EXHIBIT (D)(3)
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
January 22, 1999
MANAGEMENT AGREEMENT
(ASSET ALLOCATION PORTFOLIOS)
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Xxxxxxx Sachs Asset Management
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxxx Xxxxx Variable Insurance Trust (the "Registrant") is organized as a
business trust under the laws of the State of Delaware to engage in the business
of an investment company. The shares of the Registrant ("Shares") may be divided
into multiple series ("Series"), including the Series listed on Annex A
(including any Series added to Annex A in the future, each a "Fund"). Each
Series will represent the interests in a separate portfolio of securities and
other assets. Each Series may be terminated, and additional Series established,
from time to time by action of the Trustees. The Registrant, on behalf of the
respective Funds, has selected you to act as an investment adviser and
administrator of the Funds designated on Annex A and to provide certain services
with respect to those Funds, as more fully set forth below, and you are willing
to act as such investment adviser and administrator and to perform such services
under the terms and conditions hereinafter set forth. Accordingly, the
Registrant agrees with you as follows:
1. Name of Registrant. The Registrant may use any name including or derived from
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the name "Xxxxxxx Sachs" in connection with a Fund only for so long as this
Agreement or any extension, renewal or amendment hereof remains in effect,
including any similar agreement with any organization which shall have succeeded
to your business as investment adviser or administrator. Upon the termination of
this Agreement, the Registrant (to the extent that it lawfully can) will cause
the Funds to cease to use such a name or any other name indicating that it is
advised by or otherwise connected with you or any organization which shall have
so succeeded to your business.
2. Affiliated Advisers and Sub-Advisors. At your discretion, you may provide
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advisory and administration services through your own employees or the employees
of one or more affiliated companies that are qualified to act as investment
adviser or administrator to the Registrant under applicable law and are under
the common control of Xxxxxxx, Xxxxx & Co. provided that (a) all persons, when
providing services hereunder, are functioning as part of an organized group of
persons; and (b) such organized group of persons is managed at all times by your
authorized officers. You may also engage one or more investment advisers which
are either registered as such or specifically exempt from registration under the
Investment Advisers Act of 1940, as amended, to act as sub-advisers to provide
with respect to any Fund certain services set forth in paragraphs 3 and 6
hereof, all as shall be set forth in a written contract to which the Registrant,
on behalf of the particular Fund, and you shall be parties, which contract shall
be subject to approval by the vote of a majority of the Trustees who are not
interested persons of you, the sub-adviser, or of the Registrant, cast in person
at a meeting called for the purpose of voting on such approval and by the vote
of a majority of the outstanding voting securities of the Fund and otherwise
consistent with the terms of the Investment Company Act of 1940, as amended (the
"1940 Act").
3. MANAGEMENT SERVICES.
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(a) You will regularly provide each Fund with investment
research, advice and supervision and will furnish continuously an
investment program for each Fund consistent with the investment objectives
and policies of the Fund. You will determine from time to time what
securities shall be purchased for a Fund, what securities shall be held or
sold by a Fund, and what portion of a Fund's assets shall be held
uninvested as cash, subject always to the provisions of the Registrant's
Declaration of Trust and By-Laws and of the 1940 Act, and to the investment
objectives, policies and restrictions of the Fund, as each of the same
shall be from time to time in effect, and subject, further, to such
policies and instructions as the Trustees of the Registrant may from time
to time establish. Without limiting the generality of the foregoing, you
will, subject to the foregoing limitations, (i) determine the amount each
Fund will invest, directly or indirectly, in equity, fixed income and money
market securities, (ii)evaluate the attributes of any investment company in
which a Fund may invest and (iii) determine the amount of each Fund's
assets that are invested in any one or more investment companies from time
to time.
(b) Subject to the general supervision of the Trustees of the
Registrant, you will provide certain administrative services to each Fund.
