Exhibit 23(d)(25)
INVESTMENT SUB-ADVISORY AGREEMENT
THIS INVESTMENT SUB-ADVISORY AGREEMENT ("Agreement"), made this 26th day of
December, 2006 by and between Xxxxxx Advisors LLC, a Delaware limited liability
company ("Adviser"), and X. X. Xxxxxx Investment Management Inc.
("Sub-Adviser").
Adviser and Sub-Adviser agree as follows:
1. APPOINTMENT OF SUB-ADVISER. Adviser hereby engages the services of
Sub-Adviser in connection with Adviser's management of the Xxxxxx/JPMorgan
International Equity Portfolio ("Portfolio") of MLIG Variable Insurance Trust
("Trust"). Pursuant to this Agreement and subject to the oversight and
supervision by Adviser and the officers and the board of trustees of the Trust,
Sub-Adviser shall manage the investment and reinvestment of that portion or
portions of the assets of the Portfolio that the Adviser shall, from time to
time, direct the Sub-Adviser to manage.
2. SERVICES TO BE PROVIDED BY THE SUB-ADVISER. Sub-Adviser hereby accepts the
appointment by Adviser in the foregoing capacity and agrees to render the
services set forth herein and to provide the office space, furnishings,
equipment and personnel required by it to perform such services under the terms
and conditions set forth in this Agreement and for the compensation to the
Sub-Adviser specified in this Agreement.
(a) In particular, Sub-Adviser shall furnish continuously an investment
program for the Portfolio and shall determine from time to time, in its
discretion without prior consultation with Adviser, the securities and other
investments to be purchased or sold or exchanged and what portion or portions of
the Portfolio shall be held in various securities, cash or other investments. In
this connection, Sub-Adviser shall provide Adviser and the officers and trustees
of the Trust with such reports and documentation as the latter shall reasonably
request regarding Sub-Adviser's management of the Portfolio assets.
(b) Sub-Adviser shall carry out its responsibilities under this Agreement
in compliance with: (1) the Portfolio's investment objective, policies and
restrictions as set forth in the Trust's current registration statement, (2) all
policies, procedures, guidelines or directives as the board of trustees of the
Trust may, from time to time, approve and adopt and communicate in writing to
the Sub-Adviser, and (3) applicable law and related regulations. Sub-Adviser
will not be required under this Agreement to comply with any policies,
procedures, guidelines or directives that are in clear violation of applicable
laws or regulations or the Sub-Advisor's internal policies.
(i) Adviser shall promptly notify Sub-Adviser in writing of changes to
(1) or (2) above and shall notify Sub-Adviser in writing of changes to (3) above
promptly after it becomes aware of such changes.
(ii) In particular, the Sub-Adviser shall be responsible to ensure
that each portion of the assets of the Portfolio that it manages: (1) complies
with the
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diversification requirements of Section 817(h) of the Internal Revenue Code of
1986, as amended, ("Code") and regulations issued thereunder as these apply to
separate accounts through which variable life insurance contracts and variable
annuity contracts are issued, and (2) satisfies the requirements of Section
851(b)(2)and 851(b)(3) of the Code. In addition, the Sub-Adviser agrees that it
shall take no action that would call into question the Portfolio's status as a
"regulated investment company" within the meaning of Section 851 of the Code and
shall not fail to take any action reasonably related to the duties described in
this Agreement that would be required to preserve the Portfolio's status as a
"regulated investment company" within the meaning of Section 851 of the Code.
(iii) Sub-Adviser shall not consult with other sub-advisers of the
Portfolio, or with sub-advisers of other investment portfolios of the Trust,
concerning transactions in portfolio securities or other portfolio investments
of the Portfolio.
(c) Sub-Adviser shall take all actions which it considers necessary to
implement the investment objective and policies of the Portfolio, and in
particular, to place all orders for the purchase or sale of securities or other
investments for the Portfolio with brokers or dealers selected by it, and, to
that end, Sub-Adviser is authorized as the agent of the Trust to give
instructions to the Trust's custodian as to deliveries of securities or other
investments and payments of cash for the account of the Portfolio. In connection
with the selection of brokers or dealers and the placing of purchase and sale
orders with respect to securities or other investments of the Portfolio,
Sub-Adviser will at all times seek to obtain best execution which means prompt
and reliable execution at the best obtainable price and reasonable commissions.
