Fund, as
may be reasonably necessary to enable the Custodian to perform its
responsibilities with respect to the Fund, and, with respect to portfolio
securities to be purchased or sold through the Depository Trust Company, and
will arrange for the automatic transmission of the confirmation of such
trades to the Custodian.
(d) The Adviser shall prepare and file any schedule or
notification required by Regulation 13D-G under the Securities Exchange Act
of 1934, as amended, and shall provide certification with regard to any
securities eligible for passive foreign investment credits.
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(e) The Adviser shall review all proxy solicitation materials and
be responsible for voting and handling all proxies in relation to the
securities held by the Fund. The Adviser shall instruct the Custodian, the
Administrator, and other parties providing services to the Fund to promptly
forward misdirected proxy materials to the Adviser.
(f) The Manager shall perform quarterly and annual tax compliance
tests to ensure that the Fund is in compliance with Subchapter M of the Code
and Section 817(h) of the Code. In connection with such compliance tests, the
Manager shall prepare and provide reports to the Adviser within ten (10)
business days of a calendar quarter end relating to the diversification of
the Fund under Subchapter M and Section 817(h) of the Code. The Adviser shall
review such reports for purposes of determining compliance with such
diversification requirements. If it is determined that the Fund is not in
compliance with the requirements noted above, the Adviser, in consultation
with the Manager, will take prompt action to bring the Fund back into
compliance within the time permitted under the Code.
(g) The Manager acknowledges that the Adviser is not the
compliance agent for the Fund or for the Manager, and does not have access to
all of the Fund's books and records necessary to perform certain compliance
testing. To the extent that the Adviser has agreed to perform the services
specified in this Section 2 in accordance with applicable law (including
sub-chapters M and L of the Code, the 1940 Act and the Advisers Act
("Applicable Law")) and in accordance with the Investment Guidelines, the
Adviser shall perform such services based upon its books and records with
respect to the Fund, which comprise a portion of the Fund's books and
records, and upon written instructions received from the Fund, the Manager or
the Administrator, and shall not be held responsible under this Agreement so
long as it performs such services in accordance with this Agreement, the
Investment Guidelines and Applicable Law based upon such books and records
and such instructions provided by the Fund, the Manager or the Administrator.
3. FUND TRANSACTIONS. In connection with purchases or sales of
portfolio securities for the account of the Fund, neither the Adviser nor any
of its partners, officers, employees or affiliates will act as a principal,
except as otherwise permitted by law. The Adviser or its agents will arrange
for the placing of orders for the purchase and sale of portfolio securities
for the account of the Fund with brokers or dealers selected by Adviser. In
the selection of such brokers or dealers and the placing of such orders the
Adviser is directed at all times to seek for the Fund the most favorable
overall terms available, in compliance of Section 28(e) of the Securities
Exchange Act of 1934 . It is also understood that it is desirable for the
Fund that the Adviser have access to supplemental investment and market
research and security and economic analyses provided by brokers who may
execute brokerage transactions at a higher cost to the Fund than may result
when allocating brokerage to other brokers on the basis of seeking the most
favorable overall terms. Therefore, the Adviser is authorized to consider
such services provided to the Fund and other accounts over which the Adviser
or any of its affiliates exercises investment discretion and to place orders
for the purchase and sale of securities for the Fund with such brokers,
subject to review by the Manager from time to time with respect to the extent
and
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continuation of this practice. It is understood that the services provided by
such brokers may be useful to the Adviser in connection with its services to
other clients. The Adviser may, on occasions when it deems the purchase or
sale of a security to be in the best interests of the Fund as well as its
other clients, aggregate, to the extent permitted by applicable laws and
rules, the securities to be sold or purchased in order to obtain the most
favorable overall terms. In such event, allocation of the securities so
purchased or sold, as well as the expenses incurred in the transaction will
be made by the Adviser in the manner it considers to be the most equitable
and consistent with, its obligations to the Fund and to such other clients.
The Adviser is not, however, required to aggregate securities orders.
4. BOOKS AND RECORDS.
(a) The Adviser shall, on behalf of the Trust, maintain and keep
current, and preserve in the form and for the periods required by Rule 31a-2
under the 1940 Act, all records relating to the Fund's investments made by
the Adviser that are required to be maintained by the Fund pursuant to the
requirements of Rule 31a-1 (b)(5), (6), (7), (9) and (10) under the 1940 Act.