You will, to the extent such services are not required to be performed by
others pursuant to the custodian agreement (or the transfer agency
agreement to the extent that a person other than you is serving thereunder
as the Registrant's transfer agent), (i) provide supervision of all aspects
of each Fund's operations not referred to in paragraph (a) above; (ii)
provide each Fund with personnel to perform such executive, administrative
and clerical services as are reasonably necessary to provide effective
administration of the Fund; (iii) arrange for, at the Registrant's expense,
(A) the preparation for each Fund of all required tax returns, (B) the
preparation and submission of reports to existing shareholders and (c) the
periodic updating of the Fund's prospectuses and statements of additional
information and the preparation of reports filed with the Securities and
Exchange Commission and other
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regulatory authorities; (iv) maintain all of the Funds' records; and (v)
provide the Funds with adequate office space and all necessary office
equipment and services including telephone service, heat, utilities,
stationery supplies and similar items.
(c) You will also provide to the Registrant's Trustees such periodic
and special reports as the Trustees may reasonably request. You shall for
all purposes herein be deemed to be an independent contractor and shall,
except as otherwise expressly provided or authorized, have no authority to
act for or represent the Registrant or the Funds in any way or otherwise be
deemed an agent of the Registrant or the Funds.
(d) You will maintain all books and records with respect to the
Funds' securities transactions required by sub-paragraphs (b)(5), (6), (7),
(9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act (other than
those records being maintained by the Funds' custodian or transfer agent)
and preserve such records for the periods prescribed therefor by Rule 31a-2
of the 1940 Act. You will also provide to the Registrant's Trustees such
periodic and special reports as the Board may reasonably request.
(e) You will notify the Registrant of any change in your membership
within a reasonable time after such change.
(f) Your services hereunder are not deemed exclusive and you shall be
free to render similar services to others.
4. Allocation of Charges and Expenses. You will pay all costs incurred by you
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in connection with the performance of your duties under paragraph 3. You will
pay the compensation and expenses of all personnel of yours and will make
available, without expense to the Funds, the services of such of your partners,
officers and employees as may duly be elected officers or Trustees of the
Registrant, subject to their individual consent to serve and to any limitations
imposed by law. You will not be required to pay any expenses of any Fund other
than those specifically allocated to you in this paragraph 4. In particular, but
without limiting the generality of the foregoing, you will not be required to
pay: (a) organization expenses of the Funds; (b) fees and expenses incurred by
the Funds in connection with membership in investment company organizations; (c)
brokers' commissions; (d) payment for portfolio pricing services to a pricing
agent, if any; (e) legal, auditing or accounting expenses (including an
allocable portion of the cost of your employees rendering legal and accounting
services to the Fund); (f) taxes or governmental fees; (g) the fees and expenses
of the transfer agent of the Registrant; (h) the cost of preparing stock
certificates or any other expenses, including clerical expenses of issue,
redemption or repurchase of Shares of the Fund; (i) the expenses of and fees for
registering or qualifying Shares for sale and of maintaining the registration of
the Funds and registering the Registrant as a broker or a dealer; (j) the fees
and expenses of Trustees of the Registrant who are not affiliated with you; (k)
the cost of preparing and distributing reports and notices to shareholders, the
Securities and Exchange Commission and other regulatory authorities; (l) the
fees or disbursements of custodians of each Fund's assets, including expenses
incurred in the performance of any obligations enumerated by the Declaration of
Trust or By-Laws of the Registrant insofar as they govern agreements with any
such custodian; or (m) litigation and indemnification expenses and other
extraordinary expenses not incurred in the
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ordinary course of the Fund's business. You shall not be required to pay
expenses of activities which are primarily intended to result in sales of Shares
of the Funds.
5. Compensation of the Manager.
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(a) For all services to be rendered and payments made as provided in
paragraphs 3 and 4 hereof, the Registrant on behalf of each Fund will pay
you each month a fee at an annual rate equal to the percentage of the
average daily net assets of the Fund set forth with respect to such Fund on
Annex A. The "average daily net assets" of a Fund shall be determined on
the basis set forth in the Fund's prospectus(es) or otherwise consistent
with the 1940 Act and the regulations promulgated thereunder.