(d) In the selection of brokers and dealers to execute portfolio
transactions, the Sub-Adviser will consider not only the available prices and
rates of brokerage commissions, but also other relevant factors which may
include, without limitation: (1) the execution capabilities of such brokers and
dealers, (2) research and other services provided by such brokers and dealers
which the Sub-Adviser believes will enhance its general portfolio management
capabilities, (3) the size of the transaction, (4) the difficulty of execution,
(5) the operational facilities of such brokers and dealers, (6) the risk to such
a broker or dealer of positioning a block of securities, and (7) the overall
quality of brokerage and research services provided by such brokers and dealers.
In connection with the foregoing, Sub-Adviser is specifically authorized to pay
those brokers and dealers who provide brokerage and research services to it a
higher commission than that charged by other brokers and dealers if the
Sub-Adviser determines in good faith that the amount of such commission is
reasonable in relation to the value of such services in terms of either the
particular transaction or in terms of Sub-Adviser's overall responsibilities
with respect to the Portfolio and to any other client accounts or portfolios
which Sub-Adviser or its affiliates advise. The execution of such transactions
shall not be considered to represent an unlawful breach of any duty created by
this Agreement or otherwise.
(e) Sub-Adviser also is authorized to aggregate purchase and sale orders
for securities held (or to be held) in the Portfolio with similar orders being
made on the same
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day for other client accounts or portfolios managed by Sub-Adviser. When an
order is so aggregated: (1) the actual prices applicable to the aggregated
transaction will be averaged and the Portfolio and each other account or
portfolio participating in the aggregated transaction shall be treated as having
purchased or sold its portion of the securities at such average price, and (2)
all transaction costs incurred in effecting the aggregated transaction shall be
shared on a pro-rata basis among the accounts or portfolios (including the
Portfolio) participating in the transaction. Adviser recognizes that in some
cases this procedure may adversely affect the size of the position obtainable
for the Portfolio.
(f) When recommending or effecting a transaction in a particular security
or investment for more than one client account or portfolio (including the
Portfolio), Sub-Adviser may allocate such recommendations or transactions among
all accounts and portfolios for whom the recommendation is made or transaction
is effected on a basis that Sub-Adviser considers equitable. Adviser recognizes
that in some instances this procedure may adversely affect the size of the
position that may be obtained for the Portfolio.
(g) The Sub-Adviser shall have no responsibility with respect to the
collection of income, physical acquisition or the safekeeping of the assets of
the Portfolio. The Sub-Adviser shall have no responsibility for the payment of
any taxes due on capital or income held or collected for the Portfolio and the
filing of any returns in connection therewith or otherwise required by law. The
Adviser shall provide Subadviser with reasonable advance notice of any
subsequent changes in the Portfolio's custodian.
3. NOT AN EXCLUSIVE ARRANGEMENT. Sub-Adviser's services under this Agreement are
not exclusive. Sub-Adviser may provide the same or similar services to other
clients including other investment companies and accounts following the same
strategy as the Portfolio. Adviser acknowledges that, except when transactions
for multiple clients are aggregated, transactions in a specific security or
other investment may not be recommended or executed at the same time or price
for all client accounts or portfolios (including the Portfolio) for which that
security or investment is recommended or executed. This Agreement does not
require Sub-Adviser to give priority to the Portfolio over other client accounts
or portfolios.
4. INDEPENDENT CONTRACTOR. Sub-Adviser 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 represent the Adviser, the Trust
or the Portfolio or otherwise be deemed agents of the Adviser, the Trust or the
Portfolio.
5. USE OF AFFILIATED BROKER DEALER. Sub-Adviser, an affiliated person of
Sub-Adviser, the Adviser, or an affiliated person of the Adviser or the Trust
may act as broker for the Portfolio in connection with the purchase or sale of
securities or other investments for the Portfolio, subject to: (1) the
requirement that Sub-Adviser seeks to obtain best execution and price in
accordance with the policy guidelines approved and adopted by the board of
trustees of the Trust and set forth in the Trust's current registration
statement; (2) the
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provisions of the Investment Company Act of 1940, as amended ("1940 Act") and
regulations thereunder; (3) the provisions of the Investment Advisers Act of
1940, as amended ("Advisers Act") and the regulations thereunder; (4) the
provisions of the Securities Exchange Act of 1934, as amended, and the
regulations thereunder; and (5) other applicable provisions of law. Such
brokerage services are not within the scope of the duties of Sub-Adviser under
this Agreement. Subject to the requirements of applicable law and any procedures
approved and adopted by Trust's board of trustees, Sub-Adviser or its affiliated
persons may receive brokerage commissions, fees or other remuneration from the
Portfolio or the Trust for such services in addition to Sub-Adviser's fees for
services under this Agreement.