In accordance with Rule 31a-3 under the 1940 Act, the Adviser agrees that
such records are the property of the Trust, and the Adviser shall promptly
surrender such records to the Manager upon the Manager's or Trust's request;
provided, however, that the Adviser may, at its own expense, make and retain
a copy of such records as provided herein.
(b) The Adviser shall maintain, and preserve in the form and for
the periods required by Rule 204-2 under the Advisers Act, such accounts,
books and other documents relating to the Adviser's services under this
Agreement as are required to be maintained by that rule.
5. ADV DISCLOSURE. The Manager has received a current copy of the
Adviser's Investment Adviser Registration on Form ADV, as filed with the SEC.
The Adviser agrees to provide the Manager with current copies of the
Adviser's Form ADV, and any supplements or amendments thereto, as filed with
the SEC, and such other current documents as may reasonably be requested by
the Manager. The Manager has provided a current copy of its Form ADV to the
Adviser and agrees to provide the Adviser with any supplements or amendments
thereto.
6. COMPLIANCE. The Adviser agrees that it shall promptly notify the
Manager in the event that the SEC has censured the Adviser for mutual fund
advisory activities; suspended or revoked its registration as an investment
adviser; it has reason to believe that the Fund may fail to qualify as a
regulated investment company under Subchapter M of the Code; or it has reason
to believe that the Fund may cease to comply with the diversification
provisions of Section 817(h) of the Code.
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7. CHANGE IN ADVISORY PERSONNEL. The Adviser shall promptly notify
the Manager of any change in the personnel of the Adviser with responsibility
for making investment decisions for the Fund or who have been authorized to
give instructions to the Custodian or the Administrator.
8. REFERENCE TO MANAGER, LIFE INSURANCE COMPANIES OR TRUST. The
Adviser shall not utilize any materials for distribution to shareholders of
the Fund or to the public which contain any information relating to the
Manager, the Trust (including any fund thereof) or the Fund, or to any life
insurance company or separate account thereof that is a shareholder of the
Trust, other than as expressly permitted under this Agreement, unless such
information and its proposed use have been submitted in writing to the
Manager for approval prior to use and the Manager does not reasonably object
in writing to such use within five (5) business days after receiving such
materials.
9. OBLIGATIONS OF THE MANAGER.
(a) The Manager shall provide (or cause the Fund's Custodian, as
defined below, to provide) timely information to the Adviser regarding such
matters as the composition of assets of the Fund, cash requirements and cash
available for investment in the Fund, and all other information as may be
reasonably necessary for the Adviser to perform its responsibilities
hereunder.
(b) The Manager has furnished the Adviser a copy of the prospectus
and statement of additional information of the Trust and agrees during the
continuance of this Agreement to furnish the Adviser copies of any revisions
or supplements thereto at or before the revisions or supplements become
effective. No revision shall be made nor supplements issued regarding the
Fund or the Adviser without the prior review and approval of the Adviser.
(c) During the term of this Sub-Advisory Agreement, the Manager
shall furnish to the Adviser at its principal office all prospectuses, proxy
statements, reports to shareholders, sales literature, or other material
prepared for distribution to shareholders of the Fund or the public, which
refer to the Adviser or its clients in any way, prior to the use thereof, and
the Manager shall not use any such materials if the Adviser reasonably
objects in writing five (5) days (or such other time as may be mutually
agreed, which would include longer time periods for review of the Fund's
prospectus and other parts of its registration statement) after receipt
thereof. The Manager shall ensure that materials prepared by employees or
agents of the Manager or its affiliates that refer to the Adviser or its
clients in any way are consistent with those materials previously approved by
the Adviser as referenced in the preceding sentence.
10. COMPENSATION. For the services provided, the Manager will pay the
Adviser a fee accrued and computed daily and payable monthly in arrears,
based on the aggregate average daily
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net assets of the Fund at the following annual rate: .55% of the first $250
million, .45% of the next $500 million, and .40% of amounts in excess of $750
million. The Adviser shall not be entitled to receive any payment for the
performance of its services hereunder from the Trust or the Fund and shall
look solely and exclusively to the Manager for payment of all fees for such
services.
11. EXPENSES. Except for expenses specifically assumed or agreed to
be paid by the Adviser pursuant hereto, the Adviser shall not be liable for
any expenses of the Manager, the Trust or any Fund, including, without
limitation, (i) interest and taxes; (ii) brokerage commissions and other
costs in connection with the purchase or sale of securities or other
investment instruments with respect to the Fund; and (iii) Custodian and
Administrator fees and expenses. The Adviser will pay its own expenses
incurred in furnishing the services to be provided by it pursuant to this
Agreement.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Adviser are not exclusive, and nothing in this Agreement shall prevent the
Adviser (or its affiliates) from providing similar services to other clients,
or from engaging in other activities.
