EXHIBIT (d)(2)(H)
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (this "Agreement") made as of [DATE] 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 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
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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.
(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
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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 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
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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, subject to the provisions of Section 18 of this Agreement.
(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. [this paragraph now reflects FMR's requested
language in its entirety]
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.
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8. REFERENCE TO MANAGER, LIFE INSURANCE COMPANIES OR TRUST. The Adviser
shall not utilize any materials 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 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.
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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 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.
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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:
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.
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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 ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) 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, 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
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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
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.
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(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 ▇▇▇▇ 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 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.
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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:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Operations Officer
LSA Asset Management LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Assistant General Counsel
LSA Asset Management LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Adviser:
Fidelity Management & Research Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
(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
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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 anoriginal.
* * *
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:
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: President
-----------------------------------
The Adviser:
FIDELITY MANAGEMENT & RESEARCH COMPANY
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
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