6. VOTING RIGHTS. The Adviser delegates the Adviser's discretionary authority to
exercise voting rights with respect to the securities and other investments in
the Portfolio to the Sub-Adviser. The Sub-Adviser shall exercise these voting
rights unless and until the Adviser revokes this delegation. The Adviser may
revoke this delegation at any time without cause. The Sub-Adviser shall maintain
and preserve a record, in an easily-accessible place for a period of not less
than three years, of the Sub-Adviser's voting procedures, and of the
Sub-Adviser's actual votes, and shall supply this record to the Adviser, or any
authorized representative of the Adviser, upon the written request of the
Adviser or the Adviser's authorized representative, as appropriate.
7. REPRESENTATIONS AND WARRANTIES OF THE SUB-ADVISER.
(a) Sub-Adviser is registered with the U.S. Securities and Exchange
Commission ("SEC") under the Advisers Act. Sub-Adviser shall remain so
registered throughout the term of this Agreement and shall notify Adviser
immediately if Sub-Adviser ceases to be so registered as an investment adviser.
(b) Sub-Adviser is duly organized and validly existing under the laws of
the Delaware with the power to own and possess its assets and carry on its
business as it is now being conducted,
(c) Sub-Adviser has the authority to enter into and perform the services
contemplated by this Agreement,
(d) Sub-Adviser is not prohibited by the Investment Company Act of 1940, as
amended, ("1940 Act") or the Advisers Act from performing the services
contemplated by this Agreement,
(e) Sub-Adviser has met, and will continue to seek to meet for the duration
of this Agreement, any other applicable federal or state requirements, or the
applicable requirements of any regulatory or industry self-regulatory agency,
necessary to be met in order to perform the services this Agreement, and
(f) Sub-Adviser will promptly notify Adviser of the occurrence of any event
that would disqualify it from serving as an investment adviser to an investment
company pursuant to Section 9(a) of the 1940 Act.
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8. REPRESENTATION AND WARRANTIES OF THE ADVISER.
(a) Adviser is duly organized and validly existing under the laws of the
State of Delaware with the power to own and possess its assets and carry on its
business as it is now being conducted,
(b) Adviser has the authority to enter into and perform the services
contemplated by this Agreement,
(c) Adviser is not prohibited by the 1940 Act or the Advisers Act from
performing the services contemplated by this Agreement,
(d) Adviser has full power and authority to appoint Sub-Adviser to manage
the Portfolio in accordance with the terms of this Agreement,
(e) this Agreement is valid and has been duly authorized, does not violate
any obligation by which the Adviser is bound, and when so executed and
delivered, will be binding upon the Adviser in accordance with its terms subject
to applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and general principles of equity (and the Adviser
agrees to provide Sub-Adviser with evidence of such authority as may be
reasonably requested by Sub-Adviser).
(f) Adviser has met, and will continue to seek to meet for the duration of
this Agreement, any other applicable federal or state requirements, or the
applicable requirements of any regulatory or industry self-regulatory agency,
necessary to be met in order to perform the services this Agreement, and
(g) Adviser will promptly notify Sub-Adviser of the occurrence of any event
that would disqualify it from serving as an investment adviser to an investment
company pursuant to Section 9(a) of the 0000 Xxx.
(h) Adviser represents that the Trust is (and during the term of this
Agreement, will remain) registered as an open-end management investment company
under the 1940 Act and that the shares of the Trust representing an interest in
the Portfolio are (and during the term of this Agreement will remain) registered
under the Securities Act of 1933 and under any applicable state securities laws.
9. CODE OF ETHICS. Sub-Adviser has adopted a written code of ethics complying
with the requirements of Rule 17j-1 under the 1940 Act and will provide Adviser
and the Trust with a copy of that code, together with evidence of its adoption.