13. INDEPENDENT CONTRACTOR. The Adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Manager from time to time,
have no authority to act for or represent the Manager in any way or otherwise
be deemed its agent.
14. COOPERATION. Each party to this Agreement agrees to cooperate
with each other in connection with any investigation or inquiry relating to
this Agreement.
15. REPRESENTATIONS AND WARRANTIES. Each party hereto represents and
warrants to the other party hereto:
(a) that it is a duly registered investment adviser under the
Advisers Act and a duly registered investment adviser in all jurisdictions in
which it is required to be so registered, and will continue to be so
registered for so long as this Agreement remains in effect; and
(b) that it has the authority to enter into this Agreement and to
perform its obligations under this Agreement.
16. LIABILITY. The Manager agrees that the Adviser, any affiliated
person of the Adviser, and each person, if any, who controls the Adviser
within the meaning of Section 15 of the Securities Act, shall not be liable
for, or subject to any losses, claims, damages, liabilities or expenses in
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connection with any act or omission connected with or arising out of any
services rendered under this Agreement, except by reason of wilful
misconduct, bad faith, or gross negligence in the performance of the
Adviser's duties, or by reason of reckless disregard of the Adviser's
obligations and duties under this Agreement.
17. INDEMNIFICATION.
(a) The Adviser shall indemnify and hold harmless the Manager and
the Trust, and each trustee, director, manager, officer, employee or agent of
the Manager and the Trust, and each person, if any, who controls the Manager
and the Trust within the meaning of Section 15 of the Securities Act
(collectively, the "Indemnified Parties" for purposes of this Section 16(a))
against any and all losses, claims, damages, liabilities or expenses
(including reasonable attorneys' fees and amounts paid in settlement with the
written consent of the Adviser) to which the Indemnified Parties may become
subject under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses arise out of or are
based upon:
i) Any wilful misconduct, bad faith, or gross
negligence by the Adviser in the performance of its obligations
or services under this Agreement or the Adviser's reckless
disregard of its obligations or services under this Agreement; or
ii) Any untrue statement or alleged untrue statement of
a material fact contained in the registration statement or
prospectus covering shares of the Trust, or any amendment or
supplement thereto, or the omission or alleged omission to state
therein a material fact known to the Adviser and required to be
stated therein or necessary to make the statements therein not
misleading, if such a statement or omission was made in reliance
upon information furnished in writing by the Adviser to the Manager
or the Trust; provided, however, that in no case shall the
indemnity in favor of the Manager or Trust be deemed to protect
the Manager or Trust against any liability to which any such
person 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 obligations and duties
under this Agreement.
(b) The Manager shall indemnify and hold harmless the Adviser, and
each trustee, director, manager, officer, employee or agent of the Adviser,
and each person, if any, who controls the Adviser within the meaning of
Section 15 of the Securities Act (collectively, the "Indemnified Parties" for
purposes of this Section 16(b)) against any and all losses, claims, damages,
liabilities or expenses (including reasonable attorneys' fees and amounts
paid in settlement with the written consent of the Adviser) to which the
Indemnified Parties may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon:
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i) Any wilful misconduct, bad faith, or gross
negligence by the Manager in the performance of its obligations or
services under this Agreement, or the Manager's reckless disregard
of its obligations or services under this Agreement.
18. TERM AND TERMINATION.
(a) This Agreement shall take effect as of the date hereof, and
shall continue in effect for a period more than two years from the date of
its execution only so long as such continuance is specifically approved at
least annually by the Trustees; provided, however, that in addition to the
foregoing, this Agreement shall not take effect or be renewed or performed
unless the terms of this Agreement and any renewal of this Agreement have
been approved by the vote of a majority of Trustees, who are not parties to
this Agreement or "interested persons" (as defined in Section 2(a)(19) of the
0000 Xxx) of any such party, cast in person at a meeting called for the
purpose of voting on such approval.
(b) The Manager or Trustees may at any time terminate this
Agreement on sixty (60) days' written notice to the Adviser.
(c) This Agreement may be terminated at any time, without payment
of any penalty, by the Adviser upon 60-days' written notice to the Manager.
(d) The Agreement shall terminate automatically in the event of
its "assignment" (as defined in Section 2(a)(4) of the 0000 Xxx) or the
termination of the Management Agreement.