(b) In addition to the foregoing, you may from time to time agree not
to impose all or a portion of your fee otherwise payable hereunder (in
advance of the time such fee or portion thereof would otherwise accrue)
and/or undertake to pay or reimburse a Fund for all or a portion of its
expenses not otherwise required to be borne or reimbursed by you. Any such
fee reduction or undertaking may be discontinued or modified by you at any
time.
6. Avoidance of Inconsistent Position. In connection with purchases or sales
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of portfolio securities for the account of the Funds, neither you nor any of
your partners, officers or employees will act as a principal, except as
otherwise permitted by the 1940 Act. You or your agent shall arrange for the
placing of all orders for the purchase and sale of portfolio securities for each
Fund's account with brokers or dealers (including Xxxxxxx, Sachs & Co.)
selected by you. In the selection of such brokers or dealers (including Xxxxxxx,
Xxxxx & Co.) and the placing of such orders, you are directed at all times to
seek for the Funds the most favorable execution and net price available. It is
also understood that it is desirable for the Funds that you 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 a
Fund than may result when allocating brokerage to other brokers on the basis of
seeking the most favorable price and efficient execution. Therefore, you are
authorized to place orders for the purchase and sale of securities for the Funds
with such brokers, subject to review by the Registrant's Trustees from time to
time with respect to the extent and continuation of this practice. It is
understood that the services provided by such brokers may be useful to you
in connection with your services to other clients. If any occasion should arise
in which you give any advice to your clients concerning the Shares of the
Funds, you will act solely as investment counsel for such clients and not in any
way on behalf of any Fund. You may, on occasions when you deem the purchase or
sale of a security to be in the best interests of a Fund as well as your other
customers (including any other Series or any other investment company or
advisory account for which you or any of your affiliates acts as an investment
adviser), aggregate, to the extent permitted by applicable laws and
regulations, the securities to be sold or purchased in order to obtain the best
net price and the most favorable execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by you in the manner you consider to be the most
equitable and consistent with your fiduciary obligations to the Fund and to such
other customers. In addition, you are authorized to take into account the sale
of Shares of the Registrant in allocating purchase and sale orders for portfolio
securities to brokers or dealers (including brokers and dealers that are
affiliated with you), provided that you believe that the
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quality of the transaction and the commission is comparable to what they would
be with other qualified firms.
7. Limitation of Liability of Manager and Fund. You shall not be liable for
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any error of judgment or mistake of law or for any loss suffered by a Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on your part
in the performance of your duties or from reckless disregard by you of your
obligations and duties under this Agreement. Any person, even though also
employed by you, who may be or become an employee of and paid by the Registrant
or the Funds shall be deemed, when acting within the scope of his employment by
the Funds, to be acting in such employment solely for the Funds and not as your
employee or agent. A Fund shall not be liable for any claims against any other
Fund or Series of the Registrant.
8. Duration and Termination of this Agreement. This Agreement shall remain in
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force as to each Fund until June 30, 2000 and shall continue for periods of one
year thereafter, but only so long as such continuance is specifically approved
at least annually (a) by the vote of a majority of the Trustees who are not
interested persons (as defined in the 0000 Xxx) of the Registrant and have no
financial interest in this Agreement, cast in person at a meeting called for the
purpose of voting on such approval and (b) by a vote of a majority of the
Trustees of the Registrant or of a majority of the outstanding voting securities
of such Fund. The aforesaid requirement that continuance of this Agreement be
"specifically approved at least annually" shall be construed in a manner
consistent with the 1940 Act and the rules and regulations thereunder. This
Agreement may, on 60 days written notice to the other party, be terminated in
its entirety or as to a particular Fund at any time without the payment of any
penalty, by the Trustees of the Registrant, by vote of a majority of the
outstanding voting securities of a Fund, or by you. This Agreement shall
automatically terminate in the event of its assignment. In interpreting the
provisions of this Agreement, the definitions contained in Section 2(a) of the
1940 Act (particularly the definitions of "interested person," "assignment" and
"majority of the outstanding voting securities"), as from time to time amended,
shall be applied, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission by any rule, regulation or order.