Within 20 days of the end of each calendar quarter during which this Agreement
remains in effect, the president or a vice president of Sub-Adviser shall
certify to Adviser or the Trust that Sub-Adviser has complied with the
requirements of Rule 17j-1 during the previous quarter and that there have been
no violations of Sub-Adviser's code of ethics or, if such a violation has
occurred, that appropriate action has been taken in response to such violation.
Upon written request of the Adviser, the Sub-Adviser will furnish in a timely
manner summaries of the reports required to be made to the Sub-Adviser by Rule
17j-1(c)(1).
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10. COMPENSATION OF THE SUB-ADVISER. For the services rendered, the facilities
furnished and the expenses assumed by Sub-Adviser, Adviser shall pay Sub-Adviser
at the end of each month a fee based on the average daily net assets of the
Portfolio at the annual rate of 0.40%.
(a) Sub-Adviser's fee shall be accrued daily at 1/365th of the applicable
annual rate set forth above. For the purpose of accruing compensation, the net
assets of the Portfolio shall be determined in the manner and on the dates set
forth in the current prospectus of the Trust, and, on days on which the net
assets are not so determined, the net asset value computation to be used shall
be as determined on the immediately preceding day on which the net assets were
determined.
(b) In the event of termination of this Agreement, all compensation due
through the date of termination will be calculated on a pro-rated basis through
the date of termination and paid within thirty business days of the date of
termination.
(c) During any period when the determination of net asset value is
suspended, the net asset value of the Portfolio as of the last business day
prior to such suspension shall for this purpose be deemed to be the net asset
value at the close of each succeeding business day until it is again determined.
11. RECORDS.
(a) Sub-Adviser hereby undertakes and agrees to maintain, in the form and
for the period required by Rule 31a-2 under the 1940 Act, all records relating
to the Portfolio's investments that are required to be maintained by the Trust
pursuant to the requirements of paragraphs (b)(5), (b)(6), (b)(7), (b)(9),
(b)(10) and (f) of Rule 31a-1 under the 0000 Xxx.
(b) Sub-Adviser agrees that all books and records which it maintains for
the Portfolio or the Trust are the property of the Trust and further agrees to
surrender promptly to the Adviser or the Trust any such books, records or
information upon the Adviser's or the Trust's request (provided, however, that
Sub-Adviser may retain copies of such records). All such books and records shall
be made available, within five business days of a written request, to the
Trust's accountants or auditors during regular business hours at Sub-Adviser's
offices. Adviser and the Trust or either of their authorized representative
shall have the right to copy any records in the possession of Sub-Adviser which
pertain to the Portfolio or the Trust. Such books, records, information or
reports shall be made available to properly authorized government
representatives consistent with state and federal law and/or regulations. In the
event of the termination of this Agreement, upon the request of the Adviser or
the Trust, all such books, records or other information shall be returned to
Adviser or the Trust.
(c) The Sub-Adviser agrees that the policies and procedures established by
the Sub-Adviser for managing the Portfolio, including, but not limited to, the
Sub-Adviser's "Compliance Program" designed to ensure compliance with federal
and state regulations governing the sub-adviser/client relationship and
management and operation of the
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Portfolio, shall be made available for inspection by the Adviser and the Trust
or either of their authorized representatives not less frequently than annually.
12. CONFIDENTIALITY.
(a) Each party agrees that it will not disclose or use any records or
confidential information obtained pursuant to this Agreement in any manner
whatsoever except (i) as authorized in this Agreement, (ii) as may be necessary
in the ordinary course of performing the services and transactions contemplated
by this Agreement; (iii) with the written consent of the other party; or (iv) as
required by federal or state regulatory authorities, law or judicial process.
(b) Confidential information shall not include information a party to this
Agreement can clearly establish was (i) known to the party prior to this
Agreement; (ii) rightfully acquired by the party from third parties whom the
party reasonably believes are not under an obligation of confidentiality to the
other party to this Agreement; (iii) placed in public domain without fault of
the party or its affiliates; or (iv) independently developed by the party
without reference or reliance upon any confidential information.
(c) Notwithstanding the provisions of Section 12 (a), to the extent that
any market counterparty with whom the Sub-Adviser deals requires information
relating to the Portfolio (including, but not limited to, the identity of the
Portfolio and market value of the Portfolio), the Sub-Adviser shall be permitted
to disclose such information to the extent necessary to effect transactions on
behalf of the Portfolio in accordance with the terms of this Agreement.