19. CONFIDENTIAL TREATMENT.
(a) The parties acknowledge that during the course of this
Agreement, each party may make Confidential Data available to the other party
or may otherwise learn of trade secret or confidential information of the
other party (collectively, hereinafter "Confidential Data"). Confidential
Data includes all information not generally known or used by others and which
gives, or may give, a party an advantage over its competitors or which could
cause injury, embarrassment, or loss of reputation or goodwill if disclosed.
Such information includes, but is not necessarily limited to, data which
identify or concern past, current or potential customers, information about
business practices, financial results, research, development, systems and
plans; and/or certain information and material identified by a party as
"Confidential"; and/or data one party furnishes to the other party from its
database or third party vendors; and/or data received from one party and
enhanced by the other party. Confidential Data may be written, oral,
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recorded, or on tapes, disks or other electronic media. Because of the
sensitive nature of the information that the parties and their respective
personnel may become aware of as a result of this Agreement, the intent of
the parties is that these provisions be interpreted as broadly as possible to
protect Confidential Data.
(b) Each party acknowledges that all Confidential Data furnished
by the other party is considered proprietary and is a matter of strict
confidentiality. Each party also acknowledges that the unauthorized use or
disclosure of any Confidential Data will cause irreparable harm to the other
party. Accordingly, each party agrees that the other party shall be entitled
to equitable relief, including injunction, without the necessity of posting a
bond, and specific performance, in addition to all other remedies available
at law or in equity for any threatened or actual breach of this Agreement or
for any threatened or actual unauthorized use or disclosure of Confidential
Data.
(c) Each party agrees that it will employ the same security
measures to Confidential Data received from the other party that it would
apply to its own comparable confidential information (but in no event less
than a reasonable degree of care in handling Confidential Data). Without
limiting the generality of the foregoing, each party further agrees that it
will not distribute, disclose, or convey to third parties any Confidential
Data, except as specifically permitted in this Agreement.
(d) Each party further agrees that: i) only its employees with a
defined need to know shall be granted access to Confidential Data and only
after they have been informed of the confidential nature of the Confidential
Data; ii) Confidential Data shall not be distributed, disclosed or conveyed
to any consultant or subcontractor retained by it except upon the other
party's prior written approval, which shall be conditioned on such consultant
or subcontractors agreeing to be bound by the terms of this Agreement; iii)
no copies or reproductions shall be made of any Confidential Data of the
other party except to effectuate the purpose of this Agreement or with the
written consent of the other party; and d) it shall not make use of any
Confidential Data for its own benefit or for the benefit of any third party.
(e) Each party further agrees that, should third parties request
the party or its consultants or subcontractors to submit Confidential Data of
the other party to them pursuant to subpoena, summons, search warrant or
other lawful process, it will notify the other party immediately upon receipt
of such request. The receiving party shall forward notice via overnight
courier to the other party no later than five (5) days after receipt by the
receiving party. If the other party objects to the release of the
Confidential Data, the party receiving the request will permit counsel chosen
by the other party to represent it in order to resist release of the
Confidential Data. The party resisting the release of such Confidential Data
will indemnify the other party for any expenses incurred by it in connection
with resisting the release of the Confidential Data.
(f) Each party agrees that all Confidential Data received from the
other party shall at all times remain the sole property of the other party
and, if in tangible form such as (by way of example and not limitation), in
writing or on tape, disk, or other electronic media, and all copies, shall be
returned to the other party immediately upon termination of the business
relationship
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between the parties or upon demand at any other time. Except as otherwise
provided by this Agreement, no rights or licenses, express or implied, are
granted by one party to the other under any patents, copyrights, trade
secrets, or other proprietary rights as a result of, or related to this
Agreement.
(g) The obligations set forth in paragraphs (a) through (f) above
shall not apply to: (i) any disclosure specifically authorized in writing by
the parties or (ii) Confidential Data which meets one or more of the
following criteria: (1) has become well known in the trade; (2) was disclosed
to either party by a third party not under an obligation of confidentiality
to the other party; (3) was independently developed by the party not
otherwise in violation or breach of this Agreement or any other obligation of
the party to the other party; or (4) was rightfully known to the party prior
to entering into this Agreement.