9 Amendment of this Agreement. No provisions of this Agreement may be
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changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Agreement shall be
effective as to a Fund until approved by vote of the holders of a majority of
the outstanding voting securities of such Fund and by a majority of the Trustees
of the Registrant, including a majority of the Trustees who are not interest
persons (as defined in the 0000 Xxx) of the Registrant and have no financial
interest in this Agreement, cast in person at a meeting called for the purpose
of voting on such amendment. Notwithstanding the foregoing, this Agreement may
be amended at any time to add to a new Fund to Annex A, or for any other reason
permitted by the 1940 Act and the regulations and interpretations thereunder,
provided such amendment is approved by a majority of the Trustees of the
Registrant, including a majority of the Trustees who are not interested persons
(as defined in the 0000 Xxx) of the Registrant and have no financial interest in
this Agreement. This paragraph does not apply to any agreement described in
paragraph 5(b) hereof, which shall be effective during the period you specify in
a prospectus, sticker, or other document made available to current or
prospective shareholders.
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10. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York.
11. Miscellaneous. The captions in this Agreement are included for convenience
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of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. 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.
The name Xxxxxxx Xxxxx Variable Insurance Trust is the designation of the
Trustees for the time being under an Agreement and Declaration of Trust dated
September 16, 1997 as amended from time to time, and all persons dealing with
the Trust or a Fund must look solely to the property of the Trust or such Fund
for the enforcement of any claims as none of the Trustees, officers, agents or
shareholders assume any personal liability for obligations entered into on
behalf of the Trust.
If you are in agreement with the foregoing, please sign the form of
acceptance on the Registrant counterpart of this letter and return such
conterpart to the Registrant, whereupon this letter shall become a binding
contract.
Yours very truly,
XXXXXXX SACHS VARIABLE INSURANCE TRUST
Attest: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Grip
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Secretary of the Registrant President of the Registrant
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX XXXXX ASSET MANAGEMENT,
A DIVISION OF XXXXXXX, SACHS & CO.
ATTEST: /s/ Xxxxxxx Xxxxxxx By: [SIGNATURE ILLEGIBLE]
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Counsel to the Funds Group Managing Director
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Annex A
Xxxxxxx Sachs Asset Management will provide the services provided for in the
attached Management Agreement with respect to the following Funds:
Xxxxxxx Xxxxx Growth Strategy Portfolio
Xxxxxxx Sachs Aggressive Growth Strategy Portfolio
Xxxxxxx Xxxxx Balanced Strategy Portfolio
Xxxxxxx Sachs Growth and Income Strategy Portfolio
Xxxxxxx Xxxxx Conservative Strategy Portfolio
For the services provided to the Funds under the Management Agreement Xxxxxxx
Sachs Asset Management will be entitled to receive a fee, with respect to each
Fund, equal to .15% (annualized) of a Fund's average daily net assets. The
Registrant understands that Xxxxxxx Xxxxx Asset Management and its affiliates
may receive compensation, inter alia, from the Funds for other, non-management
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services, and from investment companies in which the Funds invest for services
provided to such companies.
Dated: January 22, 1999
XXXXXXX SACHS VARIABLE
INSURANCE TRUST
By:[SIGNATURE ILLEGIBLE]
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Title:______________________________
XXXXXXX XXXXX ASSET MANAGEMENT,
a division of Xxxxxxx, Sachs & Co.
By:[SIGNATURE ILLEGIBLE]
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Title:______________________________
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