(d) It is understood that any information or recommendation supplied by, or
produced by, the Sub-Adviser in connection with the performance of its
obligations hereunder is to be regarded by the Trust and the Adviser as
confidential and for use only by the Adviser and the Trust. Furthermore, except
as required by law (including, but not limited to semi-annual, annual or other
filings made under the 0000 Xxx) or as agreed to by the Adviser and the
Sub-Adviser, the Adviser and the Trust will not disclose, in any manner
whatsoever except as expressly authorized in this Agreement, any list of
securities held by the Portfolio for a period of at least 30 days after month
end, except that the Portfolio's top 10 holdings may be disclosed 10 days after
month end. In addition, the Adviser or the Trust may disclose, earlier than 30
days after month end, a list of the securities held by the Portfolio to certain
third parties who have entered into a confidentiality agreement with the Trust.
(e) It is specifically agreed by the parties that the Sub-Adviser may
disclose the investment performance of the Portfolio, provided that such
disclosure does not reveal the identity of the Adviser, the Portfolio or the
Trust. Sub-Adviser may, however, disclose that Adviser, the Trust and the
Portfolio are its clients, provided that such disclosure does not reveal the
investment performance or the composition of the Portfolio.
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13. STANDARD OF CARE. In the absence of willful misfeasance, bad faith or gross
negligence on the part of Sub-Adviser or its officers, trustees or employees, or
reckless disregard by Sub-Adviser of its duties under this Agreement (together,
"disabling conduct"), Sub-Adviser shall not be liable to Adviser, the Portfolio,
the Trust or to any shareholder of the Portfolio for any act or omission in the
course of, or connected with, rendering services hereunder or for any losses
that may be sustained in the purchase, holding or sale of any security, except
to the extent otherwise provided in Section 36(b) of the 1940 Act concerning
loss resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services. Notwithstanding the foregoing, breach by the
Sub-Adviser of the Section 2(b)(ii) hereof is deemed to be disabling conduct.
Sub-Adviser does not guarantee the future performance of the Portfolio or any
specific level of performance, the success of any investment decision or
strategy that Sub-Adviser may use, or the success of Sub-Adviser's overall
management of the Portfolio. The Trust and Advisor understand that investment
decisions made for the Portfolio by Sub-Adviser are subject to various market,
currency, economic, political and business risks, and that those investment
decisions will not always be profitable. Sub-Adviser will manage only the assets
of the Portfolio allocated to its management by the Adviser and in making
investment decisions for the Portfolio.
14. INDEMNIFICATION BY SUB-ADVISER.
(a) Sub-Adviser agrees to indemnify and defend Adviser, its officers,
trustees, partners, employees and any person who controls Adviser for any loss
or expense (including attorneys' fees) arising out of any claim, demand, action,
suit or proceeding arising out of any actual or alleged material misstatement or
omission in the Trust's registration statement, any proxy statement, or
communication to current or prospective investors in the Portfolio relating to
disclosure about Sub-Adviser provided to Adviser by Sub-Adviser.
(b) Sub-Adviser agrees to indemnify and defend Adviser, its officers,
trustees, partners, employees and any person who controls Adviser for any loss
or expense (including attorneys' fees) arising out of any claim, demand, action,
suit or proceeding arising out of any action or omission of the Sub-Adviser that
causes the portion or portions of the assets of the Portfolio managed by the
Sub-Adviser not to: (a) comply with the diversification requirements of Section
817(h) of the Code and regulations issued thereunder as these apply to separate
accounts through which variable life insurance contracts and variable annuity
contracts are issued, and (b) continuously satisfy the requirements of Section
851(b)(2) and 851(b)(3) of the Code.
15. INDEMNIFICATION BY ADVISOR. Adviser agrees to indemnify and defend
Sub-Adviser, its officers, trustees, partners, employees and any person who
controls Adviser for any loss or expense (including attorneys' fees) arising out
of any claim, demand, action, suit or proceeding arising out of any actual or
alleged material misstatement or omission in the Trust's registration statement,
any proxy statement, or other communication to current or prospective investors
in the Portfolio (other than a misstatement or omission
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relating to disclosure about Sub-Adviser approved by the Sub-Adviser or provided
to Adviser or the Trust by Sub-Adviser).