(h) Without limiting the foregoing, the Manager acknowledges that
the securities holdings of the Fund constitute information of value to the
Adviser, and agrees: (1) not to use for any purpose, other than by the
Manager or the Trust, or their agents, in order to supervise or monitor the
Adviser, the holdings or other trading-related information of the Fund; and
(2) not to disclose the Fund's holdings, except: (a) as required by
applicable law or regulation; (b) as required by state or federal regulatory
authorities; (c) to the Board of Trustees of the Trust, counsel to the Board,
counsel to the Trust, the Administrator or any sub-administrator, the
independent accountants and any other agent of the Trust; or (d) as otherwise
agreed to by the parties hereto in writing. Further, the Manager agrees that
information supplied by the Adviser, including approved lists, internal
procedures, compliance procedures and any board materials, is valuable to the
Adviser, and the Manager agrees not to disclose any of the information
contained in such materials, except: (i) as required by applicable law or
regulation; (ii) as required by state or federal regulatory authorities;
(iii) to the Trustees, counsel to the Trustees, counsel to the Trust, the
Administrator or any sub-administrator, the independent accountants and any
other agent of the Trust; or (iv) as otherwise agreed to by the parties
hereto in writing.
20. USE OF ADVISER'S NAME. The parties agree that the name of the
Adviser, the names of any affiliates of the Adviser and any derivative or
logo or trademark or service xxxx or trade name, are the valuable property of
the Adviser and its affiliates. The Manager and the Trust shall have the
right to use such name(s), derivatives, logos, trademarks or service marks or
trade names only with the prior written approval of the Adviser, which
approval shall not be unreasonably withheld or delayed so long as this
Agreement is in effect.
Upon termination of this Agreement, the Manager and the Trust
shall forthwith cease to use such name(s), derivatives, logos, trademarks or
service marks or trade names. The Manager and the Trust agree that they will
review with the Adviser any advertisement, sales literature, or notice prior
to its use that makes reference to the Adviser or its affiliates or any such
name(s), derivatives, logos, trademarks, service marks or trade names so that
the Adviser may review the context in which it is referred to, it being
agreed that the Adviser shall have no responsibility to ensure the adequacy
of the form or content of such materials for purposes of the 1940 Act or
other applicable laws and regulations. If the Manager or the Trust makes any
unauthorized use of
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the Adviser's names, derivatives, logos, trademarks or service marks or trade
names, the parties acknowledge that the Adviser shall suffer irreparable harm
for which monetary damages are inadequate and thus the Adviser shall be
entitled to seek injunctive relief.
21. NOTICE. Any notice, instruction or other communication required
or contemplated by this Agreement shall be in writing. All such
communications shall be addressed to the recipient at the address set forth
below, provided that either party may, by notice, designate a different
address for such party.
If to Manager:
Xxxxxxxx X. Xxxxxxx
Chief Operations Officer
LSA Asset Management LLC
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Assistant General Counsel
LSA Asset Management LLC
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, XX 00000
If to the Adviser:
Fidelity Management & Research Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
22 Miscellaneous.
(a) Any amendments to this Agreement will be in writing and signed
by the parties hereto.
(b) This Agreement shall be governed by, and construed in
accordance with, the laws of Delaware, provided that nothing herein shall be
construed in a manner inconsistent with the Advisers Act, or rules or
regulations thereunder.
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(c) If any provisions of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby, and to this extent, the
provisions of this Agreement shall be deemed to be severable. To the extent
that any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise with regard to any party hereunder, such
provisions with respect to other parties hereto shall not be affected thereby.
(d) This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original.
(e) The Adviser may, at its own expense, delegate any or all of
its duties and responsibilities under this Agreement to its wholly-owned
subsidiary, FMR Co., Inc., pursuant to the terms of a sub-sub-advisory
agreement between Adviser and FMR Co., Inc. Notwithstanding such delegation
of duties and responsibilities, the Adviser shall at all times remain
responsible to Manager, the Fund and the Trust for the performance of all of
its responsibilities and duties as required hereunder. A copy of any such
sub-sub-advisory agreement, or any subsequent amendment to such agreement,
shall be provided to Manager in advance for review and approval. The Adviser
may compensate FMR Co., Inc. for the services it provides to the Fund.
Subject to prior written notice to the Manager, the Adviser may terminate the
services of FMR Co., Inc. and shall, at such time, assume all duties and
responsibilities of FMR Co., Inc. with respect to the Fund which were
previously delegated pursuant to the terms of the sub-sub-agreement.
* * *
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed on its behalf by its duly authorized officer as of the
date first written above.
The Manager:
LSA ASSET MANAGEMENT LLC
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Vice President, Investments
---------------------------
The Adviser:
FIDELITY MANAGEMENT & RESEARCH COMPANY
13
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Treasurer
14