16. USE OF NAME. The Sub-Adviser agrees to permit the Adviser and the Trust to
use its name, along side the Adviser's name, in the Portfolio's name and in
descriptions of the Portfolio, as these appear in the Trust's prospectus(es)
and/or sales literature related to the Portfolio, provided, however, that the
Adviser and the Trust shall cease such use of the Sub-Adviser's name in the
event that this Agreement is terminated. Neither the Trust nor the Adviser
shall, without the prior written consent of the Sub-adviser make any other
representations regarding the Sub-Adviser or reference to the Sub-Adviser or any
affiliates of the Sub-Adviser in any disclosure document, advertisement, sales
literature or other promotional materials without the prior approval of the
Sub-Adviser. If Sub-Adviser does not respond within Five business days regarding
materials submitted to it for approval, such material shall be deemed to have
been approved by the Sub-Adviser.
17. TERM AND DURATION OF THE AGREEMENT.
(a) This Agreement shall not become effective unless and until it is
approved by the board of trustees of the Trust, including a majority of trustees
who are not parties to this Agreement or interested persons of any such party to
this Agreement, and, to the extent required by law, a majority of the
outstanding shares of the class of the Trust's stock representing an interest in
the Portfolio. This Agreement shall come into full force and effect on the date
which it is so approved.
(b) This Agreement shall continue in effect for two years and shall
thereafter continue in effect from year to year so long as such continuance is
specifically approved at least annually by (1) the board of trustees of the
Trust, or by the vote of a majority of the outstanding shares of the class of
stock representing an interest in the Portfolio, and (2) a majority of those
trustees 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.
18. TERMINATION. Notwithstanding any other provision of this Agreement, this
Agreement may be terminated at any time without the payment of any penalty, by
the Trust's board of trustees, or by vote of a majority of the outstanding
shares of the class of stock representing an interest in the Portfolio on sixty
days written notice to the Adviser and Sub-Adviser, or by the Adviser, or by the
Sub-Adviser, on sixty days written notice to the other. This Agreement shall
automatically terminate in the event of its assignment or in the event of the
termination of the investment advisory agreement between the Adviser and the
Trust regarding the Adviser's management of the Portfolio.
19. AMENDMENTS TO THE AGREEMENT. This Agreement may be amended by the parties
only if such amendment is specifically approved by (a) a majority of those
trustees 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, and, if required by applicable law, (b) a majority of votes
attributable to the outstanding Trust shares of the class representing an
interest in the Portfolio.
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20. TRADE SETTLEMENT AT TERMINATION. Termination will be without prejudice to
the completion of any transaction already initiated. On, or after, the effective
date of termination, the Sub-Adviser shall be entitled, without prior notice to
the Adviser or the Portfolio, to direct the Portfolio's custodian to retain
and/or realize any assets of the Portfolio as may be required to settle
transactions already initiated, and to pay any outstanding liabilities of the
Sub-Adviser with respect to such transaction. Following the date of effective
termination, any new transactions will only be executed by mutual agreement
between the Adviser and the Sub-Adviser.
21. FORCE MAJEURE. Neither party shall be liable for damages resulting from
delayed or defective performance when such delays arise out of causes beyond the
control and without the fault or negligence of the party and could not have been
reasonably prevented by the party through back-up systems and other business
continuation and disaster recovery procedures commonly employed by other
SEC-registered investment advisers that meet reasonable commercial standards in
the investment company industry. Such causes may include, but are not restricted
to, Acts of God or of the public enemy, terrorism, acts of the State in its
sovereign capacity, fires, floods, earthquakes, power failure, disabling
strikes, epidemics, quarantine restrictions, and freight embargoes.
22. USE OF TERMS. The terms "assignment", "affiliated person" and "interested
person", when used in this Agreement, shall have the respective meanings
specified in the 1940 Act. The term "majority of the outstanding shares of the
class" means the lesser of (a) 67% or more of the votes attributable to shares
of such class present at a meeting if more than 50% of the votes attributable to
such shares are present or represented by proxy or (b) more than 50% of the
votes attributable to shares of such class.
23. GOVERNING LAW. This Agreement shall be construed in accordance with laws of
the State of Delaware, and applicable provisions of the Advisers Act and 1940
Act.
24. SEVERABILITY. If any provision 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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
Xxxxxx Advisers LLC
By: /s/ Illegible
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ATTEST:
/s/ Illegible
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X.X. Xxxxxx Investment Management Inc.
By: /s/ Illegible
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Title: Vice President
ATTEST:
/s/ Illegible
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